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

(dk£ed vkSj izf'k{k.k foHkkx)

ubZ fnYyh] 28 vizSy] 2014

dk-vk- 1340-—dsUnz ljdkj ,rn~}kjk fnYyh fo'ks"k iqfyl

LFkkiu vf/fu;e] 1946 (1946 dk vf/fu;e la- 25) dh /kjk 6

ds lkFk ifBr /kjk 5 dh mi&/kjk (1) ds }kjk iznÙk 'kfDr;ksa dk

iz;ksx djrs gq, fgekpy izns'k jkT; ljdkj] x`g foHkkx] f'keyk&2

ds fnukad 1 flracj] 2010 vkns'k la[;k gkse (,) ,iQ (9)&4@2010

}kjk izkIr lgefr ls Hkxr lgdkfjrk cSad] lksyu] fgekpy izns'k

}kjk vfu;fer fuos'k laca/h lkSnksa rFkk mi;qZDr vijk/ksa ds laca/

esa iz;kl] nq"izsj.kk vkSj "kM;a=k fd, tkus ds laca/ esa egkizca/d]

fjtoZ cSad vkWiQ bafM;k] vcZu dksvkWijsfVo cSadl fMikVZesaV] eqacbZ

}kjk Hkkjrh; naM lafgrk] 1860 (1860 dk vf/fu;e la- 45) dh

/kjk 120&[k] 409 rFkk 420 rgr fnukad 15&12&2009 dh f'kdk;r

dh tkap gsrq fnYyh fo'ks"k iqfyl LFkkiu ds lnL;ksa dh 'kfDr;ksa

vkSj vf/dkj {ks=k dk foLrkj laiw.kZ fgekpy izns'k jkT; ij djrh

gS A

¹la- 228@76@2013&,ohMh&IIº

jktho tSu] voj lfpo

1774 GI/2014

(3491)

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- 19]

ubZ fnYyh, ebZ 4—ebZ 10] 2014] 'kfuokj@oS'kk[k 14—oS'kk[k 20] 1936

No. 19]

NEW DELHI, MAY 4—MAY 10, 2014, SATURDAY/VAISAKHA 14—VAISAKHA 20, 1936

Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds

Separate Paging is given to this Part in order that it may be filed as a separate compilation

Hkkx II—[k.M 3—mi&[k.M (ii)

PART II—Section 3—Sub-section (ii)

Hkkjr ljdkj ds ea=kky;ksa (j{kk ea=kky; dks NksM+dj) }kjk tkjh fd, x, lkafof/d vkns'k vkSj vf/lwpuk,a

Statutory Orders and Notifications Issued by the Ministries of the Government of India

(Other than the Ministry of Defence)

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES

AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 28th April, 2014

S.O. 1340.—In exercise of the powers conferred by

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

Special Police Establishment Act, 1946 (Act No. 25 of 1946),

the Central Government with the consent of the State

Government of Himachal Pradesh, Department of Home,

Shimla- 2 vide Order No. Home (A)F(9)-4/2010 dated 1st

September, 2010, hereby extends the powers and

Jurisdiction of the members of the Delhi Special Police

Establishment to the whole State of Himachal Pradesh for

investigation of complaint dated 15.12.2009 under sections

120-B, 409 and 420 of the Indian Penal Code, 1860 (Act No.

45 of 1860) made by the General Manager, Reserve Bank of

India, Urban Cooperative Banks Department, Mumbai

relating to irregular investment transactions by Bhagat

Cooperative bank, Solan, Himachal Pradesh and attempts,

abetments and conspiracies in relation to the above

mentioned offences.

[No. 228/76/2013-AVD-II]

RAJIV JAIN, Under Secy.

3492

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

foÙk ea=kky;

(foÙkh; lsok,a foHkkx)

ubZ fnYyh] 1 vizSy] 2014

dk-vk- 1341-—Hkkjrh; LVsV cSad vf/fu;e] 1955 (1955

dk 23) dh /kjk 19 ds [k.M (Ä) }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] foÙkh; lsok,a foHkkx] foÙk

ea=kky; ds lfpo Jh xqjn;ky ¯lg la/q dks rRdky izHkko ls vkSj

vxys vkns'kksa rd] Jh jktho Vd: ds LFkku ij Hkkjrh; LVsV cSad

ds dsUnzh; funs'kd eaMy esa funs'kd ds :i esa ukfer djrh gS A

¹iQk- la- 7@2@2012&chvks&Iº

fefgj oqQekj] funs'kd

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi, the 1st April, 2014

S.O. 1341.—In exercise of the powers conferred by

clause (e) of Section 19 of the State Bank of India Act, 1955

(23 of 1955), the Central Government hereby nominates

Shri Gurdial Singh Sandhu, Secretary, Department of

Financial Services, Ministry of Finance, to be a Director on

the Central Board of Directors of State Bank of India with

immediate effect and until further orders vice Shri Rajiv

Takru.

[F. No. 7/2/2012-BO-I]

MIHIR KUMAR, Director

ubZ fnYyh] 1 vizSy] 2014

dk-vk- 1342-—Hkkjrh; fjtoZ cSad vf/fu;e] 1934 dh

/kjk 8 dh mi&/kjk (1) ds [k.M (?k) }kjk iznÙk 'kfDr;ksa dk

iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] foÙkh; lsok,a foHkkx]

foÙk ea=kky; ds lfpo Jh xqjn;ky ¯lg la/q dks rRdky izHkko ls

vkSj vxys vkns'kksa rd] Jh jktho Vd: ds LFkku ij Hkkjrh;

fjtoZ cSad ds dsUnzh; funs'kd eaMy esa funs'kd ds :i esa ukfer

djrh gS A

¹iQk- la- 7@2@2012&chvks&Iº

fefgj oqQekj] funs'kd

New Delhi, the 1st April, 2014

S.O. 1342.—In exercise of the powers conferred by

clause (d) of sub-section (1) of Section 8 of the Reserve

Bank of India Act, 1934, the Central Government hereby

nominates Shri Gurdial Singh Sandhu, Secretary,

Department of Financial Services, Ministry of Finance, to

be a Director on the Central Board of Directors of Reserve

Bank of India with immediate effect and until further orders

vice Shri Rajiv Takru.

[F. No. 7/2/2012-BO-I]

MIHIR KUMAR, Director

ubZ fnYyh] 3 vizSy] 2014

dk-vk- 1343-—Hkkjrh; fjtoZ cSad vf/fu;e] 1934 dh

/kjk 8 dh mi&/kjk (4) ds [k.M (d) }kjk iznÙk 'kfDr;ksa dk

iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Hkkjrh; fjtoZ cSad ds

dk;Zikyd funs'kd Jh vkj- xka/h (tUe frfFk % 4&4&1956) dks

muds }kjk in dk dk;Z&Hkkj xzg.k djus dh rkjh[k ls rhu o"kZ dh

vof/ ds fy, ;k vxys vkns'kksa rd] tks Hkh igys gks] Hkkjrh;

fjtoZ cSad esa fMIVh xouZj ds in ij fu;qDr djrh gS A

¹iQk- la- 1@6@2013&chvks&Iº

fefgj oqQekj] funs'kd

New Delhi, the 3rd April, 2014

S.O. 1343.—In exercise of the powers conferred by

clause (a) of sub-section (1) read with sub-section (4) of

Section 8 of the Reserve Bank of India Act, 1934, the

Central Government hereby appoints Shri R. Gandhi

(DoB : 04.04.1956), Executive Director, Reserve Bank of

India as Deputy Governor, Reserve Bank of India for a

period of three years from the date of his taking over charge

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

[F. No. 1/6/2013-BO-I]

MIHIR KUMAR, Director

ubZ fnYyh] 16 vizSy] 2014

dk-vk- 1344-—jk"Vªh;Ñr cSad (izca/ ,oa izdh.kZ mica/) Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM (1) ds lkFk ifBr cSaddkjh

daiuh (miØeksa dk vtZu ,oa varj.k) vf/fu;e] 1970@1980 dh /kjk 9 dh mi&/kjk 3 ds [kaM ([k) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs

gq,] dsUnzh; ljdkj] ,rn~}kjk] uhps nh xbZ lkj.kh ds dkye (2) esa fofufnZ"V O;fDr;ksa dks mDr lkj.kh ds dkye (3) esa fofufnZ"V O;fDr;ksa

ds LFkku ij dkye (1) esa fofufnZ"V cSadksa esa ljdkj }kjk ukfer funs'kd ds :i esa rRdky izHkko ls vkSj vxys vkns'k gksus rd] ukfer

djrh gS%&

(1)

(2)

(3)

1- vksfj;aVy cSad vkiQ dkelZ

Jh jtr lPpj] vkfFkZd lykgdkj] foRrh; lsok,a foHkkx

Jhefr Js;k xqgk

2- nsuk cSad

lqJh ,uk jkW;] funs'kd] foRrh; lsok,a foHkkx

Jh jtr lPpj

3- dkiksZjs'ku cSad

Jh euh"k xqIrk] funs'kd] foRrh; lsok,a foHkkx

LkqJh ,uk jkW;

¹iQk- la- 6@3@2012&chvks&Iº

fefgj dqekj] funs'kd

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3493

New Delhi, the 16th April, 2014

S.O. 1344.—In exercise of the powers conferred by clause (b) of sub-section (3) of Section 9 of The Banking

Companies (Acquisition and Transfer of Undertakings) Act, 1970/1980, read with sub-clause (1) of clause 3 of The Nationalized

Banks (Management and Miscellaneous Provisions) Scheme, 1970/1980, the Central Government, hereby nominate the

persons specified in column (2) of the table below as Government Nominee Director of the Bank specified in column (1)

thereof, in place of the persons specified in column (3) of the said Table, with immediate effect and until further orders:-

(1)

(2)

(3)

Orental Bank of Commerce

Shri Rajat Sachar, Economic Adviser

Smt. Sreya Guha

Department of Financial Services

Dena Bank

Ms. Anna Roy, Director, Department of

Shri Rajat Sachar

Financial Services

Corporation Bank

Shri Manish Gupta, Director, Department

Ms. Anna Roy

of Financial Services

[F. No. 6/3/2012-BO-I]

MIHIR KUMAR, Director

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

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

ubZ fnYyh] 28 vizSy] 2014

dk-vk- 1345-—tcfd Hkkjrh; fpfdRlk ifj"kn_ la'kks/u vè;kns'k] 2013 dh /kjk 3d dh mi&/kjk (1) }kjk iznRr 'kfDr;ksa dk

iz;ksx djrs gq, fnukad 06 uoacj] 2013 dks Hkkjrh; fpfdRlk ifj"kn dk iquxZBu fd;k x;k%

vkSj tcfd dsUnz ljdkj us Hkkjrh; vk;qfoZKku ifj"kn vf/fu;e] 1956 (1956 dk 102) dh /kjk 3 dh mi&/kjk (1) ds [kaM ([k)

ds vuqlj.k esa vkSj lacaf/r fo'ofo|ky;ksa@LokLF; foKku fo'ofo|ky;ksa }kjk ;Fkk lwfpr] fuEufyf[kr O;fDr dks bl vf/lwpuk ds tkjh

gksus dh frfFk ls pkj o"kksZa ds fy, Hkkjrh; vk;qfoZKku ifj"kn ds lnL; ds :i esa fuokZfpr fd;k x;k gSA

vr% vc mDr vf/fu;e dh /kjk 3 dh mi&/kjk (1) ds mica/ ds vuqlj.k esa dsUnz ljdkj }kjk Hkkjr ljdkj ds rRdkyhu LokLF;

ea=kky; dh fnukad 9 tuojh] 1960 dh vf/lwpuk la[;k dk-vk- 138 esa fuEufyf[kr la'kks/u fd, tkrs gSa_ vFkkZr %&

Hkkjr ljdkj] LokLF; ,oa ifjokj dY;k.k ea=kky; dh fnukad 06 uoacj] 2013 dh vf/lwpuk la[;k dk-vk- 3325 (v) vkSj mlds

la'kks/u esa vafre izfof"V rFkk rRlaca/h izfof"V esa fuEufyf[kr dks tksM+k tk,xk] vFkkZr~ %

Ø-la-

fo'ofo|ky; dk uke

fuokZfpr lnL; dk fooj.k

pquko dk rjhdk

37-

'kkjnk fo'ofo|ky;]

izks- I;kjs yky dfjgksyw] izksiQslj vkWiQ+ ltZjh ,oa fpfdRlk v/h{kd]

dksVZ }kjk fuokZfpr

Ldwy vkWiQ+ esfMdy lkbalst ,oa fjlpZ] 'kkjnk fo'ofo|ky;] xzsVj uks,Mk

¹la- oh- 11013@7@2013&,e bZ ih&Iº

vfer fo'okl] voj lfpo

ikn fVIi.kh% fnukad 9 tuojh] 1960 ds lk-dk- 138 ds rgr Hkkjr ds jkti=k esa eq[; vf/lwpuk izdkf'kr dh xbZ Fkh vkSj Hkkjrh;

vk;qfoZKku ifj"kn (la'kks/u)] f}rh; vè;kns'k] 2013 (2013 dk 11) ds rgr vafre ckj la'kksf/r fd;k x;k FkkA

MINISTRY OF HEALTH AND FAMILY WELFARE

(Department of Health and Family Welfare)

New Delhi, the 28th April, 2014

S.O.

1345.—Whereas on 06th November, 2013, the Medical Council of India was re-constituted in exercise of the

powers conferred by sub-section (1) of section 3A of the Indian Medical Council (Amendment) Ordinance, 2013;

And Whereas the Central Government, in pursuance of clause (b) of sub-section (1) of section 3 of the Indian Medical

Council Act, 1956 (102 of 1956) and as informed by the respective universities/health science universities, the following

have been elected to be a member of the Medical Council of India for four years with effect from the date of issue of this

notification.

Now, therefore, in pursuance of the provision of sub section (1) of Section 3 of the said Act, the Central Government

hereby makes the following amendment in the Notification of the Government of India in the then Ministry of Health number

S.O. 138 dated the 9th January, 1960, namely:

3494

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

In the notification of the Government of India in the Ministry of Health & Family Welfare number S.O. 3325(E) dated

the 06th November, 2013 and amendments thereto, after the last entry and entry relating thereto, the following shall be

inserted, namely:

S.No. Name of the University

Details of the Elected Member

Mode of Election

37.

Sharda University,

Prof. Piaray Lal Kariholu, Professor of Surgery &

Elected by Court

Grater Noida (UP)

Medical Superintendent, School of Medical Sciences

& Research, Sharda Universtiy, Greater Noida

[No. V. 11013/7/2013-MEP-I]

AMIT BISWAS, Under Secy.

dks;yk ea=kky;

ubZ fnYyh] 2 ebZ] 2014

dk-vk- 1346-—dsUnzh; ljdkj dks ;g izrhr gksrk gS fd] blls mikc¼ vuqlwph esa mfYyf[kr ifj{ks=k dh Hkwfe esa dks;yk vfHkizkIr

gksus dh laHkkouk gS_

vkSj js[kkad la[;k ,lbZlh,y@ch,lih@th,e(ih,yth)@Hkwfe@452 rkjh[k 23 fnlEcj] 2013 dk ftlesa mDr vuqlwph esa of.kZr Hkwfe

{ks=k ds C;kSjs vUrfoZ"V gS] fujh{k.k dysDVj] ftyk 'kgMksy (eè;izns'k) ds dk;kZy; esa ;k dks;yk fu;a=kd] 1] dkmafly gkmQl LVªhV]

dksydkrk&700001 ds dk;kZy; esa ;k lkmQFk bZLVuZ dksyiQhYM~l fyfeVsM (jktLo vuqHkkx)] lhir jksM] fcykliqj&495006 (NRrhlx<+)

ds dk;kZy; esa fd;k tk ldrk gS_

vr% vc] dsUnzh; ljdkj] dks;yk /kjd {ks=k (vtZu vkSj fodkl) vf/fu;e] 1957 (1957 dk 20) (ftls blesa blds i'pkr~

mDr vf/fu;e dgk x;k gS) dh /kjk 4 dh mi/kjk (1) }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq,] iwoksZDr vuqlwph esa of.kZr Hkwfe esa dks;ys

dk iwosZ{k.k djus dk vius vk'k; dh lwpuk nsrh gS_

mijksDr vuqlwph esa of.kZr Hkwfe esa fgrc¼ dksbZ O;fDr] bl vf/lwpuk ds jkti=k esa izdk'ku dh rkjh[k ls uCcs fnu dh vof/ ds

Hkhrj Hkkjlk/d vf/dkjh ;k foHkkxkè;{k (jktLo)] lkmQFk bZLVuZ dksyiQhYM~l fyfeVsM] lhir jksM] fcykliqj&495006 (NRrhlx<+) ls&

(i)

mDr vf/lwpuk dh /kjk 4 dh mi&/kjk (3) ds v/hu dh xbZ fdlh dkjZokbZ ls gqbZ ;k lEHkor% gksus okyh fdlh {kfr ds fy;s

mDr vf/fu;e dh /kjk 6 ds v/hu izfrdj dk nkok dj ldsxk_ ;k

(ii)

mDr vf/fu;e dh /kjk 13 dh mi/kjk (1) ds v/hu iwosZ{k.k vuqKfIr;ksa ds izHkkoghu gksus dh ckcr ;k mDr vf/fu;e dh

/kjk 13 dh mi&/kjk (4) ds v/hu [kuu iV~Vs izHkkoghu gksus ds fy;s izfrdj dk nkok dj ldsxk vkSj mls mDr vf/fu;e dh

/kjk 13 dh mi/kjk (1) ds [kaM (i) ls [kaM (iv) esa fofufnZ"V enksa dh ckcr mixr O;; dks minf'kZr djus ds fy;s iwoksZDr Hkwfe

ls lacaf/r lHkh ekufp=kksa] pkVksZ vkSj vU; nLrkostksa dks ifjnRr dj ldsxkA

vuqlwph

dapuiqj Cykd] lksgkxiqj {ks=k]

ftyk&'kgMksy (eè;izns'k)

¹js[kkad la[;k&,lbZlh,y@ch,lih@th,e (ih,yth)@Hkwfe@452] rkjh[k 23 fnlEcj] 2013º

(iwosZ{k.k ds fy, vf/lwfpr Hkwfe n'kkZrs gq,)

Øe

xzke dk

iVokjh

cankscLr

rglhy

ftyk

{ks=k

fVIIk.k

la-

uke

gYdk la[;k

la[;k

gsDVj esa

dapu iqj

168

lksgkxiqj

'kgMksy

775-000

Hkkx

jk;iqj

889

lksgkxiqj

'kgMksy

215-000

Hkkx

mf/;k

lksgkxiqj

'kgMksy

510-998

iw.kZ

dqy % 1500-998 gsDVj (yxHkx) ;k 3709-04 ,dM+ (yxHkx)

lhek o.kZu%

d&[k

js[kk xzke dapuiqj&ujxh ds lfEefyr lhek esa fcUnq ^d* ls vkjaHk gksrh gS vkSj xzke dapuiqj&ujxh] mf/;k&ujxh]

mf/;k&iMfj;k] mf/;k&/uiqjk] mf/;k&/uiqjh ds lfEefyr lhek ls xqtjrh gqbZ fcUnq ^[k* ij feyrh gSA

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3495

[k&x

js[kk fcUnq ^[k* ls vkjaHk gksrh gS vkSj xzke mf/;k&Nkrk] dapuiqj&Nkrk] dapuiqj&ykyiqj ds lfEefyr lhek ls gksrh gqbZ

fcUnq ^x* ij feyrh gSA

x&?k

js[kk fcUnq ^x* ls vkjaHk gksrh gS vkSj xzke dapuiqj] jk;iqj ds mRrjh Hkkx ls gksrh gqbZ fcUnq ^?k* ij feyrh gSA

?k&d

js[kk fcUnq ^?k* ls vkjaHk gksrh gS vkSj xzke jk;iqj ds eè; Hkkx ls gksrh gqbZ vkjafHkd fcUnq ^d* ij feyrh gSA

¹iQk- la- 43015@01@2014&ihvkjvkbZMCY;w&Iº

nksfefud MqaxMqax] voj lfpo

MINISTRY OF COAL

New Delhi, the 2nd May, 2014

S.O. 1346.—Whereas, it appears to the Central Government that Coal is likely to be obtained from the lands in the

locality mentioned in the Schedule annexed hereto;

And Whereas, the plan bearing number SECL/BSP/GM (PLG)/LAND/452 dated 23rd December, 2013 containing the

details of the area of land described in the said Schedule may be inspected at the office of the Collector, District Shahdol

(Madhya Pradesh) or at the office of the Coal Controller, 1, Council House Street, Kolkata-700001 or at the office of the

South Eastern Coalfields Limited (Revenue Section), Seepat Road, Bilaspur-495006 (Chhattisgarh);

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 4 of the Coal Bearing Areas

(Acquisition and Development) Act, 1957 (20 of 1957), (hereinafter referred to as the said Act), the Central Government

hereby gives notice of its intention to prospect for coal in the land described in the aforesaid schedule;

Any person interested in the said Schedule may---

(i)

Claim compensation under section 6 of the said Act for any damage caused or likely to be caused by any action

taken under sub-section 3 of section 4 thereof; or

(ii)

claim compensation under sub-section (1) of section 13 of the said Act, in respect of prospecting license

ceasing to have effect or under sub-section (4) of section 13 of the said Act for mining lease ceasing to have

effect and deliver all maps, charts and other documents relating to the schedule mentioned land to show the

expenditure incurred in respect of items specified in clauses (i) to (iv) of sub-section (1) of section 13 of the said

Act,

to the Officer-In-Charge or Head of the Department (Revenue), South Eastern Coalfields Limited, Seepat Road, Bilaspur-

495006 (Chhattishgarh) within a period of ninety days from the date of publication of this notification in the Official Gazette.

SCHEDULE

Kanchanpur Block, Sohagpur Area,

District-Shahdol, Madhya Pradesh

[Plan bearing number SECL/BSP/GM (PLG)/LAND/452, dated 23rd December, 2013]

(Showing the land notified for prospecting).

Sl.

Name of

Patwari

Bandobast

Tahsil

District

Area in

Remarks

No.

Village

halka number

Number

hectares

Kanchanpur

168

Sohagpur

Shahdol

775.000

Part

Raipur

889

Sohagpur

Shahdol

215.000

Part

Udhiya

Sohagpur

Shahdol

510.998

Full

Total: 1500.998 hectares (approximately) or 3709.04 acres (approximately)

BOUNDARY DESCRIPTION:

A-B

Line starts from point 'A' on the common boundary of villages Kanchanpur-Nargi and passes along common

boundary of Village kanchanpur-Nargi, Udhiya-Nargi, Udhiya-Padariya, Udhiya-Dhanpura, Udhiya-Dhanpuri

and meets at point 'B'.

B-C

Line starts from point 'B' and passes along common boundary of villages Udhiya-Chhata, Kanchanpur-Chhata,

Kanchanpur-Lalpur and meets at point 'C'.

C-D

Line starts from point 'C' and passes through northern part of village Kanchanpur, Raipur and meet at point 'D'.

D-A

Line starts from point 'D' and passes through middle part of village Raipur and meet at Starting point 'A'.

[F. No. 43015/01/2014-PRIW-I]

DOMINIC DUNGDUNG, Under Secy.

3496

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Je ,oa jkstxkj ea=kky;

ubZ fnYyh] 15 vizSy] 2014

dk-vk- 1347-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj us'kuy

iQ£Vykb”kj fyfeVsM] ikuhir 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 ,oa Je U;k;ky;&1] paMhx<+

ds iapkV (lanHkZ la[;k 7@2013) dks izdkf'kr djrh gS] tks dsUnzh;

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¹la- ,y&42011@168@2012&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 15th April, 2014

S.O. 1347.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 7/2013)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Chandigarh now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of National Fertilizers Limited, Panipat

and their workmen, which was received by the Central

Government on 11/04/2014.

[No. L-42011/168/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI SURENDRA PRAKASH SINGH,

PRESIDING OFFICER, CENTRAL GOVT.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,

CHANDIGARH

Case No. ID 07 of 2013

Reference No. L-42011/168/2012-IR(DU)

Dated 28.02.2013

Workman through General Secretary,

NFL Mazdoor Conference(Regd.)

CITU Office, Near UCO Bank,

G.T. Road, Panipat, Haryana.

.....Union

Versus

1. The Executive Director,

National Fertilizer Limited,

Panipat, Haryana.

2. M/s. Hindustan Fabricators & Contractors,

Rep. By Shri Ramphal,

B-505, Ansak Sushant City,

Panipat, Haryana.

....Respondents

Appearances

For the Workman/Union : None.

For the respondents.

: Shri S.Kaushal for NFL

i.e. respdt. No.1.

None for Respdt. No.2.

Award Passed On:-3.4.2014

Government of India Ministry of Labour vide

notification No. L-42011/168/2012-IR(DU)dated 28.02.2013

has referred the following dispute to this Tribunal for

adjudication:

Term of Reference:

“Whether retrenchment/termination of services of

workmen concerned( Contract Labourer work under

M/s. R.K.Garg, Contractor, contract terminated on

31.12.2011 by the management of National Fertilizers

Ltd., are just, fair and legal? If not, what relief the

workmen concerned are entitled to?”

Case called repretedly. None has put up appearance

on behalf of the workman despite registered notice. Earlier

also the workman Montu appeared on 21.5.2013 and

requested adjournment for filling of claim statement.

Thereafter none has put up appearance on behalf of the

workman. Registered notice was also issued to the

workman on 20.1.2014 for 7.3.2014 but neither the workman/

union put up appearance nor any claim on behalf of the

union/workmen filed. It appears that union/ workmen are

not interested to persue the present reference.

In view of the above, this Tribunal has no option

otherwise then to return the reference for want of

prosecution. The reference is disposed off accordingly.

Central Govt. Be informed. Soft as well hard copy be sent

to the Central Govt. For publication.

Chandigarh

3-4-2014

S. P. SINGH, Presiding Officer

ubZ fnYyh] 15 vizSy] 2014

dk-vk- 1348-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMIVh tujy

eSustj Hkkjr lapkj fuxe 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 ,oa Je U;k;ky;] psUubZ ds

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¹la- ,y&40012@24@2013&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 15th April, 2014

S.O.

1348.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 61/2013)

of the Central Government Industrial Tribunal/Labour

Court, Chennai now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the Dy. General Manager, Bharat

Sanchar Nigam Limited and their workman, which was

received by the Central Government on 11/04/2014.

[No. L-40012/24/2013-IR(DU)]

P. K. VENUGOPAL, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3497

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Wednesday, the 26th March, 2014

Present : K.P. PRASANNA KUMARI, Presiding Officer

Industrial Dispute No. 61/2013

(In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Bharat Sanchar Nigam Ltd. and their

workman)

BETWEEN

Sri S. Mahalingam

: 1st Party/Petitioner

AND

The Dy. General Manager –

: 2nd Party/Respondent

Admn.

Office of the General Manager

Bharat Sanchar Nigam Ltd.

Thanjavur, T.Nadu

Appearance :

For the 1st Party/Petitioner

: Sri J. Muthukumaran,

Advocate

For the 2nd Party/Respondent: M/s. T. Ravi Kumar &

Ms. Vidhyutha,

Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-40012/24/2013-IR(DU)

dated 27.05.2013 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of BSNL,

O/o The General Manager, Thanjavur in imposing

the punishment of removal from service of Sri S.

Mahalingam is legal and justified? To what relief the

concerned workman is entitled to?’’

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 61/2013 and issued notices to both

sides. Both sides have entered appearance through their

counsel and have filed their claim and counter statement

respectively.

The averments in the Claim Statement filed by the

petitioner in brief are these:

The petitioner who was serving as Daily Wage

Mazdoor in the erstwhile Telephones Department of

Government of India was appointed as Mazdoor on regular

basis in May 1992. He was promoted and posted as

Telephone Mechanic and had been working at

Kuruvakulam in this capacity. The Inspector of Police,

CBI, Chennai registered a case and filed Charge Sheet

against the petitioner under Section-7 and Section-13(2)

read with Section 13(1)(D) of the Prevention of Corruption

Act. The petitioner who had undergone trial before the

Special Judge for CBI Cases, Chennai was found guilty

and convicted and sentenced to undergo rigorous

imprisonment for 1 year and fine of Rs. 1,000 under Section-

7 of Prevention of Corruption Act and to undergo rigorous

imprisonment for 2 year and fine of Rs. 2,000 under Section-

13(2) read with Section-13(1)(B) of the said Act. In appeal

preferred by the petitioner the Hon’ble High Court modified

and reduced the sentence under Section-13(2) read with

Section 13 1D of Prevention of Corruption Act to one

year. The Special Leave Petition filed by the petitioner

before the Supreme Court of India against this judgment

of the High Court was dismissed on 02.09.2011. In the

meanwhile, after conviction by the Trial Court the

Respondent by order dated 18.02.2008 informed the

petitioner that he is deemed to have been placed under

suspension. While appeal was pending before the High

Court a Show Cause Notice was issued to the petitioner

and subsequently by order dated 23.02.2009 the petitioner

was removed from service. The petitioner had raised

dispute before the DCLC (Chennai) challenging this order.

Consequent to the failure of the conciliation proceedings,

the dispute has been referred to this Tribunal for

adjudication. Imposing penalty consequent on the

conviction of an employee is not automatic. The Show

Cause Notice of the Respondent does not specifically state

the conduct which lead to the petitioner’s removal from

service so as to enable him to submit his explanation. The

Respondent should have taken a lenient view taking into

account his past service and imposed a lesser punishment

rather than dismissal or removal from service. The petitioner

is entitled to be reinstated in service with full back wages

and continuity of service.

The Respondent has filed Counter Statement

contending as follows:

The dispute is not maintainable before this Court.

The conviction by the Trial Court is sufficient for awarding

penalty to the employee under Rule-40 of the BSNL,

Conduct, Discipline and Appeal Rules. The order against

the petitioner has been passed after thorough examination

of the facts of the case. The order made is within the power

of the competent authority under the Disciplinary Rules.

The petitioner had acted in a manner unbecoming of a

government servant so the action against him by the

department is only proper. The petitioner had indulged in

corruptive practice and is not entitled to any leniency.

The petitioner is not entitled to any relief.

The evidence in the case consists of oral evidence

of WW1 and MW1 and documents marked as Exts.W1 to

Exts.W4 and Exts.M1 to Exts.M18.

3498

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

The points for consideration are :

(i)

Whether the action of the Management in imposing

the punishment of removal from service is legal and

justified?

(ii)

What is the relief to which the petitioner is entitled?

The Points

The petitioner was appointed in erstwhile

Telephones Department as Daily Wages Mazdoor in 1978.

Ext.W1 is the order of appointment. He was posted as

regular Mazdoor in 1992 as seen from Ext.W2. He had

continued to work in the establishment, which was

previously the Telephone Department and subsequently,

Bharat Sanchar Nigam Ltd., the Respondent. While he

was working so, he was placed under suspension by order

dated 18.02.2008. He was dismissed from service on

23.02.2009 as seen from Ext.W4.

The conviction of the petitioner in the criminal case

charged against him by CBI, Chennai under various

sections of the Prevention of Corruption Act had resulted

in the suspension of the petitioner and his removal from

service. The judgment of the Sessions Court in the case

against the petitioner itself is not seen produced. However,

it is very much clear from the Claim Statement itself that

the petitioner was convicted in the case and the High

Court had sustained the conviction with some modification

in the sentence. As seen from the Claim Statement, the

Special Leave Petition preferred by the petitioner before

the Hon’ble Supreme Court also was dismissed. Even

before this dismissal, while appeal was pending before

the Hon’ble High Court, the petitioner seems to have been

dismissed from service, as seen from Ext.W4. The

Respondent seems to have started proceedings against

him immediately after his conviction by the Sessions

Court.

The case that is advanced on behalf of the petitioner

is that merely on account of his conviction in the sessions

case he was not liable to have been removed from service.

It is stated that the Show Cause Notice that was issued

against him proposing the punishment of removal from

service is very vague and he was not able to give a proper

explanation for the same. On the other hand it is contended

by the Respondent that in view of the Conduct, Discipline

and Appeal Rules of the Respondent, it was empowered

to take action against the petitioner on the basis of the

conviction itself.

10.

The BSNL Conduct, Discipline and Appeal Rules

has been produced and marked as Ext.M13. Rules 35, 36

and 37 of this prescribe the procedure for imposing

penalties on employees. Rules-40 states that

notwithstanding anything contained in the said rules, the

Disciplinary Authority may impose any of the penalties

specified in Rule-33 in certain circumstances including

one where the employee has been convicted on a criminal

charge or on the strength of facts or conclusion arrived at

by a judicial trial. It is on the basis of this Rule-40A, the

Respondent has proceeded against the petitioner after

his conviction in the criminal case and imposed the penalty

of removal from service. The Respondent is well within it

power to impose the penalty in view of the said rule.

11.

The petitioner has claimed in the Claim Statement

that in any case leniency should have been shown to him

in the matter of punishment. I am unable to accept this

argument on behalf of the petitioner also. The petitioner

was charged for corruption and he was found guilty

under various sections of the Prevention of Corruption

Act. His conviction was confirmed even by the highest

Court. The Counsel for the Respondent drawn attention

to the decision of the Apex Court in UNION OF INDIA

AND OTHERS VS. KK DHAWAN reported in 1993 2 SCC

56 where the Court has quoted with approval a decision of

the Queens Bench approving dismissal of the employee

for the misconduct of corrupt practice. It was a case where

the petitioner had resorted to the practice of accepting

bribe from a customer. The petitioner is not entitled to

even to any leniency in the matter of punishment. The

reference is to be answered against him.

12.

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 26^th March, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1^stParty/Petitioner : WW1, Sri S. Mahalingam

For the 2^nd Party/

: MW1, Sri L. Chandraprakash

Management

Documents Marked:

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

14.02.1978

Appointment as Daily Wages

Mazdoor

Ex.W2

15.05.1992

Posting order as regular mazdoor

Ex.W3

18.02.2008

Order of Suspension

Ex.W4

23.02.2009

Order of Dismissal

On the Management’s side

Ex. No.

Date

Description

Ex.M1

04.10.2005

Summons issued in RC No. 42 of

2002 by Superintending of Police,

CBI

Ex.M2

06.09.2005

Summons to witness issued by

Hon’ble VIII Principal Special

Judge for CBI cases to R.

Balaraman

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3499

Ex.M3

17.07.2006

Summons issued in RC No. 42 of

2002 to GM, BSNL, Thanjavur by

Superintendent of Police, CBI for

the case before the VIIIth

Additional City Civil Court

Ex.M4

17.12.2007

Order passed by Hon’ble High

Court in Criminal Misc. Petition

No. 1 of 2013 in Criminal Appeal

No. 1104 of 2007

Ex.M5

29.01.2009

Department of Telecom Letter –

ratification of proposal of removal

from service

Ex.M6

03.02.2009

BSNL Headquarter’s letter to

Vigilance Office, CGMT, BSNL,

Tamil Nadu Telecom Circle,

Chennai. Removal of service

acceptance

Ex.M7

09.10.2012

Ministry of Communication and

IT, DoT Tamilnadu Circle, Chennai

– 8 – Letter to Chief Accounts

Officer, Thanjavur

Ex.M8

15.11.2012

Letter of Senior Accounts Office,

Thanjavur to Assistant Controller

of Communication, Accounts,

Chennai-8 forwarding additional

documents

Ex.M9

22.04.2010

Order passed by the Central

Administrative Tribunal in OA

541 of 2009 holding that there is

no merit in the OA filed

Ex.M10

02.01.2010

Reply statement filed by BSNL,

Thanjavur before Assistant

Labour Commissioner, Central,

Pondicherry in Application No. Nil

of 2012

Ex.M11

23.02.2009

Order passed by Disciplinary

Authority and Deputy General

Manager (Admn.) imposing a

penalty of removal from service

Ex.M12

09.01.2013

Failure Conciliation Report

submitted u/s 12(4) of the ID Act

by Asstt. Labour Commissioner

(Central), Pondicherry

Ex.M13

BSNL Conduct, Discipline Appeal

Rules, 2006

Ex.M14

3/2013

Swamy’s News relating to

Tribunal interference with

punishment

Ex.M15

14.08.1996

Judgment of the Supreme Court

in the case of J. Jayasankar Vs.

Union of India and another

Ex.M16

01.07.2013

OA No. 886 of 2013 filed by

Mahalingam before the Central

Administrative Tribunal, Chennai

Ex.M17

05.07.2013

Order passed by Central

Administrative Tribunal in the

case of S. Mahalingam

Ex.M18

28.08.2013

BSNL letter to S. Mahalingam

regarding grant of Pension

ubZ fnYyh] 15 vizSy] 2014

dk-vk- 1349-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr lapkj

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vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;&1] eqEcbZ ds iapkV (lanHkZ

la[;k CGIT-1/23 of 2013) dks izdkf'kr djrh gS] tks dsUnzh;

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¹la- ,y&40012@16@2013&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 15th April, 2014

S.O. 1349.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT-1/

23 of 2013) of the Central Government Industrial Tribunal/

Labour Court No. 1, Mumbai now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of Bharat Sanchar Nigam

Limited and their workmen, which was received by the

Central Government on 11/04/2014.

[No. L-40012/16/2013-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1, MUMBAI

Present:

JUSTICE S. P. MEHROTRA, Presiding Officer

REFERENCE NO.CGIT-l/23 OF 2013

Parties :Employers in relation to the management of Bharat

Sanchar Nigam Limited

And

Their workman (Ashish Govind Bhovad)

Appearances :

For the first party no. 1 Management : Mr. Alva, Adv.

For the first party no. 2 Contractor

: None present.

For the second party workman

: None present.

State

: Maharashtra

Mumbai, dated the 25th day of March, 2014

3500

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

AWARD

The present reference has been made by the Central

Government by its order dated 22.4.2013 passed in exercise

of the powers conferred by clause (d) of sub- section (1)

and sub-section (2A) of Section 10 of the Industrial Dispute

Act 1947. The terms of reference as per the schedule to the

said order are as under:

“Whether the dismissal of Shri Ashish Govind

Bhovad, contract workman during tender period by

Shri R B Jadhav, BSNL Contractor is legal and

justified? To what relief the workman is entitled tor?’’

By the order dt.15.5.2013 this Tribunal directed for

issuance of notices to the parties. Notice issued to the first

party no.1 / Management by registered post AD was duly

served and the acknowledgement card was received back.

Notice sent to the first party no.2 (R.B.Jadhav) / Contractor

by registered post AD was duly served and the

acknowledgement card was received back. Further, notice

sent to the second party / workman (A.G.Bhovad) sent by

registered post AD was also duly served and the

acknowledgement card was received back.

On the date fixed in the notice i.e.21.6.2013 Mrs.

Masurkar, Advocate was present for the first party no.1 /

Management. However, none was present on behalf of the

first party no.2 / contractor or the second party / workman.

On the said date i.e.21.6.2013, a letter dt.19.6.2013 sent by

the first party no.2 / Contractor (R.B.Jadhav) was received.

Alongwith the said letter a Xerox copy of the statement

purporting to have been made by A.G. Bhovad (second

party/workman) was enclosed. The said Xerox copy was

certified as true copy by the Notary on 18.6.2013.

As none was present on behalf of the second party/

workman on the aforesaid date i.e.21.6.2013, the case was

adjourned to 8.8.2013.

On 8.8.2013 the post of Presiding Officer of this

Tribunal was vacant. On the said date, none was present

on behalf of the workman nor was anyone present on behalf

of the first party no.l/Management or the first party no.2 /

Contractor. In the circumstances, the case was fixed for

22.11.2013.

On 22.11.2013, Mrs.Masurkar, Advocate was present

on behalf of the first party no. l/ Management. However,

none was present on behalf of the second party/workman

nor was anyone present on behalf of the first party no.2/

Contractor. In the circumstances, the case was adjourned

to 3.1.2014.

On 3.1.2014 Mrs.Masurkar, Advocate was present

on behalf of the first party no. 1/Management. However,

none was present on behalf of the first party no.2/

Contractor nor was anyone present on behalf of the second

party/ workman. In the circumstances, the case was

adjourned to 12.2.2014 for filing of statement of claim on

behalf of the second party/workman.

On 12.2.2014 Mr.Mhatre, Advocate holding brief for

Mrs.Masurkar, learned counsel for the first party no.1/

Management was present. However, none was present on

behalf of the second party/workman nor was anyone

present on behalf of the first party no.2/Contractor. In the

circumstances, the case was adjourned to 25.3.2014 i.e.

today for filing of statement of claim on behalf of the second

party / workman.

The case is taken up today. Mr.Mhatre, Advocate

holding brief for Mrs.Masurkar learned counsel for the

first party/Management is present. However, none is

present on behalf of the second party/workman nor is

anyone present on behalf of the first party no.2/Contractor.

10.

From the above narration of facts, it is evident that

despite service of notice on the second party/workman, he

has not put in appearance in the matter. No statement of

claim has been filed on behalf of the second party / workman.

There is thus no pleading or evidence filed on behalf of the

workman in support of his claim. No relief can therefore be

granted to the second party/workman.

11.

The Reference is answered by stating that no relief

can be granted to the workman.

12. The Award is passed accordingly.

JUSTICE S. P. MEHROTRA, Presiding Officer

ubZ fnYyh] 15 vizSy] 2014

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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj

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¹la- ,y&40012@429@99&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 15th April, 2014

S.O. 1350.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 336/

2005) of the Central Government Industrial Tribunal/Labour

Court No. II, Chandigarh now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of General Manager, Telecom, Bathinda

and their workmen, which was received by the Central

Government on 11/04/2014.

[No. L-40012/429/99-IR(DU)]

P. K. VENUGOPAL, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3501

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH.

PRESENT : SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No.336/2005

Registered on 16.8.2005

Sh. Surinder Kumar, S/o Sh. Kheta Ram,

C/o Sh. N.K Jeet, President,

Telecom Labour Union,

Mohalla Hari Nagar,

Lal Singh Basti Road, Bathinda.

....Petitioner

Versus

The General Manager, Telecom, Bathinda. ...Respondent

APPEARANCES

For the workman

Sh. Charanjeet Adv.

For the Management

Sh. Anish Babbar Adv.

AWARD

Passed on 10-3-2014

Central Government vide Notification No. L-40012/

429/99-IR(DU) Dated 16.2.2000, 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 General

Manager Telecom, Ferozepur in terminating the

services of Sh. Surinder S/o Sh. Kheta Ram is legal

and justified? If not, to what relief the workman is

entitled to and from which date?”

In response to the notice the workman appeared

and submitted statement of claim pleading that he had

been serving in the Office of JTO Malout since 16.4.1997

drawing a salary of Rs.2138 per month and his services

were illegally terminated on 5.3.1999 without serving him

any notice or payment of compensation. That the persons

junior to him were retained in service and even other

persons were employed after his termination. That he is

entitled to reinstatement with all the consequential benefits.

Respondent management filed written reply pleading

that there was no relationship of employer and employee

between the parties. That the management used to give

contract for providing labour and if workman was engaged

by the contractor, he had not become 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 reiterating the case as

set out in the claim petition.

On the other hand the management examined Jatinder

Chinia and Pritpal Singh who filed separate affidavits

supporting the stand taken by the respondent management

in the written statement.

I have heard Sh. Charanjit, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

Learned counsel for the workman carried me through

the duty chart placed at page No.14 to 21 of the file.

Photocopy of another document which are at Page No.22

to 49 submitted that the duty chart and another documents

clearly prove that the workman was engaged by the

respondent management; further submitted that since the

management has given evasive reply regarding the salary

of the workman which further goes to prove that the

workman actually worked in the management.

I have considered the contention of the learned

counsel.

It is the definite case of the workman that he served

with JTO Malout on permanent job from 16.4.1997 to

5.3.1999. The respondent management is a statutory body

having its Rules and Regulations for employing the person

in its office. It is nowhere pleaded or proved that the

workman was appointed against a permanent job by

following any procedure.

It is not proved on the file that the documents which

are at page No.14 to 49 are of the respondent management

as these were simply placed on record and were not proved

by the workman. It cannot be said that the documents

were authorised by the respondent management.

According to the workman he was drawing a salary of

Rs.2138/- per month. But no record has been summoned

by the workman to prove this fact.

Thus it is not proved on the file that the workman

was an employee of the respondent management and his

services were terminated.

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] 15 vizSy] 2014

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3502

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 15th April, 2014

S.O.

1351.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 13/2004)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Chandigarh now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of Senior Superintendent of Post Offices

and their workmen, which was received by the Central

Government on 11/04/2014.

[No. L-40012/101/2003-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI SURENDRA PRAKASH SINGH,

PRESIDING OFFICER, CENTRAL GOVT.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,

CHANDIGARH

Case No. ID 13 of 2004

Reference No. L-40012/101/2003-IR(DU)

Dated 29.01.2004.

Sh. Sukhwinder Singh S/o Sh. Tara Singh,

Ex-EDBPM, C/o Hazara Branch Post Office,

Punjab.

.....Workman

Versus

1. The Sr. Supdt. of Post Offices,

Deptt. of Posts, Jalandhar Division,

Jalandhar(Punjab).

.....Respondent

Appearances

For the Workman

: None for the workman.

For the Management

: Shri K.K.Thakur, Advocate.

AWARD

Dated : 31.03.2014

Government of India Ministry of Labour vide

notification No.L-40012/101/2003-IR(DU)dated 29.01.2004

has referred the following dispute to this Tribunal for

adjudication:

Term of Reference:

“Whether the action of the management of Sr. Supdt.

of Post Offices, Jalandhar Division, Jalandhar in

removing the services of Sh. Sukhwinder Singh S/o

Sh. Tara Singh, Ex-EDBPM w.e.f. 03.07.2001 is legal

and just? If not what relief the concerned workman

is entitled to and from which date?”

The claim of the workman in claim statement is that

while working as Extra Departmental Branch Post Master,

he was served with the following charge sheet :

“ARTICLE–I

While working as ED BPM Hazara BO

Sh. Sukhwinder Singh accepted Rs.2000/- for

deposit for the month of 7/2000 in r/o RD A/C

No.621557 & was not accounted for to the Govt.

account. Thus, Sh. Sukhwinder Singh alleged to

have misappropriated the Govt. money to the tune

of Rs.2000 on 9.7.2000.

Sh. Sukhwinder Singh thus alleged to have violated

the provision Rule-124 of Rules for BO Rules 7th Edition.

He is also alleged to have failed to maintain devotion to

duty envisaged in Rule 17 of EDA’s (C&S) Rules, 1964.

ARTICLE–II

Statement of article of charge framed against

Sh. Sukhwinder Singh, EDBPM, Hazara BO in

account with Jandhu Singha SO (JL City).

ARTICLE-I

Sh. Sukhwinder Singh while performing the duty of

ED BPM at Hazara BO alleged to have accepted

Rs.2000 for deposit in RD A/C No. 621557 from the

depositor Baljit Kaur w/o Sh. Gurmit Singh R/o VPO :

Hazara, Distt. Jalandhar on 9.7.2000 for the month of

7/2000, made entry of deposit in the relevant pass

book wrote dated 9-7-2000. Name of month 7/2000

affixed date stamp impression 22-7-2000, struck the

balance Rs. 8000 & put his initials in the prescribed

column. The amount so accepted by him was not

taken into Govt. account and alleged to have

misappropriated the amount to the tune of Rs. 2000

Two thousand only & infringed instructions

contained in Rule 124 of “Rules of Branch Offices”.

The workman replied to the charge sheet but without

looking into the contents of the reply, the management in

haste appointed one Shri Chaman Lal SPM, Lajpat Nagar

Post Office as the enquiry officer who was completely

under the control of the management. It is further pleaded

by the workman that the enquiry officer did not follow the

procedure as prescribed under the rules. He also played

the role of the presenting officer as all the departmental

witnesses were examined by him and all the defence

witnesses were cross-examined by the enquiry officer. The

relevant documents were not supplied to the workman

and his request was declined illegally and arbitrarily. The

workman was not allowed to cross-examine the witnesses

the management. The finding recorded by the enquiry

officer are based on no evidence as there was no evidence

to show that the alleged Baljit Kaur or the workman had

ever deposited a sum of Rs. 2000 with the workman or

workman ever accepted the same from the said Baljit Kaur.

Baljit Kaur during enquiry proceedings did not support

the allegations against the workman nor had she asked for

any action against the workman. It is further pleaded that

whole action has been initiated against the workman with

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3503

malafide intention by the management. It is further pleaded

that no documents has been produced by the management

during enquiry proceedings to show that said Smt. Baljit

Kaur had ever given any money to the workman. There is

no evidence against the workman and the whole action

against the workman have been taken with malicious

intention. It is further pleaded that all the pass books

issued or maintained by the workman were thoroughly

checked but nothing has been found against the workman.

It is further pleaded that on the basis of such doubtful

entries, the extreme penalty of removal of service was

imposed which is totally unwarranted as there was no

such complaint against the workman for the last ten years.

Inquiry was conducted against the principle of natural

justice. Therefore, it is prayed by the workman that his

termination may be declared illegal and the management

may be directed to reinstate the workman with full back

wages.

The management filed written statement by pleading

that workman while working as ED BPM misappropriated

Rs. 2000 of RD A/C No. 621557 of one Baljit Kaur who

applied for transfer of her said A/C no. at Adampur Doaba

SO Jalandhar City from Hazara Branch Office which was

showing balance of Rs. 8000 on 28.7.2000. The SPM

Adampur Doaba sent the SB 10(b) and RD Pass book to

Senior Post Master Jalandhar who returned the same with

the remarks to sent LOT showing balance of Rs.8000 in

the above account. In reply , SPM Jhandu Singh SO

informed that balance in the said account is Rs.6000. As

such there is a difference of Rs. 2000 in the pass book and

the record of Jhandu Singh PO. The Senior Post Master

Jalandhar City made a report to Senior Superintendant of

Post Office Jalandhar who ordered enquiry. In enquiry it

is revealed that Sh. Sukhwinder Singh GDS BPM Hazara

accepted Rs. 2000 on 9.7.2000 from Smt. Baljit Kaur

alongwith pass book, prepared pay in slip at is own level

made entry on the deposit in RD Pass Book on 9.7.2000

with stamp impression of date as 22.7.2000. The workman

did not account for Rs. 2000 and pocketed the amount.

The workman himself voluntarily credited the amount of

Rs. 2000 to the Govt. on 28.8.2000 at the time of enquiry.

The workman served with the charge sheet and on

culmination of the enquiry he was removed from service.

The appeal filed by the workman was also rejected. The

punishment imposed upon the workman is proportionate

to the gravity of misconduct. Therefore, the workman is

not entitled for any relief. It is further pleaded that the

punishment imposed upon the workman is based upon

his own confessional statement dated 28.8.2000 and

reference deserve dismissal.

In evidence workman filed his affidavit alonwith

documents. The management also examined Shri

N.R.Meena as MW1 who filed his affidavit and examined

as MW1. Both the witnesses were cross-examined by the

rival counsel. Workman while appearing as WW1 in cross

examination admitted that Ex.M1 is application dated

28.8.2000 which bears his singnatures at point A but the

same was written and signed under pressure of Sh. Girdhari

Lal Biba, Sub Divisional Inspector North, Nirmaljit Singh

Senior Supdt. Post Office, Ramesh Kumar of F.Branch and

Assistant Mr. Flora and he had never complained to Higher

Authorities about the pressure by the above persons. He

also stated in cross-examination that he does not remember

as to whether he had made any allegations against these

persons in his appeal to the appropriate authority. Witness

of the management Sh. N.R.Meena stated in his cross-

examination that Baljit Kaur was examined during the

enquiry. On 9-7-2000 it was Sunday but EDP Office is

functional even on Sunday. The witness denied that

complaint of Baljit Kaur is false. It is further stated by the

witness in his cross-examination that copy of enquiry

report was given to the workman. Show cause notice was

also given.

I have gone through the enquiry record,

confessional statement and evidence recorded in this

Tribunal .

The case was fixed for arguments from the last

several dates. None appered for the workman and

arguments of the management heard. The management

also placed on record the written arguments.

The case of the workman in short is that though he

has given confessional statement on 28.8.2000 but the

same was forcibly got signed under pressure and coercion.

The complaint Baljit Kaur never handed over any money

to him nor the same was proved during enquiry. It is also

the case of the workman that the enquiry officer had

conducted the enquiry in violation of principles of natural

justice. The enquiry officer also performed as presenting

officer and acted as per the direction of the management.

He conducted the enquiry in a partial manner and it is case

of no evidence and charges were allegedly proved without

any basis. The workman prayed that the punishment

imposed upon the workman is disproportionate to the

alleged misconduct and major penality of removal from

service was imposed which is against the equity and fair

play. The request of the workman is to reinstate him in

service with full back wages as the order of removal of

service is illegal and arbitrary having based on no

evidence.

On the other hand the learned counsel of the

management during arguments submitted that the workman

was charge sheeted for mis appropriation of Rs.2000 from

the account of one Smt Baljit Kaur. During enquiry

proceedings the workman voluntarily made confessional

statement on 28-8-2000 and also deposited Rs.2000 on the

same date. It is after thought of the workman to allege that

he was pressurised by the official of the management as

mentioned above to write confessional statement dated

28.8.2000 and deposit of Rs.2000 in the Govt. account by

3504

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

the workman. Enquiry was held against the workman in

accordance with the principle of natural justice. He was

given the copy of findings of enquiry officer. The workman

also given show cause notice before imposing the

punishment. His appeal was also rejected by the Appellate

Authority. It is further submitted by the Learned Counsel

for the management that the punishment imposed was

commensurate with the misconduct of misappropriation

of Rs.2000 by the workman. The workman was found

guilty and therefore, the workman is not entitled to any

relief.

10.

So far the enquiry is concerned, it is clearly revealed

from the record that the workman was served with the

charge sheet. Sh. Chaman Lal was appointed as Enquiry

Officer. All the documents were supplied to the workman

alongwith charge sheet. During enquiry the workman

voluntarily given confessional statement on 28-8-2000.

Which is in Punjabi language and on translation the

contents reveals that the workman admitting that he had

received Rs. 2000 for the installment of seventh month of

RD A/C No. 621557 from Smt. Baljit Kaur W/o Gurmit Singh

on 9.7.2000 but the same were not deposited in Govt .

account and by this application he is requisting to the

authorities to allow him to deposit Rs. 2000 of the

installment in Govt. account. It is also revealed that the

workman vide receipt mentioned on this application

deposited Rs. 2000 . The workman never reported at any

point of time and in appeal filed by him to the Appellalte

Authority that he was pressurized to deposit Rs. 2000

and to write the confessional statement. The workman

was given full opportunity to defend himself during

enquiry. He was supplied all the documents alongwith

the charge sheet. The workman in his statement in the

enquiry also admitted that Rs.2000 was given by Smt. Baljit

Kaur for the installment of seventh month in RD A/C No.

621557 . The workman himself prepared in pay- in-slip and

also made entry in the pass book.

11.

In view of the above, taking into consideration the

record, confessional statement dated 28-8-2000 and

statement of the workman recorded in enquiry before the

enquiry officer and his clear admission, it is held that

enquiry was conducted in fair and proper manner adhering

to the principle of natural justice and there is no infirmity

in the enquiry.

12.

As regard the punishment of removal from service

of the workman is concerned, the workman has mis-

appropriated the amount of the customer and admitted his

guilt during the enquiry proceedings and also deposited

Rs. 2000 which was mis appropriated by him, no

interference is warranted by this Tribunal.

13.

In view of the discussion made above in the

preceding paras, the action of the management of Sr. Supdt.

Of Post Offices, Jalandhar Division Jalandhar in removing

the services of Sh. Sukhwinder Singh S/o Tara Singh

Ex-EDBPM w.e.f. 3-7-2001 is legal and just and the workman

is not entitled to any relief.

14.

The reference is answered accordingly. Central Govt.

be informed. Soft as well as hard copy be sent to Central

Govt. for publication.

Chandigarh

31-3-2014

S. P. SINGH, Presiding Officer

ubZ fnYyh] 15 vizSy] 2014

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¹la- ,y&42025@03@2014&vkbZvkj (Mh;w)º

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New Delhi, the 15th April, 2014

S.O. 1352.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 109/2012)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Controller General, Patent & Design

Trade Marks, Patent Office and their workmen, which was

received by the Central Government on 11/04/2014.

[No. L-42025/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.I, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D.No. 109/2012

Shri Santosh Kumar

S/o Sh.Budh Ram Manjhi,

R/o H.No.3/76-A, Gali No.3,

Mohan Garden, Near Balaji Chowk,

Uttam Nagar, New Delhi-110078

...Workman

Versus

The Controller General

Patent & Design Trade Marks,

Through Assistant Controller of Patent

& Design, Patent Office

Baudhik Sampada Bhawan,

Dwarka, New Delhi-110078

...Management

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3505

AWARD

The Controller General, Patents, Designs and Trade

Marks (hereinafter referred to as the management), is a

statutory body created under the provisions of the Indian

Patents Act, 1970 for granting patents on new non-obvious

inventions. The management is a subordinate office of

the Ministry of Commerce & Industries, Government of

India, New Delhi. The management employed certain

persons through employment exchange to carry out job

of casual/intermittent nature. The management terminated

services of one of the persons, so employed, namely, Shri

Santosh Kumar, without giving one month notice or pay

in lieu thereof and retrenchment compensation. This irked

Shri Santosh Kumar, who raised an industrial dispute before

the Conciliation Officer. His claim was contested by the

management, hence conciliation proceedings ended into

a failure. Since 45 days, from the date of moving an

application before the Conciliation Officer, expired Shri

Santosh Kumar opted to file his dispute before the Tribunal

using provisions of sub-section (2) of Section 2A of the

Industrial Disputes Act, 1947 (in short the Act), without

being referred for adjudication by the appropriate

Government under section 10(1)(d) of the Act.

Claim statement was filed by Shri Santosh Kumar

pleading that he was engaged as a casual labour/daily

wager by the management on 01.02.2006 through

Employment Exchange, North East District, Directorate of

Employment, Government of India, New Delhi. He initially

worked upto to 10.07.2006. He was again engaged on

21.11.2006. With an ulterior motive, the management gave

break on 01.08.2007 and again engaged him on 17.12.2007.

He worked till 31.03.2009. He was regular, sincere, obedient

and hardworking in his duties, which fact is corroborated

by letter dated 22.12.2008 issued by the management. He

has completed 240 days continuous service with the

management. He was denied salary for the months of

December 2008, January 2009, February 2009 and March

2009. Instead of paying his legal dues, he was prevented

from performing his duties after 31.03.2009.

On 02.04.2009, a representation was made to the

management to allow him to rejoin duties since the person

deployed in his place was doing similar duties. However,

the management failed to consider his case. Thereafter,

under wrong legal advice, an OA No.1138/2010 was filed

before the Central Administrative Tribunal (in short the

CAT) which was withdrawn on 23.05.2012. No notice for

termination of his service was given. Action of termination

of his services is illegal and uncalled for. He is unemployed

since the date of termination of his service. He seeks

reinstatement in service with continuity and full back

wages.

Claim was demurred by the management pleading

that it is a statutory body under the Indian Patents Act,

1970 created for implementing provisions of the aforesaid

Act, for granting patents on new non-obvious inventions.

The management performs sovereign function and as such

does not carry out activities which can be considered as

trade or business. No activity, related to production,

distribution or supply of goods or services meant for

satisfying for human wants, is carried out and hence it is

not an industry. It is also pleaded that the claimant is not

a workman under the provisions of the Act. No appointment

letter or identity card was issued to the claimant. He was

engaged for casual work, which was to be performed

intermittantly. Such casual workers/labourers are neither

holders of civil post nor appointed to any sanctioned

regular post through proper procedure. They are neither

entitled for any pay or perks at par with holder of a civil

post nor can claim continuation of such engagement.

Further as per policy of the Government of India, manpower

for casual job is now outsourced on contract basis through

a private outsourcing agency. Certificate issued by the

management clearly indicates that the claimant worked as

a daily wager. He was called for receiving his outstanding

payment, which he refused to accept. Hence it was

deposited to Government accounts vide challan no.POD/

405/RC dated 29.07.2009 after completion of 90 days as

per Receipt and Payment Rules. Subsequently cheque for

Rs.9,853.00 has been issued to him in November 2012.

The management pleads that the claimant moved an

application before the CAT seeking relief of reinstatement

in service, which application was dismissed vide order

21.4.2010. He again filed an application, which was

dismissed as withdraw on 23.5.2010. The order passed by

the CAT operates as resjudicata. In view of these facts,

claimant is not entitled to any relief. His claim is liable to

be dismissed, pleads the management.

On pleadings of the parties, following issues were

settled:

(1)

Whether management is an ‘industry’ within the

meaning of section 2(j) of the Industrial Disputes

Act, 1947?

(2)

Whether the claimant is a ‘workman’ within the

meaning of section 2(s) of the Industrial Disputes

Act, 1947?

(3)

Whether orders dated 21.04.2010 passed by Central

Administrative Tribunal operates as resjudicata?

(4)

Whether claimant rendered continuous service of

240 days as contemplated by section 25B of the

Industrial Disputes Act, 1947?

(5)

Whether the claimant is entitled to relief of

reinstatement in service?

To discharge onus resting on him, the claimant

examined himself and closed his evidence. The

management examined Ms.Suresh Singhal to substantiate

its case.

3506

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Arguments were heard at the bar. Ms. Madhvi K

Deva, authorized representative, advanced arguments on

behalf of the claimant. Shri Atul Bhardwaj, authorised

representative, raised submissions on behalf of the

management. Written submissions were also filed by the

parties. I have given my careful considerations to

arguments advanced at the bar and cautiously perused

the records. My findings on issues involved in the

controversy are as follows:-

Issue No. 1

At the outset, the management contends that it is

not an industry within the meaning of Section 2(j) of the

Act. It is presented that management is a statutory body

under the Indian Patents Act, 1970 created for granting

patents on new non-obvious inventions. The said activity

is relatable to sovereign functions and cannot be termed

as industry. Shri Bhardwaj concludes that there is no

profit motive in granting patents, which fact would dispel

the contention that activities of the management fall within

the ambit of industry. On the other hand the claimant

asserts that the activities performed by the management

answer the definition of term “industry”, as enacted by

the Act.

10.

When claim is made by the management that it is

not an industry within the meaning of Section 2(j) of the

Act, it becomes expedient to consider the definition of the

term ‘industry’. The Act defines the term ‘industry’ as

follows:

“2(j) ‘industry’ means any business, trade,

undertaking, manufacture or calling of employers

and includes any calling, service, employment,

handicraft, or industrial occupation or avocation of

workmen.”

11.

The definition of “industry” is both exhaustive and

inclusive. It is in two parts. The first part says that it

“means any business, trade, undertaking, manufacture or

calling of employers” and then goes to say that it “includes

any calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., business,

trade, undertaking, manufacture or calling. The second

part views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes. By this part of the definition any calling,

employment, handicraft, industrial occupation or

avocation of workmen is included in the concept of

industry. This part gives extended connotation.

12.

Gloss was put on the definition of word “industry”

by the High Courts and the Apex Court time and again.

The question as to what is “industry” has continuously

baffled and perplexed the courts. A graph of the cases

decided by the Apex Court, if plotted on the background

of the expression used in two parts of the definition of

“industry”, would represent rather a zig zag curve. There

have been various judicial ventures in this rather volatile

area of law. The decided cases show that the efforts were

made to evolve test by reference to characteristics regarded

as essential for constituting an activity as an “industry”.

Various cases would show that the Apex Court has been

guided more by empirical rather than a strictly analytical

approach. Most of the decision have centered around the

expression “undertaking” used in the definition. In

Bangalore Water Supply and Sewerage Board (1978 Lab.

I.C. 778) the Apex Court reviewed the earlier decisions on

interpretation of the wide words encompassed in the

definition and formulated positive and negative principles

for identifying “industry” as enacted by clause (j) of

Section 2 of the Act. It would be expedient to reproduce

the authoritative pronouncement of the Court, in the very

words set out in the majority decision, handed down by

Justice Krishna Iyer, which are extracted thus:

“I.

“Industry” as defined in S.2(j) and explained in

Banerji (AIR 1953 S.C.58) has a wide import.

(a)

Where (i) systematic activity, (ii) organized

by Co-operation between employer and

employee (the direct and substantial element

is chimerical) (iii) for the production and /or

distribution of goods and services calculated

to satisfy human wants and wishes (not

spiritual or religious but inclusive of material

things or services geared to celestial bliss i.e.

making, on a large scale prasad or foods) prima

facie, there is an “industry” in that enterprise.

(b)

Absence of profit motive or gainful objective

is irrelevant, be the venture in the public, joint,

private or other sector.

(c)

The true focus is functional and the decisive

test is the nature of the activity with special

emphasis on the employer-employee relations.

(d)

If the organization is a trade or business it

does not cease to be one because of

philanthropy animating the undertaking.

II.

Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot be

magnified to overreach itself.

(a)

“Undertaking” must suffer a contextual and

associational shrinkage as explained in

Banerjee and in this judgement, so also,

service, calling and the like. This yields the

inference that all organized activity

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3507

possessing the triple elements in 1(supra),

although not trade or business, may still be

‘industry’ provided the nature of activity, viz.

the employer-employee basis, bears

resemblance to what we find in trade or

business. This takes into the fold ‘industry’

undertaking,

calling

and

services,

adventures,” analogous to the carrying on the

trade or business”. All features, other than

the methodology of carrying on the activity

viz in organizing the co-operation between

employer and employee, may be dissimilar. It

does not matter, if on the employment terms

there is analogy.

III.

Application of these guidelines should not short of

their logical reach by invocation of creeds, cults or

inner sense of incongruity or outer sense of

motivation for or resultant of the economic

operations. The ideology of the Act being industrial

peace, regulation and resolution of industrial

disputes between employer and workmen, the range

of their statutory ideology must inform the reach of

the statutory definition. Nothing less, nothing more.

(a)

The consequences are (i) profession, (ii) clubs

(iii) education institutions, (iv) co-operatives

(v) research institutes, (vi) charitable projects

and (vii) other kindered adventures, if they

fulfil the triple tests listed in 1(supra), cannot

be exempted from the scope of section 2(j).

(b)

A restricted category of professions, clubs,

co-operatives and even gurukulas and little

research labs may qualify for exemption if in

simple ventures, substantially, and going by

the dominant nature criterion, substantively

no employees are entertained but in menial

matters, marginal employees are hired without

destroying the non employee character of the

unit.

(c)

If, in a pious or altruistic mission many employ

themselves, free or for small honoraria or like

return, mainly drawn by sharing in the purpose

or cause, such as lawyers volunteering to run

a free legal services clinic or doctors serving

in their spare hours in a free medical centre or

ashramites working at the bidding of the

holiness, divinity or like central personality,

and the services are supplied free or at nominal

cost and those who serve are not engaged for

remuneration or on the basis of master and

servant relationship, then, the institution is

not an industry even if stray servants, manual

or technical, are hired. Such eleemosynary or

like undertakings alone are exempt not other

generosity, compassion, developmental

passion or project.

IV.

The dominant nature test:

(a)

Where a complex of activities, some of which

qualify for exemption, other not, involves

employees on the total undertaking, some of

whom are not “workmen” as in the University

of Delhi case (AIR 1963 S.C.1873) or some

departments are not productive of goods and

services if isolated, even then, the

predominant nature of the services and the

integrated nature of the departments as

explained in the Corporation of Nagpur (AIR

1960 S.C.657) will be the true test. The whole

undertaking will be industry although those

who are not “workmen” by definition may not

benefit by the status.

(b)

Notwithstanding the previous clauses,

sovereign functions, strictly understood

(alone) qualify for exemption, not the welfare

activities or economic adventures undertaking

by Govt. or statutory bodies.

(c)

Even in the departments discharging

sovereign functions, if there are units which

are industries and they are substantially

severable, then they can be considered to come

within section 2(j).

(d)

Constitutional and competently enacted

legislative provisions may remove from the

scope of the Act categories which otherwise

may be covered thereby.

We overrule Safdarjung (AIR 1970 S.C.1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana (AIR

1968 S.C. 554), Delhi University (AIR 1963 S.C.1873),

Dhanrajgiriji Hospital (AIR 1975 SC 2032) and other

rulings whose ratio runs counter to the principles

enunciated above, and the Hospital Mazdoor Sabha

(AIR 1960 SC 610) is hereby rehabilitated.”

13.

Principles laid down in Bangalore Water Supply &

Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The management agitates that it is not an industry. The

view point held by the management is that no profit motive

activities are being carried on by it. No business is being

run, hence the management cannot be termed as an

‘industry”. Except the facts referred above, the management

nowhere projects any other factors to lay emphasis on the

fact that it is not an ‘industry’.

14.

Whether granting of patents on new non obvious

inventions would fall within the ambit of material services

to the society? Legal precedents would through light on

the above proposition. In Ahmedabad Textile Industry’s

Research Association [1960 (2) LLJ 720] the Association

was established to carry on research with respect to the

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textile industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were held to

be “material services” to the textile industry hence the

Association answered the definition of industry. But in

Safdarjung Hospital case (supra) it was not held to be an

industry because it was a non-profit making body and its

work was in the nature of training, research and treatment.

In Indian Standard Institute [1966 (1) LLJ 33] the Apex

Court suggested that in order to be recognized as an

undertaking analogous to trade or business, the activity

must be an economical activity in the sense that it is

productive of material goods or material services. In

Bangalore Water Supply and Sewerage Board (supra), the

Apex Court laid down that an activity systematically or

habitually undertaken for production or distribution of

goods or for rendering material services to the community

at large or a part of such community with the help of

employees is an undertaking. An ‘industry’ thus was said

to involve cooperation between the employer and

employees for the object of satisfying material human

needs but not for oneself nor for pleasure nor necessity

for profit. Lack of business and profit motive or capital

investment would not take out an activity from the sweep

of ‘industry’, if other conditions are satisfied. It is the

activity in question which attracts the definition and

absence of investment of any capital or the fact that the

activity is conducted for profit motive or not, would not

make material difference. Conversely mere existence of

profit motive will not necessarily convert the activity into

“industry’ if other tests are not satisfied.

15.

One may project that the management carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry”? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court

observed that it could not have been in contemplation of

the legislature to bring in the regal functions of the State

within the definition of “industry” and to confer jurisdiction

on Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumbrated the test:

can such activity be carried on by a private individual or

group of individuals? The answer to this is : if a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while

if it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions,

strictly understood, (alone) qualify for exemption, not the

welfare activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

16.

In Physical Research Laboratory [1997 (2) LLJ 625]

the Apex Court held that the Physical Research Laboratory

is not an ‘industry’ because it is not engaged in an activity

which can either be called business, trade or

manufacturing or it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as it is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not

rendering any services to others. It is engaged in pure

research in space science.

17.

While reaching the conclusion, referred above, the

Apex Court relied observations made in Bangalore Water

Supply (supra) with respect to research institutes, which

observations are extracted thus:

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists,

para-scientists and other personnel. Is scientific

research service? Undoubtedly it is. Its discoveries

are valuable contributions to the wealth of the

nation. Such discoveries may be sold for a heavy

price in the industrial or other markets. Technology

has to be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recorded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratified and grateful earth,

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

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research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industries and the nation in terms of

goods and services and wealth. It follows that

research institutes, albeit run without profit-motive,

are industries”.

18.

In the light of the above legal proposition, facts of

the present controversy are to be scanned. Admittedly,

the functions performed by the management do not fall

within the ambit of administration of justice, maintenance

of order, repression of crime, security of borders from

external aggression and legislative powers of the State.

Activities carried out by the management cannot be

described as regal or sovereign activities, since such

activities could be carried out by private individuals or

group of individuals.

19.

As projected by the management, it grants patents

on new non-obvious inventions, which act answers

ingredents of rendering service to the community at large.

Its activities are systematic, performed with co-operation

between the management and its employees. Activities

performed by the management renders service to the

community at large. Therefore, it is evident that the triple

test of industry as propounded in Bangalore Water and

Sewerage Board (supra) stand satisfied in the present case.

It does not lie in the mouth of the management to claim

that it is does not fall within the ambit of “industry” as

defined in section 2(j) of the Act. Mere absence of profit

motive will not necessarily push the activity out of the

pale of industry, as defined by the Act. Resultantly, it is

concluded that activities performed by the management

falls within the ambit of “industry” as defined under

section 2(j) of the Act. The issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 2

20.

In his affidavit Ex.WW1/A, tendered as evidence,

the claimant highlights that he was engaged as a casual

labour/daily wager from 04.08.2006 initially for a period of

89 days. He was deputed by the management for carrying

out works relating to shifting of office from Patel Nagar to

Dwarka. He continued to perform his duties with utmost

dedication and to entire satisfaction of his superiors.

Ms.Suresh Singhal unfolds in her affidavit Ex.MW1/A,

tendered as evidence, that the management has been

engaging services of daily wagers for various jobs.

Claimant was engaged on daily wage basis. From tone

and tenor of her testimony it is obvious that the claimant

was engaged by the management for manual work.

21.

When facts unfolded by the claimant and those

detailed by Ms.Suresh Singhal are appreciated in the light

of the documents proved by the parties, it came over the

record that the claimant was engaged as a casual labour

for manual work. Question for consideration would be as

to whether the claimant can be termed as workman? For

an answer to this proposition, it would be expedient to

have a glance on definition of the term ‘workman’, enacted

by section 2(s) of the Act. For sake of convenience,

definition of term ‘workman’ is reproduced thus:

“2(s) Workman means any person (including an

apprentice) employed in any industry to do any

manual, unskilled, skilled, technical, operational,

clerical or supervisory work for hire or reward,

whether the terms of employment be express or

implied, and for the purposes of any proceeding

under this Act in relation to an industrial dispute

includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute,

but does not include any such person –

(i)

who is subject to the Air Force Act, 1950 (45 of 1950),

or the Army Act 1950(46 or 1950) or the Navy Act,

1957 (62 of 1957), or

(ii)

who is employed in the police service or as an officer

or other employee of a prison, or

(iii)

who is, employed mainly in a managerial or

administrative capacity, or

(iv)

who, being employed in a supervisory capacity,

draws wages exceeding one thousand six hundred

rupees per mensem or exercises, either by the nature

of the duties attached to the office or by reason of

the powers vested in him, functions mainly of a

managerial nature”.

22.

The first part of the definition gives statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an “industry” to do any

manual, unskilled, skilled, technical, operational, clerical

or supervisory work for hire or reward. This part determines

what a “workman” means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with

an industrial dispute, or (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the

definition of “workman”. This part gives extended

connotation to the expression “workman”. The third part

specifically excludes the categories of persons specified

in clauses (i) to (iv) of this sub section. The third part

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[PART II—SEC. 3(ii)]

connotes that even if a person satisfies the requirements

of any of the first two parts but if he falls in any of the four

categories in the third part, he shall be excluded from the

definition of ‘workman’. Not only the persons who are

actually employed in an industry but also those who have

been discharged, dismissed or retrenched in connection

with or as a consequence of an industrial dispute, and

whose dismissal, discharge or retrenchment has lead to

that dispute, would fall within the ambit of the definition.

In other words, the second category of persons included

in the definition would fall in the ambit of the definition,

only for the purpose of any proceedings under the Act in

relation to an industrial dispute and for no other purposes.

Therefore, date of reference is relevant and in case a person

falls within the definition of workman on that day, the

Tribunal would be vested with jurisdiction to entertain it

and the jurisdiction would not cease merely because

subsequently the workman ceases to be workman.

23.

For an employee in an industry to be a workman

under this definition, it is manifest that he must be employed

to do skilled or unskilled manual work, supervisory work,

technical work or clerical work. If the work done by an

employee is not of such a nature, he would not be a

workman. The specification of the four types of work

obviously is intended to law down that an employee is to

become a workman only if he is employed to do work of

one of those types, while there may be employees who,

not doing any such work, would be out of the scope of the

word ‘workman’, without having resort to the exceptions.

It cannot be held that every employee of an industry was

to be a workman except those mentioned in the four

exceptions as in that case these four classifications need

not have been mentioned in the definition and a workman

could have been defined as a person employed in an

industry except in cases where he was covered by one of

the exceptions.

24.

In cases where an employee is employed to do purely

skilled or unskilled manual work, or supervisory work or

technical work or clerical work there would be no difficulty

in holding him to be a workman under the appropriate

classification. Frequently, however, an employee is

required to do more than one kind of work. In such cases,

it would be necessary to determine under which

classification he will fall for the purpose of finding out

whether he does not go out of the definition of ‘workman’

under the exceptions. The principle is now well settled

that, for this purpose, a workman must be held to be

employed to do that work which is the main work he is

required to do even though he may incidentally doing

other type of work.

25.

When facts of the present controversy are assessed

on the above proposition of law, it emerges that the

claimant was engaged as casual labour to do manual

unskilled work. The management nowhere disputes that

the claimant was performing manual unskilled work, while

working as casual labour. Work performed by the claimant

clothes him with the status of a workman, as projected

under section 2(s) of the Act. Therefore, these facts make

me to comment that the claimant was a workman within

the meaning of section 2(s) of the Act. The issue is,

therefore, answered in favour of the claimant and against

the management.

Issue No. 3

26.

Question for consideration comes as to whether

order dated 21.04.2010 passed by the CAT operate as

resjudicata? Whether the order, referred above, would

preclude the claimant from re-agitating that very issue?

For an answer it would be considered as to whether the

order, passed by the CAT, precludes the claimant from

raising that very issue before this Tribunal. For an answer

legal principles are to be taken note of. Section 11 of the

Code of Civil Procedure 1908 (in short the Code) embodies

the doctrine of res-judicata or the rule of conclusiveness

of a judgment, as to the point decided either of fact, or of

law, or of fact and law, in every subsequent suit between

the same parties. It enacts that once a matter is finally

decided by a competent court, no party can be permitted

to reopen it in a subsequent litigation. The doctrine of res-

judicata has been explained in the simplest possible manner

by Das Gupta J. in the case of Statyadhyan Ghosal Vs.

Deorajin Debi (AIR 1960 S.C. 941) in the following words:

“The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-is judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter – whether on a

question of fact or a question of law – has been

decided between two parties in one suit or

proceeding and the decision is final, either because

no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to convass the matter

again”.

27.

It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in the

subsequent suit must be the same matter which

was directly and substantially in issue either actually

or constructively in the former.

The former suit must have been a suit between the

same parties or between parties under whom they or

any of them claim.

Such parties must have been litigating under the

same title in the former suit.

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The court which decided the former suit must be a

court competent to try the subsequent suit or the

suit in which such issue is subsequently raised.

The matter directly and substantially in issue in the

subsequent suit must have been heard and finally

decided by the court in the former suit.

28.

Section 11 of the Code bars trial of any suit as well

as an issue which had been decided in a former suit. Issue

are of three kinds: (i) Issue of fact; (ii) Issue of law ; and

(iii) Mixed issues of law and fact. A decision on an issue

of fact, however erroneous it may be, constitutes res

judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad Vs. Dossibai [1970(1)

SCC 613]. A mixed issue of law and fact also, for the same

reasons, operates as res-judicata.

29.

To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent

to try the subsequent suit, will not operate as res-judicata.

The expression “competent to try” means “competent to

try the subsequent suit if brought at the time the first suit

was brought”. In other words, the relevant point of time

for deciding the question of competence of the court is

the date when the former suit was brought and not the

date when the subsequent suit was filed. In order that a

decision in a former suit may operate as res-judicata, the

court which decided that suit must have been either –(a) a

court of exclusive jurisdiction, or (b) a court of limited

jurisdiction; or (c) a court of concurrent jurisdiction.

30.

For articulation of an industrial dispute, the labour

court or an industrial tribunal exercise adjudicatory

jurisdiction. Task of an industrial adjudicator is tedious,

who has to reconcile the head-on clash between the

fundamental rights guaranteed by the constitution such

as freedom of trade, freedom to practice any profession or

to carry on any occupation and the directive principles

enshrined in the constitution which are fundamental in

the governance of the country. He has also the delicate

task of balancing the conflicting interest of employer,

employee and the public on very basic policies, such as,

freedom and sanctity of contract, protection of business,

right to work, making training available to employees,

earning of livelihood for oneself and family, utilization of

one’s skill and talent, continued productivity, betterment

of one’s status, avoidance of one’s becoming a public

charge, encouragement of competition and development

of national and international trade and avoidance of

monopoly, promotion of collective bargaining and

elimination of indiscipline in industry and so on. Questions

on above issues are to be adjudicated by an industrial

adjudicator. Though the constitution has vested powers

of judicial review in High Courts and invested it with power

to sit in appeal over the awards of industrial tribunals, yet

industrial tribunals are courts of exclusive jurisdiction on

the matters, which are referred to them by the appropriate

Government under section 10 of the Act.

31.

In Nawab Hussain, (1977 Lab. I.C.911), the Apex

Court enunciated general principles of doctrine of res-

judicata as under:

“The principle of estoppel per res-judicata is a rule

of evidence. As has been stated in Marginson v.

Blackburn Borough Council [1939 (2) KB 426 at P.437]

it may be said to be “the broader rule of evidence

which prohibits the reassertion of a cause of action.”

This doctrine is based on two theories: (i) the finality

and conclusiveness of judicial decisions for the final

termination of disputes in the general interest of the

community as a matter of public policy, and (ii) the

interest of the individual that he should be protected

from multiplication of litigation. It, therefore, serves

not only a public but also a private purpose by

obstructing the reopening of matters which have

once been adjudicated upon. It is thus not

permissible to obtain a second judgment for the same

civil relief on the same cause of action, for otherwise

the spirit of contentiousness may give rise to

conflicting judgments of equal authority, lead to

multiplicity of actions and bring the administration

of justice into disrepute. It is the cause of action

which gives rise to an action, and that is why it is

necessary for the courts to recognize that a cause of

action which results in a judgment must lose its

identity and vitality and merge in the judgment when

pronounced. It cannot therefore survive the

judgment, or give rise to another cause of action on

the same facts. This is what is known as the general

principle of res-judicata.”

32.

Whether CAT is competent to try an industrial

dispute? Answer to this proposition would emerge out of

section 14 of the Administrative Tribunal Act, 1985, which

contemplates that the CAT shall exercise jurisdiction,

powers and authority in relation to recruitment and matters

concerning any civil services or civil post in the Union.

For sake of convenience, provisions of sub-section (1) of

section 14 of the Administrative Tribunal Act, 1985 are

extracted thus:

“14(1) Save as otherwise expressly provided in this

Act, the Central Administrative Tribunal shall

exercise, on and from the appointed day, all the

jurisdiction, powers and authority exercisable

immediately before that day by all courts except the

Supreme Court in relation to—

(a) recruitment, and matters concerning recruitment,

to any All India Service or to any civil service of the

Union or a civil post under the Union or to a post

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connected with defence or in the defence services,

being, in either case, a post filled by a civilian;

(b) all service matters concerning—

(i)

a member of any All India Service; or

(ii)

a person, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any civil service of the Union or

any civil post under the Union; or

(iii)

a civilian, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any defence services or a post

connected with defence, and pertaining to the

service of such member, person or civilian, in

connection with the affairs of the Union or of

any State or of any local or other authority

within the territory of India or under the control

of the Government of India or of any

corporation or society owned or controlled

by the Government;

connection with the affairs of the Union concerning

a person appointed to any service or post referred

to in sub- clause (ii) or sub- clause (iii) of clause (b),

being a person whose services have been placed by

a State Government or any local or other authority

or any corporation or society or other body, at the

disposal of the Central Government for such

appointment”.

33.

Section 28 of the Administrative Tribunals Act, 1985

projects that an Industrial Tribunal, Labour Court or other

authority constituted under the Act shall exercise

jurisdiction in respect of service conditions and matters

contained in the Act. For sake of convenience, provisions

of the said section are reproduced thus:

“28. ‘On and from the date from which any

jurisdiction, powers and authority becomes

exercisable under this Act by a Tribunal in relation

to recruitment and matters concerning recruitment

to any service or post or service matters concerning

members of any service or persons appointed to

any service or post, no court except-

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other

authority constituted under the Industrial Disputes

Act, 1947 or any other corresponding law for the

time being in force, shall have or be entitled to

exercise any jurisdiction, powers or authority in

relation to such recruitment or matters concerning

such recruitment or such service matters.”

34.

The above provisions make it apparent that though

CAT shall exercise all jurisdiction, powers and authority

in relation to recruitment to any civil service or post under

the Union or to a post connected with defence or in the

defence services, in either case, a post filled by a civilian,

yet an Industrial Tribunal constituted under the Act shall

have jurisdiction in relation to recruitment and matters

concerning recruitment, in service or post or services

matters concerning any person who falls within the ambit

of the Act. Therefore, on plain reading of section 28 of the

aforesaid Act, it emerges that the CAT exercises concurrent

jurisdiction with an Industrial Tribunal or Labour Court,

constituted under the Act in relation to recruitment and

matters concerning recruitment to any service or post or

service matters concerning any person, who falls within

the ambit of workmen as defined under the Act.

35.

Whether civil court has jurisdiction in relation to

industrial dispute, the Apex Court dealt with the matter in

Premier Automobiles [1976(1) SCC 496]. On consideration

of catena of decisions on the subject, the Apex Court

enunciated following principles:

“(1) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right under

the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out

of a right or liability under the general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election of

the suitor concerned to choose his remedy for the

relief which is competent to be granted in particular

remedy.

(3) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suitor is to get

an adjudication under the Act.

(4) If the right which is sought to be enforced is a

right created under the Act such as Chapter VA then

the remedy for its enforcement is either section 33C

or the raising of an industrial dispute, as the case

may be. We may, however, in relation to principle 2

stated above hasten to add that there will hardly be

a dispute which will be an industrial dispute within

the meaning of section 2(k) of the Act and yet will be

one arising out of a right or liability under the general

or common law only and not under the Act. Such a

contingency, for example, may arise in regard to the

dismissal of an unsponsored workman which in view

of the provision of law contained in Section 2A of

the Act will be an industrial dispute even though it

may otherwise be an individual dispute. Civil Courts,

therefore, will have hardly an occasion to deal with

the type of cases falling under principle 2. Cases of

industrial disputes by and large, almost invariably,

are bound to be covered by principle 3 stated

above.”

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36.

While analysing principles adumbrated in Premier

Automobiles (supra), the Apex Court in Rajasthan State

Road Transport Corporation [1995(5) SCC 75] summarised

those principle as follows:

“(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

“industrial dispute’’ within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of right and

obligations created by enactment like Industrial

Employment (Standing Orders) Act, 1946 - which

can be called “sister enactments” to Industrial

Disputes Act-and which do not provide a forum for

resolution of such disputes, the only remedy shall

be to approach the forums created by the Industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an industrial dispute or says that it shall

be adjudicated by any of the forums created by the

Industrial Disputes Act. Otherwise, recourse to civil

court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the Government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the Government is entitled to

examine whether the dispute is ex facie frivolous,

not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

recommend to Parliament and the State Legislatures

to make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly- i.e.,

without the requirement of a reference by the

Government in case of industrial disputes covered

by Section 2-A of Industrial Disputes Act. This would

go a long way in removing the misgivings with

respect to the effectiveness of the remedies provided

by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to “statutory provisions”. Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created

by the Industrial Disputes Act or the civil court where

recourse to civil court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute-resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and unencumbered by the plethora of

procedural laws and appeals upon appeals and

revisions applicable to civil courts. Indeed, the

powers of the courts and tribunals under the

Industrial Disputes Act are far more extensive in the

sense that they can grant such relief as they think

appropriate in the circumstances for putting an end

to an industrial dispute.

37.

As detailed above, the Apex Court ruled that when

a dispute involves recognition, observance or enforcement

of any of the rights or obligations created by the Act, the

only remedy is to approach the forums created by the Act

only. For adjudication of an industrial dispute, which falls

within the ambit of the Act, the CAT does not have any

jurisdiction. It is obvious that provisions of section 28 of

the Administrative Tribunals Act, 1985 are in contradiction

to the law laid down by the Apex Court, when it relates to

exercise of jurisdiction, powers or authority in relation to

recruitment or matters concerning such recruitment or

conditions of service of any person, who happens to be a

workman within the meaning of section 2(s) of the Act.

This proposition was considered by the CAT in its decision

in A. Padmavalley etc. [1991(1) SLR 245] wherein

proposition of law laid in Premier Automobile (supra),

provisions of the Act as well as provisions of

Administrative Tribunals Act, 1985 were construed and it

was ruled that the CAT is not a substitute for the

authorities constituted under the Act and does not exercise

concurrent jurisdiction in regard to matters covered by

the Act. The CAT concluded the proposition as follows:

(i)

Administrative Tribunal constituted in the

Administrative Tribunals Act are not substitutes for

the authorities constituted under the Industrial

Tribunals Act and hence the Administrative Tribunal

does not exercise concurrent jurisdiction with those

authorities in regard to matters covered by that Act.

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[PART II—SEC. 3(ii)]

Hence, all matters over which the Labour Court or

the Industrial Tribunal or other authorities had

jurisdiction under the Industrial Disputes Act, do

not automatically become vested in the

Administrative Tribunal for adjudication. The

decision in the case of Sisodia, which lays down a

contrary interpretation is, in our opinion, not correct.

(ii)

An applicant seeking relief under the provisions of

the Industrial Disputes Act must ordinarily exhaust

the remedies available under that Act.

(iii)

The powers of the Adminstrative Tribunal are the

same as that of the High Court under Article 226 of

the Constitution and the exercise of that

discretionary power would depend upon the facts

and circumstances of each case as well as on the

principles laid down in the case of Rohtas Industries

(supra).

(iv)

The interpretation given to the term ‘arrangement in

force’ by the Jabalpur Bench in Rammoo’s case is

not correct.”

38.

In view of the legal principles laid above, it is evident

that CAT does not exercise concurrent jurisdiction with

this Tribunal in regard to rights and obligations arising

out of the Act. Resultantly, it is crystal clear that the CAT

is not competent to adjudicate the industrial dispute, and

as such order passed by it in OA No.1138 of 2010 on

21.04.2010 would not operate as res-judicata. Submissions

made by Shri Bhardwaj, to the effect that the claimant

cannot re-agitate the very issue, which was adjudicated

by the CAT vide order dated 21.4.2010, are untenable. Issue

is, therefore, answered in favour of the claimant and

against the management.

Issue No. 4.

39.

For seeking protection under Section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub-section (1) of Section

25B of the Act. sub-section (2) of the said section

introduces a fiction to the effect that even if a workman is

not in “continuous service” within the meaning of clause

(1) for a period of one year or six months, he shall be

deemed to in continuous service for that period under an

employer if he has actually worked for the days specified

in clauses (a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enquiry

has to be made to find out whether the workman actually

worked for not less than 240 days during the period of 12

calendar months immediately preceding the retrenchment.

40.

In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus:

“Under Section 25-B a workman, who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days, is to be

deemed to have completed one year’s service in the

industry. Consequently an enquiry has to be made

to find out whether the workman had actually worked

for not less than 240 days during period of 12

calendar months immediately preceding the

retrenchment. These provisions of law do not show

that a workman after satisfying the test under Section

25B has further to show that he has worked during

all the period he has been in the service of the

employer for 240 days in the year”.

41.

Interruption of service occurred during the course

of job has to be included in uninterrupted services. Fiction

under Section 25-B of the Act will operate if workman

has actually worked for 240 days in a calendar year. The

explanation appended to Section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of Section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

sundays and saturdays for which full wages are paid.

The Apex Court was confronted with such a proposition

in American Express Banking Corporation [1985 (2) LLJ

539], wherein it was ruled that the expression ‘actually

worked under the employer’ cannot mean those days only

when the workman worked with hammer, sickle or pen, but

must necessarily comprehend all those days during which

he was in the employment of the employer and for which

he had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that sundays and other

holidays, would be comprehended in the words ‘actually

worked” and it countenanced the contention of the

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3515

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

had actually worked though he had not so worked and no

other days. The Court observed that the explanation is

only clarificatory, as all explanations are, and cannot be

used to limit the expanse of the main provision. Precedent

in Lalappa Lingappa [1981 (1) LJ 308] was distinguished

by the Apex Court in the case referred above. The

precedent was followed in Standard Motor Products of

India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from

the law laid above that sundays and holidays shall be

included in computing continuous service under Section

25-B of the Act.

42.

The claimant unfolds that he was initially engaged

by the management on 01.02.2006 as daily wager. He

continuously performed his duties till 31.03.2009. He

rendered continuous service with the management for the

period referred above. On this issue, Ms. Suresh Singhal

projects that the claimant was engaged at different

intervals, which spells have been reproduced in chart

Ex.MW1/22. According to her, sundays and holidays were

not counted while reckoning period for which claimant

worked with the management. When Ex.MW1/22 is

scanned, it came to light that in preceding 12 months from

31.03.2009, the date when his services were dispensed

with, claimant had rendered continuous service of 241

days. He had rendered 201 days service in preceding 12

months from April, 2008. Period of service, rendered by

the claimant, as detailed above, nowhere includes sundays

and holidays. In a year, an employee may get 52 weekly

offs, besides three national holidays. In case 52 weekly

offs and three national holidays are added to the periods

referred above, in the year reckoned from April, 2008 to

March, 2007, he reaches notional figure of 240 days, to

claim continuous service for a period of one year. Thus

the claimant could show that he served for a period of two

years continuously, as contemplated by provisions of

Section 25B of the Act. Issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 5

43.

An employer may discharge a portion of his labour

force as surplusage in a running or continuing business

for variety of reasons, e.g., for economy, convenience,

rationalization in industry, installation of a new labour

saving machinery etc. The Act defines “termination by

the employer of the service of a workman for any reasons

whatsoever”, except the categories exempted in sub-

section 2(oo), to be retrenchment. The definition of the

term “retrenchment”, as enacted by the Act, is extracted

thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include-

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb) termination of the services of the workman as

a result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation

in that behalf contained therein; or

(c)

termination of the services of a workman on

the ground of continued ill-health”.

44.

Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer “for any reason whatsoever”

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement

of workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. [1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

45.

Section 25F of the Act lays down conditions pre-

requisite to retrenchment, which are as follows:

(i)

There should be one month’s notice in writing to

the workman concerned.

(ii)

The notice should specify the reasons for

retrenchment.

(iii)

The period of one month’s notice should have expired

before retrenchment is enforced, or the workman

has been paid in lieu of such notice the wages for

the period.

(iv)

The workman has been paid retrenchment

compensation which should be equivalent to 15

days’ average pay for every one years’ service or

any part thereof provided it exceeds six months.

(v)

The notice is also given to the appropriate

Government.

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[PART II—SEC. 3(ii)]

46.

On turning to fact it came to light that the claimant

projects that his services were dispensed with on

30.03.2009. In that regard, Ms.Singhal projects that the

claimant was not engaged any further with effect from

30.03.2009. It is not the case of the management that the

claimant was well aware that his engagement was for a

specified period and would come to an end on expiry of

the period, so specified in his engagement order. Exception

contained in sub-clause (bb) of sub section (oo) of section

2 of the Act is not applicable to his case. For applicability

of sub-clause (bb) of sub-section (oo) of section 2 of the

Act the management is under an obligation to establish

following counts:

(i)

that the workman was employed in a project or

scheme of temporary duration;

(ii)

the employment was on a contract, and not as a

daily-wager simpliciter, which provided inter alia that

the employment shall come to an end on the expiry

of the scheme or project; and the employment came

to an end simultaneously with the termination of the

scheme or project and consistently with the terms

of the contract.

47.

When facts unfolded by Ms.Singhal are scanned, it

came to light that the claimant was not employed in a

project or a scheme of temporary duration. He was not

employed on a contract of specified duration. As per the

case of the management, he was a daily wager simpliciter.

These facts make it clear that action of disengaging the

claimant does not fall within the exception created by either

main clause or exception contained in second limb of

section 2(oo) of the Act. Therefore, dispensing with

services of the claimant for any reason whatsoever would

amount to retrenchment.

48.

Admittedly, no notice for a period of one month or

pay in lieu thereof was given to the claimant, as testified

by Ms. Singhal. No retrenchment compensation was paid

to him at that time. Thus it is evident that services of the

claimant were retrenched without payment of notice pay,

and retrenchment compensation. It is well settled that in a

case of wrongful retrenchment, dismissal or discharge,

the normal rule is to award reinstatement. But where a

case falls in any of the exception to general rule, the

industrial adjudicator has discretion to award reasonable

and adequate compensation, in lieu of re-instatement.

Section 11A of the Act vests the industrial adjudicator

with discretionary jurisdiction to give “such other relief to

the workman” in lieu of discharge or dismissal as the

circumstances of the case may require, where for some

valid reasons it considers that reinstatement with or

without conditions will not be fair or proper.

49.

In Uma Devi [2006 (4) SCC 1] the Apex Court

considered the proposition as to whether the persons who

got employment, without following of a regular procedure

or even from the back door or on daily wages can be

ordered to be made permanent in their posts, to prevent

regular recruitment to the posts concerned. Catena of

decisions over the subject were considered and the court

declined the submissions of the workmen to be made

permanent on the posts which were held by them in

temporary or ad-hoc capacity for a fairly long spell. The

Court ruled thus:

“With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insists on the State making regular

and proper recruitments, and is bound not to

encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment. The

direction to make permanent the distinction between

regularization and making permanent, was not

emphasized here–can only encourage the State, the

model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many

waiting to compete. With respect the directions made

in Piara Singh [1992(4) SCC 118] is to some extent

inconsistent with the conclusion in para 45 of the

said judgement therein. With great respect, it appears

to us that the last of the directions clearly runs

counter to the constitutional scheme of employment

recognized in the earlier part of the decision. Really,

it cannot be said that this decision has laid down

the law that all ad-hoc, temporary or casual

employees engaged without following a regular

recruitment procedure should be made permanent”.

50.

Taking note of some of recent decisions, the Apex

Court held that the State does not enjoy a power to make

appointments in terms of Article 162 of the Constitution.

The Court quoted its decision in Girish Jyanti Lal Vaghela

[2006 (2) SCC 482] with approval, wherein it was rule thus.

“The appointment to any post under the State can

only be made after a proper advertisement has been

made inviting applications from eligible candidates

and holding of a selection by a body of experts or a

specially constituted committee, whose members are

fair and impartial, through a written examination or

interview or some other rational criteria for judging

the inter se merit of candidates, who have applied in

response to the advertisement made. A regular

appointment to the post under the State or Union

cannot be made without issuing advertisement in

the prescribed manner which may in some cases

include inviting applications from the employment

exchange, where eligible candidate get their names

registered. Any regular appointment made on a post

under the State or Union without issuing

advertisement inviting applications from eligible

candidates and without holding a proper selection

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where all eligible candidates get a fair chance to

compete would violate the guarantee enshrined

under Article 16 of the Constitution”.

51.

In P. Chandra Shekhara Rao and Others [2006 (7)

SCC 488] the Apex Court referred Uma Devi’s Case (supra)

with approval. It also relied the decision in a Uma Rani

[2004 (7) SCC 112] and ruled that no regularization is

permissible in exercise of statutory powers conferred in

Article 162 of the Constitution, if the appointments have

been made in contravention of the statutory rules. In

Somveer Singh [2006 (5) SCC 493] the Apex Court ruled

that appointment made without following due procedure

cannot be regularized. In Indian Drugs & Pharmaceuticals

Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law

and announced that the rules of recruitment can not be

relaxed and court can not direct regularisation of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

52.

In Uma Devi (supra) it was laid that “when a person

enters a temporary employment or get engagement as

contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed for the post,

when an appointment to the post could be made only by

following a proper procedure or selection in any concerned

cases, in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of

those precedent neither continuance nor regularisation of

services of the claimants can be ordered, since it would

amount to back door entry into Government job”.

53.

Whether the claimant was back door entrant ?

Answer lies in negative. As per facts, unfoleded by the

management, name of the claimant was sponsored by the

employment exchange. Provisions of Employment

Exchanges (Compulsory Notification of Vacancies) Act,

1959 casts obligation on an employer to notify vacancies

to an employment exchange, before filling vacancies in

any employment in its establishment. Section 3 of that Act

enlists certain vacancies to which it does not apply.

Provisions of the said section are detailed as follows:

“3. Act not to apply in relation to certain vacancies.

(1)

This Act shall not apply in relation to vacancies.-

(a)

in any employment in agriculture (including

horticulture) in any establishment in private

sector other than employment as agricultural

or farm machinery operatives;

(b)

in any employment in domestic service ;

(c)

in any employment the total duration of which

is less than three months;

(d)

in any employment to do unskilled office work;

(e)

in any employment connected with the staff

of Parliament.

(2)

Unless the Central Government otherwise directs

by notification in the Official Gazette in this behalf,

this Act shall not also apply in relation to-

(a)

vacancies which are proposed to be filled

through promotion or by absorption of surplus

staff of any branch or department of the same

establishment or on the result of any

examination conducted or interview held by,

or on the recommendation of, any independent

agency, such as the Union or a State Public

Service Commission and the like;

(b)

vacancies in any employment which carries a

remuneration of less than sixty rupees in a

month”.

54.

Clause (i) of section 2 of that Act gives definition of

“unskilled office work” wherein an employee doing any

routine work or unskilled work has been included. For

convenience sake the said definition is extracted thus:

“Unskilled office work” means work done in an

establishment by any of the following categories of

employees, namely, -

(1)

daftri,

(2)

jamadar, orderly and peon;

(3)

dusting man or farash;

(4)

bundle or record lifter ;

(5)

process server;

(6)

watchman;

(7)

sweeper;

(8)

any other employee doing any routine or

unskilled work which Central Government

may, by notification in the Official Gazette,

declare to be unskilled office work”.

55.

As projected above provisions of that Act are not

applicable to vacancies relating to “unskilled office work”.

The object of the aforesaid Act is not to restrict, but to

enlarge field of choice so that employer may choose best

and most efficient and to provide an opportunity to the

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[PART II—SEC. 3(ii)]

worker to have his claim for appointment considered

without having to knock at every door for employment.

Office Memorandum No.114/11/64-Estt.(D) dated 21.3.64

was issued by Ministry of Home Affairs, Government of

India, emphasizing that all vacancies in Central Government

establishments, other than those filled through the Union

Public Service Commission, should be notified to the

nearest employment exchange and no department or office

should fill any vacancy by direct recruitment unless the

employment exchange certified that they were unable to

supply suitable candidates. Office memorandum No.14024/

2/77-Estt.(D) dated 12.4.77 was issued by Department of

Personnel and Training laying stress on proposition that

all vacancies arising in Central Government offices/

establishments (including quasi Government institutions

and statutory organizations) irrespective of the nature and

duration other than filled from the U.P.S.C. are not only to

be notified, but also to be filled through the employment

exchange alone and other permissible source of recruitment

can be taped only if employment exchange concerned

issued a non availability certificate. There can be no

deviation from this recruitment procedure unless a different

arrangement in this regard has been previously agreed to

in consultation with the department of Personnel and

Training and Ministry of Labour.

56.

A gloss was put on these instructions by the Apex

Court in N. Hargopal [1987(3) SCC 308] wherein it was

ruled that the Government is at perfect liberty to issue

instructions to its own departments and organizations

provided the instructions do not contravene any

constitutional provision or any statute, these instructions

cannot bind other bodies which are created by statute

and which functions under the authority of statute. In the

absence of any statutory prescription the statutory

authority may, however, adopt and follow such

instructions if it thinks fit. The court concluded that in

case of public appointment it is necessary to eliminate

arbitrariness, favourtism and introduce uniformity of

standards and orderliness in the matter of employment.

There has to be an element of procedural fairness in

recruitment. If a public employer chooses to receive

applications for employment where and when he pleases,

and chooses to make appointment as he likes a grave

element of arbitrariness is certainly introduced. The Court

went on to say that in the absence of a better method of

recruitment any restriction that employment in Government

departments should be through the medium of employment

exchanges does not offend Article 14 and 16 of the

Constitution. Hence it emerges that above instructions

were affirmed by the Apex Court and the management was

bound to follow those instructions, in making an

engagement for the position of unskilled office work.

57.

These instructions were complied with by the

management when claimant was engaged by it. Thus

engagement of the claimant through employment exchange

was in consonance with the laid down procedure. It can

not be said that he was a back door entrant on the job.

Hence I say that the management could not show any

case where relief of reinstatement should be denied to the

claimant.

58.

As regards back wages, no evidence has been

brought to the effect that the claimant remained

unemployed. Therefore it seems not to be a case of grant

of full back wages. However no principles are available to

assess as to what amount of back wages should be

awarded. Principles for award of compensation is available

in some precedents, which are taken in to account. In

S.S.Shetty [1957 (11) LLJ 696] the Apex Court indicated

some relevant factors which an adjudicator has to take

into account in computing compensation in lieu of

reinstatement, in the following words:

“The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party,

the possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future…. In computing

the money value of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefits etc. would be till he attained the age of

superannuation and the value of such benefits

would have to be computed as from the date when

such reinstatement was ordered under the terms of

the award.

Having regard to the considerations detailed

above, it is impossible to compute the money value

of this benefit of reinstatement awarded to the

appellant with mathematical exactitude and the best

that any tribunal or court would do under the

circumstances would be to make as correct as

estimate as is possible bearing, of course in mind all

the relevant factors pro and con”.

59.

A Divisional Bench of the Patna High Court in

B.Choudhary Vs. Presiding Officer, Labour Court,

Jamshedpur (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee’s age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer’s business (vi) gainful

employment in mitigation of damages; and (viii)

¹Hkkx II—[k.M 3(ii)º

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3519

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab.I.C.1887).

60.

In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that “it would be fair and just to direct the appellant a

substantial sum as compensation to her”. In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the

employee awarded by the industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K.Roy [1970 (1) LLJ 228] compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count

converted the award of reinstatement into compensation

of a sum of Rs.50000/- as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P.Bhandari [1986 (II) LLJ 509], the Apex Court

observed that it was a fit case for grant of compensation

in view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In

M.K.Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the

back salary to 50% of what would otherwise be payable to

the employee. In Yashveer Singh (1993 Lab.I.C.44) the

court directed payment of Rs.75000/- in view of

reinstatement with back wages. In Naval Kishor [1984 (II)

LLJ 473] the Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs.2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj [1985 (II) LLJ 19] a sum of Rs.2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C.1225) a compensation of Rs.2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab.I.C.107) a compensation of Rs.65000/- was

granted in lieu of reinstatement, since the employee was

gainfully employed elsewhere. In V.V.Rao (1991

Lab.I.C.1650) a compensation of Rs.2.50 lac was awarded

in lieu of reinstatement.

61.

As held in preceding sections the claimant could

show a case of reinstatement in the service of the

management with continuity. Accordingly it is ordered that

he shall be reinstated in service by the management.

Relying on principles of law laid for grant of compensation

and on consideration of facts in entirety it is held that the

claimant shall get 40% of his last drawn wages as back

wages for the period of interregnum. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dated :

01.04.2014

Dr. R.K. YADAV, Presiding Officer

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New Delhi, the 15th April, 2014

S.O. 1353.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 108/

2012) of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the Controller General, Patent & Design

Trade Marks, Patent Office and their workman, which was

received by the Central Government on 11/04/2014.

[No. L-42025/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 108/2012

Shri Sandeep Kumar

S/o Sh.Surendra Singh,

R/o H.No.385, Kakrola Housing Complex,

New Delhi-110059.

.....Workman

Versus

The Controller General

Patent & Design Trade Marks,

Through Assistant Controller of Patent & Design,

Patent Office, Baudhik Sampada Bhawan,

Dwarka, New Delhi-110078.

.....Management

3520

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

AWARD

The Controller General, Patents, Designs and Trade

Marks (hereinafter referred to as the management), is a

statutory body created under the provisions of the Indian

Patents Act 1970 for granting patents on new non obvious

inventions. The management is a subordinate office of

the Ministry of Commerce & Industries, Government of

India, New Delhi. The management employed certain

persons through employment exchange to carry out job

of casual/ intermittent nature. The management terminated

services of one of the persons, so employed, namely, Shri

Sandeep Kumar, without giving one month notice or pay

in lieu thereof and retrenchment compensation. This irked

Shri Sandeep Kumar, who raised an industrial dispute

before the Conciliation Officer. His claim was contested

by the management, hence conciliation proceedings ended

into a failure. Since 45 days, from the date of moving an

application before the Conciliation Officer, expired Shri

Sandeep Kumar opted to file his dispute before the Tribunal

using provisions of sub-section (2) of section 2A of the

Industrial Disputes Act, 1947 (in short the Act), without

being referred for adjudication by the appropriate

Government under section 10(1)(d) of the Act.

Claim statement was filed by Shri Sandeep Kumar

pleading that he was engaged as a casual labour/daily

wager by the management on 15.03.2007 through

Employment Exchange, North East District, Directorate of

Employment, Government of India, New Delhi. He initially

worked upto to 11.12.2007. He was again engaged on

17.12.2007. With an ulterior motive, the management gave

break on 11.12.2007 and again engaged him on 17.12.2007.

He worked till 30.03.2009. He was regular, sincere, obedient

and hardworking in his duties, which fact is corroborated

by letter dated 22.12.2008 issued by the management. He

has completed 240 days continuous service with the

management. He was denied salary for the months of

December 2008, January 2009, February 2009 and March

2009. Instead of paying his legal dues, he was prevented

from performing his duties after 30.03.2009.

On 02.04.2009, a representation was made to the

management to allow him to rejoin duties since the person

deployed in his place was doing similar duties. However,

the management failed to consider his case. Thereafter,

under wrong legal advice, an OA No.1138/2010 was filed

before the Central Administrative Tribunal (in short the

CAT) which was withdrawn on 23.05.2012. No notice for

termination of his service was given. Action of termination

of his services is illegal and uncalled for. He is unemployed

since the date of termination of his service. He seeks

reinstatement in service with continuity and full back

wages.

Claim was demurred by the management pleading

that it is a statutory body under the Indian Patents Act,

1970 created for implementing provisions of the aforesaid

Act, for granting patents on new non-obvious inventions.

The management performs sovereign function and as such

does not carry out activities which can be considered as

trade or business. No activity, related to production,

distribution or supply of goods or services meant for

satisfying for human wants, is carried out and hence it is

not an industry. It is also pleaded that the claimant is not

a workman under the provisions of the Act. No appointment

letter or identity card was issued to the claimant. He was

engaged for casual work, which was to be performed

intermittantly. Such casual workers/labourers are neither

holders of civil post nor appointed to any sanctioned

regular post through proper procedure. They are neither

entitled for any pay or perks at par with holder of a civil

post nor can claim continuation of such engagement.

Further as per policy of the Government of India, manpower

for casual job is now outsourced on contract basis through

a private outsourcing agency. Certificate issued by the

management clearly indicates that the claimant worked as

a daily wager. He was called for receiving his outstanding

payment, which he refused to accept. Hence it was

deposited to Government accounts vide challan no.POD/

405/RC dated 29.07.2009 after completion of 90 days as

per Receipt and Payment Rules. Subsequently cheque for

Rs.10,354.00 has been issued to him in November 2012.

The management pleads that the claimant moved an

application before the CAT seeking relief of reinstatement

in service, which application was dismissed vide order

21.4.2010. He again filed an application, which was

dismissed as withdraw on 23.5.2010. The order passed by

the CAT operates as resjudicata. In view of these facts,

claimant is not entitled to any relief. His claim is liable to

be dismissed, pleads the management.

On pleadings of the parties, following issues were

settled:

(1)

Whether management is an ‘industry’ within the

meaning of section 2(j) of the Industrial Disputes

Act, 1947?

(2)

Whether the claimant is a ‘workman’ within the

meaning of section 2(s) of the Industrial Disputes

Act, 1947?

(3)

Whether orders dated 21.04.2010 passed by Central

Administrative Tribunal operates as resjudicata?

(4)

Whether claimant rendered continuous service of

240 days as contemplated by section 25B of the

Industrial Disputes Act, 1947?

(5)

Whether the claimant is entitled to relief of

reinstatement in service?

To discharge onus resting on him, the claimant

examined himself and closed his evidence. The

management examined Ms.Suresh Singhal to substantiate

its case.

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3521

Arguments were heard at the bar. Ms.Madhvi K

Deva, authorized representative, advanced arguments on

behalf of the claimant. Shri Atul Bhardwaj, authorised

representative, raised submissions on behalf of the

management. Written submissions were also filed by the

parties. I have given my careful considerations to

arguments advanced at the bar and cautiously perused

the records. My findings on issues involved in the

controversy are as follows:-

Issue No.1

At the outset, the management contends that it is

not an industry within the meaning of section 2(j) of the

Act. It is presented that management is a statutory body

under the Indian Patents Act, 1970 created for granting

patents on new non-obvious inventions. The said activity

is relatable to sovereign functions and cannot be termed

as industry. Shri Bhardwaj concludes that there is no

profit motive in granting patents, which fact would dispel

the contention that activities of the management fall within

the ambit of industry. On the other hand the claimant

asserts that the activities performed by the management

answer the definition of term “industry”, as enacted by

the Act.

10.

When claim is made by the management that it is

not an industry within the meaning of section 2(j) of the

Act, it becomes expedient to consider the definition of the

term ‘industry’. The Act defines the term ‘industry’ as

follows:

“2(j) ‘industry’ means any business, trade,

undertaking, manufacture or calling of employers

and includes any calling, service, employment,

handicraft, or industrial occupation or avocation of

workmen.”

11.

The definition of “industry” is both exhaustive and

inclusive. It is in two parts. The first part says that it

“means any business, trade, undertaking, manufacture or

calling of employers” and then goes to say that it “includes

any calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., business,

trade, undertaking, manufacture or calling. The second

part views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes. By this part of the definition any calling,

employment, handicraft, industrial occupation or

avocation of workmen is included in the concept of

industry. This part gives extended connotation.

12.

Gloss was put on the definition of word “industry”

by the High Courts and the Apex Court time and again.

The question as to what is “industry” has continuously

baffled and perplexed the courts. A graph of the cases

decided by the Apex Court, if plotted on the background

of the expression used in two parts of the definition of

“industry”, would represent rather a zig zag curve. There

have been various judicial ventures in this rather volatile

area of law. The decided cases show that the efforts were

made to evolve test by reference to characteristics regarded

as essential for constituting an activity as an “industry”.

Various cases would show that the Apex Court has been

guided more by empirical rather than a strictly analytical

approach. Most of the decision have centered around the

expression “undertaking” used in the definition. In

Bangalore Water Supply and Sewerage Board (1978 Lab.

I.C. 778) the Apex Court reviewed the earlier decisions on

interpretation of the wide words encompassed in the

definition and formulated positive and negative principles

for identifying “industry” as enacted by clause (j) of

section 2 of the Act. It would be expedient to reproduce

the authoritative pronouncement of the Court, in the very

words set out in the majority decision, handed down by

Justice Krishna Iyer, which are extracted thus:

“I.

“Industry” as defined in S.2(j) and explained in

Banerji (AIR 1953 S.C.58) has a wide import.

(a)

Where (i) systematic activity, (ii) organized

by Co-operation between employer and

employee (the direct and substantial element

is chimerical) (iii) for the production and /or

distribution of goods and services calculated

to satisfy human wants and wishes (not

spiritual or religious but inclusive of material

things or services geared to celestial bliss i.e.

making, on a large scale prasad or foods) prima

facie, there is an “industry” in that enterprise.

(b)

Absence of profit motive or gainful objective

is irrelevant, be the venture in the public, joint,

private or other sector.

(c)

The true focus is functional and the decisive

test is the nature of the activity with special

emphasis on the employer-employee relations.

(d)

If the organization is a trade or business it

does not cease to be one because of

philanthropy animating the undertaking.

II.

Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot be

magnified to overreach itself.

(a)“Undertaking” must suffer a contextual and

associational shrinkage as explained in Banerjee and

in this judgement, so also, service, calling and the

like. This yields the inference that all organized

3522

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

activity possessing the triple elements in 1(supra),

although not trade or business, may still be ‘industry’

provided the nature of activity, viz. the employer-

employee basis, bears resemblance to what we find

in trade or business. This takes into the fold

‘industry’ undertaking, calling and services,

adventures,” analogous to the carrying on the trade

or business”. All features, other than the

methodology of carrying on the activity viz in

organizing the co-operation between employer and

employee, may be dissimilar. It does not matter, if

on the employment terms there is analogy.

III.

Application of these guidelines should not short of

their logical reach by invocation of creeds, cults or

inner sense of incongruity or outer sense of

motivation for or resultant of the economic

operations. The ideology of the Act being industrial

peace, regulation and resolution of industrial

disputes between employer and workmen, the range

of their statutory ideology must inform the reach of

the statutory definition. Nothing less, nothing more.

(a)

The consequences are (i) profession, (ii) clubs

(iii) education institutions, (iv) co-operatives

(v) research institutes, (vi) charitable projects

and (vii) other kindered adventures, if they

fulfil the triple tests listed in 1(supra), cannot

be exempted from the scope of section 2(j).

(b)

A restricted category of professions, clubs,

co-operatives and even gurukulas and little

research labs may qualify for exemption if in

simple ventures, substantially, and going by

the dominant nature criterion, substantively

no employees are entertained but in menial

matters, marginal employees are hired without

destroying the non employee character of the

unit.

(c)

If, in a pious or altruistic mission many employ

themselves, free or for small honoraria or like

return, mainly drawn by sharing in the purpose

or cause, such as lawyers volunteering to run

a free legal services clinic or doctors serving

in their spare hours in a free medical centre or

ashramites working at the bidding of the

holiness, divinity or like central personality,

and the services are supplied free or at nominal

cost and those who serve are not engaged for

remuneration or on the basis of master and

servant relationship, then, the institution is

not an industry even if stray servants, manual

or technical, are hired. Such eleemosynary or

like undertakings alone are exempt not other

generosity, compassion, developmental

passion or project.

IV.

The dominant nature test:

(a)

Where a complex of activities, some of which

qualify for exemption, other not, involves

employees on the total undertaking, some of

whom are not “workmen” as in the University

of Delhi case (AIR 1963 S.C.1873) or some

departments are not productive of goods and

services if isolated, even then, the

predominant nature of the services and the

integrated nature of the departments as

explained in the Corporation of Nagpur (AIR

1960 S.C.657) will be the true test. The whole

undertaking will be industry although those

who are not “workmen” by definition may not

benefit by the status.

(b) Notwithstanding the previous clauses, sovereign

functions, strictly understood (alone) qualify for exemption,

not the welfare activities or economic adventures

undertaking by Govt. or statutory bodies.

functions, if there are units which are industries and they

are substantially severable, then they can be considered

to come within section 2(j).

(d) Constitutional and competently enacted legislative

provisions may remove from the scope of the Act

categories which otherwise may be covered thereby.

We overrule Safdarjung (AIR 1970 S.C.1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana (AIR 1968

S.C. 554), Delhi University (AIR 1963 S.C.1873), Dhanrajgiriji

Hospital (AIR 1975 SC 2032) and other rulings whose ratio

runs counter to the principles enunciated above, and the

Hospital Mazdoor Sabha (AIR 1960 SC 610) is hereby

rehabilitated.”

13.

Principles laid down in Bangalore Water Supply &

Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The management agitates that it is not an industry. The

view point held by the management is that no profit motive

activities are being carried on by it. No business is being

run, hence the management cannot be termed as an

‘industry”. Except the facts referred above, the management

nowhere projects any other factors to lay emphasis on the

fact that it is not an ‘industry’.

14.

Whether granting of patents on new non obvious

inventions would fall within the ambit of material services

to the society? Legal precedents would through light on

the above proposition. In Ahmedabad Textile Industry’s

Research Association [1960 (2) LLJ 720] the Association

was established to carry on research with respect to the

textile industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were held to

be “material services” to the textile industry hence the

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3523

Association answered the definition of industry. But in

Safdarjung Hospital case (supra) it was not held to be an

industry because it was a non-profit making body and its

work was in the nature of training, research and treatment.

In Indian Standard Institute [1966 (1) LLJ 33] the Apex

Court suggested that in order to be recognized as an

undertaking analogous to trade or business, the activity

must be an economical activity in the sense that it is

productive of material goods or material services. In

Bangalore Water Supply and Sewerage Board (supra), the

Apex Court laid down that an activity systematically or

habitually undertaken for production or distribution of

goods or for rendering material services to the community

at large or a part of such community with the help of

employees is an undertaking. An ‘industry’ thus was said

to involve cooperation between the employer and

employees for the object of satisfying material human

needs but not for oneself nor for pleasure nor necessity

for profit. Lack of business and profit motive or capital

investment would not take out an activity from the sweep

of ‘industry’, if other conditions are satisfied. It is the

activity in question which attracts the definition and

absence of investment of any capital or the fact that the

activity is conducted for profit motive or not, would not

make material difference. Conversely mere existence of

profit motive will not necessarily convert the activity into

“industry’ if other tests are not satisfied.

15.

One may project that the management carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry”? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court

observed that it could not have been in contemplation of

the legislature to bring in the regal functions of the State

within the definition of “industry” and to confer jurisdiction

on Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumbrated the test:

can such activity be carried on by a private individual or

group of individuals? The answer to this is : If a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while

if it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions,

strictly understood, (alone) qualify for exemption, not the

welfare activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

16.

In Physical Research Laboratory [1997 (2) LLJ 625]

the Apex Court held that the Physical Research Laboratory

is not an ‘industry’ because it is not engaged in an activity

which can either be called business, trade or

manufacturing or it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as it is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not

rendering any services to others. It is engaged in pure

research in space science.

17.

While reaching the conclusion, referred above, the

Apex Court relied observations made in Bangalore Water

Supply (supra) with respect to research institutes, which

observations are extracted thus:

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists,

para-scientists and other personnel. Is scientific

research service? Undoubtedly it is. Its discoveries

are valuable contributions to the wealth of the

nation. Such discoveries may be sold for a heavy

price in the industrial or other markets. Technology

has to be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recorded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratified and grateful earth,

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

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[PART II—SEC. 3(ii)]

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industries and the nation in terms of

goods and services and wealth. It follows that

research institutes, albeit run without profit-motive,

are industries”.

18.

In the light of the above legal proposition, facts of

the present controversy are to be scanned. Admittedly,

the functions performed by the management do not fall

within the ambit of administration of justice, maintenance

of order, repression of crime, security of borders from

external aggression and legislative powers of the State.

Activities carried out by the management cannot be

described as regal or sovereign activities, since such

activities could be carried out by private individuals or

group of individuals.

19.

As projected by the management, it grants patents

on new non-obvious inventions, which act answers

ingredents of rendering service to the community at large.

Its activities are systematic, performed with co-operation

between the management and its employees. Activities

performed by the management renders service to the

community at large. Therefore, it is evident that the triple

test of industry as propounded in Bangalore Water and

Sewerage Board (supra) stand satisfied in the present case.

It does not lie in the mouth of the management to claim

that it is does not fall within the ambit of “industry” as

defined in section 2(j) of the Act. Mere absence of profit

motive will not necessarily push the activity out of the

pale of industry, as defined by the Act. Resultantly, it is

concluded that activities performed by the management

falls within the ambit of “industry” as defined under

section 2(j) of the Act. The issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 2

20.

In his affidavit Ex.WW1/A, tendered as evidence,

the claimant highlights that he was engaged as a casual

labour/daily wager from 04.08.2006 initially for a period of

89 days. He was deputed by the management for carrying

out works relating to shifting of office from Patel Nagar to

Dwarka. He continued to perform his duties with utmost

dedication and to entire satisfaction of his superiors.

Ms.Suresh Singhal unfolds in her affidavit Ex.MW1/A,

tendered as evidence, that the management has been

engaging services of daily wagers for various jobs.

Claimant was engaged on daily wage basis. From tone

and tenor of her testimony it is obvious that the claimant

was engaged by the management for manual work.

21.

When facts unfolded by the claimant and those

detailed by Ms.Suresh Singhal are appreciated in the light

of the documents proved by the parties, it came over the

record that the claimant was engaged as a casual labour

for manual work. Question for consideration would be as

to whether the claimant can be termed as workman? For

an answer to this proposition, it would be expedient to

have a glance on definition of the term ‘workman’, enacted

by Section 2(s) of the Act. For sake of convenience,

definition of term ‘workman’ is reproduced thus:

“2(s) Workman means any person (including an

apprentice) employed in any industry to do any

manual, unskilled, skilled, technical, operational,

clerical or supervisory work for hire or reward,

whether the terms of employment be express or

implied, and for the purposes of any proceeding

under this Act in relation to an industrial dispute

includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute,

but does not include any such person –

(i)

who is subject to the Air Force Act, 1950 (45

of 1950), or the Army Act 1950(46 or 1950) or

the Navy Act, 1957 (62 of 1957), or

(ii)

who is employed in the police service or as an

officer or other employee of a prison, or

(iii)

who is, employed mainly in a managerial or

administrative capacity, or

(iv)

who, being employed in a supervisory

capacity, draws wages exceeding one

thousand six hundred rupees per mensem or

exercises, either by the nature of the duties

attached to the office or by reason of the

powers vested in him, functions mainly of a

managerial nature”.

22.

The first part of the definition gives statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an “industry” to do any

manual, unskilled, skilled, technical, operational, clerical

or supervisory work for hire or reward. This part determines

what a “workman” means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with

an industrial dispute, or (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the

definition of “workman”. This part gives extended

connotation to the expression “workman”. The third part

specifically excludes the categories of persons specified

in clauses (i) to (iv) of this sub section. The third part

connotes that even if a person satisfies the requirements

of any of the first two parts but if he falls in any of the four

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3525

categories in the third part, he shall be excluded from the

definition of ‘workman’. Not only the persons who are

actually employed in an industry but also those who have

been discharged, dismissed or retrenched in connection

with or as a consequence of an industrial dispute, and

whose dismissal, discharge or retrenchment has lead to

that dispute, would fall within the ambit of the definition.

In other words, the second category of persons included

in the definition would fall in the ambit of the definition,

only for the purpose of any proceedings under the Act in

relation to an industrial dispute and for no other purposes.

Therefore, date of reference is relevant and in case a person

falls within the definition of workman on that day, the

Tribunal would be vested with jurisdiction to entertain it

and the jurisdiction would not cease merely because

subsequently the workman ceases to be workman.

23.

For an employee in an industry to be a workman

under this definition, it is manifest that he must be employed

to do skilled or unskilled manual work, supervisory work,

technical work or clerical work. If the work done by an

employee is not of such a nature, he would not be a

workman. The specification of the four types of work

obviously is intended to law down that an employee is to

become a workman only if he is employed to do work of

one of those types, while there may be employees who,

not doing any such work, would be out of the scope of the

word ‘workman’, without having resort to the exceptions.

It cannot be held that every employee of an industry was

to be a workman except those mentioned in the four

exceptions as in that case these four classifications need

not have been mentioned in the definition and a workman

could have been defined as a person employed in an

industry except in cases where he was covered by one of

the exceptions.

24.

In cases where an employee is employed to do purely

skilled or unskilled manual work, or supervisory work or

technical work or clerical work there would be no difficulty

in holding him to be a workman under the appropriate

classification. Frequently, however, an employee is

required to do more than one kind of work. In such cases,

it would be necessary to determine under which

classification he will fall for the purpose of finding out

whether he does not go out of the definition of ‘workman’

under the exceptions. The principle is now well settled

that , for this purpose, a workman must be held to be

employed to do that work which is the main work he is

required to do even though he may incidentally doing

other type of work.

25.

When facts of the present controversy are assessed

on the above proposition of law, it emerges that the

claimant was engaged as casual labour to do manual

unskilled work. The management nowhere disputes that

the claimant was performing manual unskilled work, while

working as casual labour. Work performed by the claimant

clothes him with the status of a workman, as projected

under section 2(s) of the Act. Therefore, these facts make

me to comment that the claimant was a workman within

the meaning of section 2(s) of the Act. The issue is,

therefore, answered in favour of the claimant and against

the management.

Issue No. 3

26.

Question for consideration comes as to whether

order dated 21.04.2010 passed by the CAT operate as

resjudicata? Whether the order, referred above, would

preclude the claimant from re-agitating that very issue?

For an answer it would be considered as to whether the

order, passed by the CAT, precludes the claimant from

raising that very issue before this Tribunal. For an answer

legal principles are to be taken note of. Section 11 of the

Code of Civil Procedure 1908 (in short the Code) embodies

the doctrine of res-judicata or the rule of conclusiveness

of a judgment, as to the point decided either of fact, or of

law, or of fact and law, in every subsequent suit between

the same parties. It enacts that once a matter is finally

decided by a competent court, no party can be permitted

to reopen it in a subsequent litigation. The doctrine of res-

judicata has been explained in the simplest possible manner

by Das Gupta J. in the case of Statyadhyan Ghosal Vs.

Deorajin Debi (AIR 1960 S.C. 941) in the following words:

“The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res- judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter – whether on a

question of fact or a question of law – has been

decided between two parties in one suit or

proceeding and the decision is final, either because

no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to convass the matter

again”.

27.

It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under Section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in the

subsequent suit must be the same matter which

was directly and substantially in issue either actually

or constructively in the former.

The former suit must have been a suit between the

same parties or between parties under whom they or

any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court which decided the former suit must be a

court competent to try the subsequent suit or the

suit in which such issue is subsequently raised.

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[PART II—SEC. 3(ii)]

The matter directly and substantially in issue in the

subsequent suit must have been heard and finally

decided by the court in the former suit.

28.

Section 11 of the Code bars trial of any suit as well

as an issue which had been decided in a former suit. Issue

are of three kinds: (i) Issue of fact; (ii) Issue of law ; and

(iii) Mixed issues of law and fact. A decision on an issue

of fact, however erroneous it may be, constitutes res-

judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad Vs. Dossibai [1970(1)

SCC 613]. A mixed issue of law and fact also, for the same

reasons, operates as res-judicata.

29.

To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent

to try the subsequent suit, will not operate as res-judicata.

The expression “competent to try” means “competent to

try the subsequent suit if brought at the time the first suit

was brought”. In other words, the relevant point of time

for deciding the question of competence of the court is

the date when the former suit was brought and not the

date when the subsequent suit was filed. In order that a

decision in a former suit may operate as res-judicata, the

court which decided that suit must have been either –(a) a

court of exclusive jurisdiction, or (b) a court of limited

jurisdiction; or (c) a court of concurrent jurisdiction.

30.

For articulation of an industrial dispute, the labour

court or an industrial tribunal exercise adjudicatory

jurisdiction. Task of an industrial adjudicator is tedious,

who has to reconcile the head-on clash between the

fundamental rights guaranteed by the constitution such

as freedom of trade, freedom to practice any profession or

to carry on any occupation and the directive principles

enshrined in the constitution which are fundamental in

the governance of the country. He has also the delicate

task of balancing the conflicting interest of employer,

employee and the public on very basic policies, such as,

freedom and sanctity of contract, protection of business,

right to work, making training available to employees,

earning of livelihood for oneself and family, utilization of

one’s skill and talent, continued productivity, betterment

of one’s status, avoidance of one’s becoming a public

charge, encouragement of competition and development

of national and international trade and avoidance of

monopoly, promotion of collective bargaining and

elimination of indiscipline in industry and so on. Questions

on above issues are to be adjudicated by an industrial

adjudicator. Though the constitution has vested powers

of judicial review in High Courts and invested it with power

to sit in appeal over the awards of industrial tribunals, yet

industrial tribunals are courts of exclusive jurisdiction on

the matters, which are referred to them by the appropriate

Government under Section 10 of the Act.

31.

In Nawab Hussain, (1977 Lab. I.C.911), the Apex

Court enunciated general principles of doctrine of res-

judicata as under:

“The principle of estoppel per res-judicata is a rule

of evidence. As has been stated in Marginson v.

Blackburn Borough Council [1939 (2) KB 426 at P.437]

it may be said to be “the broader rule of evidence

which prohibits the reassertion of a cause of action.”

This doctrine is based on two theories: (i) the finality

and conclusiveness of judicial decisions for the final

termination of disputes in the general interest of the

community as a matter of public policy, and (ii) the

interest of the individual that he should be protected

from multiplication of litigation. It, therefore, serves

not only a public but also a private purpose by

obstructing the reopening of matters which have

once been adjudicated upon. It is thus not

permissible to obtain a second judgment for the same

civil relief on the same cause of action, for otherwise

the spirit of contentiousness may give rise to

conflicting judgments of equal authority, lead to

multiplicity of actions and bring the administration

of justice into disrepute. It is the cause of action

which gives rise to an action, and that is why it is

necessary for the courts to recognize that a cause of

action which results in a judgment must lose its

identity and vitality and merge in the judgment when

pronounced. It cannot therefore survive the

judgment, or give rise to another cause of action on

the same facts. This is what is known as the general

principle of res-judicata.”

32.

Whether CAT is competent to try an industrial

dispute? Answer to this proposition would emerge out of

Section 14 of the Administrative Tribunal Act, 1985, which

contemplates that the CAT shall exercise jurisdiction,

powers and authority in relation to recruitment and matters

concerning any civil services or civil post in the Union.

For sake of convenience, provisions of sub-section (1) of

Section 14 of the Administrative Tribunal Act, 1985 are

extracted thus:

“14(1) Save as otherwise expressly provided in this

Act, the Central Administrative Tribunal shall

exercise, on and from the appointed day, all the

jurisdiction, powers and authority exercisable

immediately before that day by all courts except the

Supreme Court in relation to—

(a) recruitment, and matters concerning recruitment,

to any All India Service or to any civil service of the

Union or a civil post under the Union or to a post

connected with defence or in the defence services,

being, in either case, a post filled by a civilian;

(b) all service matters concerning—

(i) a member of any All India Service; or

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3527

(ii) a person, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any civil service of the Union

or any civil post under the Union; or

(iii) a civilian, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any defence services or a post

connected with defence, and pertaining to

the service of such member, person or

civilian, in connection with the affairs of

the Union or of any State or of any local or

other authority within the territory of India

or under the control of the Government of

India or of any corporation or society owned

or controlled by the Government;

connection with the affairs of the Union concerning

a person appointed to any service or post referred

to in sub- clause (ii) or sub- clause (iii) of clause (b),

being a person whose services have been placed by

a State Government or any local or other authority

or any corporation or society or other body, at the

disposal of the Central Government for such

appointment”.

33.

Section 28 of the Administrative Tribunals Act, 1985

projects that an Industrial Tribunal, Labour Court or other

authority constituted under the Act shall exercise

jurisdiction in respect of service conditions and matters

contained in the Act. For sake of convenience, provisions

of the said section are reproduced thus:

“28. ‘On and from the date from which any

jurisdiction, powers and authority becomes

exercisable under this Act by a Tribunal in relation

to recruitment and matters concerning recruitment

to any service or post or service matters concerning

members of any service or persons appointed to

any service or post, no court except-

(a)

the Supreme Court; or

(b)

any Industrial Tribunal, Labour Court or other

authority constituted under the Industrial

Disputes Act, 1947 or any other corresponding

law for the time being in force, shall have or be

entitled to exercise any jurisdiction, powers

or authority in relation to such recruitment or

matters concerning such recruitment or such

service matters.”

34.

The above provisions make it apparent that though

CAT shall exercise all jurisdiction, powers and authority

in relation to recruitment to any civil service or post under

the Union or to a post connected with defence or in the

defence services, in either case, a post filled by a civilian,

yet an Industrial Tribunal constituted under the Act shall

have jurisdiction in relation to recruitment and matters

concerning recruitment, in service or post or services

matters concerning any person who falls within the ambit

of the Act. Therefore, on plain reading of section 28 of the

aforesaid Act, it emerges that the CAT exercises concurrent

jurisdiction with an Industrial Tribunal or Labour Court,

constituted under the Act in relation to recruitment and

matters concerning recruitment to any service or post or

service matters concerning any person, who falls within

the ambit of workmen as defined under the Act.

35.

Whether civil court has jurisdiction in relation to

Industrial Dispute, the Apex Court dealt with the matter in

Premier Automobiles [1976(1) SCC 496]. On consideration

of catena of decisions on the subject, the Apex Court

enunciated following principles:

“(1) If the dispute is not an Industrial Dispute, nor

does it relate to enforcement of any other right under

the Act the remedy lies only in the civil court.

(2) If the dispute is an Industrial Dispute arising out

of a right or liability under the general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election of

the suitor concerned to choose his remedy for the

relief which is competent to be granted in particular

remedy.

(3) If the Industrial Dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suitor is to get

an adjudication under the Act.

(4) If the right which is sought to be enforced is a

right created under the Act such as Chapter VA then

the remedy for its enforcement is either section 33C

or the raising of an Industrial Dispute, as the case

may be.

We may, however, in relation to principle 2 stated

above hasten to add that there will hardly be a

dispute which will be an Industrial Dispute within

the meaning of section 2(k) of the Act and yet will be

one arising out of a right or liability under the general

or common law only and not under the Act. Such a

contingency, for example, may arise in regard to the

dismissal of an unsponsored workman which in view

of the provision of law contained in Section 2A of

the Act will be an Industrial Dispute even though it

may otherwise be an Individual Dispute. Civil Courts,

therefore, will have hardly an occasion to deal with

the type of cases falling under principle 2. Cases of

Industrial Disputes by and large, almost invariably,

are bound to be covered by principle 3 stated

above.”

36.

While analysing principles adumbrated in Premier

Automobiles (supra), the Apex Court in Rajasthan State

Road Transport Corporation [1995(5) SCC 75] summarised

those principle as follows:

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[PART II—SEC. 3(ii)]

“(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

“Industrial Dispute’’ within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of right and

obligations created by enactment like Industrial

Employment (Standing Orders) Act, 1946 - which

can be called “sister enactments” to Industrial

Disputes Act-and which do not provide a forum for

resolution of such disputes, the only remedy shall

be to approach the forums created by the Industrial

Disputes Act provided they constitute Industrial

Disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an Industrial Dispute or says that it shall

be adjudicated by any of the forums created by the

Industrial Disputes Act. Otherwise, recourse to civil

court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the Government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the Government is entitled to

examine whether the dispute is ex facie frivolous,

not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

recommend to Parliament and the State Legislatures

to make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly- i.e.,

without the requirement of a reference by the

Government in case of industrial disputes covered

by Section 2-A of Industrial Disputes Act. This would

go a long way in removing the misgivings with

respect to the effectiveness of the remedies provided

by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to “statutory provisions”. Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created

by the Industrial Disputes Act or the civil court where

recourse to civil court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute-resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and unencumbered by the plethora of

procedural laws and appeals upon appeals and

revisions applicable to civil courts. Indeed, the

powers of the courts and tribunals under the

Industrial Disputes Act are far more extensive in the

sense that they can grant such relief as they think

appropriate in the circumstances for putting an end

to an Industrial Dispute.

37.

As detailed above, the Apex Court ruled that when

a dispute involves recognition, observance or enforcement

of any of the rights or obligations created by the Act, the

only remedy is to approach the forums created by the Act

only. For adjudication of an industrial dispute, which falls

within the ambit of the Act, the CAT does not have any

jurisdiction. It is obvious that provisions of section 28 of

the Administrative Tribunals Act, 1985 are in contradiction

to the law laid down by the Apex Court, when it relates to

exercise of jurisdiction, powers or authority in relation to

recruitment or matters concerning such recruitment or

conditions of service of any person, who happens to be a

workman within the meaning of section 2(s) of the Act.

This proposition was considered by the CAT in its decision

in A. Padmavalley etc. [1991(1) SLR 245] wherein

proposition of law laid in Premier Automobile (supra),

provisions of the Act as well as provisions of

Administrative Tribunals Act, 1985 were construed and it

was ruled that the CAT is not a substitute for the

authorities constituted under the Act and does not exercise

concurrent jurisdiction in regard to matters covered by

the Act. The CAT concluded the proposition as follows:

(i)

Administrative Tribunal constituted in the

Administrative Tribunals Act are not substitutes for

the authorities constituted under the Industrial

Tribunals Act and hence the Administrative Tribunal

does not exercise concurrent jurisdiction with those

authorities in regard to matters covered by that Act.

Hence, all matters over which the Labour Court or

the Industrial Tribunal or other authorities had

jurisdiction under the Industrial Disputes Act, do

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3529

not automatically become vested in the

Administrative Tribunal for adjudication. The

decision in the case of Sisodia, which lays down a

contrary interpretation is, in our opinion, not correct.

(ii)

An applicant seeking relief under the provisions of

the Industrial Disputes Act must ordinarily exhaust

the remedies available under that Act.

(iii)

The powers of the Adminstrative Tribunal are the

same as that of the High Court under Article 226 of

the Constitution and the exercise of that

discretionary power would depend upon the facts

and circumstances of each case as well as on the

principles laid down in the case of Rohtas Industries

(supra).

(iv)

The interpretation given to the term ‘arrangement in

force’ by the Jabalpur Bench in Rammoo’s case is

not correct.”

38.

In view of the legal principles laid above, it is evident

that CAT does not exercise concurrent jurisdiction with

this Tribunal in regard to rights and obligations arising

out of the Act. Resultantly, it is crystal clear that the CAT

is not competent to adjudicate the Industrial Dispute, and

as such order passed by it in OA No.1138 of 2010 on

21.04.2010 would not operate as res judicata. Submissions

made by Shri Bhardwaj, to the effect that the claimant

cannot re-agitate the very issue, which was adjudicated

by the CAT vide order dated 21.4.2010, are untenable. Issue

is, therefore, answered in favour of the claimant and

against the management.

Issue No. 4.

39.

For seeking protection under section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub-section (1) of section

25B of the Act. Sub-section (2) of the said section

introduces a fiction to the effect that even if a workman is

not in “continuous service” within the meaning of clause

(1) for a period of one year or six months, he shall be

deemed to in continuous service for that period under an

employer if he has actually worked for the days specified

in clauses (a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enquiry

has to be made to find out whether the workman actually

worked for not less than 240 days during the period of 12

calendar months immediately preceding the retrenchment.

40.

In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus:

“Under section 25-B a workman, who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days, is to be

deemed to have completed one year’s service in the

industry. Consequently an enquiry has to be made

to find out whether the workman had actually worked

for not less than. 240 days during period of 12

calendar months immediately preceding the

retrenchment. These provisions of law do not show

that a workman after satisfying the test under section

25B has further to show that he has worked during

all the period he has been in the service of the

employer for 240 days in the year”.

41.

Interruption of service occurred during the course

of job has to be included in uninterrupted services. Fiction

under section 25-B of the Act will operate if workman

has actually worked for 240 days in a calendar year. The

explanation appended to section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

sundays and saturdays for which full wages are paid.

The Apex Court was confronted with such a proposition

in American Express Banking Corporation [1985 (2) LLJ

539], wherein it was ruled that the expression ‘actually

worked under the employer’. cannot mean those days only

when the workman worked with hammer, sickle or pen, but

must necessarily comprehend all those days during which

he was in the employment of the employer and for which

he had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that sundays and other

holidays, would be comprehended in the words “actually

worked” and it countenanced the contention of the

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

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[PART II—SEC. 3(ii)]

had actually worked though he had not so worked and no

other days. The Court observed that the explanation is

only clarificatory, as all explanations are, and cannot be

used to limit the expanse of the main provision. Precedent

in Lalappa Lingappa [1981 (1) LJ 308] was distinguished

by the Apex Court in the case referred above. The

precedent was followed in Standard Motor Products of

India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from

the law laid above that sundays and holidays shall be

included in computing continuous service under Section

25-B of the Act.

42.

The claimant unfolds that he was initially engaged

by the management on 15.03.2007 as daily wager. He

continuously performed his duties till 30.03.2009. He

rendered continuous service with the management for the

period referred above. On this issue, Ms. Suresh Singhal

projects that the claimant was engaged at different

intervals, which spells have been reproduced in chart

Ex.MW1/4. According to her, sundays and holidays were

not counted while reckoning period for which claimant

worked with the management. When Ex.MW1/4 is

scanned, it came to light that in preceding 12 months from

30.03.2009, the date when his services were dispensed

with, claimant had rendered continuous service of 256

days. He had rendered 236 days service in preceding 12

months from April 2008. Period of service, rendered by the

claimant, as detailed above, nowhere includes sundays

and holidays. In a year, an employee may get 52 weekly

offs, besides three national holidays. In case 52 weekly

offs and three national holidays are added to the periods

referred above, in the year reckoned from April 2008 to

March 2007, he reaches notional figure of 240 days, to

claim continuous service for a period of one year. Thus

the claimant could show that he served for a period of two

years continuously, as contemplated by provisions of

section 25B of the Act. Issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 5

43.

An employer may discharge a portion of his labour

force as surplusage in a running or continuing business

for variety of reasons, e.g., for economy, convenience,

rationalization in industry, installation of a new labour

saving machinery etc. The Act defines “termination by

the employer of the service of a workman for any reasons

whatsoever”, except the categories exempted in sub-

section 2(oo), to be retrenchment. The definition of the

term “retrenchment”, as enacted by the Act, is extracted

thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include-

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb) termination of the services of the workman as

a result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation

in that behalf contained therein; or

(c)

termination of the services of a workman on

the ground of continued ill-health”.

44.

Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer “for any reason whatsoever”

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement

of workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. [1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

45.

Section 25F of the Act lays down conditions pre-

requisite to retrenchment, which are as follows:

(i)

There should be one month’s notice in writing to

the workman concerned.

(ii)

The notice should specify the reasons for

retrenchment.

(iii)

The period of one month’s notice should have expired

before retrenchment is enforced, or the workman

has been paid in lieu of such notice the wages for

the period.

(iv)

The workman has been paid retrenchment

compensation which should be equivalent to 15

days’ average pay for every one years’ service or

any part thereof provided it exceeds six months.

(v)

The notice is also given to the appropriate

Government.

46.

On turning to fact it came to light that the claimant

projects that his services were dispensed with on

30.03.2009. In that regard, Ms. Singhal projects that the

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3531

claimant was not engaged any further with effect from

30.03.2009. It is not the case of the management that the

claimant was well aware that his engagement was for a

specified period and would come to an end on expiry of

the period, so specified in his engagement order. Exception

contained in sub-clause (bb) of sub-section (oo) of Section

2 of the Act is not applicable to his case. For applicability

of sub clause (bb) of sub -section (oo) of Section 2 of the

Act the management is under an obligation to establish

following counts:

(i)

that the workman was employed in a project or

scheme of temporary duration;

(ii)

the employment was on a contract, and not as a

daily-wager simpliciter, which provided inter alia that

the employment shall come to an end on the expiry

of the scheme or project; and the employment came

to an end simultaneously with the termination of the

scheme or project and consistently with the terms

of the contract.

47.

When facts unfolded by Ms.Singhal are scanned, it

came to light that the claimant was not employed in a

project or a scheme of temporary duration. He was not

employed on a contract of specified duration. As per the

case of the management, he was a daily wager simpliciter.

These facts make it clear that action of disengaging the

claimant does not fall within the exception created by either

main clause or exception contained in second limb of

Section 2(oo) of the Act. Therefore, dispensing with

services of the claimant for any reason whatsoever would

amount to retrenchment.

48.

Admittedly, no notice for a period of one month or

pay in lieu thereof was given to the claimant, as testified

by Ms. Singhal. No retrenchment compensation was paid

to him at that time. Thus it is evident that services of the

claimant were retrenched without payment of notice pay,

and retrenchment compensation. It is well settled that in a

case of wrongful retrenchment, dismissal or discharge,

the normal rule is to award reinstatement. But where a

case falls in any of the exception to general rule, the

industrial adjudicator has discretion to award reasonable

and adequate compensation, in lieu of re-instatement.

Section 11A of the Act vests the industrial adjudicator

with discretionary jurisdiction to give “such other relief to

the workman” in lieu of discharge or dismissal as the

circumstances of the case may require, where for some

valid reasons it considers that reinstatement with or

without conditions will not be fair or proper.

49.

In Uma Devi [2006 (4) SCC I] the Apex Court

considered the proposition as to whether the persons who

got employment, without following of a regular procedure

or even from the back door or on daily wages can be

ordered to be made permanent in their posts, to prevent

regular recruitment to the posts concerned. Catena of

decisions over the subject were considered and the court

declined the submissions of the workmen to be made

permanent on the posts which were held by them in

temporary or ad-hoc capacity for a fairly long spell. The

Court ruled thus:

“With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insists on the State making regular

and proper recruitments, and is bound not to

encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment. The

direction to make permanent-the distinction between

regularization and making permanent, was not

emphasized here–can only encourage the State, the

model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many

waiting to compete. With respect the directions made

in Piara Singh [1992(4) SCC 118] is to some extent

inconsistent with the conclusion in para 45 of the

said judgement therein. With great respect, it appears

to us that the last of the directions clearly runs

counter to the constitutional scheme of employment

recognized in the earlier part of the decision. Really,

it cannot be said that this decision has laid down

the law that all ad-hoc, temporary or casual

employees engaged without following a regular

recruitment procedure should be made permanent”.

50.

Taking note of some of recent decisions, the Apex

Court held that the State does not enjoy a power to make

appointments in terms of Article 162 of the Constitution.

The Court quoted its decision in Girish Jyanti Lal Vaghela

[2006 (2) SCC 482] with approval, wherein it was rule thus.

“The appointment to any post under the State can

only be made after a proper advertisement has been

made inviting applications from eligible candidates

and holding of a selection by a body of experts or a

specially constituted committee, whose members are

fair and impartial, through a written examination or

interview or some other rational criteria for judging

the inter se merit of candidates, who have applied in

response to the advertisement made. A regular

appointment to the post under the State or Union

cannot be made without issuing advertisement in

the prescribed manner which may in some cases

include inviting applications from the Employment

Exchange, where eligible candidate get their names

registered. Any regular appointment made on a post

under the State or Union without issuing

advertisement inviting applications from eligible

candidates and without holding a proper selection

where all eligible candidates get a fair chance to

compete would violate the guarantee enshrined

under Article 16 of the Constitution”.

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[PART II—SEC. 3(ii)]

51.

In P.Chandra Shekhara Rao and Others [2006 (7) SCC

488] the Apex Court referred Uma Devi’s Case (supra) with

approval. It also relied the decision in a Uma Rani [2004 (7)

SCC 112] and ruled that no regularization is permissible in

exercise of statutory powers conferred in Article 162 of

the Constitution, if the appointments have been made in

contravention of the statutory rules. In Somveer Singh

[2006 (5) SCC 493] the Apex Court ruled that appointment

made without following due procedure cannot be

regularized. In Indian Drugs & Pharmaceuticals Ltd. [2007

(1) SCC 408] the Apex Court reiterated the law and

announced that the rules of recruitment can not be relaxed

and court can not direct regularisation of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

52.

In Uma Devi (supra) it was laid that “when a person

enters a temporary employment or get engagement as

contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed for the post,

when an appointment to the post could be made only by

following a proper procedure or selection in any concerned

cases, in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of

those precedent neither continuance nor regularisation of

services of the claimants can be ordered, since it would

amount to back door entry into Government job”.

53.

Whether the claimant was back door entrant ?

Answer lies in negative. As per facts, unfoleded by the

management, name of the claimant was sponsored by the

employment exchange. Provisions of Employment

Exchanges (Compulsory Notification of Vacancies) Act,

1959 casts obligation on an employer to notify vacancies

to an employment exchange, before filling vacancies in

any employment in its establishment. Section 3 of that Act

enlists certain vacancies to which it does not apply.

Provisions of the said section are detailed as follows:

“3. Act not to apply in relation to certain vacancies.-

(1) This Act shall not apply in relation to vacancies.-

(a) in any employment in agriculture (including

horticulture) in any establishment in private sector

other than employment as agricultural or farm

machinery operatives;

(b) in any employment in domestic service ;

less than three months;

(d) in any employment to do unskilled office work;

(e) in any employment connected with the staff of

Parliament.

(2) Unless the Central Government otherwise directs

by notification in the Official Gazette in this behalf,

this Act shall not also apply in relation to-

(a)

vacancies which are proposed to be filled

through promotion or by absorption of surplus

staff of any branch or department of the same

establishment or on the result of any

examination conducted or interview held by,

or on the recommendation of, any independent

agency, such as the Union or a State Public

Service Commission and the like;

(b)

vacancies in any employment which carries a

remuneration of less than sixty rupees in a

month”.

54.

Clause (i) of section 2 of that Act gives definition of

“unskilled office work” wherein an employee doing any

routine work or unskilled work has been included. For

convenience sake the said definition is extracted thus:

“Unskilled office work” means work done in an

establishment by any of the following categories of

employees, namely,—

(1)

daftri,

(2)

jamadar, orderly and peon;

(3)

dusting man or farash;

(4)

bundle or record lifter ;

(5)

process server;

(6)

watchman;

(7)

sweeper;

(8)

any other employee doing any routine or

unskilled work which Central Government

may, by notification in the Official Gazette,

declare to be “unskilled office work”.

55.

As projected above provisions of that Act are not

applicable to vacancies relating to “unskilled office work”.

The object of the aforesaid Act is not to restrict, but to

enlarge field of choice so that employer may choose best

and most efficient and to provide an opportunity to the

worker to have his claim for appointment considered

without having to knock at every door for employment.

Office Memorandum No.114/11/64-Estt.(D) dated 21.3.64

was issued by Ministry of Home Affairs, Government of

India, emphasizing that all vacancies in Central Government

establishments, other than those filled through the Union

Public Service Commission, should be notified to the

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3533

nearest employment exchange and no department or office

should fill any vacancy by direct recruitment unless the

employment exchange certified that they were unable to

supply suitable candidates. Office memorandum No.14024/

2/77-Estt.(D) dated 12.4.77 was issued by Department of

Personnel and Training laying stress on proposition that

all vacancies arising in Central Government offices/

establishments (including quasi government institutions

and statutory organizations) irrespective of the nature and

duration other than filled from the U.P.S.C. are not only to

be notified, but also to be filled through the employment

exchange alone and other permissible source of recruitment

can be taped only if employment exchange concerned

issued a non availability certificate. There can be no

deviation from this recruitment procedure unless a different

arrangement in this regard has been previously agreed to

in consultation with the department of Personnel and

Training and Ministry of Labour.

56.

A gloss was put on these instructions by the Apex

Court in N. Hargopal [1987(3) SCC 308] wherein it was

ruled that the Government is at perfect liberty to issue

instructions to its own departments and organizations

provided the instructions do not contravene any

constitutional provision or any statute, these instructions

cannot bind other bodies which are created by statute

and which functions under the authority of statute. In the

absence of any statutory prescription the statutory

authority may, however, adopt and follow such

instructions if it thinks fit. The court concluded that in

case of public appointment it is necessary to eliminate

arbitrariness, favourtism and introduce uniformity of

standards and orderliness in the matter of employment.

There has to be an element of procedural fairness in

recruitment. If a public employer chooses to receive

applications for employment where and when he pleases,

and chooses to make appointment as he likes a grave

element of arbitrariness is certainly introduced. The Court

went on to say that in the absence of a better method of

recruitment any restriction that employment in Government

departments should be through the medium of employment

exchanges does not offend Article 14 and 16 of the

Constitution. Hence it emerges that above instructions

were affirmed by the Apex Court and the management was

bound to follow those instructions, in making an

engagement for the position of unskilled office work.

57.

These instructions were complied with by the

management when claimant was engaged by it. Thus

engagement of the claimant through employment exchange

was in consonance with the laid down procedure. It can

not be said that he was a back door entrant on the job.

Hence I say that the management could not show any

case where relief of reinstatement should be denied to the

claimant.

58.

As regards back wages, no evidence has been

brought to the effect that the claimant remained

unemployed. Therefore it seems not to be a case of grant

of full back wages. However no principles are available to

assess as to what amount of back wages should be

awarded. Principles for award of compensation is available

in some precedents, which are taken in to account. In

S.S.Shetty (1957 (11) LLJ 696) the Apex Court indicated

some relevant factors which an adjudicator has to take

into account in computing compensation in lieu of

reinstatement, in the following words:

“The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party,

the possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future…. In computing

the money value of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefits etc. would be till he attained the age of

superannuation and the value of such benefits

would have to be computed as from the date when

such reinstatement was ordered under the terms of

the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathematical exactitude and the best that any

tribunal or court would do under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors

pro and con”.

59.

A Divisional Bench of the Patna High Court in

B.Choudhary Vs. Presiding Officer, Labour Court,

Jamshedpur (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee’s age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer’s business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab.I.C.1887).

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[PART II—SEC. 3(ii)]

60.

In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that “it would be fair and just to direct the appellant a

substantial sum as compensation to her”. In Utkal

Machinery Ltd. (1966 (1) LLJ 398) the amount of

compensation equivalent to two year salary of the

employee awarded by the industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K.Roy (1970 (1) LLJ 228) compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty (1962 (II) LLJ 483) the Count

converted the award of reinstatement into compensation

of a sum of Rs. 50000 as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P.Bhandari (1986 (II) LLJ 509), the Apex Court

observed that it was a fit case for grant of compensation

in view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In

M.K.Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the

back salary to 50% of what would otherwise be payable to

the employee. In Yashveer Singh (1993 Lab.I.C.44) the

court directed payment of Rs. 75000 in view of

reinstatement with back wages. In Naval Kishor (1984 (II)

LLJ 473) the Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs.2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj (1985 (II) LLJ 19) a sum of Rs.2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C.1225) a compensation of Rs.2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab.I.C.107) a compensation of Rs. 65000 was granted

in lieu of reinstatement, since the employee was gainfully

employed elsewhere. In V.V.Rao (1991 Lab.I.C.1650) a

compensation of Rs.2.50 lac was awarded in lieu of

reinstatement.

61.

As held in preceding sections the claimant could

show a case of reinstatement in the service of the

management with continuity. Accordingly it is ordered that

he shall be reinstated in service by the management.

Relying on principles of law laid for grant of compensation

and on consideration of facts in entirety it is held that the

claimant shall get 40% of his last drawn wages as back

wages for the period of interregnum. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dated : 01-04-2014

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 15th April, 2014

S.O. 1354.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 107/2012)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Controller General, Patent & Design

Trade Marks, patent Office and their workmen, which was

received by the Central Government on 11/04/2014.

[No. L-42025/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.I, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 107/2012

Shri Dheeraj Kumar

S/o Late Sh.Anand

R/o H.No.19-A, Village & PO Kakrola,

New Delhi.

.....Workman

Versus

The Controller General

Patent & Design Trade Marks,

Through Assistant Controller of Patent & Design,

Patent Office, Baudhik Sampada Bhawan,

Dwarka, New Delhi.

....Management

AWARD

The Controller General, Patents, Designs and Trade

Marks (hereinafter referred to as the management), is a

statutory body created under the provisions of the Indian

Patents Act 1970 for granting patents on new non obvious

inventions. The management is a suboridinate office of

the Ministry of Commerce & Industries, Government of

India, New Delhi. The management employed certain

persons through employment exchange to carry out job

of casual/intermittent nature. The management terminated

services of one of the persons, so employed, namely, Shri

Dheeraj Kumar, without giving one month notice or pay in

¹Hkkx II—[k.M 3(ii)º

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3535

lieu thereof and retrenchment compensation. This irked

Shri Dheeraj Kumar, who raised an industrial dispute before

the Conciliation Officer. His claim was contested by the

management, hence conciliation proceedings ended into

a failure. Since 45 days, from the date of moving an

application before the Conciliation Officer, expired Shri

Dheeraj Kumar opted to file his dispute before the Tribunal

using provisions of sub-section (2) of section 2A of the

Industrial Disputes Act, 1947 (in short the Act), without

being referred for adjudication by the appropriate

Government under section 10(1)(d) of the Act.

Claim statement was filed by Shri Dheeraj Kumar

pleading that he was engaged as a casual labour/daily

wager by the management on 04.08.2006 through

Employment Exchange, North East District, Directorate of

Employment, Government of India, New Delhi. He initially

worked upto to 30.12.2006. He was again engaged on

15.3.2007. With an ulterior motive, the management gave

break on 10.12.2007 and again engaged him on 17.12.2007.

He worked till 30.03.2009. He was regular, sincere, obedient

and hardworking in his duties, which fact is corroborated

by letter dated 22.12.2008 issued by the management. He

has completed 240 days continuous service with the

management. He was denied salary for the months of

December 2008, January 2009, February 2009 and March

2009. Instead of paying his legal dues, he was prevented

from performing his duties after 30.03.2009.

On 02.04.2009, a representation was made to the

management to allow him to rejoin duties since the person

deployed in his place was doing similar duties. However,

the management failed to consider his case. Thereafter,

under wrong legal advice, an OA No.1138/2010 was filed

before the Central Administrative Tribunal (in short the

CAT) which was withdrawn on 23.05.2012. No notice for

termination of his service was given. Action of termination

of his services is illegal and uncalled for. He is unemployed

since the date of termination of his service. He seeks

reinstatement in service with continuity and full back

wages.

Claim was demurred by the management pleading

that it is a statutory body under the Indian Patents Act,

1970 created for implementing provisions of the aforesaid

Act, for granting patents on new non-obvious inventions.

The management performs sovereign function and as such

does not carry out activities which can be considered as

trade or business. No activity, related to production,

distribution or supply of goods or services meant for

satisfying for human wants, is carried out and hence it is

not an industry. It is also pleaded that the claimant is not

a workman under the provisions of the Act. No appointment

letter or identity card was issued to the claimant. He was

engaged for casual work, which was to be performed

intermittantly. Such casual workers/labourers are neither

holders of civil post nor appointed to any sanctioned

regular post through proper procedure. They are neither

entitled for any pay or perks at par with holder of a civil

post nor can claim continuation of such engagement.

Further as per policy of the Government of India, manpower

for casual job is now outsourced on contract basis through

a private outsourcing agency. Certificate issued by the

management clearly indicates that the claimant worked as

a daily wager. He was called for receiving his outstanding

payment, which he refused to accept. Hence it was

deposited to Government accounts vide challan no.POD/

405/RC dated 29.07.2009 after completion of 90 days as

per Receipt and Payment Rules. Subsequently cheque for

Rs.10,354.00 has been issued to him in November 2012.

The management pleads that the claimant moved an

application before the CAT seeking relief of reinstatement

in service, which application was dismissed vide order

21.4.2010. He again filed an application, which was

dismissed as withdraw on 23.5.2010. The order passed by

the CAT operates as resjudicata. In view of these facts,

claimant is not entitled to any relief. His claim is liable to

be dismissed, pleads the management.

On pleadings of the parties, following issues were

settled:

(1)

Whether management is an ‘industry’ within the

meaning of section 2(j) of the Industrial Disputes

Act, 1947?

(2)

Whether the claimant is a ‘workman’ within the

meaning of section 2(s) of the Industrial Disputes

Act, 1947?

(3)

Whether orders dated 21.04.2010 passed by Central

Administrative Tribunal operates as resjudicata?

(4)

Whether claimant rendered continuous service of

240 days as contemplated by section 25B of the

Industrial Disputes Act, 1947?

(5)

Whether the claimant is entitled to relief of

reinstatement in service?

To discharge onus resting on him, the claimant

examined himself and closed his evidence. The

management examined Ms.Suresh Singhal to substantiate

its case.

Arguments were heard at the bar. Ms.Madhvi K

Deva, authorized representative, advanced arguments on

behalf of the claimant. Shri Atul Bhardwaj, authorised

representative, raised submissions on behalf of the

management. Written submissions were also filed by the

parties. I have given my careful considerations to

arguments advanced at the bar and cautiously perused

the records. My findings on issues involved in the

controversy are as follows:-

Issue No. 1

At the outset, the management contends that it is

not an industry within the meaning of section 2(j) of the

Act. It is presented that management is a statutory body

under the Indian Patents Act, 1970 created for granting

patents on new non-obvious inventions. The said activity

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[PART II—SEC. 3(ii)]

is relatable to sovereign functions and cannot be termed

as industry. Shri Bhardwaj concludes that there is no

profit motive in granting patents, which fact would dispel

the contention that activities of the management fall within

the ambit of industry. On the other hand the claimant

asserts that the activities performed by the management

answer the definition of term “industry”, as enacted by

the Act.

10.

When claim is made by the management that it is

not an industry within the meaning of section 2(j) of the

Act, it becomes expedient to consider the definition of the

term ‘industry’. The Act defines the term ‘industry’ as

follows:

“2(j) ‘industry’ means any business, trade,

undertaking, manufacture or calling of employers

and includes any calling, service, employment,

handicraft, or industrial occupation or avocation of

workmen.”

11.

The definition of “industry” is both exhaustive and

inclusive. It is in two parts. The first part says that it

“means any business, trade, undertaking, manufacture or

calling of employers” and then goes to say that it “includes

any calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., business,

trade, undertaking, manufacture or calling. The second

part views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes. By this part of the definition any calling,

employment, handicraft, industrial occupation or

avocation of workmen is included in the concept of

industry. This part gives extended connotation.

12.

Gloss was put on the definition of word “industry”

by the High Courts and the Apex Court time and again.

The question as to what is “industry” has continuously

baffled and perplexed the courts. A graph of the cases

decided by the Apex Court, if plotted on the background

of the expression used in two parts of the definition of

“industry”, would represent rather a zig zag curve. There

have been various judicial ventures in this rather volatile

area of law. The decided cases show that the efforts were

made to evolve test by reference to characteristics regarded

as essential for constituting an activity as an “industry”.

Various cases would show that the Apex Court has been

guided more by empirical rather than a strictly analytical

approach. Most of the decision have centered around the

expression “undertaking” used in the definition. In

Bangalore Water Supply and Sewerage Board (1978 Lab.

I.C. 778) the Apex Court reviewed the earlier decisions on

interpretation of the wide words encompassed in the

definition and formulated positive and negative principles

for identifying “industry” as enacted by clause (j) of

section 2 of the Act. It would be expedient to reproduce

the authoritative pronouncement of the Court, in the very

words set out in the majority decision, handed down by

Justice Krishna Iyer, which are extracted thus:

“I.

“Industry” as defined in S.2(j) and explained in

Banerji (AIR 1953 S.C.58) has a wide import.

(a)Where (i) systematic activity, (ii) organized by

Co-operation between employer and employee (the

direct and substantial element is chimerical) (iii) for

the production and /or distribution of goods and

services calculated to satisfy human wants and

wishes (not spiritual or religious but inclusive of

material things or services geared to celestial bliss

i.e. making, on a large scale prasad or foods) prima

facie, there is an “industry” in that enterprise.

(b) Absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private

or other sector.

is the nature of the activity with special emphasis

on the employer-employee relations.

(d) If the organization is a trade or business it does

not cease to be one because of philanthropy

animating the undertaking.

II.

Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot be

magnified to overreach itself.

(a)“Undertaking” must suffer a contextual and

associational shrinkage as explained in Banerjee and

in this judgement, so also, service, calling and the

like. This yields the inference that all organized

activity possessing the triple elements in 1(supra),

although not trade or business, may still be ‘industry’

provided the nature of activity, viz. the employer-

employee basis, bears resemblance to what we find

in trade or business. This takes into the fold

‘industry’ undertaking, calling and services,

adventures,” analogous to the carrying on the trade

or business”. All features, other than the

methodology of carrying on the activity viz in

organizing the co-operation between employer and

employee, may be dissimilar. It does not matter, if

on the employment terms there is analogy.

III.

Application of these guidelines should not short of

their logical reach by invocation of creeds, cults or

inner sense of incongruity or outer sense of

motivation for or resultant of the economic

operations. The ideology of the Act being industrial

peace, regulation and resolution of industrial

disputes between employer and workmen, the range

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3537

of their statutory ideology must inform the reach of

the statutory definition. Nothing less, nothing more.

(a)

The consequences are (i) profession, (ii) clubs

(iii) education institutions, (iv) co-operatives

(v) research institutes, (vi) charitable projects

and (vii) other kindered adventures, if they

fulfil the triple tests listed in 1(supra), cannot

be exempted from the scope of section 2(j).

(b)

A restricted category of professions, clubs,

co-operatives and even gurukulas and little

research labs may qualify for exemption if in

simple ventures, substantially, and going by

the dominant nature criterion, substantively

no employees are entertained but in menial

matters, marginal employees are hired without

destroying the non employee character of the

unit.

(c)

If, in a pious or altruistic mission many employ

themselves, free or for small honoraria or like

return, mainly drawn by sharing in the purpose

or cause, such as lawyers volunteering to run

a free legal services clinic or doctors serving

in their spare hours in a free medical centre or

ashramites working at the bidding of the

holiness, divinity or like central personality,

and the services are supplied free or at nominal

cost and those who serve are not engaged for

remuneration or on the basis of master and

servant relationship, then, the institution is

not an industry even if stray servants, manual

or technical, are hired. Such eleemosynary or

like undertakings alone are exempt not other

generosity, compassion, developmental

passion or project.

IV.

The dominant nature test:

(a)

Where a complex of activities, some of which

qualify for exemption, other not, involves

employees on the total undertaking, some of

whom are not “workmen” as in the University

of Delhi case (AIR 1963 S.C.1873) or some

departments are not productive of goods and

services if isolated, even then, the

predominant nature of the services and the

integrated nature of the departments as

explained in the Corporation of Nagpur (AIR

1960 S.C.657) will be the true test. The whole

undertaking will be industry although those

who are not “workmen” by definition may not

benefit by the status.

(b)

Notwithstanding the previous clauses,

sovereign functions, strictly understood

(alone) qualify for exemption, not the welfare

activities or economic adventures undertaking

by Govt. or statutory bodies.

(c)

Even in the departments discharging

sovereign functions, if there are units which

are industries and they are substantially

severable, then they can be considered to come

within section 2(j).

(d)

Constitutional and competently enacted

legislative provisions may remove from the

scope of the Act categories which otherwise

may be covered thereby.

We overrule Safdarjung (AIR 1970 S.C.1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana (AIR

1968 S.C. 554), Delhi University (AIR 1963 S.C.1873),

Dhanrajgiriji Hospital (AIR 1975 SC 2032) and other

rulings whose ratio runs counter to the principles

enunciated above, and the Hospital Mazdoor Sabha

(AIR 1960 SC 610) is hereby rehabilitated.”

13.

Principles laid down in Bangalore Water Supply &

Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The management agitates that it is not an industry. The

view point held by the management is that no profit motive

activities are being carried on by it. No business is being

run, hence the management cannot be termed as an

‘industry”. Except the facts referred above, the management

nowhere projects any other factors to lay emphasis on the

fact that it is not an ‘industry’.

14.

Whether granting of patents on new non obvious

inventions would fall within the ambit of material services

to the society? Legal precedents would through light on

the above proposition. In Ahmedabad Textile Industry’s

Research Association [1960 (2) LLJ 720] the Association

was established to carry on research with respect to the

textile industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were held to

be “material services” to the textile industry hence the

Association answered the definition of industry. But in

Safdarjung Hospital case (supra) it was not held to be an

industry because it was a non-profit making body and its

work was in the nature of training, research and treatment.

In Indian Standard Institute [1966 (1) LLJ 33] the Apex

Court suggested that in order to be recognized as an

undertaking analogous to trade or business, the activity

must be an economical activity in the sense that it is

productive of material goods or material services. In

Bangalore Water Supply and Sewerage Board (supra), the

Apex Court laid down that an activity systematically or

habitually undertaken for production or distribution of

goods or for rendering material services to the community

at large or a part of such community with the help of

employees is an undertaking. An ‘industry’ thus was said

to involve cooperation between the employer and

employees for the object of satisfying material human

needs but not for oneself nor for pleasure nor necessity

for profit. Lack of business and profit motive or capital

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[PART II—SEC. 3(ii)]

investment would not take out an activity from the sweep

of ‘industry’, if other conditions are satisfied. It is the

activity in question which attracts the definition and

absence of investment of any capital or the fact that the

activity is conducted for profit motive or not, would not

make material difference. Conversely mere existence of

profit motive will not necessarily convert the activity into

“industry’ if other tests are not satisfied.

15.

One may project that the management carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry”? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court

observed that it could not have been in contemplation of

the legislature to bring in the regal functions of the State

within the definition of “industry” and to confer jurisdiction

on Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumbrated the test:

can such activity be carried on by a private individual or

group of individuals? The answer to this is : if a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while

if it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions,

strictly understood, (alone) qualify for exemption, not the

welfare activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

16.

In Physical Research Laboratory [1997 (2) LLJ 625]

the Apex Court held that the Physical Research Laboratory

is not an ‘industry’ because it is not engaged in an activity

which can either be called business, trade or

manufacturing or it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as it is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not

rendering any services to others. It is engaged in pure

research in space science.

17.

While reaching the conclusion, referred above, the

Apex Court relied observations made in Bangalore Water

Supply (supra) with respect to research institutes, which

observations are extracted thus:

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists,

para-scientists and other personnel. Is scientific

research service? Undoubtedly it is. Its discoveries

are valuable contributions to the wealth of the

nation. Such discoveries may be sold for a heavy

price in the industrial or other markets. Technology

has to be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recorded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratified and grateful earth,

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industries and the nation in terms of

goods and services and wealth. It follows that

research institutes, albeit run without profit-motive,

are industries”.

18.

In the light of the above legal proposition, facts of

the present controversy are to be scanned. Admittedly,

the functions performed by the management do not fall

within the ambit of administration of justice, maintenance

of order, repression of crime, security of borders from

external aggression and legislative powers of the State.

Activities carried out by the management cannot be

described as regal or sovereign activities, since such

activities could be carried out by private individuals or

group of individuals.

19.

As projected by the management, it grants patents

on new non-obvious inventions, which act answers

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3539

ingredents of rendering service to the community at large.

Its activities are systematic, performed with co-operation

between the management and its employees. Activities

performed by the management renders service to the

community at large. Therefore, it is evident that the triple

test of industry as propounded in Bangalore Water and

Sewerage Board (supra) stand satisfied in the present case.

It does not lie in the mouth of the management to claim

that it is does not fall within the ambit of “industry” as

defined in section 2(j) of the Act. Mere absence of profit

motive will not necessarily push the activity out of the

pale of industry, as defined by the Act. Resultantly, it is

concluded that activities performed by the management

falls within the ambit of “industry” as defined under

section 2(j) of the Act. The issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 2

20.

In his affidavit Ex.WW1/A, tendered as evidence,

the claimant highlights that he was engaged as a casual

labour/daily wager from 04.08.2006 initially for a period of

89 days. He was deputed by the management for carrying

out works relating to shifting of office from Patel Nagar to

Dwarka. He continued to perform his duties with utmost

dedication and to entire satisfaction of his superiors.

Ms. Suresh Singhal unfolds in her affidavit Ex.MW1/A,

tendered as evidence, that the the management has been

engaging services of daily wagers for various jobs.

Claimant was engaged on daily wage basis. From tone

and tenor of her testimony it is obvious that the claimant

was engaged by the management for manual work.

21.

When facts unfolded by the claimant and those

detailed by Ms. Suresh Singhal are appreciated in the light

of the documents proved by the parties, it came over the

record that the claimant was engaged as a casual labour

for manual work. Question for consideration would be as

to whether the claimant can be termed as workman? For

an answer to this proposition, it would be expedient to

have a glance on definition of the term ‘workman’, enacted

by section 2(s) of the Act. For sake of convenience,

definition of term ‘workman’ is reproduced thus:

“2(s) Workman means any person (including an apprentice)

employed in any industry to do any manual, unskilled,

skilled, technical, operational, clerical or supervisory work

for hire or reward, whether the terms of employment be

express or implied, and for the purposes of any proceeding

under this Act in relation to an industrial dispute includes

any such person who has been dismissed, discharged or

retrenched in connection with, or as a consequence of

that dispute, or whose dismissal, discharge or

retrenchment has led to that dispute, but does not include

any such person –

(i)

who is subject to the Air Force Act, 1950 (45 of 1950),

or the Army Act 1950(46 or 1950) or the Navy Act,

1957 (62 of 1957), or

(ii)

who is employed in the police service or as an officer

or other employee of a prison, or

(iii)

who is, employed mainly in a managerial or

administrative capacity, or

(iv)

who, being employed in a supervisory capacity,

draws wages exceeding one thousand six hundred

rupees per mensem or exercises, either by the nature

of the duties attached to the office or by reason of

the powers vested in him, functions mainly of a

managerial nature”.

22.

The first part of the definition gives statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an “industry” to do any

manual, unskilled, skilled, technical, operational, clerical

or supervisory work for hire or reward. This part determines

what a “workman” means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with

an industrial dispute, or (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the

definition of “workman”. This part gives extended

connotation to the expression “workman”. The third part

specifically excludes the categories of persons specified

in clauses (i) to (iv) of this sub section. The third part

connotes that even if a person satisfies the requirements

of any of the first two parts but if he falls in any of the four

categories in the third part, he shall be excluded from the

definition of ‘workman’. Not only the persons who are

actually employed in an industry but also those who have

been discharged, dismissed or retrenched in connection

with or as a consequence of an industrial dispute, and

whose dismissal, discharge or retrenchment has lead to

that dispute, would fall within the ambit of the definition.

In other words, the second category of persons included

in the definition would fall in the ambit of the definition,

only for the purpose of any proceedings under the Act in

relation to an industrial dispute and for no other purposes.

Therefore, date of reference is relevant and in case a person

falls within the definition of workman on that day, the

Tribunal would be vested with jurisdiction to entertain it

and the jurisdiction would not cease merely because

subsequently the workman ceases to be workman.

23.

For an employee in an industry to be a workman

under this definition, it is manifest that he must be employed

to do skilled or unskilled manual work, supervisory work,

technical work or clerical work. If the work done by an

employee is not of such a nature, he would not be a

workman. The specification of the four types of work

obviously is intended to law down that an employee is to

become a workman only if he is employed to do work of

one of those types, while there may be employees who,

not doing any such work, would be out of the scope of the

word ‘workman’, without having resort to the exceptions.

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[PART II—SEC. 3(ii)]

It cannot be held that every employee of an industry was

to be a workman except those mentioned in the four

exceptions as in that case these four classifications need

not have been mentioned in the definition and a workman

could have been defined as a person employed in an

industry except in cases where he was covered by one of

the exceptions.

24.

In cases where an employee is employed to do purely

skilled or unskilled manual work, or supervisory work or

technical work or clerical work there would be no difficulty

in holding him to be a workman under the appropriate

classification. Frequently, however, an employee is

required to do more than one kind of work. In such cases,

it would be necessary to determine under which

classification he will fall for the purpose of finding out

whether he does not go out of the definition of ‘workman’

under the exceptions. The principle is now well settled

that , for this purpose, a workman must be held to be

employed to do that work which is the main work he is

required to do even though he may incidentally doing

other type of work.

25.

When facts of the present controversy are assessed

on the above proposition of law, it emerges that the

claimant was engaged as casual labour to do manual

unskilled work. The management nowhere disputes that

the claimant was performing manual unskilled work, while

working as casual labour. Work performed by the claimant

clothes him with the status of a workman, as projected

under section 2(s) of the Act. Therefore, these facts make

me to comment that the claimant was a workman within

the meaning of section 2(s) of the Act. The issue is,

therefore, answered in favour of the claimant and against

the management.

Issue No. 3

26.

Question for consideration comes as to whether

order dated 21.04.2010 passed by the CAT operate as

resjudicata? Whether the order, referred above, would

preclude the claimant from re-agitating that very issue?

For an answer it would be considered as to whether the

order, passed by the CAT, precludes the claimant from

raising that very issue before this Tribunal. For an answer

legal principles are to be taken note of Section 11 of the

Code of Civil Procedure 1908 (in short the Code) embodies

the doctrine of res-judicata or the rule of conclusiveness

of a judgment, as to the point decided either of fact, or of

law, or of fact and law, in every subsequent suit between

the same parties. It enacts that once a matter is finally

decided by a competent court, no party can be permitted

to reopen it in a subsequent litigation. The doctrine of res-

judicata has been explained in the simplest possible manner

by Das Gupta J. in the case of Statyadhyan Ghosal Vs.

Deorajin Debi (AIR 1960 S.C. 941) in the following words:

“The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-is judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter – whether on a

question of fact or a question of law – has been

decided between two parties in one suit or

proceeding and the decision is final, either because

no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to convass the matter

again”.

27.

It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in the

subsequent suit must be the same matter which

was directly and substantially in issue either actually

or constructively in the former.

The former suit must have been a suit between the

same parties or between parties under whom they or

any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court which decided the former suit must be a

court competent to try the subsequent suit or the

suit in which such issue is subsequently raised.

The matter directly and substantially in issue in the

subsequent suit must have been heard and finally

decided by the court in the former suit.

28.

Section 11 of the Code bars trial of any suit as well

as an issue which had been decided in a former suit. Issue

are of three kinds: (i) Issue of fact; (ii) Issue of law ; and

(iii) Mixed issues of law and fact. A decision on an issue

of fact, however erroneous it may be, constitutes res

judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad Vs. Dossibai [1970(1)

SCC 613]. A mixed issue of law and fact also, for the same

reasons, operates as res-judicata.

29.

To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent

to try the subsequent suit, will not operate as res judicata.

The expression “competent to try” means “competent to

try the subsequent suit if brought at the time the first suit

was brought”. In other words, the relevant point of time

for deciding the question of competence of the court is

the date when the former suit was brought and not the

date when the subsequent suit was filed. In order that a

decision in a former suit may operate as res-judicata, the

court which decided that suit must have been either –(a) a

court of exclusive jurisdiction, or (b) a court of limited

jurisdiction; or (c) a court of concurrent jurisdiction.

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30.

For articulation of an industrial dispute, the labour

court or an industrial tribunal exercise adjudicatory

jurisdiction. Task of an industrial adjudicator is tedious,

who has to reconcile the head-on clash between the

fundamental rights guaranteed by the constitution such

as freedom of trade, freedom to practice any profession or

to carry on any occupation and the directive principles

enshrined in the constitution which are fundamental in

the governance of the country. He has also the delicate

task of balancing the conflicting interest of employer,

employee and the public on very basic policies, such as,

freedom and sanctity of contract, protection of business,

right to work, making training available to employees,

earning of livelihood for oneself and family, utilization of

one’s skill and talent, continued productivity, betterment

of one’s status, avoidance of one’s becoming a public

charge, encouragement of competition and development

of national and international trade and avoidance of

monopoly, promotion of collective bargaining and

elimination of indiscipline in industry and so on. Questions

on above issues are to be adjudicated by an industrial

adjudicator. Though the constitution has vested powers

of judicial review in High Courts and invested it with power

to sit in appeal over the awards of industrial tribunals, yet

industrial tribunals are courts of exclusive jurisdiction on

the matters, which are referred to them by the appropriate

Government under section 10 of the Act.

31.

In Nawab Hussain, (1977 Lab. I.C.911), the Apex

Court enunciated general principles of doctrine of res-

judicata as under:

“The principle of estoppel per res-judicata is a rule of

evidence. As has been stated in Marginson v. Blackburn

Borough Council(1939 (2) KB 426 at P.437) it may be said

to be “the broader rule of evidence which prohibits the

reassertion of a cause of action.” This doctrine is based

on two theories: (i) the finality and conclusiveness of

judicial decisions for the final termination of disputes in

the general interest of the community as a matter of public

policy, and (ii) the interest of the individual that he should

be protected from multiplication of litigation. It, therefore,

serves not only a public but also a private purpose by

obstructing the reopening of matters which have once

been adjudicated upon. It is thus not permissible to obtain

a second judgment for the same civil relief on the same

cause of action, for otherwise the spirit of contentiousness

may give rise to conflicting judgments of equal authority,

lead to multiplicity of actions and bring the administration

of justice into disrepute. It is the cause of action which

gives rise to an action, and that is why it is necessary for

the courts to recognize that a cause of action which results

in a judgment must lose its identity and vitality and merge

in the judgment when pronounced. It cannot therefore

survive the judgment, or give rise to another cause of

action on the same facts. This is what is known as the

general principle of res-judicata.”

32.

Whether CAT is competent to try an industrial

dispute? Answer to this proposition would emerge out of

section 14 of the Administrative Tribunal Act, 1985, which

contemplates that the CAT shall exercise jurisdiction,

powers and authority in relation to recruitment and matters

concerning any civil services or civil post in the Union.

For sake of convenience, provisions of sub-section (1) of

section 14 of the Administrative Tribunal Act, 1985 are

extracted thus:

“14(1) Save as otherwise expressly provided in this

Act, the Central Administrative Tribunal shall

exercise, on and from the appointed day, all the

jurisdiction, powers and authority exercisable

immediately before that day by all courts except the

Supreme Court in relation to—

(a) recruitment, and matters concerning recruitment,

to any All India Service or to any civil service of the

Union or a civil post under the Union or to a post

connected with defence or in the defence services,

being, in either case, a post filled by a civilian;

(b) all service matters concerning—

(i)

a member of any All India Service; or

(ii)

a person, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any civil service of the Union or

any civil post under the Union; or

(iii)

a civilian, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any defence services or a post

connected with defence, and pertaining to the

service of such member, person or civilian, in

connection with the affairs of the Union or of

any State or of any local or other authority

within the territory of India or under the control

of the Government of India or of any

corporation or society owned or controlled

by the Government;

connection with the affairs of the Union concerning

a person appointed to any service or post referred

to in sub- clause (ii) or sub- clause (iii) of clause (b),

being a person whose services have been placed by

a State Government or any local or other authority

or any corporation or society or other body, at the

disposal of the Central Government for such

appointment”.

33.

Section 28 of the Administrative Tribunals Act, 1985

projects that an Industrial Tribunal, Labour Court or other

authority constituted under the Act shall exercise

jurisdiction in respect of service conditions and matters

contained in the Act. For sake of convenience, provisions

of the said section are reproduced thus:

“28. ‘On and from the date from which any

jurisdiction, powers and authority becomes

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exercisable under this Act by a Tribunal in relation

to recruitment and matters concerning recruitment

to any service or post or service matters concerning

members of any service or persons appointed to

any service or post, no court except-

(a)

the Supreme Court; or

(b)

any Industrial Tribunal, Labour Court or other

authority constituted under the Industrial

Disputes Act, 1947 or any other corresponding

law for the time being in force, shall have or be

entitled to exercise any jurisdiction, powers

or authority in relation to such recruitment or

matters concerning such recruitment or such

service matters.”

34.

The above provisions make it apparent that though

CAT shall exercise all jurisdiction, powers and authority

in relation to recruitment to any civil service or post under

the Union or to a post connected with defence or in the

defence services, in either case, a post filled by a civilian,

yet an Industrial Tribunal constituted under the Act shall

have jurisdiction in relation to recruitment and matters

concerning recruitment, in service or post or services

matters concerning any person who falls within the ambit

of the Act. Therefore, on plain reading of section 28 of the

aforesaid Act, it emerges that the CAT exercises concurrent

jurisdiction with an Industrial Tribunal or Labour Court,

constituted under the Act in relation to recruitment and

matters concerning recruitment to any service or post or

service matters concerning any person, who falls within

the ambit of workmen as defined under the Act.

35.

Whether civil court has jurisdiction in relation to

industrial dispute, the Apex Court dealt with the matter in

Premier Automobiles [1976(1) SCC 496]. On consideration

of catena of decisions on the subject, the Apex Court

enunciated following principles:

“(1) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right under

the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out

of a right or liability under the general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election of

the suitor concerned to choose his remedy for the

relief which is competent to be granted in particular

remedy.

(3) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suitor is to get

an adjudication under the Act.

(4) If the right which is sought to be enforced is a

right created under the Act such as Chapter VA then

the remedy for its enforcement is either section 33C

or the raising of an industrial dispute, as the case

may be.

We may, however, in relation to principle 2 stated

above hasten to add that there will hardly be a

dispute which will be an industrial dispute within

the meaning of section 2(k) of the Act and yet will be

one arising out of a right or liability under the general

or common law only and not under the Act. Such a

contingency, for example, may arise in regard to the

dismissal of an unsponsored workman which in view

of the provision of law contained in Section 2A of

the Act will be an industrial dispute even though it

may otherwise be an individual dispute. Civil Courts,

therefore, will have hardly an occasion to deal with

the type of cases falling under principle 2. Cases of

industrial disputes by and large, almost invariably,

are bound to be covered by principle 3 stated

above.”

36.

While analysing principles adumbrated in Premier

Automobiles (supra), the Apex Court in Rajasthan State

Road Transport Corporation [1995(5) SCC 75] summarised

those principle as follows:

“(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

“industrial dispute’’ within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of right and

obligations created by enactment like Industrial

Employment (Standing Orders) Act, 1946 - which

can be called “sister enactments” to Industrial

Disputes Act-and which do not provide a forum for

resolution of such disputes, the only remedy shall

be to approach the forums created by the Industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an industrial dispute or says that it shall

be adjudicated by any of the forums created by the

Industrial Disputes Act. Otherwise, recourse to civil

court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the Government is to be

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exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the Government is entitled to

examine whether the dispute is ex facie frivolous,

not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

recommend to Parliament and the State Legislatures

to make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly- i.e.,

without the requirement of a reference by the

Government in case of industrial disputes covered

by Section 2-A of Industrial Disputes Act. This would

go a long way in removing the misgivings with

respect to the effectiveness of the remedies provided

by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to “statutory provisions”. Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created

by the Industrial Disputes Act or the civil court where

recourse to civil court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute-resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and unencumbered by the plethora of

procedural laws and appeals upon appeals and

revisions applicable to civil courts. Indeed, the

powers of the courts and tribunals under the

Industrial Disputes Act are far more extensive in the

sense that they can grant such relief as they think

appropriate in the circumstances for putting an end

to an industrial dispute.

37.

As detailed above, the Apex Court ruled that when

a dispute involves recognition, observance or enforcement

of any of the rights or obligations created by the Act, the

only remedy is to approach the forums created by the Act

only. For adjudication of an industrial dispute, which falls

within the ambit of the Act, the CAT does not have any

jurisdiction. It is obvious that provisions of section 28 of

the Administrative Tribunals Act, 1985 are in contradiction

to the law laid down by the Apex Court, when it relates to

exercise of jurisdiction, powers or authority in relation to

recruitment or matters concerning such recruitment or

conditions of service of any person, who happens to be a

workman within the meaning of section 2(s) of the Act.

This proposition was considered by the CAT in its decision

in A. Padmavalley etc. [1991(1) SLR 245] wherein

proposition of law laid in Premier Automobile (supra),

provisions of the Act as well as provisions of

Administrative Tribunals Act, 1985 were construed and it

was ruled that the CAT is not a substitute for the

authorities constituted under the Act and does not exercise

concurrent jurisdiction in regard to matters covered by

the Act. The CAT concluded the proposition as follows:

(i)

Administrative Tribunal constituted in the

Administrative Tribunals Act are not substitutes for

the authorities constituted under the Industrial

Tribunals Act and hence the Administrative Tribunal

does not exercise concurrent jurisdiction with those

authorities in regard to matters covered by that Act.

Hence, all matters over which the Labour Court or

the Industrial Tribunal or other authorities had

jurisdiction under the Industrial Disputes Act, do

not automatically become vested in the

Administrative Tribunal for adjudication. The

decision in the case of Sisodia, which lays down a

contrary interpretation is, in our opinion, not correct.

(ii)

An applicant seeking relief under the provisions of

the Industrial Disputes Act must ordinarily exhaust

the remedies available under that Act.

(iii)

The powers of the Adminstrative Tribunal are the

same as that of the High court under Article 226 of

the Constitution and the exercise of that

discretionary power would depend upon the facts

and circumstances of each case as well as on the

principles laid down in the case of Rohtas Industries

(supra).

(iv)

The interpretation given to the term ‘arrangement in

force’ by the Jabalpur Bench in Rammoo’s case is

not correct.”

38.

In view of the legal principles laid above, it is evident

that CAT does not exercise concurrent jurisdiction with

this Tribunal in regard to rights and obligations arising

out of the Act. Resultantly, it is crystal clear that the CAT

is not competent to adjudicate the industrial dispute, and

as such order passed by it in OA No.1138 of 2010 on

21.04.2010 would not operate as res judicata. Submissions

made by Shri Bhardwaj, to the effect that the claimant

cannot re-agitate the very issue, which was adjudicated

by the CAT vide order dated 21.4.2010, are untenable. Issue

is, therefore, answered in favour of the claimant and

against the management.

Issue No. 4.

39.

For seeking protection under section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub section (1) of section 25B

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of the Act. Sub-section (2) of the said section introduces

a fiction to the effect that even if a workman is not in

“continuous service” within the meaning of clause (1) for

a period of one year or six months, he shall be deemed to

in continuous service for that period under an employer if

he has actually worked for the days specified in clauses

(a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enquiry

has to be made to find out whether the workman actually

worked for not less than 240 days during the period of 12

calendar months immediately preceding the retrenchment.

40.

In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus:

“Under section 25-B a workman, who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days, is to be

deemed to have completed one year’s service in the

industry. Consequently an enquiry has to be made

to find out whether the workman had actually worked

for not less than. 240 days during period of 12

calendar months immediately preceding the

retrenchment. These provisions of law do not show

that a workman after satisfying the test under section

25B has further to show that he has worked during

all the period he has been in the service of the

employer for 240 days in the year”.

41.

Interruption of service occurred during the course

of job has to be included in uninterrupted services. Fiction

under section 25-B of the Act will operate if workman

has actually worked for 240 days in a calendar year. The

explanation appended to section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

sundays and saturdays for which full wages are paid.

The Apex Court was confronted with such a proposition

in American Express Banking Corporation [1985 (2) LLJ

539], wherein it was ruled that the expression ‘actually

worked under the employer’. cannot mean those days only

when the workman worked with hammer, sickle or pen, but

must necessarily comprehend all those days during which

he was in the employment of the employer and for which

he had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that sundays and other

holidays, would be comprehended in the words ‘actually

worked” and it countenanced the contention of the

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

had actually worked though he had not so worked and no

other days. The Court observed that the explanation is

only clarificatory, as all explanations are, and cannot be

used to limit the expanse of the main provision. Precedent

in Lalappa Lingappa [1981 (1) LJ 308] was distinguished

by the Apex Court in the case referred above. The

precedent was followed in Standard Motor Products of

India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from

the law laid above that sundays and holidays shall be

included in computing continuous service under section

25-B of the Act.

42.

The claimant unfolds that he was initially engaged

by the management on 04.08.2006 as daily wager. He

continuously performed his duties till 30.03.2009. He

rendered continuous service with the management for the

period referred above. On this issue, Ms. Suresh Singhal

projects that the claimant was engaged at different

intervals, which spells have been reproduced in chart

Ex.MW1/11. According to her, sundays and holidays were

not counted while reckoning period for which claimant

worked with the management. When Ex.MW1/11 is

scanned, it came to light that in preceding 12 months from

31.03.2009, the date when his services were dispensed

with, claimant had rendered continuous service of 257

days. He had rendered 201 days service in preceding 12

months from April 2008. Period of service, rendered by the

claimant, as detailed above, nowhere includes sundays

and holidays. In a year, an employee may get 52 weekly

offs, besides three national holidays. In case 52 weekly

offs and three national holidays are added to the periods

referred above, in the year reckoned from April 2008 to

March 2007, he reaches notional figure of 240 days, to

claim continuous service for a period of one year. Thus

the claimant could show that he served for a period of two

years continuously, as contemplated by provisions of

section 25B of the Act. Issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 5

43.

An employer may discharge a portion of his labour

force as surplusage in a running or continuing business

for variety of reasons, e.g., for economy, convenience,

rationalization in industry, installation of a new labour

saving machinery etc. The Act defines “termination by

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the employer of the service of a workman for any reasons

whatsoever”, except the categories exempted in sub-

section 2(oo), to be retrenchment. The definition of the

term “retrenchment”, as enacted by the Act, is extracted

thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include-

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb) termination of the services of the workman as

a result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation

in that behalf contained therein; or

(c)

termination of the services of a workman on

the ground of continued ill-health”.

44.

Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer “for any reason whatsoever”

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement

of workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. [1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

45.

Section 25F of the Act lays down conditions pre-

requisite to retrenchment, which are as follows:

(i)

There should be one month’s notice in writing to

the workman concerned.

(ii)

The notice should specify the reasons for

retrenchment.

(iii)

The period of one month’s notice should have expired

before retrenchment is enforced, or the workman

has been paid in lieu of such notice the wages for

the period.

(iv)

The workman has been paid retrenchment

compensation which should be equivalent to 15

days’ average pay for every one years’ service or

any part thereof provided it exceeds six months.

(v)

The notice is also given to the appropriate

Government.

46.

On turning to fact it came to light that the claimant

projects that his services were dispensed with on

30.03.2009. In that regard, Ms.Singhal projects that the

claimant was not engaged any further with effect from

30.03.2009. It is not the case of the management that the

claimant was well aware that his engagement was for a

specified period and would come to an end on expiry of

the period, so specified in his engagement order. Exception

contained in sub-clause (bb) of sub -section (oo) of section

2 of the Act is not applicable to his case. For applicability

of sub -clause (bb) of sub- section (oo) of section 2 of the

Act the management is under an obligation to establish

following counts:

(i)

that the workman was employed in a project or

scheme of temporary duration;

(ii)

the employment was on a contract, and not as a

daily-wager simpliciter, which provided inter alia that

the employment shall come to an end on the expiry

of the scheme or project; and the employment came

to an end simultaneously with the termination of the

scheme or project and consistently with the terms

of the contract.

47.

When facts unfolded by Ms.Singhal are scanned, it

came to light that the claimant was not employed in a

project or a scheme of temporary duration. He was not

employed on a contract of specified duration. As per the

case of the management, he was a daily wager simpliciter.

These facts make it clear that action of disengaging the

claimant does not fall within the exception created by either

main clause or exception contained in second limb of

section 2(oo) of the Act. Therefore, dispensing with

services of the claimant for any reason whatsoever would

amount to retrenchment.

48.

Admittedly, no notice for a period of one month or

pay in lieu thereof was given to the claimant, as testified

by Ms. Singhal. No retrenchment compensation was paid

to him at that time. Thus it is evident that services of the

claimant were retrenched without payment of notice pay,

and retrenchment compensation. It is well settled that in a

case of wrongful retrenchment, dismissal or discharge,

the normal rule is to award reinstatement. But where a

case falls in any of the exception to general rule, the

industrial adjudicator has discretion to award reasonable

and adequate compensation, in lieu of re-instatement.

Section 11A of the Act vests the industrial adjudicator

with discretionary jurisdiction to give “such other relief to

the workman” in lieu of discharge or dismissal as the

circumstances of the case may require, where for some

valid reasons it considers that reinstatement with or

without conditions will not be fair or proper.

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49.

In Uma Devi [2006 (4) SCC I] the Apex Court

considered the proposition as to whether the persons who

got employment, without following of a regular procedure

or even from the back door or on daily wages can be

ordered to be made permanent in their posts, to prevent

regular recruitment to the posts concerned. Catena of

decisions over the subject were considered and the court

declined the submissions of the workmen to be made

permanent on the posts which were held by them in

temporary or ad-hoc capacity for a fairly long spell. The

Court ruled thus:

“With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insists on the State making regular

and proper recruitments, and is bound not to

encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment. The

direction to make permanent the distinction between

regularization and making permanent, was not

emphasized here can only encourage the State, the

model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many

waiting to compete. With respect the directions made

in Piara Singh [1992(4) SCC 118] is to some extent

inconsistent with the conclusion in para 45 of the

said judgement therein. With great respect, it appears

to us that the last of the directions clearly runs

counter to the constitutional scheme of employment

recognized in the earlier part of the decision. Really,

it cannot be said that this decision has laid down

the law that all ad-hoc, temporary or casual

employees engaged without following a regular

recruitment procedure should be made permanent”.

50.

Taking note of some of recent decisions, the Apex

Court held that the State does not enjoy a power to make

appointments in terms of Article 162 of the Constitution.

The Court quoted its decision in Girish Jyanti Lal Vaghela

[2006 (2) SCC 482] with approval, wherein it was rule thus.

“The appointment to any post under the State can

only be made after a proper advertisement has been

made inviting applications from eligible candidates

and holding of a selection by a body of experts or a

specially constituted committee, whose members are

fair and impartial, through a written examination or

interview or some other rational criteria for judging

the inter se merit of candidates, who have applied in

response to the advertisement made. A regular

appointment to the post under the State or Union

cannot be made without issuing advertisement in

the prescribed manner which may in some cases

include inviting applications from the employment

exchange, where eligible candidate get their names

registered. Any regular appointment made on a post

under the State or Union without issuing

advertisement inviting applications from eligible

candidates and without holding a proper selection

where all eligible candidates get a fair chance to

compete would violate the guarantee enshrined

under Article 16 of the Constitution”.

51.

In P.Chandra Shekhara Rao and Others [2006 (7) SCC

488] the Apex Court referred Uma Devi’s Case (supra) with

approval. It also relied the decision in a Uma Rani [2004 (7)

SCC 112] and ruled that no regularization is permissible in

exercise of statutory powers conferred in Article 162 of

the Constitution, if the appointments have been made in

contravention of the statutory rules. In Somveer Singh

[2006 (5) SCC 493] the Apex Court ruled that appointment

made without following due procedure cannot be

regularized. In Indian Drugs and Pharmaceuticals Ltd.

[2007 (1) SCC 408] the Apex Court reiterated the law and

announced that the rules of recruitment can not be relaxed

and court can not direct regularisation of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

52.

In Uma Devi (supra) it was laid that “when a person

enters a temporary employment or get engagement as

contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed for the post,

when an appointment to the post could be made only by

following a proper procedure or selection in any concerned

cases, in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of

those precedent neither continuance nor regularisation of

services of the claimants can be ordered, since it would

amount to back door entry into Government job”.

53.

Whether the claimant was back door entrant ?

Answer lies in negative. As per facts, unfolded by the

management, name of the claimant was sponsored by the

employment exchange. Provisions of Employment

Exchanges (Compulsory Notification of Vacancies) Act,

1959 casts obligation on an employer to notify vacancies

to an employment exchange, before filling vacancies in

any employment in its establishment. Section 3 of that Act

¹Hkkx II—[k.M 3(ii)º

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3547

enlists certain vacancies to which it does not apply.

Provisions of the said section are detailed as follows:

“3. Act not to apply in relation to certain vacancies.-

(1) This Act shall not apply in relation to vacancies.-

(a)

in any employment in agriculture (including

horticulture) in any establishment in private

sector other than employment as agricultural

or farm machinery operatives;

(b)

in any employment in domestic service ;

(c)

in any employment the total duration of which

is less than three months;

(d)

in any employment to do unskilled office work;

(e)

in any employment connected with the staff

of Parliament.

(2) Unless the Central Government otherwise directs

by notification in the Official Gazette in this behalf,

this Act shall not also apply in relation to-

(a)

vacancies which are proposed to be filled

through promotion or by absorption of surplus

staff of any branch or department of the same

establishment or on the result of any

examination conducted or interview held by,

or on the recommendation of, any independent

agency, such as the Union or a State Public

Service Commission and the like;

(b)

vacancies in any employment which carries a

remuneration of less than sixty rupees in a

month”.

54.

Clause (i) of section 2 of that Act gives definition of

“unskilled office work” wherein an employee doing any

routine work or unskilled work has been included. For

convenience sake the said definition is extracted thus:

“Unskilled office work” means work done in an

establishment by any of the following categories of

employees, namely, -

(1)

daftri,

(2)

jamadar, orderly and peon;

(3)

dusting man or farash;

(4)

bundle or record lifter ;

(5)

process server;

(6)

watchman;

(7)

sweeper;

(8)

any other employee doing any routine or

unskilled work which Central Government

may, by notification in the Official Gazette,

declare to be unskilled office work”.

55.

As projected above provisions of that Act are not

applicable to vacancies relating to “unskilled office work”.

The object of the aforesaid Act is not to restrict, but to

enlarge field of choice so that employer may choose best

and most efficient and to provide an opportunity to the

worker to have his claim for appointment considered

without having to knock at every door for employment.

Office Memorandum No.114/11/64-Estt.(D) dated 21.3.64

was issued by Ministry of Home Affairs, Government of

India, emphasizing that all vacancies in Central Government

establishments, other than those filled through the Union

Public Service Commission, should be notified to the

nearest employment exchange and no department or office

should fill any vacancy by direct recruitment unless the

employment exchange certified that they were unable to

supply suitable candidates. Office memorandum No.14024/

2/77-Estt.(D) dated 12.4.77 was issued by Department of

Personnel and Training laying stress on proposition that

all vacancies arising in Central Government offices/

establishments (including quasi government institutions

and statutory organizations) irrespective of the nature and

duration other than filled from the U.P.S.C. are not only to

be notified, but also to be filled through the employment

exchange alone and other permissible source of recruitment

can be taped only if employment exchange concerned

issued a non availability certificate. There can be no

deviation from this recruitment procedure unless a different

arrangement in this regard has been previously agreed to

in consultation with the department of Personnel and

Training and Ministry of Labour.

56.

A gloss was put on these instructions by the Apex

Court in N. Hargopal [1987(3) SCC 308] wherein it was

ruled that the Government is at perfect liberty to issue

instructions to its own departments and organizations

provided the instructions do not contravene any

constitutional provision or any statute, these instructions

cannot bind other bodies which are created by statute

and which functions under the authority of statute. In the

absence of any statutory prescription the statutory

authority may, however, adopt and follow such

instructions if it thinks fit. The court concluded that in

case of public appointment it is necessary to eliminate

arbitrariness, favourtism and introduce uniformity of

standards and orderliness in the matter of employment.

There has to be an element of procedural fairness in

recruitment. If a public employer chooses to receive

applications for employment where and when he pleases,

and chooses to make appointment as he likes a grave

element of arbitrariness is certainly introduced. The Court

went on to say that in the absence of a better method of

recruitment any restriction that employment in Government

departments should be through the medium of employment

exchanges does not offend Article 14 and 16 of the

Constitution. Hence it emerges that above instructions

were affirmed by the Apex Court and the management was

bound to follow those instructions, in making an

engagement for the position of unskilled office work.

57.

These instructions were complied with by the

management when claimant was engaged by it. Thus

engagement of the claimant through employment exchange

was in consonance with the laid down procedure. It can

not be said that he was a back door entrant on the job.

Hence I say that the management could not show any

case where relief of reinstatement should be denied to the

claimant.

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[PART II—SEC. 3(ii)]

58.

As regards back wages, no evidence has been

brought to the effect that the claimant remained

unemployed. Therefore it seems not to be a case of grant

of full back wages. However no principles are available to

assess as to what amount of back wages should be

awarded. Principles for award of compensation is available

in some precedents, which are taken into account. In

S.S.Shetty [1957 (11) LLJ 696] the Apex Court indicated

some relevant factors which an adjudicator has to take

into account in computing compensation in lieu of

reinstatement, in the following words:

“The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party,

the possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future…. In computing

the money value of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefits etc. would be till he attained the age of

superannuation and the value of such benefits

would have to be computed as from the date when

such reinstatement was ordered under the terms of

the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathematical exactitude and the best that any

tribunal or court would do under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors

pro and con”.

59.

A Divisional Bench of the Patna High Court in

B.Choudhary Vs. Presiding Officer, Labour Court,

Jamshedpur [(1983) Lab.I.1755 (1758)] deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee’s age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer’s business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab.I.C.1887).

60.

In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that “it would be fair and just to direct the appellant a

substantial sum as compensation to her”. In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the

employee awarded by the industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K.Roy [1970 (1) LLJ 228] compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count

converted the award of reinstatement into compensation

of a sum of Rs. 50000 as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P.Bhandari [1986 (II) LLJ 509], the Apex Court

observed that it was a fit case for grant of compensation

in view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In

M.K.Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the

back salary to 50% of what would otherwise be payable to

the employee. In Yashveer Singh (1993 Lab.I.C.44) the

court directed payment of Rs.75000 in view of reinstatement

with back wages. In Naval Kishor [1984 (II) LLJ 473] the

Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj [1985 (II) LLJ 19] a sum of Rs.2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C.1225) a compensation of Rs. 2lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab.I.C.107) a compensation of Rs. 65000 was granted

in lieu of reinstatement, since the employee was gainfully

employed elsewhere. In V.V.Rao (1991 Lab.I.C.1650) a

compensation of Rs.2.50 lac was awarded in lieu of

reinstatement.

61.

As held in preceding sections the claimant could

show a case of reinstatement in the service of the

management with continuity. Accordingly it is ordered that

he shall be reinstated in service by the management.

Relying on principles of law laid for grant of compensation

and on consideration of facts in entirety it is held that the

claimant shall get 40% of his last drawn wages as back

wages for the period of interregnum. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dated : 1.4.2014

Dr. R.K. YADAV, Presiding Officer

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3549

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New Delhi, the 15th April, 2014

S.O. 1355.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 106/2012)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Controller General, Patent and Design

Trade Marks, patent Office and their workman, which was

received by the Central Government on 11/04/2014.

[No. L-42025/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. I, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 106/2012

Shri Rama Kant

S/o Late Sh. Ram Sagar,

R/o H.No. RZ-26-A/207,

J Block, Gali No. 6, West Sagarpur,

New Delhi.

...Workman

Versus

The Controller General

Patent and Design Trade Marks,

Through Assistant Controller of Patent and Design,

Patent Office, Baudhik Sampada Bhawan,

Dwarka, New Delhi-110078.

...Management

AWARD

The Controller General, Patents, Designs and Trade

Marks (hereinafter referred to as the management), is a

statutory body created under the provisions of the Indian

Patents Act, 1970 for granting patents on new non obvious

inventions. The management is a subordinate office of

the Ministry of Commerce & Industries, Government of

India, New Delhi. The management employed certain

persons through employment exchange to carry out job

of casual/ intermittent nature. The management terminated

services of one of the persons, so employed, namely, Shri

Rama Kant, without giving one month notice or pay in lieu

thereof and retrenchment compensation. This irked Shri

Rama Kant, who raised an industrial dispute before the

Conciliation Officer. His claim was contested by the

management, hence conciliation proceedings ended into

a failure. Since 45 days, from the date of moving an

application before the Conciliation Officer, expired Shri

Rama Kant opted to file his dispute before the Tribunal

using provisions of sub-section (2) of Section 2A of the

Industrial Disputes Act, 1947 (in short the Act), without

being referred for adjudication by the appropriate

Government under section 10(1)(d) of the Act.

Claim statement was filed by Shri Rama Kant

pleading that he was engaged as a casual labour/daily

wager by the management on 15.03.2007 through

Employment Exchange, North East District, Directorate of

Employment, Government of India, New Delhi. He initially

worked upto to 18.07.2007. He was again engaged on

08.08.2007. With an ulterior motive, the management gave

break on 1, 2, 3, 6, and 7 August 2007 and again engaged

him on 08.08.2007. He worked till 31.03.2009. He was regular,

sincere, obedient and hardworking in his duties, which

fact is corroborated by letter dated 22.12.2008 issued by

the management. He has completed 240 days continuous

service with the management. He was denied salary for

the months of December 2008, January 2009, February 2009

and March 2009. Instead of paying his legal dues, he was

prevented from performing his duties after 31.03.2009.

On 02.04.2009, a representation was made to the

management to allow him to rejoin duties since the person

deployed in his place was doing similar duties. However,

the management failed to consider his case. Thereafter,

under wrong legal advice, an OA No.1138/2010 was filed

before the Central Administrative Tribunal (in short the

CAT) which was withdrawn on 23.05.2012. No notice for

termination of his service was given. Action of termination

of his services is illegal and uncalled for. He is unemployed

since the date of termination of his service. He seeks

reinstatement in service with continuity and full back

wages.

Claim was demurred by the management pleading

that it is a statutory body under the Indian Patents Act,

1970 created for implementing provisions of the aforesaid

Act, for granting patents on new non-obvious inventions.

The management performs sovereign function and as such

does not carry out activities which can be considered as

trade or business. No activity, related to production,

distribution or supply of goods or services meant for

satisfying for human wants, is carried out and hence it is

not an industry. It is also pleaded that the claimant is not

a workman under the provisions of the Act. No appointment

letter or identity card was issued to the claimant. He was

engaged for casual work, which was to be performed

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THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

intermittantly. Such casual workers/labourers are neither

holders of civil post nor appointed to any sanctioned

regular post through proper procedure. They are neither

entitled for any pay or perks at par with holder of a civil

post nor can claim continuation of such engagement.

Further as per policy of the Government of India, manpower

for casual job is now outsourced on contract basis through

a private outsourcing agency. Certificate issued by the

management clearly indicates that the claimant worked as

a daily wager. He was called for receiving his outstanding

payment, which he refused to accept. Hence it was

deposited to Government accounts vide challan no.POD/

405/RC dated 29.07.2009 after completion of 90 days as

per Receipt and Payment Rules. Subsequently cheque for

Rs.10,354.00 has been issued to him in November 2012.

The management pleads that the claimant moved an

application before the CAT seeking relief of reinstatement

in service, which application was dismissed vide order

21.4.2010. He again filed an application, which was

dismissed as withdraw on 23.5.2010. The order passed by

the CAT operates as resjudicata. In view of these facts,

claimant is not entitled to any relief. His claim is liable to

be dismissed, pleads the management.

On pleadings of the parties, following issues were

settled:

(1)

Whether management is an ‘industry’ within the

meaning of section 2(j) of the Industrial Disputes

Act, 1947?

(2)

Whether the claimant is a ‘workman’ within the

meaning of section 2(s) of the Industrial Disputes

Act, 1947?

(3)

Whether orders dated 21.04.2010 passed by Central

Administrative Tribunal operates as resjudicata?

(4)

Whether claimant rendered continuous service of

240 days as contemplated by section 25B of the

Industrial Disputes Act, 1947?

(5)

Whether the claimant is entitled to relief of

reinstatement in service?

To discharge onus resting on him, the claimant

examined himself and closed his evidence. The

management examined Ms. Suresh Singhal to substantiate

its case.

Arguments were heard at the bar. Ms. Madhvi K.

Deva, authorized representative, advanced arguments on

behalf of the claimant. Shri Atul Bhardwaj, authorised

representative, raised submissions on behalf of the

management. Written submissions were also filed by the

parties. I have given my careful considerations to

arguments advanced at the bar and cautiously perused

the records. My findings on issues involved in the

controversy are as follows:-

Issue No. 1

At the outset, the management contends that it is

not an industry within the meaning of section 2(j) of the

Act. It is presented that management is a statutory body

under the Indian Patents Act, 1970 created for granting

patents on new non-obvious inventions. The said activity

is relatable to sovereign functions and cannot be termed

as industry. Shri Bhardwaj concludes that there is no

profit motive in granting patents, which fact would dispel

the contention that activities of the management fall within

the ambit of industry. On the other hand the claimant

asserts that the activities performed by the management

answer the definition of term “industry”, as enacted by

the Act.

10.

When claim is made by the management that it is

not an industry within the meaning of section 2(j) of the

Act, it becomes expedient to consider the definition of the

term ‘industry’. The Act defines the term ‘industry’ as

follows:

“2(j) ‘industry’ means any business, trade,

undertaking, manufacture or calling of employers

and includes any calling, service, employment,

handicraft, or industrial occupation or avocation of

workmen.”

11.

The definition of “industry” is both exhaustive and

inclusive. It is in two parts. The first part says that it

“means any business, trade, undertaking, manufacture or

calling of employers” and then goes to say that it “includes

any calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., business,

trade, undertaking, manufacture or calling. The second

part views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes. By this part of the definition any calling,

employment, handicraft, industrial occupation or

avocation of workmen is included in the concept of

industry. This part gives extended connotation.

12.

Gloss was put on the definition of word “industry”

by the High Courts and the Apex Court time and again.

The question as to what is “industry” has continuously

baffled and perplexed the courts. A graph of the cases

decided by the Apex Court, if plotted on the background

of the expression used in two parts of the definition of

“industry”, would represent rather a zig zag curve. There

have been various judicial ventures in this rather volatile

area of law. The decided cases show that the efforts were

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3551

made to evolve test by reference to characteristics regarded

as essential for constituting an activity as an “industry”.

Various cases would show that the Apex Court has been

guided more by empirical rather than a strictly analytical

approach. Most of the decision have centered around the

expression “undertaking” used in the definition. In

Bangalore Water Supply and Sewerage Board (1978 Lab.

I.C. 778) the Apex Court reviewed the earlier decisions on

interpretation of the wide words encompassed in the

definition and formulated positive and negative principles

for identifying “industry” as enacted by clause (j) of

section 2 of the Act. It would be expedient to reproduce

the authoritative pronouncement of the Court, in the very

words set out in the majority decision, handed down by

Justice Krishna Iyer, which are extracted thus:

“I.

“Industry” as defined in S.2(j) and explained in

Banerji (AIR 1953 S.C.58) has a wide import.

(a) Where (i) systematic activity, (ii) organized by

Co-operation between employer and employee (the

direct and substantial element is chimerical) (iii) for

the production and/or distribution of goods and

services calculated to satisfy human wants and

wishes (not spiritual or religious but inclusive of

material things or services geared to celestial bliss

i.e. making, on a large scale prasad or foods) prima

facie, there is an “industry” in that enterprise.

(b) Absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private

or other sector.

is the nature of the activity with special emphasis

on the employer-employee relations.

(d) If the organization is a trade or business it does

not cease to be one because of philanthropy

animating the undertaking.

II.

Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot be

magnified to overreach itself.

(a)“Undertaking” must suffer a contextual and

associational shrinkage as explained in Banerjee and

in this judgement, so also, service, calling and the

like. This yields the inference that all organized

activity possessing the triple elements in 1(supra),

although not trade or business, may still be ‘industry’

provided the nature of activity, viz. the employer-

employee basis, bears resemblance to what we find

in trade or business. This takes into the fold

‘industry’ undertaking, calling and services,

adventures,” analogous to the carrying on the trade

or business”. All features, other than the

methodology of carrying on the activity viz in

organizing the co-operation between employer and

employee, may be dissimilar. It does not matter, if

on the employment terms there is analogy.

III.

Application of these guidelines should not short of

their logical reach by invocation of creeds, cults or

inner sense of incongruity or outer sense of

motivation for or resultant of the economic

operations. The ideology of the Act being industrial

peace, regulation and resolution of industrial

disputes between employer and workmen, the range

of their statutory ideology must inform the reach of

the statutory definition. Nothing less, nothing more.

(a)The consequences are (i) profession, (ii) clubs

(iii) education institutions, (iv) co-operatives (v)

research institutes, (vi) charitable projects and (vii)

other kindered adventures, if they fulfil the triple

tests listed in 1(supra), cannot be exempted from the

scope of section 2(j).

(b)A restricted category of professions, clubs, co-

operatives and even gurukulas and little research

labs may qualify for exemption if in simple ventures,

substantially, and going by the dominant nature

criterion, substantively no employees are entertained

but in menial matters, marginal employees are hired

without destroying the non employee character of

the unit.

(c)If, in a pious or altruistic mission many employ

themselves, free or for small honoraria or like return,

mainly drawn by sharing in the purpose or cause,

such as lawyers volunteering to run a free legal

services clinic or doctors serving in their spare hours

in a free medical centre or ashramites working at the

bidding of the holiness, divinity or like central

personality, and the services are supplied free or at

nominal cost and those who serve are not engaged

for remuneration or on the basis of master and

servant relationship, then, the institution is not an

industry even if stray servants, manual or technical,

are hired. Such eleemosynary or like undertakings

alone are exempt not other generosity, compassion,

developmental passion or project.

IV.

The dominant nature test:

(a)Where a complex of activities, some of which

qualify for exemption, other not, involves employees

on the total undertaking, some of whom are not

“workmen” as in the University of Delhi case (AIR

1963 S.C.1873) or some departments are not

productive of goods and services if isolated, even

then, the predominant nature of the services and

the integrated nature of the departments as explained

in the Corporation of Nagpur (AIR 1960 S.C.657) will

be the true test. The whole undertaking will be

industry although those who are not “workmen” by

definition may not benefit by the status.

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[PART II—SEC. 3(ii)]

(b)Notwithstanding the previous clauses, sovereign

functions, strictly understood (alone) qualify for

exemption, not the welfare activities or economic

adventures undertaking by Govt. or statutory bodies.

functions, if there are units which are industries and

they are substantially severable, then they can be

considered to come within section 2(j).

(d) Constitutional and competently enacted

legislative provisions may remove from the scope

of the Act categories which otherwise may be covered

thereby.

We overrule Safdarjung (AIR 1970 S.C.1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana (AIR

1968 S.C. 554), Delhi University (AIR 1963 S.C.1873),

Dhanrajgiriji Hospital (AIR 1975 SC 2032) and other

rulings whose ratio runs counter to the principles

enunciated above, and the Hospital Mazdoor Sabha

(AIR 1960 SC 610) is hereby rehabilitated.”

13. Principles laid down in Bangalore Water Supply

& Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The management agitates that it is not an industry. The

view point held by the management is that no profit motive

activities are being carried on by it. No business is being

run, hence the management cannot be termed as an

‘industry”. Except the facts referred above, the management

nowhere projects any other factors to lay emphasis on the

fact that it is not an ‘industry’.

14. Whether granting of patents on new non obvious

inventions would fall within the ambit of material services

to the society? Legal precedents would through light on

the above proposition. In Ahmedabad Textile Industry’s

Research Association [1960 (2) LLJ 720)] the Association

was established to carry on research with respect to the

textile industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were held to

be “material services” to the textile industry hence the

Association answered the definition of industry. But in

Safdarjung Hospital case (supra) it was not held to be an

industry because it was a non-profit making body and its

work was in the nature of training, research and treatment.

In Indian Standard Institute [1966 (1) LLJ 33] the Apex

Court suggested that in order to be recognized as an

undertaking analogous to trade or business, the activity

must be an economical activity in the sense that it is

productive of material goods or material services. In

Bangalore Water Supply and Sewerage Board (supra), the

Apex Court laid down that an activity systematically or

habitually undertaken for production or distribution of

goods or for rendering material services to the community

at large or a part of such community with the help of

employees is an undertaking. An ‘industry’ thus was said

to involve cooperation between the employer and

employees for the object of satisfying material human

needs but not for oneself nor for pleasure nor necessity

for profit. Lack of business and profit motive or capital

investment would not take out an activity from the sweep

of ‘industry’, if other conditions are satisfied. It is the

activity in question which attracts the definition and

absence of investment of any capital or the fact that the

activity is conducted for profit motive or not, would not

make material difference. Conversely mere existence of

profit motive will not necessarily convert the activity into

“industry” if other tests are not satisfied.

15. One may project that the management carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry”? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court

observed that it could not have been in contemplation of

the legislature to bring in the regal functions of the State

within the definition of “industry” and to confer jurisdiction

on Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumbrated the test:

can such activity be carried on by a private individual or

group of individuals? The answer to this is : if a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while

if it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions,

strictly understood, (alone) qualify for exemption, not the

welfare activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

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16. In Physical Research Laboratory [1997 (2) LLJ

625] the Apex Court held that the Physical Research

Laboratory is not an ‘industry’ because it is not engaged

in an activity which can either be called business, trade or

manufacturing or it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as it is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not

rendering any services to others. It is engaged in pure

research in space science.

17. While reaching the conclusion, referred above,

the Apex Court relied observations made in Bangalore

Water Supply (supra) with respect to research institutes,

which observations are extracted thus:

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists,

para-scientists and other personnel. Is scientific

research service? Undoubtedly it is. Its discoveries

are valuable contributions to the wealth of the

nation. Such discoveries may be sold for a heavy

price in the industrial or other markets. Technology

has to be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recorded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratified and grateful earth,

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industries and the nation in terms of

goods and services and wealth. It follows that

research institutes, albeit run without profit-motive,

are industries”.

18. In the light of the above legal proposition, facts

of the present controversy are to be scanned. Admittedly,

the functions performed by the management do not fall

within the ambit of administration of justice, maintenance

of order, repression of crime, security of borders from

external aggression and legislative powers of the State.

Activities carried out by the management cannot be

described as regal or sovereign activities, since such

activities could be carried out by private individuals or

group of individuals.

19. As projected by the management, it grants

patents on new non-obvious inventions, which act

answers ingredents of rendering service to the community

at large. Its activities are systematic, performed with co-

operation between the management and its employees.

Activities performed by the management renders service

to the community at large. Therefore, it is evident that the

triple test of industry as propounded in Bangalore Water

and Sewerage Board (supra) stand satisfied in the present

case. It does not lie in the mouth of the management to

claim that it is does not fall within the ambit of “industry”

as defined in section 2(j) of the Act. Mere absence of

profit motive will not necessarily push the activity out of

the pale of industry, as defined by the Act. Resultantly, it

is concluded that activities performed by the management

falls within the ambit of “industry” as defined under

section 2(j) of the Act. The issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 2

20. In his affidavit Ex.WW1/A, tendered as

evidence, the claimant highlights that he was engaged as

a casual labour/daily wager from 04.08.2006 initially for a

period of 89 days. He was deputed by the management

for carrying out works relating to shifting of office from

Patel Nagar to Dwarka. He continued to perform his duties

with utmost dedication and to entire satisfaction of his

superiors. Ms. Suresh Singhal unfolds in her affidavit

Ex. MW1/A, tendered as evidence, that the management

has been engaging services of daily wagers for various

jobs. Claimant was engaged on daily wage basis. From

tone and tenor of her testimony it is obvious that the

claimant was engaged by the management for manual

work.

21.When facts unfolded by the claimant and those

detailed by Ms. Suresh Singhal are appreciated in the light

of the documents proved by the parties, it came over the

record that the claimant was engaged as a casual labour

for manual work. Question for consideration would be as

to whether the claimant can be termed as workman? For

an answer to this proposition, it would be expedient to

have a glance on definition of the term ‘workman’, enacted

by section 2(s) of the Act. For sake of convenience,

definition of term ‘workman’ is reproduced thus:

“2(s) Workman means any person (including an

apprentice) employed in any industry to do any

manual, unskilled, skilled, technical, operational,

clerical or supervisory work for hire or reward,

whether the terms of employment be express or

implied, and for the purposes of any proceeding

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under this Act in relation to an industrial dispute

includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute,

but does not include any such person –

(i)

who is subject to the Air Force Act, 1950 (45

of 1950), or the Army Act, 1950 (46 of 1950) or

the Navy Act, 1957 (62 of 1957), or

(ii)

who is employed in the police service or as an

officer or other employee of a prison, or

(iii)

who is, employed mainly in a managerial or

administrative capacity, or

(iv)

who, being employed in a supervisory

capacity, draws wages exceeding one

thousand six hundred rupees per mensem or

exercises, either by the nature of the duties

attached to the office or by reason of the

powers vested in him, functions mainly of a

managerial nature”.

22.

The first part of the definition gives statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an “industry” to do any

manual, unskilled, skilled, technical, operational, clerical

or supervisory work for hire or reward. This part determines

what a “workman” means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with

an industrial dispute, or (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the

definition of “workman”. This part gives extended

connotation to the expression “workman”. The third part

specifically excludes the categories of persons specified

in clauses (i) to (iv) of this sub-section. The third part

connotes that even if a person satisfies the requirements

of any of the first two parts but if he falls in any of the four

categories in the third part, he shall be excluded from the

definition of ‘workman’. Not only the persons who are

actually employed in an industry but also those who have

been discharged, dismissed or retrenched in connection

with or as a consequence of an industrial dispute, and

whose dismissal, discharge or retrenchment has lead to

that dispute, would fall within the ambit of the definition.

In other words, the second category of persons included

in the definition would fall in the ambit of the definition,

only for the purpose of any proceedings under the Act in

relation to an industrial dispute and for no other purposes.

Therefore, date of reference is relevant and in case a person

falls within the definition of workman on that day, the

Tribunal would be vested with jurisdiction to entertain it

and the jurisdiction would not cease merely because

subsequently the workman ceases to be workman.

23.

For an employee in an industry to be a workman

under this definition, it is manifest that he must be employed

to do skilled or unskilled manual work, supervisory work,

technical work or clerical work. If the work done by an

employee is not of such a nature, he would not be a

workman. The specification of the four types of work

obviously is intended to law down that an employee is to

become a workman only if he is employed to do work of

one of those types, while there may be employees who,

not doing any such work, would be out of the scope of the

word ‘workman’, without having resort to the exceptions.

It cannot be held that every employee of an industry was

to be a workman except those mentioned in the four

exceptions as in that case these four classifications need

not have been mentioned in the definition and a workman

could have been defined as a person employed in an

industry except in cases where he was covered by one of

the exceptions.

24.

In cases where an employee is employed to do purely

skilled or unskilled manual work, or supervisory work or

technical work or clerical work there would be no difficulty

in holding him to be a workman under the appropriate

classification. Frequently, however, an employee is

required to do more than one kind of work. In such cases,

it would be necessary to determine under which

classification he will fall for the purpose of finding out

whether he does not go out of the definition of ‘workman’

under the exceptions. The principle is now well settled

that, for this purpose, a workman must be held to be

employed to do that work which is the main work he is

required to do even though he may incidentally doing

other type of work.

25.

When facts of the present controversy are assessed

on the above proposition of law, it emerges that the

claimant was engaged as casual labour to do manual

unskilled work. The management nowhere disputes that

the claimant was performing manual unskilled work, while

working as casual labour. Work performed by the claimant

clothes him with the status of a workman, as projected

under section 2(s) of the Act. Therefore, these facts make

me to comment that the claimant was a workman within

the meaning of section 2(s) of the Act. The issue is,

therefore, answered in favour of the claimant and against

the management.

Issue No. 3

26.

Question for consideration comes as to whether

order dated 21.04.2010 passed by the CAT operate as

resjudicata? Whether the order, referred above, would

preclude the claimant from re-agitating that very issue?

For an answer it would be considered as to whether the

order, passed by the CAT, precludes the claimant from

raising that very issue before this Tribunal. For an answer

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legal principles are to be taken note of. Section 11 of the

Code of Civil Procedure 1908 (in short the Code) embodies

the doctrine of res-judicata or the rule of conclusiveness

of a judgment, as to the point decided either of fact, or of

law, or of fact and law, in every subsequent suit between

the same parties. It enacts that once a matter is finally

decided by a competent court, no party can be permitted

to reopen it in a subsequent litigation. The doctrine of res-

judicata has been explained in the simplest possible manner

by Das Gupta J. in the case of Statyadhyan Ghosal Vs.

Deorajin Debi (AIR 1960 S.C. 941) in the following words:

“The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-is judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter – whether on a

question of fact or a question of law – has been

decided between two parties in one suit or

proceeding and the decision is final, either because

no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to convass the matter

again”.

27.

It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in the

subsequent suit must be the same matter which

was directly and substantially in issue either actually

or constructively in the former.

The former suit must have been a suit between the

same parties or between parties under whom they or

any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court which decided the former suit must be a

court competent to try the subsequent suit or the

suit in which such issue is subsequently raised.

The matter directly and substantially in issue in the

subsequent suit must have been heard and finally

decided by the court in the former suit.

28.

Section 11 of the Code bars trial of any suit as well

as an issue which had been decided in a former suit. Issue

are of three kinds: (i) Issue of fact; (ii) Issue of law ; and

(iii) Mixed issues of law and fact. A decision on an issue

of fact, however erroneous it may be, constitutes res-

judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad Vs. Dossibai [1970(1)

SCC 613]. A mixed issue of law and fact also, for the same

reasons, operates as res-judicata.

29.

To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent

to try the subsequent suit, will not operate as res-judicata.

The expression “competent to try” means “competent to

try the subsequent suit if brought at the time the first suit

was brought”. In other words, the relevant point of time

for deciding the question of competence of the court is

the date when the former suit was brought and not the

date when the subsequent suit was filed. In order that a

decision in a former suit may operate as res-judicata, the

court which decided that suit must have been either –(a) a

court of exclusive jurisdiction, or (b) a court of limited

jurisdiction; or (c) a court of concurrent jurisdiction.

30.

For articulation of an industrial dispute, the labour

court or an industrial tribunal exercise adjudicatory

jurisdiction. Task of an industrial adjudicator is tedious,

who has to reconcile the head-on clash between the

fundamental rights guaranteed by the constitution such

as freedom of trade, freedom to practice any profession or

to carry on any occupation and the directive principles

enshrined in the constitution which are fundamental in

the governance of the country. He has also the delicate

task of balancing the conflicting interest of employer,

employee and the public on very basic policies, such as,

freedom and sanctity of contract, protection of business,

right to work, making training available to employees,

earning of livelihood for oneself and family, utilization of

one’s skill and talent, continued productivity, betterment

of one’s status, avoidance of one’s becoming a public

charge, encouragement of competition and development

of national and international trade and avoidance of

monopoly, promotion of collective bargaining and

elimination of indiscipline in industry and so on. Questions

on above issues are to be adjudicated by an industrial

adjudicator. Though the constitution has vested powers

of judicial review in High Courts and invested it with power

to sit in appeal over the awards of industrial tribunals, yet

industrial tribunals are courts of exclusive jurisdiction on

the matters, which are referred to them by the appropriate

Government under section 10 of the Act.

31.

In Nawab Hussain, (1977 Lab. I.C.911), the Apex

Court enunciated general principles of doctrine of res-

judicata as under:

“The principle of estoppel per res-judicata is a rule

of evidence. As has been stated in Marginson v.

Blackburn Borough Council [1939 (2) KB 426 at P.437]

it may be said to be “the broader rule of evidence

which prohibits the reassertion of a cause of action.”

This doctrine is based on two theories: (i) the finality

and conclusiveness of judicial decisions for the final

termination of disputes in the general interest of the

community as a matter of public policy, and (ii) the

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interest of the individual that he should be protected

from multiplication of litigation. It, therefore, serves

not only a public but also a private purpose by

obstructing the reopening of matters which have

once been adjudicated upon. It is thus not

permissible to obtain a second judgment for the same

civil relief on the same cause of action, for otherwise

the spirit of contentiousness may give rise to

conflicting judgments of equal authority, lead to

multiplicity of actions and bring the administration

of justice into disrepute. It is the cause of action

which gives rise to an action, and that is why it is

necessary for the courts to recognize that a cause of

action which results in a judgment must lose its

identity and vitality and merge in the judgment when

pronounced. It cannot therefore survive the

judgment, or give rise to another cause of action on

the same facts. This is what is known as the general

principle of res-judicata.”

32.

Whether CAT is competent to try an industrial

dispute? Answer to this proposition would emerge out of

section 14 of the Administrative Tribunal Act, 1985, which

contemplates that the CAT shall exercise jurisdiction,

powers and authority in relation to recruitment and matters

concerning any civil services or civil post in the Union.

For sake of convenience, provisions of sub-section (1) of

section 14 of the Administrative Tribunal Act, 1985 are

extracted thus:

“14(1) Save as otherwise expressly provided in this Act,

the Central Administrative Tribunal shall exercise, on and

from the appointed day, all the jurisdiction, powers and

authority exercisable immediately before that day by all

courts except the Supreme Court in relation to—

(a) recruitment, and matters concerning recruitment, to any

All India Service or to any civil service of the Union or a

civil post under the Union or to a post connected with

defence or in the defence services, being, in either case, a

post filled by a civilian;

(b) all service matters concerning—

(i) a member of any All India Service; or

(ii) a person, not being a member of an All India Service or

a person referred to in clause (c), appointed to any civil

service of the Union or any civil post under the Union; or

(iii) a civilian, not being a member of an All India Service or

a person referred to in clause (c), appointed to any defence

services or a post connected with defence, and pertaining

to the service of such member, person or civilian, in

connection with the affairs of the Union or of any State or

of any local or other authority within the territory of India

or under the control of the Government of India or of any

corporation or society owned or controlled by the

Government;

with the affairs of the Union concerning a person

appointed to any service or post referred to in sub-clause

(ii) or sub-clause (iii) of clause (b), being a person whose

services have been placed by a State Government or any

local or other authority or any corporation or society or

other body, at the disposal of the Central Government for

such appointment”.

33.

Section 28 of the Administrative Tribunals Act, 1985

projects that an Industrial Tribunal, Labour Court or other

authority constituted under the Act shall exercise

jurisdiction in respect of service conditions and matters

contained in the Act. For sake of convenience, provisions

of the said section are reproduced thus:

“28. ‘On and from the date from which any jurisdiction,

powers and authority becomes exercisable under this Act

by a Tribunal in relation to recruitment and matters

concerning recruitment to any service or post or service

matters concerning members of any service or persons

appointed to any service or post, no court except-

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other authority

constituted under the Industrial Disputes Act, 1947 or any

other corresponding law for the time being in force, shall

have or be entitled to exercise any jurisdiction, powers or

authority in relation to such recruitment or matters

concerning such recruitment or such service matters.”

34.

The above provisions make it apparent that though

CAT shall exercise all jurisdiction, powers and authority

in relation to recruitment to any civil service or post under

the Union or to a post connected with defence or in the

defence services, in either case, a post filled by a civilian,

yet an Industrial Tribunal constituted under the Act shall

have jurisdiction in relation to recruitment and matters

concerning recruitment, in service or post or services

matters concerning any person who falls within the ambit

of the Act. Therefore, on plain reading of section 28 of the

aforesaid Act, it emerges that the CAT exercises concurrent

jurisdiction with an Industrial Tribunal or Labour Court,

constituted under the Act in relation to recruitment and

matters concerning recruitment to any service or post or

service matters concerning any person, who falls within

the ambit of workmen as defined under the Act.

35.

Whether civil court has jurisdiction in relation to

industrial dispute, the Apex Court dealt with the matter in

Premier Automobiles [1976(1) SCC 496]. On consideration

of catena of decisions on the subject, the Apex Court

enunciated following principles:

“(1) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right under

the Act the remedy lies only in the civil court.

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(2) If the dispute is an industrial dispute arising out

of a right or liability under the general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election of

the suitor concerned to choose his remedy for the

relief which is competent to be granted in particular

remedy.

(3) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suitor is to get

an adjudication under the Act.

(4) If the right which is sought to be enforced is a

right created under the Act such as Chapter VA then

the remedy for its enforcement is either section 33C

or the raising of an industrial dispute, as the case

may be.

We may, however, in relation to principle 2 stated

above hasten to add that there will hardly be a

dispute which will be an industrial dispute within

the meaning of section 2(k) of the Act and yet will be

one arising out of a right or liability under the general

or common law only and not under the Act. Such a

contingency, for example, may arise in regard to the

dismissal of an unsponsored workman which in view

of the provision of law contained in Section 2A of

the Act will be an industrial dispute even though it

may otherwise be an individual dispute. Civil Courts,

therefore, will have hardly an occasion to deal with

the type of cases falling under principle 2. Cases of

industrial disputes by and large, almost invariably,

are bound to be covered by principle 3 stated

above.”

36.

While analysing principles adumbrated in Premier

Automobiles (supra), the Apex Court in Rajasthan State

Road Transport Corporation [1995(5) SCC 75] summarised

those principle as follows:

“(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

“industrial dispute’’ within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of right and

obligations created by enactment like Industrial

Employment (Standing Orders) Act, 1946 - which

can be called “sister enactments” to Industrial

Disputes Act-and which do not provide a forum for

resolution of such disputes, the only remedy shall

be to approach the forums created by the Industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an industrial dispute or says that it shall

be adjudicated by any of the forums created by the

Industrial Disputes Act. Otherwise, recourse to civil

court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the Government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the Government is entitled to

examine whether the dispute is ex facie frivolous,

not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

recommend to Parliament and the State Legislatures

to make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly- i.e.,

without the requirement of a reference by the

Government in case of industrial disputes covered

by Section 2-A of Industrial Disputes Act. This would

go a long way in removing the misgivings with

respect to the effectiveness of the remedies provided

by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to “statutory provisions”. Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created

by the Industrial Disputes Act or the civil court where

recourse to civil court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute-resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and unencumbered by the plethora of

procedural laws and appeals upon appeals and

revisions applicable to civil courts. Indeed, the

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powers of the courts and tribunals under the

Industrial Disputes Act are far more extensive in the

sense that they can grant such relief as they think

appropriate in the circumstances for putting an end

to an industrial dispute.

37.

As detailed above, the Apex Court ruled that when

a dispute involves recognition, observance or enforcement

of any of the rights or obligations created by the Act, the

only remedy is to approach the forums created by the Act

only. For adjudication of an industrial dispute, which falls

within the ambit of the Act, the CAT does not have any

jurisdiction. It is obvious that provisions of section 28 of

the Administrative Tribunals Act, 1985 are in contradiction

to the law laid down by the Apex Court, when it relates to

exercise of jurisdiction, powers or authority in relation to

recruitment or matters concerning such recruitment or

conditions of service of any person, who happens to be a

workman within the meaning of section 2(s) of the Act.

This proposition was considered by the CAT in its decision

in A. Padmavalley etc. (1991(1) SLR 245) wherein

proposition of law laid in Premier Automobile (supra),

provisions of the Act as well as provisions of

Administrative Tribunals Act, 1985 were construed and it

was ruled that the CAT is not a substitute for the

authorities constituted under the Act and does not exercise

concurrent jurisdiction in regard to matters covered by

the Act. The CAT concluded the proposition as follows:

(i)

Administrative Tribunal constituted in the

Administrative Tribunals Act are not substitutes for

the authorities constituted under the Industrial

Tribunals Act and hence the Administrative Tribunal

does not exercise concurrent jurisdiction with those

authorities in regard to matters covered by that Act.

Hence, all matters over which the Labour Court or

the Industrial Tribunal or other authorities had

jurisdiction under the Industrial Disputes Act, do

not automatically become vested in the

Administrative Tribunal for adjudication. The

decision in the case of Sisodia, which lays down a

contrary interpretation is, in our opinion, not correct.

(ii)

An applicant seeking relief under the provisions of

the Industrial Disputes Act must ordinarily exhaust

the remedies available under that Act.

(iii)

The powers of the Adminstrative Tribunal are the

same as that of the High Court under Article 226 of

the Constitution and the exercise of that

discretionary power would depend upon the facts

and circumstances of each case as well as on the

principles laid down in the case of Rohtas Industries

(supra).

(iv)

The interpretation given to the term ‘arrangement in

force’ by the Jabalpur Bench in Rammoo’s case is

not correct.”

38.

In view of the legal principles laid above, it is evident

that CAT does not exercise concurrent jurisdiction with

this Tribunal in regard to rights and obligations arising

out of the Act. Resultantly, it is crystal clear that the CAT

is not competent to adjudicate the industrial dispute, and

as such order passed by it in OA No.1138 of 2010 on

21.04.2010 would not operate as res judicata. Submissions

made by Shri Bhardwaj, to the effect that the claimant

cannot re-agitate the very issue, which was adjudicated

by the CAT vide order dated 21.4.2010, are untenable. Issue

is, therefore, answered in favour of the claimant and

against the management.

Issue No. 4.

39.

For seeking protection under section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub section (1) of section 25B

of the Act. Sub-section (2) of the said section introduces

a fiction to the effect that even if a workman is not in

“continuous service” within the meaning of clause (1) for

a period of one year or six months, he shall be deemed to

in continuous service for that period under an employer if

he has actually worked for the days specified in clauses

(a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enquiry

has to be made to find out whether the workman actually

worked for not less than 240 days during the period of 12

calendar months immediately preceding the retrenchment.

40.

In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus:

“Under section 25-B a workman, who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days, is to be

deemed to have completed one year’s service in the

industry. Consequently an enquiry has to be made

to find out whether the workman had actually worked

for not less than. 240 days during period of 12

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calendar months immediately preceding the

retrenchment. These provisions of law do not show

that a workman after satisfying the test under section

25B has further to show that he has worked during

all the period he has been in the service of the

employer for 240 days in the year”.

41.

Interruption of service occurred during the course

of job has to be included in uninterrupted services. Fiction

under section 25-B of the Act will operate if workman

has actually worked for 240 days in a calendar year. The

explanation appended to section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

sundays and saturdays for which full wages are paid.

The Apex Court was confronted with such a proposition

in American Express Banking Corporation [1985 (2) LLJ

539], wherein it was ruled that the expression ‘actually

worked under the employer’ cannot mean those days only

when the workman worked with hammer, sickle or pen, but

must necessarily comprehend all those days during which

he was in the employment of the employer and for which

he had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that sundays and other

holidays, would be comprehended in the words ‘actually

worked” and it countenanced the contention of the

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

had actually worked though he had not so worked and no

other days. The Court observed that the explanation is

only clarificatory, as all explanations are, and cannot be

used to limit the expanse of the main provision. Precedent

in Lalappa Lingappa [1981 (1) LJ 308] was distinguished

by the Apex Court in the case referred above. The

precedent was followed in Standard Motor Products of

India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from

the law laid above that sundays and holidays shall be

included in computing continuous service under section

25-B of the Act.

42.

The claimant unfolds that he was initially engaged

by the management on 15.03.2007 as daily wager. He

continuously performed his duties till 31.03.2009. He

rendered continuous service with the management for the

period referred above. On this issue, Ms. Suresh Singhal

projects that the claimant was engaged at different

intervals, which spells have been reproduced in chart

Ex.MW1/6. According to her, sundays and holidays were

not counted while reckoning period for which claimant

worked with the management. When Ex.MW1/6 is

scanned, it came to light that in preceding 12 months from

31.03.2009, the date when his services were dispensed

with, claimant had rendered continuous service of 259

days. He had rendered 201 days service in preceding 12

months from April, 2008. Period of service, rendered by

the claimant, as detailed above, nowhere includes sundays

and holidays. In a year, an employee may get 52 weekly

offs, besides three national holidays. In case 52 weekly

offs and three national holidays are added to the periods

referred above, in the year reckoned from April, 2008 to

March, 2007, he reaches notional figure of 240 days, to

claim continuous service for a period of one year. Thus

the claimant could show that he served for a period of two

years continuously, as contemplated by provisions of

section 25B of the Act. Issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 5

43.

An employer may discharge a portion of his labour

force as surplusage in a running or continuing business

for variety of reasons, e.g., for economy, convenience,

rationalization in industry, installation of a new labour

saving machinery etc. The Act defines “termination by

the employer of the service of a workman for any reasons

whatsoever”, except the categories exempted in sub-

section 2(oo), to be retrenchment. The definition of the

term “retrenchment”, as enacted by the Act, is extracted

thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include-

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb) termination of the services of the workman as

a result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation

in that behalf contained therein; or

(c)

termination of the services of a workman on

the ground of continued ill-health”.

44.

Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer “for any reason whatsoever”

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

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excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement

of workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. [1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

45.

Section 25F of the Act lays down conditions pre-

requisite to retrenchment, which are as follows:

(i)

There should be one month’s notice in writing to

the workman concerned.

(ii)

The notice should specify the reasons for

retrenchment.

(iii)

The period of one month’s notice should have expired

before retrenchment is enforced, or the workman

has been paid in lieu of such notice the wages for

the period.

(iv)

The workman has been paid retrenchment

compensation which should be equivalent to 15

days’ average pay for every one years’ service or

any part thereof provided it exceeds six months.

(v)

The notice is also given to the appropriate

Government.

46.

On turning to fact it came to light that the claimant

projects that his services were dispensed with on

30.03.2009. In that regard, Ms.Singhal projects that the

claimant was not engaged any further with effect from

30.03.2009. It is not the case of the management that the

claimant was well aware that his engagement was for a

specified period and would come to an end on expiry of

the period, so specified in his engagement order. Exception

contained in sub-clause (bb) of sub-section (oo) of section

2 of the Act is not applicable to his case. For applicability

of sub-clause (bb) of sub-section (oo) of section 2 of the

Act the management is under an obligation to establish

following counts:

(i)

that the workman was employed in a project or

scheme of temporary duration;

(ii)

the employment was on a contract, and not as a

daily-wager simpliciter, which provided inter alia that

the employment shall come to an end on the expiry

of the scheme or project; and the employment came

to an end simultaneously with the termination of the

scheme or project and consistently with the terms

of the contract.

47.

When facts unfolded by Ms.Singhal are scanned, it

came to light that the claimant was not employed in a

project or a scheme of temporary duration. He was not

employed on a contract of specified duration. As per the

case of the management, he was a daily wager simpliciter.

These facts make it clear that action of disengaging the

claimant does not fall within the exception created by either

main clause or exception contained in second limb of

section 2(oo) of the Act. Therefore, dispensing with

services of the claimant for any reason whatsoever would

amount to retrenchment.

48.

Admittedly, no notice for a period of one month or

pay in lieu thereof was given to the claimant, as testified

by Ms. Singhal. No retrenchment compensation was paid

to him at that time. Thus it is evident that services of the

claimant were retrenched without payment of notice pay,

and retrenchment compensation. It is well settled that in a

case of wrongful retrenchment, dismissal or discharge,

the normal rule is to award reinstatement. But where a

case falls in any of the exception to general rule, the

industrial adjudicator has discretion to award reasonable

and adequate compensation, in lieu of re-instatement.

Section 11A of the Act vests the industrial adjudicator

with discretionary jurisdiction to give “such other relief to

the workman” in lieu of discharge or dismissal as the

circumstances of the case may require, where for some

valid reasons it considers that reinstatement with or

without conditions will not be fair or proper.

49.

In Uma Devi [2006 (4) SCC 1] the Apex Court

considered the proposition as to whether the persons who

got employment, without following of a regular procedure

or even from the back door or on daily wages can be

ordered to be made permanent in their posts, to prevent

regular recruitment to the posts concerned. Catena of

decisions over the subject were considered and the court

declined the submissions of the workmen to be made

permanent on the posts which were held by them in

temporary or ad-hoc capacity for a fairly long spell. The

Court ruled thus:

“With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insists on the State making regular

and proper recruitments, and is bound not to

encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment. The

direction to make permanent the distinction between

regularization and making permanent, was not

emphasized here–can only encourage the State, the

model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many

waiting to compete. With respect the directions made

in Piara Singh [1992(4) SCC 118] is to some extent

inconsistent with the conclusion in para 45 of the

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said judgement therein. With great respect, it appears

to us that the last of the directions clearly runs

counter to the constitutional scheme of employment

recognized in the earlier part of the decision. Really,

it cannot be said that this decision has laid down

the law that all ad-hoc, temporary or casual

employees engaged without following a regular

recruitment procedure should be made permanent”.

50.

Taking note of some of recent decisions, the Apex

Court held that the State does not enjoy a power to make

appointments in terms of Article 162 of the Constitution.

The Court quoted its decision in Girish Jyanti Lal Vaghela

[2006 (2) SCC 482] with approval, wherein it was rule thus.

“The appointment to any post under the State can

only be made after a proper advertisement has been

made inviting applications from eligible candidates

and holding of a selection by a body of experts or a

specially constituted committee, whose members are

fair and impartial, through a written examination or

interview or some other rational criteria for judging

the inter se merit of candidates, who have applied in

response to the advertisement made. A regular

appointment to the post under the State or Union

cannot be made without issuing advertisement in

the prescribed manner which may in some cases

include inviting applications from the employment

exchange, where eligible candidate get their names

registered. Any regular appointment made on a post

under the State or Union without issuing

advertisement inviting applications from eligible

candidates and without holding a proper selection

where all eligible candidates get a fair chance to

compete would violate the guarantee enshrined

under Article 16 of the Constitution”.

51.

In P.Chandra Shekhara Rao and Others [2006 (7) SCC

488] the Apex Court referred Uma Devi’s Case (supra) with

approval. It also relied the decision in a Uma Rani [2004 (7)

SCC 112] and ruled that no regularization is permissible in

exercise of statutory powers conferred in Article 162 of

the Constitution, if the appointments have been made in

contravention of the statutory rules. In Somveer Singh

[2006 (5) SCC 493] the Apex Court ruled that appointment

made without following due procedure cannot be

regularized. In Indian Drugs & Pharmaceuticals Ltd. [2007

(1) SCC 408] the Apex Court reiterated the law and

announced that the rules of recruitment can not be relaxed

and court can not direct regularisation of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

52.

In Uma Devi (supra) it was laid that “when a person

enters a temporary employment or get engagement as

contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed for the post,

when an appointment to the post could be made only by

following a proper procedure or selection in any concerned

cases, in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of

those precedent neither continuance nor regularisation of

services of the claimants can be ordered, since it would

amount to back door entry into Government job”.

53.

Whether the claimant was back door entrant ?

Answer lies in negative. As per facts, unfoleded by the

management, name of the claimant was sponsored by the

employment exchange. Provisions of Employment

Exchanges (Compulsory Notification of Vacancies) Act,

1959 casts obligation on an employer to notify vacancies

to an employment exchange, before filling vacancies in

any employment in its establishment. Section 3 of that Act

enlists certain vacancies to which it does not apply.

Provisions of the said section are detailed as follows:

“3. Act not to apply in relation to certain vacancies.-

(1)

This Act shall not apply in relation to vacancies.-

(a)

in any employment in agriculture (including

horticulture) in any establishment in private

sector other than employment as agricultural

or farm machinery operatives;

(b)

in any employment in domestic service ;

(c)

in any employment the total duration of which

is less than three months;

(d)

in any employment to do unskilled office work;

(e)

in any employment connected with the staff

of Parliament.

(2)

Unless the Central Government otherwise directs

by notification in the Official Gazette in this behalf,

this Act shall not also apply in relation to-

(a)

vacancies which are proposed to be filled

through promotion or by absorption of surplus

staff of any branch or department of the same

establishment or on the result of any

examination conducted or interview held by,

or on the recommendation of, any independent

agency, such as the Union or a State Public

Service Commission and the like;

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(b)

vacancies in any employment which carries a

remuneration of less than sixty rupees in a

month”.

54.

Clause (i) of section 2 of that Act gives definition of

“unskilled office work” wherein an employee doing any

routine work or unskilled work has been included. For

convenience sake the said definition is extracted thus:

“Unskilled office work” means work done in an

establishment by any of the following categories of

employees, namely, -

(1)

daftri,

(2)

jamadar, orderly and peon;

(3)

dusting man or farash;

(4)

bundle or record lifter ;

(5)

process server;

(6)

watchman;

(7)

sweeper;

(8)

any other employee doing any routine or

unskilled work which Central Government

may, by notification in the Official Gazette,

declare to be “unskilled office work”.

55.

As projected above provisions of that Act are not

applicable to vacancies relating to “unskilled office work”.

The object of the aforesaid Act is not to restrict, but to

enlarge field of choice so that employer may choose best

and most efficient and to provide an opportunity to the

worker to have his claim for appointment considered

without having to knock at every door for employment.

Office Memorandum No.114/11/64-Estt.(D) dated 21.3.64

was issued by Ministry of Home Affairs, Government of

India, emphasizing that all vacancies in Central Government

establishments, other than those filled through the Union

Public Service Commission, should be notified to the

nearest employment exchange and no department or office

should fill any vacancy by direct recruitment unless the

employment exchange certified that they were unable to

supply suitable candidates. Office memorandum No.14024/

2/77-Estt.(D) dated 12.4.77 was issued by Department of

Personnel and Training laying stress on proposition that

all vacancies arising in Central Government offices/

establishments (including quasi Government institutions

and statutory organizations) irrespective of the nature and

duration other than filled from the U.P.S.C. are not only to

be notified, but also to be filled through the employment

exchange alone and other permissible source of recruitment

can be taped only if employment exchange concerned

issued a non availability certificate. There can be no

deviation from this recruitment procedure unless a different

arrangement in this regard has been previously agreed to

in consultation with the Department of Personnel and

Training and Ministry of Labour.

56.

A gloss was put on these instructions by the Apex

Court in N. Hargopal [1987(3) SCC 308] wherein it was

ruled that the Government is at perfect liberty to issue

instructions to its own departments and organizations

provided the instructions do not contravene any

constitutional provision or any statute, these instructions

cannot bind other bodies which are created by statute

and which functions under the authority of statute. In the

absence of any statutory prescription the statutory

authority may, however, adopt and follow such

instructions if it thinks fit. The court concluded that in

case of public appointment it is necessary to eliminate

arbitrariness, favourtism and introduce uniformity of

standards and orderliness in the matter of employment.

There has to be an element of procedural fairness in

recruitment. If a public employer chooses to receive

applications for employment where and when he pleases,

and chooses to make appointment as he likes a grave

element of arbitrariness is certainly introduced. The Court

went on to say that in the absence of a better method of

recruitment any restriction that employment in Government

departments should be through the medium of employment

exchanges does not offend Articles 14 and 16 of the

Constitution. Hence it emerges that above instructions

were affirmed by the Apex Court and the management was

bound to follow those instructions, in making an

engagement for the position of unskilled office work.

57.

These instructions were complied with by the

management when claimant was engaged by it. Thus

engagement of the claimant through employment exchange

was in consonance with the laid down procedure. It can-

not be said that he was a back door entrant on the job.

Hence I say that the management could not show any

case where relief of reinstatement should be denied to the

claimant.

58.

As regards back wages, no evidence has been

brought to the effect that the claimant remained

unemployed. Therefore it seems not to be a case of grant

of full back wages. However no principles are available to

assess as to what amount of back wages should be

awarded. Principles for award of compensation is available

in some precedents, which are taken into account. In

S.S.Shetty [1957 (11) LLJ 696] the Apex Court indicated

some relevant factors which an adjudicator has to take

into account in computing compensation in lieu of

reinstatement, in the following words:

“The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party,

the possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

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reinstatement under the terms of future awards by

Industrial Tribunal in the event of industrial disputes

arising between the parties in future…. In computing

the money value of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefits etc. would be till he attained the age of

superannuation and the value of such benefits

would have to be computed as from the date when

such reinstatement was ordered under the terms of

the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathematical exactitude and the best that any

tribunal or court would do under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors

pro and con”.

59.

A Divisional Bench of the Patna High Court in

B.Choudhary Vs. Presiding Officer, Labour Court,

Jamshedpur (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee’s age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer’s business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to

Tabesh Process, Shivakashi (1989 Lab.I.C.1887).

60.

In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that “it would be fair and just to direct the appellant a

substantial sum as compensation to her”. In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the

employee awarded by the Industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K.Roy [1970 (1) LLJ 228] compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count

converted the award of reinstatement into compensation

of a sum of Rs.50000/- as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P.Bhandari [1986 (II) LLJ 509], the Apex Court

observed that it was a fit case for grant of compensation

in view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In

M.K.Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the

back salary to 50% of what would otherwise be payable to

the employee. In Yashveer Singh [1993 Lab.I.C.44] the

court directed payment of Rs. 75000/- in view of

reinstatement with back wages. In Naval Kishor [1984 (II)

LLJ 473] the Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj [1985 (II) LLJ 19] a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal [1985

Lab.I.C.1225] a compensation of Rs. 2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

[1988 Lab.I.C.107] a compensation of Rs.65000 was granted

in lieu of reinstatement, since the employee was gainfully

employed elsewhere. In V.V.Rao (1991 Lab.I.C.1650) a

compensation of Rs. 2.50 lac was awarded in lieu of

reinstatement.

61.

As held in preceding sections the claimant could

show a case of reinstatement in the service of the

management with continuity. Accordingly it is ordered that

he shall be reinstated in service by the management.

Relying on principles of law laid for grant of compensation

and on consideration of facts in entirety it is held that the

claimant shall get 40% of his last drawn wages as back

wages for the period of interregnum. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dr. R.K. YADAV, Presiding Officer

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3564

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 15th April, 2014

S.O. 1356.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 105/2012)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Controller General, Patent & Design

Trade Marks, Patent Office and their workmen, which was

received by the Central Government on 11/04/2014.

[No. L-42025/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. I, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 105/2012

Shri Sanjeev Kumar

S/o Sh. Phool Singh,

R/o H. No. 5, VPO Kakrola,

New Delhi-110078.

...Workman

Versus

The Controller General

Patent & Design Trade Marks,

Through Assistant Controller of Patent & Design,

Patent Office, Baudhik Sampada Bhawan,

Dwarka, New Delhi-110078.

...Management

AWARD

The Controller General, Patents, Designs and Trade

Marks (hereinafter referred to as the management), is a

statutory body created under the provisions of the Indian

Patents Act, 1970 for granting patents on new non obvious

inventions. The management is a subordinate office of

the Ministry of Commerce & Industries, Government of

India, New Delhi. The management employed certain

persons through employment exchange to carry out job

of casual/ intermittent nature. The management terminated

services of one of the persons, so employed, namely, Shri

Sanjeev Kumar, without giving one month notice or pay in

lieu thereof and retrenchment compensation. This irked

Shri Sanjeev Kumar, who raised an industrial dispute before

the Conciliation Officer. His claim was contested by the

management, hence conciliation proceedings ended into

a failure. Since 45 days, from the date of moving an

application before the Conciliation Officer, expired Shri

Sanjeev Kumar opted to file his dispute before the Tribunal

using provisions of sub-section (2) of Section 2A of the

Industrial Disputes Act, 1947 (in short the Act), without

being referred for adjudication by the appropriate

Government under section 10(1)(d) of the Act.

Claim statement was filed by Shri Sanjeev Kumar

pleading that he was engaged as a casual labour/daily

wager by the management on 07.05.2007 through

Employment Exchange, North East District, Directorate of

Employment, Government of India, New Delhi. He initially

worked upto to 12.12.2007. He was again engaged on

17.12.2007. With an ulterior motive, the management gave

break on 12.12.2007 and again engaged him on 17.12.2007.

He worked till 30.03.2009. He was regular, sincere, obedient

and hardworking in his duties, which fact is corroborated

by letter dated 22.12.2008 issued by the management. He

has completed 240 days continuous service with the

management. He was denied salary for the months of

December 2008, January 2009, February 2009 and March

2009. Instead of paying his legal dues, he was prevented

from performing his duties after 30.03.2009.

On 02.04.2009, a representation was made to the

management to allow him to rejoin duties since the person

deployed in his place was doing similar duties. However,

the management failed to consider his case. Thereafter,

under wrong legal advice, an OA No.1138/2010 was filed

before the Central Administrative Tribunal (in short the

CAT) which was withdrawn on 23.05.2012. No notice for

termination of his service was given. Action of termination

of his services is illegal and uncalled for. He is unemployed

since the date of termination of his service. He seeks

reinstatement in service with continuity and full back

wages.

Claim was demurred by the management pleading

that it is a statutory body under the Indian Patents Act,

1970 created for implementing provisions of the aforesaid

Act, for granting patents on new non-obvious inventions.

The management performs sovereign function and as such

does not carry out activities which can be considered as

trade or business. No activity, related to production,

distribution or supply of goods or services meant for

satisfying for human wants, is carried out and hence it is

not an industry. It is also pleaded that the claimant is not

a workman under the provisions of the Act. No appointment

letter or identity card was issued to the claimant. He was

engaged for casual work, which was to be performed

intermittantly. Such casual workers/labourers are neither

holders of civil post nor appointed to any sanctioned

regular post through proper procedure. They are neither

entitled for any pay or perks at par with holder of a civil

post nor can claim continuation of such engagement.

Further as per policy of the Government of India, manpower

for casual job is now outsourced on contract basis through

a private outsourcing agency. Certificate issued by the

management clearly indicates that the claimant worked as

a daily wager. He was called for receiving his outstanding

payment, which he refused to accept. Hence it was

deposited to Government accounts vide challan no. POD/

405/RC dated 29.07.2009 after completion of 90 days as

per Receipt and Payment Rules. Subsequently cheque for

Rs.9,352.00 has been issued to him in November 2012.

¹Hkkx II—[k.M 3(ii)º

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3565

The management pleads that the claimant moved an

application before the CAT seeking relief of reinstatement

in service, which application was dismissed vide order

21.4.2010. He again filed an application, which was

dismissed as withdraw on 23.5.2010. The order passed by

the CAT operates as res-judicata. In view of these facts,

claimant is not entitled to any relief. His claim is liable to

be dismissed, pleads the management.

On pleadings of the parties, following issues were

settled:

(1)

Whether management is an ‘Industry’ within the

meaning of section 2(j) of the Industrial Disputes

Act, 1947?

(2)

Whether the claimant is a ‘workman’ within the

meaning of section 2(s) of the Industrial Disputes

Act, 1947?

(3)

Whether orders dated 21.04.2010 passed by Central

Administrative Tribunal operates as res-judicata?

(4)

Whether claimant rendered continuous service of

240 days as contemplated by section 25B of the

Industrial Disputes Act, 1947?

(5)

Whether the claimant is entitled to relief of

reinstatement in service?

To discharge onus resting on him, the claimant

examined himself and closed his evidence. The

management examined Ms.Suresh Singhal to substantiate

its case.

Arguments were heard at the bar. Ms.Madhvi K

Deva, authorized representative, advanced arguments on

behalf of the claimant. Shri Atul Bhardwaj, authorised

representative, raised submissions on behalf of the

management. Written submissions were also filed by the

parties. I have given my careful considerations to

arguments advanced at the bar and cautiously perused

the records. My findings on issues involved in the

controversy are as follows:-

Issue No. 1

At the outset, the management contends that it is

not an industry within the meaning of section 2(j) of the

Act. It is presented that management is a statutory body

under the Indian Patents Act, 1970 created for granting

patents on new non-obvious inventions. The said activity

is relatable to sovereign functions and cannot be termed

as industry. Shri Bhardwaj concludes that there is no

profit motive in granting patents, which fact would dispel

the contention that activities of the management fall within

the ambit of industry. On the other hand the claimant

asserts that the activities performed by the management

answer the definition of term “Industry”, as enacted by

the Act.

10.

When claim is made by the management that it is

not an industry within the meaning of section 2(j) of the

Act, it becomes expedient to consider the definition of the

term ‘industry’. The Act defines the term ‘industry’ as

follows:

“2(j) ‘industry’ means any business, trade,

undertaking, manufacture or calling of employers

and includes any calling, service, employment,

handicraft, or industrial occupation or avocation of

workmen.”

11.

The definition of “Industry” is both exhaustive and

inclusive. It is in two parts. The first part says that it “means

any business, trade, undertaking, manufacture or calling

of employers” and then goes to say that it “includes any

calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., business,

trade, undertaking, manufacture or calling. The second

part views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes. By this part of the definition any calling,

employment, handicraft, industrial occupation or

avocation of workmen is included in the concept of

industry. This part gives extended connotation.

12.

Gloss was put on the definition of word “Industry”

by the High Courts and the Apex Court time and again.

The question as to what is “Industry” has continuously

baffled and perplexed the courts. A graph of the cases

decided by the Apex Court, if plotted on the background

of the expression used in two parts of the definition of

“Industry”, would represent rather a zig zag curve. There

have been various judicial ventures in this rather volatile

area of law. The decided cases show that the efforts were

made to evolve test by reference to characteristics regarded

as essential for constituting an activity as an “Industry”.

Various cases would show that the Apex Court has been

guided more by empirical rather than a strictly analytical

approach. Most of the decision have centered around the

expression “undertaking” used in the definition. In

Bangalore Water Supply and Sewerage Board (1978 Lab.

I.C. 778) the Apex Court reviewed the earlier decisions on

interpretation of the wide words encompassed in the

definition and formulated positive and negative principles

for identifying “Industry” as enacted by clause (j) of

section 2 of the Act. It would be expedient to reproduce

the authoritative pronouncement of the Court, in the very

words set out in the majority decision, handed down by

Justice Krishna Iyer, which are extracted thus:

3566

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

“I.

“Industry” as defined in S.2(j) and explained in

Banerji (AIR 1953 S.C.58) has a wide import.

(a) Where (i) systematic activity, (ii) organized by

Co-operation between employer and employee (the

direct and substantial element is chimerical) (iii) for

the production and /or distribution of goods and

services calculated to satisfy human wants and

wishes (not spiritual or religious but inclusive of

material things or services geared to celestial bliss

i.e. making, on a large scale prasad or foods) prima

facie, there is an “industry” in that enterprise.

(b) Absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private

or other sector.

is the nature of the activity with special emphasis

on the employer-employee relations.

(d) If the organization is a trade or business it does

not cease to be one because of philanthropy

animating the undertaking.

II.

Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot be

magnified to overreach itself.

(a)“Undertaking” must suffer a contextual and

associational shrinkage as explained in Banerjee and

in this judgement, so also, service, calling and the

like. This yields the inference that all organized

activity possessing the triple elements in 1(supra),

although not trade or business, may still be ‘industry’

provided the nature of activity, viz. the employer-

employee basis, bears resemblance to what we find

in trade or business. This takes into the fold

‘industry’ undertaking, calling and services,

adventures,” analogous to the carrying on the trade

or business”. All features, other than the

methodology of carrying on the activity viz in

organizing the co-operation between employer and

employee, may be dissimilar. It does not matter, if

on the employment terms there is analogy.

III.

Application of these guidelines should not short of

their logical reach by invocation of creeds, cults or

inner sense of incongruity or outer sense of

motivation for or resultant of the economic

operations. The ideology of the Act being industrial

peace, regulation and resolution of industrial

disputes between employer and workmen, the range

of their statutory ideology must inform the reach of

the statutory definition. Nothing less, nothing more.

(a)

The consequences are (i) profession, (ii) clubs

(iii) education institutions, (iv) co-operatives

(v) research institutes, (vi) charitable projects

and (vii) other kindered adventures, if they

fulfil the triple tests listed in 1(supra), cannot

be exempted from the scope of section 2(j).

(b)

A restricted category of professions, clubs,

co-operatives and even gurukulas and little

research labs may qualify for exemption if in

simple ventures, substantially, and going by

the dominant nature criterion, substantively

no employees are entertained but in menial

matters, marginal employees are hired without

destroying the non employee character of the

unit.

(c)

If, in a pious or altruistic mission many employ

themselves, free or for small honoraria or like

return, mainly drawn by sharing in the purpose

or cause, such as lawyers volunteering to run

a free legal services clinic or doctors serving

in their spare hours in a free medical centre or

ashramites working at the bidding of the

holiness, divinity or like central personality,

and the services are supplied free or at nominal

cost and those who serve are not engaged for

remuneration or on the basis of master and

servant relationship, then, the institution is

not an industry even if stray servants, manual

or technical, are hired. Such eleemosynary or

like undertakings alone are exempt not other

generosity, compassion, developmental

passion or project.

IV.

The dominant nature test:

(a)

Where a complex of activities, some of which qualify

for exemption, other not, involves employees on the

total undertaking, some of whom are not “workmen”

as in the University of Delhi case (AIR 1963 S.C.1873)

or some departments are not productive of goods

and services if isolated, even then, the predominant

nature of the services and the integrated nature of

the departments as explained in the Corporation of

Nagpur (AIR 1960 S.C.657) will be the true test. The

whole undertaking will be industry although those

who are not “workmen” by definition may not benefit

by the status.

(b)

Notwithstanding the previous clauses, sovereign

functions, strictly understood (alone) qualify for

exemption, not the welfare activities or economic

adventures undertaking by Govt. or statutory bodies.

(c)

Even in the departments discharging

sovereign functions, if there are units which

are industries and they are substantially

severable, then they can be considered to come

within section 2(j).

(d)

Constitutional and competently enacted

legislative provisions may remove from the

scope of the Act categories which otherwise

may be covered thereby.

¹Hkkx II—[k.M 3(ii)º

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3567

We overrule Safdarjung (AIR 1970 S.C.1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana (AIR

1968 S.C. 554), Delhi University (AIR 1963 S.C.1873),

Dhanrajgiriji Hospital (AIR 1975 SC 2032) and other

rulings whose ratio runs counter to the principles

enunciated above, and the Hospital Mazdoor Sabha

(AIR 1960 SC 610) is hereby rehabilitated.”

13.

Principles laid down in Bangalore Water Supply &

Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The management agitates that it is not an industry. The

view point held by the management is that no profit motive

activities are being carried on by it. No business is being

run, hence the management cannot be termed as an

‘Industry”. Except the facts referred above, the

management nowhere projects any other factors to lay

emphasis on the fact that it is not an ‘industry’.

14.

Whether granting of patents on new non-obvious

inventions would fall within the ambit of material services

to the society? Legal precedents would through light on

the above proposition. In Ahmedabad Textile Industry’s

Research Association [1960 (2) LLJ 720] the Association

was established to carry on research with respect to the

textile industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were held to

be “material services” to the textile industry hence the

Association answered the definition of industry. But in

Safdarjung Hospital case (supra) it was not held to be an

industry because it was a non-profit making body and its

work was in the nature of training, research and treatment.

In Indian Standard Institute [1966 (1) LLJ 33] the Apex

Court suggested that in order to be recognized as an

undertaking analogous to trade or business, the activity

must be an economical activity in the sense that it is

productive of material goods or material services. In

Bangalore Water Supply and Sewerage Board (supra), the

Apex Court laid down that an activity systematically or

habitually undertaken for production or distribution of

goods or for rendering material services to the community

at large or a part of such community with the help of

employees is an undertaking. An ‘industry’ thus was said

to involve co-operation between the employer and

employees for the object of satisfying material human

needs but not for oneself nor for pleasure nor necessity

for profit. Lack of business and profit motive or capital

investment would not take out an activity from the sweep

of ‘industry’, if other conditions are satisfied. It is the

activity in question which attracts the definition and

absence of investment of any capital or the fact that the

activity is conducted for profit motive or not, would not

make material difference. Conversely mere existence of

profit motive will not necessarily convert the activity into

“industry” if other tests are not satisfied.

15.

One may project that the management carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry”? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court

observed that it could not have been in contemplation of

the legislature to bring in the regal functions of the State

within the definition of “industry” and to confer jurisdiction

on Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumbrated the test:

can such activity be carried on by a private individual or

group of individuals? The answer to this is : if a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while

if it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions,

strictly understood, (alone) qualify for exemption, not the

welfare activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

16.

In Physical Research Laboratory [1997 (2) LLJ 625]

the Apex Court held that the Physical Research Laboratory

is not an ‘industry’ because it is not engaged in an activity

which can either be called business, trade or

manufacturing or it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as it is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not

rendering any services to others. It is engaged in pure

research in space science.

17.

While reaching the conclusion, referred above, the

Apex Court relied observations made in Bangalore Water

3568

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Supply (supra) with respect to research institutes, which

observations are extracted thus:

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists,

para-scientists and other personnel. Is scientific

research service? Undoubtedly it is. Its discoveries

are valuable contributions to the wealth of the

nation. Such discoveries may be sold for a heavy

price in the industrial or other markets. Technology

has to be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recorded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratified and grateful earth,

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industries and the nation in terms of

goods and services and wealth. It follows that

research institutes, albeit run without profit-motive,

are industries”.

18.

In the light of the above legal proposition, facts of

the present controversy are to be scanned. Admittedly,

the functions performed by the management do not fall

within the ambit of administration of justice, maintenance

of order, repression of crime, security of borders from

external aggression and legislative powers of the State.

Activities carried out by the management cannot be

described as regal or sovereign activities, since such

activities could be carried out by private individuals or

group of individuals.

19.

As projected by the management, it grants patents

on new non-obvious inventions, which act answers

ingredients of rendering service to the community at large.

Its activities are systematic, performed with co-operation

between the management and its employees. Activities

performed by the management renders service to the

community at large. Therefore, it is evident that the triple

test of industry as propounded in Bangalore Water and

Sewerage Board (supra) stand satisfied in the present case.

It does not lie in the mouth of the management to claim

that it is does not fall within the ambit of “industry” as

defined in section 2(j) of the Act. Mere absence of profit

motive will not necessarily push the activity out of the

pale of industry, as defined by the Act. Resultantly, it is

concluded that activities performed by the management

falls within the ambit of “industry” as defined under

section 2(j) of the Act. The issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 2

20.

In his affidavit Ex.WW1/A, tendered as evidence,

the claimant highlights that he was engaged as a casual

labour/daily wager from 04.08.2006 initially for a period of

89 days. He was deputed by the management for carrying

out works relating to shifting of office from Patel Nagar to

Dwarka. He continued to perform his duties with utmost

dedication and to entire satisfaction of his superiors.

Ms.Suresh Singhal unfolds in her affidavit Ex. MW1/A,

tendered as evidence, that the management has been

engaging services of daily wagers for various jobs.

Claimant was engaged on daily wage basis. From tone

and tenor of her testimony it is obvious that the claimant

was engaged by the management for manual work.

21.

When facts unfolded by the claimant and those

detailed by Ms.Suresh Singhal are appreciated in the light

of the documents proved by the parties, it came over the

record that the claimant was engaged as a casual labour

for manual work. Question for consideration would be as

to whether the claimant can be termed as workman? For

an answer to this proposition, it would be expedient to

have a glance on definition of the term ‘workman’, enacted

by section 2(s) of the Act. For sake of convenience,

definition of term ‘workman’ is reproduced thus:

“2(s) Workman means any person (including an

apprentice) employed in any industry to do any

manual, unskilled, skilled, technical, operational,

clerical or supervisory work for hire or reward,

whether the terms of employment be express or

implied, and for the purposes of any proceeding

under this Act in relation to an industrial dispute

includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute,

but does not include any such person –

(i)

who is subject to the Air Force Act, 1950 (45

of 1950), or the Army Act 1950(46 or 1950) or

the Navy Act, 1957 (62 of 1957), or

(ii)

who is employed in the police service or as an

officer or other employee of a prison, or

(iii)

who is, employed mainly in a managerial or

administrative capacity, or

¹Hkkx II—[k.M 3(ii)º

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3569

(iv)

who, being employed in a supervisory

capacity, draws wages exceeding one

thousand six hundred rupees per mensem or

exercises, either by the nature of the duties

attached to the office or by reason of the

powers vested in him, functions mainly of a

managerial nature”.

22.

The first part of the definition gives statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an “industry” to do any

manual, unskilled, skilled, technical, operational, clerical

or supervisory work for hire or reward. This part determines

what a “workman” means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with

an industrial dispute, or (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the

definition of “workman”. This part gives extended

connotation to the expression “workman”. The third part

specifically excludes the categories of persons specified

in clauses (i) to (iv) of this sub section. The third part

connotes that even if a person satisfies the requirements

of any of the first two parts but if he fails in any of the four

categories in the third part, he shall be excluded from the

definition of ‘workman’. Not only the persons who are

actually employed in an industry but also those who have

been discharged, dismissed or retrenched in connection

with or as a consequence of an industrial dispute, and

whose dismissal, discharge or retrenchment has lead to

that dispute, would fall within the ambit of the definition.

In other words, the second category of persons included

in the definition would fall in the ambit of the definition,

only for the purpose of any proceedings under the Act in

relation to an industrial dispute and for no other purposes.

Therefore, date of reference is relevant and in case a person

falls within the definition of workman on that day, the

Tribunal would be vested with jurisdiction to entertain it

and the jurisdiction would not cease merely because

subsequently the workman ceases to be workman.

23.

For an employee in an industry to be a workman

under this definition, it is manifest that he must be employed

to do skilled or unskilled manual work, supervisory work,

technical work or clerical work. If the work done by an

employee is not of such a nature, he would not be a

workman. The specification of the four types of work

obviously is intended to law down that an employee is to

become a workman only if he is employed to do work of

one of those types, while there may be employees who,

not doing any such work, would be out of the scope of the

word ‘workman’, without having resort to the exceptions.

It cannot be held that every employee of an industry was

to be a workman except those mentioned in the four

exceptions as in that case these four classifications need

not have been mentioned in the definition and a workman

could have been defined as a person employed in an

industry except in cases where he was covered by one of

the exceptions.

24.

In cases where an employee is employed to do purely

skilled or unskilled manual work, or supervisory work or

technical work or clerical work there would be no difficulty

in holding him to be a workman under the appropriate

classification. Frequently, however, an employee is

required to do more than one kind of work. In such cases,

it would be necessary to determine under which

classification he will fall for the purpose of finding out

whether he does not go out of the definition of ‘workman’

under the exceptions. The principle is now well settled

that , for this purpose, a workman must be held to be

employed to do that work which is the main work he is

required to do even though he may incidentally doing

other type of work.

25.

When facts of the present controversy are assessed

on the above proposition of law, it emerges that the

claimant was engaged as casual labour to do manual

unskilled work. The management nowhere disputes that

the claimant was performing manual unskilled work, while

working as casual labour. Work performed by the claimant

clothes him with the status of a workman, as projected

under section 2(s) of the Act. Therefore, these facts make

me to comment that the claimant was a workman within

the meaning of section 2(s) of the Act. The issue is,

therefore, answered in favour of the claimant and against

the management.

Issue No. 3

26.

Question for consideration comes as to whether

order dated 21.04.2010 passed by the CAT operate as

resjudicata? Whether the order, referred above, would

preclude the claimant from re-agitating that very issue?

For an answer it would be considered as to whether the

order, passed by the CAT, precludes the claimant from

raising that very issue before this Tribunal. For an answer

legal principles are to be taken note of. Section 11 of the

Code of Civil Procedure 1908 (in short the Code) embodies

the doctrine of res-judicata or the rule of conclusiveness

of a judgment, as to the point decided either of fact, or of

law, or of fact and law, in every subsequent suit between

the same parties. It enacts that once a matter is finally

decided by a competent court, no party can be permitted

to reopen it in a subsequent litigation. The doctrine of res-

judicata has been explained in the simplest possible manner

by Das Gupta J. in the case of Statyadhyan Ghosal Vs.

Deorajin Debi (AIR 1960 S.C. 941) in the following words:

“The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

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is that once a res-judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter – whether on a

question of fact or a question of law – has been

decided between two parties in one suit or

proceeding and the decision is final, either because

no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to convass the matter

again”.

27.

It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in the

subsequent suit must be the same matter which

was directly and substantially in issue either actually

or constructively in the former.

The former suit must have been a suit between the

same parties or between parties under whom they or

any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court which decided the former suit must be a

court competent to try the subsequent suit or the

suit in which such issue is subsequently raised.

The matter directly and substantially in issue in the

subsequent suit must have been heard and finally

decided by the court in the former suit.

28.

Section 11 of the Code bars trial of any suit as well

as an issue which had been decided in a former suit. Issue

are of three kinds: (i) Issue of fact; (ii) Issue of law ; and

(iii) Mixed issues of law and fact. A decision on an issue

of fact, however erroneous it may be, constitutes res-

judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad Vs. Dossibai [1970(1)

SCC 613]. A mixed issue of law and fact also, for the same

reasons, operates as res-judicata.

29.

To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent

to try the subsequent suit, will not operate as res-judicata.

The expression “competent to try” means “competent to

try the subsequent suit if brought at the time the first suit

was brought”. In other words, the relevant point of time

for deciding the question of competence of the court is

the date when the former suit was brought and not the

date when the subsequent suit was filed. In order that a

decision in a former suit may operate as res-judicata, the

court which decided that suit must have been either –(a) a

court of exclusive jurisdiction, or (b) a court of limited

jurisdiction; or (c) a court of concurrent jurisdiction.

30.

For articulation of an industrial dispute, the labour

court or an industrial tribunal exercise adjudicatory

jurisdiction. Task of an industrial adjudicator is tedious,

who has to reconcile the head-on clash between the

fundamental rights guaranteed by the constitution such

as freedom of trade, freedom to practice any profession or

to carry on any occupation and the directive principles

enshrined in the constitution which are fundamental in

the governance of the country. He has also the delicate

task of balancing the conflicting interest of employer,

employee and the public on very basic policies, such as,

freedom and sanctity of contract, protection of business,

right to work, making training available to employees,

earning of livelihood for oneself and family, utilization of

one’s skill and talent, continued productivity, betterment

of one’s status, avoidance of one’s becoming a public

charge, encouragement of competition and development

of national and international trade and avoidance of

monopoly, promotion of collective bargaining and

elimination of indiscipline in industry and so on. Questions

on above issues are to be adjudicated by an industrial

adjudicator. Though the constitution has vested powers

of judicial review in High Courts and invested it with power

to sit in appeal over the awards of industrial tribunals, yet

industrial tribunals are courts of exclusive jurisdiction on

the matters, which are referred to them by the appropriate

Government under Section 10 of the Act.

31.

In Nawab Hussain, (1977 Lab. I.C.911), the Apex

Court enunciated general principles of doctrine of res-

judicata as under:

“The principle of estoppel per res-judicata is a rule

of evidence. As has been stated in Marginson V.

Blackburn Borough Council [1939 (2) KB 426 at P.437]

it may be said to be “the broader rule of evidence

which prohibits the reassertion of a cause of action.”

This doctrine is based on two theories: (i) the finality

and conclusiveness of judicial decisions for the final

termination of disputes in the general interest of the

community as a matter of public policy, and (ii) the

interest of the individual that he should be protected

from multiplication of litigation. It, therefore, serves

not only a public but also a private purpose by

obstructing the reopening of matters which have

once been adjudicated upon. It is thus not

permissible to obtain a second judgment for the same

civil relief on the same cause of action, for otherwise

the spirit of contentiousness may give rise to

conflicting judgments of equal authority, lead to

multiplicity of actions and bring the administration

of justice into disrepute. It is the cause of action

which gives rise to an action, and that is why it is

necessary for the courts to recognize that a cause of

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action which results in a judgment must lose its

identity and vitality and merge in the judgment when

pronounced. It cannot therefore survive the

judgment, or give rise to another cause of action on

the same facts. This is what is known as the general

principle of res-judicata.”

32.

Whether CAT is competent to try an industrial

dispute? Answer to this proposition would emerge out of

section 14 of the Administrative Tribunal Act, 1985, which

contemplates that the CAT shall exercise jurisdiction,

powers and authority in relation to recruitment and matters

concerning any civil services or civil post in the Union.

For sake of convenience, provisions of sub-section (1) of

section 14 of the Administrative Tribunal Act, 1985 are

extracted thus:

“14(1) Save as otherwise expressly provided in this

Act, the Central Administrative Tribunal shall

exercise, on and from the appointed day, all the

jurisdiction, powers and authority exercisable

immediately before that day by all courts except the

Supreme Court in relation to—

(a) recruitment, and matters concerning recruitment,

to any All India Service or to any civil service of the

Union or a civil post under the Union or to a post

connected with defence or in the defence services,

being, in either case, a post filled by a civilian;

(b) all service matters concerning—

(i)

a member of any All India Service; or

(ii)

a person, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any civil service of the Union or

any civil post under the Union; or

(iii)

a civilian, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any defence services or a post

connected with defence, and pertaining to the

service of such member, person or civilian, in

connection with the affairs of the Union or of

any State or of any local or other authority

within the territory of India or under the control

of the Government of India or of any

corporation or society owned or controlled

by the Government;

connection with the affairs of the Union concerning

a person appointed to any service or post referred

to in sub- clause (ii) or sub- clause (iii) of clause (b),

being a person whose services have been placed by

a State Government or any local or other authority

or any corporation or society or other body, at the

disposal of the Central Government for such

appointment”.

33.

Section 28 of the Administrative Tribunals Act, 1985

projects that an Industrial Tribunal, Labour Court or other

authority constituted under the Act shall exercise

jurisdiction in respect of service conditions and matters

contained in the Act. For sake of convenience, provisions

of the said section are reproduced thus:

“28. ‘On and from the date from which any

jurisdiction, powers and authority becomes

exercisable under this Act by a Tribunal in relation

to recruitment and matters concerning recruitment

to any service or post or service matters concerning

members of any service or persons appointed to

any service or post, no court except-

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other

authority constituted under the Industrial Disputes

Act, 1947 or any other corresponding law for the

time being in force, shall have or be entitled to

exercise any jurisdiction, powers or authority in

relation to such recruitment or matters concerning

such recruitment or such service matters.”

34.

The above provisions make it apparent that though

CAT shall exercise all jurisdiction, powers and authority

in relation to recruitment to any civil service or post under

the Union or to a post connected with defence or in the

defence services, in either case, a post filled by a civilian,

yet an Industrial Tribunal constituted under the Act shall

have jurisdiction in relation to recruitment and matters

concerning recruitment, in service or post or services

matters concerning any person who falls within the ambit

of the Act. Therefore, on plain reading of section 28 of the

aforesaid Act, it emerges that the CAT exercises concurrent

jurisdiction with an Industrial Tribunal or Labour Court,

constituted under the Act in relation to recruitment and

matters concerning recruitment to any service or post or

service matters concerning any person, who falls within

the ambit of workmen as defined under the Act.

35.

Whether civil court has jurisdiction in relation to

industrial dispute, the Apex Court dealt with the matter in

Premier Automobiles [1976(1) SCC 496]. On consideration

of catena of decisions on the subject, the Apex Court

enunciated following principles:

“(1) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right under

the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out

of a right or liability under the general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election of

the suitor concerned to choose his remedy for the

relief which is competent to be granted in particular

remedy.

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(3) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suitor is to get

an adjudication under the Act.

(4) If the right which is sought to be enforced is a

right created under the Act such as Chapter VA then

the remedy for its enforcement is either section 33C

or the raising of an industrial dispute, as the case

may be.

We may, however, in relation to principle 2 stated

above hasten to add that there will hardly be a

dispute which will be an industrial dispute within

the meaning of section 2(k) of the Act and yet will be

one arising out of a right or liability under the general

or common law only and not under the Act. Such a

contingency, for example, may arise in regard to the

dismissal of an unsponsored workman which in view

of the provision of law contained in Section 2A of

the Act will be an industrial dispute even though it

may otherwise be an individual dispute. Civil Courts,

therefore, will have hardly an occasion to deal with

the type of cases falling under principle 2. Cases of

industrial disputes by and large, almost invariably,

are bound to be covered by principle 3 stated

above.”

36.

While analysing principles adumbrated in Premier

Automobiles (supra), the Apex Court in Rajasthan State

Road Transport Corporation [1995(5) SCC 75] summarised

those principle as follows:

“(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

“industrial dispute’’ within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of right and

obligations created by enactment like Industrial

Employment (Standing Orders) Act, 1946 which can

be called “sister enactments” to Industrial Disputes

Act-and which do not provide a forum for resolution

of such disputes, the only remedy shall be to

approach the forums created by the Industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an industrial dispute or says that it shall

be adjudicated by any of the forums created by the

Industrial Disputes Act. Otherwise, recourse to civil

court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the Government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the Government is entitled to

examine whether the dispute is ex facie frivolous,

not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

recommend to Parliament and the State Legislatures

to make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly i.e.,

without the requirement of a reference by the

Government in case of industrial disputes covered

by Section 2-A of Industrial Disputes Act. This would

go a long way in removing the misgivings with

respect to the effectiveness of the remedies provided

by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to “statutory provisions”. Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created

by the Industrial Disputes Act or the civil court where

recourse to civil court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute-resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and unencumbered by the plethora of

procedural laws and appeals upon appeals and

revisions applicable to civil courts. Indeed, the

powers of the courts and tribunals under the

Industrial Disputes Act are far more extensive in the

sense that they can grant such relief as they think

appropriate in the circumstances for putting an end

to an industrial dispute.

37.

As detailed above, the Apex Court ruled that when

a dispute involves recognition, observance or enforcement

of any of the rights or obligations created by the Act, the

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3573

only remedy is to approach the forums created by the Act

only. For adjudication of an industrial dispute, which falls

within the ambit of the Act, the CAT does not have any

jurisdiction. It is obvious that provisions of section 28 of

the Administrative Tribunals Act, 1985 are in contradiction

to the law laid down by the Apex Court, when it relates to

exercise of jurisdiction, powers or authority in relation to

recruitment or matters concerning such recruitment or

conditions of service of any person, who happens to be a

workman within the meaning of section 2(s) of the Act.

This proposition was considered by the CAT in its decision

in A. Padmavalley etc. [1991(1) SLR 245] wherein

proposition of law laid in Premier Automobile (supra),

provisions of the Act as well as provisions of

Administrative Tribunals Act, 1985 were construed and it

was ruled that the CAT is not a substitute for the

authorities constituted under the Act and does not exercise

concurrent jurisdiction in regard to matters covered by

the Act. The CAT concluded the proposition as follows:

(i)

Administrative Tribunal constituted in the

Administrative Tribunals Act are not substitutes for

the authorities constituted under the Industrial

Tribunals Act and hence the Administrative Tribunal

does not exercise concurrent jurisdiction with those

authorities in regard to matters covered by that Act.

Hence, all matters over which the Labour Court or

the Industrial Tribunal or other authorities had

jurisdiction under the Industrial Disputes Act, do

not automatically become vested in the

Administrative Tribunal for adjudication. The

decision in the case of Sisodia, which lays down a

contrary interpretation is, in our opinion, not correct.

(ii)

An applicant seeking relief under the provisions of

the Industrial Disputes Act must ordinarily exhaust

the remedies available under that Act.

(iii)

The powers of the Adminstrative Tribunal are the

same as that of the High court under Article 226 of

the Constitution and the exercise of that

discretionary power would depend upon the facts

and circumstances of each case as well as on the

principles laid down in the case of Rohtas Industries

(supra).

(iv)

The interpretation given to the term ‘arrangement in

force’ by the Jabalpur Bench in Rammoo’s case is

not correct.”

38.

In view of the legal principles laid above, it is evident

that CAT does not exercise concurrent jurisdiction with

this Tribunal in regard to rights and obligations arising

out of the Act. Resultantly, it is crystal clear that the CAT

is not competent to adjudicate the industrial dispute, and

as such order passed by it in OA No.1138 of 2010 on

21.04.2010 would not operate as res judicata. Submissions

made by Shri Bhardwaj, to the effect that the claimant

cannot re-agitate the very issue, which was adjudicated

by the CAT vide order dated 21.4.2010, are untenable. Issue

is, therefore, answered in favour of the claimant and

against the management.

Issue No. 4.

39.

For seeking protection under section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub section (1) of section 25B

of the Act. Sub-section (2) of the said section introduces

a fiction to the effect that even if a workman is not in

“continuous service” within the meaning of clause (1) for

a period of one year or six months, he shall be deemed to

in continuous service for that period under an employer if

he has actually worked for the days specified in clauses

(a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enquiry

has to be made to find out whether the workman actually

worked for not less than 240 days during the period of 12

calendar months immediately preceding the retrenchment.

40.

In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus:

“Under section 25-B a workman, who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days, is to be

deemed to have completed one year’s service in the

industry. Consequently an enquiry has to be made

to find out whether the workman had actually worked

for not less than. 240 days during period of 12

calendar months immediately preceding the

retrenchment. These provisions of law do not show

that a workman after satisfying the test under section

25B has further to show that he has worked during

all the period he has been in the service of the

employer for 240 days in the year”.

41.

Interruption of service occurred during the course

of job has to be included in uninterrupted services. Fiction

under section 25-B of the Act will operate if workman

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has actually worked for 240 days in a calendar year. The

explanation appended to section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

sundays and saturdays for which full wages are paid.

The Apex Court was confronted with such a proposition

in American Express Banking Corporation [1985 (2) LLJ

539], wherein it was ruled that the expression ‘actually

worked under the employer’. cannot mean those days only

when the workman worked with hammer, sickle or pen, but

must necessarily comprehend all those days during which

he was in the employment of the employer and for which

he had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that sundays and other

holidays, would be comprehended in the words “actually

worked” and it countenanced the contention of the

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

had actually worked though he had not so worked and no

other days. The Court observed that the explanation is

only clarificatory, as all explanations are, and cannot be

used to limit the expanse of the main provision. Precedent

in Lalappa Lingappa [1981 (1) LJ 308] was distinguished

by the Apex Court in the case referred above. The

precedent was followed in Standard Motor Products of

India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from

the law laid above that sundays and holidays shall be

included in computing continuous service under section

25-B of the Act.

42.

The claimant unfolds that he was initially engaged

by the management on 07.05.2007 as daily wager. He

continuously performed his duties till 30.03.2009. He

rendered continuous service with the management for the

period referred above. On this issue, Ms. Suresh Singhal

projects that the claimant was engaged at different

intervals, which spells have been reproduced in chart

Ex.MW1/4. According to her, sundays and holidays were

not counted while reckoning period for which claimant

worked with the management. When Ex.MW1/4 is

scanned, it came to light that in preceding 12 months from

31.03.2009, the date when his services were dispensed

with, claimant had rendered continuous service of 251

days. He had rendered 201 days service in preceding 12

months from April 2008. Period of service, rendered by the

claimant, as detailed above, nowhere includes sundays

and holidays. In a year, an employee may get 52 weekly

offs, besides three national holidays. In case 52 weekly

offs and three national holidays are added to the periods

referred above, in the year reckoned from April 2008 to

March 2007, he reaches notional figure of 240 days, to

claim continuous service for a period of one year. Thus

the claimant could show that he served for a period of two

years continuously, as contemplated by provisions of

section 25B of the Act. Issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 5

43.

An employer may discharge a portion of his labour

force as surplusage in a running or continuing business

for variety of reasons, e.g., for economy, convenience,

rationalization in industry, installation of a new labour

saving machinery etc. The Act defines “termination by

the employer of the service of a workman for any reasons

whatsoever”, except the categories exempted in sub-

section 2(oo), to be retrenchment. The definition of the

term “retrenchment”, as enacted by the Act, is extracted

thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include-

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb) termination of the services of the workman as

a result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation

in that behalf contained therein; or

(c)

termination of the services of a workman on

the ground of continued ill-health”.

44.

Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer “for any reason whatsoever”

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement

of workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

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3575

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. [1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

45.

Section 25F of the Act lays down conditions pre-

requisite to retrenchment, which are as follows:

(i)

There should be one month’s notice in writing to

the workman concerned.

(ii)

The notice should specify the reasons for

retrenchment.

(iii)

The period of one month’s notice should have expired

before retrenchment is enforced, or the workman

has been paid in lieu of such notice the wages for

the period.

(iv)

The workman has been paid retrenchment

compensation which should be equivalent to 15

days’ average pay for every one years’ service or

any part thereof provided it exceeds six months.

(v)

The notice is also given to the appropriate

Government.

46.

On turning to fact it came to light that the claimant

projects that his services were dispensed with on

30.03.2009. In that regard, Ms.Singhal projects that the

claimant was not engaged any further with effect from

30.03.2009. It is not the case of the management that the

claimant was well aware that his engagement was for a

specified period and would come to an end on expiry of

the period, so specified in his engagement order. Exception

contained in sub-clause (bb) of sub-section (oo) of section

2 of the Act is not applicable to his case. For applicability

of sub clause (bb) of sub-section (oo) of section 2 of the

Act the management is under an obligation to establish

following counts:

(i)

that the workman was employed in a project or

scheme of temporary duration;

(ii)

the employment was on a contract, and not as a

daily-wager simpliciter, which provided inter alia that

the employment shall come to an end on the expiry

of the scheme or project; and the employment came

to an end simultaneously with the termination of the

scheme or project and consistently with the terms

of the contract.

47.

When facts unfolded by Ms.Singhal are scanned, it

came to light that the claimant was not employed in a

project or a scheme of temporary duration. He was not

employed on a contract of specified duration. As per the

case of the management, he was a daily wager simpliciter.

These facts make it clear that action of disengaging the

claimant does not fall within the exception created by either

main clause or exception contained in second limb of

section 2(oo) of the Act. Therefore, dispensing with

services of the claimant for any reason whatsoever would

amount to retrenchment.

48.

Admittedly, no notice for a period of one month or

pay in lieu thereof was given to the claimant, as testified

by Ms. Singhal. No retrenchment compensation was paid

to him at that time. Thus it is evident that services of the

claimant were retrenched without payment of notice pay,

and retrenchment compensation. It is well settled that in a

case of wrongful retrenchment, dismissal or discharge,

the normal rule is to award reinstatement. But where a

case falls in any of the exception to general rule, the

industrial adjudicator has discretion to award reasonable

and adequate compensation, in lieu of re-instatement.

Section 11A of the Act vests the industrial adjudicator

with discretionary jurisdiction to give “such other relief to

the workman” in lieu of discharge or dismissal as the

circumstances of the case may require, where for some

valid reasons it considers that reinstatement with or

without conditions will not be fair or proper.

49.

In Uma Devi [2006 (4) SCC I] the Apex Court

considered the proposition as to whether the persons who

got employment, without following of a regular procedure

or even from the back door or on daily wages can be

ordered to be made permanent in their posts, to prevent

regular recruitment to the posts concerned. Catena of

decisions over the subject were considered and the court

declined the submissions of the workmen to be made

permanent on the posts which were held by them in

temporary or ad-hoc capacity for a fairly long spell. The

Court ruled thus:

“With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insists on the State making regular

and proper recruitments, and is bound not to

encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment. The

direction to make permanent-the distinction between

regularization and making permanent, was not

emphasized here–can only encourage the State, the

model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many

waiting to compete. With respect the directions made

in Piara Singh [1992(4) SCC 118] is to some extent

inconsistent with the conclusion in para 45 of the

said judgement therein. With great respect, it appears

to us that the last of the directions clearly runs

counter to the constitutional scheme of employment

recognized in the earlier part of the decision. Really,

it cannot be said that this decision has laid down

the law that all ad-hoc, temporary or casual

employees engaged without following a regular

recruitment procedure should be made permanent”.

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THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

50.

Taking note of some of recent decisions, the Apex

Court held that the State does not enjoy a power to make

appointments in terms of Article 162 of the Constitution.

The Court quoted its decision in Girish Jyanti Lal Vaghela

[2006 (2) SCC 482] with approval, wherein it was rule thus.

“The appointment to any post under the State can

only be made after a proper advertisement has been

made inviting applications from eligible candidates

and holding of a selection by a body of experts or a

specially constituted committee, whose members are

fair and impartial, through a written examination or

interview or some other rational criteria for judging

the inter se merit of candidates, who have applied in

response to the advertisement made. A regular

appointment to the post under the State or Union

cannot be made without issuing advertisement in

the prescribed manner which may in some cases

include inviting applications from the employment

exchange, where eligible candidate get their names

registered. Any regular appointment made on a post

under the State or Union without issuing

advertisement inviting applications from eligible

candidates and without holding a proper selection

where all eligible candidates get a fair chance to

compete would violate the guarantee enshrined

under Article 16 of the Constitution”.

51.

In P.Chandra Shekhara Rao and Others [2006 (7) SCC

488] the Apex Court referred Uma Devi’s Case (supra) with

approval. It also relied the decision in a Uma Rani [2004 (7)

SCC 112] and ruled that no regularization is permissible in

exercise of statutory powers conferred in Article 162 of

the Constitution, if the appointments have been made in

contravention of the statutory rules. In Somveer Singh

[2006 (5) SCC 493] the Apex Court ruled that appointment

made without following due procedure cannot be

regularized. In Indian Drugs & Pharmaceuticals Ltd. [2007

(1) SCC 408] the Apex Court reiterated the law and

announced that the rules of recruitment can not be relaxed

and court can not direct regularisation of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

52.

In Uma Devi (supra) it was laid that “when a person

enters a temporary employment or get engagement as

contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed for the post,

when an appointment to the post could be made only by

following a proper procedure or selection in any concerned

cases, in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of

those precedent neither continuance nor regularisation of

services of the claimants can be ordered, since it would

amount to back door entry into Government job”.

53.

Whether the claimant was back door entrant ?

Answer lies in negative. As per facts, unfolded by the

management, name of the claimant was sponsored by the

employment exchange. Provisions of Employment

Exchanges (Compulsory Notification of Vacancies) Act,

1959 casts obligation on an employer to notify vacancies

to an employment exchange, before filling vacancies in

any employment in its establishment. Section 3 of that Act

enlists certain vacancies to which it does not apply.

Provisions of the said section are detailed as follows:

“3. Act not to apply in relation to certain vacancies.-

(1)

This Act shall not apply in relation to vacancies.-

(a)

in any employment in agriculture (including

horticulture) in any establishment in private

sector other than employment as agricultural

or farm machinery operatives;

(b)

in any employment in domestic service ;

(c)

in any employment the total duration of which

is less than three months;

(d)

in any employment to do unskilled office work;

(e)

in any employment connected with the staff

of Parliament.

(2)

Unless the Central Government otherwise directs

by notification in the Official Gazette in this behalf,

this Act shall not also apply in relation to-

(a)

vacancies which are proposed to be filled

through promotion or by absorption of surplus

staff of any branch or department of the same

establishment or on the result of any

examination conducted or interview held by,

or on the recommendation of, any independent

agency, such as the Union or a State Public

Service Commission and the like;

(b)

vacancies in any employment which carries a

remuneration of less than sixty rupees in a

month”.

54.

Clause (i) of section 2 of that Act gives definition of

“unskilled office work” wherein an employee doing any

routine work or unskilled work has been included. For

convenience sake the said definition is extracted thus:

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3577

“Unskilled office work” means work done in an

establishment by any of the following categories of

employees, namely, -

(1)

daftri,

(2)

jamadar, orderly and peon;

(3)

dusting man or farash;

(4)

bundle or record lifter ;

(5)

process server;

(6)

watchman;

(7)

sweeper;

(8)

any other employee doing any routine or

unskilled work which Central Government

may, by notification in the Official Gazette,

declare to be unskilled office work”.

55.

As projected above provisions of that Act are not

applicable to vacancies relating to “unskilled office work”.

The object of the aforesaid Act is not to restrict, but to

enlarge field of choice so that employer may choose best

and most efficient and to provide an opportunity to the

worker to have his claim for appointment considered

without having to knock at every door for employment.

Office Memorandum No.114/11/64-Estt.(D) dated 21.3.64

was issued by Ministry of Home Affairs, Government of

India, emphasizing that all vacancies in Central Government

establishments, other than those filled through the Union

Public Service Commission, should be notified to the

nearest employment exchange and no department or office

should fill any vacancy by direct recruitment unless the

employment exchange certified that they were unable to

supply suitable candidates. Office memorandum No.14024/

2/77-Estt.(D) dated 12.4.77 was issued by Department of

Personnel and Training laying stress on proposition that

all vacancies arising in Central Government offices/

establishments (including quasi government institutions

and statutory organizations) irrespective of the nature and

duration other than filled from the U.P.S.C. are not only to

be notified, but also to be filled through the employment

exchange alone and other permissible source of recruitment

can be taped only if employment exchange concerned

issued a non availability certificate. There can be no

deviation from this recruitment procedure unless a different

arrangement in this regard has been previously agreed to

in consultation with the department of Personnel and

Training and Ministry of Labour.

56.

A gloss was put on these instructions by the Apex

Court in N. Hargopal [1987(3) SCC 308] wherein it was

ruled that the Government is at perfect liberty to issue

instructions to its own departments and organizations

provided the instructions do not contravene any

constitutional provision or any statute, these instructions

cannot bind other bodies which are created by statute

and which functions under the authority of statute. In the

absence of any statutory prescription the statutory

authority may, however, adopt and follow such

instructions if it thinks fit. The court concluded that in

case of public appointment it is necessary to eliminate

arbitrariness, favourtism and introduce uniformity of

standards and orderliness in the matter of employment.

There has to be an element of procedural fairness in

recruitment. If a public employer chooses to receive

applications for employment where and when he pleases,

and chooses to make appointment as he likes a grave

element of arbitrariness is certainly introduced. The Court

went on to say that in the absence of a better method of

recruitment any restriction that employment in Government

departments should be through the medium of employment

exchanges does not offend Article 14 and 16 of the

Constitution. Hence it emerges that above instructions

were affirmed by the Apex Court and the management was

bound to follow those instructions, in making an

engagement for the position of unskilled office work.

57.

These instructions were complied with by the

management when claimant was engaged by it. Thus

engagement of the claimant through employment exchange

was in consonance with the laid down procedure. It can

not be said that he was a back door entrant on the job.

Hence I say that the management could not show any

case where relief of reinstatement should be denied to the

claimant.

58.

As regards back wages, no evidence has been

brought to the effect that the claimant remained

unemployed. Therefore it seems not to be a case of grant

of full back wages. However no principles are available to

assess as to what amount of back wages should be

awarded. Principles for award of compensation is available

in some precedents, which are taken in to account. In

S.S.Shetty [1957 (11) LLJ 696] the Apex Court indicated

some relevant factors which an adjudicator has to take

into account in computing compensation in lieu of

reinstatement, in the following words:

“The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party,

the possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future…. In computing

the money value of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefits etc. would be till he attained the age of

superannuation and the value of such benefits

would have to be computed as from the date when

such reinstatement was ordered under the terms of

the award.

3578

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Having regard to the considerations detailed

above, it is impossible to compute the money value

of this benefit of reinstatement awarded to the

appellant with mathematical exactitude and the best

that any tribunal or court would do under the

circumstances would be to make as correct as

estimate as is possible bearing, of course in mind all

the relevant factors pro and con”.

59.

A Divisional Bench of the Patna High Court in

B.Choudhary Vs. Presiding Officer, Labour Court,

Jamshedpur (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee’s age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer’s business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab.I.C.1887).

60.

In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that “it would be fair and just to direct the appellant a

substantial sum as compensation to her”. In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the

employee awarded by the Industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K.Roy [1970 (1) LLJ 228] compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count

converted the award of reinstatement into compensation

of a sum of Rs.50000 as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P.Bhandari [1986 (II) LLJ 509], the Apex Court

observed that it was a fit case for grant of compensation

in view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In

M.K.Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the

back salary to 50% of what would otherwise be payable to

the employee. In Yashveer Singh (1993 Lab.I.C.44) the

court directed payment of Rs.75000 in view of reinstatement

with back wages. In Naval Kishor [1984 (II) LLJ 473] the

Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs.2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj [1985 (II) LLJ 19] a sum of Rs.2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C.1225) a compensation of Rs. 2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab.I.C.107) a compensation of Rs. 65000 was granted

in lieu of reinstatement, since the employee was gainfully

employed elsewhere. In V.V.Rao (1991 Lab.I.C.1650) a

compensation of Rs. 2.50 lac was awarded in lieu of

reinstatement.

61.

As held in preceding sections the claimant could

show a case of reinstatement in the service of the

management with continuity. Accordingly it is ordered that

he shall be reinstated in service by the management.

Relying on principles of law laid for grant of compensation

and on consideration of facts in entirety it is held that the

claimant shall get 40% of his last drawn wages as back

wages for the period of interregnum. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dr. R.K. YADAV, Presiding Officer

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New Delhi, the 15th April, 2014

S.O. 1357.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 104/

2012) of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Controller General, Patent & Design

Trade Marks, Patent Office and their workman, which was

received by the Central Government on 11/04/2014.

[No. L-42025/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

¹Hkkx II—[k.M 3(ii)º

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3579

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.I, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D.No. 104/2012

Shri Raju Kumar Sah

S/o Sh.Punya Dev Prasad,

R/o H.No.52/333, IInd FLoor,

Gali No.10, Madanpuri West Sagarpur,

New Delhi-110046.

.....Workman

Versus

The Controller General

Patent & Design Trade Marks,

Through Assistant Controller of Patent

& Design, Patent Office,

Baudhik Sampada Bhawan,

Dwarka, New Delhi-110078.

.....Management

AWARD

The Controller General, Patents, Designs and Trade

Marks (hereinafter referred to as the management), is a

statutory body created under the provisions of the Indian

Patents Act 1970 for granting patents on new non obvious

inventions. The management is a subordinate office of

the Ministry of Commerce & Industries, Government of

India, New Delhi. The management employed certain

persons through employment exchange to carry out job

of casual/ intermittent nature. The management terminated

services of one of the persons, so employed, namely,

Shri Raju Kumar Sah, without giving one month notice or

pay in lieu thereof and retrenchment compensation. This

irked Shri Raju Kumar Sah, who raised an industrial dispute

before the Conciliation Officer. His claim was contested

by the management, hence conciliation proceedings ended

into a failure. Since 45 days, from the date of moving an

application before the Conciliation Officer, expired

Shri Raju Kumar Sah opted to file his dispute before the

Tribunal using provisions of sub-section (2) of section

2A of the Industrial Disputes Act, 1947 (in short the Act),

without being referred for adjudication by the appropriate

Government under section 10(1)(d) of the Act.

Claim statement was filed by Shri Raju Kumar Sah

pleading that he was engaged as a casual labour/daily

wager by the management on 04.08.2006 through

Employment Exchange, North East District, Directorate of

Employment, Government of India, New Delhi. He initially

worked upto to 30.12.2006. He was again engaged on

15.03.2007. With an ulterior motive, the management gave

break on 01.01.2007 to 14.3.2007 and again engaged him

on 15.03.2007. He worked till 31.03.2009. He was regular,

sincere, obedient and hardworking in his duties, which

fact is corroborated by letter dated 22.12.2008 issued by

the management. He has completed 240 days continuous

service with the management. He was denied salary for

the months of December 2008, January 2009, February 2009

and March 2009. Instead of paying his legal dues, he was

prevented from performing his duties after 31.03.2009.

On 02.04.2009, a representation was made to the

management to allow him to rejoin duties since the person

deployed in his place was doing similar duties. However,

the management failed to consider his case. Thereafter,

under wrong legal advice, an OA No.1138/2010 was filed

before the Central Administrative Tribunal (in short the

CAT) which was withdrawn on 23.05.2012. No notice for

termination of his service was given. Action of termination

of his services is illegal and uncalled for. He is unemployed

since the date of termination of his service. He seeks

reinstatement in service with continuity and full back

wages.

Claim was demurred by the management pleading

that it is a statutory body under the Indian Patents Act,

1970 created for implementing provisions of the aforesaid

Act, for granting patents on new non-obvious inventions.

The management performs sovereign function and as such

does not carry out activities which can be considered as

trade or business. No activity, related to production,

distribution or supply of goods or services meant for

satisfying for human wants, is carried out and hence it is

not an industry. It is also pleaded that the claimant is not

a workman under the provisions of the Act. No appointment

letter or identity card was issued to the claimant. He was

engaged for casual work, which was to be performed

intermittantly. Such casual workers/labourers are neither

holders of civil post nor appointed to any sanctioned

regular post through proper procedure. They are neither

entitled for any pay or perks at par with holder of a civil

post nor can claim continuation of such engagement.

Further as per policy of the Government of India, manpower

for casual job is now outsourced on contract basis through

a private outsourcing agency. Certificate issued by the

management clearly indicates that the claimant worked as

a daily wager. He was called for receiving his outstanding

payment, which he refused to accept. Hence it was

deposited to Government accounts vide challan No.POD/

405/RC dated 29.07.2009 after completion of 90 days as

per Receipt and Payment Rules. Subsequently cheque for

Rs.10,020.00 has been issued to him in November 2012.

The management pleads that the claimant moved an

application before the CAT seeking relief of reinstatement

in service, which application was dismissed vide order

21.4.2010. He again filed an application, which was

dismissed as withdraw on 23.5.2010. The order passed by

the CAT operates as resjudicata. In view of these facts,

claimant is not entitled to any relief. His claim is liable to

be dismissed, pleads the management.

On pleadings of the parties, following issues were

settled:

3580

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

(1)

Whether management is an ‘industry’ within the

meaning of section 2(j) of the Industrial Disputes

Act, 1947?

(2)

Whether the claimant is a ‘workman’ within the

meaning of section 2(s) of the Industrial Disputes

Act, 1947?

(3)

Whether orders dated 21.04.2010 passed by Central

Administrative Tribunal operates as resjudicata?

(4)

Whether claimant rendered continuous service of

240 days as contemplated by section 25B of the

Industrial Disputes Act, 1947?

(5)

Whether the claimant is entitled to relief of

reinstatement in service?

To discharge onus resting on him, the claimant

examined himself and closed his evidence. The

management examined Ms.Suresh Singhal to substantiate

its case.

Arguments were heard at the bar. Ms.Madhvi K

Deva, authorized representative, advanced arguments on

behalf of the claimant. Shri Atul Bhardwaj, authorised

representative, raised submissions on behalf of the

management. Written submissions were also filed by the

parties. I have given my careful considerations to

arguments advanced at the bar and cautiously perused

the records. My findings on issues involved in the

controversy are as follows:-

Issue No. 1

At the outset, the management contends that it is

not an industry within the meaning of section 2(j) of the

Act. It is presented that management is a statutory body

under the Indian Patents Act, 1970 created for granting

patents on new non-obvious inventions. The said activity

is relatable to sovereign functions and cannot be termed

as industry. Shri Bhardwaj concludes that there is no

profit motive in granting patents, which fact would dispel

the contention that activities of the management fall within

the ambit of industry. On the other hand the claimant

asserts that the activities performed by the management

answer the definition of term “industry”, as enacted by

the Act.

10.

When claim is made by the management that it is

not an industry within the meaning of section 2(j) of the

Act, it becomes expedient to consider the definition of the

term ‘industry’. The Act defines the term ‘industry’ as

follows:

“2(j) ‘industry’ means any business, trade,

undertaking, manufacture or calling of employers

and includes any calling, service, employment,

handicraft, or industrial occupation or avocation of

workmen.”

11.

The definition of “industry” is both exhaustive and

inclusive. It is in two parts. The first part says that it

“means any business, trade, undertaking, manufacture or

calling of employers” and then goes to say that it “includes

any calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., business,

trade, undertaking, manufacture or calling. The second

part views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes. By this part of the definition any calling,

employment, handicraft, industrial occupation or

avocation of workmen is included in the concept of

industry. This part gives extended connotation.

12.

Gloss was put on the definition of word “industry”

by the High Courts and the Apex Court time and again.

The question as to what is “industry” has continuously

baffled and perplexed the courts. A graph of the cases

decided by the Apex Court, if plotted on the background

of the expression used in two parts of the definition of

“industry”, would represent rather a zig zag curve. There

have been various judicial ventures in this rather volatile

area of law. The decided cases show that the efforts were

made to evolve test by reference to characteristics regarded

as essential for constituting an activity as an “industry”.

Various cases would show that the Apex Court has been

guided more by empirical rather than a strictly analytical

approach. Most of the decision have centered around the

expression “undertaking” used in the definition. In

Bangalore Water Supply and Sewerage Board (1978 Lab.

I.C. 778) the Apex Court reviewed the earlier decisions on

interpretation of the wide words encompassed in the

definition and formulated positive and negative principles

for identifying “industry” as enacted by clause (j) of

section 2 of the Act. It would be expedient to reproduce

the authoritative pronouncement of the Court, in the very

words set out in the majority decision, handed down by

Justice Krishna Iyer, which are extracted thus:

“I. “Industry” as defined in S.2(j) and explained in

Banerji (AIR 1953 S.C.58) has a wide import.

(a) Where (i) systematic activity, (ii) organized by

Co-operation between employer and employee (the

direct and substantial element is chimerical) (iii) for

the production and /or distribution of goods and

services calculated to satisfy human wants and

wishes (not spiritual or religious but inclusive of

material things or services geared to celestial bliss

i.e. making, on a large scale prasad or foods) prima

facie, there is an “industry” in that enterprise.

(b) Absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private

or other sector.

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is the nature of the activity with special emphasis

on the employer-employee relations.

(d) If the organization is a trade or business it does

not cease to be one because of philanthropy

animating the undertaking.

II.

Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot be

magnified to overreach itself.

(a)“Undertaking” must suffer a contextual and

associational shrinkage as explained in Banerjee and

in this judgement, so also, service, calling and the

like. This yields the inference that all organized

activity possessing the triple elements in 1(supra),

although not trade or business, may still be ‘industry’

provided the nature of activity, viz. the employer-

employee basis, bears resemblance to what we find

in trade or business. This takes into the fold

‘industry’ undertaking, calling and services,

adventures,” analogous to the carrying on the trade

or business”. All features, other than the

methodology of carrying on the activity viz in

organizing the co-operation between employer and

employee, may be dissimilar. It does not matter, if

on the employment terms there is analogy.

III.

Application of these guidelines should not short of

their logical reach by invocation of creeds, cults or

inner sense of incongruity or outer sense of

motivation for or resultant of the economic

operations. The ideology of the Act being industrial

peace, regulation and resolution of industrial

disputes between employer and workmen, the range

of their statutory ideology must inform the reach of

the statutory definition. Nothing less, nothing more.

(a)The consequences are (i) profession, (ii) clubs

(iii) education institutions, (iv) co-operatives (v)

research institutes, (vi) charitable projects and (vii)

other kindered adventures, if they fulfil the triple

tests listed in 1(supra), cannot be exempted from the

scope of section 2(j).

(b)A restricted category of professions, clubs, co-

operatives and even gurukulas and little research

labs may qualify for exemption if in simple ventures,

substantially, and going by the dominant nature

criterion, substantively no employees are entertained

but in menial matters, marginal employees are hired

without destroying the non employee character of

the unit.

(c)If, in a pious or altruistic mission many employ

themselves, free or for small honoraria or like return,

mainly drawn by sharing in the purpose or cause,

such as lawyers volunteering to run a free legal

services clinic or doctors serving in their spare hours

in a free medical centre or ashramites working at the

bidding of the holiness, divinity or like central

personality, and the services are supplied free or at

nominal cost and those who serve are not engaged

for remuneration or on the basis of master and

servant relationship, then, the institution is not an

industry even if stray servants, manual or technical,

are hired. Such eleemosynary or like undertakings

alone are exempt not other generosity, compassion,

developmental passion or project.

IV.

The dominant nature test:

(a) Where a complex of activities, some of which

qualify for exemption, other not, involves employees

on the total undertaking, some of whom are not

“workmen” as in the University of Delhi case (AIR

1963 S.C.1873) or some departments are not

productive of goods and services if isolated, even

then, the predominant nature of the services and

the integrated nature of the departments as explained

in the Corporation of Nagpur (AIR 1960 S.C.657) will

be the true test. The whole undertaking will be

industry although those who are not “workmen” by

definition may not benefit by the status.

(b) Notwithstanding the previous clauses, sovereign

functions, strictly understood (alone) qualify for

exemption, not the welfare activities or economic

adventures undertaking by Govt. or statutory bodies.

functions, if there are units which are industries and

they are substantially severable, then they can be

considered to come within section 2(j).

(d) Constitutional and competently enacted

legislative provisions may remove from the scope

of the Act categories which otherwise may be covered

thereby.

We overrule Safdarjung (AIR 1970 S.C.1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana (AIR

1968 S.C. 554), Delhi University (AIR 1963 S.C.1873),

Dhanrajgiriji Hospital (AIR 1975 SC 2032) and other

rulings whose ratio runs counter to the principles

enunciated above, and the Hospital Mazdoor Sabha

(AIR 1960 SC 610) is hereby rehabilitated.”

13.

Principles laid down in Bangalore Water Supply &

Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The management agitates that it is not an industry. The

view point held by the management is that no profit motive

activities are being carried on by it. No business is being

run, hence the management cannot be termed as an

‘industry”. Except the facts referred above, the management

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nowhere projects any other factors to lay emphasis on the

fact that it is not an ‘industry’.

14.

Whether granting of patents on new non obvious

inventions would fall within the ambit of material services

to the society? Legal precedents would through light on

the above proposition. In Ahmedabad Textile Industry’s

Research Association [1960 (2) LLJ 720] the Association

was established to carry on research with respect to the

textile industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were held to

be “material services” to the textile industry hence the

Association answered the definition of industry. But in

Safdarjung Hospital case (supra) it was not held to be an

industry because it was a non-profit making body and its

work was in the nature of training, research and treatment.

In Indian Standard Institute [1966 (1) LLJ 33] the Apex

Court suggested that in order to be recognized as an

undertaking analogous to trade or business, the activity

must be an economical activity in the sense that it is

productive of material goods or material services. In

Bangalore Water Supply and Sewerage Board (supra), the

Apex Court laid down that an activity systematically or

habitually undertaken for production or distribution of

goods or for rendering material services to the community

at large or a part of such community with the help of

employees is an undertaking. An ‘industry’ thus was said

to involve cooperation between the employer and

employees for the object of satisfying material human

needs but not for oneself nor for pleasure nor necessity

for profit. Lack of business and profit motive or capital

investment would not take out an activity from the sweep

of ‘industry’, if other conditions are satisfied. It is the

activity in question which attracts the definition and

absence of investment of any capital or the fact that the

activity is conducted for profit motive or not, would not

make material difference. Conversely mere existence of

profit motive will not necessarily convert the activity into

“industry’ if other tests are not satisfied.

15.

One may project that the management carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry”? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court

observed that it could not have been in contemplation of

the legislature to bring in the regal functions of the State

within the definition of “industry” and to confer jurisdiction

on Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumbrated the test:

can such activity be carried on by a private individual or

group of individuals? The answer to this is : if a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while

if it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions,

strictly understood, (alone) qualify for exemption, not the

welfare activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

16.

In Physical Research Laboratory [1997 (2) LLJ 625]

the Apex Court held that the Physical Research Laboratory

is not an ‘industry’ because it is not engaged in an activity

which can either be called business, trade or

manufacturing or it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as it is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not

rendering any services to others. It is engaged in pure

research in space science.

17.

While reaching the conclusion, referred above, the

Apex Court relied observations made in Bangalore Water

Supply (supra) with respect to research institutes, which

observations are extracted thus:

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists,

para-scientists and other personnel. Is scientific

research service? Undoubtedly it is. Its discoveries

are valuable contributions to the wealth of the

nation. Such discoveries may be sold for a heavy

price in the industrial or other markets. Technology

has to be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

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fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recorded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratified and grateful earth,

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industries and the nation in terms of

goods and services and wealth. It follows that

research institutes, albeit run without profit-motive,

are industries”.

18.

In the light of the above legal proposition, facts of

the present controversy are to be scanned. Admittedly,

the functions performed by the management do not fall

within the ambit of administration of justice, maintenance

of order, repression of crime, security of borders from

external aggression and legislative powers of the State.

Activities carried out by the management cannot be

described as regal or sovereign activities, since such

activities could be carried out by private individuals or

group of individuals.

19.

As projected by the management, it grants patents

on new non-obvious inventions, which act answers

ingredents of rendering service to the community at large.

Its activities are systematic, performed with co-operation

between the management and its employees. Activities

performed by the management renders service to the

community at large. Therefore, it is evident that the triple

test of industry as propounded in Bangalore Water and

Sewerage Board (supra) stand satisfied in the present case.

It does not lie in the mouth of the management to claim

that it is does not fall within the ambit of “industry” as

defined in section 2(j) of the Act. Mere absence of profit

motive will not necessarily push the activity out of the

pale of industry, as defined by the Act. Resultantly, it is

concluded that activities performed by the management

falls within the ambit of “industry” as defined under

section 2(j) of the Act. The issue is, therefore, answered in

favour of the claimant and against the management.

Issue No. 2

20.

In his affidavit Ex.WW1/A, tendered as evidence,

the claimant highlights that he was engaged as a casual

labour/daily wager from 04.08.2006 initially for a period of

89 days. He was deputed by the management for carrying

out works relating to shifting of office from Patel Nagar to

Dwarka. He continued to perform his duties with utmost

dedication and to entire satisfaction of his superiors.

Ms.Suresh Singhal unfolds in her affidavit Ex.MW1/A,

tendered as evidence, that the management has been

engaging services of daily wagers for various jobs.

Claimant was engaged on daily wage basis. From tone

and tenor of her testimony it is obvious that the claimant

was engaged by the management for manual work.

21.

When facts unfolded by the claimant and those

detailed by Ms.Suresh Singhal are appreciated in the light

of the documents proved by the parties, it came over the

record that the claimant was engaged as a casual labour

for manual work. Question for consideration would be as

to whether the claimant can be termed as workman? For

an answer to this proposition, it would be expedient to

have a glance on definition of the term ‘workman’, enacted

by section 2(s) of the Act. For sake of convenience,

definition of term ‘workman’ is reproduced thus:

“2(s) Workman means any person (including an

apprentice) employed in any industry to do any

manual, unskilled, skilled, technical, operational,

clerical or supervisory work for hire or reward,

whether the terms of employment be express or

implied, and for the purposes of any proceeding

under this Act in relation to an industrial dispute

includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute,

but does not include any such person –

(i)

who is subject to the Air Force Act, 1950 (45

of 1950), or the Army Act 1950(46 or 1950) or

the Navy Act, 1957 (62 of 1957), or

(ii)

who is employed in the police service or as an

officer or other employee of a prison, or

(iii)

who is, employed mainly in a managerial or

administrative capacity, or

(iv)

who, being employed in a supervisory

capacity, draws wages exceeding one

thousand six hundred rupees per mensem or

exercises, either by the nature of the duties

attached to the office or by reason of the

powers vested in him, functions mainly of a

managerial nature”.

22.

The first part of the definition gives statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an “industry” to do any

manual, unskilled, skilled, technical, operational, clerical

or supervisory work for hire or reward. This part determines

what a “workman” means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with

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[PART II—SEC. 3(ii)]

an industrial dispute, or (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the

definition of “workman”. This part gives extended

connotation to the expression “workman”. The third part

specifically excludes the categories of persons specified

in clauses (i) to (iv) of this sub-section. The third part

connotes that even if a person satisfies the requirements

of any of the first two parts but if he falls in any of the four

categories in the third part, he shall be excluded from the

definition of ‘workman’. Not only the persons who are

actually employed in an industry but also those who have

been discharged, dismissed or retrenched in connection

with or as a consequence of an industrial dispute, and

whose dismissal, discharge or retrenchment has lead to

that dispute, would fall within the ambit of the definition.

In other words, the second category of persons included

in the definition would fall in the ambit of the definition,

only for the purpose of any proceedings under the Act in

relation to an industrial dispute and for no other purposes.

Therefore, date of reference is relevant and in case a person

falls within the definition of workman on that day, the

Tribunal would be vested with jurisdiction to entertain it

and the jurisdiction would not cease merely because

subsequently the workman ceases to be workman.

23.

For an employee in an industry to be a workman

under this definition, it is manifest that he must be employed

to do skilled or unskilled manual work, supervisory work,

technical work or clerical work. If the work done by an

employee is not of such a nature, he would not be a

workman. The specification of the four types of work

obviously is intended to law down that an employee is to

become a workman only if he is employed to do work of

one of those types, while there may be employees who,

not doing any such work, would be out of the scope of the

word ‘workman’, without having resort to the exceptions.

It cannot be held that every employee of an industry was

to be a workman except those mentioned in the four

exceptions as in that case these four classifications need

not have been mentioned in the definition and a workman

could have been defined as a person employed in an

industry except in cases where he was covered by one of

the exceptions.

24.

In cases where an employee is employed to do purely

skilled or unskilled manual work, or supervisory work or

technical work or clerical work there would be no difficulty

in holding him to be a workman under the appropriate

classification. Frequently, however, an employee is

required to do more than one kind of work. In such cases,

it would be necessary to determine under which

classification he will fall for the purpose of finding out

whether he does not go out of the definition of ‘workman’

under the exceptions. The principle is now well settled

that , for this purpose, a workman must be held to be

employed to do that work which is the main work he is

required to do even though he may incidentally doing

other type of work.

25.

When facts of the present controversy are assessed

on the above proposition of law, it emerges that the

claimant was engaged as casual labour to do manual

unskilled work. The management nowhere disputes that

the claimant was performing manual unskilled work, while

working as casual labour. Work performed by the claimant

clothes him with the status of a workman, as projected

under section 2(s) of the Act. Therefore, these facts make

me to comment that the claimant was a workman within

the meaning of section 2(s) of the Act. The issue is,

therefore, answered in favour of the claimant and against

the management.

Issue No. 3

26.

Question for consideration comes as to whether

order dated 21.04.2010 passed by the CAT operate as

resjudicata? Whether the order, referred above, would

preclude the claimant from re-agitating that very issue?

For an answer it would be considered as to whether the

order, passed by the CAT, precludes the claimant from

raising that very issue before this Tribunal. For an answer

legal principles are to be taken note of. Section 11 of the

Code of Civil Procedure 1908 (in short the Code) embodies

the doctrine of res-judicata or the rule of conclusiveness

of a judgment, as to the point decided either of fact, or of

law, or of fact and law, in every subsequent suit between

the same parties. It enacts that once a matter is finally

decided by a competent court, no party can be permitted

to reopen it in a subsequent litigation. The doctrine of res-

judicata has been explained in the simplest possible manner

by Das Gupta J. in the case of Statyadhyan Ghosal Vs.

Deorajin Debi (AIR 1960 S.C. 941) in the following words:

“The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res- judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter – whether on a

question of fact or a question of law – has been

decided between two parties in one suit or

proceeding and the decision is final, either because

no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to convass the matter

again”.

27.

It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in the

subsequent suit must be the same matter which

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was directly and substantially in issue either actually

or constructively in the former.

The former suit must have been a suit between the

same parties or between parties under whom they or

any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court which decided the former suit must be a

court competent to try the subsequent suit or the

suit in which such issue is subsequently raised.

The matter directly and substantially in issue in the

subsequent suit must have been heard and finally

decided by the court in the former suit.

28.

Section 11 of the Code bars trial of any suit as well

as an issue which had been decided in a former suit. Issue

are of three kinds: (i) Issue of fact; (ii) Issue of law ; and

(iii) Mixed issues of law and fact. A decision on an issue

of fact, however erroneous it may be, constitutes res-

judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad Vs. Dossibai [1970(1)

SCC 613]. A mixed issue of law and fact also, for the same

reasons, operates as res-judicata.

29.

To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent

to try the subsequent suit, will not operate as res-judicata.

The expression “competent to try” means “competent to

try the subsequent suit if brought at the time the first suit

was brought”. In other words, the relevant point of time

for deciding the question of competence of the court is

the date when the former suit was brought and not the

date when the subsequent suit was filed. In order that a

decision in a former suit may operate as res-judicata, the

court which decided that suit must have been either –(a) a

court of exclusive jurisdiction, or (b) a court of limited

jurisdiction; or (c) a court of concurrent jurisdiction.

30.

For articulation of an industrial dispute, the labour

court or an industrial tribunal exercise adjudicatory

jurisdiction. Task of an industrial adjudicator is tedious,

who has to reconcile the head-on clash between the

fundamental rights guaranteed by the constitution such

as freedom of trade, freedom to practice any profession or

to carry on any occupation and the directive principles

enshrined in the constitution which are fundamental in

the governance of the country. He has also the delicate

task of balancing the conflicting interest of employer,

employee and the public on very basic policies, such as,

freedom and sanctity of contract, protection of business,

right to work, making training available to employees,

earning of livelihood for oneself and family, utilization of

one’s skill and talent, continued productivity, betterment

of one’s status, avoidance of one’s becoming a public

charge, encouragement of competition and development

of national and international trade and avoidance of

monopoly, promotion of collective bargaining and

elimination of indiscipline in industry and so on. Questions

on above issues are to be adjudicated by an industrial

adjudicator. Though the constitution has vested powers

of judicial review in High Courts and invested it with power

to sit in appeal over the awards of industrial tribunals, yet

industrial tribunals are courts of exclusive jurisdiction on

the matters, which are referred to them by the appropriate

Government under section 10 of the Act.

31.

In Nawab Hussain, (1977 Lab. I.C.911), the Apex

Court enunciated general principles of doctrine of res-

judicata as under:

“The principle of estoppel per res-judicata is a rule

of evidence. As has been stated in Marginson v.

Blackburn Borough Council [1939 (2) KB 426 at P.437]

it may be said to be “the broader rule of evidence

which prohibits the reassertion of a cause of action.”

This doctrine is based on two theories: (i) the finality

and conclusiveness of judicial decisions for the final

termination of disputes in the general interest of the

community as a matter of public policy, and (ii) the

interest of the individual that he should be protected

from multiplication of litigation. It, therefore, serves

not only a public but also a private purpose by

obstructing the reopening of matters which have

once been adjudicated upon. It is thus not

permissible to obtain a second judgment for the same

civil relief on the same cause of action, for otherwise

the spirit of contentiousness may give rise to

conflicting judgments of equal authority, lead to

multiplicity of actions and bring the administration

of justice into disrepute. It is the cause of action

which gives rise to an action, and that is why it is

necessary for the courts to recognize that a cause of

action which results in a judgment must lose its

identity and vitality and merge in the judgment when

pronounced. It cannot therefore survive the

judgment, or give rise to another cause of action on

the same facts. This is what is known as the general

principle of res-judicata.”

32.

Whether CAT is competent to try an industrial

dispute? Answer to this proposition would emerge out of

section 14 of the Administrative Tribunal Act, 1985, which

contemplates that the CAT shall exercise jurisdiction,

powers and authority in relation to recruitment and matters

concerning any civil services or civil post in the Union.

For sake of convenience, provisions of sub-section (1) of

section 14 of the Administrative Tribunal Act, 1985 are

extracted thus:

“14(1) Save as otherwise expressly provided in this

Act, the Central Administrative Tribunal shall

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exercise, on and from the appointed day, all the

jurisdiction, powers and authority exercisable

immediately before that day by all courts except the

Supreme Court in relation to—

(a) recruitment, and matters concerning recruitment,

to any All India Service or to any civil service of the

Union or a civil post under the Union or to a post

connected with defence or in the defence services,

being, in either case, a post filled by a civilian;

(b) all service matters concerning—

(i)

a member of any All India Service; or

(ii)

a person, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any civil service of the Union or

any civil post under the Union; or

(iii)

a civilian, not being a member of an All India

Service or a person referred to in clause (c),

appointed to any defence services or a post

connected with defence, and pertaining to the

service of such member, person or civilian, in

connection with the affairs of the Union or of

any State or of any local or other authority

within the territory of India or under the control

of the Government of India or of any

corporation or society owned or controlled

by the Government;

connection with the affairs of the Union concerning

a person appointed to any service or post referred

to in sub- clause (ii) or sub- clause (iii) of clause (b),

being a person whose services have been placed by

a State Government or any local or other authority

or any corporation or society or other body, at the

disposal of the Central Government for such

appointment”.

33.

Section 28 of the Administrative Tribunals Act, 1985

projects that an Industrial Tribunal, Labour Court or other

authority constituted under the Act shall exercise

jurisdiction in respect of service conditions and matters

contained in the Act. For sake of convenience, provisions

of the said section are reproduced thus:

“28. ‘On and from the date from which any

jurisdiction, powers and authority becomes

exercisable under this Act by a Tribunal in relation

to recruitment and matters concerning recruitment

to any service or post or service matters concerning

members of any service or persons appointed to

any service or post, no court except-

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other

authority constituted under the Industrial Disputes

Act, 1947 or any other corresponding law for the

time being in force, shall have or be entitled to

exercise any jurisdiction, powers or authority in

relation to such recruitment or matters concerning

such recruitment or such service matters.”

34.

The above provisions make it apparent that though

CAT shall exercise all jurisdiction, powers and authority

in relation to recruitment to any civil service or post under

the Union or to a post connected with defence or in the

defence services, in either case, a post filled by a civilian,

yet an Industrial Tribunal constituted under the Act shall

have jurisdiction in relation to recruitment and matters

concerning recruitment, in service or post or services

matters concerning any person who falls within the ambit

of the Act. Therefore, on plain reading of Section 28 of the

aforesaid Act, it emerges that the CAT exercises concurrent

jurisdiction with an Industrial Tribunal or Labour Court,

constituted under the Act in relation to recruitment and

matters concerning recruitment to any service or post or

service matters concerning any person, who falls within

the ambit of workmen as defined under the Act.

35.

Whether civil court has jurisdiction in relation to

industrial dispute, the Apex Court dealt with the matter in

Premier Automobiles (1976(1) SCC 496). On consideration

of catena of decisions on the subject, the Apex Court

enunciated following principles:

“(1) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right under

the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out

of a right or liability under the general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election of

the suitor concerned to choose his remedy for the

relief which is competent to be granted in particular

remedy.

(3) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suitor is to get

an adjudication under the Act.

(4) If the right which is sought to be enforced is a

right created under the Act such as Chapter VA then

the remedy for its enforcement is either section 33C

or the raising of an industrial dispute, as the case

may be.

We may, however, in relation to principle 2

stated above hasten to add that there will hardly be

a dispute which will be an industrial dispute within

the meaning of section 2(k) of the Act and yet will be

one arising out of a right or liability under the general

or common law only and not under the Act. Such a

contingency, for example, may arise in regard to the

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dismissal of an unsponsored workman which in view

of the provision of law contained in Section 2-A of

the Act will be an industrial dispute even though it

may otherwise be an individual dispute. Civil Courts,

therefore, will have hardly an occasion to deal with

the type of cases falling under principle 2. Cases of

industrial disputes by and large, almost invariably,

are bound to be covered by principle 3 stated

above.”

36.

While analysing principles adumbrated in Premier

Automobiles (supra), the Apex Court in Rajasthan State

Road Transport Corporation (1995(5) SCC 75) summarised

those principle as follows:

“(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

“industrial dispute’’ within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of right and

obligations created by enactment like Industrial

Employment (Standing Orders) Act, 1946 - which

can be called “sister enactments” to Industrial

Disputes Act and which do not provide a forum for

resolution of such disputes, the only remedy shall

be to approach the forums created by the Industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an industrial dispute or says that it shall

be adjudicated by any of the forums created by the

Industrial Disputes Act. Otherwise, recourse to civil

court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the Government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the Government is entitled to

examine whether the dispute is ex facie frivolous,

not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

recommend to Parliament and the State Legislatures

to make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly- i.e.,

without the requirement of a reference by the

Government in case of industrial disputes covered

by Section 2-A of Industrial Disputes Act. This would

go a long way in removing the misgivings with

respect to the effectiveness of the remedies provided

by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to “statutory provisions”. Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created

by the Industrial Disputes Act or the civil court where

recourse to civil court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute-resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and unencumbered by the plethora of

procedural laws and appeals upon appeals and

revisions applicable to civil courts. Indeed, the

powers of the courts and tribunals under the

Industrial Disputes Act are far more extensive in the

sense that they can grant such relief as they think

appropriate in the circumstances for putting an end

to an industrial dispute.

37.

As detailed above, the Apex Court ruled that when

a dispute involves recognition, observance or enforcement

of any of the rights or obligations created by the Act, the

only remedy is to approach the forums created by the Act

only. For adjudication of an industrial dispute, which falls

within the ambit of the Act, the CAT does not have any

jurisdiction. It is obvious that provisions of section 28 of

the Administrative Tribunals Act, 1985 are in contradiction

to the law laid down by the Apex Court, when it relates to

exercise of jurisdiction, powers or authority in relation to

recruitment or matters concerning such recruitment or

conditions of service of any person, who happens to be a

workman within the meaning of section 2(s) of the Act.

This proposition was considered by the CAT in its decision

in A. Padmavalley etc. (1991(1) SLR 245) wherein

proposition of law laid in Premier Automobile (supra),

provisions of the Act as well as provisions of

Administrative Tribunals Act, 1985 were construed and it

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was ruled that the CAT is not a substitute for the

authorities constituted under the Act and does not exercise

concurrent jurisdiction in regard to matters covered by

the Act. The CAT concluded the proposition as follows:

(i)

Administrative Tribunal constituted in the

Administrative Tribunals Act are not substitutes for

the authorities constituted under the Industrial

Tribunals Act and hence the Administrative Tribunal

does not exercise concurrent jurisdiction with those

authorities in regard to matters covered by that Act.

Hence, all matters over which the Labour Court or

the Industrial Tribunal or other authorities had

jurisdiction under the Industrial Disputes Act, do

not automatically become vested in the

Administrative Tribunal for adjudication. The

decision in the case of Sisodia, which lays down a

contrary interpretation is, in our opinion, not correct.

(ii)

An applicant seeking relief under the provisions of

the Industrial Disputes Act must ordinarily exhaust

the remedies available under that Act.

(iii)

The powers of the Adminstrative Tribunal are the

same as that of the High Court under Article 226 of

the Constitution and the exercise of that

discretionary power would depend upon the facts

and circumstances of each case as well as on the

principles laid down in the case of Rohtas Industries

(supra).

(iv)

The interpretation given to the term ‘arrangement in

force’ by the Jabalpur Bench in Rammoo’s case is

not correct.”

38.

In view of the legal principles laid above, it is evident

that CAT does not exercise concurrent jurisdiction with

this Tribunal in regard to rights and obligations arising

out of the Act. Resultantly, it is crystal clear that the CAT

is not competent to adjudicate the industrial dispute, and

as such order passed by it in OA No.1138 of 2010 on

21.04.2010 would not operate as res judicata. Submissions

made by Shri Bhardwaj, to the effect that the claimant

cannot re-agitate the very issue, which was adjudicated

by the CAT vide order dated 21.4.2010, are untenable. Issue

is, therefore, answered in favour of the claimant and

against the management.

Issue No. 4.

39.

For seeking protection under Section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub-section (1) of Section 25-B

of the Act. Sub-section (2) of the said section introduces

a fiction to the effect that even if a workman is not in

“continuous service” within the meaning of clause (1) for

a period of one year or six months, he shall be deemed to

in continuous service for that period under an employer if

he has actually worked for the days specified in clauses

(a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enquiry

has to be made to find out whether the workman actually

worked for not less than 240 days during the period of 12

calendar months immediately preceding the retrenchment.

40.

In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus:

“Under Section 25-B a workman, who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days, is to be

deemed to have completed one year’s service in the

industry. Consequently an enquiry has to be made

to find out whether the workman had actually worked

for not less than 240 days during period of 12

calendar months immediately preceding the

retrenchment. These provisions of law do not show

that a workman after satisfying the test under section

25B has further to show that he has worked during

all the period he has been in the service of the

employer for 240 days in the year”.

41.

Interruption of service occurred during the course

of job has to be included in uninterrupted services. Fiction

under section 25-B of the Act will operate if workman

has actually worked for 240 days in a calendar year. The

explanation appended to section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

sundays and saturdays for which full wages are paid.

The Apex Court was confronted with such a proposition

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in American Express Banking Corporation [1985 (2) LLJ

539], wherein it was ruled that the expression ‘actually

worked under the employer’ cannot mean those days only

when the workman worked with hammer, sickle or pen, but

must necessarily comprehend all those days during which

he was in the employment of the employer and for which

he had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that sundays and other

holidays, would be comprehended in the words ‘actually

worked” and it countenanced the contention of the

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

had actually worked though he had not so worked and no

other days. The Court observed that the explanation is

only clarificatory, as all explanations are, and cannot be

used to limit the expanse of the main provision. Precedent

in Lalappa Lingappa [1981 (1) LJ 308] was distinguished

by the Apex Court in the case referred above. The

precedent was followed in Standard Motor Products of

India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from

the law laid above that sundays and holidays shall be

included in computing continuous service under section

25-B of the Act.

42.

The claimant unfolds that he was initially engaged

by the management on 04.08.2006 as daily wager. He

continuously performed his duties till 31.03.2009. He

rendered continuous service with the management for the

period referred above. On this issue, Ms. Suresh Singhal

projects that the claimant was engaged at different

intervals, which spells have been reproduced in chart

Ex.MW1/5. According to her, sundays and holidays were

not counted while reckoning period for which claimant

worked with the management. When Ex.MW1/5 is scanned,

it came to light that in preceding 12 months from 31.03.2009,

the date when his services were dispensed with, claimant

had rendered continuous service of 252 days. He had

rendered 201 days service in preceding 12 months from

April, 2008. Period of service, rendered by the claimant, as

detailed above, nowhere includes sundays and holidays.

In a year, an employee may get 52 weekly offs, besides

three national holidays. In case 52 weekly offs and three

national holidays are added to the periods referred above,

in the year reckoned from April, 2008 to March, 2007, he

reaches notional figure of 240 days, to claim continuous

service for a period of one year. Thus the claimant could

show that he served for a period of two years continuously,

as contemplated by provisions of section 25-B of the Act.

Issue is, therefore, answered in favour of the claimant and

against the management.

Issue No. 5

43.

An employer may discharge a portion of his labour

force as surplusage in a running or continuing business

for variety of reasons, e.g., for economy, convenience,

rationalization in industry, installation of a new labour

saving machinery etc. The Act defines “termination by

the employer of the service of a workman for any reasons

whatsoever”, except the categories exempted in sub-

section 2(oo), to be retrenchment. The definition of the

term “retrenchment”, as enacted by the Act, is extracted

thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include-

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb) termination of the services of the workman as

a result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation

in that behalf contained therein; or

(c)

termination of the services of a workman on

the ground of continued ill-health”.

44.

Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer “for any reason whatsoever”

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement

of workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. [1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

45.

Section 25F of the Act lays down conditions pre-

requisite to retrenchment, which are as follows:

(i)

There should be one month’s notice in writing to

the workman concerned.

(ii)

The notice should specify the reasons for

retrenchment.

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(iii)

The period of one month’s notice should have

expired before retrenchment is enforced, or the

workman has been paid in lieu of such notice the

wages for the period.

(iv)

The workman has been paid retrenchment

compensation which should be equivalent to 15

days’ average pay for every one years’ service or

any part thereof provided it exceeds six months.

(v)

The notice is also given to the appropriate

Government.

46.

On turning to fact it came to light that the claimant

projects that his services were dispensed with on

30.03.2009. In that regard, Ms.Singhal projects that the

claimant was not engaged any further with effect from

30.03.2009. It is not the case of the management that the

claimant was well aware that his engagement was for a

specified period and would come to an end on expiry of

the period, so specified in his engagement order. Exception

contained in sub-clause (bb) of sub-section (oo) of section

2 of the Act is not applicable to his case. For applicability

of sub-clause (bb) of sub-section (oo) of section 2 of the

Act the management is under an obligation to establish

following counts:

(i)

that the workman was employed in a project or

scheme of temporary duration;

(ii)

the employment was on a contract, and not as a

daily-wager simpliciter, which provided inter alia that

the employment shall come to an end on the expiry

of the scheme or project; and the employment came

to an end simultaneously with the termination of the

scheme or project and consistently with the terms

of the contract.

47.

When facts unfolded by Ms.Singhal are scanned, it

came to light that the claimant was not employed in a

project or a scheme of temporary duration. He was not

employed on a contract of specified duration. As per the

case of the management, he was a daily wager simpliciter.

These facts make it clear that action of disengaging the

claimant does not fall within the exception created by either

main clause or exception contained in second limb of

section 2(oo) of the Act. Therefore, dispensing with

services of the claimant for any reason whatsoever would

amount to retrenchment.

48.

Admittedly, no notice for a period of one month or

pay in lieu thereof was given to the claimant, as testified

by Ms. Singhal. No retrenchment compensation was paid

to him at that time. Thus it is evident that services of the

claimant were retrenched without payment of notice pay,

and retrenchment compensation. It is well settled that in a

case of wrongful retrenchment, dismissal or discharge,

the normal rule is to award reinstatement. But where a

case falls in any of the exception to general rule, the

industrial adjudicator has discretion to award reasonable

and adequate compensation, in lieu of re-instatement.

Section 11A of the Act vests the industrial adjudicator

with discretionary jurisdiction to give “such other relief to

the workman” in lieu of discharge or dismissal as the

circumstances of the case may require, where for some

valid reasons it considers that reinstatement with or

without conditions will not be fair or proper.

49.

In Uma Devi [2006 (4) SCC 1] the Apex Court

considered the proposition as to whether the persons who

got employment, without following of a regular procedure

or even from the back door or on daily wages can be

ordered to be made permanent in their posts, to prevent

regular recruitment to the posts concerned. Catena of

decisions over the subject were considered and the court

declined the submissions of the workmen to be made

permanent on the posts which were held by them in

temporary or ad-hoc capacity for a fairly long spell. The

Court ruled thus:

“With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insists on the State making regular

and proper recruitments, and is bound not to

encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment. The

direction to make permanent the distinction between

regularization and making permanent, was not

emphasized here–can only encourage the State, the

model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many

waiting to compete. With respect the directions made

in Piara Singh [1992(4) SCC 118] is to some extent

inconsistent with the conclusion in para 45 of the

said judgement therein. With great respect, it appears

to us that the last of the directions clearly runs

counter to the constitutional scheme of employment

recognized in the earlier part of the decision. Really,

it cannot be said that this decision has laid down

the law that all ad-hoc, temporary or casual

employees engaged without following a regular

recruitment procedure should be made permanent”.

50.

Taking note of some of recent decisions, the Apex

Court held that the State does not enjoy a power to make

appointments in terms of Article 162 of the Constitution.

The Court quoted its decision in Girish Jyanti Lal Vaghela

[2006 (2) SCC 482] with approval, wherein it was rule thus.

“The appointment to any post under the State can

only be made after a proper advertisement has been

made inviting applications from eligible candidates

and holding of a selection by a body of experts or a

specially constituted committee, whose members are

fair and impartial, through a written examination or

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interview or some other rational criteria for judging

the inter se merit of candidates, who have applied in

response to the advertisement made. A regular

appointment to the post under the State or Union

cannot be made without issuing advertisement in

the prescribed manner which may in some cases

include inviting applications from the employment

exchange, where eligible candidate get their names

registered. Any regular appointment made on a post

under the State or Union without issuing

advertisement inviting applications from eligible

candidates and without holding a proper selection

where all eligible candidates get a fair chance to

compete would violate the guarantee enshrined

under Article 16 of the Constitution”.

51.

In P.Chandra Shekhara Rao and Others [2006 (7) SCC

488] the Apex Court referred Uma Devi’s Case (supra) with

approval. It also relied the decision in a Uma Rani [2004 (7)

SCC 112] and ruled that no regularization is permissible in

exercise of statutory powers conferred in Article 162 of

the Constitution, if the appointments have been made in

contravention of the statutory rules. In Somveer Singh

[2006 (5) SCC 493] the Apex Court ruled that appointment

made without following due procedure cannot be

regularized. In Indian Drugs & Pharmaceuticals Ltd. [2007

(1) SCC 408] the Apex Court reiterated the law and

announced that the rules of recruitment can not be relaxed

and court can not direct regularisation of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

52.

In Uma Devi (supra) it was laid that “when a person

enters a temporary employment or get engagement as

contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed for the post,

when an appointment to the post could be made only by

following a proper procedure or selection in any concerned

cases, in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of

those precedent neither continuance nor regularisation of

services of the claimants can be ordered, since it would

amount to back door entry into Government job”.

53.

Whether the claimant was back door entrant ?

Answer lies in negative. As per facts, unfoleded by the

management, name of the claimant was sponsored by the

employment exchange. Provisions of Employment

Exchanges (Compulsory Notification of Vacancies) Act,

1959 casts obligation on an employer to notify vacancies

to an employment exchange, before filling vacancies in

any employment in its establishment. Section 3 of that Act

enlists certain vacancies to which it does not apply.

Provisions of the said section are detailed as follows:

“3. Act not to apply in relation to certain vacancies.-

(1)

This Act shall not apply in relation to vacancies.-

(a)

in any employment in agriculture (including

horticulture) in any establishment in private

sector other than employment as agricultural

or farm machinery operatives;

(b)

in any employment in domestic service ;

(c)

in any employment the total duration of which

is less than three months;

(d)

in any employment to do unskilled office work;

(e)

in any employment connected with the staff

of Parliament.

(2) Unless the Central Government otherwise directs

by notification in the Official Gazette in this behalf,

this Act shall not also apply in relation to-

(a)

vacancies which are proposed to be filled

through promotion or by absorption of surplus

staff of any branch or department of the same

establishment or on the result of any

examination conducted or interview held by,

or on the recommendation of, any independent

agency, such as the Union or a State Public

Service Commission and the like;

(b)

vacancies in any employment which carries a

remuneration of less than sixty rupees in a

month”.

54.

Clause (i) of Section 2 of that Act gives definition of

“unskilled office work” wherein an employee doing any

routine work or unskilled work has been included. For

convenience sake the said definition is extracted thus:

“Unskilled office work” means work done in an

establishment by any of the following categories of

employees, namely, -

(1)

daftri,

(2)

jamadar, orderly and peon;

(3)

dusting man or farash;

(4)

bundle or record lifter ;

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(5)

process server;

(6)

watchman;

(7)

sweeper;

(8)

any other employee doing any routine or

unskilled work which Central Government

may, by notification in the Official Gazette,

declare to be unskilled office work”.

55.

As projected above provisions of that Act are not

applicable to vacancies relating to “unskilled office work”.

The object of the aforesaid Act is not to restrict, but to

enlarge field of choice so that employer may choose best

and most efficient and to provide an opportunity to the

worker to have his claim for appointment considered

without having to knock at every door for employment.

Office Memorandum No.114/11/64-Estt.(D) dated 21.3.64

was issued by Ministry of Home Affairs, Government of

India, emphasizing that all vacancies in Central Government

establishments, other than those filled through the Union

Public Service Commission, should be notified to the

nearest employment exchange and no department or office

should fill any vacancy by direct recruitment unless the

employment exchange certified that they were unable to

supply suitable candidates. Office memorandum No.14024/

2/77-Estt.(D) dated 12.4.77 was issued by Department of

Personnel and Training laying stress on proposition that

all vacancies arising in Central Government offices/

establishments (including quasi government institutions

and statutory organizations) irrespective of the nature and

duration other than filled from the U.P.S.C. are not only to

be notified, but also to be filled through the employment

exchange alone and other permissible source of recruitment

can be taped only if employment exchange concerned

issued a non availability certificate. There can be no

deviation from this recruitment procedure unless a different

arrangement in this regard has been previously agreed to

in consultation with the department of Personnel and

Training and Ministry of Labour.

56.

A gloss was put on these instructions by the Apex

Court in N. Hargopal [1987(3) SCC 308] wherein it was

ruled that the Government is at perfect liberty to issue

instructions to its own departments and organizations

provided the instructions do not contravene any

constitutional provision or any statute, these instructions

cannot bind other bodies which are created by statute

and which functions under the authority of statute. In the

absence of any statutory prescription the statutory

authority may, however, adopt and follow such

instructions if it thinks fit. The court concluded that in

case of public appointment it is necessary to eliminate

arbitrariness, favourtism and introduce uniformity of

standards and orderliness in the matter of employment.

There has to be an element of procedural fairness in

recruitment. If a public employer chooses to receive

applications for employment where and when he pleases,

and chooses to make appointment as he likes a grave

element of arbitrariness is certainly introduced. The Court

went on to say that in the absence of a better method of

recruitment any restriction that employment in Government

departments should be through the medium of employment

exchanges does not offend Article 14 and 16 of the

Constitution. Hence it emerges that above instructions

were affirmed by the Apex Court and the management was

bound to follow those instructions, in making an

engagement for the position of unskilled office work.

57.

These instructions were complied with by the

management when claimant was engaged by it. Thus

engagement of the claimant through employment exchange

was in consonance with the laid down procedure. It can

not be said that he was a back door entrant on the job.

Hence I say that the management could not show any

case where relief of reinstatement should be denied to the

claimant.

58.

As regards back wages, no evidence has been

brought to the effect that the claimant remained

unemployed. Therefore it seems not to be a case of grant

of full back wages. However no principles are available to

assess as to what amount of back wages should be

awarded. Principles for award of compensation is available

in some precedents, which are taken in to account. In

S.S.Shetty [1957 (11) LLJ 696] the Apex Court indicated

some relevant factors which an adjudicator has to take

into account in computing compensation in lieu of

reinstatement, in the following words:

“The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party,

the possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future…. In computing

the money value of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefits etc. would be till he attained the age of

superannuation and the value of such benefits

would have to be computed as from the date when

such reinstatement was ordered under the terms of

the award.

Having regard to the considerations detailed

above, it is impossible to compute the money value

of this benefit of reinstatement awarded to the

appellant with mathematical exactitude and the best

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3593

that any tribunal or court would do under the

circumstances would be to make as correct as

estimate as is possible bearing, of course in mind all

the relevant factors pro and con”.

59.

A Divisional Bench of the Patna High Court in

B.Choudhary Vs. Presiding Officer, Labour Court,

Jamshedpur (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee’s age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer’s business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab.I.C.1887).

60.

In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that “it would be fair and just to direct the appellant a

substantial sum as compensation to her”. In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the

employee awarded by the industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K.Roy [1970 (1) LLJ 228] compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count

converted the award of reinstatement into compensation

of a sum of Rs.50,000/- as just and fair compensation in

full satisfaction of all his claims for wrongful dismissal

from service. In O.P.Bhandari [1986 (II) LLJ 509], the Apex

Court observed that it was a fit case for grant of

compensation in view of reinstatement. The Court awarded

compensation equivalent to 3.33 years salary as

reasonable. In M.K.Aggarwal (1988 Lab.I.C.380), the Apex

Court though confirmed the order of reinstatement yet

restricted the back salary to 50% of what would otherwise

be payable to the employee. In Yashveer Singh (1993

Lab.I.C.44) the court directed payment of Rs.75,000/- in

view of reinstatement with back wages. In Naval Kishor

[1984 (II) LLJ 473] the Apex Court observed that in view of

the special circumstances of the case adequate

compensation would be in the interest of the appellant. A

sum of Rs.2 lac was awarded as compensation in lieu of

reinstatement. In Sant Raj [1985 (II) LLJ 19] a sum of Rs.2

lac was awarded as compensation in lieu of reinstatement.

In Chandu Lal [1985 Lab.I.C.1225] a compensation of Rs.2

lac by way of back wages in lieu of reinstatement was

awarded. In Ras Bihari (1988 Lab.I.C.107) a compensation

of Rs.65,000/- was granted in lieu of reinstatement, since

the employee was gainfully employed elsewhere. In

V.V.Rao (1991 Lab.I.C.1650) a compensation of Rs. 2.50 lac

was awarded in lieu of reinstatement.

61.

As held in preceding sections the claimant could

show a case of reinstatement in the service of the

management with continuity. Accordingly it is ordered that

he shall be reinstated in service by the management.

Relying on principles of law laid for grant of compensation

and on consideration of facts in entirety it is held that the

claimant shall get 40% of his last drawn wages as back

wages for the period of interregnum. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dated : 1-4-2014

Dr. R.K. YADAV, Presiding Officer

ubZ fnYyh] 16 vizSy] 2014

dk-vk- 1358-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dekaMsaV , ,p

D;w , th czkap (vkosl) ubZ fnYyh 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 ,oa Je U;k;ky; t;iqj ds

iapkV (lanHkZ la[;k 87@2006) dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 16@04@2014 dks izkIr gqvk FkkA

¹la- ,y&14012@24@2006&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 16th April, 2014

S.O. 1358.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 87/2006)

of the Central Government Industrial Tribunal/Labour

Court Jaipur now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of the Commandant AHQ AG Branch

(AWES), New Delhi and other and their workmen, which

was received by the Central Government on 16/04/2014.

[No. L-14012/24/2006-IR(DU)]

P. K. VENUGOPAL, Section Officer

3594

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

vuqcU/

dsUæh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;]

t;iqj

lh-th-vkbZ-Vh- izdj.k la- 87@2006

Hkjr ik.Ms;

ihBklhu vf/dkjh

jsiQjsUl ua--L- 14012 /24/2006–IR(DU)

fnukad 09/11/2006

Shri Ram Kishan Choudhary

S/o. Shri Ram Rakh Choudhary

R/o Vill. Mundia Khurd,

The Chaksu, Distt. Jaipur (Rajasthan)

V/s

The Commandant, AHQ.

AG Branch (AWES), Division Hqr,

New Delhi.

The Principal,

Army School, Jaipur Cantt.,

Opp. Sub Area Officer,

Rajendra Marg, Khatipura

Jaipur (Rajasthan)

izkFkhZ dh rjiQ ls

% Jh izgykn 'kekZ & ,MoksdsV

vizkFkhZ dh rjiQ ls % Jh izHkkr HkVukxj & ,MoksdsV

iapkV

fnukad % 27-02-2014

dsUnzh; ljdkj }kjk vkS|ksfxd fookn vfèkfu;e 1947 dh

èkkjk 10 mi&èkkjk 1 [k.M (?k) ds vUrxZr fnukad 21-02-2006

ds vkns’k ls izsf"kr fookn ds vkèkkj ij ;g izdj.k U;k;fu.kZ;u

gsrq lafLFkr gSA dsUnzh; ljdkj }kjk izsf"kr fookn fuEuor~ gS %&

“Whether the action of the management of Army

School, Jaipur in terminating the service of their Shri

Ram Kishan Choudhary w.e.f. 06.10.2003 is legal and

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

to?”

LVsVesUV vkWQ Dyse esa fn;s x;s rF;ksa ds vuqlkj

laf{kIr% izkFkhZ Jfed dk dFku gS fd mldh fu;qfDr vkehZ Ldwy]

t;iqj dSUV] jktsUnz ekxZ] [kkrhiqjk jksM] t;iqj esa ekyh ds in

ij fnukad 06-11-2001 dks 1500 :- ekfld ikfjJfed ij gqbZA

izkFkhZ fu;qfDr ds le; ls gh foi{kh ds laLFkku esa viuh lsok;sa

fu;fer] esgur o yxu ls nsrk vk jgk Fkk rFkk mldh lsok;sa

lnSo lUrks"kizn jgh vkSj mlds dk;Z ds lEcUèk esa dksbZ f’kdk;r

ugha FkhA izkFkhZ Jfed ds osru esa le;≤ ij c<+ksrjh Hkh dh

tkrh jgh vkSj Jfed ds Hkfo"; fufèk dh jkf’k Hkh tuojh 2002

ls tek dh x;haA

vkxs Jfed dk dFku gS fd mldh lsokvksa ls izlUu

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izfrekg eagxkbZ HkRrs dk Hkqxrku fd;k tkus yxkA izkFkhZ Jfed

us ekyh ds in ij 2 o"kZ ls T;knk fujUrj dk;Z djus ds ckn

mldh lsok;sa fu;fer djus ds fy;s izcUèku ds le{k izkFkZuk&i=

izLrqr dh vkSj mDr in dh fu;fer osru Üka`a[kyk Hkh iznku

fd;s tkus dh izkFkZuk dh rks foi{kh laLFkku }kjk fcuk dkj.k

crk;s fnukad 06-10-2003 dks mls ekSf[kd vkns’k ls lsok&eqDr

dj fn;k x;kA

izkFkhZ Jfed dk ;g Hkh dFku gS fd mlds }kjk fu;fer

fd;s tkus gsrq izkFkZuk&i= izLrqr djus ds dkj.k foi{khx.k us

fcuk dksbZ lquokbZ dk ekSdk fn;s vkSj fcuk uksfVl fn;s lsok ls

eqDr fd;k tks vkS|ksfxd fookn vfèkfu;e ds izkfoèkku ds fu;e

ds foijhr gSA izkFkhZ Jfed dk dFku gS fd mlus ,d dSys.Mj

o"kZ esa yxkrkj 240 fnu ls vfèkd dke fd;k gS rFkk fofèk fo:)

viuh lsok eqfDr ds lEcUèk esa dbZ ckj foi{khx.k ls lsok esa

okil ysus dh izkFkZuk dh ysfdu mls lsok esa okil ugha fy;k

x;k ,oa foi{khx.k dk laLFkku vkS|ksfxd fookn vfèkfu;e dh

èkkjk 2¼ts½ ds vUrZxr ifjHkkf"kr m|ksx dh Js.kh esa vkrk gSA

foi{khx.k }kjk izkFkhZ ds lsok eqfDr ds le; vkS|ksfxd fookn

vfèkfu;e dh èkkjk 25¼th½ ,oa 25¼,p½ ds izkoèkkuksa dk è;ku ugha

j[kk x;kA izkFkhZ Jfed dh rqyuk esa mlds dfu"d O;fDr Hkh

laLFkku esa dk;Zjr Fks vkSj izkFkhZ ds ofj"B gksus ds ckotwn mls

lsok ls eqDr dj fn;k x;kA foi{khx.k }kjk izkFkhZ dh rqyuk esa

dfu"d Jfedksa dks dke ij j[kk x;k vkSj LFkk;h dj fn;k x;k

tcfd izkFkhZ Jfed ds ckn lsok esa vkus okys Jfedksa dks igys

i`Fkd djuk FkkA ;g Hkh dgk x;k gS fd izkFkhZ Jfed dks lsok

ls eqDr djus ds ckn y{e.k tkV dks izkFkhZ Jfed ds ln`’k in

ij j[kk x;k A

;g Hkh dgk x;k gS fd foi{kh laLFkku }kjk izkFkhZ Jfed

dks lsok&eqDr djus ds iwoZ fdlh izdkj dh ofj"Brk lwph

vkS|ksfxd fookn fu;e ¼dsUnzh;½ 1957 ds fu;e 77 ,oa 78 ds

vUrxZr tkjh ugha dh x;ha] izkFkhZ lsok eqfDr dh frfFk

06-10-2003 ls csjkstxkj gS vkSj vkfFkZd ijs’kkuh esa thou O;rhr

dj jgk gSA vr% mlus izkFkZuk dh gS fd mldh Dyse Lohdkj

dh tk; vkSj lsok eqfDr ds vkns’k dks voSèk ?kksf"kr fd;k tk;

vkSj foxr osru ,oa leLr ifjykHk lfgr lsok esa okil fy;s

tkus dk vkns’k ikfjr fd;k tk,A

foi{khx.k dh rjQ ls LVsVesUV vkWQ Dyse ds fo:)

izkjfEHkd vkiRrh izLrqr dj ;g dgk x;k gS fd mudh laLFkk

,d 'kS{kf.kd laLFkku gS tks dsUnzh; lkslk;Vh jftLVs~’ku vfèkfu;e

1860 ds vUrxZr fnukad 29-04-83 dks iathd`r gSA foi{khx.k dk

fo|ky; vkehZ Ldwy] t;iqj u rks ljdkjh Ldwy gS vkSj u gh

ljdkj }kjk vuqcfUèkr Ldwy dh Js.kh esa vkrk gS ;g fo|ky;

Hkkjr ljdkj ds j{kk eU=ky; ds vUrxZr ugha vkrk gSA vkehZ

Ldwy] t;iqj ds deZpkfj;ksa dk p;u] dk;Zdky bR;kfn vkehZ

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3595

osyQs;j ,tqds’ku lkslk;Vh }kjk le;≤ ij izfrikfnr

fu;eksa ,oa jsX;qys’ku ds vUrxZr gksrk gSA vkehZ osyQs;j

,tqds’ku lkslk;Vh ds fnukad 16-6-2006 ds :Yl ,oa jsX;wys’ku

ds la’kksèku la[;k 51@2006 ds vuqlkj jktLFkku esa fLFkr ,-

MCY;w-bZ-,l- dh lHkh 'kS{kf.kd laLFkk,a] jktLFkku xSj ljdkjh

'kS{kf.kd laLFkk,as vfèkfu;e 1989 ,oa :Yl 1993 ds fu;eksa ls

lapkfyr gksxhA vr% izkFkhZ Jfed ds Dyse ds lquokbZ dk

{ks=kfèkdkj ekuuh; U;k;ky; dks ugha gSA izkFkhZ Jfed dks l{ke

U;k;ky; ds le{k viuk okn izLrqr djuk pkfg,A

mDr {ks=kfèkdkj ls lEcfUèkr izkjfEHkd vkifRr ds ckn

foi{khx.k us LVsVesUV vkWQ Dyse dk izLrjokj tokc izLrqr

dj LVsVesUV vkWQ Dyse ds izLrj 1]2]3]4]5]6]7]8]9]10 vkSj 11

ds dFku dks bUdkj djrs gq, mls vlR; vkSj eux<+r dgk gSA

vfrfjDr dFku esa izLrj 9 ds lEcUèk es ;g dgk x;k gS fd

bl ekeys esa èkkjk 25 ¼th½ ykxw ugha gksrk gS D;ksafd izkFkhZ Jfed

Loa; viuh bPNk ls ukSdjh NksM+dj pyk x;k FkkA izLrj 10 ds

lEcUèk es dgk x;k gS fd vkS|ksfxd fookn vfèkfu;e 1947 dh

èkkjk 25 ¼,p½ ykxw ugha gksrk gS vkSj bl lEcUèk es izkFkhZ Jfed

dk dFku cscqfu;kn gS fd mlls dfu"d Jfed dks ukSdjh ij

j[k fy;k x;k vkSj LFkk;h dj fn;k x;kA ;g Hkh dgk x;k gS

fd y{e.k tkV dks nSfud etnwjh ij va’kdkyhu Jfed ds

:i esa o vko’;drkuqlkj j[kk x;kA

;g Hkh dgk x;k gS fd fu;e 77 o 78 ds vèkhu

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gS vkSj izkFkhZ Jfed }kjk ukSdjh NksMdj pys tkus ds ckn

y{e.k tkV dks vko’;drkuqlkj va’kdkyhu rkSj ij j[kk x;k

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izdkj dh dksbZ ofj"Brk lwph rS;kj ugha dh xbZA ;g Hkh dgk

x;k gS fd ;kfpdk ds izLrj 11 esa izkFkhZ Jfed dk ;g dguk

xyr gS fd og csjkstxkj gS cfYd foi{khx.k ds laLFkk dks NksM+us

ds i’pkr og lUrksdck nqyHkZth vLirky esa crksSj lqj{kk xkMZ

esa dk;Zjr gSA

10-

Jfed ds izLrj 1 yxk;r 6 esa izLrqr dFku ds fo:)

foi{khx.k us vfrfjDr dFku esa ;g mYys[k fd;k gS fd izkFkhZ

Jfed dks dHkh dksbZ fu;qfDr i= ugha fn;k x;k vkSj u gh

foi{kh ds laLFkku esa ekyh ds in ij fu;qfDr nh xbZA izkFkhZ

Jfed nSfud va’kdkyhu osru Hkksxh Jfed ds :Ik esa 50 :-

izfrfnu dh etnwjh ij ekSf[kd :Ik ls j[kk x;k FkkA foi{kh ds

laLFkku esa ekyh dk dksbZ in vuqeksfnr ¼Authorised½ ugha gSA

vko’;drkuqlkj le;≤ ij [email protected]+ eSu] lQkbZ

deZpkjh] dkjisUVj] IyEcj ,oa pkSdhnkj dks fo|ky; ds dk;Z

ds fy;s va’kdkyhu Jfed ds :Ik esa j[k fy;k tkrk gSA ;g

Hkh dgk x;k gS fd izkFkhZ dh lsok;as lUrks"kizn ugha jgh vkSj

le;≤ ij ekSf[kd :Ik ls vPNk dk;Z u djus rFkk vU;

deZpkfj;ksa ds lkFk vHknz O;ogkj djus dh fgnk;rsa nh tkrh jgh

gSA ;g Hkh dgk x;k gS fd izkFkhZ dh vuqifLFkfr dk osru

le;≤ ij dkVk x;k gS tks mldks nh tkus okyh ekfld

osru iphZ ls fofnr gksrk gS ftls Loa; izkFkhZ us izLrqr fd;k gSA

izkFkhZ Jfed dh osru dh c<+ksrjh ds lEcUèk esa ;g dgk x;k gS

fd vU; va’kdkyhu Jfedksa dh osru esa c<+ksrjh ds lkFk gh izkFkhZ

Jfed dks osru ,oa eagxkbZ HkRrs esa c<+ksrjh dh x;h Fkh vkSj ;g

c<+ksrjh fdlh fo’ks"k vuqdEik ;k dkj.k ij vkèkkfjr ugha FkhA

;g Hkh dgk x;k gS fd izkFkhZ Jfed dk ;g dFku fujkèkkj ,oa

vlR; gS fd mlus dksbZ izkFkZuk&i= viuh lsok dks fu;fer

djus vFkok fu;fer osrueku fn;s tkus ds fy;s izLrqr fd;k

Fkk vkSj mDr vkosnu fn;s tkus ds dkj.k mls lsok ls gVk fn;k

x;k cfYd lgh rF; ;g gS fd fnukad 10-06-2003 dks izkFkhZ

Jfed Lo;a dk;Z NksM+dj pyk x;k Fkk vkSj mlds ckn laLFkk

ls u dksbZ i=&O;ogkj fd;k vkSj u gh laLFkk esa Lo;a mifLFkr

gqvk A

11-

;kfpdk ds izLrj 4 ds dFku ds fo:) foi{khx.k dk

dFku gS fd Jfed dks fo|ky; ls dk;ZeqfDr ugh nh xbZ vkSj

fcuk crk, vuqifLFkr jgus ds dkj.k iqNus ij mlus vius

ofj"B vfèkdkfj;ksa ls vHknz o xSj ftEesnkjkuk <ax ls okrkZyki

fd;k vkSj viuh bPNk ls ;g dg dj pyk x;k fd viuh bPNk

ls og ukSdjh ugha djuk pkgrk] mldk fglkc dj fn;k tk;A

;kfpdk ds izLrj 5 esa yxkrkj 240 fnu dk;Z djus ds rF; ls

bUdkj djrs gq, ;g dgk x;k gS fd va’kdkyhu Jfed gksus ds

dkj.k og lHkh dk;Z djrk Fkk vkSj mlds vuqifLFkr gksus ij

vuqifLFkfr ds vuqlkj osru ls dVkSrh dh tkrh FkhA

12-

xSj dkuwuh <a+x ls lsok eqfDr fd;s tkus vkSj iqu% lsok

esa u fy;s tkus ds ;kph ds dFku ds lEcUèk esa foi{k dk dFku

gS fd mls laLFkk }kjk lsok eqDr ugha fd;k x;k cfYd og Loa;

NksM+dj x;k vkSj iqu% lsok esa ysus ds fy;s laLFkk ls dksbZ fuosnu

ugha fd;k A

13-

foi{khx.k ds oknksRrj ds fo:) izfrmRrj izLrqr dj

izkjfEHkd vkifRr dks vLohdkj fd;k x;k gS vkSj dgk x;k gS

fd orZeku izdj.k esa vkS|ksfxd fookn vfèkfu;e 1947 ds

izkfoèkku ykxw gksrs gS vr% vkifRr xzg.k fd;s tkus ;ksX; ugha

gSA la’kksèku la[;k 51@2006 ds fo:) izfrmRrj esa ;g dgk

x;k gS fd la’kksèku ds izkfoèkku Jfed ds ekeys es ykxw ugh

gksrs D;ksafd muds la’kksèku esa ;g mYys[k ugha gS fd os Hkwry{kh

izHkko ls ykxw gksaxsA ;g Hkh dgk x;k gS fd foi{khx.k U;k;ky;

dk {ks=kfèkdkj dk ekeyk mBkus ls fcofUèkr gS D;ksafd le>kSrk

vfèkdkjh ds le{k Loa; foi{khx.k us Lohdkj fd;k gS fd ekeyk

lgk;d Je vk;qDr ¼dsUnzh;½ ,oa le>kSrk vfèkdkjh t;iqj ds

dk;Z{ks= ls lEcfUèkr gSA 'ks"k izfr mRrj esa LVsVesUV vkWQ Dyse

esa izLrqr fd;s x;s dFkukas dh iqujko`fRr dh x;h gS vkSj oknksRrj

ds dFku ls bUdkj fd;k x;k gSA

3596

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

14-

LVsVesUV vkWQ Dyse ds leFkZu esa izkFkhZ Jfed dh rjQ

ls izys[kh; lk{; ds :Ik esa izn’kZ& MCy;w&1 foi{khx.k dh

rjQ ls le>kSrk vfèkdkjh ds le{k vkifRr dh QksVksizfr] rFkk

izn’kZ w-2 yxk;r izn’kZ w-22 osru iphZ izLrqr gSA blds

vfrfjDr izkFkhZ Jfed jkefd’ku pkSèkjh dh lk{; esa 'kiFk&i=

izLrqr gS ftudh foi{k }kjk izfrijh{kk dh x;h gSA

15-

foi{khx.k dh rjQ ls izys[kh; lk{; esa izn’kZ-1 yxk;r

izn’kZ 6 izLrqr gSA blds vfrfjDr foi{khx.k dh rjQ ls Jh

fxjèkkjh flag dk;kZy; vèkh{kd] vkehZ ifCyd Ldwy] t;iqj dh

lk{; esa 'kiFk&i= izLrqr gSA 'kiFk&i= esa izn’kZ 1 yxk;r

izn’kZ 4 dk mYys[k gS izn’kZ 5 jkefd’ku dh mifLFkfr jftLVj

dh izekf.kr izfr gS tks vDVwcj 2003 ls lEcfUèkr gS vkSj izn’kZ

6 vDVwcj 2003 ekg ds osru dk izekf.kr fooj.k gSA bl

fooj.k esa izkFkhZ Jfed jkefd’ku pkSèkjh lfgr fo|ky; ds lHkh

deZpkfj;ksa ds osru dk fooj.k gSA Jh fxjèkkjh flag dh izkFkhZ

Jfed dh rjQ ls izfrijh{kk dh x;h gSA

16-

mDr ds vfrfjDr izkFkhZ Jfed dh rjQ ls lwph ls

tuojh 2002 ls vxLr 2003 rd ds osru Hkqxrku ls lEcfUèkr

okmpj dh QksVksizfr izLrqr gS dksbZ vU; izys[kh; ;k ekSf[kd

lk{; i=koyh ij miyCèk ugha gSA

17-

eSus mHk;i{k ds fo}ku vfèkoDrk dh cgl lquh rFkk

i=koyh dk lE;~d voyksdu fd;kA

18-

izkFkhZ Jfed dh rjQ ls ;g cgl dh xbZ gS fd foi{khx.k

us fofèk fo:) izkFkhZ Jfed dks lsok ls gVk fn;k gS izkFkhZ Jfed

us 240 fnu rd ,d o"kZ esa vfofPNu lsok dh gS ysfdu èkkjk

25 ¼,Q½ vkS|ksfxd fookn vfèkfu;e 1947 ds izkfoèkku dk

ikyu ugha fd;k x;k gSA lsok ls eqDr djus ls iwoZ izkFkhZ Jfed

dks u uksfVl fn;k x;k gS vkSj u eqvkotk fn;k x;k gS vr%

izkFkhZ dh lsok lekfIr dk vkns’k fujLr fd;s tkus ;ksX; gS vkSj

foxr osru o ifjykHkksa ds lkFk izkFkhZ Jfed lsok esa iquZLFkkfir

gksus ;ksX; gS ;g cgl Hkh dh x;h gS fd lsok ls gVk;s tkus ls

iwoZ dksbZ ofj"Brk lwph rS;kj ugha dh x;h gS ftlls fu;e 77

o 78 dk mYya?ku gS vkSj izkFkhZ dks lsok ls gVkdj rqyuk esa

mlls dfu"d deZpkfj;ksa dks lsok esa j[kk x;k gS ,oa izkFkhZ

Jfed dks lsok ls gVk;s tkus ds ckn y{e.k tkV dks izkFkhZ ds

ln`’k in ij fu;qDr fd;k x;k gS bl izdkj èkkjk 25 ¼ts½ o

èkkjk 25 ¼,p½ dk mya?ku fd;k x;k gS vr% lsok lekfIr dk

vkns’k fujLr fd;k tk; vkSj izkFkhZ Jfed dks lsok esa iquZLFkkfir

fd;k tk;A

19-

izkFkhZ Jfed i{kdkj dh rjQ ls mDr cgl ds fo:)

foi{khx.k ds fo}ku vfèkoDrk dh rjQ ls ;g cgl dh x;h gS

fd Jfed dks foi{khx.k ds laLFkku ls dHkh lsok ls eqDr ugha

fd;k x;k cfYd og Loa; dk;Z NksM+dj pyk x;k blfy;s èkkjk

25 ¼,Q½ ds izkfoèkku ds ikyu dh dksbZ fofèkd vko’;drk bl

ekeys esa ugha gSA ;g cgl Hkh fd x;h gS fd nSfud etnwjh ij

va’kdkyhu lsok ds fy;s Jfed dks fo|ky; esa j[kk x;k Fkk

vkSj va’kdkyhu gksus ds dkj.k mls fo|ky; esa lHkh izdkj dk

dk;Z djus ds fy;s mls fn;k tkrk Fkk ,oa fo|ky; esa ekyh dk

dksbZ in l`ftr ugha gSA ;g cgl Hkh dh x;h gS fd nSfud osru

Hkksxh Jfed ds ekeys esa ofj"Brk lwph cukus dh dksbZ fofèkd

vko’;drk ugha gS blfy;s fu;e 77 o 78 dk mYya?ku dk

iz’u ugha mBrk gS tSlk fd ekuuh; loksZPp U;k;ky; us 2006]

,l-lh-lh- ¼,y- ,.M ,l-½ i`"B 38 lqjsUnz uxj] ftyk iapk;r&

vihykFkhZ cuke ng~;kHkkbZ vejflag & izR;FkhZ esa voèkkfjr fd;k

gSA Jh y{e.k tkV dks lsok esa fy;s tkus ds lEcUèk esa ;g cgl

dh x;h gS fd mls vko’;drkuqlkj va’kdkyhu Jfed ds :Ik

esa j[kk x;k vkSj pwafd izkFkhZ Jfed Loa; dk;Z NksMdj pyk x;k

Fkk vkSj mlds Ik’pkr u fo|ky; esa vk;k vkSj u dHkh fo|ky;

ls i=kpkj fd;k vr% èkkjk 25 ¼ts½ o ¼,p½ ds izkfoèkku Hkh ykxw

ugha gksrsA ;g cgl Hkh fd x;h gS fd oknksRrj izLrqfr ds le;

Jfed lUrksdck nqyHkZth vLirky esa crkSj lqj{kk xkMZ dk;Zjr

FkkA foi{khx.k dh rjQ ls egRoiw.kZ fcUnq {ks=kfèkdkj ds lEcUèk

esa Hkh mBk;k x;k gS vkSj ;g cgl fd x;h gS fd bl

U;k;kfèkdj.k dks izkFkhZ Jfed }kjk izLrqr eqdnes dh lquokbZ dk

U;kf;d {ks=kfèkdkj izkIr ugha gSA

20-

mHk;i{k ds vfHkdFkuksa rFkk mlds leFkZu esa izn’kZ lk{;

,oa i{kdkjksa dh mDr cgl ls fuEu egRoiw.kZ okn&fcUnq

fu.k;kFkZ mRiUu gksrs gS %&

D;k vkS|ksfxd U;k;kfèkdj.k lg yscj dksVZ] t;iqj dks

izLrqr eqdnesa dh lquokbZ dk {ks=kfèkdkj izkIr gS \

D;k izkFkhZ Jfed }kjk dfFkr lsok lekfIr dh frfFk

6-10-2003 ds iwoZ dSys.Mj o"kZ esa 240 fnu rd vfofPNUu

lsok dh x;h gS \

21-

mHk;i{k }kjk viuh cgl ds leFkZu esa fuEu fofèkd

n`"VkUr izLrqr fd;s x;s gSaA

izkFkhZ Jfed dh rjQ ls izLrqr n`"VkUr %&

1- ujksRre dsyk cuke jktLFkku jkT; ,oa vU; MCY;w-,y-lh-

¼jkt-½ 2001]¼1½ i`"B 667

foi{khx.k dh rjQ ls izLrqr n`"VkUr

1- MCY;w-,y-lh-¼jkt-½ 2001]¼4½ i`"B 295]jktLFkku mPp U;k;ky;

¼t;iqj ihB½] cky fo|k efUnj] pq: ,oa vU; & ;kphx.k cuke

jktLFkku jkT; ,oa vU; & izR;FkhZx.k

MCY;w-,y-lh- jkt- 2002] ¼3½ i`"B 74] jktLFkku mPp

U;k;ky; ¼t;iqj ihB½] ;wfu;u vkWQ bf.M;k ,oa

vU;&vihykFkhZx.k cuke fnxEcj tSu lSd.Mjh Ldwy ,oa 22

vU;

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3597

2006] ,l-lh-lh- ¼,y- ,.M ,l-½ i`"B 38] lqjsUnz uxj]

ftyk iapk;r & vihykFkhZ cuke ng~;kHkkbZ vejflag & izR;FkhZ

22-

tgka rd izFke okn&fcUnq ds fu.kZ; dk iz’u gS ;g

okn&fcUnq {ks=kfèkdkj ls lEcfUèkr gSA foi{kh ds fo}ku vfèkoDrk

}kjk ;g cgl dh x;h gS fd vkS|ksfxd U;k;kfèkdj.k&lg&yscj

dksVZ] t;iqj dks bl ekeys dh lquokbZ dk {ks=kfèkdkj izkIr ugha

gSA ;kph ds fo}ku vfèkoDrk us mDr cgl dk izfrokn djrs

gq, ;g cgl fd;k gS fd bl ekeys esa dsoy vkS|ksfxd

U;k;kfèkdj.k & lg&yscj dksVZ] t;iqj dks gh lquokbZ dk

{ks=kfèkdkj izkIr gS rFkk bl rF; dks Lo;a foi{k }kjk le>kSrk

vfèkdkjh ds le{k fyf[kr :Ik ls Lohdkj fd;k x;k gS vkSj

dsoy vuko’;d fookn dks c<+k;s tkus gsrq {ks=kfèkdkj dk

vkèkkj fy;k x;k gSA bl lEcUèk esa ;kph i{k }kjk izLrqr

vfHkys[k MCY;w&1 dh rjQ U;k;ky; dk è;ku vkÑ"V fd;k

x;k gSA foi{khlk{kh Jh fxjèkkjh flag dh lk{; esa izLrqr

'kiFk&i= esa Hkh izLrj 8 esa ;g mYys[k fd;k x;k gS fd dsUnzh;

lkslk;Vh jftLVsª’ku vfèkfu;e 1860 ds vUrxZr foi{kh dk

fo|ky; iathÑr laLFkk gksus ds dkj.k foi{kh ds fo:) ;g

ifjokn orZeku U;k;ky; esa iks"k.kh; ugha gSA foi{k }kjk dsUnzh;

lkslk;Vh jftLV~s’ku vfèkfu;e 1860 ds fdlh izkfoèkku dk

mYys[k ugha fd;k x;k gS fd fdl izkfoèkku ds vuqlkj

okn&iks"k.kh; ugha gSA tgk rd izn’kZ MCY;w&1 dk iz’u gS ;g

vfHkys[k izkFkhZ i{k dh rjQ ls i=koyh ij izLrqr gS ftlds

voyksdu ls ;g fofnr gS fd jktLFkku ljdkj Je foHkkx]

lEHkkxh; lewg] Je vk;qDr gluiqjk] t;iqj ds le{k lqyg

le>kSrk dks dk;Zokgh esa foi{k }kjk izLrqr vkifRr gS ftlesa

foi{khx.k us Loa; Lohdkj fd;k gS fd vizkFkhZ ,d 'kS{kf.kd

laLFkku gS ftldk iaftdj.k dsUnzh; lkslk;Vht jftLVsª’ku

vfèkfu;e 1860 ds vUrxZr fnukad 29-4-1983 dks fd;k x;k gS

ftldk iath;u ua- ,l@13459 gS ,oa izkFkhZ }kjk mBk;k x;k

vkS|ksfxd fookn lgk;d Je vk;qDr dsUnzh; ,oa le>kSrk

vfèkdkjh] t;iqj ds dk;Z{ks= ls lEcfUèkr gSA vkifÙk dk izklafxd

izLrj fuEu gS%&

**1- ;g fd vizkFkhZ ,d 'kS{kf.kd laLFkk gSA ftldk

iaftdj.k dsUnzh; lkslk;Vht jftLVsª’ku vfèkfu;e &

1860 ds vUrxZr fnukad 29-04-1983 dks fd;k x;k gSA

ftldk iaftd`r ua- ,l@13459 gSA izkFkhZ }kjk mBk;k

x;k vkS|ksfxd fookn lgk;d Je vk;qDr ¼dsUnzh;½ ,oa

le>kSrk vfèkdkjh] t;iqj ds dk;Z{ks= ls lEcfUèkr gSA**

23-

mDr vkifRr esa Loa; foi{k us ;g Lohdkj fd;k gS mudh

laLFkk mijksDr of.kZr vfèkfu;e 1860 ds vUrxZr iathÑr gS

vkSj lquokbZ dk {ks=kfèkdkj lgk;d Je vk;qDr dks gS tks

le>kSrk vfèkdkjh dh gSfl;r ls i{kdkjksa ds chp lqyg le>kSrk

ds fy, ekeys dh lquokbZ dj ldrs gSaSA ;gk¡a ij ;g rF; fo’ks"k

mYys[kuh; gS fd foi{khx.k dk laLFkku ,d 'kS{kf.kd laLFkku

gS tks **m|ksx** dh ifjHkk"kk ls vkPNkfnr gS vkSj izkFkhZ Jfed

**deZdkj** dh ifjHkk"kk ls vkPNkfnr gSA ,slh fLFkfr esa bl

ekeys esa ekuuh; loksZPp U;k;ky; }kjk 1988] lqizhe dksVZ

dslst ¼,y-,.M+ ,l-½] i`"B 892] fel ,e- lqUnjecky&;kfpuh

cuke xksok] neu ,oa fnm ljdkj ,oa vU;&izR;FkhZx.k esa nh

xbZ O;oLFkk vR;Ur izklafxd ,oa vuqdj.kh; gSA

24-

fel ,e- lqUnjecky cuke xksok] neu ,oa fnm ljdkj

,oa vU; esa ekuuh; loksZPp U;k;ky; us ;g voèkkfjr fd;k gS

fd vkS|ksfxd fookn vfèkfu;e 1947 dh èkkjk 2 ¼ ,l ½ esa

ifjHkkf"kr **deZdkj** dh ifjHkk"kk ls **vè;kid** vkPNkfnr ugha

gS ysfdu èkkjk 2 ¼ts½ esa ifjHkkf"kr **m|ksx** dh ifjHkk"kk ls

**’kS{kf.kd laLFkku** vkPNkfnr gaSA fel ,-lqUnjecky cuke

xksok neu ,oa fnm ljdkj ,ao vU; ds ekeys esa vihykfFkZuh

izR;FkhZ ds fo|ky; esa ,d vè;kid ds :Ik esa fu;qDr Fkh ftldh

lsok,a fo|ky; ds izcUèku ds }kjk i= fnukafdr 25-4-1975 ds

ekè;e ls lekIr dj nh xbZA lsoklekfIr dk vkns’k lekIr

djkus esa vusd iz;klksa ds foQy gksus ds ckn vkS|ksfxd fookn

vfèkfu;e ds vUrxZr vihykfFkZuh us **lqyg vfèkdkjh** ds le{k

vkS|ksfxd fookn mBk;kA lqyg le>kSrk dh dk;Zokgh lQy

ugha gqbZA ;g ikdj fd vihykFkhZuh deZdkj dh ifjHkk"kk ls

vkPNkfnr ugha gS ljdkj us vihykfFkZuh ds ekeys dks Je

U;k;ky; esa fu.kZ;kFkZ Hkstus ls euk dj fn;kA blds ckn

vihykFkhZuh us ekuuh; mPp U;k;ky; eqEcbZ dh i.kth ihB]

xksok ds le{k fjV ;kfpdk izLrqr dh vkSj ;g ;kpuk fd dh

'kklu dks fufnZ"V fd;k tk; fd mlds ekeys dks Je U;k;ky;

ds le{k izsf"kr djs rkfd mldh lsok lekfIr ds vkns’k fd

oS|rk dk fu.kZ; gks ldsA ekuuh; mPp U;k;ky; us vihykfFkZuh

dh fjV ;kfpdk fujLr dh vkSj ;g voèkkfjr fd;k fd

vihykfFkZuh **deZdkj** dh ifjHkk"kk ls vkPNkfnr ugha Fkh

ftlls {kqCèk gksdj vihykfFkZuh us ekuuh; loksZPp U;k;ky; ds

le{k vihy izLrqr dhA ekuuh; loksZPp U;k;ky; ds le{k

fu.kZ;kFkZ fuEu nks iz’u vorfjr gq, % &

¼1½

D;k og fo|ky; ftlesa vihykfFkZuh dk;Zjr Fkh og

**m|ksx** Fkk \

¼2½

D;k vihykfFkZuh **deZdkj** Fkh rFkk ml **m|ksx** esa

fu;qDr Fkh \

ekuuh; loksZPp U;k;ky; us cSaxyksj okVj lIykbZ ,oa

flojst cksMZ cuke vkj-jktIik lfgr vius vusd iwoZ fu.kZ;ksa dk

lanHkZ ysrs gq, ;g voèkkfjr fd;k fd ’kS{kf.kd laLFkku ftlesa

vihykfFkZuh dk;Zjr Fkh og **m|ksx** dh ifjHkk"kk ls vkPNkfnr

FkkA vihykfFkZuh ds lanHkZ esa ekuuh; loksZPp U;k;ky; us fu.kZ;

ds izLrj 10 esa ;g voèkkfjr fd;k gS fd vihykfFkZuh **deZdkj**

ugha FkhA bl izdkj ekuuh; loksZPp U;k;ky; us ekuuh; mPp

U;k;ky; ds fu.kZ; dh iqf"V dhA

25-

mDr fofèk O;oLFkk ls ;g Li"V gS fd foi{kh dh laLFkk

ij vkS|ksfxd fookn vfèkfu;e ds izkfoèkku ykxw gksrs gSa vkSj

3598

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

lkslk;Vht jftLVs~’ku vfèkfu;e 1860 dk dksbZ izkfoèkku bl

eqdnesa dh lquokbZ ds lEcUèk esa bl U;k;ky; dh vfèkdkfjrk

dks izHkkfor ugha djrk gSA

26-

foi{khx.k dh rjQ ls cky fo|k efUnj] pq: ,oa vU;

& ;kphx.k cuke jktLFkku jkT; ,oa vU; & izR;FkhZx.k rFkk

;wfu;u vkWQ bf.M;k ,oa vU; & vihykFkhZx.k cuke fnxEcj

tSu lSd.Mjh Ldwy ,oa 22 vU;&izR;FkhZx.k ds izdj.k esa nh

xbZ fofèk O;oLFkk bl fcUnq ij izLrqr dh xbZ gS fd mDr nksukas

n`"VkUrksa esa ekuuh; jktLFkku mPp U;k;ky;] t;iqj ihB }kjk

iznÙk O;oLFkk ds vuqlkj bl ekeys dh lquokbZ dk {ks=kfèkdkj

bl U;k;ky; dks ugha gSA eSaus mDRk nksukas gh n`"VkUrksa dk vR;Ur

lE;~d ,oa lw{e voyksdu fd;k gSA mä nksukas n`"VkUrksa ls

lEcfUèkr ekeyksa esa fookn ;g Fkk fd 'kS{kf.kd laLFkkuksa esa

deZpkfj;ksa dh izkfoMsUM Q.M dh èkujkf’k dk j[k&j[kko {ks=h;

izksfoMsUM Q.M dfe’uj] t;iqj }kjk fu;fU=r gksuk pkfg, ;k

jkT; ljdkj ds dks"kkxkj }kjk mldk lapkyu gksuk pkfg,A

{ks=h; izksfoMsUM Q.M dfe’uj t;iqj] deZpkjh Hkfo"; fufèk

vkSj izdh.kZ micUèk vfèkfu;e 1952 ds vUrxZr dk;Zjr laLFkk

gS tks dsUnzh; laxBu gSA jktLFkku xSj ljdkjh 'kS{kf.kd laLFkk;sa

vfèkfu;e]1989 ds vUrxZr dk;Zjr 'kS{kf.kd laLFkkuksa ds deZpkfj;ksa

dh Hkfo"; fufèk dh èkujkf’k jkT; dks"kkxkj esa tek dh tkrh FkhA

fnukad 5-8-97 dks jktLFkku ljdkj ds for foHkkx us ,d vkns’k

ikfjr fd;k rkfd bEiykbZt izkfoMs.M Q.M ,oa felysfu;l

izksfotu ,DV 1952 dk fØ;kUo;u fd;k tk ldsA ;g vkns’k

,sls 'kS{kf.kd laLFkkuksa ij ykxw fd;k x;k ftuds ;gka 20 ;k 20

ls T;knk deZpkjh dk;Zjr Fks rFkk tks vuqnkfur xSj ljdkjh

'kS{kf.kd laLFkku FksA fnukad 24-8-98 dks jkT; ljdkj ds for

foHkkx us deZpkfj;ksa dh Hkfo"; fufèk jkf’k tks dks"kkxkj esa tek

gksrh Fkh mls izkfoMs.M Q.M dfe’uj] t;iqj dks vUrfjr djus

ds fy;s vkns’k ikfjr fd;kA fnukad 14-8-97 ds jktLFkku

ljdkj us ,d vkns’k ikfjr fd;k ftlds vuqlkj xSj ljdkjh

vuqnkfur 'kS{kf.kd laLFkkuksa dks lh-ih-,Q- dh èkujkf’k {ks=h;

izksfoMs.M dfe’uj ds ;gka tek djus ds fy;s funZsf’kr fd;k

x;kA fofHkUu fo|ky;ksa }kjk fnukad 14-8-1997 ds vkns’k dks

pquksrh nh xbZA ekuuh; mPp U;k;ky; ds le{k ;g iz’u

fopkj.kh; Fkk fd deZpkjh Hkfo"; fufèk ,DV~ 1952 ds izkfoèkku

ykxw gksaxs ;k jkT; }kjk ikfjr jktLFkku xSj ljdkjh 'kS{kf.kd

laLFkk;sa vfèkfu;e 1989 ds izkoèkku ykxw gksaxs \ jkT; ljdkj

}kjk ikfjr lu~ 1989 dk vfèkfu;e fnukad 1-1-1993 dks ykxw

gqvk vkSj egkefge jk"Vªifr }kjk fnukad 4-6-1992 dks bl

vfèkfu;e dks lgefr iznku dh x;h FkhA deZpkjh Hkfo"; fufèk

,DV~ 1952 jktLFkku jkT; esa 'kS{kf.kd laLFkkuksa ij fnukad

19-2-1982 ds uksfVfQds’ku ls ykxw fd;k x;k Fkk vkSj bl

uksfVfQds’ku dk izdk’ku Hkkjr ljdkj ds xtV esa 6 ekpZ 1982

dks gqvk FkkA mDr vkèkkj ij ekuuh; mPp U;k;ky; us ;g

voèkkfjr fd;k fd Hkkjrh; lafoèkku ds vuqPNsn 254 ¼2½ esa

iznÙk O;oLFkk ds vuqlkj izkfoMs.V Q.M ls lEcfUèkr jkT;

ljdkj }kjk ikfjr vfèkfu;e 1989 orZeku ekeys esa ykxw gksxk

vkSj deZpkjh Hkfo"; fufèk ,DV~ 1952 ds vkèkkj ij izkfoMs.M

Q.M dk lapkyu ugha gksxkA ekuuh; mPp U;k;ky; dh ,dy

ihB esa fo|ky;ksa dh ;kfpdk Lohdkj dh vkSj fnukad 14-8-97

dk vkns’k [kf.Mr fd;kA

27-

ekuuh; mPp U;k;ky; dh ,dyihB ds mä fu.kZ; ds

fo#) ekuuh; mPp U;k;ky; dh [k.MihB esa fnukad

12-2-2002 dks vihy [kkfjt dhA ekuuh; mPp U;k;ky; }kjk

mDr nksuksa gh ekeyksa esa nh xbZ fofèk O;oLFkk ls ;g tkfgj gS

fd {ks=kfèkdkj ds fcUnq ij mDr nksukas gh fofèk O;oLFkkvksa ls

foi{khx.k ds fgr esa dksbZ enn ugha yh tk ldrh rFkk

{ks=kfèkdkj ds fcUnq ij fel ,e- lqUnjecky esa ekuuh; lokZsPp

U;k;ky; }kjk nh xbZ fofèk O;oLFkk orZeku ekeys esa izklafxd

gS ,oa ykxw gksrh gS vkSj ;g voèkkfjr fd;k tkrk gS fd orZeku

ekeys ds lquokbZ dk {ks=kfèkdkj bl U;k;ky; dks izkIr gS

{ks=kfèkdkj ls lEcfUèkr okn&fcUnq la[;k 1 rn~uqlkj foi{khx.k

ds fo:) ldkjkRed fu.khZr fd;k tkrk gSA

28-

f}rh; okn&fcUnq bl vk’k; dk gS fd D;k Jfed }kjk

lsok lekfIr dh frfFk 6-10-2003 ds Bhd iwoZ dSys.Mj o"kZ esa

240 fnu rd vfofPNu lsok dh x;h gS] bl lEcUèk esa ;kph i{k

dh rjQ ls ;g cgl dh x;h gS fd mlus lsok lekfIr ls iwoZ

240 fnu rd fu;kstd ds ;gk¡ dk;Z fd;k gS ftldk mYys[k

;kfpdk ds izLrj 5 esa vkSj ;kph ds 'kiFk&i= izLrj 5 eas fd;k

x;k gSA foi{khx.k ds fo}ku vfèkoDrk dh rjQ ls bl rF; ls

oknksRrj ds izLrj 7 esa bUdkj fd;k x;k gS vkSj izLrj 10 esa

;g dgk x;k gS fd va’kdkyhu rkSj ij og dk;Z djrk Fkk vkSj

viuh ethZ ls og dk;Z NksM+dj pyk x;k vr% og fdlh

vuqrks"k dk gdnkj ugha gSA yxkrkj dk;Z djus ds lEcUèk esa

;kph us 'kiFk&i= ds izLrj 10 esa MCY;w &2 yxk;r MCY;w

&22 dk mYys[k vius leFkZu esa fd;k gS tks mlds osru ls

lEcfUèkr gS osru iphZ izn’kZ MCY;w&2 tuojh 2002 vkSj izn’kZ

MCY;w&3 Qjojh 2002 ls lEcfUèkr gS ftuds voyksdu ls ;g

tkfgj gksrk gS fd izkFkhZ Jfed 50 :- nSfud etnwjh ij fu;qDr

Fkk vkSj ckn esa nSfud ikfjJfed esa c<+ksrjh Hkh dh x;h gS rFkk

Jfed dks fdlh izdkj dk vodk’k vuqeU; ugha FkkA ekg eas

ftrus fnu rd mlus lsok dh mlh ds fglkc ls ikfjJfed dk

Hkqxrku fd;k x;kA ekpZ 2003 rd Jfed 50 :- nSfud etnwjh

ij fu;qDr jgk gS tks izn’kZ 2 yxk;r izn’kZ 17 ls ifjyf{kr

gksrk gSA vizSy 2003 esa Jfed dh nSfud etnwjh 70 :- dj

nh x;h gS tks ebZ 2003 rd gS twu 2003 esa etnwjh 3250 :-

ekfld gS ekSf[kd lk{; esa Jfed jkefd’ku us izfrijh{kk esa

i`"B 1 ij Lohdkj fd;k gS fd mls fu;qfDr i= ugha feyk Fkk

vkSj dstqvy yscj ds :Ik esa yxk;k x;k FkkA ;g Hkh Lohdkj

fd;k gS fd ftrus fnu og dke djrk FkkA mlh ds fglkc ls

mls Hkqxrku fd;k tkrk FkkA izn’kZ MCY;w&2 yxk;r izn’kZ

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3599

MCY;w&22 vfHkys[kksa dks mlus Lohdkj fd;k gS vkSj lk{; esa

dgk gS fd mDr vfHkys[kksa esa tks Hkqxrku mls feyk mls n’kkZ;k

x;k gSA Hkqxrku ds Lo:Ik ds lEcUèk esa ;g mYys[k fd;k gS fd

mls Hkqxrku izfrekg fd;k tkrk FkkA ;g Hkh dgk gS fd mls 30

fnu dh gh ru[okg nh tkrh FkhA ;g Hkh mYys[k fd;k gS fd

mls feJk lkgc us dgk Fkk fd vkSjksa dks fn[kkuk gS blfy;s fnu

de n’kkZ;k gSA lk{kh us ;g Hkh dgk gS fd bl lk{kh ds vfrfjDr

vU; dksbZ ugha Fkk tks bl rjg ls dke djrk FkkA lk{kh us mDr

c;ku nsdj ;g n’kkZus dk iz;kl fd;k gS fd og dke T;knk

fnu djrk Fkk ysfdu vfHkys[k esa mlds }kjk fd;s tkus okys

fnolksa dh la[;k de n’kkZ;h tkrh Fkh ysfdu Jfed dk ;g

c;ku fcYdqy diksydYiuk gS ftldh iqf"V Hkqxrku iphZ ls

gksrh gS ftlesa mlds }kjk fd;s x;s dk;Z ds vkèkkj ij nSfud

etnwjh ds vuqlkj ekg ds vUr esa Hkqxrku fd;k x;k gSA Jfed

us i`"B 2 esa izfrijh{kk esa Lohdkj fd;k gS fd fo|ky; esa 2003

esa nSfud etnwjh ij dk;Z djus okyksa dk osru c<+k;k x;k Fkk

vkSj bl Jfed dk Hkh osru c<+k;k x;k FkkA Jfed dh ekSf[kd

lk{; dh mDr leh{kk ls rFkk osru iphZ ds voyksdu ls rFkk

izn’kZ 4 uoEcj 2003 dh osru ,oa izn’kZ 6 vDVwcj 2003 ds

osru fooj.k ls ;g Li"V vkSj fufoZokn :Ik ls fl) gS fd

Jfed foi{kh ds laLFkku esa nSfud osru ij fu;qDr Fkk vkSj mls lsok

esa fy;s tkrs oDr dksbZ fu;qfDr&i= iznku ugha fn;k x;k FkkA

29-

tgka rd Jfed }kjk fnukad 6-10-2003 ds Bhd iwoZ

dSys.Mj o"kZ esa 240 fnu rd vfofPNUu lsok fd;s tkus dk rF;

fl) fd;s tkus dk iz’u gS bl lUnHkZ esa mYys[kuh; gS fd

LVsVeSUV vkWQ Dyse esa 240 fnu ls T;knk vfofPNUu lsok fd;s

tkus dk dFku gSA bl lEcUèk esa dksbZ mifLFkfr iaftdk vFkok

mldh udy i=koyh ij izLrqr ugha gS izn’kZ MCY;w&2 yxk;r

MCY;w&22 Jfed }kjk Hkqxrku dh jlhn izLrqr dh x;h gS

ftldk mYys[k 'kiFk&i= esa gS vkSj izfrijh{kk esa mls Lohdkj

fd;k x;k gSA i`"B 3 ij izfrijh{kk esa Jfed us bl rF; ls

bUdkj fd;k gS fd fnukad 6-10-2003 ds igys ls og vuqifLFkr

py jgk FkkA ;g Hkh dgk gS fd fnukad 6-10-2003 dks og foi{kh

ds laLFkku esa x;k Fkk vkSj vkèks ?k.Vs dk;Z djus ds ckn fcuk

dqN dgs mls ckgj dj fn;k x;k vkSj ckgj tkus ds fy;s ckcw

jktsUnz th us dgk FkkA lk{kh us ;g Hkh dgk gS fd mldh

mifLFkfr lc yksxksa ds lkFk mifLFkfr iaftdk esa ntZ dh tkrh

Fkh vkSj bl rF; dks xyr dgk gS fd fnukad 6-10-2003 dks

foyEc ls vkus ds dkj.k iwNus ij mlus ckcw jktsUnz ds lkFk

vHknz O;ogkj fd;k vkSj mls fizfUliy ds le{k ys tk;k x;k

rks dk;kZy; vèkh{kd fxjèkkjh yky dh mifLFkfr eas mlus

fizfUliy ds lkFk Hkh vHknz O;ogkj fd;kA Jfed us ;g ekuus

ls bUdkj fd;k gS fd mlh le; mlus ;g Hkh dgk fd og

ukSdjh ugha djsxk mldk fglkc dj fn;k tk,A ekSf[kd lk{;

ls 240 fnu rd vfofPNUu lsok fd, tkus ds rF; dk leFkZu

ugha gksrk gSA

30-

tgka rd izys[kh; lk{; dk iz’u gS ;kph us ;g Lohdkj

fd;k gS fd tks Hkqxrku fd;k x;k Fkk mldh jlhn mlus izLrqr

dh gSA fnukad 6-11-2001 dks Jfed us viuh fu;qfDr crkbZ gS

vkSj izcUèku }kjk ;g dgk x;k gS fd fnukad 6-10-2003 ls iwoZ

izkFkhZ Jfed vuqifLFkr py jgk Fkk flrEcj ,oa vDVwcj 2003

ds osru Hkqxrku ls lEcfUèkr dksbZ iphZ ;kph i{k dh rjQ ls

ugha izLrqr gSA vDVwcj 2003 esa Jfed us 4 fnu dke fd;k gSA

5 vDVwcj dks vuqifLFkr jgk gS] 6 vDVwcj dks mifLFkr jgk gS

ftl fnu lsok ls fudkyk x;k gSA vxLr 2003 es 30 fnu]

tqykbZ 2003 esa 24 fnu] twu 2003 esa 29 fnu] ebZ 2003 es 31

fnu] vizSy 2003 esa 28 fnu] ekpZ 2003 esa 30 fnu] tuojh

2003 esa 30 fnu] fnlEcj 2002 esa 28 fnu] uoEcj 2002 esa

28 fnu vkSj vDVwcj 2002 esa 29 fnu Jfed dks dk;Z djuk

n’kkZ;k x;k gSA ;gh ij ;g ckr fo’ks"k :i ls mYys[kuh; gSA

fd tqykbZ 2003 dh dksbZ Hkqxrku iphZ ugha gSA tqykbZ 2002 dh

iphZ ij gh L;kgh ls 03 cuk;k x;k gS ftldk dksbZ Li"Vhdj.k

ugha gS tcfd osru iphZ dEI;wVjhd`r gSA

31-

Qjojh 2003 esa Jfed dks 30 fnu dk;Z n’kk;kZ x;k gS

tks =qfViw.kZ gS D;ksafd Qjojh ekg 30 fnu dk ugha gksrk gSA

Hkqxrku iphZ ls izkIr mDr lwpuk ls ;g tkfgj gS fd Jfed

}kjk 240 fnu dh vfofPNUu lsok ugha dh x;h gSA

32-

èkkjk 25 ¼,Q½ esa nh x;h O;oLFkk ds vuqlkj fdlh

fu;ksDrk ds vèkhu ftl deZpkjh us èkkjk 25 ¼2½ ¼a½ ¼ i½ ds

vuq:Ik ,d o"kZ vofèk dh vfofPNUu lsok dj yh gS mldh

NVuh 25 ¼,Q½ esa nh x;h izfØ;k dk ikyu fd, fcuk ugha dh

tk ldrh gSA bl lEcUèk esa foi{k dh rjQ ls izLrqr 2006]

lqizhe dksVZ ¼,y-,.M ,l-½] 38 esa ekuuh; lokZsPp U;k;ky;

}kjk nh x;h fofèk O;oLFkk izklafxd gSA 2006 lqizhe dksVZ ¼,y-

,.M ,l-½] 38] lqjsUnz uxj ftyk iapk;r & vihykFkhZ cuke

ng~;kHkkbZ vej flag & izR;FkhZ esa izdj.k ds rF;kuqlkj izR;FkhZ

dh lsok 15-8-85 ds vkns’k ls lekIr dj nh x;h FkhA lsok

lekfIr ds yxHkx lkr lky ckn fnukad 01-6-92 dks izR;FkhZ us

vihykFkhZ dks lsok esa iquLFkkZiuk dh uksfVl Hksth vkSj vUrr%

izR;FkhZ dh lsok lekfIr dk fookn U;k;fu.kZ;u gsrq vkS|ksfxd

U;k;kfèkdj.k dks lqiqnZ fd;k x;kA izR;FkhZ us vius LVsVesUV

vkWQ Dyse esa ;g mYys[k fd;k fd og lsok lekfIr ds vkns’k

fnukad 15-8-85 rd 10 :i;s nSfud etnwjh ij vihykFkhZ dh

lsok esa Fkk ,oa lsok lekfIr ds vkns’k fuxZr gksus ds iwoZ

vkS|ksfxd fookn vfèkfu;e ds izkfoèkkuksa dk ikyu ugha fd;k

x;kA Je U;k;ky; ds le{k izR;FkhZ dh rjQ ls ,d vkosnu

vihykFkhZ dks funsZ’k tkjh djus ds fy, izLrqr gqbZ fd vihykFkhZ

1976 ls 1986 rd dh lsok vofèk dk osru jftLVj ,oa eLVj

jksy izLrqr djsaA vihykFkhZ us LVsVesUV vkWQ Dyse ds fo:)

;g dFku izLrqr fd;k fd izR;FkhZ us Loa; dke ij vkuk cUn

dj dj fn;k ,oa mls dksbZ LFkk;h fu;qfDr ugha nh x;h FkhA og

3600

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

eqrQdkZ dk;kZsa ds fy, fu;qDr Fkk rFkk tc dke gksrk Fkk rks mls

cqyk fy;k tkrk FkkA ;g Hkh dgk x;k fd deZpkjh us lsoklekfIr

ds Bhd iwoZ iwoZorhZ 12 ekgksa esa 240 fnu rd yxkrkj dk;Z ugha

fd;k gSA ;g Hkh dgk x;k fd mlus lu~ 82] 83 vkSj 84 esa

dze’k% 114] 63 vkSj 124 fnu dk;Z fd;k gS vr% mldh lsok,sa

lekIr djus ds iwoZ èkkjk 25 ¼,Q½ vkS|ksfxd fookn vfèkfu;e

esa nh x;h izfdz;k dk vuqikyu djus dh fofèkd vko’;drk

ugha FkhA

izR;FkhZ us Lo;a dks lk{; esa izLrqr dj l’kiFk dgk gS fd

og nl lky rd 470 :i;s izfrekg ds osru ij fu;qDr FkkA

vihykFkhZ dh rjQ ls ,d deZpkjh us lk{; esa mifLFkr gksdj

dgk fd deZpkjh us dHkh Hkh ,d o"kZ esa 240 fnu dke ugha

fd;kA Je U;k;ky; us izR;FkhZ ds lk{; ij Hkjkslk fd;k vkSj

eLVj jksy rFkk 1976 ls 86 rd dh osru jftLVj u izLrqr

djus ij izfrdwy voèkkj.kk xzg.k dj ;g voèkkfjr fd;k fd

izR;FkhZ us 240 fnu ls T;kns dk;Z fd;k vr% mldh lsokeqfDr

voSèkkfud FkhA Je U;k;ky; us èkkjk 25 ¼,Q½] 25 ¼th½ ,oa 25

¼,p½ dh izfdz;k dk ikyu u djus ds dkj.k deZpkjh dks

iquLFkkZiuk ds fy, vknsf’kr fd;k ,oa lkFk gh fiNys osru dh

20 izfr’kr èkujkf’k vnk djus dk funsZ’k fn;kA

ekuuh; mPp U;k;ky; dh ,dyihB us Je U;k;ky;

ds fu.kZ; dh iqf"V dh rFkk Je U;k;ky; ds fu.kZ; ds fo:)

vihykFkhZ dh ;kfpdk [kkfjt dhA ,dy ihB ds fu.kZ; ds

fo:) ekuuh; mPp U;k;ky; dh [k.MihB us ysVlZ isVsaV

vihy fujLr dh ,oa ;g voèkkfjr fd;k fd Je U;k;ky; us

lgh voèkkfjr fd;k gS fd deZpkjh us ekSf[kd lk{; ls vius

dFku lkfcr fd;k gSA ekuuh; [k.MihB us Je U;k;ky; }kjk

osru iaftdk] eLVj jksy] rFkk deZpkfj;ksa dh ofj"Brk lwph u

izLrqr djus ij xzg.k dh x;h izfrdwy voèkkj.kk dks Hkh lgh

Bgjk;kA Je U;k;ky; us ;g Hkh voèkkfjr fd;k fd izR;FkhZ dh

rqyuk esa ,oa dfu"d deZpkjh dh lsok fu;fer :Ik ls tkjh

j[kh x;h vkSj izR;FkhZ dh lsok lekIr dj nh x;hA

ekuuh; loksZPp U;k;ky; ds le{k ekuuh; mPp U;k;ky;

dh [k.MihB ds fu.kZ; ds fo:) vihykFkhZ dh ;g cgl Fkh fd

ekuuh; loksZPp U;k;ky; us vius vusd fu.kZ;ksa esa vR;Ur

Li"V :Ik ls ;g voèkkfjr fd;k gS fd izkjfEHkd rkSj ij fl)

djus dk nkf;Ro deZpkjh ij gS fd lsok lekfIr dh frfFk ds

iwoZ ,d o"kZ esa deZpkjh us 240 fnu dk;Z fd;k gS tks nkf;Ro

fuokZg djus esa deZpkjh vlQy jgk gSA ;g cgl Hkh dh x;h

fd 10 lky dk vfHkys[k izLrqr u djus ij izfrdwy voèkkj.kk

xzg.k djus dh dksbZ otg ugha FkhA izR;FkhZ dh rjQ ls ;g cgl

dh x;h Je U;k;ky; us izfrdwy voèkkj.kk vfHkys[kksa ds lEcUèk

esa xzg.k djds Je U;k;ky; us lgh fd;k gS D;ksafd fu;kstd

ds dCts esa vfHkys[k Fks vr% Je U;k;ky; }kjk ekax fd;s tkus

ij mls izLrqr djuk fu;ksDrk dk drZO; FkkA ;g cgl Hkh dh

x;h fd vfHkys[k fu;ksDrk ds dCts esa gS blfy, mldk nkf;Ro

gS fd og fl) djs fd lEcfUèkr vofèk esa deZpkjh us 240 fnu

dk;Z ugha fd;k gSA

mHk;i{k dh mDr cgl ds ifjis{; esa ekuuh; loksZPp

U;k;ky; us èkkjk 2 ¼vksvks½] èkkjk 25 ¼ch½ ,oa 25 ¼,Q½ dh Li"V

,oa cksèkxE; O;k[;k djrs gq, izLrj 8 i`"B 43 esa deZpkjh }kjk

rF;ksa dks fl) djus ds nkf;Ro ds lEcUèk esa rFkk NVuh dh

oSèkkfudrk ds lEcUèk esa ;g voèkkfjr fd;k gS] “To attract

provisions of Section 25-F, the workman claiming protection

under it, has to prove that there exists relationship of

employer and employee; that he is a workman within the

meaning of Section 2(s) of the Act; the establishment in

which he is employed is an industry within the meaning of

the Act and he must have put in not less than one year of

continuous service as defined by Section 25- B under the

employer. These conditions are cumulative. If any of these

conditions is missing the provisions of Section 25 –F will

not be attracted. To get relief from the court the workman

has to establish that he has right to continue in service and

that his service has been terminated without complying

with the provisions of Section 25-F of the Act.

The section postulates three conditions to be fulfilled by

an employer for getting a valid retrenchment, namely:-

(i)

one month’s clear notice in writing indicating the

reasons for retrenchment or that the workman has

been paid wages for the period of notice in lieu of

such notice;

(ii)

payment of retrenchment compensation which shall

be equivalent to 15 day’s average pay for every

completed year of continuous service or any part

thereof, in excess of six months;

(iii)

a notice to the appropriate Government in the

prescribed manner.”

ekuuh; loksZPp U;k;ky; us izLrj 10 esa ¼1980½ 4 ,l-

lh-lh i`"B 443] lqjsUnz dqekj oekZ cuke lsUVªy xoZesaUV b.MLVªh;y

fVªC;wuy de yscj dksVZ esa vius iw.kZihB ds Qslys lfgr vusd

Qslyksa dk mYys[k ,oa mudh O;k[;k djrs gq, ;g voèkkfjr

fd;k gS fd ;g fl)kUr gS fd fl) djus dk nkf;Ro deZpkjh

ij gS fd og n’kkZ, fd dfFkr NVuh dh frfFk ds Bhd iwoZ ,d

o"kZ esa mlus 240 fnu dk;Z fd;k gS vkSj ;g nkf;Ro Hkh mlh

ij gS og Lo;a ds Lkk{; esa ifjf{kr djkus ds vfrfjDr lk{;

izLrqr djsaA

fu.kZ; ds izLrj 18 esa ekuuh; loksZPp U;k;ky; us

mYys[k fd;k gS fd izR;FkhZ dh rjQ ls ekSf[kd lk{; ds

vfrfjDr dksbZ lk{; 240 fnu dk;Z djus ds lEcUèk es ugha

izLrqr fd;k x;k gS] u osru ;k etnwjh ds lEcUèk esa dksbZ

jlhn] ;k vfHkys[k ;k vkns’k izLrqr gS] u dksbZ lgdeZpkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3601

ifjf{kr djk;k x;k] u gh fu;ksDrk }kjk izLrqr eLVj&jksy ij

dksbZ [k.M+u izLrqr fd;k x;kA

ekuuh; loksZPp U;k;ky; us ;g Hkh mYys[k fd;k gS fd

;g vlEHko gS fd deZpkjh tks bruh yEch lsok djus dk nkok

djrk gS mlds ikl fu;ksDrk ds vèkhu lsok es yxs jgus rFkk

dk;Z dh izd`fr ds lEcUèk esa dksbZ vfHkys[kh; lk{; ugha gksxkA

ekuuh; loksZPp U;k;ky; us voèkkfjr fd;k fd deZpkjh us 240

fnu rd dk;Z es layXu jgus ds rF; dks fl) djus ds nkf;Ro

dk fuokZg ugha fd;k gS ,oa fo}ku vèkhuLFk U;k;ky;ksa us

fu;ksDrk }kjk 10 o"kZ dk vfHkys[k u izLrqr djus ds lEcUèk esa

izfrdwy voèkkj.kk xyr xzg.k dh gSA ekuuh; loksZPp U;k;ky;

us ;g voèkkfjr fd;k fd izR;FkhZ dh lsok lekfIr ds iwoZ izR;FkhZ

dks èkkjk 25 ¼,Q½ dh lqj{kk vFkok vuqikyu dk vfèkdkj ugha

FkkA èkkjk 25 ¼th½ ,oa 25 ¼,p½ ds vuqikyu ds lEcUèk esa ;g

lk{; Fkk fd nSfud osru Hkksxh dh lwph dk j[k&j[kko vihykFkhZ

}kjk ugha fd;k tkrkA bl lEcUèk esa ekuuh; loksZPp U;k;ky;

us ;g voèkkfjr fd;k gS fd deZpkjh fu;fer lsok ds vHkko esa

vihykFkhZ ls nSfud osru Hkksfx;ksa dh ofj"Brk lwph ds j[k&j[kko

dh mEehn ugha dh tk ldrh gSA vfHkys[kkas dh ekax ij

vihykFkZhZ }kjk u izLrqr fd;s tkus ij èkkjk 114 (III) ¼th½

Hkkjrh; lk{; vfèkfu;e ds vUrxZr U;k;ky; }kjk izfrdwy

voèkkj.kk xzg.k fd, tkus ds lEcU/k esa ekuuh; loksZPp U;k;ky;

us ;g vo/kkfjr fd;k gS ,slh vo/kkj.kk xzg.k djus iwoZ U;k;ky;

ds le{k deZpkjh }kjk bl ckr dk lk{; izLrqr djuk gksxk fd

dksbZ ofj"Brk lwph vfLrRo esa gS vU;Fkk izfrdwy vo/kkj.kk

xzg.k djus dh vuqrks"k ugha iznku dh tk ldrhA U;k;ky;

}kjk izfrdwy vo/kkj.kk xzg.k djus gsrq vf/kdkj iznRr gksus ds

fy, U;k;ky; dks lUrq"V gksuk vfuok;Z gS fd lk{; vfLrRo

esa gS vkSj mls fl) fd;k tk ldrk FkkA ekuuh; loksZPp

U;k;ky; us rnuqlkj vihy Lohdkj dhA

33-

tgka rd /kkjk 25 ¼th½ ,oa /kkjk 25 ¼,p½ dk mYya?ku

dk iz’u gS Jfed }kjk izfrijh{kk esa Loa; ;g Lohdkj fd;k x;k

gS fd ekSf[kd rkSj ij mls dstqvy yscj ds :Ik esa yxk;k x;k

Fkk vkSj nSfud etnwj ds :Ik esa mldk ikfjJfed Hkh lsok ds

nkSjku c<+k;k x;k Fkk vr% izkFkhZ Jfed ftl Js.kh dk Jfed Fkk

mlds lEcU/k esa ofj"Brk lwph ds j[kj[kko dh vis{kk foi{kh ls

ugha dh tk ldrh gSA tSlk fd ekuuh; loksZPp U;k;ky; us

vo/kkfjr fd;k gSA bl izdkj Jfed i{k }kjk /kkjk 25 ¼th½ ,oa

/kkjk 25 ¼,p½ ds izko/kku dk mYya?ku lkfcr ugha fd;k x;k

gSA tgkWa rd izkFkhZ dks lsok ls gVk;s tkus ds ckn y{e.k tkV

dks izkfo/kku ds fo#) fu;ksftr fd;s tkus dk iz’u gS bl lUnHkZ

esa mYys[kfu; gS fd foi{kh lk{kh Jh fxj/kkjh flag us izfrijh{kk

esa lk{; ds le; fnukad 3-4-2013 dks ;g mYys[k fd;k gS fd

y{e.k tkV uke dk dksbZ O;fDr dke ugha dj jgk gS vkSj bl

rF; dks Lohdkj fd;k gS fd ;kph dks lsok ls pys tkus ds ckn

y{e.k tkV ls dke fy;k x;k Fkk vkSj mldh lafonk lekIr

gksus ij og Hkh pyk x;k vkSj mls nSfud etnwjh ij j[kk x;k

FkkA ;g Hkh dgk gS fd y{e.k tkV ds pys tkus ds ckn

vkmVlksflZax ds vk/kkj ij dke fy;k tk jgk gSA pwafd /kkjk 25

¼,Q½ ds izkfo/kku dk ykHk gksus ds fy;s izkFkhZ Jfed viuh

nkosnkjh fl) ugha dj ldk gS] vr% y{e.k tkV dks foi{k }kjk

vYi&vof/k ds fy;s dk;Z ij j[kus ls izkFkhZ Jfed dks dksbZ ykHk

iznku djus dh fLFkfr mRiUu ugha gksrhA

34-

izkFkhZ i{k dh rjQ ls vius nkosnkjh ds leFkZu esa

2001¼1½] osLVuZ ykW dslst ¼jktLFkku½ i`"B 667 ujksRre dsyk

cuke LVsV vkWQ jktLFkku dk n`"VkUr izLrqr fd;k x;k gS

ftldk eSaus lE;d voyksdu fd;kA

35- ujksRre dsyk cuke LVsV vkWQ jktLFkku ,oa vU; esa ;kph

foi{kh ds ;gkaWa ifjoh{kk/khu fLifuax ekLVj ds in ij fu;qDr Fkk

ftldh lsok;as izcU/k funsZ’kd] jktLFkku jkT; lgdkjh fLifUuax

,.M ftfUuax feYl QsMjs’ku fyfeVsM+] fLifUuax ;wfuV] xqykciqjk

tuin fHkyokMk }kjk lekIr dj nh x;h ftlls {kqC/k gksdj

;kph us funsZ’kd ds le{k vkosnu izLrqr dh ysfdu ogkWa ls dksbZ

vuqrks"k ikdj ;kph us {ks=h; mi&Je vk;qDr lg&lqyg

vf/kdkjh ds le{k lqyg le>kSrk dh dk;Zokgh izkjEHk djus ds

fy, ;kfpdk izLrqr dh ftldh lquokbZ djus ls lqyg vf/kdkjh

us vkns’k fnukad 24-7-98 esa us ;g dgdj bUdkj dj fn;k fd

;kph ds ekeys esa vkS|ksfxd fookn vf/kfu;e ds vUrxZr dksbZ

**vkS|ksfxd fookn** mRiUu ugha gksrkA mi&Je vk;qDr lg&lqyg

vf/kdkjh ds vkns’k ls O;fFkr gksdj ;kph us ekuuh; mPp

U;k;ky;] tks/kiqj ihB ds le{k flfoy ;kfpdk izLrqr dj dgk

fd mi&Je vk;qDr lg&lqyg vf/kdkjh dks lqyg dh dkjokbZ

izkjEHk djus gsrq izLrqr vkosnu bUdkj djus dk {ks=kf/kdkj izkIr

ugha FkkA ;g Hkh dgk x;k fd mi&Je vk;qDr lg&lqyg

vf/kdkjh ds vkns’k esa vkosnu lquokbZ djus ls bUdkj djus dk

dkj.k ugha n’kkZ;k x;kA izR;FkhZ dh rjQ ls ;g cgl dh xbZ

fd ;kph ifjoh{kk/khu Fkk vr% og vkS|ksfxd fookn vf/kfu;e dh

/kkjk 2 ¼,l½ ds vUrxZr **deZdkj** dh ifjHkk"kk ls vkPNkfnr

ugha FkkA

ekuuh; mPp U;k;ky; us ;g vo/kkfjr fd;k fd mi&

Je vk;qDr lg&lqyg vf/kdkjh }kjk ikfjr vkns’k dkj.kfoghu

Fkk ;g Hkh vo/kkfjr fd;k fd ekuuh; mPp U;k;ky; ds le{k

i{kdkjksa us tks fookn mBk;k gS mlls Lo;a ;g nf’kZr gS fd

fu;ksDrk vkSj fu;ksftr ds chp U;k;fu.kZ;u dh vko’;drk gSA

ekuuh; mPp U;k;ky; us ;g Hkh vo/kkfjr fd;k fd vkns’k esa

mi&Je vk;qDr lg&lqyg vf/kdkjh us ,slk dksbZ mYys[k ugha

fd;k gS fd ;kph **deZdkj** ugha gSA ekuuh; mPp U;k;ky;

us rn~uqlkj ;kfpdk Lohdkj dh vkSj mi&Je vk;qDr lg&lqyg

vf/kdkjh dks ;kph dh vkosnu xzg.k djus rFkk fof/k ds vuqlkj

vkxkeh dk;Zokgh djus gsrq funsZf’kr fd;kA

3602

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

mä izLrqr n`"VkUr ls ;kph ds ekeys esa dksbZ enn ugha

yh tk ldrh gS rFkk mDr n`"VkUr ls ;g lUns’k feyrk gS fd

fdlh izkFkhZ dh vkosnu esa fn, x, rF;ksa ds vk/kkj ij izkFkhZ rFkk

fu;kstd ds chp ;fn dksbZ fookn mRiUu gqvk ik;k tkrk gS rks

mldh vkosnu rFkk mRiUu fookn dks le>kSrk vf/kdkjh }kjk

utj vUnkt ugha fd;k tkuk pkfg,A

36-

i{kdkjksa ds vfHkopuksa rFkk mlds leFkZu esa iznRr lk{;

Hkh mDr leLr O;k[;k ,oa fo’ys"k.k ds vk/kkj eSa bl fu"d"kZ

ij gwWa fd izkFkhZ Jfed jkefd’ku pkS/kjh bl rF; dks fl) djus

esa vlQy gS fd mls /kkjk 25 ¼,Q½] vkS|ksfxd fookn vf/kfu;e

1947 ds izkfo/kku ds mya?ku esa mldh lsok lekIr dh x;h gS]

vr% vkehZ Ldwy] t;iqj }kjk nkosnkj jkefd’ku pkS/kjh dh

ekyh ds in ls fnukad 06-10-2003 ls lsok lekIr djuk oS/k ,oa

fof/k }kjk U;k;kuqer gS rFkk nkosnkj fdlh vuqrks"k dks ikus dk

gdnkj ugha gSA U;k;fu.kZ;u gsrq izsf"kr funsZ’k dk mRrj mDr

izdkj fn;k tkrk gSA iapkV rn~uqlkj ikfjr fd;k tkrk gSA

37-

iapkV dh izfrfyfi dsUnzh; ljdkj dks vkS|ksfxd fookn

vf/kfu;e 1947 dh /kkjk 17 ¼1½ ds vUrxZr izdk’kukFkZ izsf"kr dh

tk,A

Hkjr ik.Ms;] ihBklhu vf/kdkjh

ubZ fnYyh] 16 vizSy] 2014

dk-vk- 1359-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

tujy eSustj vkWMZusUl iSQDVªh [kefjv 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 ,oa Je U;k;ky;

tcyiqj ds iapkV (lanHkZ la[;k CGIT/LC/R/168@2000) dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 16@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&14012@18@2000&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 16th April, 2014

S.O. 1359.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGIT/

LC/R/168/2000) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of General Manager,

Ordnance Factory, Khamaria and their workmen, which

was received by the Central Government on 16/04/2014.

[No. L-14012/18/2000-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/168/2000

PRESIDING OFFICER : SHRI R.B. PATLE

Shri Ter Singh,

Qtr.No. S 69/8,

Type-I, East Land, Khamaria,

Jabalpur

......Workman

Versus

General Manager,

Ordnance Factory,

Khamaria,

Jabalpur

.....Management

AWARD

Passed on this 10th day of March, 2014

As per letter dated 25-9-2000 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-14012/

18/2000/IR(DU). The dispute under reference relates to:

“Whether the action of the management of Ordnance

Factory, Khamaria, Jabalpur in dismissing the

services of Shri Ter Singh, Darban, T.No. SO/54/

001372 vide its order No. 1164/Viz./164 dated 29-11-

94 is justified? If not, to what relief the workman is

entitled?”

After receiving reference, notices were issued to

the parties. Statement of claim is submitted by workman at

Page 2/1 to 2/6. Case of Ist party workman is that he was

served with charge sheet dated 10-6-91 by the management

of IInd party. The allegations against him were that he

committed theft of Govt. property, unauthorized

possession of Govt. material, committing act unbecoming

of Govt. servant. He denied charges against him. Enquiry

Officer was appointed on 28-6-92. He had participated in

enquiry along with Defence Assistant. Departmental

Enquiry was not properly conducted. He was not supplied

documents before initiating Enquiry proceedings. List of

documents was not supplied along with charge sheet.

Enquiry was proceeded without supplying documents.

That Presenting Officer submitted brief after the workman

was required to submit his brief it caused prejudice to his

defence. The enquiry was not conducted properly.

Principles of natural justice were violated. That the seizure

memo was signed by orderly without indicating his name,

designation. Seizure Memo doesnot show the weight of

the component seized. Seizure of bicycle could have been

included in seizure memo dated 24-5-91. Workman submits

that findings of Enquiry Officer are perverse. His defence

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3603

was not taken into consideration. The Appellate Authority

rejected his appeal on fringy ground. On such reasons, Ist

party workman prays for his reinstatement with back

wages.

IInd party filed Written statement at Page 8/1 to

8/15. Issues of charge sheet to the workman is not disputed.

That the workman was issued charge sheet for attempt to

take out brass components rapped in scarf. The workman

was apprehended, the seizure memo of brass components

was prepared. Charge sheet was issued to workman along

with letters dated 25-5-91, seizure memo dated 24-5-91was

of Shri S.K. Mishra, Sardarilal, names of witnesses were

indicated in the charge sheet. The workman had denied

charges. Enquiry Officer was appointed. Presenting Officer

was appointed. Departmental Enquiry was conducted. Ist

party workman participated in enquiry along with Defence

assistant. The details of the enquiry Proceedings are

narrated in Para-7 of the Written Statement. The witnesses

of management were cross-examined. The charge sheeted

employee couldnot adduce any evidence in his defence.

Considering findings of Enquiry Officer based on

evidence, the workman was dismissed from service after

issuing show-cause notice. IInd party submits that enquiry

was conducted as per rules. If enquiry is found vitiated,

permission is sought to prove misconduct in Court.

It is reiterated that copper material was carried by

workman in Gamsha on his bicycle. Considering gravity

of proved misconduct, punishment of dismissal from

service is proper. The reinstatement of workman should

not be allowed. The management has lost confidence in

workman. The Appellate Authority rejected appeal

considering the evidence. Workman is not entitled for

reinstatement. Order of his termination is not illegal. On

such grounds, IInd party prays for rejection of claim.

Workman has filed rejoinder at Page 9/1 to 9/6

reiterating its contentions in statement of claim.

Enquiry conducted against workman is found legal

by my predecessor as per order dated 3-9-2012. Considering

pleadings between parties, the points which arise for my

consideration and determination are as under. My findings

are recorded against each of them for the reasons as

below:-

(i)

Whether the misconduct

In Affirmative

alleged against workman

are proved from evidence

in Enquiry Proceedings?

(ii) Whether the punishment

In Affirmative

of dismissal imposed

against workman vide

order dated 29-11-94 is

proper and legal?

(iii) If so, to what relief the

Workman is not

workman is entitled to?”

entitled to any relief.

REASONS

As per order dated 3-9-2012, enquiry conducted

against workman is found proper and legal by my

predecessor therefore question remains for decision is

whether the charges alleged against workman are proved

from evidence in Enquiry Proceedings. From pleadings in

statement of claim and Written Statement filed by

management, there is no dispute that charge sheet was

issued to the workman alleging misconduct (1) attempt to

theft of Govt. property, (2) unauthorised possession of

Govt. material, (3) conduct unbecoming of Govt. servant.

The evidence of management’s witness Shri S.P.Mishra is

at Page 47 to 50 of enquiry proceedings. Shri S.P.Mishra in

his statement in Enquiry Proceedings has stated that Shri

Ter Singh was attempting to run away from gate and Shri

S.K.Mishra and Santri were pulling up him. In reply to Q.3,

he says that he was present when the articles were seized

at naala. In reply to Q.4, he says 5 components were lying

in front of naala, one component was lying near the tree.

That he himself had called officer. That orderly officer had

taken workman to his room, he had given his statement to

the orderly officer. In his cross-examination by Assisting

Officer, said witness has stated that he was unauthorized

to enter from all gates including Gate No.4. In his further

cross-examination, he says that at the time of incident of

throwing components, he was engaged in telephone calls.

He claims ignorance in which section the components were

manufactured. He also claims ignorance who has recorded

statement of witness Sardarilal. The witness says that he

had seen components lying outside the gate. When

components were lying outside the gate, workman Ter

Singh was standing near gundi. His statement was

recorded on day of incident. Witness S.K.Mishra in his

statement says that on day of incident, he was on duty at

Gate No.4 from 2 p.m. to 11 p.m. There was a rule that after

duty period was over, the employees had to exit from Gate

No.1. when workman requested him for going out from

Gate No.4, he had refused. On search of workman six

components of brass were found with the workman. When

this witness was asked how those components were found

at naala, the witness has explained that workman Ter Singh

told that he was going to attend urine call therefore he

was released. Then the workman had thrown those

components towards drainage. One of the component was

thrown behind the guard room. The evidence of witness

further shows that he had seen workman throwing

component. That he did not say anything at that time to

the workman. After orderly Officer arrived the components

were collected. Workman was taken to the room of orderly

officer. In his cross-examination, witness S.K.Mishra says

that he had tried to stop workman form throwing

components. That components were thrown by workman

is corroborated by witness S.P.Mishra & Sardarilal that six

components were thrown by Ter Singh, Ist party workman.

The evidence of both the witnesses on above point is not

shattered in their cross-examination.

3604

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Statement of Ter Singh was recorded by Enquiry

Officer. In his statement, workman has admitted his cycle

was standing near security office but he claims that the

metal components in gamsha/ white scart were kept by

Shri S.K.Mishra. he had no knowledge about it. He had

opened knot of the scarf. The statement of Ter Singh is of

denial of the incident. However 3 witnesses of

management are consistently saying that the workman

had collected metal components in gamsha scarf kept at

career of his bicycle when he had thrown those

components towards drains/ naali. The seizure memo of

six components is signed by workman. Seizure of bicycle

is not shown in it.

Learned counsel for workman Shri Vijay Tripathi

during course of argument emphasized that materials

components were collected from nala not seized from

workman. The seizure is shown from Shri S.K.Mishra,

Durban. He also denies seizure of cycle by security man

belong to him. The materials grabbed in gamcha on bicycle.

The evidence of management’s witness cannot be

accepted as gosped truth. It was emphasized that the

findings of Enquiry Officer are not supported by evidence.

The findings are perverse. Misconduct is not proved. The

appeal was dismissed without application of mind.

10.

Counsel of IInd party Mr. A.K.Shashi submits that

enquiry conducted against workman is found legal. All

the witnesses of the management are eye witnesses. Any

kind of enmity is not pleaded. Management is not required

to prove misconduct beyond reasonable doubt. The

findings of Enquiry Officer are supported by evidence.

11.

The evidence discussed above, all the 3 management

witnesses have deposed that workman had thrown metal

component. Said part of evidence is not shattered in cross-

examination of management’s witnesses. No reason is

brought on record why management’s witnesses are

deposing false against workman. Any kind of enmity is

not suggested to management’s witness Shri S.K.Mishra

and Sardarlal. Even if ordinary test is applied while

appreciating evidence of management’s witness, there is

no reason to disbelieve their evidence. The legal position

is rather settled that in Enquiry Proceeding, degree of

proof is not required as in criminal case to prove guilt

beyond reasonable doubt. The evidence in Enquiry

Proceedings is to be appreciated following the principles

of probabilities. When 3 witnesses are deposing against

workman before Enquiry Officer that workman had thrown

metal components which were seized, their evidence is

not shattered. The misconduct alleged against workman

is proved from evidence. For above reasons, I record my

finding in Point No.1 in Affirmative.

12.

In view of my finding in Point No.1, question arises

whether the punishment of dismissal imposed against

workman is proper or it is disproportionate to the proved

misconduct. The misconduct alleged against workman

proved from evidence in Enquiry Proceedings relates to

attempt to commit theft of six brass components weighing

6kg 200 gms. Committing heft of Govt. properly is certainly

misconduct of serious nature.

13.

Learned counsel for IInd party Mr. Shashi relies on

ratio held in

Case of Punjab Dairy Development Corporation Ltd

and another versus Kalasingh and others reported in

1997(6) SSC 159. Their Lordship held though Labour Court

did not elaborate consideration of evidence, yet in view of

the findings of misconduct arrived at by it the inference

was that the management had lost confidence in the

workman that he would truthfully and faithfully perform

his duties. Labour Court therefore rightly declined to

exercise power under Section 11-A. the dismissal on

ground of loss of confidence in employee was upheld.

In Case of Gurmit singh Viku versus Punjab and

Sind Bank and others reported in 2011-I-LLJ-665(MP).

Their Lordship held on charges of willful damage to

property of Bank and involving Bank in serious loss-

challenge of dismissal held on facts not sustainable.

In case of UP State road Transport Corporation

versus Basudeo Chaudhary and another reported in

1997(11) Supreme Court Cases 370. Their Lordship held

removal from service whether proportionate or

disproportionate to misconduct, that punishment of

removal was justified and not disproportionate. Though

misconduct was an attempt to cause a loss of only Rs.65/

to the corporation.

In case of R.Manoharan versus Presiding Officer,

Labour Court, Salem reported in 2001 LLR 1159, his

Lordship held what is to be borne in mind is the action of

the delinquent resulting in loss of revenue to the

corporation. . Labour Court had taken into consideration

requirements under Section 11-A and rightly held order of

dismissal to be fair.

In present case, the evidence before Enquiry Officer

is consistent that the workman admitted to commit theft of

six metal components weighing 6 kgs 200 gms and

throwing those metal components towards naali when he

was refused permission to go out of Gate No.4,

considering proved misconduct, the punishment of

dismissal imposed against workman cannot be said

disproportionate. Therefore I record my finding in Point

No.2 in Affirmative.

14.

In the result, award is passed as under:-

(1)

The action of the management of Ordnance Factory,

Khamaria, Jabalpur in dismissing the services of Shri

Ter Singh, Darban, T.No. SO/54/001372 vide its order

No. 1164/Viz./164 dated 29-11-94 is proper and legal.

(2)

Workman is not entitled to relief prayed by him.

15.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3605

ubZ fnYyh] 16 vizSy] 2014

dk-vk- 1360-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk ,u Vh

ih lh fyfeVsM (,iQ ,l Vh ih ih) 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 ,oa Je U;k;ky; dksydkrk

ds iapkV (lanHkZ la[;k 13 of 2013) dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 16@04@2014 dks izkIr gqvk FkkA

¹la- ,y&42011@173@2012&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 16th April, 2014

S.O.

1360.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 13 of

2013) of the Central Government Industrial Tribunal/Labour

Court, Kolkata now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of NTPC Ltd., FSTPP and their workmen,

which was received by the Central Government on

16/04/2014.

[No. L-42011/173/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 13 of 2013

Parties : Employers in relation to the management of

NTPC Ltd., FSTPP.

A N D

Their workmen.

Present : Justice Dipak Saha Ray, Presiding Officer

Appearance:

On behalf of the

Mr. U.K. Mondal,

Management

Ld. Advocate.

On behalf of the

Mr. P. Mukherjee,

Workman

Ld. Advocate.

State : West Bengal.

Industry: Power.

Dated : 27th March, 2014.

AWARD

By Order No.L-42011/173/2012-IR(DU) dated

28.02.2013 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 action of the Management of NTPC is

justified for implementing/allowing two types of

wages for contractual workers like ‘norms’ and ‘non-

norms’ is legal and/or justified? If not what relief the

workmen are entitled to?”

When the case is taken up for hearing today, copy

of an order dated 28th February, 2014 passed by the Hon’ble

Calcutta High Court in W.P. No. 21716 (W) of 2013 is filed

on behalf of the management. From the said order it appears

that the Hon’ble Court has been pleased to set aside the

order of reference dated Feb 28, 2013.

Since the order of reference dated 28.02.2013 has

been set aside by the Hon’ble High Court, the instant

reference case is disposed of accordingly.

Kolkata,

Dated, the 27th March, 2014.

JUSTICE DIPAK SAHA RAY, Presiding Officer

ubZ fnYyh] 22 vizSy] 2014

dk-vk- 1361-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

fpYMªul fiQYe lkslkbVh bafM;k ds izcaèkr=k ds lac¼ fu;kstdksa

vkSj muds deZdkjksa ds chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa

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iapkV (lanHkZ la[;k CGIT/1/08 of 2007) dks izdkf'kr djrh gS

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¹la- ,y&42012@81@2006&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 22nd April, 2014

S.O. 1361.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT-1/

08 of 2007) of the Central Government Industrial Tribunal/

Labour Court No. 1, Mumbai now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of Children’s Film Society

India and their workmen, which was received by the Central

Government on 16/04/2014.

[No. L-42012/81/2006-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BHORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1 MUMBAI

Present :

JUSTICE S. P. MEHROTRA, Presiding Officer

REFERENCE NO. CGIT-1/8 OF 2007

Parties : Employers in relation to the management of

Children’s Film Society India

And

Their workman (S. N. Brangera)

Appearances :

For the first party/Management : Mr. R.S. Pai, Adv

For the second party/ workman : Mr. M. B. Anchan, Adv.

State

: Maharashtra

Mumbai, dated the 2nd day of April, 2014

3606

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

AWARD

The present reference has been made by the Central

Government by its order dated 31.1.2007 passed in exercise

of the powers conferred by clause (d) of sub- section (1)

and sub-section (2A) of Section 10 of the Industrial

Disputes Act 1947. The terms of reference as per the

schedule to the said order are as under:

“Whether the action of the management of the

Children’s Film Society India, Murnbai, in terminating

the services of their workman Shri Shekhar N.

Bangera w.e.f. 17.4.2006 is legal and justified? If not,

to what relief the workman is entitled to?”

In response to the notices issued by this Tribunal,

the second party/workman as well as the first party/

Management put in their appearance. Statement of claim

was filed on behalf of the second party/workman on

20.4.2007.

In reply to the statement of claim, written statement

was filed on behalf of the first party/Management on

11.5.2007.The second party/workman thereafter filed his

rejoinder on 9.8.2007.

Documents were filed on behalf of the second party/

workman on 18.2.2008. The first party/Management filed

its documents on 21.1.2011.

On 25.2.2011 it was observed by the Tribunal that

there was no need to form any formal issue in the matter as

the schedule itself was an issue.

On 13.10.2011, affidavit of: second party /workman

(WW-1) in lieu of examination-in-chief was filed. By the

order dt.13.10.2011, the case was fixed for 2.12.2011 for

cross-examination of WW-1. Thereafter, as is evident from

the perusal of the ordersheet, various dates were fixed for

cross-examination of WW-1. i.e. second party/workman

but the second party / workman was not produced for

cross-examination on any of such dates. On 17.1.2013, Shri

M.B.Anchan, learned counsel for the second party/

workman prayed that he be given last opportunity to

produce the workman for cross-examination. Last

opportunity was accordingly given and the case was fixed

for 21.2.2013. On 21.2.2013, the order sheet reads as under:

“Mr. M.B.Anchan, Adv. present for the workman.

Mr. R. S. Pai, Adv. present for the Management.

Learned counsel for the workman submits that the

workman is not contacting to him and, therefore, he

is not in a position to produce the workman for cross-

examination. Put up for filing affidavit on behalf of

the management. Call on 14.3.2013.”

Pursuant to the order dt.21.2.2013, the case was put

up on 14.3.2013. On the said date, learned counsel for the

first party/Management took further time for filing affidavit

on behalf of the first party/Management. The case was

accordingly fixed for 26.4.2013. On 26.4.2013, the case was

again adjourned to 20.6.2013 for filing affidavit on behalf of

the first party/Management. On 20.6.2013, an affidavit on

behalf of the first party/Management in lieu of examination-

in-chief was filed. By the order dt.20.6.2013, the case was

adjourned for cross-examination of MW-I. Various dates

were thereafter fixed for cross-examination of MW-I.

On 8.1.2014, the order sheet reads as under:

“Shri M.B.Anchan, learned counsel for the

workman.is present. Shri Sanjay, representative for

the Management is also present. Shri M.B.Anchan,

learned counsel for the Workman refers to the order

sheet dt.17.1.2013 and 21.2.1013 and submits that

despite repeated communications having been sent

by him, the Workman did not contact him and,

therefore, the Workman could not be produced for

cross-examination. Shri M.B.Anchan further submits

that he again sent a communication by speed-post

to the workman asking him to contact him (Shri

Anchan) for giving instructions in this matter.

However, Shri Anchan submits that the said

communication, sent by speed-post, has been

received back by him with an endorsement that the

door was closed. In the circumstances, Shri Anchan

prays that a fresh notice be sent to the Workman to

appear before the Tribunal.

Let a fresh notice be sent to the Workman to

appear before this Tribunal.

Put up on 20.2.2014.”

Pursuant to the order dt.8.1.2014, the case was put

up on 20.2.2014 when the following order was passed:

“Shri.M.B.Anchan, learned counsel for the Workman

is present. Shri Sanjay representative of Shri R.5.Pai

learned counsel for the Management is present.

Pursuant to the order dt.8.1.2014 fresh notice was

sent to the Workman by Registered Post AD to

appear before this Tribunal.

However, the Registered envelope alongwith the

Acknowledgement Card has been received back

without service.

Shri M.B.Anchan, learned counsel for the Workman

prays that the matter may be adjourned today so as

to enable him to cross-examine MW-l on the next

date.

Let it be fixed for 2.4.2014.”

10.

Pursuant to the order dt.20.2.2014, the case is put up

today for cross-examination of MW-l. Shri M.B. Anchan,

learned counsel for the second party/workman and Shri

R.S.Pai, learned counsel for the first party/Management

are present. Shri R.S.Pai, learned counsel for the first party/

Management states that it is not possible for the first party/

Management to produce MW-l for cross-examination.

11.

From the above narration of facts, it is evident that

pleadings have been exchanged between the parties.

Documents have also been filed by the parties. An affidavit

of second party/workman (WW-l) in lieu of examination-

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3607

in-chief was filed on behalf of the second party/workman.

However, the second party workman (WW-l) never

appeared for cross-examination despite repeated

opportunities having been given to the second party/

workman in this regard.

12.

The first party / Management has also filed an

affidavit of MW-l in lieu of examination-in-chief. However,

the said witness MW-l has not been produced for cross-

examination despite repeated opportunities having been

given to the first party/Management.

13.

Shri M.B.Anchan, learned counsel for the second

party/workman has stated today that despite repeated

communications having been sent to the second party/

workman, the second party / workman has not contacted

him (Shri M.B.Anchan), and it is not possible to produce

the second party/workman (WW- 1) for cross-examination.

14.

Similar statement, as noted above, has been made by

Shri R.S.Pai, learned counsel for the first party/Management

in regard to production of MW-l for cross-examination.

15.

Thus, the witness WW-1, whose affidavit in lieu of

examination-in-chief has been filed on behalf of the second

party/workman, has never been subjected to cross-

examination. Therefore, his affidavit is of no significance

and cannot be read in evidence. As the affidavit of WW-1

cannot be read in evidence, the documents filed on behalf

of the second party/workman, which were required to be

proved by WW-1, cannot be looked into. Similarly, the

affidavit of MW-l filed on behalf of the first party/

Management is of no significance and cannot be read in

evidence as MW-1 has not been produced for cross-

examination. As the affidavit of MW-1 cannot be read in

evidence, the documents filed on behalf of the first party/

Management, which were required to be proved by MW-I,

cannot be looked into.

16.

In view of the above, it is evident that even though

pleadings have been exchanged between the parties but

there is no evidence in support of the respective pleadings

on behalf of either of the parties.

17.

Statement of claim filed on behalf of the second party/

workman constitutes only pleadings on behalf of the second

party/workman. There is no evidence in support of the

said pleadings on behalf of the second party/workman.

Therefore, the case set up by the second party/workman in

the Statement of Claim has not been proved. In the

circumstances, no relief can be granted to the second party/

workman in respect of his claim as contained in the afore-

mentioned reference.

18.

The above Reference is, therefore, answered by

stating that no relief can be granted to the second party /

workman.

19.

Award is passed accordingly.

JUSTICE S. P. MEHROTRA, Presiding Officer

ubZ fnYyh] 22 vizSy] 2014

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¹la- ,y&40011@14@2011&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 22nd April, 2014

S.O.

1362.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 77/2012)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Chairman & Managing Director,

Mahanagar Telephone Nigam Limited, New Delhi and their

workmen, which was received by the Central Government

on 16/04/2014.

[No. L-40011/14/2011-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.1, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 77/2012

Shri Mange Ram Sharma,

Present, MTNL Staff Union Class-III & IV,

T-28A, Atul Grove Road,

New Delhi.

…..Workman

Versus

The Chairman & Managing Director,

Mahanagar Telephone Nigam Limited,

Jeevan Bharti Building,

New Delhi – 110001.

…Management

AWARD

A decision was taken to set up a public sector

corporation, namely Mahanagar Telephone Nigam

Ltd.(hereinafter referred to as the Nigam), to provide

telephone services in erstwhile Delhi Telephone District

and Bombay Telephone District, which were under the

control of Department of Telecommunication, Ministry of

Telecommunication, Government of India, New Delhi, vide

order dated 18.03.1986, Government of India directed that

the Nigam shall commence its operation with effect from

01.04.1986 and staff working in erstwhile Delhi Telephone

District and Bombay Telephone District would be deemed

3608

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

to have been transferred to it on deputation for a period of

five years without any deputation allowance. However,

adhoc benefit of Rs.100.00 per month was granted to the

staff, so deemed to have been transferred on deputation.

It was also made clear to those employees that till terms

and conditions of service were decided by the Nigam,

they would be covered by the existing service conditions,

as they were governed while being employees of the

Department of Telecommunications, Government of India,

New Delhi. Option was given to the employees to opt for

services of the Nigam and all those employees who opted

as such, were absorbed in the services of the Nigam with

effect from 01.11.1998. Prior to their absorption, employees

of Group C and D, working under the Department of

Telecommunication in the aforesaid two districts, used to

contribute towards Central Government Health Scheme

(here in after referred to as the scheme) and avail medical

facilities from the scheme. In the year 2000, Group C and D

employees were switched over to IDA pay scale from CDA

pay scale and paid arrears from 01.11.1998. An assurance

was given that welfare measures like group insurance

scheme, the scheme, leave travel concession and benefits

arising out of Fifth Pay Commission, available to the

Government employees, will continue to be extended to

the employees of the Nigam, till their service conditions

are finalized, in consultation with the recognized union.

On 11.05.2010, a settlement was entered into, during

the course of conciliation proceedings, between the Nigam

and its workmen represented by MTNL Kaamgaar Sangh

Mumbai and MTNL Staff Union, New Delhi over revision

of wage and other related benefits of non-executive

employees, which settlement was made effective from

01.01.2007. Decision, relating to OPD expenses and indoor

medical facility, taken in the settlement referred above, are

detailed as below:

“4.1 : All perks and allowances, including

reimbursement of OPD expenses shall continue

unchanged as it was on 01.04.2008 (on the old basic

pay and dearness allowance). However, OPD

expenses shall be reimbursed only on production

of bills. This will be effective from the quarter

commencing from 01.04.2010. Perks and allowances

shall be reviewed after 31.03.2012.

4.2 : Indoor medical facilities shall continue

unchanged. However, efforts shall be made to

administer the same through insurance at the

earliest.”

Circular No.MTNL/Co/Pers/Med.ins.we.20911/622

dated 09.03.2011 was issued by the Nigam in consultation

with the MTNL Staff Union(hereinafter referred to as the

union). Vide circular No.MR/Cir/2008-09/35 dated

15.03.2011, the Nigam implemented circular referred above,

after getting it approved from the union in a meeting held

on 24.02.2011 and launched Group Insurance Scheme 2011.

The said decision was result of letter dated 09.03.2000, on

the strength of which Ministry of Health, Government of

India, New Delhi declined the request of the Nigam to

provide the schemes facilities to its employees. Shri

Mange Ram Sharma, President of the union attempted to

assail the said circular before the High Court of Delhi vide

writ petition WP(C) 2205/2011, which writ petition was

dismissed vide order dated 01.04.2011.

On 25.02.2011, Shri Mange Ram Sharma, President

of the union, served strike notice to the Nigam, with a

copy to the Conciliation Officer. Conciliation Officer entered

into conciliation proceedings. During pendancy of

conciliation proceedings, the Nigam released Rs.45 crore

to United India Assurance Company Ltd. to provide health

insurance to its employees. Since the Nigam contested

the claim put forward by the union, asserting that health

insurance scheme was approved by the union and is more

beneficial to the employees, conciliation proceedings

ended into a failure. On consideration of failure report,

submitted by the Conciliation Officer, the appropriate

Government declined to make a reference of the dispute,

for adjudication, to an industrial adjudicator vide its order

dated 19.08.2011. On 10.04.2012, the union submitted an

appeal to the appropriate Government, which was

supported by documents. On consideration of documents

submitted, the appropriate Government reconsidered its

decision and referred the dispute to this Tribunal for

adjudication, vide order No.L-40011/14/2011-IR(DU), New

Delhi, dated 08.05.2012 with following terms:

“Whether action of the management of Mahanagar

Telephone Nigam Ltd., New Delhi for extending

medical facilities to its employees through insurance

company instead of continuing with existing indoor

facilities is legal and justified? If not, what relief the

employees of MTNL are entitled to?”

Claim statement was filed by Shri Mange Ram

Sharma, President of the union, pleading therein that when

a decision was taken to set up the Nigam, all Group C and

D employees, working in Delhi Telephone District and

Bombay Telephone District, were transferred on

deputation to the Nigam, for a period of five years. An

assurance was given to them that their service conditions

and facilities shall remain unchanged till they exercise

option for their absorption in the Nigam. When deemed

deputation status was terminated, employees were assured

vide circular dated 29.09.1998 that all benefits like OTBP/

BCR/ACP, welfare measures like group insurance scheme,

the scheme, leave travel concession and benefits arising

out of Fifth Pay Commission, available to Government

employees, will continue to be extended to employees till

service conditions are finalized by the Nigam, in

consultation with the recognized union. Employees were

getting cashless indoor medical facility with empanelled

hospital of the Nigam on the pattern of the scheme as per

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3609

their entitlement in respect of room rent, without any upper

limit in respect of treatment. A few hospitals, such as Sir

Gangaram, Apollo, Escorts and Batra, who were

empanelled with the Nigam used to first raise an estimate

and as per procedure, 80% of such estimate was issued

by the Nigam in the name of the hospital concerned and

balance amount was to be paid by the employees, which

were reimbursed later on. Indoor medical facilities for

Group C and D employees remained more or less the same

on parameters of the scheme. They could avail indoor

medical facilities almost cashless without any limit, with a

cap on room rent, as per entitlement.

In the year 2004-05, the Nigam introduced medical

insurance scheme on trial basis and entered into contract

with ICICI Lombard and said settlement failed owing to

large scale resistance from Group C and D employees and

default by the aforesaid insurance company. The Nigam

again reverted back to the previous policy, as detailed

above. On 17.02.2011, he came to know from reliable

sources that the Nigam is trying to wriggle out of ongoing

medical policy by using terms of wage agreement dated

11.05.2010. He wrote letter dated 22.02.2011 to the Nigam,

raising serious reservations in respect of handing over

medical facilities to an insurance company. On 24.02.2011,

Joint General Manager(HR) informed him at 4.30 p.m. that

it was finalized that medical facilities would be provided to

the employees by United India Assurance Company Ltd.

He issued strike notice dated 25.02.2011, copy of which

was served on the Conciliation Officer. The Conciliation

Officer entered into conciliation proceedings and issued

notice to the Nigam for 28.02.2011. In reply to the said

notice, the Nigam took a stand that as per wage agreement,

efforts would be made to explore to grant indoor medical

facilities through medical insurance scheme. The

Conciliation Officer directed the claimant union not to

proceed on strike during pendancy of the dispute. The

union filed a rejoinder on 03.03.2011 wherein it was

emphasized that the Nigam ought to have taken the union

into confidence by consultation process, for handing over

indoor medical facilities to insurance company. The Nigam

was not competent to take unilateral decision in that regard.

However, on 10.03.2011, during pendancy of the dispute,

the Nigam released a sum of Rs.45 crore to United India

Assurance Company Ltd. to provide indoor medical

facilities to its employees. The Conciliation Officer issued

notice under section 22(2) and 33 of the Industrial Disputes

Act, 1947(in short the Act). On 15.03.2011, the Conciliation

Officer issued notice to the Nigam. However, the Nigam

issued circular dated 15.03.2011 for grant of indoor medical

facilities to the employees through aforesaid insurance

company. On 23.03.2011, the Nigam took a stand against

the claimant union on the grounds of estoppels and

claimed that Shri Sharma was not competent to raise

objection on the terms of wage agreement dated 11.05.2010,

which led to failure of conciliation proceedings, pleads

Shri Sharma. Writ petition No.WP(C) 2205/2011 was filed

before High Court of Delhi, which was dismissed vide

order dated 01.04.2011. Later patent appeal No.392 of 2011

was disposed off vide order dated 28.04.2011.

Prior to implementation of health insurance policy

through United India Assurance Company Ltd., employees

of Group C and D were availing health facilities on

parameters of the scheme, without any upper cap limit.

However, in the impugned circular, upper cap limit in respect

of treatment was fixed at Rs.6 lakh in a financial year for

the entire family relating to indoor facilities. It tantamounts

to lowering down conditions service of Group C and D

employees. Implementation of aforesaid circular is in utter

violation of wage agreement dated 11.03.2010. Group C

and D employees have to bear many charges while availing

health insurance facilities through United India Assurance

Company Ltd. It will dig deep hole in the pocket of Group

C and D employees. It has been claimed that action of the

Nigam in extending medical facilities to its employees

through insurance company instead of continuing with

existing indoor facility may be declared illegal, quashed

and set aside. The Nigam may be directed to deliberate

the issue of indoor facilities in respect of Group C and D

employees, strictly in spirit of wage agreement dated

11.05.2010 with the majority union and only after consent

of the majority union it may hand over indoor medical

facility to the insurance company within the framework of

consented terms and conditions, pleads the claimant

union.

Demurral was made by the Nigam pleading that the

claimant is asking for recalling for quashing of circular

No. MR/Cir/2008-09/35 dated 15.03.2011 on the strength

of which circular No.MTNL/Co/Pers/Med.ins.we.20911/

622 dated 09.03.2011 was implemented on approval and

consultation of the union. Hence, the said circular is

binding on the claimant union too. Remedy for quashing

that circular is not available under the Act. The above

circular was issued on approval being obtained from the

union in the meeting held on 24.02.2011, in which meeting,

claimant was also called to participate. In its order dated

01.04.2011, the High Court announced that the settlement

was arrived at with the consent of the union and it was not

open to challenge by the claimant. Observations made by

the High Court is reproduced thus:

“It is not in dispute that when the settlement was

arrived at, General Secretary of the petitioner No.1

alongwith three other members were present. In its

view of the matter, when petitioner No.1 was well

represented, it is not open to it to raise challenge to

the terms of its settlement through its President.”

It is not disputed that service conditions of Group C

and D employees were to remain unchanged till rules and

regulations were formulated by the Nigam in consultation

with the union. The Nigam, in consultation with the union,

3610

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

made welfare scheme, including medical insurance. Indoor

medical scheme was introduced through ICICI Lombard

General Insurance. However, the insurance company

backed out from the scheme, hence the company paid

back premium for the balance period.

10.

The Nigam disputes that on 17.02.2011, Shri Mange

Ram Sharma learnt from reliable sources that attempts

were made to wriggle out from ongoing medical facilities

on the strength of wage agreement dated 11.05.2010. Wage

agreement dated 11.05.2010 was signed by the recognized

unions of Delhi and Mumbai, during the course of

conciliation proceedings; hence it is binding on the parties.

A decision was taken by the Nigam, in consultation with

the majority union, before finalization of health insurance

scheme. The Nigam acted in accordance with the

provisions of wage settlement and its decision is not

arbitrary. The Nigam clarified its position before the

Conciliation Officer, where it reiterated that the agreement

was signed by the recognized union with five JNC members,

who were competent to represent the union. The Nigam

had not stopped the President to join that meeting. It was

internal matter of the union to decide as to who were to

join the meeting, referred above. The Nigam took a decision

to launch health insurance scheme since Ministry of

Health, Government of India, New Delhi vide its letter dated

09.03.2000 declined its request to provide the scheme

facilities to its employees. Entire family, consisting of

employee, his spouse, two dependent children and parents

are covered under the group insurance scheme, subject to

fulfilling attendant conditions. Out of 43000 employees,

approximately 95% of the employees have given their

consent in respect of health insurance policy. Except a

handful of employees, who have their vested interests,

have not filed in their forms for opting for the health

insurance scheme. The Nigam disputes that by

implementation of the circular, it has fixed upper cap

arbitrarily and changed service conditions of its Group C

and D employees. Insurance scheme offered by the

Nigam is completely free of cost and charges while the

scheme was available at a monthly subscription of

Rs.500.00 or more, which was to be paid by the employees.

It has been projected that circular, referred above, is in

accordance with the rules and for welfare of the employees.

The Nigam claims that dispute raised is not maintainable,

hence may be dismissed.

11.

Shri Mange Ram Sharma entered the witness box to

substantiate his claim petition. Shri M.K. Saxena, Joint

General Manager(HR), was brought in the witness box by

the Nigam to fend facts. No other witness was examined

by either of the parties.

12.

Arguments were heard at the bar. Shri Deepak Tyagi,

authorized representative, advanced arguments on behalf

of the union. Shri Sudhir Kumar Ojha, authorized

representative, raised submissions on behalf of the Nigam.

Written arguments 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:-

13.

At the outset, it has been argued on behalf of the

Nigam that the present dispute is not maintainable under

the Act, being an individual dispute. Shri Ojha asserts

that the claimant nowhere deposes that the matter was

placed before the union and considerable number of

members of the union took a decision to take up the cause

as its own. Without being espoused by the union, dispute

filed by the claimant remains in the realm of his individual

capacity and hence cannot attain status of an industrial

dispute. On the other hand, Shri Tyagi agitates that the

dispute filed before this Tribunal was raised by Shri Mange

Ram Sharma in the capacity of President of the union. Shri

Sharma, being President of the union was competent to

raise the dispute, hence it does not lie in the mouth of the

Nigam to agitate that the dispute is an individual dispute.

14. Since eyebrows are raised by the Nigam that the

dispute is not an industrial dispute, definition of the term

industrial dispute is to be construed. Section 2(k) of the

Act defines the term ‘industrial dispute’, which definition

is extracted thus:

“2(k) “Industrial dispute” means any dispute or

difference between employers and employers, or

between employers and workmen, or between

workmen and workmen, which is connected with

the employment or non-employment or the terms of

employment or with the conditions of labour, of any

person;”

15.

The definition of term “industrial dispute” referred

above, can be divided into four parts, viz. (i) factum of

dispute, (2) parties to the dispute, viz.(a) employers and

employers, (b) employer and workmen, or (c) workmen

and workmen, (3) subject-matter of the dispute, which

should be connected with –(i) employment or non

employment, or (ii) terms of employment, or (iii) condition

of labour of any person, and (4) it should relate to an

“industry”.

16.

The definition of “industrial dispute” is worded in

very wide terms and unless they are narrowed by the

meaning given to word “workman” it would seem to

include all “employers”, all “employments” and all

“workmen”, whatever the nature or scope of the

employment may be. Therefore, except in the case where

there can be a dispute between the employers and

employers and workmen and workmen, one of the parties

to an industrial dispute must be an employee or a class of

employees. The first point, therefore, to be noted, perhaps

self evident, is that the phrase “employer and workmen”,

the plural may include singular on either side or any

permutation of singular or plural, the masculine including

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3611

the feminine. In order, therefore, to determine as to whether

a controversy or difference or a dispute is an “an industrial

dispute” or not, it must first be determined whether the

workman concerned or workmen sponsoring his cause

satisfy the conditions of clause (s) of section 2 of the Act.

Here in the case there cannot be any dispute to the

proposition that Group C and D employees of the Nigam

are workmen within meaning of section 2(s) of the Act.

17.

The Apex Court put gloss on the definition of

“industrial dispute” in Dimakuchi Tea Estate [1958 (1) LLJ

500] and ruled that the expression “any person” in clause

(k) of section 2 of the Act must be read subject to such

limitation and qualification as arise from the context, the

two crucial limitations are (i) the dispute must be a real

dispute between the parties to the dispute (as indicated in

the first two parts of the definition clause) so as to be

capable of settlement or adjudication by one party to the

dispute giving necessary relief to other, and (2) the person

regarding whom the dispute is raised must be one for

whose employment, non employment, terms of employment

or conditions of labour, as case may be, the parties dispute

for a direct or substantial interest. Where workmen raised

a dispute as against their employment, the person

regarding whose employment, non employment, terms of

employment or conditions of labour, the dispute is raised

need not be strictly speaking “workman” within the

meaning of the Act, but must be one in whose employment,

non employment, terms of employment, or conditions of

labour the workmen as a class have a direct or substantial

interest. The observations, made by the Apex Court, are

extracted thus:

“We also agree with the expression “any person” is

not co extensive with any workman, particular or

otherwise, equal with other, that the crucial test is

one of community of interest and the person

regarding whom the dispute is raised must be one in

whose employment, non employment, terms of

employment, conditions of labour (as the case may

be) the parties to the dispute have a direct or

substantial interest. Whether such direct or

substantial interest has been established in a

particular case will depend on its facts and

circumstances.”

18.

In Kyas Construction Company (Pvt.) Ltd. [1958 (2)

LLJ 660], the Apex Court ruled that an industrial dispute

need not be a dispute between the employer and his

workman and that the definition of the expression

“industrial dispute” is wide enough to cater a dispute

raised by the employer’s workmen with regard to non

employment of others, who may not be employed as

workman at the relevant time. The Apex Court in Bombay

Union of Journalist [1961 (II) LLJ 436] has observed that

in each case in ascertaining whether an individual dispute

has acquired the character of an industrial dispute, the

test is whether at the date of reference, the dispute was

taken up as submitted by the union of the workmen of the

employer against whom the dispute is raised by an

individual workman or by an appreciable number of

workmen. In order, therefore, to convert an individual

dispute into an industrial dispute, it has to be established

that it has been taken up by the union of employees of the

establishment or by an appreciable number of the

employees of the establishment. As far as union of the

workmen of establishment itself is concerned, the problem

of espousal by them generally presents little difficulty,

since such workmen who are members of such unions

generally have a continuity of interest with an individual

employee who is one of their fellow workman. But difficulty

arise when the cause of a workman, in a particular

establishment, is sponsored by a union which is not of

the workmen of that establishment but is one of which

membership is open to workmen of their establishment as

well as in that industry. In such a case a union which has

only microscopic number of the workmen as its member,

cannot sponsor any dispute arising between the workmen

and the management. A representative character of the

union has to be gathered from the strength of the actual

number of co-workers sponsoring the dispute. The mere

fact that a substantial number of workmen of the

establishment in which the concerned workman was an

employee were also members of the union would not

constitute sponsorship. It must be shown that they were

connected together and arrived at an understanding by a

resolution or by other means and collectively submitted

the dispute.

19.

The expression “industrial dispute” has been

construed by the Apex Court to include individual

disputes, because of the scheme of the Act. In Raghu

Nath Gopal Patvardhan [1957(1) LLJ 27] the Apex Court

ruled as to what dispute can be called as an industrial

dispute. It was laid thereon that (1) a dispute between the

employer and a single workman cannot be an industrial

dispute, (2) it cannot per-se be an industrial dispute but

may become if it is taken up by a trade union or a number

of workmen. In Dharampal Prem Chand [1965 (1) LLJ 668]

it was commanded by the Apex Court that a dispute raised

by a single workman cannot become an industrial dispute

unless it is supported either by his union or in the absence

of a union by substantial number of workmen. Same law

was laid in the case of Indian Express Newspaper (Pvt.)

Limited [1970 (1) LLJ 132]. However in Western India

Match Company [1970 (II) LLJ 256], the Apex Court referred

the precedent in Dimakuchi Tea Estate’s case [1958 (1) LLJ

500] and ruled that a dispute relating to “any person

becomes a dispute where the person in respect of whom it

is raised is one in whose employment, non employment,

terms of employment or conditions of labour, the parties,

dispute for a direct or substantial interest”.

3612

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

20.

What a substantial or considerable number of

workmen would be in a given case, depend on particular

facts of the case. The fact that an “industrial dispute”, is

supported by other workmen will have to be established

either in the form of a resolution of the union of which

workman may be member or of the workmen themselves

who support the dispute or in any other manner. From the

mere fact that a general union, at whose instance an

“industrial dispute” concerning an individual workman is

referred for adjudication, has on its roll a few of the workmen

of the establishment as its members, it cannot be inferred

that the individual dispute has been converted into an

“industrial dispute”. The Tribunal has therefore, to

consider the question as to how many of the fellow

workman actually espoused the cause of the concerned

workman by participating in the particular resolution of

the union. In the absence of a such a determination by the

Tribunal, it cannot be said that the individual dispute

acquired the character of an industrial dispute and the

Tribunal will not acquire jurisdiction to adjudicate upon

the dispute. Nevertheless, in order to make a dispute an

industrial dispute, it is not necessary that there should

always be a resolution of substantial or appreciable number

of workmen. What is necessary is that there should be

some express or collective will of a substantial or an

appreciable member of the workmen treating the cause of

the individual workman as their own cause. Law to this

effect was laid in P.Somasundrameran [1970 (1) LLJ 558].

21.

It is not necessary that the sponsoring union is a

registered trade union or a recognized trade union. Once it

is shown that a body of substantial number of workmen

either acting through a union or otherwise had sponsored

the workman’s cause, it is sufficient to convert it into an

industrial dispute. In Pardeep Lamp Works [1970 (1) LLJ

507] complaints relating to dispute of ten workmen were

filed before the Conciliation Officer by the individual

workmen themselves. But their case was subsequently

taken up by a new union formed by a large number of co

workmen, if not a majority of them. Since this union was

not registered or recognized, the workmen elected five

representatives to prosecute the cases of ten dismissed

workmen. Thus cases of the dismissed workmen were

espoused by the new union, yet unregistered and

unrecognized. The Apex Court held that the fact that these

disputes were not taken up by a registered or recognized

union does not mean that they were not “industrial

dispute”.

22.

It is not expedient that same union should remain

incharge of that dispute till its adjudication. The dispute

may be espoused by the workmen of an establishment,

through a particular union for making such a dispute an

“industrial dispute”, while the workman may be

represented before the Tribunal for the purpose of section

36 of the Act by a member of executive or office bearer of

altogether another union. The crux of the matter is that the

dispute should be a dispute between the employer and

his workmen. It is not necessary that the dispute must be

espoused or conducted only by a registered trade union.

Even if a trade union ceases to be registered trade union

during the continuance of the adjudication proceedings

that would not affect the maintainability of the order of

reference. Law to this effect was laid by the High Court of

Orissa in Gammon India Limited [1974 (II) LLJ 34]. For

ascertaining as to whether an individual dispute has

acquired character of an industrial dispute, the test is

whether on the date of the reference the dispute was taken

up as supported by the union of the workmen of the

employer against whom the dispute is raised by the

individual workman or by an appreciable number of the

workman. In other words, the validity of the reference of

an industrial dispute must be judged on the facts as they

stood on the date of the reference and not necessarily on

the date when the cause occurs. Reference can be made to

a precedent in Western India Match Co. Ltd. [1970 (II) LLJ

256].

23.

Now, it would be ascertained as to whether the

dispute raised by Shri Mange Ram Sharma answers

standard of being an industrial dispute. For that purpose,

the Tribunal would take note of the fact that the claim

statement was filed before the Tribunal by Shri Mange

Ram Sharma in his individual capacity. However, in the

claim statement, he projects that being the President of

class III and IV staff union, he learnt on 17.02.2011 that the

Nigam was trying to wriggle out of the medical policy, to

be formulated on the strength of wage agreement dated

11.05.2010. He has also contended therein that he issued

strike notice on 25.02.2011 when the Joint General

Manager(HR) informed him that the Nigam has finalized

name of United India Assurance Company Ltd. for the

purpose of health insurance. It has further been mentioned

that on 03.03.2011, union through its President, filed a

rejoinder before the conciliation Officer. Therefore, facts

detailed in the claim statement highlight that Shri Mange

Ram Sharma projects that the claim was filed by him in the

capacity of President of the union, though it has been

signed by him in individual capacity.

24.

Question for consideration would be as to whether

President of a union alone is competent to raise an

industrial dispute. To reach an answer to the above

proposition, provisions of the Act and Industrial Disputes

(Central ) Rules, 1957(in short the Rules) are to be taken

note of. Sub section (2) of the Act speaks that where the

parties to an industrial dispute apply in the prescribed

manner, whether jointly or separately, for a reference of

the dispute to an industrial adjudicator, the appropriate

Government, if satisfied that the persons applying

represent the majority of each party, shall make the

reference accordingly. The word ‘prescribed’, as used in

sub-section (2) of section 10 of the Act, gets meaning

from the definition given in section 2(m) of the Act, wherein

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3613

it has been defined that ‘prescribed’ means, prescribed by

Rules made under the Act. Rule 3 of the rules details as to

how an application under sub-section (2) of section 10 of

the Act would be made before the Authority under the

Act. Rule 4 of the rules specifies as to who will sign an

application under sub-section (2) of section 10 of the Act.

For sake of convenience, provisions of Rule 3 and 4 are

reproduced thus:

“3. Application.—An application under sub-section

(2) of section 10 for the reference of an industrial

dispute to a Board, Court, Labour Court, Tribunal or

National Tribunal shall be made in Form A and shall

be delivered personally or forwarded by registered

post [to the Secretary to the Government of India in

the Ministry of Labour and Employment (in

triplicate)] the Chief Labour Commissioner (Central),

New Delhi, and the Regional Labour Commissioner

(Central), and the Assistant Labour Commissioner

(Central) concerned. The application shall be

accompanied by a statement setting forth—

(a)

the parties to the dispute;

(b)

the specific matters in dispute;

(c)

the total number of workmen employed in the

undertaking affected;

(d)

an estimate of the number of workmen affected

or likely to be affected by the dispute; and

(e)

the efforts made by the parties themselves to

adjust the dispute.

4. Attestation of application.—The application and

the statement accompanying it shall be signed—

(a)

in the case of an employer by the employer

himself, or when the employer is an

incorporated company or other body

corporate, by the agent, manager or other

principal officer of the Corporation;

(b)

in the case of workmen, either by the President

and Secretary of a trade union of the workmen,

or by five representatives of the workmen duly

authorized in this behalf at a meeting of the

workmen held for the purpose;

(c)

in the case of an individual workman, by the

workman himself or by any officer of the trade

union of which he is a member or by another

workman in the same establishment duly

authorized by him in this behalf: Provided that

such workman is not a member of a different

trade union.

25.

As noted above, Rule 3 of the Rules makes it clear

that application shall be made in Form A appended to the

Rules. Format provided by Form A, will also indicate as to

who can make application and by whom it would be signed.

For sake of convenience, Form A as appended to the Rules,

is extracted thus:

Form A

(See rule 3)

“Whereas an industrial dispute exists between—

and______ and it is expedient that the matters specified

in the enclosed statement which are relevant to the dispute

should be referred for adjudication by a Tribunal for

investigation and settlement, an application is hereby made

under sub-section (2) of Section 10 of the Industrial

Disputes Act, 1947 that the said dispute should be referred

to a Tribunal.

This application is made by the undersigned who

have/has been duly authorised to do so by virtue of a

resolution (copy enclosed) adopted by a majority of the

members present at a meeting of the ——————— held

on the —————20—.

A statement giving the particulars required, under

Rule 3 of the Industrial Disputes (Central) Rules, 1957 is

attached.

Signature of the President of the trade

Union/Secretary of the trade union”

26.

As provided in Form A, the application shall be

signed by the President and Secretary of the union. The

application shall contain information to the effect that the

President and Secretary of the union were authorized to

move the application on the strength of resolution adopted

by majority of members present at the meeting. Resultantly,

it is crystal clear that the President and Secretary of the

union were to seek authority from the majority of the

members for moving an application before the appropriate

Government for raising the dispute under reference.

27.

Evidently, claim statement filed before the Tribunal

has been signed by Shri Mange Ram Sharma in his

individual capacity. Whether Shri Mange Ram Sharma

moved application before the Conciliation Officer, in

accordance with the provisions of sub-section (2) of

section 10 of the Act read with rules 3 and 4 of the Rules ?

Answer lies in negative. As emerge out of order date

20.01.2010 passed by Senior Civil Judge, Patiala House

Courts, New Delhi, Shri Mange Ram Sharma was in

litigation with the General Sectary and the then President

of the union. Order of the Senior Civil Judge was assailed

before the High Court of Delhi and petition moved in that

regard was dismissed vide order dated 21.07.2010. In special

leave petition too, the High Court opted not to interfere

with that order. Thus, it came to light that the General

Secretary of the union was in litigation with Shri Mange

Ram Sharma and there was no occasion for the General

Secretary to join hands with the claimant when application

under sub-section (2) of section 10 of the Act was moved

before the Conciliation Officer. Thus, it is crystal clear

that the application was moved by Shri Mange Ram Sharma

in violation of the rules. Shri Sharma could not project that

3614

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

the said application was filed by him with the authority of

of majority members of the union. Resultantly, it is crystal

clear that the application moved under sub-section (2) of

section 10 of the Act was not in consonance with law and

Shri Mange Ram Sharma was not competent to raise a

dispute before the appropriate Government for

adjudication. Therefore it is concluded that the dispute

raised by Shri Mange Ram Sharma could not acquire status

of an industrial dispute.

28.

For sake of argument, presuming that the dispute

had acquired status of industrial dispute, even then, I find

no merits in the claim put forth by Shri Sharma. Ex.WW1/

20 contemplates that the scheme facilities would be

applicable to the employees of the Nigam till it prepares its

own health scheme, including medical insurance. No

discrimination was made by the Nigam amongst its direct

recruits and employees absorbed in its services, relating

to health facilities. On 02.02.2004, insurance scheme in

lieu of the scheme facilities was approved by the Nigam,

as testified by Shri Saxena. At the time of absorption of

the employees, it was decided that insurance scheme, if

any, would be introduced in consultation with the majority

union. On 23.12.2005, a meeting took place with the

majority union relating to implementation of medical

insurance scheme. In that meeting, it was decided to

implement medical insurance scheme with effect from

15.01.2006, besides decision on modalities of that scheme.

Ex.MW1/W1 is the copy of minutes of the aforesaid

meeting while Ex.MW1/W2 projects attendance of

participants along with their signatures, in the meeting.

Ex.MW1/W1 was circulated to various authorities,

including office bearers of the union vide letter dated

26.12.2005, copy of which is Ex.MW1/W3. When these

documents are scanned, it came to light that the majority

union was consulted by the Nigam and thereafter steps

for implementation of the medical insurance scheme were

taken.

29.

After September 2006, the Nigam switched over to

the new in-house scheme based on the service

empanelment of hospitals. Ex.MW1/W1 projects

consultation with the majority union. A meeting took place

with the majority union on 23.02.2011 and 25.02.2011. Copy

of minutes of the meeting were placed over the record as

Ex.MW1/W6 and Ex.MW1/W5 respectively. Ex.WW1/38

highlights that notice of the meeting dated 25.02.2011 was

served on the union. This document makes it apparent

that Shri Mange Ram Sharma had knowledge that meeting

was to be held on 25.02.2011, Shri Saxena made it clear that

he personally called Shri Mange Ram Sharma and informed

him about the meeting to be held on 25.02.2011. Out of the

facts referred above, it came to light that the majority union

was consulted in meeting dated 25.02.2011 and thereafter

circular MTNL/Co/Pers/Med.ins.we.20911/622 dated

09.03.2011 was issued. Implementing that circular, circular

No. MR/Cir/2008-09/35 dated 15.03,.2011 was issued.

When there was proper consultation in consonance with

clause 4.2 of the wage settlement proved as Ex.WW1/31,

it does not lie in the mouth of the claimant to assert that

the said circular is incompetent.

30.

On the strength of the said circular, insurance health

scheme was put in service for a period of two years. The

said insurance policy expired on 10.02.2013. Vide letter

dated 10.02.2013, the majority union made representation

to the Nigam to discuss medical policy after 10.03.2013.

The Nigam, held a meeting on 27.02.2013, with the

recognized union and in the said meeting, renewal of group

health insurance scheme with effect from 10.03.2013 was

supported and approved by the majority union. Letter

dated 15.02.2013, written by the General Secretary of the

union would reflect that initiative was taken by the majority

union for discussion on renewal of group health insurance

scheme. For sake of convenience, contents of the said

letter are reproduced thus:

“As you are aware, that the term of existing medical

policy is to expire next month. It is, therefore,

expedient to review existing arrangement and evolve

a medical policy in agreement with the recognized

unions before we enter into an agreement with any

agency to provide medical services to MTNL

workers. Kindly arrange to fix a meeting with union

representatives in this regard.”

31.

As projected by the Nigam, a meeting took place

with the majority union on 28.02.2013. Minutes of the

meeting are reproduced thus:

“As per approval of Competent Authority, a meeting

under the chairmanship of GM(HR) was held with

the representatives of the recognized union of

MTNL, Delhi Union on 27th February, 2013 at 11.30

a.m. in Conference Room, 6th Floor, MTNL corporate

Office, CGO Complex, Lodhi Road, New Delhi to

discuss about the renewal of Group Health Insurance

Scheme for MTNL working employees with effect

from 10th March, 2013.

The participants attended as per attendance

sheet (enclosed).

At the outset, GM(HR) welcomed all

participants and briefed about the steps taken for

renewal of Group Health Insurance Scheme for

MTNL working employees with effect from

10.03.2013.

General Secretary, MTNL Mazdoor Sangh, the

Recognized union in MTNL Delhi supported the

renewal of GHIS for MTNL working employees from

10th March, 2013. However, he also raised following

points related with the administration of the scheme

in MTNL Delhi:

¹Hkkx II—[k.M 3(ii)º

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3615

Problems in getting cashless treatment

Clarification regarding inclusion of any two

children in place of first two children

Poor response from TPA help desks

Problems in billing in certain hospitals

Joint General Manager explained the position

in respect of each of the above points and sought

the co-operation of the recognized union in smooth

functioning of the scheme.

General Secretary, MTNL Mazdoor Sangh

once again reiterated the support of the recognized

union for the renewal of the scheme with effect from

10th March, 2013 and requested MTNL Management

to clarify the above points at the earliest.

The meeting ended with a vote of thanks.”

Particulars

In House Scheme (upto 09.03.2011)

Insurance Scheme (From 10.03.2011)

Room Rent Entitlement

Rs. 400 and Rs. 600 for Group D and

Room Rent entitlement enhanced to

Group C respectively

Rs.1200 and Rs.1800 respectively

Empanelled Hospitals

Around 40 hospitals in Delhi/NCR

Around 4000 hospitals Pan India

Doctors visit

Capping of Rs. 61 per visit

No such capping on Doctor’s visit

Cataract

Capping of Rs. 13500.00

Capping of Rs. 20000

Hernia

Capping of Rs. 16000.00

Capping of Rs. 35000

Hysterectomy

Capping of Rs. 20000.00

Capping of Rs. 45000

Maternity

Normal delivery – capping of Rs.8080

Capping of Rs. 40000

and Caesarean Section- Capping of

Rs.15000.00

Cardiac Surgery

Capping of Rs.133650.00

No such capping

Other major diseases

Capping on each individual disease/

No such capping

procedure

Place of treatment

Confined to Delhi/NCR

Not confined to Delhi/NCR but

PAN India

Pre and Post Hospitalization

Not available

Pre-hospitalization 30 days cover and

Benefit

Post hospitalization 60 days cover,

subject to Rs. 20000

32.

From letter dated 15.02.2013 and minutes dated

28.02.2013, it came to light that the majority union

supported and approved renewal of group health

insurance scheme with effect from 10.03.2013. These facts

make it apparent that the health insurance scheme was

initially formulated by the Nigam and implemented with

the approval and support of the majority union. Renewal

of health insurance scheme was also supported and

approved by the majority union. In view of these facts

and circumstances, it does not lie in the mouth of the

claimant to assert that group health insurance scheme was

formulated by the Nigam without consultation of the

majority union, in violation of provisions of clause 4.2 of

the wage agreement, Ex.WW1/31.

33.

Whether group insurance scheme is less beneficial

than the scheme? For an answer to this proposition, the

Nigam has given a comparative chart, contents of which

are detailed below:

34.

Shri Tyagi could not dispel contents of the chart

referred above. When the claimant could not point out

that cap of Rs. 6 lakh kept in group insurance health

insurance scheme is less beneficial, in that situation, facts

presented by the Nigam are to be accepted. As detailed

above, group health insurance scheme cannot be termed

as less beneficial than the scheme. On that count too,

claim put forth by Shri Mange Ram Sharma is found not to

be justified. Resultantly, it is concluded that action of the

Nigam in extending medical facilities to its employees

through insurance company is legal as well as justified.

No indulgence from this Tribunal is accorded, since

employees of Group C and D of the Nigam are getting

better medical facilities. Claim put forward is brushed aside.

An award is, accordingly, passed. It be sent to the

appropriate Government for publication.

Dated : 9.4.2014

Dr. R.K. YADAV, Presiding Officer

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3616

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

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New Delhi, the 22nd April, 2014

S.O. 1363.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 28/2008)

of the Central Government Industrial Tribunal/Labour

Court No. 2, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of Director General of Works, Central Public

Works Department, New Delhi and their workmen, which

was received by the Central Government on 16/04/2014.

[No. L-42011/17/2008-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, ROOM NO. 33,

BLOCK-A, GROUND FLOOR, KARKARDOOMA

COURT COMPLEX, KARKARDOOMA,

DELHI-110 032

Present : Shri Harbansh Kumar Saxena

ID No. 28/2008

The General Secretary,

CPWD Mazdoor Union,

Room No. 95, Barrack No. 1/10,

Jamnagar House, Shahjhan Road,

New Delhi-110011

Versus

The Director General of Works,

CPWD, Nirman Bhawan,

New Delhi.

EXPARTE AWARD

The Central Government in the Ministry of Labour

vide notification No. L-42011/17/2008-IR(DU) dated

04/06/2008 referred the following Industrial Dispute to this

tribunal for adjudication :-

“Whether the contracts between the management

of CPWD, and the contractors mentioned under

column 9 if the Annexure, with regard to employment

of the workmen listed under column 2 of the

Annexure, are sham and bogus? If yes, then whether

the demand of CPWD Mazdoor Union for

regularisation of their services by the management

CPWD is legal and justified? If yes, to what relief

the respective workmen are entitled to ?”

On 14/7/2008 reference was received in this tribunal.

Which was register as I.D No 28/2008 and claimant were

called upon to file claim statement with in fifteen days

from date of service of notice. Which was required to be

accompanied with relevant documents and list of

witnesses.

After Service of Notice Workmen filed Claim

Statement through which they claimed that tribunal may

kindly award that the workmen connected with the dispute

are entitled to be regularized in their respective category

and till their regulation they are also entitled minimum of

time scale plus all allowance as the daily rated workers

have been getting the wages from their initial employment

from the Management of CPWD.

Management after service of notice management has

not filed written statement so case proceeded Ex- parte on

21/1/2010 against management.

Out of 162 workmen only following workman namely

Man Mohan Malviya, Firoz Ahmad, Binod Singh, Ashish

Pathak and Amit Kumar Sharma have filed affidavit in

evidence in support of their case. In addition to it

Sh. Bhoop Singh also filed affidavit as corroborative

evidence who is representative of CPWD , Mazdoor Union

through which workmen raised present Industrial Dispute.

Thereafter workmen closed their evidence.

So their remains following workmen who have not

filed affidavit in support of their claim statement.

Dinesh Kumar

Sanjay Sahariya

Jagdish Prasad Kewat

Deewan Singh Thakur

Vishnu Verma

Sunil Choure

Deelip Yadav

Sanjay Kumar Bourasi

Santosh Kumar

10.

Arvind Kumar

11.

Bahadur Singh Rajpur

12.

Dinesh Kumar Raikwar

13.

Phanil Das

14.

Suren Gurung

15.

Md. Sahjahan Ali

16.

Rajesh Kumar

17.

Solan Singh

18.

Eswar

19.

Ashok Kumar

20.

Rajesh Chauhan

21.

Jay Singh Rajpur

22.

Dharmender Yadav

23.

Sony Varma

24.

Anand Subeshiya

25.

Babu Singh Chauhan

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3617

26.

Manish Kushwaha

27.

Santosh Sirsath

28.

Devender Shangte

29.

Kailash Chandra Chauhan

30.

Rajender Akhand

31.

Ram Chander Varma

32.

Vikash Loti

33.

Jay Narayan Paliwal

34.

Ram Prakash Verma

35.

Ratan Singh

36.

Kalyan Jalai

37.

Sunil Kumar Sharma

38.

Jagdish Gothwal

39.

Deepak Parik

40.

Dinesh Kumar Rao

41.

Fariyad Ahmad

42.

Ram Kishore Sain

43.

Ravi Kumar

44.

Prem Singh

45.

Manish Kumar Bairwa

46.

Parmod Kumar Sharma

47.

Salim Khan

48.

Brij Mohan Chitra

49.

Mahesh Kumar

50.

Mohd. Akram

51.

Ansar Pasha

52.

Gaddala Sree Ramlili

53.

M.D. Islam

54.

Mohd. Aziz

55.

Kurban Ansari

56.

Hasumuddin

57.

Amarnath

58.

Avdesh Kumar

59.

Vinod Kumar

60.

Bablu

61.

Manish Kumar

62.

S.K. Nagoor Meera

63.

Korada Satyanarayan

64.

P. Umanageswara

65.

Huru Sarkar

66.

Rahul Tanwar

67.

Ram Avtar Ram

68.

Jai Raj

69.

Palisetty Kumar Venkateshwara Rao

70.

Diwakar Jaina

71.

Subhas Ch. Dass

72.

Paramanand

73.

Subhash

74.

Jeewan Singh

75.

Pitsbash Sahu

76.

Ranjan Ku. Subudhi

77.

Akshyaya Ku. Behera

78.

Paramanand Dass

79.

P. Bhaskar Rao

80.

P. Venkateshwar Rao

81.

P. Sudhakar

82.

Adit Pratap Singh

83.

K. Suryanarayan

84.

Md. Mohtaz Ali

85.

Ratan Lakhar

86.

Md. Makib Ali

87.

Md. Maziban Rahman

88.

Ramesh Yadav

89.

Ramu

90.

Dhaamvir Pathak

91.

Kommuri Rama Mohan Rao

92.

M.S. Prakash

93.

Md. Jaffar Hussain

94.

B.Simhachalam

95.

M. Giri Babu

96.

Amjala Lakshmi Narayan

97.

Kona Anthony

98.

Vegi Srinivas

99.

Medidi Srirama Kumar

100.

Palistty Seshagirirao

101.

Dukka Srinivasa Rao

102.

Dalai Satya Kumar

103.

Pradip Mandal

104.

Dijan Mandal

105.

Manohar Jha

106.

Satinder Kumar

107.

Ashok Kumar Ram

108.

Rajesh Kumar

109.

Anirudh Mahali

110.

Dalip Kumar Mandal

111.

Mohd. Aslam

112.

Mohd. Kurban Ansari

113.

Modh. Aziz

114.

Pradeep Gope

115.

Suresh Kumar

116.

Dalip Goswami

117.

Kanak Ch. Das

118.

Mrs. Bindu Danja

119.

Gopu Ratna Rao

120.

Suren Kalita

121.

Moti Lal

122.

Uttam Chandra

123.

Ashok Sasre

124.

Somnath Chandre

125.

Dalip Chandre

126.

Sadhu Tapkir

127.

Ramdas Thapkir

128.

Krushna Kadam

129.

Anil Lada

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[PART II—SEC. 3(ii)]

130.

Kishan Kakade

131.

Prakesh Shinde

132.

Ram Das Kumble

133.

Rohidas Kumble

134.

Dattu Pawan

135.

Yogesh M. Arude

136.

Til Kumar Shirish

137.

Dhan Bahadur Gaha

138.

Chadhary Nath Sahib Dasrath

139.

Gole Rajendra B.

140.

Desraj Sharma

141.

Pradeep Kumar

142.

Rabi Darjee

143.

Monu Darjee

144.

Ugen Sherpa

145.

Amar Darjee

146.

Dharmeshwar Nath

147.

Balwinder Singh

148.

Gokal Chand

149.

Dilbag

150.

Addepalli

151.

K. Ramesha

152.

R. Nagaraj

153.

Davis Dass

154.

G. Sathiskumar

155.

A. Allauddin

156.

Liyaz Ahmed

157.

Nagraj Pandre

Ld. A/R for workmen orally argued as well as filed

written argument on 4/10/2010.

Through written argument he stressed as follows:-

That the appropriate Government in the Ministry of

Labour, Government of India, New Delhi has referred the

dispute to this Hon’ble Tribunal for adjudication vide its

Order No. L-42011/17/2008-IR(DU)) dated 04/06/2008 with

the following terms:

SCHEDULE

“Whether the contracts between the Management

of CPWD and the contractors mentioned under

column 9 of the Annexure, with regard to

employment of the workmen listed under column 2

of the Annexure, are sham and bogus? If yes, then

whether the demand of CPWD Mazdoor Union for

regularization of their services by the management

CPWD is legal and justified? If yes, to what relief

the respective workmen are entitled to ?”

That the details of workmen i.e. Name, Father’s name,

Designation, Status, Date of Employment, Duty Place and

name of the contractor etc. are mentioned in the list attached

with the reference and their names etc. were mentioned in

para 2 of the Statement of Claim also.

That 162 workmen connected with the dispute were

engaged through the contractors on a perennial nature of

job with a view to exploit these workforce, deny the regular

status and equal pay for equal work. They have been

performing their duties under the officials of the

management of CPWD like Junior Engineers, Assistant

Engineers and Executive Engineers concerned as the case

may be and the contractors have/had been performing the

duties of a cashier.

That the workmen have completed more than 240

days of continuous service in each of the calendar year so

they acquire the status of a regular workman of the

management of CPWD.

That the contractors neither has license for

engagement of contract labourers nor the management of

CPWD being principal employer procured registration as

required under the Contract Labour (Regulation and

Abolition) Act, 1970 to engage contract labourers through

Contractor (s) thereby violated the provisions of the said

Act. So the workmen are entitled regular status and

absorbed being direct employees of the management of

CPWD, so get all benefits as that of regular and daily

rated workmen directly employed by CPWD. It is also

submitted that there was no genuine contract. Hence the

workmen on completion of 240 days are entitled to be

absorbed with the management of CPWD.

That the workmen are performing the duty on a

perennial nature of job so all are direct employees of the

Management, if the veil is lifted by this Hon’ble Tribunal

will come to know how the management of CPWD is

committing unfair labour practice and run counter to the

provisions of Contract Labour (Regulation and Abolition)

Act, 1970. Therefore, they may be absorbed being direct

employees of Management.

That all the workmen who are working as unskilled,

semi-skilled, skilled etc. workmen connected with the

dispute are having the technical qualifications for

regularization of their service under the management of

CPWD and for other workman working on unskilled

category are entitled for regularization without any

technical qualification as both type of categories have

also acquire sufficient experience for working in the

different categories i.e. unskilled, semi-skilled, and skilled

with the management of CPWD.

That even the Ministry of Labour in exercise of

powers conferred by Sub-section (1) of Section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (37

of 1970), the Central Government, in consultation with the

Central Advisory Contract Labour Board, prohibited the

employment of the contract labour in the process,

operation or work specified in the Schedule, in the office /

establishment of Central Public Works Department,

Ministry of Urban Development and Employment, New

Delhi and the Notification for prohibiting the employment

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3619

of Khalasi etc. were notified by the Ministry of Labour

Notification dated 31.07.2002 the Extra-Ordinary Gazette

of the Govt. of India in Para II Section 3 and Sub-Section

(2). Copy of the notification is annexed as Annexure-III

with the statement of claim and the same is exhibit

WW1/1.

That as per notification dated 31.07.02 of Ministry

of Labour, New Delhi the employment on the following

establishments are prohibited for employing the contract

labour in the office / establishment of C.P.W.D. w.e.f.

31.07.2002 i.e. is the date of publication namely:

Air Conditioner Mechanic

ii.

Air Conditioner Khalasi / Helper

iii.

Electrician

iv.

Wireman

Khalasi (Electrical)

vi.

Carpenter

vii.

Mason

viii.

Fitter

ix.

Plumber

Helper / Beldar

xi.

Mechanic

xii.

Sewerman

xiii.

Sweeper

xiv.

Foreman

10.

That it is proved by the evidence of Shri Bhoop

Singh WW1/A the work on which the workmen have been

performing their duties can not be handed over to the

contractors, so they have to be treated the direct

employment of CPWD and their status are of a daily rated

worker directly employed by the management.

11.

That after the said Notification the workmen

connected with the dispute who are covered in

employment as referred herein above were to be treated as

direct employment of the management of CPWD and their

status is of a daily rated workers directly employed by the

management. Copy of the order in respect of payment of

equal pay for equal work by the CPWD are already annexed

as Annexure-I & II with the statement of claim and the

same are exhibit WW1/2 and WW1/3 respectively.

12.

That the activities of the management are of

plantations, work relating to the construction,

developments of park, maintenance of buildings, roads,

bridge etc. are covered under the section (2) (e) and (g) of

The Payment of Wages Act, 1936 thereby the said

establishment are also covered under the provisions of

Industrial Employment ( Standing Orders) Act, 1946 and

according to the model standing orders, the workman is

acquire after completion of three months (90 days ) the

status of a permanent workman and according the

workmen connected with the dispute be treated as working

on officiating / acting capacity on the said post and acquire

the permanent status of after completion of 90 days and

their services have to be declared as permanent employee

of the management as per the Model Standing Orders under

Industrial Employment (Standing Orders) Act, 1946 as the

activity is the CPWD is covered under the payment of

wages Act, thereby the employment is covered under the

said Industrial Employment Act.

13.

That the duties have been performed by the workmen

are of perennial in nature and the said jobs cannot be

awarded on contract basis through Contractor.

14.

That in the CPWD, the daily-rated workers in all the

categories have been getting their wages in minimum of

time scale plus DA, ADA, HRA, CCA, IR, except increment

but the workman connected with the dispute are even

denied minimum wages fixed under the Minimum Wages

Act, 1948 from time to time by the appropriate Government

to the different categories. Now these workers are also

entitled to the same wages paid to the daily rated workers

in CPWD i.e. fixed in the minimum of time scale along with

all allowances accept increment from the date of their initial

employment being unskilled, semi-skilled, skilled and

highly workmen. Copy of the order dated 21-10-90 and

28-01-91 are annexed as Annexure1 & 2 with the statement

of claim and the same is exhibit WW1/2 and WW1/3

respectively.

15.

That the following time scale fixed to the different

categories working in the CPWD as regular workman on

work charged establishment:

Status

Time scale

Time Scale Fixed

Prior to 01.01.1996

w.e.f. 01.01.1996

with all allowances

Skilled

950-1500

3050-4590

Semi Skilled

810-1150

2650-4000

Un Skilled

750-940

2550-3200

16.

That the daily rated workman on muster roll/hand

receipt have been getting their wages in the minimum of

scale i.e. Rs. 950, 3050, 810, 2650, 750, and 2550, 3200 along

with all allowances accept increment till their service will

be regularized but these workmen connected with the

dispute are even denied the minimum wages fixed for

unskilled, semi skilled or skilled.

17.

That now the daily rated workmen were getting higher

wages equivalent to their regular counterpart in the work

charge establishment w.e.f. 1-1-2006 after implementation

of 6the Pay Commission.

18.

That as per the judgement of the Hon’ble Supreme

Court in the matter of Sh. Surender Singh and Others V/s

Engineer-in-Chief CPWD the daily rated workers are also

entitled to be regularized in the time scale after completion

of 6 months of their continuous services but the

management has decided to consider for regularization of

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[PART II—SEC. 3(ii)]

the services of those persons who completed 240 days in

a two consecutive year.

19.

That the management is an Industry governed by

the provisions of Industrial Disputes Act, 1947 as well as

the provisions of the Industrial Employment (Standing

Orders) Act, 1946 and as per the schedule 1 the

classification under the MODEL STANDING ORDERS IN

RESPECT OF INDUSTRIAL ESTABLISHMENT NOT

BEING INDUSTRIAL ESTABLISHMENT IN COAL-

MINES ARE AS UNDER:

“2. Classification of workman:- (a) workman shall be

classified as under:-

(1)

Permanent

(2)

Probationers

(3)

Badlis

(3-A) fixed term employment [Inserted by GSR 936 (E),

dated 10th December, 2003 (w.e.f. 10th December,

2003)].

(4)

Temporary

(5)

Casual

(6)

Apprentices.

(b)

A “permanent workmen” is a workman who has

been engaged on a permanent basis and include

any person who has satisfactorily completed a

probationary period of three months in the same or

another occupation in the industrial establishment,

including breaks due to sickness, accident, leave,

lockout, strike (not being an illegal strike) or

involuntary closure of the establishment/

(c)

A“Probationer” is a workman who is provisionally

employed to fill a permanent vacancy in a post and

has not completed three months service therein if a

new post he may, at any time during the probationary

period of three months, be reverted to his previous

permanent post.

(d)

A “badli “ is a workman who is appointed in the post

of a permanent workman or probationer who is

temporarily absent.

(e)

A“temporary workman” is a workman who has been

engaged for work which is of a essentially temporary

nature likely to be finished within a limited period.

(f)

A“casual workman” is a workman whose

employment is of a casual nature.

(g)

An “apprentice” is a learner who is paid an allowance

during the period of his training.

3(h)

A “fixed term employment workman” is a workman

who has been engaged on the basis of contract of

employment for a fixed period. However, his working

hours, wages, allowances and other benefits

available to a permanent workman proportionately

according to the period of service rendered by him

even through his period of employment does not

extend to the qualifying period of employment

required in the statute.

20.

That the workmen connected with the dispute are

entitled to be regularized in their respective category and

till their regularization they are also entitled minimum of

time scale + all allowances as the daily rated workers have

been getting the wages from their initial employment from

the Management of CPWD.

21.

That the facts of the case the workmen were

performing their duties under the control and supervision

of the Management being the work of a perennial in nature,

the relation exists between the workmen and the

Management so they have to be treated as direct

employees of the Management of CPWD.

22.

That the Constitutional Bench of the Hon’ble

Supreme Court has settled the relationship between the

workmen and the management in the matter of Steel

Authority of India Ltd. & Ors. Vs. National Union

Waterfront Workers & Ors (2001) 7 SCC.1. The relevant

para of the said judgement i.e. 125(5) and (6) settled the

proposition of law between the principal employer and

the contract labour if the Contract Labour who was

employed in a camouflage manner then they are treated

the direct employee of the principal employer, and the same

is reproduced as under:

“125(5) on issuance of prohibition notification under

Section 10(1) of the CLRS Act prohibiting

employment of contact labour it by any contract

labour in regard to consider the question whether

the contractor has been interposed either on the

ground of having undertaken to produce any given

result for the establishment or for supply of contract

labour for work of the establishment under a genuine

contract or is mere ruse/camouflage to evade

compliance with various beneficial legislations so

as to deprive the workers of the benefit thereunder.

If the contract is found to be not genuine but a mere

camouflage, the so-called contract labour will have

to be treated as employees of the principal employer

who shall be directed to regularize the services of

the contract labour in the establishment concerned

subject to the conditions as may be specified by it

for that purpose in the light of para 6 hereunder.

(6) If the contract is found to be genuine and

prohibition notification under Section 10(1) of the

CLRA Act in respect of the establishment concerned

has been issued by the appropriate Government

prohibiting employment of contract labour in any

process, operation or other work of other work of

the establishment the principal employer intends to

employ regular workmen, he shall give preference to

the erstwhile contract labour, if otherwise found

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3621

suitable and, if necessary, by relaxing the condition

as to maximum age appropriately, taking into

consideration the age of the workers at the time of

their initial employment by the contractor and also

relaxing the condition as to academic qualifications

other than technical qualifications.”

23.

That the Management in this case did not obtain

the registration certificate u/s 7 and the so-called

Contractor was not licensed contractor under section 12

the Contract Labour (Regulation & Abolition) Act 1970,

so the contract was mere sham, camouflage and illegal.

Therefore, the workman has to be treated as direct

employees of the Management of PWD. In another

Judgement of Hon’ble Supreme Court in the matter of

Secretary, Haryana State Electricity Board and Suresh &

Others (1999-I-LLJ-1086) has dealt the case of Dinanath &

Ors. Vs. National fertilizers Ltd. & Ors (1992-I-LLJ-289)

has held that if the principal employer did not having the

registration etc. between then the linkage between the

contractor and the employees stood snapped and direct

relationship stood restored the principal employer and the

contract labour as its employees. The operative portion of

para 18 of Secretary, Haryana State Electricity Board and

Suresh & others (1999-I-LLJ-1086).

“18. Reliance on the decision in the case of Dinanath

& Ors V. National Fertilizers Ltd. & Ors. (1992-LLJ-

289) (SC) in support of the Board’s contention,

however, stands diluted by reasons of the decisions

of this Court in Gujarat Electricity Board Vs. Hind

Mazdoor Sabha & Ors (1995-II-LLJ-790) (SC) and

Air India Statutory Corporation etc. Vs. United

Labour Union & Ors. etc. (supra). The ratio as has

been decided in Air India’s case appears to have

softened the edges of Dinanath’s ratio. While dealing

with this issue in Air India’s case (supra), this Court

has, as a matter of fact takes note of more or less the

entire catena of cases pertaining to contract labour

and we do thus feel it wholly unnecessary to deal

with the same in extensor excepting however

recording some observations of this Court in Air

India’s case (supra) as below:-

“In this behalf, it is necessary to recapitulate that

on abolition of the contract labour system, by

necessary implication, the principal employer is

under statutory obligation to absorb the contract

labour. The linkage between the contract and the

employee stood snapped and direct relationship

stood restored between principal employer and the

contract labour as its employees. Considered from

this perspective, all workmen in the respective

services working on contract labour are required to

be absorbed in the establishment of the appellant.”

24.

That in the said judgment of Hon’ble Supreme Court

in the matter of Secretary, Haryana State Electricity Board

and Suresh & others (1999-I-LLJ-1086) has also held that

if the so called contractor was mere name lender, who

procured labour for appellant Board as broker, Board was

not principal employer-so called contract was mere

camouflage which concealed real relationship of the

employer employees. The workmen also relied the relevant

para 8, 17, & 19 of the said judgment.

25.

That the Hon’ble Supreme Court in Hussainbhai,

Calicut and Alath Factory Thoshilali Union, Calicut and

others [1978-II-LLJ-397] has held that Contractor in this

case is only supplying the labour for performing the work

of principal employer, so the workman have to be treated

as direct employees of the principal employer. The

workmen relief on para 5, 6 & 7 of the said judgement.

26.

That on the question of control and supervision

etc. the Hon’ble Supreme Court in the latest judgement in

the matter of M/s. Bharat Heavy Electricals Ltd. (Appellant)

v. State of U.P. and others (Respondents) 2003 Lab. I.C.2630

have held in para 11, 12, 13, &14.

27.

That the Hon’ble Supreme Court in the matter of

M/s. Indian Farmers Fertilizers Co-op. Ltd., Appellant V.

Industrial Tribunal-I, Allahabad and others, Respondents

[2002 LAB. IC. 1091] decided that the circumstances, nature

of employment whether directly under appellant or through

contractor is necessarily to be decided on the basis of

evidence adduced by the workman as well as Management

before the Industrial Tribunal. The workman relied on

relevant para 5 of the Judgement.

28.

That the recent Judgement of Hon’ble Supreme Court

dated 26th September, 2006 in the matter of Steel Authority

of India Ltd. Vs. Union of India & Ors [2006 VIII AD(S.C.)

381 has held that Industrial Court has only the jurisdiction

to decide whether the contract was really a camouflage or

sham one as decided by the Constitution bench of Hon’ble

Supreme Court of India in the matter of Steel Authority of

India Ltd. and Others Vs. National Union Waterfront and

Others [(2001)7 SCC 1] is still in the field. The workman

relied on para 9 & 10 of the said judgment.

29.

That as per the facts of this case, evidence adduced

by WW1, it is proved that in this case the contract was

not genuine, as camouflage to evade compliance with the

beneficial legislation like the management in this dispute,

is not a principal employer, because there was no genuine

contract system, as they have not got registered and the

contractor was not a licensed contractor, so the workmen

have to be treated as direct employees of the PWD.

30.

That as per the order dated 18-01-1991 Exh. WW1/2

& WW1/3 the daily rated workers under the Management

have been getting their wages as equal pay for equal work

i.e. minimum of time scale plus all allowance except

increment. Accordingly, the workmen connected with the

dispute is entitled equal work as per rule 25(2)(v)(a) of

Central Rules framed under Contract Labour (Regulation

3622

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

& Abolition) Act,1970. The Hon’ble Supreme Court in the

matter M/s Food Corporation of India Vs. Shyamal K.

Chattergee and others…Respondents 2000 LAB I.C. 3323

has held that contracts labour are entitled the wages paid

to the casual workers doing same job are entitled to wages

on par with class IV employee. The workmen relied on

para 5&7 of the said judgement.

In view of the above, the contract was sham,

comaufledge and the job are of perennial in natures and

even the work of various categories like Air Conditioner

Mechanic, Khalasi/Helper, Electrician, Wireman, Khalasi

(Electrical), Carpenter, Mason, fitter, Plumber, Helper/

Beldar, Mechanic, Sewerman, Sweeper & foreman

abolished w.e.f.31-07-2002 by the Ministry of Labour, Govt.

of India (Exh. WW 1/1) so this Hon’ble Tribunal treat the

workmen connected with the dispute the direct employee

of the Management of CPWD and treat them like daily

rated worker/casual worker and even some category of

workmen are performing the duty on perennial nature and

they have direct relationship of employer and employees

between the Management of CPWD and their workmen

connected with the dispute.

On the basis of aforesaid grounds Ld A/R for the

workmen prayed as follows:-

Award to issue the directions to the Management of

CPWD to initiate the process for regularization of the

services of the workmen by relaxing age etc. as per rules

with their seniority and also pay equal pay for equal work

from the respective date of their employment in the

Minimum of time scale alongwith all allowances except

increment till the date of regularization within one month

of publication of the Award failing which the Management

may be directed to pay Bank interest per annum.

Ld A/R for the workmen placed reliance on Judgment/

Award Dated: 30/04/2004 passed by Sh. B.N Pandey P.O.

CGIT New Delhi. ID.74 of 1996.

Sh. Kali Charan & Others, Through General

Secretary, CPWD Mazdoor Union, E-26 (Old Qutrs.), Raja

Bazar, Baba Kharak Singh Marg, New Delhi.

Through which P.O. directed the Management of

CPWD to consider the regularization of the services of

the workmen by relaxing age etc. as per rules and vacancies

in accordance with their seniority and also pay equal pay

for equal work from the respective date of their

employment in the minimum of time scale of Group-D

employees alongwith all allowances except increments till

the date of regularization within one month of publication

of the award, failing which the management will be liable

to pay interest @ 6% per annum. Parties shall bear their

own cost.

Management of CPWD had challenged the aforesaid

award by way of filing writ petition No. WP(C)12068/2005.

Aforesaid writ-petition was admitted subject to deposit of

certain amount of salary.

16 workers applied for interim relief by way of moving

application for release of amount, out of amount deposited

by writ petitioners. On which Hon’ble High Court on

09/02/2012 passed the following order:-

“Considering all the facts and circumstances, these

applications are allowed. The sixteen workers, named

already, without prejudice to the contentions of both the

parties which they would be making at the time of final

hearing of the writ petition, are granted interim relief of

payment of Rs. 50,000 each out of the money which is

lying deposited with this court though they have claimed

that their share in that would be more than two lacs. The

registry shall complete the entire exercise of releasing

money to the workers within three weeks after filing of the

undertakings by the workman which they shall furnish

within three weeks. These applications stand disposed of

accordingly.”

In this background Ld A/R for workmen stressed

that case of workmen is similar to the case of workmen of

the award dated 30/04/2004.

Thus the workmen of the instant case entitled to the

same relief which was granted to workmen of ID. 74/96.

In the light of contentions of Ld A/R for the workmen

I perused the pleadings and evidence of workmen on

record as case proceeded Ex-parte against management

including the settled law on the point and relevant

provisions of concerned law and case law on the point.

It is admitted fact that case of industrial dispute is a

case of civil nature. Which is decided on the basis of

pleadings of the parties and their evidence.

It is also admitted fact that standard of evidence in

civil case is preponderance of evidence.

On aforesaid grounds their appears two categories

of workmen in the instant case as follows:-

Who have filed their evidence by way of filing their

affidavits namely. Man Mohan Malviya, Firoz

Ahmad, Binod Singh, Ashish Pathak and Amit

Kumar Sharma.

Who have not filed their evidence by way of filing

their affidavit they are 157 in numbers whose names

have already been mentioned above.

The Hon’ble Supreme Court in case of Indian

Petrochemicals Corporation Ltd. Vs. Shramik Sena and

others (1999)-3078, have decided that when the contract

labour is treated direct employees of the management for

all purposes and the regularization was granted by the

court not as a matter of right of the workmen arising under

any statue but with a view to eradicate unfair labour

practice and inequity to undo any social justice and as a

measure of labour welfare.

It is proved by the evidence that one of the major

conditions for employement of contract labour i.e.

registration by the principal employer i.e. CPWD is lacking

¹Hkkx II—[k.M 3(ii)º

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3623

and even the contractors are not having license for

supplying the contract labour and the workmen connected

with the dispute have to be treated as direct employees of

the CPWD as per the direction of the Constitutional Bench

of Hon’ble Supreme Court decided in Steel Authority of

India Ltd. (SAIL) case. In another case, the Hon’ble

Supreme Court between the Secretary, Haryana State

Electricity Board and Suresh & others (1999-I-LLJ-1086)

also held that if the so called contractor was mere name

lender, who procured labour for appellant Board as broker,

Board was not principal employer-so called contract was

mere camouflage which concealed real relationship of the

employer employees.

The workmen also placed the notification dated

31.7.2002 issued by the Ministry of Labour, Govt of India,

New Delhi during the pendency of the dispute which

prohibited the employment of contract labour in the

process/operation or work specified in the schedule and

according to the said Notification the employment of

Wireman , Pump Operator and Khalasi are also prohibited

in the establishments of CPWD . The notification is

published in the Gazette of India Extraordinary Part-II

Section 3- Sub- section (ii) dated 31st July 2002. On the

basis of evidence adduced by both the parties , documents

placed on record and different judgements Hon’ble

Supreme Court. I came to the following conclusions.

The principal employer is not registered u/s 7 and

the contractors are not licensing contractors u/s 12 of

Contract Labour (Regulation and Abolition) Act 1970 ,and

no beneficial provisions under Contract Labour (Regulation

and Abolition) Act 1970 have been provided to the

workmen connected with the dispute therefore, the

contract is not a genuine contract, so the workmen have

to be treated direct employees of CPWD.

As per the Notification dated 31.7.2002 of the

Ministry of Labour, Govt. of India, abolishing the

employment on the work of sweeping (Sweeper ) of contract

labour in the process, operation or work in the offices/

establishments of CPWD , Ministry of Urban Development

and Employment, the workmen connected with the dispute

also have to be treated the direct employees of CPWD.

In accordance with para 125(5 and 6) of the judgment

of Constitutional Bench of Hon’ble Supreme Court in the

matter of SAIL, [2001 7 SCC] the workmen are entitled to

be considered for regularization by the management of

CPWD by relaxing the condition of maximum age at the

time of initial employment as contract labour and till the

regularization the workmen have to be treated as daily

rated/casual workers of CPWD.

Till the regularization the workmen have to be treated

as daily rated/casual workers of CPWD and also entitled

equal pay for equal work because the other daily rated

workers of CPWD have been getting their wages in the

Group-D employees pay scale including all allowances

except increments as per the judgement of Hon’ble

Supreme Court in the matter of Surinder Singh & Others

Vs. Engineer-in-Chief, CPWD and Another.

As per the judgement of Hon’ble Supreme Court in

the matter of Food Corporation of India, Appellant V.

Shyamal K. Chatterjee and others, Respondents have held

that since some casual workers appointed directly by the

appellant and some employees by the contracts are

working the same duty, so the contract labour is also

entitled the same pay and allowance.

So, the five workmen of the Ist Category namely

Man Mohan Malviya, Firoz Ahmad, Binod Singh, Ashish

Pathak and Amit Kumar Sharma can be said to have proved

their case of claim statement through their evidence hence

reference is liable to be decided in their favour and they

are entitled for relief hence their claim is allowed.

But the 157 workmen of the 2nd category in want of

their substantive evidence to prove their case of claim

statement they are not entitled to any relief hence their

claim is dismissed. Evidence of co-workmen and WW1

Sh. Bhoop Singh on record is of no avail to them as it will

come within the ambit of corroborative evidence. Which

cannot be used as substantive evidence for the workmen

who gives their no substantive evidence in their claim.

On the basis of aforesaid discussion I am of

considered view that there is a direct relationship of

employer and employee’s of Ist Category of workmen

between the management of CPWD and workmen, and

direct the management of CPWD to consider the

regularization of the services of the workmen of the Ist

Category namely Man Mohan Malviya, Firoz Ahmad,

Binod Singh, Ashish Pathak and Amit Kumar Sharma by

relaxing age etc as per rules and vacancies in accordance

with their seniority and also pay equal pay for equal work

from the respective date of their employment in the minimum

of time scale of Group-D employees alongwith all

allowances except increments till the date of regularization

within one month of publication of the award, failing which

the management will be liable to pay interest @ 6% per

annum. Parties shall bear their own cost.

The reference is decided in favour of workmen of

1stcategory namely Man Mohan Malviya, Firoz Ahmad,

Binod Singh, Ashish Pathak and Amit Kumar Sharma only

and decided against Management .

The Ex-parte Award is passed accordingly.

Dated : 31/03/2014

HARBANSH KUMAR SAXENA, Presiding Officer

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3624

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

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New Delhi, the 22nd April, 2014

S.O. 1364.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 86/2000)

of the Central Government Industrial Tribunal/Labour

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

the Industrial Dispute between the employers in relation

to the management of Director, Soil Conservation

Department, Damodar Valley Corporation, Hazaribagh and

their workmen, which was received by the Central

Government on 16/04/2014.

[No. L-42011/36/2000-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD

PRESENT :

Shri Kishori Ram, Presiding Officer

In the matter of an Industrial Dispute under Section

10(1)(d) of the I.D.Act.,1947.

REFERENCE NO. 86 OF 2000

PARTIES

The Secretary,

DVC Mazdoor Sangh, Maithon Unit,

PO: Maithon, Dhanbad.

Vs.

The Director,

Soil Conservation Deptt.,

Damodar Valley Corporation, Hazaribagh

Ministry’s Order No. L-42011/36/2000/IR

(DU) dt. 29.08.2000

APPEARANCES :

On behalf of the

Union Representatives

workman/Union

On behalf of the

Mr. B.K. Jha, Ld. Advocate

Management

State : JHARKHAND

Industry : Energy

Dated, Dhanbad, the 31st March, 2014.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on then under Sec.10(1)(d)

of the I.D. Act.,1947 has referred the following dispute to

this Tribunal for adjudication vide their Order No.L-42011/

36/2000/IR(DU) dt.29.08.2000

SCHEDULE

“Whether the refusal of the Management of M/s

D.V.C. to provide regular employment to S/Sh

Sambhu Nath Mahato and 74 others in the regular

services of D.V.C. is justified? If not, to what relief

the concerned workmen are entitled?”

On receipt of the Order No L-42011/36/2000/IR(DU)

dt. 29.08.2000 of the above mentioned reference from the

Government of India, Ministry of Labour, New Delhi for

adjudication of the dispute, the Reference Case No. 86 of

2000 was registered on 13th September,2000 and

accordingly an order to that effect was passed to issue

notices through the Registered Posts to the parties

concerned, directing them to appear in the Court on the

date fixed, and to file their written statements along with

the relevant documents. In pursuance of the said order,

notices by the Registered Posts were sent to the parties

concerned.

Both the parties made their appearances and filed

their pleadings and photocopies of their documents. The

workman and the O.P./Management through their Lawyers

appeared in, and contested the case.

The case of the workman as sponsored by the DVC

Mazdoor Sangh is that the workmen concerned have been

working as the Forest Labourer in the Forestry Division of

the D.V.C., Maithan, and District Dhanbad under the

direction of its Department of Soil conservation for more

than 20 years. The nature of the work performed by them

is permanent and perennial. At raising the matter of

regularization by the workmen, the Labour Enforcement

Officer ©, Chirkunda as per his Inspection Report No.26

(5) /2000/CKD dt.31.8,.2000 had several times directed to

rectify the irregularities in payment of wages as per the

rate prescribed by the Central Government and the

technical estimate for payment of wages for the job of

contract labour based on minimum wages as per the

notification of the Bihar Government.Sri K.Mishra Director

of Soil Conservation as per ref.No.SC/HRD/ME/1364

dt.27.10.2000 had instructed for compliance of the rules

and orders of the Department. The Chief Engineer (Civil),

DVC, Maithan Dam, as per letter No.CE-P/9-228 dt.11.9.2000

had regretfully accepted the engagement of the workers

for the beautification of the Gardening etc. under the

control of the Director, Soil Conservation, D.V.C.,

Hazaribagh and payment of lesser wages than minimum

prescribed rate without intention of any victimization to

them. As per the Circular Ref.No.PL-28/245 (Vol-6) Pt.63

dt.22.8.2000, the payment as per rate of minimum wages

with fixed DA and increased DA, even for the weekly rest

day to the Daily rated employees in Forestry/Timbering

¹Hkkx II—[k.M 3(ii)º

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3625

operation in D.V.C. establishment was decided w.e.f.

1.10.1989 to 30.03.90, adjusting against the payment already

made. When there was not any proper and adequate

response of the Management ,Sri Sanjay Kr. Sahay, the

Secretary of the Sangh raised the industrial dispute with

all the relevant materials before the ALC ©,Dhanbad, for

regularization of the enlisted workmen. Though the

Management appeared in it, yet the conciliation proceeding

failed, resulting in the reference for adjudication.

Further alleged by the Union Representative is that

the employer in the Corporation Order No. 22.2418 and

letter No.SC/28(W)/1991 dt.7.11.1990 had accepted the

engagement of 80 as casual labourers, but without mention

of the payment of minimum wages as the rate prescribed,

FPF facility etc., and the duration of more than 12 years

work of the workmen who would not remain on contract

labour basis. There is no contractual agreement between

any one and the corporation for the work done by the

workmen with the equipment manner and fertilizer supplied

by the D.V.C.Managment in the Project for beautification

in its areas. Despite the divided procedure for payment of

Forestry and the Department in different projects/plant

for beautification work as per the Office Order

dt.29.1195,the actual payment was rotationally in very

month consequentively to 11 or more labourers without

any Revenue Stamp, though Duty Registrar and

Attendance Register daily maintained by regular Staff of

the D.V.C.The working procedure time to time changed by

the D.VC Establishment No. D.V.C. Establishment at

Maithan is registered under Contract Labour

(Regularization & Abolition) Act 1970 with Labour

Department of Union of India, Dhanbad till date. The D.V.C.

Establishment totally ignorant of the Government

Notification dt. 3.7.1998 is exploiting the Forest Labourers

even in other projects of D.V.C. at Durgapur, Panchat,

Hazaribagh, Chandrapura, Bokaro Thermal. In spite of the

permanent nature of job in sufficient assessed by the

L.E.O.(C),Chirkunda in his inspection, and despite the

instruction of Labour Ministry for proper and adequate

payment of wages as per the Minimum Wages Act and

other amenities /facilities including P.F.;the Management

is neither complying nor regularizing the Forest Labourers

who have covered 240 days attendance on their work in a

year for more than 12 years under the directions and project

of the D.V.C.In similar industrial dispute Ref.No. 5/1991,

the Labour Court, Bokaro, has awarded for absorption of

a group of 81 workmen being entitled to the wages and

other benefits par with regular Mazdoor. So the workmen

are entitled to regularization in the services of the D.V.C.

The sponsoring Union in its rejoinder of their

workmen has categorically denied the allegation of the

mamagnemt, and started that all the Forestry workers have

been regularly doing their job in identified work since long

period as contract labour and that the petitioners are

entitled for same wage like Forestry workmen of BTPS &

CTPS of D.V.C. Unit as well as for regularization.

Whereas the pleaded case of the O.P./Management

D.V.C. with specific denials is that the workmen concerned

are casual labour on contract labour basis, and payment is

accordingly made to them. The nature of work is

intermittent but not identified job. They are engaged on

rotation basis in order to provide equal opportunity to all

of them whenever required by the different office for casual

work. They are not appointed against any. There is not

any a required qualification or selection procedure for it.

They are doing work as causal workers, but no attendance

is required in official capacigty, so the management is

unable to regularize them as regular employees of

D.V.C.The Management has also declined before the

Ministry of Labour to provide regular employment to

aforesaid Shambhu Nath Mahato and 74 others, as neither

the law of the Land nor the rules and regularities for D.V.C.

permit to do so.

It is settled law that unless the appointment is in the

terms of relevant rules and other proper competitions

among qualified persons, the contractual engagement

cannot confer any right upon such appointee; if the

engagement or appointment on daily wages on casual

basis, it comes to an end on the expiry of the term of his

appointment; merely continuation of such temporary

employee or casual wage workers for a time beyond the

terms of engagement would not entitle to be absorbed in

the regular service, if his original appointment was not

made in accordance with the due process of selection as

per the relevant rules.The plea of the petitioners for their

regularization since working for 10-25 years and similarly

situated colleagues regularized as per the office Order/

Circular issued by respective department cannot be

acceptable, as it does not give rise any legal right to them

to seek direction for it. Thus the claim of the petitioners

for their regularization is not sustainable in the eye of the

Law. Besides the documents filed by the petitioners are

quite irrelevant to the case, as the list of documents is for

75 workmen but they are not on duty since long time so it

needs verification. It is also submitted on behalf of the

O.P./Management that the original petition/complaint of

the workmen made through the Secretary of the Union

concerned on 3.1.2000 is not available on the case record.

Hence the petitioners are not entitled to any relief.

FINDING WITH REASONS

In the instant reference, I find WWI Ram Dayal

Tewary,WW2 Kashi Nath Saw, (workman under Sl.No.5 &

52 respectively)WW3 Kumud Ranjan Bhattacharaya,the

General Secretary for the Union concerned and MWI

D.N.Prasad, the Joint Director (Pers.) of the

D.V.C.,Hazaribagh, for the O.P./Management have been

respectively examined for proper adjudication.

3626

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Mr. R.K. Bhattacharya, the Union Representative

for the workmen emphatically submitted as per his written

argument that despite specific instruction of the

management, forestry workmen of CTPS &BTPS is getting

Rs.10,000/- with others perks as contrasted with the

present workmen concerned of DVC,Maithan Project each

getting only about Rs.4277/- monthly (Photocopy of the

monthly statement dt.12.12.12 for Nov.,2012 – Ext.W.1 with

objection) which is highly discriminatory on the part of

the Management, though the workmen have been working

for 20-25 years; they have their legitimate claim. Similar is

the statement of all the three witnesses for the instant

DVC Mazdoo Sangh.According to WW3 Kumud Ranjan

Bhattacharya, the Secretary of the Union, the photocopies

of S.B.A/c Pass Books of aforesaid both workmen Kashi

Nath Shaw and Ram Dayal Tiwari, of the Attendance

Sheets for Feb,2013 (Twelve Sheets),and of the list of

Forestry Workers with EPF deductions are the Extt.2,3

series & 4 (with objection) respectively. The photocopy

of the monthly statement for Nov.,2012 (Ext.W.1) proves

the payment of Rs.4,277- monthly to 73 workmen, but it

displays the names of more three workmen Sri hari

Ram,Raghu Nath Mahato and Manik Turi (workmen Sl.

No. 6, 9, & 62 respectively) struck off in black sketch

pen,signifying them not in existence. The photocopy of

Attendance for Feb., 2013 (Ext.W.3) shows their

Attendance on plain ruled paper only for 15 days in the

said Feb. of the year. The photocopy of list of Forestry

Workers with E.P.F. deductions (Ext.W.4 with objection) is

only the list of 68 workmen without any reference of

deductions. Flying photocopy of the Hon’ble Supreme

Court’s order dt. July 10, 2005 passed in Civil Appeal No.

of 2005, DVC Staff Association. Bokaro Vs. D.V.C. & Ors,

Learned Union Representative has submitted for

regularization the workmen members of the petitioner

Association, Bokaro, as directed to the Management,

Bokaro.The stressful argument of the Leaned Union

Representative for payment of wages to the workmen

retrospectively as the employees of Chandrapura and

Bokaro Forestry getting appears to be not only

contradictory but also not plausible as the terms of the

reference stands for adjudication.

Whereas Mr. B.K. Jha, Learned Advocate for the

O.P./Management, has contended that all the workmen

are not appointed against any vacancy; they as contract

labourers perform the work related to the Forest and

Gardening of the Project whenever required under the

D.V.C,.which are of intermittent nature; and the payment

to the Forest Labourer is done as per the instruction and

the office Order of the Management; and since how long

they are working is beyond the knowledge of MWI

D.N.Prasad,posted as the Joint Director (Pers), D.V.C.,

Hazaribagh since June 24,2013. Mr.Jha,Learned Advocate

for the O.P./Management has submitted that merely

because a temporary employee or a casual wage workers

as continued for a time beyond the terms if his

appointment, he would not be entitled to be absorbed in

regular service or made permanent merely on the strength

of such continuatuance, if the original appointment was

not made by following due process of selection as

envisaged by the relevant as held by the Hon’ble Apex

Curt in the case of /state of Karnataka Vs.Uma Devi

2006(4).Further, citing the ruling of the Hon’ble Jharkhand

High Court reported in the JLJR 2012,Ramesh Mahato Vs.

State of Jharkhand ,it has been held as submitted by

Mr.Mishra,that petitioners are working for 10-20-25 years,

some of similarly situated colleagues regularized under

the Office Order/circular issued by respective department,

therefore plea taken for issuance of mandamus in their

favour, right of regularization can be created by the state

by enacting law or statutory scheme similarly situated

employees were regularized pursuant to such circular shall

not give rise to any legal right to the petitioners to seek

direction also for regularization; in such circumstances no

direction can be issued in favour of the petitioners(at page

120).Mr. Jha appears to have underlined that in the instant

reference the three workmen witnesses deposed for the

wages like CTPS & BTPS forestry workmen beyond the

terms of the reference and relinquished their claim for

regularization which is not tenable.

On perusal and consideration of the materials, oral

and documentary, of both the parties, after hearing the

arguments as advanced on their behalf, I find the

indisputable fact that the alleged workmen were not

appointed by the DVC,rather they were orally engaged by

the Forest Ranger for the job of maintaining the garden of

the D.V.C. for 20-25 years. But the Union has no proof of

any workman’s continuous service as a forestry worker

for 240 days during a period of twelve calendar months

preceding Aug., 29, 2000, the date with the reference to

which calculation to be made for his actual working under

the employer as required under Sec.25 B (2) (a) (ii) of the

Industrial Disputes Act 1947.The argument of Mr.B.K.Jha,

Ld.Advocate for the OP/Management appears to be

persuasive and plausible.

Under these circumstances, it is, in the terms of the

reference, responded,and accordingly thereby

ORDERED

That the Award be and the same is passed that the

refusal of the Management of M/s D.V.C. to provide regular

employment to S/Shri Shambhu Nath Mahato & 74 others

(excluding six dead ones under Sl.No.6,9,22,58,62 and 70

of the list enclosed) in regular services of D.V.C. is quite

justified. The rest workmen concerned are not entitled to

any relief.

KISHORI RAM, Presiding Officer

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3627

LIST OF THE WORKMEN WORKING IN THE FORESTRY DIVISION IN D.V.C. AT MAITHON,

DISTRICT-DHANBAD

Sl.

Name

Father’s/Husband, s Name & address

Year since

Remarks

No.

working

Shambhu Nath Mahato

Lakhi Ram Mahato, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1976

Nibaran Prasad Mahato

Lakhi Ram Mahato, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1976

Sagar Mahato

Lakhi Bulai Mahato, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1993

Niranjan Mahato

Late Balai Mahto, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1983

Ramdayal Tiwari

Late Lakhi Kant Tiwari, Village- Madandih,

PO: Barbindiya, P.S.Nirsa, Distt:Dhanbad

1983

Srihari Rai

Late Debu Roy, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1983

Satya Manjhi

Pura Manjhi, Village- Mangudih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1982

Bhim Mahato

Ashutosh Mahato, Village- Dumujore, PO: Benagoria,

P.S.Nirsa, Distt:Dhanbad

1983

Raghu Mahato

Pado Mahato, Village Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1984

Kamal Mahato

Pado Mahato, Village Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1985

Smt.Chita

Santosh Mahato, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1986

Rabi Rai

Late Mangal Rai, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1984

Nisapatti Manjhi

Late Sumoi Manjhi, Village: Madandih, PO:Barbubduita,

P.S.Nirsa, District.Dhanbad

1985

Manik Mahato

Late Trilochan Mahato, Village- Sitalpur, PO:Dishergarh,

P.S.Kulti, Distt:Burdwan (W.B.)

1984

Ramlal Manjhi

Vllage –Bili, PO:Kalibathan, PS.Nirsa, Distt:Dhanbad

1984

Badal Mahato

Late Haradhan Mahato, Village- Amlachatar, Jamtara,

P.O.Asan Chuan, P.S.Jamtara, District:Dumka (Jharkhand)

1986

V.K.Bhattcharjee

Brajan Bhattacharjee, Village-Maithaon, PO:Maithon,

PS. Maithan (Chirkunda), District:Dhanbad, Jharkhand

1984

Nandlal Mahato

Late Fagu Mahato, Village- Laghata, PO: Barbindiya,

P.S. Nirsa, Distt:Dhanbad

1984

Nimal Mahato

Lakhi Bulai Mahato, Village- Madandih, PO: Barbindiya,

P.S. Nirsa, Distt:Dhanbad

1986

Sri Amolya Lohar

Late Khokhu Lohar, Village- Magurdih, PO: Barbindiya,

P.S. Nirsa, Distt:Dhanbad

1984

Sri Mena Manjhi

Late Shisu Manjhi, Village- Madandih, PO: Barbindiya,

P.S. Nirsa, Distt:Dhanbad

1984

Basu Mahato

Late Dhuma Mahato, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1985

Kalo Pado Mahato

Late Jitu Mahato, Village- Madandih, PO: Barbindiya,

P.S. Nirsa, Distt:Dhanbad

1984

Haradhan Mahato

Late Dhoma Mahato, Village- Madandih, PO: Barbindiya,

P.S. Nirsa, Distt:Dhanbad

1984

3628

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Gopal Mahato

Beni Mahato, Village- Laghata, PO: Barbindiya, P.S.Nirsa,

Distt:Dhanbad

1984

Sunil Mandal

Sri Rishi Mandal, Village- Bootbera, P.O.Chainpur,

P.S.Narayanpur, Distt:Dumka (Jharkhand)

1984

Debanand Mahato

Etwari Mahato, Village Karmatand P.O., Dist: Giridih

1985

Subash Mahto

Radhanath Mahato, Village Patlibari, P.O. Benagoria,

P.S.Chirkunda, Distt:Dhanbad

1984

Parimal Chakraborty

Bhibhuti Bhushan Chakraborty, Village: Upchiriya,

Post-Poddardih, P.S.Nirsa, Distt:Dhanbad

1984

Anil Rajhans

Late Manohar Rajhans, Village C.P.Nagar, P.O.Maithon,

P.S.Maithon(Chirkunda), Distt: Dhanbad

1984

Sri Barun Singh

Late Hariram Singh, Village Amla Chatter, P.O.Asan chuan,

P.S.Jamtara, Distt: Dumka

1984

Gamal Manjhi

Manjur Manjhi, Village- MangurdihPO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1985

Raju Lohar

Late Latan Lohar, Village - Purni, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1986

Lakhinder Mahto

Munda Mahato.Village-Lawghata, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1985

Gour Rawani

Shambhu Rewani , Village- Lawghata, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1985

Bhola Singh

Jitu Singh, Village- Beliad, P.O. Maithon,

P.S. Maithon (Chirkunda), Distt:Dhanbad.

1984

Ramchand Manjhi

Late Dugru Manjhi, Village Paludih PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1986

Raj Kumar

Late Janki Mahato, Village – Barka Kala,

P.O. – District- Hazribagh

1985

Ishwar Prasad Mehta

Bulaki Mehta, Village – Barka Kala P.O.- District- Hazaribagh

1986

Gour Mahato

Sari Bhola Nath Mahato, Village- Karmatand ,

P.O.:-Kunjjora, District: Deogarh

1986

S.K.Choubey

P.R.Choubey, Village Maithon, P.O.Maithon,

P.S. Maithon (Chirkunda), Disgtt:Dhanbad

1986

Chaitan Rai

Balaram Rai, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1986

Aso Mahato

Late R.Mahato, Village- Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1986

Sunil Turi

Nakul Turi, Village-Laghata, PO: Barbindiya, P.S.Nirsa,

Distt:Dhanbad

1986

Suresh Mahato

Ashutosh Mahato, Village- Dumujor, PO: Benagoria,

P.S.Nirsa, Distt:Dhanbad

1986

Shankar Mahato

Mahindi Mahato, Village-Laghata, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1985

Jitaran Manjhi

Late Bodi Marandi, Village- Laghata, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1986

Mahadev Rai

Late Atwari Rai, Village-Madandih, PO: Barbindiya,

P.S.Nirsa, Distt:Dhanbad

1986

Kalpa Mahato

Dukhu Mahato, Village:Laghata, PO: Barbindiya,

P.S.Nirsa, District:Dhanbad

1985

Bharat Mahato

Hapan Mahato, Village-Kalipahari, P.O.-Maithon,

P.S.Maithon (Chirkunda), Distt:Dhanbad

1986

Shankar Shaw

Babu Lal Shaw, Village –Kalipahari, P.O.Maithon,

P.S. Maithon (Chirkunda), Distt:Dhanbad

1987

¹Hkkx II—[k.M 3(ii)º

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3629

Kashinath Shaw

Babu Lal Shaw, Village –Kalipahari, P.O.Maithon,

P.S. Maithon (Chirkunda), Distt:Dhanbad

1987

Bablu Bawari

Late Dhareni Bawari, Village Amkura, P.O.Maithon,

P.S. Maithon (Chirkunda), Distt:Dhanbad

1987

Palan Bawari

Buku Bawri Village –Amkura, P.O.Maithon, P.S. Maithon,

Distt:Dhanbad

1987

Dhiru Bauri

Habu BauriVillage –Amkura, P.O.Maithon, P.S. Maithon,

Distt:Dhanbad

1987

Dulal Mhato

Late Hrishikesh Mahato, Village –Kalipahari, P.O.Maithon,

P.S. Maithon (Chirkunda), Distt:Dhanbad

1987

Uttam Shaw

P.C.Shaw, Village –Kalipahari, P.O.Maithon, P.S. Maithon,

Distt:Dhanbad

1987

Butu Kishku

Late Sobre Kisku, Village – Porolia, P.O.Maithon,

P.S. Maithon , Distt:Dhanbad

1987

Bhailal Baski

Late Machru Baski, Village –Gogna, P.O.Maithon,

P.S. Maithon, Distt:Dhanbad

1987

Sarju Marandi

Sukul Marandi, Village : Porolia, P.O.Maithon,

P.S. Maithon , Distt:Dhanbad

1987

Mongal Murmu

Late Sidam Murmu, village –New Nagar, Maithon,

P.O. Maithon, P.S. Maithon , Distt:Dhanbad

1987

Manik Turi

Sukdev Turi, Village -Kalipahari , Village –Kalipahari,

P.O.Maithon, P.S. Maithon , Distt:Dhanbad

1987

Madhu Mandal

D.N.Mandal, village -Kalipahari, P.O.Maithon,

P.S. Maithon , Distt:Dhanbad

1987

Ajit Turi

Ram Nath Turi, Village –Kalipahari, P.O.Maithon,

P.S. Maithon , Distt:Dhanbad

1987

Ganesh Tudu

Village –Gogna, P.O. Maithon, P.S. Maithon,

Distt:Dhanbad

1987

Jitan Mahato

Late Ram Lal Mahato, Village –Kalipahari,

P.O. Maithon, P.S. Maithon, Distt : Dhanbad

1987

Baleshwar Mahato

Atwari Mahato, Village : Karmatand, PO-Nil, Distt:Giridih

1986

Narayan Das

Late Sanatan Das, Village- Amdiha, Bnkura, (W.B.)

1986

Mihir Mondal

Sudhir Mandal Village –Kapasar, P.O.Govindpur, Dhanbad

1987

Ajit Bauri

Village: Gogna, PO;Maithon, P.S.Maithon, Dist:Dhanbad

1987

Umesh Rewani

Ananda Rawani, Village;Rampur, P.O.Nirsa, P.S. Nirsha,

District:Dhanbad

1986

Smt Kanak Dasi

Late Binod Das, Vill : Benagoria, P.O.:Benagoria,

P.S.Nirsa, Dist:Dhanbad

1986

Smt.Bimla Mahto

Late Vishwa Nath Mahato, Village:Tarapur, PO: Borra,

P.S.- Raghunthpur, Distt:Purulia (W.B.)

1998

Her husband was

working in the

same since 1994.

After death

Smt. Bimla Mahato

resumed duty in

place of her

husband.

Suleman Ansari

Vill: Bathanbari, PO & Dist:Burdwan (W.B.)

Kangresh Hasda

Parmeshwar Hasda, Vill:Gogna, PO:Maithon,

P.S. –Maithon, Dist:Dhanbad

1987

3630

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

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New Delhi, the 25th April, 2014

S.O. 1365.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGITA

162/2012) of the Central Government Industrial Tribunal/

Labour Court, Ahmedabad, now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of General Manager, Indo German Tool

Room, Ahmedabad and their workmen, which was received

by the Central Government on 24/04/2014.

[No. L-42011/69/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad, Dated 13th February,2014

Reference (CGITA) No. 162/2012

Adjudication Order No. L-42011/69/2012-IR(DU)

The General Manager,

Indo German Tool Room

Government of India Society,

Under Ministry of Micro,

Small & Medium Enterprise,

Phase-IV, Plot No. 5003, GIDC, Vatva,

Ahmedabad(Gujarat)

..... (1st Party)

And

Their workman

Through the General Secretary/President

Indo German Tool Room,

Block No. 567/3546, Gujarat Housing Board,

New Bapunagar,

Ahmedabad(Gujarat)

........(2nd Party)

For the First Party

: Shri Nandlal Mishra

(Management representative)

For the Second Party

: Shri Raghuvir S. Sisodia,

President of the Union &

National Organising Secretary,

B.R.M.S

AWARD

The Central Government/Ministry of Labour, New

Delhi vide its order No. L-42011/69/2012-IR (DU) dated

23.11.2012 referred the dispute under clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947 for adjudication to this

Tribunal (C.G.I.T.-cum-Labour Court, Ahmedabad) on the

terms of reference specified in the Schedule:

SCHEDULE

“Whether the action of the management of General

Manager, Indo German Tool Room, Ahmedabad in

appointing S/Shri Hasmukh Solanki , Kiran G. Chavda,

Dilip Asoda, Ramanlal Kharadi, Prabhat Damodar,

S.T. Bhagora and Dinesh K. Ninama on the lower

post than the one applied and interviewed for and

demand of the Union for all the benefits from the

date of appointment is justified? If not, to what relief

the workmen are entitled for?”

The Case of the Union (2nd party) as per statement

of claim (Ext.7) is that the 1st party employer in the year

1993 has given an advertisement inviting applications for

the post of Technical Manpower. The workman applied

and cleared the interview and practical test, but they were

not given the appointments as per advertisement, similarly

in the year 1994, the 1st party gave an advertisement

inviting the applications for the post of semi-skilled

workers and the 1st party again issued advertisement in

daily newspaper in the year 1995 inviting applications for

the post of semi-skilled worker in the pay scale of

Rs. 3050/3950. The 2nd party/workman appeared and

cleared the examination but they were not given

appointment order on the post of semi-skilled worker rather

they were issued appointment orders as Helper instead of

semi-skilled workman and have been paid the pay- scale

of helper lower than the pay scale of semi-skilled worker.

The case of the 2nd party is that the workman involved in

this case have performed their duties as semi-skilled worker

during the period 24/08/1994 to 24/08/2000 and so those

workman are entitled for the difference of wages of semi-

skilled worker. The workman involved have also performed

their duties as skilled workers during the period 25.08.2000

till 25.08.2006 but were paid the wages of semi-skilled

workers and so they are entitled for difference of wages of

skilled worker. Further the workman involved in this case

have performed the duties of High skilled worker for the

period of 26.08.2006 till the date of reference on completion

¹Hkkx II—[k.M 3(ii)º

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3631

of their qualifying service according to the rules. Further

case is that in the year 2008 the 1st party employee granted

promotion to the post of skilled workmen-II they were

legally entitled for wages for skilled workman-1 and

thereafter the workman involved are entitled to promotion

as per policy and service Rules from time to time. The

workman involved are standard X passed + I.T.I. and

having experience. The 1st party employer had

continuously violated the recruitment Rules from 1994 to

1996. There were clear cut vacancies and the posts were

vacant but inspite of workmen clearing the test for the

post of semi-skilled worker they were given the post of

Helper by the selection committee. On these scores, prayer

is made to direct the 1st party employer to revert the

appointment from Helper to semi-skilled worker and for

payment of difference of wages and also two promotions

based on the scale of semi-skilled work (SSW) to the

workman Hasmukh Solanki, Kiran G. Chavda, Dilip

Asoda,Raman Lal Kharadi, , Prabhat Damor, S.T. Bhagora

and Dinesh K. Ninama and any other relief to which they

are found entitled.

As against this the contention of the 1st party in its

W.S. (Ext.8) is that the demand raised by the 2nd party is

barred by delay and latches reference is not maintainable

and the 2nd party has no cause of action and that the

averment in para 1 to 8 are denied. It is the case of the 1st

party it is an autonomous body under Ministry of MSME

(formerly Ministry of small scale Industries) and having

its own recruitment rules approved by its governing

counsels. There is selection committee constituted for all

the posts to conduct interview and select the right

candidates for the respective post. More qualification and

experience is not the criteria for getting selected but it is

the selection committee’s discretion to ascertain the

suitability of the candidate for the post. The workman

involved namely H.V. Solanki, K.G. Chavda, R.P. Kharadi,

P.J. Damor, ad D.N. Asoda applied for the post of semi-

skilled worker and they were interviewed for the same

position by the selection committee. The selection

committee is empowered to set their own criteria for

evaluation of candidates and selection of best candidates

for appointment for working in the highly complex in nature

working atmosphere. Further case is that out of employees

in the matter who were aggrieved Sh. S.T. Bhagora and

D.K. Ninama both applied for the post of helper and so the

claim of these two are false and fit to be rejected. The

remaining 5 employees who applied for the position of

semi-skilled worker against different advertisements in the

grade 950-20-1150-E.B.25-1400 and re designated as

Technical Gr.III. They were interviewed by the selection

committee but they were found not suitable for the position

of SSW and as per guideline if a candidate was not found

suitable for the position interviewed, he may be offered

the lower position. Accordingly these five employees were

offered next lower position of Helper in writing and they

accepted without any objection and joined and worked

almost five years without raising any grievance. They for

the first time raised grievance during the year 2000-01 and

approached the Labour Commissioner (Central) and for

the interest of cordial relations settlement was made the

names of seven employees were considered for interview

for the position of semi-skilled worker and without going

into merit of the case as per settlement has selected all the

seven employee workmen for the position semi-skilled

worker. Again in the year 2008 these seven employees’

workmen approached the labour office of the same

grievances stating that they were losing seniority for their

next promotion. Again for he reasons of cordial relations

and to resolve the matter sympathetically. Settlement was

arrived at to promote them giving them the benefit in terms

of exemption for the number of years of experience.

Accordingly all of them were promoted and settlement

was honoured in full and final. But after obtaining two

financial benefits as party of full and final settlement of

same case at same office and taking all benefits they have

once again raised grievance through labour office but the

demand was not justified the 1st party management were

unable to accept the demand. Further reply of S/c para-

wise is that para -1 of S/c it is the sole prerogative of

selection committee to decide the best candidate for

appointment considering the suitability and that mere

qualifications and number of years experiences as per the

advertisement and appearing for the interview and practical

test is not the criteria for selection and appointment. Para-2

of S/c is incorrect and misleading as per details given in

the table. Para-3 of S/c as per the above advertisement

dated 30.08.2000 has not offered any body for the post of

helper. Para 4 of the S/c is totally denied that they have

performed the duties of semi-skilled worker from 24.08.1994

to 24.08.2000 and duties of skilled worker from 25.08.2000

to 25.08.2006 and these are misleading. For the carrier

development IGTR management has given them training

in various software and given them on job training which

they have misunderstood that they were performing duties

of semi-skilled worker and skilled worker. Normally the

seniors do the complex programming and setting and the

juniors mere monitor the automatic working of the machine

it cannot be taken as working at higher grade. The averment

of para 5,6 and 7 are denied totally para 8 of S/c has been

denied that these seven employees worked on higher

positions. On these scores payer is to dismiss the reference

since the 2nd party/are not entitled to any relief since they

have already been given two up-gradations as per

agreement with the conciliation officer-cum-ALC (Central).

In view of the rival contention of the parties the

following issues are taken up for consideration and

adjudication:

ISSUES

(i)

Is the reference maintainable?

3632

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

(ii)

Has the Union/2nd party valid cause of action?

(iii)

Whether the workman-Shri Hasmukh Solanki, Kiran

G. Chavada , Dilip Asoda , Ramanlal Kharadi, Prabhat

Damor, S.T. Bhagora and Dinesh K. Ninama are

entitled for their respective appointment from the

dates in the position of semi-skilled worker, for which

they had applied and interviewed for?

(iv)

Whether the action of the management of general

manager Indo German Tool Room, Ahmedabad in

appointing them on the lower post of Helper than

the one applied and interviewed for is justified?

(v)

Whether the demand of Union (2nd party) for giving

all the benefits to them (seven Workmen) from the

date of appointment is justified?

(vi)

Whether the Union/2nd party/workman are entitled

to the relief as claimed?

FINDINGS

ISSUE NOs. iii & iv:- The 1st party in its written

statement at page 5 has shown a table with Sr. No. –Name

of Employee –First post applied for –Interviewed for/Date

of joining-second appointment & date of joining-

promotion details & date of promotion. At Sl. Nos. 6 and 7

there is name of D.K. Ninama and T.S. Bhagora and

respectively who had applied for first post of Helper and

interviewed for Helper and appointed for the position of

Helper on 08.02.1997 and 10.02.1997 respectively. Both of

them got second appointment in SSW and joined in the

position on 01.05.2002 and 02.05.2002 respectively. Both

of them again got promotion in Technician Gr. II on

01.01.2011 so these two out of seven workmen has had no

grievances against the management of the 1st party.

Annexure I,II, & III clearly support the case/stand of the

1st party which are attached with the W.S. (Ext.8). So, T.S.

Bhagora and D.K. Ninama are out of the court in this case.

It is admitted position as per Para-1 of the W.S. that

the remaining five persons H.V. Solanki, K.G. Chavda, R.P.

Kharadi, D.N. Asoda and P.J. Damor had applied for the

first post of SSW (semi-skilled worker) but were appointed

for the position of Helper as per recommendation of

selection committee. Ext.9/1, 9/2 and 9/3 are documents

concerning K.G. Chavada that he was called for interview

of SSW on 22.06.1994 in view of his application for the as

per advertisement of the year 1993 (Ext.9/2). However he

was offered memorandum of appointment dated 19.07.1994

for the post of Helper dated 19.07.1994 and he accepted

the post of Helper without raising objection at that time

and had joined on 24.08.1994. Ext. 9/4 is memorandum of

appointment on the post of Helper dated 19.07.1994 of

H.V. Solanki against the call letter of interview for SSW.

(Ext.9/5) he was also appointed for the post of Helper on

dated 19.07.1994 and without raising objection grievances

at that time had joined on 24.08.1994 as Helper as per chart

mentioned in W.S. The copy of interview call letter of R.P.

Kharadi, D.N. Asoda and P.J. Damor for the post of SSW

and their appointment letter for the post of Helper have

not been filed on behalf of the 2nd party. But their position

are also obvious as that of H.V. Solanki and K.G. Chavda

also find support from the chart of the 1st party in the

W.S. that they were appointed as Helper and joined on

03.03.1996, 24.08.1995 and 02.03.1996 respectively and they

did not raise any objection and accepted the post of helper

and joined like H.V. Solanki and K.G. Chavda on the post

of Helper. Ext. 9/6 and 9/7 are copy of advertisement dated

30.08.2000 and 20.12.1995 respectively published in daily

newspaper.

Ex. 10 is affidavited exam in chief of Hasmukh V.

Solanki Ext. 11 of Dilip N. Asoda. Ext. 12 is of Ramanlal P.

Kharadi, Ext.13 is of Prabhat J. Damor, and Ext.14 is of

Kiran G. Chavda in support of case as per statement of

claim. Their affidavits are Verbatim reproductions that they

were called for interview of semi-skilled worker but were

appointed for the post of Helper. Their statement at para 3

of affidavits are that the management made for the post of

Helper is belonging to SC/ST category only but from Ext.

9/2,9/6 and 9/7 all three advertisement of the year 1993,1995

and 2000 go to show in the year 1993 8 post of Helper were

advertised out of which 1 post for SC and 2 post for ST

and 5 posts were unreserved. As per affidavit (Ext.10 and

Ext.14) H.V. Solanki and K.G. Chavda were belonging to

SC–ST category and they were appointed as Helper

though applied for an interview for the post of SSW for

the vacancy of SC-ST category. Both of them did not make

protest or raised grievance before joining on 24.08.1994.

Remaining three D.N. Asoda, R.P. Kharadi, and P.J. Damor

also belonging to SC/ST category as per their affidavits

Ext.11.12 and 13 at para 2 had been appointed to the post

of Helper without any grievance on 03.03.1996, 24.08.1995

and 02.03.1996 respectively. In the advertisement of Gujarat

Samachar dated 20.12.1995 there were no post of Helper

advertised and only 2 post of SSW advertised reserved

for ST candidate. In the pleading (Statement of claim) the

2nd party Union have made self-acclaimed statement that

the workman have applied and cleared the interview and

practical test of SSW but they were not given the

appointment as per advertisement. It is well known that

one cannot claim himself to be so competent to judge

himself that he cleared all examination and test for the

post applied for and interviewed for. Rather all depends

upon the assessment of candidate’s ability by selection

committee as constituted for the purpose as per rules who

found them not suitable for the post of semi-skilled worker.

There is clear stand of the 1st party that the tool room was

in inception stage and most of the posts were vacant and

there was a guideline that if a candidate was not found

suitable for the post interviewed, he may be offered lower

post if the candidate had potential. It is quite obvious that

¹Hkkx II—[k.M 3(ii)º

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3633

since these five candidates were not found suitable for

the post interviewed so they were offered next lower post

of Helper in writing and they all accepted that post of

Helper and joined and worked for 5 years without raising

any grievance.

On the other hand the 1st party witness Mr. V.G. Lal

administrative officer, I, G.T.R., Ahmedabad deposed in

his affidavit (Ext.15 that it is incorrect that as per

advertisements released at various time were for different

posts including Helper and it is incorrect to say that it was

only for the post of SSW. There was no element of bias as

stated in affidavit of 5 candidates (Ext.10 to 14) because

some senior officer of the organisation including German

advisor and SC/ST representative after considering the

recruitment Rules, those 5 candidates were appointed at 5

lower posts as the committee could have considered that

they need more experience to be appointed as SSW. Further

evidence is that in some case Helper operated machines

to get on the job training along with other seniors. In such

case normally the difficult part of the duty i.e. setting the

machine and programming is carried out by seniors and

juniors normally monitor the CNC machine which perform

automatically. Further evidence of the 1st party witness at

Para 3 the aggrieved workman (employees) were given

two promotions to them in the year 2001 & 2002 and again

in 2008. These promotions were given to them as solution

to their current grievance which was arrived at as

settlement with ALC (Central) Ahmedabad and therefore

the grievance was resolved in 2001 and 2002 when they

were taken as Technician Grade III (earlier SSW). So their

further demand for considering promotion on promotion

i.e. when they were promoted as Technician Grade III their

demand to consider it as Technician grade II and so on

shall not be considered. Such evidence of the witness of

the 1st party it is conformity with the pleading (W.S.) page

4 & 5 including the chart that reveals that disputant

workman H.V. Solanki who joined as Helper on 24.08.1994

was promoted and joined as Helper on 24.08.1994 was

promoted and joined as SSW on 26.05.2001 and promoted

as Technician Gr.II on 01.09.2008, Mr. K.G. Chavda who

joined as Helper on 24.08.1994 was promoted and joined

as SSW on 01.05.2001 and promoted to Technician Gr, II

on 01.09.2008 , Mr. R.P. Khardi joined as Helper on

03.03.1996 was promoted and joined as SSW on 26.04.2001

and promoted as Technician Gr. II on 01.09.2008, Mr. D.N.

Asoda joined as Helper on 24.08.1995 was promoted and

joined as SSW on 01.05.2002 and promoted as Technician

Gr. II on 01.09.2008, Mr. P.J. Damor joined as Helper on

02.03.1996 was promoted and joined as Helper on 02.03.1996

was promoted and joined as SSW on 01.05.2002 and was

given further promotion in Technician Gr.II on 01.01.2011,

Mr. D.K. Ninama joined as Helper on 08.02.1997 was

promoted and joined as SSW on 01.05.2002 and again

promoted to Technician Gt. II on 01.01.2011 and Mr. S.T.

Bhagora joined as Helper on 10.02.1997 was promoted and

joined as SSW on 02.05.2002 and was further promoted as

Technician Gr.II on 01.01.2011 as per two settlement with

the management before ALC(central) Ahmedabad. So it is

crystal clear that after obtaining two full and final settlement

of the same case at same office and taking all benefits, the

raising of dispute again by the workman through the union

is not at all justified. More so, the factum of two settlements

have been purposely concealed by the 2nd party in its

pleading (statement of claim) as well as in affidavits in

chief Exts.10 to 14.

As per discussion and consideration made above I

find that Mr. Hasmukh Solanki, Kiran G. Chavda,

DilipAsoda, Ramanlal Kharadi and Prabhat Damor are not

entitled for their respective appointment from the date’s in

the position (post) of SSW (semi-skilled Worker) for which

they had applied and interviewed for. Mr. S.T. Bhagora

and Dinesh K. Ninanama had applied for and interviewed

the post of Helper and so these two are out of courts in

this case. As per two settlements with the management

these two have been promoted to SSW and again promoted

to technician Gr. II. I also find that the action of the

management of general manager Indo German –Tool Room,

Ahmedabad is justified in appointing Mr. Hasmukh

Solanki, Kiran G. Chavda, Dilip Asoda, Ramanlal Kharadi

and Prabhat Damor on the lower post of Helper than the

one applied and interviewed for, Thus Issue No. III is

answered in negative and Issue No IV is answered in

affirmative.

10.

ISSUE NO. V:- In view of the findings to issue No.

iii & iv in the foregoing paras, I further find and hold that

the demand of Union (2nd party) for giving all the benefits

to the five workmen Shri Hasmukh Solanki, Kiran G. Chavda,

Dilip Asoda, Ramanlal Kharadi and Prabhat Damor from

the date of appointment is not at all justified. Other two

workmen Shri S.T. Bhagora and Dinesh K. Ninama are from

the beginning out of the court in this case. So the demand

of the Union for them is equally unjustified. This issue is

accordingly decided against the 2nd party.

11.

ISSUE NOS. I, II & VI: In view of the findings to

issue No. III, IV and V in the foregoings, I am of the

considered opinion and so find and hold that the reference

is not maintainable, the Union/2nd party has no valid cause

of action and the union/2nd party/workman are not entitled

to any relief in this case.

The reference is dismissed. However, no order of

cost.

This is my award.

Let copy of award be sent to the appropriate

Government for publication u/s 17 of the I.D. Act, 1947.

BINAY KUMAR SINHA, Presiding Officer

3634

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

ubZ fnYyh] 25 vizSy] 2014

dk-vk- 1366-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

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lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa fufnZ"V

vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je

U;k;ky;] dksydkrk ds iapkV (lanHkZ la[;k CGIT- 22 of 2012)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 24@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&42025@03@2014&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 25th April, 2014

S.O. 1366.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT-22

of 2012) of the Central Government Industrial Tribunal/

Labour Court, Kolkata now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of Management of Military Farm,

Binnaguri Cantonment and their workmen, which was

received by the Central Government on 24/04/2014.

[No. L-42025/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Application No. CGIT-22 of 2012

(Under Section 2A(2) of the I.D. Act, 1947)

Parties :

Shri Umesh Darjee,

Vill. Railway Coloney Binnaguri,

P.O. Binnaguri, Dist. Jalpaiguri,

Pin - 735203

…. Applicant

- Vs –

Management of Military Farm,

Binnaguri Cantonment,

Dist. Jalpaiguri, Pin – 735203. …. Opp. Party

Present :

Justice Dipak Saha Ray, Presiding Officer

Appearance :

On behalf of the

None.

Management

On behalf of the Workmen :

Mr. Gautam Debnath,

Ld. Advocate.

State : West Bengal.

Dated : 28th March, 2014.

AWARD

This is an application filed by one Shri Umesh Darjee

under Section 2A(2) of the Industrial Disputes Act, 1947

against the management of Military Farm challenging his

termination of service by the management as illegal, invalid

and void ab-initio and praying for his reinstatement in

service with back wages.

The Applicant is found absent when the matter is

taken up today. It appears from the record that on the

previous two consecutive dates of hearing, adjournment

was allowed on the prayer made on behalf of the Applicant.

Today the Ld. Counsel for the Applicant, Mr. Saibal

Mukherjee has submitted that he has no instruction from

his client and as such he is not in a position to conduct

this case on behalf of the Applicant. Above conduct of

the Applicant goes to show that he is not at all interested

to proceed with the case further. Perhaps the dispute

between the parties does not exist at present.

In view of the above, instant application is dismissed

being not moved.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 28th March, 2014.

ubZ fnYyh] 25 vizSy] 2014

dk-vk- 1367-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk phiQ

tujy eSustj VsyhdkWe ch,l,u,y] fe”kkZiqj 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 ,oa Je

U;k;ky;] y[kumQ ds iapkV (lanHkZ la[;k 73@2004) dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 24@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@09@2004&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 25th April, 2014

S.O.

1367.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 73/2004)

of the Central Government Industrial Tribunal/Labour

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

Industrial Dispute between the employers in relation to

the management of the Chief General Manager, Telecom,

BSNL, Mizapur and their workmen, which was received by

the Central Government on 24/04/2014.

[No. L-40012/09/2004-IR(DU)]

P. K. VENUGOPAL, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3635

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL–CUM-LABOUR COURT LUCKNOW

PRESENT :

Dr. MANJU NIGAM, Presiding Officer

I.D. No. 73/2004

Ref. No. L-40012/9/2004-IR(DU) dated 20.07.2004

BETWEEN

Sh. Ram Raj Pandey

S/o Sh. Prem Narayan Pandey

Village & PO Bangah

Distt. Varanasi (U.P.)

AND

The Chief General Manager

Telecom, BSNL

Mirzapur (UP)

AWARD

By order No. L-40012/9/2004-IR(DU) dated 20.07.2004

the Central Government in the Ministry of Labour, New

Delhi in exercise of powers conferred by clause (d) of sub-

section (1) and sub section (2A) of Section 10 of the

Industrial Disputes Act, 1947 (14 of 1947) referred this

industrial dispute between Sh. Ram Raj Pandey, S/o Sh.

Prem Narayan Pandey, Village & PO Bangah, Distt. Varanasi

(U.P.) and the Chief General Manager, Telecom, BSNL,

Mirzapur (UP) for adjudication.

The reference under adjudication is:

“WHETHER THE EMPLOYEE-EMPLOYER

RELATIONSHIP IS ESTABLISHED BETWEEN

BSNL AND SH. RAM RAJ PANDEY? IF YES,

WHETHER THE ACTION OF THE MANAGEMENT

OF BSNL, MIRZAPUR IN TERMINATING THE

SERVICES OF SH. RAM RAJ PANDEY S/O SH.

PREM NARAIN PANDEY W.E.F. 1/11/2002 IS

LEGAL AND JUSTIFIED? IF NOT, TO WHAT

RELIEF HE IS ENTITLED FOR?”

The case of the workman, Ram Raj Pandey, in brief,

is that he was employed at the Telephone Exchange,

Adalpura, Distt. Mirzapur on the post of security guard

w.e.f. 01.08.1998 without any appointment letter and worked

as such till 01.11.2002 when his services has been

terminated without any notice or retrenchment

compensation in violation to the provisions contained in

Section 25 F of the Industrial Disputes Act, 1947 in spite

of the fact that he worked for more than 240 days in each

calendar year. It has been alleged by the workman that the

management employed some other new persons in violation

to the provisions contained in the Act. Accordingly, the

workman has prayed that his termination order be set aside

and he be reinstated with consequential benefits including

back wages.

The opposite party has filed its written statement,

denying the claim of the workman; wherein it has submitted

that the workman was never engaged by it, as such, there

arises no question of termination/retrenchment or violation

of any of the provisions of I.D. Act. Moreover, it has been

submitted that for supply of security guards an agreement

has been entered into with some security agencies. It has

been further submitted by the management that the

workman never received any payment towards salary from

the department directly; rather the management, as per

terms of the contract, had always paid for the watch and

ward services rendered by the security agency and at no

point of time any payment was made to the workman by

the management in lieu of his any services. The

management has specifically submitted that the workman

have been deployed by some security agency and on

expiry of agreement, the services of the applicant were

terminated automatically under the terms and condition of

the agreement. Accordingly, the management has prayed

that the claim of the workman be rejected without any

relief to him.

The workman has filed its rejoinder; wherein he has

not brought any new fact apart from reiterating the

averments already made by him in his statement of claim.

The parties filed photocopies of certain documents

in support of their respective claim. The workman has

examined itself in support of his averments made in the

statement of claim; whereas the management has not

produced any witness for examination in spite of several

opportunity being given, which led to the presumption

that the management does not want to produce any

evidence vide order dated 05.03.2009; and the case was

fixed for argument. The management moved recall

application, which too was rejected due to non-

prosecution. Accordingly, the date was fixed for

arguments; and when the parties did not turn up for

arguments, the case was reserved for award keeping in

view long pendency of the case.

I have perused entire evidence on record.

The workman has come up with the case that he had

been employed by the opposite party in one of its

Telephone Exchange since 01.08.1998 and he worked

continuously up to 01.11.2002 for more than 240 days in

each calendar year; but his services have been terminated

without following the mandatory provisions of Section 25-F

of the Act i.e. giving any notice or notice pay in lieu thereof

or any retrenchment compensation. It has also alleged

that the management also violated provisions of Section

25-G by employing other persons in his place after his

termination.

3636

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Per contra, the management’s case that the workman

had never been an employee of the BSNL; rather he was

supplied by one of the agencies, supplying security guard

to it. It is very clear case of the management that the

services of the workman got terminated automatically on

expiry of contract between the management and the

contracting agency; therefore, there is no substance in

the claim of the workman as there was no relationship of

employer and employee between the management and the

workman at any point of time.

10.

The workman in his statement of claim has pleaded

that he has been employed as Security Guard w.e.f.

01.08.1998 and his services have been terminated vide letter

dated 01.11.2002 by which his services were terminated.

He has filed the photocopy of the letter dated 01.11.2002,

terminating his services. The management has denied

that letter dated 01.11.2002; but the workman failed to file

the original one, which he is presumed to have. On the

contrary, in this regard he has stated that its original is

with the management. Also, the workman in its evidence

has stated that he worked on the post of Chawkidar and

Generator operator; but no appointment order was given

to him. It was also stated that his name was neither called

from any Employment Exchange nor he was regularly

appointed. It was further stated that no advertisement

was publish nor he went through any examination or

interview. The workman has filed the photocopy of certain

documents paper No. 32/2 to 32/122 with list C-32 in

support of his working details.

11.

The schedule of reference, referred to this Tribunal

is firstly regarding existence of employee and employer

relationship between the workman and the management.

The case of the workman is that he has been employed

with the management of BSNL without any appointment

letter on the post of Security Guard; and he worked

accordingly, for four years and his services have been

terminated by the management of BSNL in utter violation

to the provisions of the I.D. Act. In rebuttal, the

management of BSNL has denied the employment/

engagement of the workman at any point of time by it;

rather it has been submitted that his services have been

availed through some agency. The burden lies on the

workman to prove that he was actually employed with the

management of BSNL. In the event of denial of the

management of BSNL regarding his employment, it was

incumbent upon the workman to lead evidence to the effect

that he was actually employed by the opposite party. As

per his own statement, he was employed as Security Guard;

but was not given any appointment letter. He has also

stated that neither there was any advertisement regarding

vacancy nor his name was sent by the Employment

Exchange, nor he undergone any prescribed procedure

for the appointment. On the contrary the management

has pleaded that the workman’s services were hired

through some agency, which undergone a contract with

the management for labour supply. It has also filed a copy

of contract with the M/s Lion Security Services, Varanasi.

There was no denial from the workman of any such

contract between the management of the BSNL and M/s

Lion Security Services, Varanasi. Admittedly, no

appointment letter or pay slip, wage register, muster roll or

attendance register etc. was filed before this Tribunal by

the workman to prove this fact that there was any

relationship of employee and employer between the

workman and the management of BSNL. Hence, the

workman has failed to substantiate its pleadings that he

was employed by the BSNL on the post of Security Guard

and there is no evidence to record this finding that there

was any relationship of employee and employer between

him and the BSNL.

12.

The second part of the reference order is regarding

alleged termination of the services of the workman. In this

regard the workman has pleaded that he worked

continuously since 01.08.1998 to 01.11.2002 without any

break for more than 240 days in each calendar year and his

services has been terminated in violation to the section 25

F of the Act. In 2005 (107) FLR 1145 (SC) Surenderanagar

Panchayat and another V. Jethabhai Pitamberbhai

Hon’ble Apex Court came to the conclusion that where

the workman could be entitled for the protection of section

25-F of the Industrial Disputes Act, 1947 provided he is

successful in establishing the fact that he had been in

employment with the employer for a period of 240 days

uninterruptedly. It was held by the Hon’ble Supreme Court

that in such cases, the scope of the enquiry before the

Labour Court was confined only to 12 months preceding

the date of termination to decide the question of the

continuous service for the purpose of section 25-F of the

Industrial Disputes Act, 1947. Further, Hon’ble Apex Court

has observed as under:

“The claimant, apart his oral evidence has not

produced any proof in the form of receipt of salary

or wages for 240 days or record of his appointment

or engagement for that year to show that he has

worked with the employer for 240 days to get the

benefit under section 25-F of the Industrial Disputes

Act. It is now well settled that it is for the claimant

to lead evidence to show that he in fact worked for

240 days in a year preceding his termination.”

Hence, in view of the law cited hereinabove, it has

to be seen as to whether the workman in the present

industrial dispute has worked for 240 days in the 12

calandar years preceding the date of his termination or

not. In the present case the workman has stated that he

worked continuously for the period of his employment;

but has not substantiated the same through documentary

evidence such as payment or working details. In the

evidence the workman has stated that he was given

payment by obtaining his signature on plain paper affixing

revenue stamp on it by the SDO. The documentary proof

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3637

relied upon by the workman towards his working is

photocopy of the documents from paper No. 32/2 to 32/

122, which seems to be the details of operation of the

generator set whereas in his pleadings the workman has

taken a clear cut stand that he has been employed in the

BSNL w.e.f. 01.08.1998 as a Security Guard. The

documentary evidence filed by the workman through the

photocopies, which does not bear any stamp and

signature of the authorities of BSNL, is in respect of

generator operator, which is not the pleaded case of the

workman. Nowhere in the pleadings has it been stated

that he worked as a generator operator. Thus, what has

been pleaded has not been proved and what the workman

has tried to establish at the later stage is not his pleaded

case. It is only at the stage of cross-examination workman

has stated that he worked as a generator operator, which

appears to be an afterthought. The evidence without

pleading has no meaning. Hence, the photocopies filed

by him, otherwise too not reliable, cannot be considered.

13.

Thus, the workman has not become successful in

substantiating this fact that he was on the rolls of the

opposite party and he actually worked for 240 days in a

year preceding the date of his alleged termination to enable

this Tribunal that the management of the BSNL terminated

his services in utter violation of the provisions of Section

25-F of the Industrial Disputes Act, 1947.

14.

In (2002) 3 SCC 25 Range Forest Officer vs S.T.

Hadimani Hon’ble Apex Court has observed as under:

“It was the case of the claimant that he had so worked

but this claim was denied by the appellant. It was

then for the claimant to lead evidence to show that

he had in fact worked for 240 days in the year

preceding his termination. Filing of an affidavit is

only his own statement in his favour and that can

not be regarded as sufficient evidence for any court

or tribunal to come to the conclusion that a workman

had, in fact, worked for 240 days or order or record

of appointment or engagement for that period was

produced by the workman. On this ground alone,

the award is liable to be set aside.”

15.

Analyzing its earlier decisions on the aforesaid point

Hon’ble Apex Court has observed in 2006 (108) FLR R.M.

Yellatti & Asstt. Executive Engineer as follow:

“It is clear that the provisions of the evidence Act in

terms do not apply to the proceedings under section

10 of the Industrial Disputes Act. However, applying

general principles and on reading the aforestated

judgments we find that this Court has repeatedly

taken the view that the burden of proof is on the

claimant to show that he had worked 240 days in a

given year. This burden is discharged only upon

the workman stepping in the witness box. This

burden is discharged upon the workman adducing

cogent evidence, both oral and documentary. In

cases of termination of services of daily wages

earner, there will be no letter of appointment or

termination. There will also be no receipt or proof of

payment. Thus, in most cases, the workman

(claimant) can only call upon the employer to produce

before the Court the nominal muster roll for the given

period, the letter of appointment or termination, if

any, the wage register, the attendance register etc.

Drawing of adverse inference ultimately would

depend thereafter on facts of each case. The above

decisions however make it clear that mere affidavits

or self serving statements made by the claimant/

workman will not suffice in the matter of discharge

of the burden placed by law on the workman to prove

that he had worked for 240 days in a given year. The

above judgments further lay down that mere non

production of muster rolls per se without any plea

of suppression by the claimant workman will not be

the ground for the tribunal to draw an adverse

inference against the management.”

16.

Thus, I come to the conclusion that since there is no

evidence on record, as discussed hereinabove, to prove

that there was employer and employee relationship

between BSNL and the workman. Also the workman did

not succeed to prove that he worked 240 days in twelve

calendar months preceding the alleged date of termination

and his services have been terminated in violation of the

provisions of Section 25 F of the Act, without giving him

notice or notice pay in lieu thereof or any retrenchment

compensation. Moreover, the workman also failed in

substantiating that the management employed other

persons in his place in violation to the provisions of

Section 25-G, as he could not disclose the names of persons

so employed.

17.

Accordingly, the reference is adjudicated against

the workman, Ram Raj Pandey and he is not entitled to

any relief.

18.

Award as above.

07^th April, 2014

Dr. MANJU NIGAM, Presiding Officer

ubZ fnYyh] 25 vizSy] 2014

dk-vk- 1368-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phiQ tujy

eSustj VsyhdkWe ch,l,u,y] fe”kkZiqj ds izcaèkra=k ds lac¼ fu;kstdksa

vkSj muds deZdkjksa ds chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa

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iapkV (lanHkZ la[;k 72@2004) dks izdkf'kr djrh gS] tks dsUnzh;

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¹la- ,y&40012@10@2004&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

3638

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 25th April, 2014

S.O.

1368.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D. No. 72/2004)

of the Central Government Industrial Tribunal/Labour

Court, Lucknow now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the Chief General Manager, Telecom,

BSNL, Mirzapur and their workmen, which was received

by the Central Government on 24/04/2014.

[No. L-40012/10/2004-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESENT :

Dr. MANJU NIGAM, Presiding Officer

I.D. No. 72/2004

Ref. No. L-40012/10/2004-IR(DU) dated 16.07.2004

BETWEEN :

Sh. Chanchal Kumar Upadhyay

S/o Sh. Sadanand Upadhyay,

Village – Aswari, PO Raja Talab,

Distt. Varanasi (U.P.)

AND

The Chief General Manager

Telecom, BSNL

Mirzapur (UP)

AWARD

By order No. L-40012/10/2004-IR(DU) dated

16.07.2004 the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by

clause (d) of sub-section (1) and sub-section (2A) of

Section 10 of the Industrial Disputes Act, 1947 (14 of 1947)

referred this industrial dispute between Sh. Chanchal

Kumar Upadhyay S/o Sh. Sadanand Upadhyay, Village –

Aswari, PO Raja Talab, Distt. Varanasi (U.P.) and the Chief

General Manager, Telecom, BSNL, Mirzapur (UP) for

adjudication.

The reference under adjudication is:

“WHETHER THE EMPLOYEE-EMPLOYER

RELATIONSHIP IS ESTABLISHED BETWEEN

BSNL AND SH. CHANCHAL KUMAR

UPADHYAY? IF YES, WHETHER THE ACTION

OF THE MANAGEMENT OF BSNL, MIRZAPUR

IN TERMINATING THE SERVICES OF

SH. CHANCHAL KUMAR UPADHYAY S/O

SH. SADAN AND UPADHYAY W.E.F. 1/11/2002 IS

LEGAL AND JUSTIFIED? IF NOT, TO WHAT

RELIEF HE IS ENTITLED FOR?”

The case of the workman, Chanchal Kumar

Upadhyay, in brief, is that he was employed at the

Telephone Exchange, Adalpura, Distt. Mirzapur on the

post of security guard w.e.f. 01.10.2000 without any

appointment letter and worked as such till 01.11.2002 when

his services has been terminated without any notice or

retrenchment compensation in violation to the provisions

contained in Section 25 F of the Industrial Disputes Act,

1947 in spite of the fact that he worked for more than 240

days in each calendar year. It has been alleged by the

workman that the management employed some other new

persons in violation to the provisions contained in the

Act. Accordingly, the workman has prayed that his

termination order be set aside and he be reinstated with

consequential benefits including back wages.

The opposite party has filed its written statement,

denying the claim of the workman; wherein it has submitted

that the workman was never engaged by it, as such, there

arises no question of termination/retrenchment or violation

of any of the provisions of I.D. Act. Moreover, it has been

submitted that for supply of security guards an agreement

has been entered into with some security agencies. It has

been further submitted by the management that the

workman never received any payment towards salary from

the department directly; rather the management, as per

terms of the contract, had always paid for the watch and

ward services rendered by the security agency and at no

point of time any payment was made to the workman by

the management in lieu of his any services. The

management has specifically submitted that the workman

have been deployed by some security agency and on

expiry of agreement, the services of the applicant were

terminated automatically under the terms and condition of

the agreement. Accordingly, the management has prayed

that the claim of the workman be rejected without any

relief to him.

The workman has filed its rejoinder; wherein he has

not brought any new fact apart from reiterating the

averments already made by him in his statement of claim.

The parties filed photocopies of certain documents

in support of their respective claim. The workman has

examined itself in support of his averments made in the

statement of claim; whereas the management has not

produced any witness for examination in spite of several

opportunity being given, which led to the presumption

that the management does not want to produce any

evidence vide order dated 05.03.2009; and the case was

fixed for argument. The management moved recall

application, which too was rejected due to non-

prosecution. Accordingly, the date was fixed for

arguments; and when the parties did not turn up for

arguments, the case was reserved for award keeping in

view long pendency of the case.

I have perused entire evidence on record.

The workman has come up with the case that he had

been employed by the opposite party in one of its

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3639

Telephone Exchange since 01.10.2000 and he worked

continuously up to 01.11.2002 for more than 240 days in

each calendar year; but his services have been terminated

without following the mandatory provisions of Section 25-F

of the Act i.e. giving any notice or notice pay in lieu thereof

or any retrenchment compensation. It has also alleged

that the management also violated provisions of Section

25-G by employing other persons in his place after his

termination.

Per contra, the management’s case that the workman

had never been an employee of the BSNL; rather he was

supplied by one of the agencies, supplying security guard

to it. It is very clear case of the management that the

services of the workman got terminated automatically on

expiry of contract between the management and the

contracting agency; therefore, there is no substance in

the claim of the workman as there was no relationship of

employer and employee between the management and the

workman at any point of time.

10.

The workman in his statement of claim has pleaded

that he has been employed as Security Guard w.e.f.

01.10.2000 and his services have been terminated vide letter

dated 01.11.2002 by which his services were terminated.

He has filed the photocopy of the letter dated 01.11.2002,

terminating his services. The management has denied

that letter dated 01.11.2002; but the workman failed to file

the original one, which he is presumed to have. On the

contrary, in this regard he has stated that its original is

with the management. Also, the workman in its evidence

has stated that he worked on the post of Chawkidar and

Generator Operator; but no appointment order was given

to him. It was also stated that his name was neither called

from any Employment Exchange nor he was regularly

appointed. It was further stated that no advertisement

was publish nor he went through any examination or

interview. The workman has filed the photocopy of certain

documents paper No. 23/2 to 23/46 with list C-23 in support

of his working details.

11.

The schedule of reference, referred to this Tribunal

is firstly regarding existence of employee and employer

relationship between the workman and the management.

The case of the workman is that he has been employed

with the management of BSNL without any appointment

letter on the post of Security Guard; and he worked

accordingly, for two years and his services have been

terminated by the management of BSNL in utter violation

to the provisions of the I.D. Act. In rebuttal, the

management of BSNL has denied the employment/

engagement of the workman at any point of time by it;

rather it has been submitted that his services have been

availed through some agency. The burden lies on the

workman to prove that he was actually employed with the

management of BSNL. In the event of denial of the

management of BSNL regarding his employment, it was

incumbent upon the workman to lead evidence to the effect

that he was actually employed by the opposite party. As

per his own statement, he was employed as Security Guard;

but was not given any appointment letter. He has also

stated that neither there was any advertisement regarding

vacancy nor his name was sent by the Employment

Exchange, nor he undergone any prescribed procedure

for the appointment. On the contrary the management

has pleaded that the workman’s services were hired

through some agency, which undergone a contract with

the management for labour supply. It has also filed a copy

of contract with the M/s. Lion Security Services, Varanasi.

There was no denial from the workman of any such

contract between the management of the BSNL and

M/s. Lion Security Services, Varanasi. Admittedly, no

appointment letter or pay slip, wage register, muster roll or

attendance register etc. was filed before this Tribunal by

the workman to prove this fact that there was any

relationship of employee and employer between the

workman and the management of BSNL. Hence, the

workman has failed to substantiate its pleadings that he

was employed by the BSNL on the post of Security Guard

and there is no evidence to record this finding that there

was any relationship of employee and employer between

him and the BSNL.

12.

The second part of the reference order is regarding

alleged termination of the services of the workman. In this

regard the workman has pleaded that he worked

continuously since 01.10.2000 to 01.11.2002 without any

break for more than 240 days in each calendar year and his

services has been terminated in violation to the section 25-F

of the Act. In 2005 (107) FLR 1145 (SC) Surenderanagar

Panchayat and another v. Jethabhai Pitamberbhai

Hon’ble Apex Court came to the conclusion that where

the workman could be entitled for the protection of section

25-F of the Industrial Disputes Act, 1947 provided he is

successful in establishing the fact that he had been in

employment with the employer for a period of 240 days

uninterruptedly. It was held by the Hon’ble Supreme Court

that in such cases, the scope of the enquiry before the

Labour Court was confined only to 12 months preceding

the date of termination to decide the question of the

continuous service for the purpose of section 25-F of the

Industrial Disputes Act, 1947. Further, Hon’ble Apex Court

has observed as under:

“The claimant, apart his oral evidence has not

produced any proof in the form of receipt of salary

or wages for 240 days or record of his appointment

or engagement for that year to show that he has

worked with the employer for 240 days to get the

benefit under section 25-F of the Industrial Disputes

Act. It is now well settled that it is for the claimant

to lead evidence to show that he in fact worked for

240 days in a year preceding his termination.”

3640

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Hence, in view of the law cited hereinabove, it has

to be seen as to whether the workman in the present

industrial dispute has worked for 240 days in the 12

calandar years preceding the date of his termination or

not. In the present case the workman has stated that he

worked continuously for the period of his employment;

but has not substantiated the same through documentary

evidence such as payment or working details. In the

evidence the workman has stated that he was given

payment by obtaining his signature on plain paper affixing

revenue stamp on it by the SDO. The documentary proof

relied upon by the workman towards his working is

photocopy of the documents from paper No. 23/3 to

23/46, which seems to be the details of operation of the

generator set whereas in his pleadings the workman has

taken a clear cut stand that he has been employed in the

BSNL w.e.f. 01.10.2000 as a Security Guard. The

documentary evidence filed by the workman through the

photocopies, which does not bear any stamp and

signature of the authorities of BSNL, is in respect of

generator operator, which is not the pleaded case of the

workman. Nowhere in the pleadings has it been stated

that he worked as a generator operator. Thus, what has

been pleaded has not been proved and what the workman

has tried to establish at the later stage is not his pleaded

case. It is only at the stage of cross-examination workman

has stated that he worked as a generator operator, which

appears to be an afterthought. The evidence without

pleading has no meaning. Hence, the photocopies filed

by him, otherwise too not reliable, cannot be considered.

13.

Thus, the workman has not become successful in

substantiating this fact that he was on the rolls of the

opposite party and he actually worked for 240 days in a

year preceding the date of his alleged termination to enable

this Tribunal that the management of the BSNL terminated

his services in utter violation of the provisions of Section

25 of the Industrial Disputes Act, 1947.

14.

In (2002) 3 SCC 25 Range Forest Officer vs S.T.

Hadimani Hon’ble Apex Court has observed as under:

“It was the case of the claimant that he had so worked

but this claim was denied by the appellant. It was

then for the claimant to lead evidence to show that

he had in fact worked for 240 days in the year

preceding his termination. Filing of an affidavit is

only his own statement in his favour and that can

not be regarded as sufficient evidence for any court

or tribunal to come to the conclusion that a workman

had, in fact, worked for 240 days or order or record

of appointment or engagement for that period was

produced by the workman. On this ground alone,

the award is liable to be set aside.”

15.

Analyzing its earlier decisions on the aforesaid point

Hon’ble Apex Court has observed in 2006 (108) FLR

R.M. Yellatti & Asstt. Executive Engineer as follow:

“It is clear that the provisions of the evidence Act in

terms do not apply to the proceedings under section

10 of the Industrial Disputes Act. However, applying

general principles and on reading the aforestated

judgments we find that this Court has repeatedly

taken the view that the burden of proof is on the

claimant to show that he had worked 240 days in a

given year. This burden is discharged only upon

the workman stepping in the witness box. This

burden is discharged upon the workman adducing

cogent evidence, both oral and documentary. In

cases of termination of services of daily wages

earner, there will be no letter of appointment or

termination. There will also be no receipt or proof of

payment. Thus, in most cases, the workman

(claimant) can only call upon the employer to produce

before the Court the nominal muster roll for the given

period, the letter of appointment or termination, if

any, the wage register, the attendance register etc.

Drawing of adverse inference ultimately would

depend thereafter on facts of each case. The above

decisions however make it clear that mere affidavits

or self serving statements made by the claimant/

workman will not suffice in the matter of discharge

of the burden placed by law on the workman to prove

that he had worked for 240 days in a given year. The

above judgments further lay down that mere non

production of muster rolls per se without any plea

of suppression by the claimant workman will not be

the ground for the tribunal to draw an adverse

inference against the management.”

16.

Thus, I come to the conclusion that since there is no

evidence on record, as discussed hereinabove, to prove

that there was employer and employee relationship

between BSNL and the workman. Also the workman did

not succeed to prove that he worked 240 days in twelve

calendar months preceding the alleged date of termination

and his services have been terminated in violation of the

provisions of Section 25-F of the Act, without giving him

notice or notice pay in lieu thereof or any retrenchment

compensation. Moreover, the workman also failed in

substantiating that the management employed other

persons in his place in violation to the provisions of

Section 25-G as he could not disclose the names of persons

so employed.

17.

Accordingly, the reference is adjudicated against

the workman, Chanchal Kumar Upadhyay and he is not

entitled to any relief.

18.

Award as above.

Lucknow

07^th April, 2014.

Dr. MANJU NIGAM, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3641

ubZ fnYyh] 25 vizSy] 2014

dk-vk- 1369-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

,fM'kuy eSus¯tx Mk;jsDVj vkaVk xSl ikoj LVs'ku vkaVk 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 ,oa Je

U;k;ky;] t;iqj ds iapkV (lanHkZ la[;k 7@2013) dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 24@04@2014 dks izkIr gqvk FkkA

¹la- ,y&42011@100@2012&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 25th April, 2014

S.O. 1369.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 07/2013)

of the Central Government Industrial Tribunal/Labour

Court, Jaipur now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the Additional Managing Director, Anta

Gas Power Station, Anta and their workmen, which was

received by the Central Government on 24/04/2014.

[No. L-42011/100/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, JAIPUR

PRESENT :

BHARAT PANDEY, Presiding Officer

I.D.7/2013

Reference No.L-42011/100/2012-IR(DU)

dated: 5.12.2012

The President

NTPC Karmchari Sangthan

NTPC, Anta,

Bara (Raj.)

V/s

The Additional Managing Director

Anta Gas Power Station,

Anta, Distt.:- Bara (Raj.)

Present:

For the Applicant Union : Ex-Party

For the Non-applicant

: Sh. Satish Pareek, Advocate.

AWARD

4.3.2014

The Central Government in exercise of the powers

conferred under clause (d) of Sub-section 1 & 2(A) of

Section 10 of the Industrial Disputes Act, 1947 has referred

the following Industrial dispute to this tribunal for

adjudication:-

“Whether the action of management of NTPC, Anta

in transferring Shri Sanjeev Kapoor, General

Secretary, Rashtriya Taap Vidyut Nigam Karmachari

Sangthan, Anta vide order dated 11.5.2012 from

NTPC, Anta to Jaipur with malafide intention and in

order to victimise him is legal & justified ? If not,

what relief he is entitled to?”

Pursuant to the receipt of the reference order,

registered notices were issued & served on both the

parties. On 10.9.13 none was present for applicant union

& statement of claim was not filed. A.G.M.(HR), NTPC,

Anta was present. Court was vacant. Next date 21.11.13

was fixed for statement of claim. Sh. Satish Pareek,

Advocate, learned representative on behalf of the non-

applicant appeared on 21.11.2013 with Shri Satyajeet Panda,

A.G.M (HR), N.T.P.C., Anta. Applicant did not appear nor

statement of claim was filed. Case was adjourned on

21.11.13 in the interest of justice and further opportunity

was provided by Tribunal on its own motion to file

statement of claim on 23.1.14. On 23.1.14 also statement of

claim was not filed and none appeared on behalf of

applicant union. Learned Representative of opposite party

Shri Satish Pareek, Advocate was present. Case was again

adjourned in interest of justice fixing 10.2.14 for filing

statement of claim. On 10.2.14 applicant union again

remained absent and no claim was filed. A.G.M. (HR)

Sh. Satyajit Panda was present with learned representative

for opposite party. In above circumstances despite

registered service in the month of July, 2013 when no

statement of claim was filed till 10.2.14 order for proceeding

ex-party against the applicant union was passed on 10.2.14

& case was fixed for ex-parte hearing on 26.2.14. On 26.2.14

learned advocates were on strike, none was present for

applicant union. Shri Ajay Kumar, Assistant Manager

(Law) & learned representative for the opposite party were

present for the opposite party & case was adjourned for

ex-parte hearing on 3.3.14. On 3.3.14 when case was taken

up at 15.10 hours for hearing no one was present from

either side. In course of writing the order sheet for the day

learned representative on behalf of opposite party

appeared.

Heard the learned representative for opposite party.

It has been argued that in absence of statement of

claim opposite party does not intend to file any reply &

reference is liable to be answered in negative. It has also

been argued that opposite party has always been in

presence ever since service of notice but applicant union

has never appeared or filed statement of claim till now

hence, “ No Claim Award” be passed against him.

In above circumstances, it is clear that no statement

of claim along with evidence has been brought on record

for adjudication of reference order under consideration

on merits. Continuous non-appearance of the applicant

union is indicative of the fact that applicant union is not

interested & willing to contest the reference under

3642

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

adjudication, hence, “No Claim Award” is passed in this

case. The reference is answered accordingly.

Award as above.

Let a copy of the award be sent to Central

Government for publication u/s 17(1) of the I.D.Act.

BHARAT PANDEY, Presiding Officer

ubZ fnYyh] 25 vizSy] 2014

dk-vk- 1370-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSus¯tx

Mk;jsDVj Mhihlh bathfu;¯jx izkstsDV~l (ih) fyfeVsM] psUubZ 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 ,oa

Je U;k;ky;] t;iqj ds iapkV (lanHkZ la[;k 38@2013) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 24@04@2014 dks izkIr gqvk FkkA

¹la- ,y&42011@42@2013&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 25th April, 2014

S.O. 1370.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 38/2013)

of the Central Government Industrial Tribunal/Labour

Court, Jaipur now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Managing Director, DPC Engineering

Projects (P) Ltd., Chennai and their workmen, which was

received by the Central Government on 24/04/2014.

[No. L-42011/42/2013-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, JAIPUR

BHARAT PANDEY, Presiding Officer

I.D. 38/2013

Reference No.L-42011/42/2013-IR(DU)

dated: 22.7.2013

Shri Krishna Kumar

Through General Secretary

Rajasthan Casual Labour Union

Near Daga School, Bikaner.

V/s

The Managing Director

DPC Engineering Projects (P) Ltd.

G-2,38, Old No.73, Second Main Road,

Gandhi Nagar, Adayar,

Chennai – 600020.

AWARD

24.3.2014

The Central Government in exercise of the powers

conferred under clause (d) of Sub-section 1 and 2(A) of

Section 10 of the Industrial Disputes Act 1947 has referred

the following Industrial dispute to this tribunal for

adjudication:-

“Whether the action of the management of DPC

Engg. Project Ltd., Chennai not to make payment of

wages, Bonus and other dues to Shri Krishna Kumar,

supervisor is fair, legal and justified? To what relief

he is entitled to?”

After receipt of reference it was registered on

30.8.2013 and registered notices were sent vide order dated

6.12.2013 to both the parties for appearance on 7.1.2014

for filing statement of claim. Shri Krishna Kumar, the

workman was served with notice but no statement of claim

was filed from his side on 7.1.2014 as he was absent on

that date. The notice sent to opposite party, the Managing

Director DPC Engineering Project (P) Ltd. returned

unserved with endorsement that the party had left the

address. Endorsement has been made by postal department

on 9.12.2013. On 7.1.2014 order was passed to send notice

again to opposite party on the same address which was

existing in the reference with observation that if workman

appears then further information about address of opposite

party may be secured from him if he is aware about change

of address. Accordingly, next date 10.2.2014 was fixed for

appearance of opposite party. On 10.2.2014 both the parties

remained absent and registered notice sent to opposite

party returned unserved again with endorsement dated

3.2.2014 that addressee has left. On 10.2.2014 also no

statement of claim was filed by applicant despite service

and further provided opportunity. It was expected that if

workman turns up on 10.2.2014 address of the opposite

party will be asked from him but applicant failed to come in

appearance to file statement of claim. On 10.2.2014 further

order was passed to sent process of service to opposite

party under certificate of posting but the same was not

sent because notices sent by speed post were sent with

acknowledgement which have come back and the receipt

of speed post is already on record. On 10.2.2014 further

opportunity was given to applicant fixing 10.3.2014 for

filing statement of claim and the case was adjourned on

10.2.2014 in above circumstances. On 10.3.2014 again none

appeared for applicant and statement of claim was not

filed on 10.3.2014 also. Learned advocates were on strike

on 10.3.2014 hence, further case was adjourned fixing

13.3.2014 for filing statement of claim. Address of the

opposite party remained unknown to the Tribunal because

of non-appearance of the applicant who was believed to

be a source of information in estimation of the court.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3643

On 13.3.2014 neither anyone appeared on behalf of

applicant nor statement of claim was filed. In above

circumstances, address of the opposite party could not

be secured and thus opposite party remained unserved

and Tribunal was compelled to reserve the file for

answering the reference without statement of claim and

evidence in support thereof.

In above facts and circumstances, due to continuous

absence of applicant and absence of claim filed by him

adjudication of reference on merit has become impossible,

hence, “No Claim Award” is passed against reference under

adjudication. The reference in question is answered

accordingly.

Award as above.

Let a copy of the award be sent to Central

Government for publication u/s 17(1) of the I.D.Act.

BHARAT PANDEY, Presiding Officer

ubZ fnYyh] 25 vizSy] 2014

dk-vk- 1371-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj okbZl pkalyj

tokgjyky usg: ;wfuo£lVh u;h fnYyh 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 ,o Je U;k;ky;]

fnYyh ds iapkV (lanHkZ la[;k 18@2014) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 24@04@2014 dks izkIr gqvk FkkA

¹la- ,y&42012@67@2013&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 25th April, 2014

S.O.

1371.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 18/2014)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Vice Chancellor, Jawaharlal Nehru

University, New Delhi and their workman, which was

received by the Central Government on 24/04/2014.

[No. L-42012/67/2013-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURTS COMPLEX,

DELHI.

I.D. No. 18/2014

Shri Manoj Kumar

S/o Sh. Brij Bhushan

Vishwas Nagar, Shahdara,

Delhi-110032.

...Workman

VERSUS

The Vice Chancellor,

Jawaharlal Nehru University,

New Delhi-110087.

...Management

AWARD

School of Physical Sciences (in short the School),

Jawaharlal Nehru University (in short the University)

established in 1986, has grown manifold as far as its

activities are concerned. Due to manifold increase of

activities of the School, shortage of staff, particularly, store

keepers, caretakers and lab. attendants remains there. Posts

of non-teaching (technical staff) for the School are being

sanctioned by University Grants Commission (in short the

Commission), which posts are to be filled in phased manner,

as per recruitment rules, under intimation to the

Commission. Hence the School avails services of M/s. Good

Housekeeping Regd. (hereinafter referred as the

contractor), University's service provider for the posts of

store keepers, caretakers and lab. assistant.

Services of Shri Manoj Kumar were availed by the

School as lab. attendant with effect from 15-09-2008

through the contractor. The contractor dispensed with

his services on 04-01-2012. He raised a notice of demand

on the University seeking reinstatement in service of the

School with continuity and full back wages. His demand

was not conceded to by University. Aggrieved by the

said act, he raised a dispute before the Conciliation Officer,

who entered into conciliation proceedings. During

pendency of the conciliation proceedings, he raised a

dispute before this Tribunal using provisions of sub-

section (2) of section 2-A of the Industrial Disputes Act,

1947 (in short the Act). The dispute culminated into an

award dated 12-8-2013.

Despute passing of the award, referred above, the

claimant remained associated with the conciliation

proceedings. The conciliation proceeding failed since the

University resisted his claim. On consideration of failure

report, so submitted by the conciliation Officer, the

appropriate Government referred the dispute to this

Tribunal for adiudication, using its powers under section

10(1)(d) of the Act vide order No. L-42012/67/2013-IR(DU),

New Delhi dated 21-01-2014 with following terms:

"Whether the action of the management of JNU in

terminating the services of the workman, Shri Manoj

Kumar, S/o Shri Bhushan with effect from 04-01-2012

is illegal and/or unjustified and, if yes, to what relief

is the workman entitled and what directions are

necessary in this respect?"

Claim statement was filed by the claimant pleading

that he joined services of the School on 01-07-2008 as

waterman. On the basis of his performance, he was

appointed as lab. attendant on 15-09-2008 in place of

Shri Narender Kumar, who was appointed as lab. assistant,

by the School. He rendered continuous service till

3644

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

4-1-2012. He availed two days leave on account of his

illness due to which his services were dispensed with in

an illegal manner. No one months' notice or pay in lieu

thereof was paid to him, No charge sheet was served on

him. The said order is violative of the provisions of section

25F of the Act.

Claimant presents that notice of demand was sent

to the University 02-11-2012, which did not elicit any

response. Constrained by these circumstances, he raised

a dispute before the Consiliation Officer on 07-01-2013.

The University filed its reply dated 20-02-2013, which was

followed by rejoinder, filed by him. On 09-04-2013,

conciliation proceedings ended into a failure due to

adamant behaviour of the University. He claims

reinstatement in service of the School with continuity and

full back wages.

Claim was demurred by the University, pleading that

the claimant was engaged as lab assistant by the contractor

to discharge his contractual obligations. He rendered

service to the contractor for a period of three and half

years. The University never paid him wages/salary. Since

there were complaints against the claimant, the University

requested the contractor to transfer/withdraw his services.

The contractor dispensed with his services. The

university, being the principal employer, has no liability

towards the claimant. His claim, being devoid of merits,

may be desmissed, pleads the University.

Copy of award dated 12-08-2013 passed by this

Tribunal in ID No. 113 of 2013 titled as Manoj Kumar vs.

Vice Chancellor, Jawaharlal Nehru University, was relied

on behalf of the University, wherein clear cut findings

have been recorded to the effect that the claimant was an

employee of the contractor and not of the University.

Arguments were heard at the bar. Ms. Sulekha

Sharma, authorized representative, advanced arguments

on behalf of the claimant. Shri Pawan Kumar, Section

Officer, raised submissions of behalf of the University. I

have given my careful consideration to the arguments

advanced at the bar and cautiously perused the record.

My findings on issues involved in the controversy are as

follows:-

Ms. Sharma does not dispute that this Tribunal

entered into articulation of facts when the claimant raised

a dispute by using powers contained in section 2A (2) of

the Act. It is also not disputed that the Tribunal passed

an award dated 12-08-2013. She concedes athat in that

award the Tribunal could not grant any relief to the

claimant, in view of the fact that services of the claimant

were availed by the contractor to discharge his contractual

obligations. The claimant admitted himself to be an

employee of the contractor and not of the University. The

Tribunal recorded findings in the award dated 12-8-2013

that relationship of employer and employee never existed

between the claimant and the University.

10.

Whether the claimant can agitate the very issue

which has been adjucicated on strength award dated

12-8-2013? For and answer law relating to applicability of

doctrine of res judicata is to be taken note of Law laid

under section 11 of the Code of Civil Procedure 1908 (in

short the Code) embodies the doctrine of res-judicata or

the rule of conclusiveness of a judgment, as to the point

decided either of fact, or of law, or of fact and law, in every

subsequent suit between the same parties. It enacts that

once a matter is finally decided by a competent court, no

party can be permitted to reopen it in a subsequent

litigation. The doctrine of res-judicata has been explained

in the simplest possible manner by Das Gupta J. in the

case of Statyadhyan Chosal (AIR 1960 S.C. 941) in

following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter-whether on a

question of fact or a question of law-has been

decided between two parties in one suit or

proceeding and the decision is final, either because

on appeal was taken to a highet court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to canvass the matter

again",

11.

It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in the

subsequent suit must be the same matter which was

directly and substantially in issue either actually or

constructively in the former.

The former suit must have been as suit between the

same parties or between parties under whom they or

any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court which decided the former suit must be a

court competent to try the subsequent suit or the

suit in which such issue is subsenquentrly raised.

The matter directly and substantially in issue in the

subsequent suit must have been heard and finally

decided by the court in the former suit.

12.

In Nawab Hussain, (1977 Lab. I.C. 911), the Apex

Court enunciated genera Principles of doctrine of res-

jucicata as under.

"The principle of estoppel per res judicata is a rule

of evidence. As has been stated in marginson v.

Blackburn Borough Council [1939 (2) KB 426 at P.

437] it may be said to be "the broader rule of evidence

which prohibits the reassertion of a cause of action".

This doctrine is based on two theories: (i) the finality

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3645

and conclusiveness of judicial decisions for the final

termination of disputes in the general interest of the

community as a matter of public policy, and (ii) the

interest of the individual that he should be protected

from multiplication of litigation. It, therefore, serves

not only a public but also a private purpose by

obstructing the reopening of matters which have

once been adjucicated upon. It is thus not

permissible to obtain a second judgment for the same

civil on the same cause of action, for otherwise the

spirit of contentiousness may give rise to conflicting

judgments of equal authority, lead to multiplicity of

actions and bring the administration of justice into

disrepute. It is the cause of action which gives rise

to an action, and that is why it is necessary for the

courts to recognize that a cause of action which

results in a judgment must lose its identity and vitality

and merge in the judgment when pjronounced. It

cannot therefore survive the judgment, or give rise

to another cause of action on the same facts. This is

what is known as the general principle of res-

judicata".

13.

But there is no provision in the Act indicating as to

when and under what circumstances the subject matter

covered by an industrial award can be validly referred for

adjudication again after termination of such award; whether

an award given on a mater in controversy between the

parties after its termination in terms of sub-section (6) of

section 19 of the Act, after expiry of the period of one year

as postulated by sub-section (3) of section 19 of the Act,

would operate as res judicata to a subsequent reference

of the same matter after adjudication or whether the

Tribunal has no option when such a matter is again referred

to it for adjucication but to proceed to try it de novo,

traverse the grounds again and come to a fresh decision?

These questions where addressed to by the apex court in

Burn & co. Ltd. [1957 (1) LLJ 226] and held that though

section 11 of the Code, in term, is inapplicable to industrial

adjudication, the principle underlying it expressed in the

maxim "interest rel publicae ut sit finis litium", which is

founded on sound public policy and is of universal

application being a rule 'debated by a wisdom which is for

all time' is applicable to the decisions of industrial

adjudicator for 'good reasons'. Approving the decision of

the labour Appellate Tribunal in Army and Navy Stores

Ltd. [1951 (2) LLJ 31] and Ford Motor Co. of India Ltd.

[1951(2) LLJ 231], the Court ruled that it would be contrary

to the well recognized principles that a decision once

rendered by competent authority as a matter in issue

between the parties after a full enquiry should not be

permitted to be re-agitated. It was further pointed out that

if 'an adjucication loses its force when it is repudiated

under section 19(6) of the Act and the whole controversy

is at large, then the result would be that far from reconciling

themselves to the award and setting down to work it, either

party will treat it as a mere stage in the prosecution of

prolonged struggle and far from bringing industrial peace,

the awards would turn out to be but truces giving the

parties breathing thime before resuming hostile action with

renewed vigour. But realizing that in a case of fixation of

wage structure principles of res-judicata would not apply,

the Court added that by regarding the awards of industrial

adjucicatiors to have ong terms of operations and liable to

be modified bny change in the circumstances on which

they were based, the object of the Act would be served.

Thus, it emerges that general principles of res-judicata

will apply to the dicisions of the industrial adjudicators

but the awards, bassed on prevailing circumstances such

as wage structure and dearness allowance etc. though

normally treated to have long term operations, should be

liable to be modified by change in circumstances on which

they are based.

14.

In India General Navigation and Railway Co. Ltd.

[1960(1) LLJ 561], Balmer Lawrie and Co. Ltd [1964 (1) LLJ

380] and Shahdara (Delhi) Saharanpur Light Railway Co.

Ltd. [1969 (1) LLJ 734\]), the Apex Court ruled that the

awards based on prevailing circumstances are liable to be

modified by change in circumstances on which they were

based. The Calcutta High Court in Shankar Prasad Banerjee

[1975 (1) LLJ 71] stated above principle with precision and

clarity in following words.

***the principle of res judicata would be normally

applicable to industrial adjucications or awards as

industrial settlements are intended, consistent with

the policy fo the Industrial Disputes Act, 1947, to be

operative for a fairly long period unless there is

change of circumstances which may be basis of the

award in cases where the award is bases on prevailing

circumstances like determination of wage structure

and the like or existing preice indes with the constant

change of circumstances like spiraling of prices, the

principle of res-judicata would be inappropriate and

inapplicable. Such principle would however be

applicable when the award is not based on prevailong

circumstances but on rights claimed long existing

but found bny the labour Court as non-existent and

there is no scope for any change of the rights of in

the claim of the workman on the employer by reason

of change of circumstances. In this state of affairs,

there can be no dispute that in such cases, the

principle of res-judicata would have full application.'

15.

As noted above principle of res-judicate are

applicalbe to industrial adjudication too. Award dated

12-8-2013 was on the matter which are directly and

substanitial in issue in the dispute under reference between

the same parties. Those issues were adjudicated by this

Tribunal, which is competent to adjudicate the subsequent

dispute too. All ingredient of doctrine of res-judicata stand

satisfied. Hence by application of principles of res-judicata,

the claimant is estopped from agitating those very issues,

which were answered in award dated 12-8-2013.

3646

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

16.

There is other facet of the coin. Whether the

appropriate Government was justified in making the present

reference, during the period when award dated 12-08-2013

subsists? As facts highlight, reference is between the same

parties on the same facts which has been adjudicated vide

award dated 12-8-2013. When award dated 12-08-2013 is

in force, in respect of the industrial dispute, appropriate

Government cannot refer the said dispute afresh to this

Tribunal by merely changing the phraseology of the

dispute. This Tribunal will not have any jurisdiction to

entertain the fresh reference in respect of the subject

matter, on which award dated 12-8-2013 binds the parties.

There can be no reference when a valid award subsists.

The Tribunal cannot invoke its jurisdiction to entertain

this subsequent reference made by the appropriate

Government, without application of mind. In case,

precedents are needed, reference can be made to British

India Corporation Ltd. (13 FJR 352) and Bangalore W.C. &

Mills Ltd. (1968 (1) LLJ 55).

17.

In view of the facts, referred above, it is crystal clear

that during the currency of the award dated 12-08-2013,

the appropriate Government was not competent to refer

the dispute afresh for adjudication. The Tribunal cannot

invoke its jurisdiction on the reference order. Consequently,

the reference order is discarded with the observation that

it is incompetent. An award is, accordingly, passed, it be

sent to the appropriate Government for publication.

Dated : 16.04.2014

Dr. R.K. YADAV, Presiding Officer

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New Delhi, the 25th April, 2014

S.O. 1372.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 88 of

2001) of the Central Government Industrial Tribunal/Labour

Court No. 1, Dhanbad now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of Telecom Maintenance, Patna and

their workmen, which was received by the Central

Government on 24/04/2014.

[No. L-40012/574/2000-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

In the matter of reference U/s 10 (1) (d) (2A) of

I.D.Act. 1947

Ref. No. 88 of 2001

Employer in relation to the management of

Telecom Maintenance, Patna

AND

Their workmen

Present : Sri Ranjan Kumar Saran, Presiding Officer

Appearances :

For the Employers : Sri D.K.Verma, Advocate

For the workman : Sri N.N.Sinha, Advocate

State : Bihar

Industry : Telecom

Dated : 24/3/2014

AWARD

By Order No.L-40012/574/2000-IR (DU), dated.26/

03/2001, the Central Government in the Ministry of Labour

has, in exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947, referred the following

disputes for adjudication to this Tribunal:

SCHEDULE

“ Whether the action of the management of Director

of Telecom maintenance, Patna in terminating the

services of Sh. Vijay Kumar, Casual workman at Patna

w.e.f. 01.08.98 is justified and whether repeated

termination of the services of the workman on various

dates from 28.02.97 to 31.07.98 amounts to unfair

labour practice? If so to what relief the workman is

entitled?”

This Case is received from the Ministry of Labour &

Employment on 16.01.2001. After receipt of reference ,

both parties are noticed. The workman files their written

statement on 03.07.2001. The management files their written

statement on 17.04.2002. One witness has been examined

on behalf of the management but three witness are

examined on behalf of the workman.

The admitted case of the parties that the workman

was working as casual employee and was getting salary

and the management’s case is that the workman did not

work continuously but intermittently as and when required.

Whereas it is the case of the workman that he was

engaged continuously, though he was designated by the

management as casual employee. From the documents filed

by the workman, it is clear that he was engaged

continuously.

¹Hkkx II—[k.M 3(ii)º

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3647

Moreover certain documents filed by the workman

belonging to management, direction was issued to

regularize SC, ST workman who were engaged casually

But it is not understood, why discrimination was made

against the present workman. WW-1 has stated that he

was a member of Union and casual employee and he has

been regularized. He has stated that the present workman

was also working continuously.

The MW-1 has not denied regarding engagement of

casual workman . But remained silent , why the matter of

their regularization is not taken of. In the Opinion of the

Tribunal equally placed workman under no circumstances

be treated unequally in the eyes of management .

Considering the facts and circumstances of the case,

I hold that the action of the management of Director of

Telecom maintenance, Patna in terminating the services of

Sh. Vijay Kumar, Casual workman at Patna w.e.f. 01.08.98 is

not justified , Hence it is ordered to reinstate the workman

& regularized him once after publication of the award .

The management is directed to intimate this Tribunal, If

the award is implemented.

This is my award

R. K. SARAN, Presiding Officer

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¹la- ,y&12012@12@2012&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1373.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 01/2013)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the Industrial

Dispute between the management of Indian Bank and their

workmen, received by the Central Government on 30-4-2014.

[No. L-12012/12/2012-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM -LABOUR COURT

CHENNAI

Tuesday, the 25^th March, 2014

Present : K. P. PRASANNA KUMARI, Presiding Officer

Industrial Dispute No. 1/2013

(In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman)

BETWEEN

Sri B. Eswaramoorthy

1^st Party/Petitioner

AND

The Zonal Manager

2^nd Party/Respondent

Indian Bank, Zonal Office

Divya Towers, Fort Main Road

Salem-636001

Tamil Nadu

Appearance :

For the 1^st Party/

: Sri J. Suresh, Authorized

Petitioner

Representative

For the 2^nd Party/

: M/s T.S. Gopalan, Advocates

Management

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No.L-12012/12/2012-IR (B-II)

dated 27.12.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank, Zonal Office, Salem in imposing the

punishment of “Dismissal without Notice” upon

Sri B. Eswaramoorthy, an Ex-Agriculture Assistant,

Konganapuram Branch vide order dated 27.12.2010,

is legal and justified? What relief the workman is

entitled to?”

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 1/2013 and issued notices to both

sides. The petitioner is represented by Authorized

Representative and the Respondent through counsel and

have filed their claim and counter statement respectively.

The petitioner has filed rejoinder after the Counter

Statement was filed.

The averments in the Claim Statement filed by the

petitioner in brief are these:

The petitioner had joined the service of the

Respondent as Clerk in January, 1983. Subsequently, he

was assigned the post of Agriculture Assistant. While the

petitioner was working in Konganapuram Branch in this

capacity, he was placed under suspension on 11.01.2010.

Subsequently, a Charge Memo dated 28.01.2010 was issued

to the petitioner. Five charges were raised against the

petitioner in the Charge Memo. It is alleged that the

petitioner had obtained the Pay Orders issued to two Self

Help Groups by name Malligai Mahalir Sangam and

Velavan Self Help Group for Rs. 3.00 lakhs each, encashed

3648

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

the amount from the proprietor of a textile shop and paved

way for the misuse of entire loan receipts without creation

of assets, that he had appropriated Rs. 7,500/- out of the

amount due to Malligai Mahalir Sangam and Rs. 9,500/-

out of the amount due to Velavan Self Help Group, that he

received illegal consideration of Rs. 2,000/- from Shanthi,

a PLF member and Lakshmi, the Animator of Malligai

Mahalir Sangam and Rs. 3,000/- from Indirani, the

representative of Velavan Self Help Group for unauthorized

service rendered by him, helped impersonation of Vasanthi,

representative of Malligai Mahalir Sangam by Shanthi and

also obtained the signature of Lakshmi of Malligai Mahalir

Sangam in the remittance challan and closed the loan

account of Sangam without receiving any money from the

Sangam, on his own. The petitioner had given explanation

to the Charge Memo. However, the Respondent was not

satisfied and ordered departmental enquiry against the

petitioner. The Enquiry Officer entered a finding against

the petitioner after the enquiry and the Disciplinary

Authority who accepted the enquiry report imposed the

punishment of dismissal without notice on the petitioner,

after hearing. The petitioner had raised Industrial Dispute,

aggrieved by this order of the Disciplinary Authority. The

conciliation proceedings ended in failure and the matter

has been referred to this Tribunal by the Government on

the basis of the failure report given by the Assistant Labour

Commissioner (Central). The petitioner has not committed

any of the misconducts alleged against him. The Charge

Sheet served on the petitioner is very vague. The dismissal

of the petitioner form the service of the Respondent is

illegal and unjustified. An order may be passed setting

aside the punishment and directing the Respondent to

reinstate the petitioner in service with back wages and

other benefits.

The Respondent has filed Counter Statement

contending as follows :

The Govt. of India had introduced SGSY Scheme to

assist the poor families to bring them above the poverty

line. Such assistance can be to individuals or Self Help

Groups. Respondent Bank had been lending to Self Help

Groups based on group saving and related to an economic

activity undertaken by the Group, without any collateral

and liberal terms of payment. The Konganapuram branch

had Self Help Groups (SHGs), including Malligai and

Velavan groups. On 29.10.2009, members of Malligai Group

had come to the branch and complained to the Branch

Manager that though they had signed loan documents,

they had not received any loan. The agitation carried out

by them was flashed in the print media and electronic media.

Consequently, on 30.12.2009 the Lead Manager visited

the branch and this was followed by a snap inspection by

Senior Manager (Inspection). During inspection, it was

revealed that the petitioner had obtained two quotations

for Rs. 3.00 lakhs each purportedly for the supply of

readymade garments to the two Self Help Groups, Malligai

and Velavan for starting retail business in garments. The

petitioner collected the two Bank Pay Orders in favour of

the Self Help Groups, took them to the proprietor of Shanthi

Silk House and encashed them after deducting Rs. 7,500/-

from the amount due to Malligai group and Rs. 7,500/-

from the amount due to Velavan Group also. He paid

Rs. 2.85 lakhs to Shanthi and she gave him Rs. 2,000/-. He

paid Rs. 2.83 lakhs to Indirani of Velavan Group who paid

him Rs. 3,000/-. Another Rs. 40,000/- was paid to Shanthi

who was a terminated employee of the NGO. The balance

of Rs. 2.40 lakhs was shared among the members. When

the members of Malligai Group made an agitation on

29.12.2009, the petitioner mobilized funds and closed the

loan of Malligai Group. Another loan was also closed in

due course. A Charge Sheet was issued to the petitioner

leveling five charges. The explanation given by the

petitioner to the Charge Sheet was not satisfactory. So an

enquiry was ordered. The Enquiry Officer had submitted

report against the petitioner and the petitioner’s comments

were invited on this. After this, the petitioner was awarded

punishment of dismissal from service. It is incorrect to

state that the Charge Sheet served on the petitioner is

vague. There was ample evidence before the Enquiry

Officer to conclude that the charges were proved. The

dismissal of the petitioner is to be upheld.

The petitioner has filed a rejoinder denying the

allegations made in the Counter Statement and also

reiterating his case in the Claim Statement.

The parties have no case that the domestic enquiry

was not conducted in fair and proper manner. The

petitioner has adduced evidence before this Court only to

state that he was not gainfully employed after he was

dismissed from service. The parties have been relying

upon the enquiry proceedings to advance their respective

cases.

The evidence in the case consists of oral evidence

of the petitioner examined as WW1 and documents marked

as Exts.W1 to Ext.W66 and Exts.M1 to Exts.M5

The points for consideration are:

(i)

Whether the action of the Respondent in imposing

the punishment of Dismissal without Notice upon

the petitioner is legal and justified?

(ii)

What is the relief to which the petitioner is entitled?

The Points

The petitioner was admittedly working as Agriculture

Assistant in Konganapuram Branch of the Respondent

Bank at the time of the alleged incident. Though the

Respondent had framed five charges against the petitioner,

all these relate to the same incident. The Konganapuram

Branch was having two Self Help Groups by name Malligai

and Velavan in its fold. It had sanctioned Rs. 3.00 lakhs

each to these two groups under the SGSY Scheme. The

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3649

petitioner is said to have approached these groups and

obtained the Pay Orders for the amount. Then he went to

one Selvaraj, the proprietor of a cloth house at

Konganapuram and obtained quotation for cloth materials

on behalf of the two groups. He encashed the amount

from the proprietor who had taken Rs. 7,500/- as

commission from the amount due to each group. He

received Rs. 2,000/- as illegal gratification from the

Animator of Malligai Group and one Shanthi, a PLF member

and another Rs. 3,000/- from Indirani, a representative of

Velavan Group. He is alleged to have helped Shanthi to

impersonate Vasanthi, a representative of Malligai Group.

The members of Malligai Group are said to have started

an agitation before the Branch stating that they did not

receive the loan amount that was sanctioned. On the next

day, the petitioner is said to have closed the loan account

of Malligai Group by himself obtaining the signature of

the Animator of the Group in the remittance challan.

10.

In the enquiry proceedings the management had

examined nine witnesses apart from marking the relevant

documents. On the side of the petitioner, he had examined

himself. The question to be considered is whether the

allegations made against the petitioner are substantiated

by the evidence tendered by the Management in the

enquiry proceedings.

11.

The first witness examined as MW1 by the

Management in the enquiry proceedings is the one who

conducted snap inspection and submitted report. This

report is based on the statements said to have been

obtained from Vasanthi who was allegedly impersonated,

Lakshmi, the Animator of Malligai Group, Shanthi, the PLF

member, Indirani, the representative of Velavan Group, a

group statement from a group of members of Malligai

Group, etc. His evidence also is based on the statements

said to have been given by these persons. MW2 is the

one who had also given a report regarding the incident.

He had also obtained the statements of some persons

connected with the incident. He had given the report

based on the investigation made by him as directed by the

Deputy General Manager. The Deputy General Manager

himself had accompanied him during the investigation.

MW5 is the Assistant Branch Manager of Konganapuram

Branch. He has given a statement during investigation by

MW2.

12.

It could be seen on going through the enquiry

proceedings that most of the persons who could have

spoken about the alleged act of misconduct done by the

petitioner were not examined. Selvaraj, the proprietor of

the cloth store from whom the petitioner had allegedly

obtained quotation and encashed the Bank Pay Order

deducting some amount is said to have given statement

to MW2. The statement is marked as MEX-3 in the

proceedings also. However, even in the statement it is

recorded that the person who gave the statement has

refused to put his signature in the same. Two others who

are conspicuous by this non-examination are Lakshmi and

Shanthi. But their statements are liberally used by the

Enquiry Officer to fasten the charge on the petitioner.

13.

The three persons examined in connection with the

incident are Indirani (MW7) the representative of Velavan

Group, Vasanthi (MW8), representative of Malligai Group

said to have been impersonated by Shanthi and Jaya

(MW9) a member of the same group. However, the evidence

of these witnesses do not help the Respondent at all. MW7

has owned her statement marked as MEX-11 during her

examination. She is the one who had allegedly paid Rs.

3,000 to the petitioner on receiving the amount towards

the Pay Order. What she has stated is not that she has

given any amount to the petitioner. Her version during

examination in the enquiry is that she had obtained the

quotation and paid Rs. 17,000 as commission to the

proprietor and shared the balance amount among the

members. According to her, she did not pay any amount

to the petitioner. She was declared hostile and was cross-

examined by the Management. She stated during cross

examination that she obtained quotation from the

proprietor of Shanthi Silk House and gave Rs. 17,000 as

commission to him. She stated that MEX-11 the statement

was obtained from her house. The Manager and another

Officer had been to her house. She stated that she was

very tense and out of fear she had given the letter. The

fact remains that this witness has disowned the contents

of the statement said to have been given by her and had

given a version totally against her statement, in evidence.

14.

The next witness who could have thrown some light

on the incident is Vasanthi, MW8. She admitted that MEX-

8 was the statement given by her. She has stated during

the examination that she stands by her statement. During

the later stage of her examination by the Presenting Officer

himself, her version is that she came to know about the

forgery on coming to the bank and went to the village and

informed all the members about it and brought them to the

Bank.

15.

MW9 is a member of Malligai Self Help Group. She

has given a statement and this has been marked in the

enquiry proceedings. She has stated that the members of

the Group had given a statement to the effect that they

were not aware of the loan of Rs. 3.00 lakhs sanctioned by

the Bank.

16.

On going through the report of the Enquiry Officer

it could be seen that the finding is mainly an exercise

based on the statement of the witnesses who were not

examined in the enquiry proceedings and the reports of

investigation done by the Bank. Most of the witnesses

other than MW7 to MW9 are not connected with the

incident. MW3 and MW6 were of course examined to

prove that it is the petitioner himself who has closed the

3650

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

account of Malligai Group on his own volition and that

the members themselves have nothing to do with this.

17.

It could be seen on an appraisal of the evidence

tendered in the enquiry proceedings that the Management

has totally failed to establish the charges that were leveled

against the petitioner. The gist of the first charge of the

petitioner is that he had obtained the Pay Orders in faovur

of Malligai and Velavan Group, approached the proprietor

of Shanthi Silk House and encashed the amount thus

facilitating misuse of entire loan proceeds without creation

of assets. When Pay Order is issued the proprietor was

expected to supply cloth materials to the Self Help Group

and not to pay cash itself to them. The implication is that

against this he had paid the amount deducting his

commission and that also not to the members of the Self

Help Group but to the petitioner who is an Officer of the

Bank. The first person who could have stated anything in

this respect is the proprietor of the cloth shop. The

statement of this individual is said to have been recorded

by MW2 and the statement is marked in the enquiry

proceedings also. However, the concerned person was

not brought to the witness box to speak about the incident.

In spite of this, the Enquiry Officer has relied upon this

statement. The Enquiry Officer has given his own reason

also for accepting this statement as well as the statement

of other persons also who were not before him but who

had allegedly given statements. The Enquiry Officer has

stated in his report that the Vigilance Administration

Manual of the Respondent Bank has provided that if the

signatories of the statement could not be brought out in

enquiry in spite of best efforts, the Enquiry Officer can

rely on the evidence of the person who knows about the

document or come across the document. I am unaware if

the Respondent Bank has accepted such a procedure for

its disciplinary proceedings. Inside the Bank itself they

might have felt it sufficient. But they should have known

that it would not stand scrutiny of law, once the validity of

the enquiry report is challenged. The action of the Enquiry

Officer in relying on the statement of the proprietor who

has not come forward give evidence in the enquiry could

not be justified at all.

18.

Is there any other evidence available to show that

the petitioner himself has obtained the Pay Order from the

Animator of Malligai Self Help Group and the

representative of Velavan Self Help Group? The next person

who could have given some help in this respect is Lakshmi

the Animator of Malligai Group and Indirani, the

representative of Velavan Group. Lakshmi is not examined

at all. Her statement said to have been obtained by MW1

who conducted snap inspection is marked in spite of this.

As already stated the Enquiry Officer should not have

relied upon the statement. Indirani, the representative of

Velavan Group is examined as MW7. However, this

witness did not support the Management. Her statement

marked through MW1 is to the effect that the petitioner

and Shanthi had brought the money to her house and

handed it over to her. However, during her examination,

she has denied this case. According to her, neither of them

have given any amount to her. She then stated that she

has obtained quotation from the proprietor of Shanthi Silk

House and she had given Rs. 17,000 as commission to

him. According to her, it was on suggestion of Shanthi

they have applied for loan. She stated that the petitioner

had been helpful in getting the loan. According to her, it

was as requested by the Manager and the Officer who

was along with him she has given statement to the effect

that the petitioner had handed over the amount. In this

respect the evidence given by MW2 is relevant. MW2

has stated that when he went to the locality for

investigation the Head of the Circle was also present

alongwith him. According to MW7, she had given the

statement out of fear. It is one thing to declare a witness as

hostile and cross-examine the witness. In utter disregard

to the entire version given by the witness in cross-

examination her statement has been relied upon. The cross-

examination is intended to bring out the truth from the

witness. Even if the actual state of affairs could not be

brought out on cross-examination, it does not mean the

statement given by her earlier could be accepted wholly

without giving any consideration to her version that what

she has stated in the statement is not correct. The

Enquiry Officer should not have accepted the statement

of this witness when she herself has given a version totally

contradictory, during her examination. There is absolutely

no material in support of the first charge.

19.

The second charge against the petitioner is that he

had directly received Rs. 2,92,500, the amount after

deducting Rs. 7,500 towards commission of the Proprietor

as per the Pay Order of each Groups but handed over Rs.

2.85 lakhs only to Shanthi on behalf of Malligai Group and

Rs. 2.83 lakhs only to Indirani, MW7 on behalf of Velavan

Group and has thus misappropriated Rs. 7,500 from the

proceeds of Malligai Group and Rs. 9,500 from the proceeds

of Velavan Group. This second charge is a corollary to the

first charge. When there is no material to support the first

charge itself there is no question of proof of the second

charge also.

20.

The fate of the third charge is also the same. The

allegation is that Shanthi to whom the loan proceeds of

Malligai Group was given had paid Rs. 2,000 to the

petitioner and MW7 to whom the loan proceeds of Velavan

Group had paid him Rs. 3,000 as consideration for the

services rendered by him and thus he has received illegal

gratification from these persons. When there is no evidence

regarding payment of the amount itself there is no question

of proof of receipt of illegal gratification also.

21.

Another allegation against the petitioner is that he

helped Lakshmi, the Animator of Malligai Group to

impersonate Vasanthi, a representative of the Group. It is

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3651

pointed out on behalf of the petitioner that such

impersonation would not have been possible for him at

all. MW1 who has given the investigation report has stated

about the procedure for sanction of loan. He has stated

during his examination that it is the duty of the Branch

Manager to identify the borrower and approve the loan. It

is not the function of the petitioner who is working as

Agriculture Assistant. Vasanthi who is said to have been

impersonated with the assistance of the petitioner has

been examined. The concerned loan application or the other

loan papers are not seen put to this witness by the

Presenting Officer. One document that was put to her is

the statement said to have been given by her. But rather

than her own statement, the statement of Lakshmi was put

to her and she has owned that statement. It is stated on

behalf of the petitioner that this was because she was

tutored to give evidence. She has also identified the

statement said to have been given by the members of

Malligai group denying previous knowledge of the loan.

During cross-examination, the resolution passed by the

Group for loan has been put to MW8 and she has stated

that the signatures found in the document are not of the

members. However, it has come out during examination

that the meeting was conducted in the presence of the

Branch Manager. So it is apparent that members had

resolved to get loan from the bank. If other members had

put their signatures in the presence of the Branch Manager

it is unlikely that MW8 herself has not put the signature in

this. MW1 who did the snap inspection has admitted that

apparently there is no difference in the signature of MW8

found in the resolution and the signatures purported to

be that of MW8 in the other loan documents. This is to be

read alongwith the fact that it is the Branch Manager who

is to identify the borrower and approve the loan. The

Branch Manager has been examined as MW4. He has

stated during his cross-examination that he has no proof

except the statement given by MW8 disowning her

signature to the effect that her signature was forged. He

has further stated that he was under the impression that

the petitioner would have obtained the signatures of

members after verifying the photos affixed in the card of

the Self Help Group available in the Bank. But this seems

to have been the duty of the Manager himself. The

petitioner himself has been examined as DW1. According

to him, on verification of the sanctioned ticket, he used to

hand over the loan documents to the members of the Self

Help Group who will be coming in groups for obtaining

the signature and they used to go out to get the signatures

and hand over the documents to the Manager. According

to him, since the signatories have not signed before him,

he could not state anything about the forgery that has

been allegedly made. MW1 has stated during cross-

examination that MEX-47(13/30) and (15/30) two of the

loan documents are in the handwriting of the Branch

Manager. This aspect strengthens the version of the

petitioner in this respect. According to MW8 Lakshmi

admitted to the Manager that she got the signature outside

bank premises through Shanthi. In Ext.W5, MW2 has

stated that the signatures of members are known to have

been obtained by Lakshmi and Shanthi from their houses.

22.

MW9 who is a member of Malligai Group was

brought in to state that the members of the Group were

not aware of the loan sanctioned. When her statement

was put to her, she stated that she is illiterate. When the

loan documents were put to her, she has stated that

signatures in the loan documents were obtained from all

the members except MW8, the representative. She has

stated that she does not know if the signature of MW8

could have been obtained later. When she was asked what

is written in the statement purportedly given by her, she

stated that she does not know. Again she stated that she

was told that if she is to get a new loan she is to give such

statements to the Manager and it was only on account of

this, she has signed. So it is clear that even the investigation

in which the statements of concerned persons were

recorded was not a fair one. It is on such statements, the

Enquiry Officer has relied upon. If all the other members

have signed in the loan papers, Why should MW8

alone be omitted? The version of MW1 that there is no

apparent difference in the signature of MW8 found in the

resolution and in the loan papers is also to be referred to

at this instance. It is very much apparent that MW9 had

signed the loan papers and so also other members had.

23.

In fact there is no material at all to show that any

forgery has taken place at all. There is absolutely no

material to show that the petitioner has helped in forging

the signature of MW8, even if any forgery was there. This

charge against the petitioner also is not established.

24.

The next charge against the petitioner is that he

closed the loan account of Malligai Group by remitting

the amount by himself without receiving any money from

the Group. The case is that the petitioner has withdrawn

amount from his account and also borrowed from MW3

the tiny deposit agent of the branch for this purpose. The

assumption seems to be that it was only because the

petitioner had committed the alleged misconducts he had

remitted the amount on his own and so he is to be presumed

to have committed those misconducts on account of this

remittance of the amount and closure of the account itself.

MW3, the tiny deposit agent and MW6, a clerk of the

Bank are brought in to give evidence in this respect. MW3

has withdrawn Rs. 1,30,000/- from the Bank on 30.12.2009.

This is the date on which the account of Malligai Group

was closed. MW3 has stated that he had asked the Cashier

to give the amount to the petitioner. The petitioner had

admitted during his examination that he has borrowed

amount from MW3, but according to him, it was not on

30.12.2009. His further case is that the borrowal was for

his personal purpose. MW6 was working as Clerk of

Konganapuram Branch at that time. He had given

3652

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

statement regarding closing of loan account of Malligai

Group. The Pay Order in respect of Rs. 1,30,000/- given by

MW3 was put to this witness and he has stated that he

has given the amount to MW3 and MW3 had given it

back to him asking him to pay the amount to the petitioner.

The Pay Order given by the petitioner for withdrawal

of Rs. 1,67,000/- also is marked through this witness. MW6

has stated that he gave the amount to the petitioner and

he gave back the amount and asked him to adjust the

amount towards the account of Malligai Group. The

challan given by Malligai Group for remittance of the

amount also is produced and marked through this witness.

25.

It is clear from the evidence that the challan

contained the signature of the Animator of Malligai

Group and Shanthi who had allegedly impersonated

MW8. The challan was given for the purpose of remitting

the amount. The allegation is that the petitioner managed

to obtain the signatures of these persons in the challan

and remitted the amount himself. For this purpose, he

obtained loan Rs. 1,30,000/- form MW3 and withdrew

Rs. 1,67,000/- from his own account, it is stated. The

Authorized Representative of the petitioner has pointed

out that there is no evidence to show that the amount

withdrawn from the account of MW3 or from the account

of petitioner himself could have been used for the

remittance of the amount. Referring to the reverse side of

the Pay Order which is marked as MEX 35-2/2, it has

been pointed out that the denominations of notes are in

hundreds. Showing this the figures 100 x 1670 is written

on MEX 35-2/2. So also the denominations of notes

obtained on withdrawal of Rs. 1,30,000 also are in

hundreds. This is brought out through MW6 on cross-

examination. The case of MW6 is that he had given the

amount to the petitioner and the petitioner had given back

the amount to him asking him to adjust the amount towards

Malligai Self Help Group. The challan for remittance of

Rs. 2,97,260/- for Malligai Group also has been marked

through MW6. According to MW6, the challan was handed

over by the petitioner at the instruction of the Manager. If

the amount obtained on withdrawal from the account of

MW3 and the petitioner were used for remittance as per

the challan of Malligai Group, the same denomination of

notes found in the Pay Orders for these withdrawals should

have found a place at the time of remittance also. However,

as seen from the documents, payment was made in

Rs. 1000/- denomination and not in Rs. 100/-

denominations. How this has occurred is not explained by

MW6. The Enquiry officer has brushed this fact aside

stating that this is not at all relevant. Though the credit

voucher for Rs. 1,30,000/- and the account of MW3 refers

to transfer of amount to the account of the petitioner there

is no corresponding credit entry in the account of petitioner.

26.

The case of the petitioner is that alongwith the letter

of the Animator and another the Manager brought cash

and handed over the cash to MW6. The letter by the

Animator said to have been given on the eve of remittance

of the amount for closure of account is marked as DEX-2

in the enquiry proceedings. The letter states that they

have received the cash by mistake, that no one else is

involved and that they are remitting the amount in full.

The signature of the Animator and Helper Shanthi are seen

in this. This document was put to MW4 who was the

Branch Manager. When he was asked when he had

received this, he had stated that he does not remember

on account of tension. He has not stated that he has not

received such a letter at the Bank. Thus it could be seen

that a challan containing the signature of the concerned

persons was given to the Bank for closure of the account

and a letter by them seeking to close the account also was

given at the Bank. So it could not be definitely stated that

the petitioner himself is the one who remitted the amount.

It is argued on behalf of the petitioner that if the petitioner

has decided to remit the amount he would have

remitted the amount to the account of the Velavan Group

also and closed that account also. The evidence given by

MW8 is that the loan proceeds were distributed among

the members and they are now remitting instalments

regularly.

27.

Even assuming that the petitioner has chosen to

close the account in view of all the allegations that had

arisen against him, that by itself is no reason to conclude

that he had committed the misconducts alleged against

him. There is no allegation that he has misappropriated

the entire amount. The misconduct alleged is that he had

handed over the amount to the representatives of each

Group taking Rs. 7,500/- from the amount due to Malligai

Group and Rs. 9,500/- from the amount due to Velavan

Group and also received Rs. 2,000/- and Rs. 3,000/- by

way of illegal gratification from these Groups respectively.

There cannot be an assumption of the commission of the

misconducts on the basis of the remittance alone.

28.

The method adopted by the Enquiry Officer for

casting guilt on the petitioner is something unknown even

for the proceedings in domestic enquiry. In the absence of

direct evidence by the related witnesses he was relying

upon the statements said to have been given by witnesses

and the evidence given by MWs 1 and 2 with reference to

these statements. Criminal misconduct is alleged against

the petitioner. The charges against the petitioner are those

that will invite serious consequences. So unless there is

sufficient material to show the involvement of the

petitioner, he shall not be nailed with the alleged

misconduct. I find that the Enquiry Officer has given a

report against the petitioner in the absence of such

material. I find that the report of the Enquiry Officer and

the punishment imposed on the petitioner based on the

said report are without any justification. The petitioner is

entitled to be reinstated in service.

¹Hkkx II—[k.M 3(ii)º

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3653

29.

The Respondent shall reinstate the petitioner in

service with continuity of service and other benefits. The

petitioner will be entitled to 25% of back wages from the

date of dismissal to the date of publication of the award.

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 25^th March, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1^st Party/

: WW1, Sri B. Eswaramoorthy

Petitioner

For the 2^nd Party/ : None

Management

Documents Marked:

On the petitioner’s side

Ex. No.

Date

Description

Ex.W1

28.01.2010

Charge Sheet issued to Sri B.

Eswaramoorthy

Ex.W2

05.03.2010

Letter from Zonal Office, Salem

ordering departmental enquiry

Ex.W3

29.04.2010

19.05.2010

Proceedings of the departmental

20.05.2010

enquiry

04.06.2010

Ex.W4

15.02.2010

Reply to the charge sheet by Sri

B. Eswaramoorthy

Ex.W5

30.12.2009

Report by Sri S. Natarajan, Lead

District Manager, Circle Office,

Salem

Ex.W6

30.12.2009

Paper report of “Kalaikathir” and

“Dinakaran”

Ex.W7

30.12.2009

Unsigned statement of Sri C.

Selvaraj

Ex.W8

30.12.2009

Statement from R. Muthusamy,

Asstt.

Branch

Manager,

Konkanapuram

Ex.W9

30.12.2009

Letter from Mr. L. Sugavanam,

Manager, Konkanapuram

Ex.W10

05.01.2010

Snap Inspection report of Sri L.

Shanmugam, Inspector, Centre,

Thanjavur

Ex.W11

04.01.2010

Statement from K. Vasanthi,

Malligai SHG

Ex.W12

04.01.2010

Statement from Lakshmi, Malligai

SHG

Ex.W13

04.01.2010

Statement from members of

Malligai SHG

Ex.W14

04.01.2010

Statement from G. Shanthi,

Samuthiram Village, Salem District

Ex.W15

05.01.2010

Statement from K. Indirani,

Velavan SHG

Ex.W16

05.01.2010

Statement from members of

Velavan SHG

Ex.W17

05.01.2010

Statement from M. Chandran,

Tiny Deposit Agency, Indian

Bank, Konganapuram

Ex.W18

Statement from S. Mariappan,

Cashier,

Indian

Bank,

Konganapuram

Ex.W19

09.01.2010

Letter from L. Sugavanam, Branch

Manager to Circle Office, Salem

Ex.W20

24.11.2009

Credit Voucher of BPO favouring

Shanthi Silk Hosue

Ex.W21

24.11.2009

BPO favouring Shanthi Silk

House

Ex.W22

25.11.2009

Credit challan for A/c No.

566741615

Ex.W23

Statement of a/cs of Velavan SHG

for the period from 01.11.2009 to

20.04.2010

Ex.W24

Statement of a/cs of Veelavan

SHG for the period from

01.10.2009 to 20.04.2010

Ex.W25

29.10.2009

Credit voucher for SB A/c

566724429

Ex.W26

29.10.2009

Debit voucher for Malligai SHG

Ex.W27

29.10.2009

BPO favouring M/s Shanthi Silk

House

Ex.W28

30.10.2009

Credit challan for SB A/c

566741615

Ex.W29

30.10.2009

Cheque no. 361995 favouring

R. Ramesh

Ex.W30

31.10.2009

Cheque no. 361997 favouring

R. Ramesh

Ex.W31

30.12.2009

Credit voucher of SB A/c

566670663

Ex.W32

30.12.2009

Credit voucher to SB A/c

506702606

Ex.W33

30.12.2009

Debit voucher of RIP A/c

804891680

Ex.W34

30.12.2009

Debit voucher of RIP 815011995

3654

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Ex.W35

14.11.2008

RIP Deposit receipt no. 804890680

Ex.W36

14.11.2008

RIP Deposit receipt no. 804891016

Ex.W37

30.12.2009

Withdrawal slip for Rs. 6,000

Ex.W38

30.12.2009

Withdrawal slip for Rs. 1,67,000

Ex.W39

30.12.2009

Withdrawal slip for Rs. 1,30,000

Ex.W40

30.12.2009

Credit challan of Malligai SHG

Ex.W41

14.11.2008

RIP Receipt no. 805011995

Ex.W42

Statement of a/c for the period

from 01.10.2009 to 20.04.2010 of

Malligai SHG

Ex.W43

Statement of a/c for the period

from 01.10.2009 to 20.04.2010 of

Malligai SHG Lakshmi and

Vasanthi

Ex.W44

Statement of a/c for the period

from 01.10.2009 to 20.04.2010 of

M. Chandran (LOD)

Ex.W45

Statement of a/c for the period

from 01.10.2009 to 20.04.2010 of

M. Chandran (SB A/c)

Ex.W46

Statement of a/c for the period

from 01.10.2009 to 20.04.2010 of

Shanthi Silk House

Ex.W47

Statement of a/c for the period

from 01.10.2009 to 20.04.2010 of

Shanthi Silk House

Ex.W48

Cash balance book for 30.12.2009

Ex.W49

List of transaction for 30.12.2009

(with timings)

Ex.W50

Teller Cashier register report for

30.12.2009 (relevant page 5/6)

Ex.W51

Malligai SHG loan application,

sanction tickets

Ex.W52

Credit voucher for BPO favouring

Shanthi Silk House

Ex.W53

Letter from Malligai SHG to

Branch Manager, Konganapuram

Ex.W54

Presenting Officer’s brief

Ex.W55

07.07.2010

Defence summing up

Ex.W56

23.08.2010

Enquiry Officer’s findings

Ex.W57

09.09.2010

Comments on Enquiry Officer’s

findings

Ex.W58

11.11.2010

Second Show Cause Notice

Ex.W59

16.11.2010

Reply to the Second Show Cause

Notice

Ex.W60

27.12.2010

Speaking orders of the DA

Ex.W61

18.01.2011

Appeal

the Appellate

Authority

Ex.W62

08.02.2011

Supplementary appeal to the

Appellate Authority

Ex.W63

10.05.2011

II Supplementary Appeal

Ex.W64

19.07.2011

III Supplementary Appeal

Ex.W65

09.07.2011

Speaking orders of the Appellate

Authority

Ex.W66

16.08.2011

ID under Section 2(a) of ID Act

On the Management’s side

Ex. No.

Date

Description

Ex.M1

20.11.2010

Additional submission of B.

Eswaramoorthy (in Tamil)

Ex.M2

20.11.2010

Proceedings of personal hearing

before Disciplinary Authority

Ex.M3

05.01.2011

Reply of Bank of ALC©, Chennai

Ex.M4

01.06.2011

Statement of a/c showing

settlement of Gratuity

10.09.2011

Rs. 3,52,950 credited to petitioner’s

SB A/c and Statement of A/c

showing settlement of PF dues

Rs. 4,51,050.30 – credited to

petitioner’s SB A/c

Ex.M5

27.03.2012

Conciliation failure report

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1374-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u 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;] pSUubZ ds iapkV (lanHkZ la[;k 44@2012) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@04@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@49@2012&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1374.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 44/2012)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the industrial

dispute between the management of Indian Bank and their

workmen, which was received by the Central Government

on 30-4-2014.

[No. L-12012/49/2012-IR(B-II)]

RAVI KUMAR, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3655

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM -LABOUR COURT,

CHENNAI

Thursday, the 6th March, 2014

Present : K.P. PRASANNA KUMARI, Presiding Officer

Industrial Dispute No. 44/2012

(In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman)

BETWEEN :

Sri K.B. Selvaraj

: 1st Party/

Petitioner

AND

1. The Dy. General Manager/

: 2nd Party/

Circle Head

1st Respondent

Appellate Authority

Indian Bank Circle Office

No. 100/101,

East Avani Moola Street,

Madurai

2. The Assistant General

: 2nd Party/

Manager

2nd Respondent

Disciplinary Authority

Indian Bank Circle Office

No. 100/101,

East Avani Moola Street

Madurai

Appearance :

For the 1st Party/

M/s S. Retnaswamy,

Petitioner

Chidambara Natana

Maharajan, Advocates

For the 1st Party/

M/s T.S. Gopalan & Co.,

1st and 2nd Respondent

Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12012/49/2012-IR (B-II)

dated 31.07.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank, Madurai Main Branch in imposing the

punishment of compulsory retirement with

superannuation benefits on Sri K.B. Selvaraj, Ex-

Clerk-cum-Shroff vide order dated 13.02.2007, is legal

and justified? What relief the workman concerned is

entitled?”

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 44/2012 and issued notice to both

sides. Both sides have entered appearance through their

counsel and have filed Claim and Counter Statement

respectively.

The averments raised by the petitioner in the Claim

Statement in brief are these:

The petitioner was appointed as sub-staff in the

Respondent Bank in 1973. He had been working as Clerk-

cum-Shroff in Madurai Main branch of the Bank, from the

year 1996. While so, the petitioner had received a Charge

Memo dated 30.01.2006 from the Second Respondent. In

the Charge Memo it was alleged that in 11 sections of

notes of Rs. 500/- denomination, counted and prepared

by the petitioner on 14.10.2004 there was shortage of two

pieces each, that the petitioner had intentionally removed

two pieces from each of the sections causing shortage of

Rs. 11,000/- and that the petitioner has misappropriated

this amount of Rs. 11,000/-. It was further alleged that

there was shortage of one piece of note in one section of

Rs. 500/- denomination sorted and signed by the petitioner

on 13.10.2004 and there was shortage of five pieces of

notes in 5 sections of Rs. 500/- denomination sorted and

signed by the petitioner on 14.08.2004 causing shortage

to the extent of Rs. 13,000/- in all and thus the petitioner

has misappropriated this amount. An enquiry was

conducted against the petitioner and the petitioner was

given the punishment of Compulsory Retirement with

superannuation benefits, on the basis of the findings of

the Enquiry Officer. Though the petitioner had preferred

an appeal against the order, this was dismissed. The

petitioner has not committed any misappropriation as

alleged. The petitioner had remitted 50% of the alleged

shortage in view of the RBI guidelines. It is the duty of the

Officer concerned to recount the sections of notes counted

by the Shroff and verify the correctness of the quantity of

notes in the section. If a section is countersigned by the

competent officer it is to be deemed that he recounted the

section and verified the same. It is incorrect to state that

the Officers had countersigned the sections without

counting the same. There was possibility of loss of the

notes at ICICI Bank where the sections were sent. This

possibility was not considered during the enquiry. The

charges alleged against the petitioner were not proved in

the enquiry. The punishment imposed on the petitioner is

illegal and unjustified. An order may be passed setting

aside the order of punishment imposed on the petitioner

and directing the Respondents to reinstate the petitioner

in service with all back wages and other benefits.

The Respondents have filed Counter Statement

contending as below:

By order dated 20.10.2004 the Reserve Bank of India

had directed the Currency Chest Madurai attached to

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[PART II—SEC. 3(ii)]

Indian Bank to transfer Rs. 25.00 crores to the Currency

Chest attached to ICICI Bank at Madurai. The Madurai

Currency Chest of the Respondent Bank had sent the

amount to ICICI Bank Currency Chest through its Potdar,

Kutti Rajendran. On 29.10.2004 while the staff of ICICI

Bank were counting the currency sent from Currency Chest

of the Respondent Bank at Madurai in the presence of

Kutti Rajendran, 11 sections of Rs. 500/- denomination

were found short of two pieces in each section. It was also

noticed that all these sections were counted by the

petitioner on 14.10.2004. The sections with shortages were

taken back to the Madurai Currency Chest and were

replaced with sections with full number of pieces. The

petitioner who had counted the sections and also

Loganathan Balaji who countersigned the sections were

asked to make good the loss and they had remitted

Rs. 5,500/- each. After report of shortage of notes in the

sections remitted to ICICI Bank, on the instructions of

Assistant General Manager of Circle Office all sorted

bundles of Rs. 500/- denomination at Madurai Currency

Chest and were recounted. The recounting was done from

01.11.2004 to 09.11.2004 during which shortage of 29 pieces

of Rs. 500/- denominations were noted. There were

shortage of five notes in each of the five sections of

Rs. 500/- denominations sorted and counted by the

petitioner and countersigned by Mr. Bongar, the Manager

on 14.08.2004. A show cause notice was issued to the

petitioner for various shortages found on recounting. The

explanation given by the petitioner was found not

satisfactory and a charge sheet was issued to him with

reference to the shortages. An enquiry was conducted in

the matter and the Enquiry Officer had given a report

holding that the charges are proved. After considering

the representation of the petitioner, the Disciplinary

Authority had passed orders awarding the petitioner with

the punishment of Compulsory Retirement with

superannuation benefits. The petitioner had reached the

age of superannuation in July 2012. He had received all

the benefits that were made available to him on Compulsory

Retirement. The petitioner had filed Writ Petition before

the Madras High Court challenging the punishment

imposed, but had later withdrawn the Writ Petition. The

action taken by the Respondent Bank in imposing the

punishment of Compulsory Retirement is fully justified.

The petitioner is not entitled to any relief.

The evidence in the case consists of oral evidence

of WW1 and the documents marked as Ext.W1 to Ext.W33

and Ext. M1 to Ext. M47.

The points for consideration are:

(i)

Whether the management is justified in imposing

the punishment of Compulsory Retirement on the

petitioner?

(ii)

What is the relief to which the petitioner is entitled?

The Points

During the period of the alleged incident the

petitioner was working as Clerk-cum-Shroff in the Madurai

Main Branch of the Indian Bank. The bank is housed in

the building situated at East Avani Moola Street Madurai.

The branch of the Bank is functioning in the first floor

while the ground floor of the building is occupied by the

Currency Chest licensed by the Reserve Bank and attached

to the Respondent Bank. The Currency Chest under the

Respondent Bank at Madurai had transferred Rs. 25.00

crore to the Currency Chest of ICICI Bank at Madurai

itself on the basis of the direction given by RBI on

20.10.2004. The counting of the amount sent by the

Currency Chest under the Respondent Bank to the

Currency Chest under the ICICI Bank was done on

29.10.2004 in the presence of the Potdar of the Respondent

Bank through whom the amount was transferred. While

counting it was noticed that 11 sections of Rs. 500/-

denomination were short of two pieces each. All these

sections were brought back to the Chest of the Respondent

and were replaced by sections with full pieces. It was

noticed by the Respondent Bank that all the 11 sections

wherein shortages were occurred were sorted and counted

by the petitioner on 14.10.2004. All the sections were

countersigned by Loganathan Balaji. Both the petitioner

and Loganathan Balaji were asked to make good the

loss and they had remitted Rs. 5,500/- each to the Bank.

Subsequently, all the sections of Rs. 500/- notes that were

kept in the Currency Chest were recounted. During

recounting it was noticed that apart from shortage of three

pieces in the sections counted by two other Shroffs, there

was shortage of five pieces each in five sections, all

counted and sorted by the petitioner. The concerned

Officers who had countersigned the sections seem to have

maintained that they have not counted the sections before

they countersigned them but were placing their faith on

the petitioner who had counted the sections, for

countersigning them. The bank had sought explanation

from the petitioner which was found unsatisfactory and

had proceeded to issue Charge Memo. An enquiry was

conducted and the petitioner was found guilty of the

charges. It was accordingly, the punishment of

Compulsory Retirement was imposed on the petitioner.

The stand of the petitioner is that he was made a

scapegoat for the alleged shortages. It is pointed out in

the Claim Statement that the Officers who countersigned

were not proceeded against for the alleged shortage. In

fact the Bank had only recovered 50% of the shortage

from these persons. It has accepted the explanation of

these Officers that they were merely countersigning the

sections believing the petitioner who did the counting.

The two Officers who countersigned the sections

and also the employees who did the recounting after

shortage was noticed in the sections sent to ICICI Currency

¹Hkkx II—[k.M 3(ii)º

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3657

Chest as well the Potdar through whom the currency were

transferred to ICICI Chest have given evidence before the

Enquiry Officer. All these persons have been questioned

during the investigation conducted by the Bank and their

statements were recorded. The statements have been

marked during the examination. The evidence given by

these witnesses in the enquiry proceedings is that they

stand by the statements given by them during

investigation.

10.

All the statements to the Vigilance Officer of the

Bank and also the evidence of the witnesses before the

Enquiry Officer are in Tamil. The translation of the

statements and also depositions before the Enquiry Officer

have been furnished by the Respondent. The Potdar

through whom currency of Rs. 25.00 crores have been

transferred to ICICI Bank had been examined as MW5. He

is also seen examined as a defence witness by the

petitioner. This witness has given statement to the

Vigilance Officer that he had taken Rs. 25.00 crores in

denomination of Rs. 500 to the ICICI Bank on 26.10.2004

They were all kept under lock and key in the chest of

ICICI Bank and have been counted and kept in the bin

room. 100 bundles which could not be counted on the day

was put under lock and key and counted on the next day.

Some shortage seems to have noticed on that day itself.

However the paper bands of these were not traced. When

counting was again begun on 29.10.2004 two pieces were

found short in one section and shortage of two pieces

were found in one more section. Then MW5 had contacted

the person in-charge. On further counting shortage was

noticed in more sections. Thus, shortage in eleven sections

that were counted by the petitioner was detected. Each

section was found short of two pieces thus totaling 22

pieces. Though this witness is examined on the petitioner’s

side also, no questions relevant to the incident are seen

put to him. During the cross-examination while he was

examined as MW5 also, no attempt has been made to make

out that there were no shortage in the sections that were

counted from the ICICI Bank Chest. Some attempt is seen

made to show that when once a section is tied with twine

and paper band, it would be possible to remove pieces

from it.

11.

Sri Loganathan Balaji, the Officer who countersigned

the sections sent to ICICI Bank Chest is examined as MW2.

This witness also has stated that he stands by the

statement given by him to the Vigilance Officer. There are

two statements by this Officer. He has stated that he was

present at the counting on 14.10.2004. According to him

he was going to the Bin Room whenever called by the

person in-charge, Mr. Bongar, the Other Officer having

gone for training. He had further stated that at the time of

counting on 14.10.2004 the petitioner was sitting alone in

the table placed in the corner. He was going to the Bin

Room and counting hall from time to time. He has also

stated that in some sections the paper bands were signed

by him as such. This witness has been present at the time

of recounting also. The recounting was commenced on

01.11.2004. There was no shortage or excess till 08.11.2004.

They started counting the soiled bundles on 09.11.2004.

Initially, MW1 who was one of the Shroffs counting the

notes noticed shortage of one note in one section. This

was made good by the concerned person who did the

previous counting. Later when one more section was

counted it was found short of 5 notes. MW2 also counted

the section and confirmed that there is shortage of five

notes. When they proceeded with the counting of other

sections of soiled notes also, shortage was found in four

more sections. On verification it was found that all these

five sections were counted by the petitioner on 14.08.2004.

During cross-examination this witness has stated that if

one Officer who is working in the Currency Chest is not

present the remaining two Officers will be sharing the

work among themselves. It was also brought out through

this witness that before he signs the sections of notes he

is to count it and certify for the quantity.

12.

MW3 is the other Officer who had countersigned

sections in which shortage were found. On interrogation

by the Vigilance Officer, his witness has stated that on

recounting no shortage was found in the sections of

issuable notes. But on counting the soiled notes on

09.10.2004, five pieces were found short in five sections

with initials of himself and the petitioner. According to the

witness, before the shortage was noticed the practice was

that the Shroffs themselves will count each sections a

second time and put them in front of the concerned officer

with paper band and slip in them. According to MW3, he

had signed the paper bands believing the Shroffs who

counted them. This witness also seems to have remitted

50% of the shortage out of the sections containing his

counter signature. According to this witness when the

notes are tied using thread and paper band, it will not be

possible to remove notes from them without damaging

the wrapper. This witness has also deposed about the

position of the petitioner at the time of counting. He was

sitting in the seat behind a pillar. He has stated that all the

shortages noticed were in the soiled sections. He revealed

that if shortage is in issuable bundles it will come to light

immediately. But in the case of soiled notes, it will be

detected only after several days.

13.

MW1 also had participated in the recounting. He

was involved in the recounting on 4 days including

09.10.2004. He has detected shortage of one note each in

two sections counted by the some other Shroffs other

than the petitioner. On continuing the recounting he

noticed shortage of five notes in one of the sections. He

informed MW3 about it. On proceeding with the

recounting he found shortage of five notes each in five

sections altogether. He also noticed that all the sections

were counted by the petitioner and countersigned by

MW3. The statement of this witness regarding shortage

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[PART II—SEC. 3(ii)]

of notes found on recounting is not seen challenged

during cross-examination.

14.

MW6 is the Officer who was in joint custody of the

Currency Chest alongwith another Officer. He has deposed

that ICICI Currency Chest has reported about the shortage

of notes in sections of notes of Rs. 500 denomination. He

had also stated that as instructed by the Main Branch

they had arranged for a recounting of all the sorted

Rs. 500 bundles and it is accordingly recounting was done.

15.

Even during the argument there is no case on behalf

of the petitioner that shortage of notes were not found in

the sections counted by the petitioner. Apparently, out of

the sections sent to ICICI Bank Currency Chest, 11 sections

of Rs. 500 denomination were each found short of two

pieces. On recounting of the remaining sections of notes

of Rs. 500 denomination in the currency chest of the

Respondent Bank, five sections were found short of five

pieces each. The paper bands on all these sections

contained the signature of the petitioner as the one who

did the counting. The sections sent to ICICI Currency

Chest were countersigned by MW2 and the sections found

short on recounting were countersigned by MW3.

16.

The attempt that is being made on behalf of the

petitioner is that merely because shortage was found in

the sections, the offence of misconduct could not be

attributed to the petitioner. According to the counsel, at

the most the shortage might have occurred due to

inadvertence or negligence at the time of counting. In this

respect it has been pointed out by him that shortage was

found in two other sections also at the time of recounting.

One section counted by another Shroff was found short

of one note and another section counted by still another

Shroff also was found short of one note. The concerned

Shroffs have immediately made good the loss by replacing

the missing note. Referring to this, it has been argued by

the counsel for the petitioner that shortage in the sections

counted is not unusual and is bound to occur at times.

The counsel has referred to the decision INSPECTOR

PREM CHAND VS. GOVERNMENT OF NCT OF DELHI

AND OTHERS reported in 2007 4 SCC 566 where it was

held that error of judgment for negligence simplicitor could

not be misconduct. The counsel has also referred to the

decision UNION OF INDIA VS. J. AHMAD reported in

1979 2 SCC 286 where it was held that deficiencies in

personal character or personal ability do not constitute

misconduct for taking disciplinary proceedings. It was

further held that negligence in performance of duty or

inefficiency in discharge of duty are not commission or

omission amounting to misconduct.

17.

Certainly if the shortages noticed was the result of

mere negligence or inadvertence it could not be termed

misconduct which would invite action against the

concerned person. However, on appreciating the evidence

given by the Management witnesses, that of the petitioner

himself and on considering the circumstances it could be

seen that it is not a case where the petitioner could take

shelter under the cover of negligence, inadvertence,

inefficiency, etc. The evidence points to the fact that the

notes were removed by the petitioner before he tied the

bundles and wrapped them with paper bands. It is relevant

to note that out of the sections that were sent to ICICI

Chest, shortage was noticed only in the sections that were

counted by the petitioner. Again, all the sections wherein

shortage was noticed on recounting were sections of

soiled notes. No shortage was noticed in the sections of

issuable notes which were much more in number than the

sections of soiled notes. The fact that there was no

possibility of soiled notes being counted immediately

makes it probable that the petitioner had decided to remove

notes from the sections of soiled notes. On recounting,

shortage of five notes were noticed in each of the five

sections of soiled notes. There is the evidence given by

MW2 that only two Officers including him were present

on 14.10.2004 when notes to be sent to the ICICI Bank

Chest were counted and that he had to run to different

places on the day to perform his duty in the absence of

one of the Officers. The evidence given by the petitioner

himself is also relevant in this respect. He had admitted to

have worked on 14.08.2004, 13.10.2004 and on 14.10.2004.

Shortages were noticed in the notes counted by the

petitioner on these dates. The statement of the petitioner

had been recorded and were marked also. He has stated

on interrogation that he does not know how shortage

occurred. He has admitted that he had tied the sections

with thread and paper band. He admitted that the Sub-

Staff are not allowed to help in the counting. He has stated

during interrogation that on 14.10.2004, he had sorted

notes of Rs. 500/- denomination and there were sixteen re-

issuable sections and four soiled sections. After sorting

he had verified all the sections and had counted them in

the counting machine. According to him, MW2 was

watching him at the time. He had asked MW2 if he can put

the wrapper on the sections and MW2 had permitted him

to do so. Then he had brought all the sections to his table

and had put the wrapper on them. Then he had signed on

them and had placed the sections on the table of MW2.

Thus, it is clear from the version of the petitioner itself

that MW2 did not count the sections. Certainly, this was

dereliction of duty on the part of MW2. But at the same

time it would show that he had no part in the shortage of

notes. After the sections were placed before MW2, the

petitioner had again taken them to his own table for

wrapping them. At this instance, the evidence given by

MW3 regarding the position of the petitioner is relevant.

He was using a seat behind the pillar which probably gave

sufficient cover to him and it would not have been possible

for others to watch him at this place.

18.

More than anything the fact that shortage out of

the sections sent to ICICI Currency Chest was noticed

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3659

only in the sections counted by the petitioner speaks much

against the petitioner. So also shortage to the extent of

five notes in each of the sections on recounting were

noticed only in the sections counted by the petitioner.

Shortage noticed in two other sections was only one piece

each and that also in sections counted by two different

persons. In the case of sections in which shortages were

noticed on counting at ICICI Bank Chest, each of the eleven

sections counted by the petitioner were short of two

pieces. So also five sections of soiled notes wherein

shortage was noticed on recounting were all counted by

the petitioner on a single day and from each of these five

pieces were missing. If the shortage was due to

inadvertence it is not likely that the same number of pieces

were missing from all the sections. Again, the shortage

noticed was all in sections of soiled notes. So far as soiled

notes are concerned, there is probably likelihood of excess

in a section since the notes might have become sticky out

of constant use. Shortage in soiled sections is almost

impossible. When these aspects are taken into account,

the argument advanced on behalf of the petitioner that

the shortage might have been the result of negligence or

inadvertence is to be ruled out. The only probability is

that it is the deliberate act on the part of the person who

did the counting.

19.

Referring to the decision ANIL KUMAR VS.

PRESIDING OFFICERS AND OTHERS reported in 1985

3 SLR 26 the counsel for the petitioner has argued that

termination from service based on an enquiry report which

does not discuss evidence properly is not legal. The

counsel has referred to the enquiry report in the present

case and has argued that the Enquiry Officer has not

assimilated or appreciated the evidence properly or

discussed the case referring to all the aspects. Even

assuming that this argument of the counsel is correct, it is

no reason for this Tribunal not to take a decision based on

the material that is available. This Tribunal is expected to

go through the enquiry proceedings, assess the evidence

and find out if the charge against the delinquent is

established or not. From the discussion above, it is very

much clear that the Management has established both

charges framed against the petitioner. So there is no

necessity to interfere with the report of finding of guilt

against the petitioner.

20.

The next question to be considered is whether the

punishment imposed is proportionate to the gravity of the

offence committed. The petitioner was given the

punishment of Compulsory retirement from service only.

Now he has already attained the age of superannuation. It

is a case where shortage was found in a series of sections

of notes counted by the petitioner. I have found that this

could not have been mere negligence or inadvertence.

The Management could not be expected to retain persons

whose act is against their interest. The punishment given

to the petitioner is the least that could have been given so

I do not propose to interfere with the punishment imposed

also. The points are found against the petitioner.

21.

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 6th March, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1st Party/

: WW1, Sri K.B. Selvaraj

Petitioner

For the 2nd Party/

: None

1st Management

Documents Marked:

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

13.11.2004

Placing under Suspension

Ex.W2

19.11.2004

Reply by the petitioner

Ex.W3

08.12.2004

Seeking explanation

Ex.W4

13.12.2004

Advice to remit 50% of shortage

Ex.W5

22.12.2004

Reminder to submit explanation

Ex.W6

27.12.2004

Forwarding letter

Ex.W7

01.01.2005

Extension of time to submit

explanation

Ex.W8

12.01.2005

Ex.W9

09.07.2005

Representation of Sri V.R.

Chidambaram

Ex.W10

17.11.2005

Advise to remit 50% of shortage

Ex.W11

30.01.2006

Charge Sheet

Ex.W12

23.05.2006

Intimation to attend enquiry on

06.06.2006

Ex.W13

Nil

Proceedings of enquiry on

06.06.2006

Ex.W14

29.06.2006

Intimation to attend enquiry on

08.07.2006

Ex.W15

08.07.2006

Proceedings of enquiry on

08.07.2006

Ex.W16

07.10.2006

Report of Presenting Officer

Ex.W17

14.12.2006

Defence

Representative’s

submission to EO

Ex.W18

26.02.2007

Reply to Show Cause Notice

Ex.W19

Nil

Enquiry Officer’s finding

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[PART II—SEC. 3(ii)]

Ex.W20

13.02.2007

Show Cause Notice

Ex.W21

28.02.2007

Order of Disciplinary Authority –

Compulsory Retirement

Ex.W22

12.04.2007

Appeal against the order of

Disciplinary Authority

Ex.W23

19.09.2011

Order on WP (MD) No. 10305 of

2007 – Madurai Bench of Madras

High Court

Ex.W24

12.01.2012

Industrial Dispute between the

Management of Indian Bank & the

Petitioner

Ex.W25

28.02.2012

Intimation to attend Conciliation

Proceedings on 13.03.2012

Ex.W26

30.04.2012

Report on failure of Conciliation

Ex.W27

12.08.2006

Proceedings

regular

departmental enquiry held on

12.08.2006

Ex.W28

19.11.2004

Statement of enquiry held on

19.11.2004

Ex.W29

07.09.2006

Proceedings

regular

departmental enquiry held on

07.09.2006

Ex.W30

09.11.2004

Statement of recounted sections

during the period 01.11.2004 to

09.11.2004

Ex.W31

09.11.2004

Statement of enquiry held on

09.11.2004

Ex.W32

10.11.2004

Statement of enquiry held on

10.11.2004

Ex.W33

29.08.2003

RBI Clean Note Policy

On the Management’s side

Ex.No.

Date

Description

Ex.M1

20.10.2004

Order No. 92 – RBI Clean Currency

Chest to Indian Bank, Madurai to

Transfer 25 crores to Currency

Chest of ICICI Bank at North

Chitrai Street, Madurai – in Rs.

500/- denomination

Ex.M2

Note from Indian Bank, Circle

Office, Madurai – reg. shortage

of notes in Rs. 500/- denomination

sections in Madurai Currency

Chest

Ex.M3

30.10.2004

Memo to K.B. Selvaraj, regarding

shortage of 25 pieces of Rs. 500/-

denominations to make good and

calling for explanation for this

shortage

Ex.M4

30.10.2004

Memo to Loganathan Balaji

regarding shortage of 25 pieces

of Rs. 500/- denominations to

make good and calling for

explanation for this shortage

Ex.M5

01.11.2004

Letter from Currency Chest

Madurai to AGM/CO, Madurai

Ex.M6

12.11.2004

Investigation Report of R.

Nagarajan (Sr. Mgr.) to R.

Balakrishnan (Sr. Manager)

Ex.M7

09.11.2004

Statement of Loganathan Balaji

interrogation

M/s

Nagarajan and Balakrishnan – (3

Sheets)

Ex.M8

09.11.2004

Statement of R.Kutty Rajendran

during interrogation by M/s.

Nagarajan and Balakrishnan (3

Sheets)

Ex.M9

10.11.2004

Statement of K.B.Selvaraj on

interrogation by Nagarajan and

Balakrishnan (4 Sheets)

Ex.M10

29.10.2004

ICICI Bank – Currency Chest

Madurai letter dated 29.10.2004

addressed to Chief Manager,

Madurai

Ex.M11

14.10.2004

Denomination slips dated

14.10.2004 signed by K.B. Selvaraj

and

countersigned

Loganathan Balaji-11-Nos. (4

Sheets)

Ex.M12

26.10.2004

Coin / Note Examiners Certificate

Ex.M13

26.10.2004

Details of Cash Remittance from–

Currency Chest-Madurai to ICICI

Bank with its enclosures of

packing details – Box Slips in – 3

Sheets

Ex.M14

14.10.2004

Counting Hall Folio dated

14.10.2004

Ex.M15

04.12.2004

Further report of R. Nagarajan and

K.R. Balakrishnan to AGM on

further shortage of 22 pieces of

Rs.500/- denomination

Ex.M16

19.11.2004

Statement of P.Gnanamuthu

Ex.M17

19.11.2004

Statement of Anbazhagan

Ex.M18

20.11.2004

Statement of Kutty Rajendran

Ex.M19

20.11.2004

Statement of K.B.Selvaraj

Ex.M20

22.11.2004

Statement of G.Vetrisingam

Ex.M21

24.11.2004

Statement of K. Elango

Ex.M22

24.11.2004

Statement of C. Ukkirapandiyan

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3661

Ex.M23

22.11.2004

Statement of Loganathan Balaji

Ex.M24

23.11.2004

Statement of V. Bonger

Ex.M25

23.11.2004

Statement of S. Muralidharan

Ex.M26

14.08.2004

Denomination

Slip

dated

14.08.2004 signed by K.B.Selvaraj-

4 Nos.

Ex.M27

08.09.2004

Denomination

Slip

dated

08.09.2004 signed by G.Vetrisingam

Ex.M28

13.10.2004

Denomination

Slip

dated

13.10.2004 signed by K.B.Selvaraj

Ex.M29

14.08.2004

Counting Hall Register dated

14.08.2004

Ex.M30

08.09.2004

Counting Hall Register dated

08.09.2004

Ex.M31

13.10.2004

Counting Hall Register dated

13.10.2004

Ex.M32

09.11.2004

Record of re-counting done from

01.11.2004 to 09.11.2004 (2 Sheets)

Ex.M33

10.11.2004

Memo to K.B. Selvaraj on shortage

of 267 pieces of Rs. 500/-

denomination to make good and

to submit explanation.

Ex.M34

10.11.2004

Letter from Madurai Main Branch

to AGM / C.O./Madurai

Ex.M35

29.10.2004

SR. No. 5- Copy of Voucher for

Rs. 11,000/-

Ex.M36

01.11.2004

S.R.5.- Copy of Voucher – cash

remittance of Rs.5,500/- by

K.B.Selvaraj- being 50% of cash

shortage

Ex.M37

01.11.2004

S.R.5.- Copy of Voucher – cash

remittance of Rs.5,500/- by

Loganathan Balaji - being 50% of

cash shortage

Ex.M38

10.04.2004

Madurai Main S.R.No.5 – debit

voucher dated 10.11.2004 for Rs.

13,000/-

Ex.M39

18.11.2004

Madurai Main S.R.No.5 – credit

voucher for Rs. 250/- remitted by

Loganathan Balaji

Ex.M40

18.11.2004

Madurai Main S.R.No.5 – credit

voucher for Rs. 6,250/- remitted

by Bongar

Ex.M41

08.08.2007

Letter from Madurai Main Branch

to K.B.Selvaraj to offering P.F. and

Gratuity Settlement payments

Ex.M42

12.11.2008

Letter from K.B.Selvaraj to Chief

Manager, Madurai expressing

willingness to accept the terminal

benefits.

Ex.M43

08.09.2009

Settlement of Gratuity - Gratuity

Receipt by Selvaraj – Rs. 2,34,701/

- and statement of account of

petitioner

Ex.M44

15.09.2009

Settlement of P.F. Receipt – by

Selvaraj – Rs. 3,85,289/-

Ex.M45

29.08.2011

Counter of Bank in W.P. No. 10305

of 2007

Ex.M46

08.08.2006

Order of AGM / DA on charge

sheet dated 24.04.2006 issued to

Loganathan Balaji, Assistant

Manager – penalty imposed

“CENSURE”

Ex.M47

Dec..2011

2A Petition filed by Petitioner

before ALC (Central), Madurai.

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New Delhi, the 30th April, 2014

S.O. 1375.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 31/2012)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the industrial

dispute between the management of Indian Bank and their

workmen, received by the Central Government on 30-4-2014.

[No. L-12012/94/2011-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM -LABOUR COURT

CHENNAI

Friday, the 7th March, 2014

PRESENT : K.P. PRASANNA KUMARI,

Presiding Officer

Industrial Dispute No. 31/2012

[In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman]

3662

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

BETWEEN

Sri S. Nandakumar

: 1st Party/Petitioner

AND

1. The General Manager/

: 2nd Party/

Appellate Authority

1st Respondent

Indian Bank, Head Office/

HRM Deptt. No. 66,

Rajaji Salai, Chennai-600001

2. The Asstt. General Manager/ : 2nd Party/2nd

Disciplinary Authority,

Respondent

Indian Bank, Circle Office

No. 510-511, Gandhi Road

Kanchipuram-631501

3. The Branch Manager

: 2nd Party/3rd

Indian Bank,

Respondent

Valasaravakkam Branch

Chennai-600087

Appearance :

For the 1st Party/

: Sri P. Manikandan,

Petitioner

Advocate

For the 2nd Party/1st,

: M/s T.S. Gopalan & Co.,

2nd & 3rd Management

Advocate

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12012/94/2011-IR (B-II)

dated 23.05.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank, Chennai in imposing the punishment of

compulsory retirement from the service of the bank

and of stoppage of increment for a period of six

months upon Sri S. Nandakumar, Ex-Peon vide Order

dated 31.12.2009 is legal and justified? What relief

the workman is entitled to?”

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 31/2012 and issued notices to both

sides. Both sides have entered appearance through their

counsel and have filed their claim and counter statement

respectively.

The averments in the Claim Statement filed by the

petitioner in brief are these:

The petitioner had joined as Peon in the Indian Bank

in November, 1984. While the petitioner was working at

Valsaravakkam Branch he had received a Show-Cause

Notice dated 16.07.2008 issued by the Respondent. The

petitioner had submitted explanation denying the

allegations made against him. In spite of the explanation,

an enquiry was conducted against the petitioner. The

Enquiry Officer had given a report holding that the charges

against the petitioner are proved. Consequently, the

punishment of Compulsory Retirement with

superannuation benefits was imposed on the petitioner.

Though the petitioner had preferred an appeal against the

order of the Disciplinary Authority, this was dismissed.

The petitioner denies all the charges leveled against him

in the charge sheet served on him. It is incorrect to state

that the petitioner was absent from duty without prior

sanction for 64 days during the period from 12.04.2006 to

13.08.2008. The petitioner had submitted leave applications

to the concerned Branch Manager. In cases of taking leave

on emergency he had informed the Manager through

phone also. The charge that the petitioner has instigated

the customers present in the Bank on 05.04.2008 to prefer

complaints against the Branch Management also is not

true. So also, the charge that the petitioner had refused to

carry the cash box for loading cash in the ATM of the

branch also is incorrect. The punishment imposed on the

petitioern is without any justification. An order may be

passed holding that the punishment is unjust and illegal

and also directing the Respondents to reinstate the

petitioner in service with backwages, continuity of service

and other attendant benefits.

The Respondents have filed Counter Statement

contending as follows :

As all the three Respondents represent the Indian

Bank they are collectively referred to as the “Respondent”.

A common counter statement is filed on behalf of the three

Respondents. The petitioner was appointed as a Peon

and posted to Mannady Branch of the Respondent on

29.11.1984. Within two years of his joining the post there

was complaint of his having misbehaved with a woman

employee and an action was initiated against him. He was

transferred and posted to Valsaravakkam branch in view

of the complaint. Subordinate staff are governed by single

scale of pay. A Special Allowance is paid to them

depending upon the nature of work assigned to them.

Whenever a Peon is called upon to work in the Cash

Department, he would be paid Cash Peon allowance. The

Cash Peon shall be required to stitch and bundle currencies

and carry the cash box to the Currency Chest or to ATM.

The Award Staff of the bank including Subordinate Staff

are granted all leave benefits. So they would be able to

arrange their affairs without any necessity to unscheduled

absenteeism or unauthorized absence. At Valsaravakkam

branch the petitioner was very irregular in attending his

work. He used to be absent without applying for leave.

Between August, 2006 and September, 2007 he had

unauthorizedly absented from duty for 44 days. Memos

were issued to him on 27.05.2007 and 29.09.2007, for

unauthorized absence. On 15.05.2008, when the Asstt.

Manager, Sriram asked the petitioner to bundle sections

of currency notes for remittance to the Currency Chest, he

refused to carry out the instructions. On 23.05.2008, he

had refused to obey the instruction of Assistant Branch

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3663

Manager to fasten the sections of the currency notes.

Memos were issued to the petitioner on account of these.

Between 16.08.2006 and 12.08.2008, the petitioner was

unauthorizedly absent for 64 days on 38 occasions. On

30.05.2008 the petitioner had refused to carry the cash box

for loading the cash in the ATM stating that it is not his

job. On 05.04.2008 he called some customers who had come

to the branch premises to make a complaint to the Head

Office about the reduction in the number of single window

operators. A Show-Cause Notice was issued to the

petitioner listing out his acts of misconduct. The reply

given by the petitioner to this was unsatisfactory. A charge

sheet was issued to him and he was asked to appear for

the enquiry. On the basis of the report of the Enquiry

Officer, punishment of Compulsory Retirement for charges

2 and 3 and stoppage of increment for Charge No. 1 was

imposed on the petitioner. Even after issue of the Cause

Notice on 16.07.2008, the petitioner was unauthorizedly

absent for 28 days. The petitioner is not entitled to any

relief.

The evidence in the case consists of oral evidence

of the petitioner examined as WW1 and documents marked

as Ext.W1 to Ext.W22 and Ext. M1 to Ext. M29.

The points for consideration are:

(i)

Whether the management is justified in imposing

the punishment of Compulsory Retirement and

stoppage of increment on the petitioner?

(ii)

What is the relief to which the petitioner is entitled

to?

The Points

The petitioner had joined the service of the

Respondent Bank in the year 1984. His first posting was at

Mannady branch. It is alleged by the Respondent that it is

consequent to his misbehavior with a woman employee

the petitioner was transferred to Valsaravakkam branch.

Though, documents are not produced by the Respondent

to substantiate this case, the admission made by the

petitioner during the cross-examination before this Court

would show that there was a complaint against him by a

woman employee. The petitioner had stated during the

cross-examination that the complaint was that he had

obstructed the way of the complainant and it is accordingly

he was transferred to Valsaravakkam branch.

There is no case for the petitioner that the

proceedings of enquiry against him was not conducted in

a fair and proper manner. The documents pertaining to the

enquiry are marked before this Tribunal. It is on the basis

of these documents, the petitioner is trying to advance

his case that the charges leveled against him by the

Respondent are without any basis.

The charges against the petitioner are three fold.

The first charge against the petitioner is that he had been

absent from duty without any prior sanction or information

for 64 days on 28 occasions during the period between

12.04.2006 and 13.08.2008 and that in spite of repeated

directions he had failed to submit leave applications. The

details of the absence without leave applications are also

given in the charge memo which is marked as Ext.W5. The

second charge against the petitioner is that he had

instigated the customers available at the banking hall on

05.04.2008 to prefer complaints against the branch. The

third charge is that though the Assistant Manager and

the Senior Manager instructed to carry the cash box for

loading cash in the branch’s ATM on 30.05.2008 and on

01.06.2008, he had refused to carry out the instructions.

The acts of the petitioner are described as misconducts

coming under Clause-7(b), 5(e) and 5(j) of the Memorandum

of Settlement dated 10.04.2002.

10.

Most of the enquiry proceedings having been in

Tamil, a translation of the relevant portions have been

furnished to me. The Management had examined the then

Assistant Manager of Valsaravakkam branch as MW1.

MW2 also is the Assistant Manager of the branch.

11.

The first charge is attempted to be proved through

MW1. The relevant Attendance Registers were marked

through this witness. In this respect, it is to be mentioned

that there is no case for the petitioner that he was not

absent on the dates referred to in the charge. His only

case is that on most of the days he had submitted leave

applications and on other dates on which he had taken

leave on emergency he had informed the Branch Manager

through phone. The Enquiry Officer has noticed that the

petitioner was absent from duty without prior permission

for 37 days. Regarding absence on other days he has found

that permission has been obtained. The particulars of

sanction of leave are also given in the enquiry report.

Though the petitioner has stated that he was obtaining

prior permission through phone this is not substantiated.

In the normal course, a person who is availing leave is

expected to obtain prior permission from his superior officer.

Though it is the case of the petitioner that he has obtained

prior permission through phone, he has not given any

evidence in the enquiry proceedings. So there is no reason

to reject the finding of the Enquiry Officer that he was

absent from duty for 37 days without prior permission.

12.

The second charge against the petitioner is that he

instigated the customers to give complaint against the

bank. There is the evidence given by MW1 regarding this.

She has deposed that a letter (Ext.M2) was issued to

the petitioner on account of this conduct. MW1 was

present at the time of the incident. She has deposed that

on 05.04.2008, some of the employees were on leave

and only three single window counters were functioning.

Several customers had assembled at the hall and were

making noise. The petitioner had told the customers to

make complaint to the Manager that there were only three

3664

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

single window counters where there should have been

four. MW1 had told him not to instigate the customers.

The petitioner reported that she has no right to instruct

him so. She saw him handing over a paper to one of the

customers to make a complaint in the matter. MW1 had

been cross-examined by the petitioner. During cross-

examination further details regarding the conduct of the

petitioner is revealed. MW1 has stated that when the

petitioner told her that she has no right to question him,

the Assistant Manager who was coming out from the

systems room had told him that she has got every right to

give such instruction to him. She has stated that as an

Officer of the bank to maintain the image of the bank and

since the Manager and the Assistant Manager were doing

their duty in their rooms and she was only person who

was present in the hall, she had tried to dissuade the

petitioner from resorting to such misconduct.

13.

When the evidence of MW1 is taken into account,

it could be seen that there is no reason to disbelieve her

version. As could be seen, immediately after the incident,

the petitioner was served with a memo in the form of a

letter. It is unlikely that such a charge would have been

raised by the Management if not for the conduct of the

petitioner on the occasion, The petitioner is also a staff of

the bank, is a part of the establishment and is expected to

keep the reputation of the establishment intact. Rather

than trying to pacify the customers who have become

impatient on account of the reduced number of single

window counters in the absence of some of the employees,

the petitioner had been trying to instigate them to make a

complaint against the bank. Such conduct of the petitioner

was certainly not befitting that of a disciplined and sincere

employee of the bank. There is no reason to interfere with

the finding of Charge No. 2 against the petitioner also.

14.

The third and most severe charge against the

petitioner is that he defied the instructions given by the

superior officers to carry cash box to the ATM counter

close by. Both MW1 as well as MW2 had given evidence

about this. MW1 has stated that on 01.06.2008 she had

requested the Assistant Branch Manager, Sriram to spare

a Peon for taking cash box to the ATM and he had told her

to take the petitioner with her. Accordingly, she had

asked the petitioner to accompany her to the ATM.

However, the petitioner had refused stating that it was

not his duty. She had informed this to the Assistant Branch

Manager and he too had directed the petitioner to

accompany her to the ATM. In spite of this, he refused to

go along with her.

15.

MW2 who was the Assistant Manager of the branch

has spoken about the incident on 30.05.2008. On this day,

she had requested the Assistant Branch Manager to

provide a Peon for taking cash box to the ATM. He asked

her to take the petitioner along with her and she duly told

the petitioner to carry the cash box at 1500 hrs. But he

refused to obey the instructions stating that it is not his

duty. She reported this to the Assistant Branch Manager,

Sriram and he too instructed him to carry the cash box.

Still the petitioner refused stating that it is not his duty.

16.

MW2 has stated during her cross-examination that

the concerned ATM is located only three buildings from

the branch. They used to carry money to the ATM by an

auto-rickshaw. For remittance of cash they used to hire

taxi. The petitioner had questioned MW2 for not using a

taxi to carry money to the ATM counter. She has stated

that since the ATM counter is closeby they were using

the auto-rickshaw. An Officer, one Clerk and one Peon, all

will be traveling in the same auto-rickshaw along with the

cash box.

17.

A perusal of the evidence of MWs 1 and 2 would

show that there is no reason to disbelieve the evidences

of these witnesses regarding the refusal of the petitioner

to carry the cash box. Memos were served on the petitioner

on the relevant dates for the misconduct. Apart from this,

there is the admission made by the petitioner himself in

this respect before this Tribunal. He has stated during his

cross-examination that his objection in carrying the cash

box was that he had to walk all the distance since a vehicle

was not provided. He then stated that even now he is not

prepared to carry the box by walking. Even as admitted by

him, the distance between the Valsaravakkam branch of

the bank and the ATM Centre is a little more than 100 feet.

According to him, it would not be safe to walk with the

cash box. For one thing, as seen from the evidence of

MW2, cash used to be taken to the ATM counter by a

vehicle so there was no question of the petitioner walking,

carrying the cash box. Even assuming that he had to carry

the box he would have been bound to do it when the

nature of his duty is taken into account. It is not the case

of the petitioner that he refused to carry the box because

of its overweight. Risk is part of one’s job and if the job of

the petitioner required carrying cash box he was bound

to do it in spite of the risk. A subordinate staff who is

working as Cash Peon is entitled to Special Pay. It is

considering the nature of his duty, this additional payment

is being made. The petitioner had no justification at all in

refusing to carry the cash box. It was part of his duty and

he was bound to do it. The Enquiry Officer was fully

justified in entering a finding against the petitioner on

Charge No. 3 also.

18.

Now the question is whether the punishment

imposed on the petitioner is disproportionate to the nature

of offence committed by him. So far as the first charge is

concerned, stoppage of increment was the punishment

imposed. Certainly, there was no necessity for such a

punishment when the punishment of compulsory retirement

was being imposed on the petitioner under Charges 2 and

3. The refusal of the petitioner to obey the superior officers

by carrying the cash box seems to be more severe

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3665

misconduct on his part. As already stated even now he is

asserting that he is not willing to carry the cash box which

actually is a part of his duty. With such a person who

gives least consideration for his duty, it would be difficult

to conduct the business of the bank so it is not proper to

reinstate him in service. Compulsory retirement is the

befitting punishment for the petitioner. I do not propose

to interfere with the punishment also.

19.

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 7th March, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined :

For the 1st Party/Petitioner : WW1, Sri S. Nanda Kumar

For the 2nd Party/1st,

: None

2nd & 3rd Management

Documents Marked:

On the petitioner’s side

Ex. No.

Date

Description

Ex.W1

29.11.1984

Appointment order

Ex.W2

08.06.2003

Merit Certificate

Ex.W3

16.07.2008

Show-Cause Notice issued by the

2nd Respondent

Ex.W4

09.08.2008

Reply representation

Ex.W5

30.06.2009

Charge Memo

Ex.W6

21.07.2009

Notice issued by Enquiry Officer

Ex.W7

22.08.2009

Report submitted by Presenting

Officer

Ex.W8

14.09.2009

Explanation submitted by

petitioner

Ex.W9

03.10.2009

Report submitted by Enquiry

Officer

Ex.W10

28.11.2009

Explanation submitted by

petitioner

Ex.W11

19.12.2009

Show-Cause Notice issued by 2nd

Respondent

for

proposed

punishment

Ex.W12

28.12.2009

Objection letter made by the

petitioner

Ex.W13

31.12.2009

Order passed by 2nd Respondent

Ex.W14

Leave sanction application

Ex.W15

Wages slip series

Ex.W16

27.01.2010

Appeal filed by petitioner

Ex.W17

11.06.2010

Order made in WP 11827/2010

Ex.W18

13.08.2010

Order passed by General

Manager/ Appellate Authority

Ex.W19

9/2010

Petition filed under Section 2A of

the ID Act before Conciliation

Officer

Ex.W20

08.12.2010

Reply from the Zonal Office,

Indian Bank

Ex.W21

22.12.2010

Rejoinder Statements filed by the

petitioner

Ex.W22

15.06.2011

Failure report

On the Management’s side

Ex.No.

Date

Description

Ex.M1

27.05.2007

Letter issued to petitioner

Ex.M2

06.04.2008

Letter (memo) issued to petitioner

Ex.M3

07.04.2008

Letter from petitioner requesting

Tamil version of 06.04.2008 memo

Ex.M4

15.05.2008

Letter (memo) issued to petitioner

Ex.M5

29.05.2008

Letter from Petitioner calling for

Tamil version of 15.05.2008 letter

Ex.M6

23.05.2008

Memo issued to petitioner

Ex.M7

07.06.2008

Petitioner’s letter asking for Tamil

version

Ex.M8

30.05.2008

Memo for refusing to bring cash

box

Ex.M9

Management furnishing of Tamil

version of memo dated 16.07.2008

Ex.M10

30.07.2008

Letter from AGM – Kancheepuram

to petitioner

Ex.M11

14.07.2009

Letter from Enquiry Officer to

petitioner

Ex.M12

20.07.2009

Letter from Enquiry Officer to

petitioner

Ex.M13

31.07.2009 & Proceedings of enquiry

01.08.2009

Ex.M14

12.06.2007

Letter from Valsaravakkam branch

to petitioner

Ex.M15

06.04.2008

Letter from Valsaravakkam branch

to petitioner

Ex.M16

23.04.2008

Letter from Valsaravakkam branch

addressed to CO, Kancheepuram

Ex.M17

30.05.2008

Letter from Valsaravakkam branch

to petitioner

3666

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Ex.M18

01.06.2008

Letter from Valsaravakkam branch

to petitioner

Ex.M19

28.11.2008

Letter from Valsaravakkam branch

to CEO, Kancheepuram

Ex.M20

Copy of Attendance Register for

September 2006

Ex.M21

Copy of Attendance Register for

April 2007

Ex.M22

Copy of Attendance Register for

May 2007

Ex.W23

Copy of Attendance Register for

June 2007

Ex.W24

Copy of Attendance Register for

July 2007

Ex.W25

Copy of Attendance Register for

May 2008

Ex.W26

Copy of Attendance Register for

June 2008

Ex.W27

Copy of Attendance Register for

July 2008

Ex.W28

Copy of Attendance Register for

August 2008

Ex.W29

Proceedings of personal hearing

before the Disciplinary

ubZ fnYyh] 30 vizSy] 2014

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New Delhi, the 30th April, 2014

S.O. 1376.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (ID No. 72/2012)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the Industrial

Dispute between the management of Indian Bank and their

workmen, received by the Central Government on 30-4-2014.

[No. L-12011/113/2011-IR(B-II)]

RAVI KUMAR, 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. 72/2012

(In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman)

BETWEEN

The General Secretary

: 1st Party/Petitioner

Indian Bank Employees Union

Union

No. 6, Moore Street,

Mannady Corner

Chennai-600001

AND

The Zonal Manager

: 2nd Party/

Indian Bank

Respondent

Corporate Office

Avvai Shanmugam Salai

Chennai-600014

Appearance:

For the 1st Party/

: Sri J. Thomas Jeyaprabhakaran,

Petitioner Union

Authorized Representative

For the 1st Party/

: M/s. T.S. Gopalan & Co. Advocates

Respondent

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12011/113/2011-IR (B-II)

dated 12.09.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank in reducing the salary and recovering the

alleged excess salary paid to Sri R. Palaniyandi, SR

No. 56994, C/SH, CDPC, Chennai and stoppage of

special increments is legal and justified? If not, what

relief the workman is entitled to?”

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 72/2012 and issued notice to both

sides. The petitioner appeared through authorized

representative and the respondent through its counsel

and filed their claim and counter statement respectively.

The averments in the Claim Statement in brief are

these:

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3667

The petitioner is a recognized Trade Union and is

represented by its General Secretary. Palaniyandi, a member

of the Petitioner Union who was working as Sub-Staff in

the Respondent Bank had passed M.A (History)

Examination conducted by the Annamalai University

during May 1998 under the Open University System. In

terms of the promotion policy settlement signed between

the Federation of Indian Bank Employees’ Union and Bank

Management, sub-staff members are eligible to be

promoted as Clerks on completion of their graduation or

post-graduation. Accordingly, Palaniyandi was promoted

as Clerk on 25.08.1999. Initially he was posted to Neyveli

Block-17 branch, but was subsequently transferred to

CDPC Chennai at his request. In the Bipartite Settlement

dated 27.04.2010, two additional increments were provided

for, for graduation. It was further provided that for those

who acquire post graduation qualification without being

a graduate also two additional increments will be granted

subject to the conditions that the employees who are

registered under the post-graduation courses of Open

University have either passed the foundation/entrance

course or attended the Bachelor’s Preparatory Programme

and they pursued the same course and take the same

examination as the formal stream students. Palaniyandi

was admitted to Masters Degree Course after duly

completing the entrance course for two weeks by

attending the preparatory course classes held at the

University Campus and thereafter passing the entrance

test conducted by the University. Palaniyandi had passed

MA Degree Examination held in May 1998 in 2nd class.

Thereafter on his request to the Circle Office two additional

increments were sanctioned to Palaniyandi w.e.f.

01.05.2010. He had given a representation requesting to

sanction the increments with retrospective effect since he

had been promoted on 25.08.1999 after passing MA Degree

in May 1998. While awaiting the reply to the representation

he was served with a communication stating that he had

not fulfilled the conditions as stipulated in the Bipartite

Settlement and is not eligible for special increments. The

Head Office had directed to cancel the increments already

sanctioned and to recover the excess salary paid. The

action of the Respondent is not justified since Palaniyandi

had undergone the entrance course held at the University

and was admitted to the MA Degree only after passing

entrance test. In any case, the Respondent was not justified

in directing to recover the amount already received by

Palaniyandi consequent to sanction of two special

increments to him. An order may be passed holding that

the action of the Management in reducing the salary and

recovering the salary already paid to Palaniyandi is illegal

and unjustified and also directing the Respondent to desist

from recovering any amount as excess amount and to

return the excess amount already recovered and to re-fix

his wages by granting two additional increments with

retrospective effect from 02.06.2005.

The Respondent has filed Counter Statement

contending as follows:

By the 8th Bipartite Settlement dated 02.06.2005 it

was provided that a non-subordinate employee who

acquires graduation/post graduation qualification from

Universities/Open universities which are recognized by

the University Grants Commission will be considered as

having acquired graduate qualification and will be eligible

for two additional increments for graduation subject to

the conditions that employees who register under

Graduation /Post-Graduation Courses of Open University

have either passed the foundation / entrance course or

attended the Bachelor’ Preparatory Programme and

pursued the same course and had taken the same

examination as the formal stream students w.e.f. 02.06.2005.

This was later modified by which Post Graduates who

acquired qualification without being a graduate will be

granted two additional increments for graduation subject

to the condition that the employee who have registered

under the Post Graduate Courses of Open University have

passed the foundation / entrance course or attended the

Bachelor’s Preparatory Programme and pursued the same

course and have taken the same examination as the formal

stream students. Palaniyandi had directly acquired Masters

Degree in History from Annamalai University in May 1998.

He made a representation that he had satisfied the

stipulations for grant of two increments. Based on this,

declaration on its face value, increments were sanctioned

to him. Later, on reference made to the Annamalai

University it was revealed that Palaniyandi had not

attended and passed the foundation / entrance course or

attended the Bachelor’s Preparatory Programme.

Consequently, the grant of additional increments was

withdrawn w.e.f. August 2001. As the increment earlier

granted was on the basis of mis-representation the amount

paid was proposed to be recovered. The petitioner is not

entitled to any relief.

The evidence in the case consists of documents

marked as Ext.W1 to Ext.W12 and Ext.M1 to Ext.M9. No

oral evidence was adduced by either side.

The points for consideration are :

(i)

Whether the Respondent is justified in reducing the

salary and recovering the excess salary paid to

Palaniyandi and in cancelling the two special

increments granted to him?

(ii)

What is the relief to which Palaniyandi is entitled?

The Points

Palaniyandi, a member of the Petitioner Union was

working as Sub-Staff with the Respondent. He had acquired

Post Graduate qualification from Annamalai University in

the examination held in May 1998 without being a

Graduate. As per the Bipartite Settlement dated 27.04.2010

entered into between the Employees’ Federation and the

Respondent, employees who acquire Post Graduation

3668

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

qualification without being a Graduate will be granted two

additional increments for Graduation / Graduation Pay as

the case may be subject to the following conditions :

(i)

Employees registered under Post Graduation

Courses of Open University have either passed the

foundation/entrance course or attended the

Bachelor’s Preparatory Programme.

(ii)

They pursue the same course and take the same

examination as the formal stream students.

Palaniyandi, on acquiring his Masters Degree had

been promoted as clerk on the basis of the terms of the

Promotion Policy Settlement. He had requested to the

Respondent for two additional increments, also on the

basis of his newly acquired qualification and this has been

granted also w.e.f. 01.05.2010. However, subsequently he

received a communication from the Respondent to the

effect that he has managed to get the two additional

increments on the basis of mis-representation and that

the additional increments are cancelled. Palaniyandi was

also directed to remit back the excess amount drawn by

him on the basis of the two additional increments granted

to him. The stand of the Respondent is that Palaniyandi

though acquired Post Graduation qualification had not

complied with the conditions stipulated in Clause-34 of

the Bipartite Settlement and therefore he is not eligible for

two additional increments. According to the petitioner,

the stand of the Respondent is without any basis.

According to it, Sri Palaniyandi is eligible for two additional

increments since he had acquired qualification after

complying with the conditions in the Bipartite Settlement.

It is not in dispute under which conditions an

employee who acquires Post Graduate degree becomes

eligible for two additional increments. The only question

to be considered is whether the stand of the management

that Palaniyandi had not complied with the conditions in

Clause-34 of the Bipartite Settlement dated 02.06.2005 as

modified on 27.04,.2010 is correct. The petitioner has

produced the relevant documents in support of his case.

Ext.W1 is the copy of the circular given by the Respondent

alongwith the relevant portion of the Bipartite Settlement

containing the modified clause regarding sanction of two

additional increments for those employees who acquired

Post Graduate qualification without being a Graduate.

Ext.W2 is the copy of the representation given by

Palaniyandi to the Management stating that he has

successfully completed his MA (History) course and that

he may be sanctioned the eligible increments. He has stated

in this that he has passed the entrance test for those

without under-graduate degree under Open University

System and had taken the same syllabus and exam

prescribed for the Post Graduate students of the regular

stream. Ext.W7 is the copy of the letter written by the

Chief Manager to CDPC, Chennai where Palaniyandi was

working congratulating Palaniyanadi for his success and

also with copy to the Circle Office directing it to release

any eligible increment payable to Palaniyandi on acquiring

his Post Graduate qualification. On the basis of this, the

Zonal Office has written to the Chief Manager of CDPC,

Chennai sanctioning two additional increments to

Palaniyandi w.e.f. 15.06.2010, as seen from Ext.W8.

Ext.W10 is the letter written by Palaniyandi to the

Assistant General Manager to sanction increments with

retrospective effect as per the provision of the Bipartite

Settlement dated 02.06.2005.

10.

It was after Palaniyandi has written Ext.W10 letter,

the Zonal Office has written to the branch of Palaniyandi

stating that as per verification report received from

Annamalai University Palaniyandi has not fulfilled the

conditions as stipulated in the Bipartite Settlement and

therefore is not eligible for the two special increments.

Basic Pay of the Palaniyandi was reduced as a result of

the cancellation of the increments. The branch was given

direction to recover excess salary drawn by Palaniyandi

consequent to the grant of two additional increments.

11.

Is there any justification for the Respondent in

cancelling the two increments given and directing recovery

of the amount drawn consequent to the grant of two

additional increments? On going through the documents,

it could be seen that Palaniyandi, the aggrieved worker

has acquired Post Graduation Qualification on compliance

with the modified stipulations in Clause-34 of the Bipartite

Settlement. It has been alleged by the Respondent that

it was accepting the representation given by the employee

on face value, without verifying the correctness of the

representation that the two increments were sanctioned

and that on later verification, this was found to be mis-

representation. While making such a statement the

Respondent was referring to Ext.W2, the request made by

him for sanction of the eligible increments. Ext.W3 is the

communication from Annamalai University regarding

attaining of qualification by Palaniyandi. The University

has informed in this that the employee was offered Masters

Degree after completing the age of 21 years and passing

the entrance test without under-graduate degree under

Open University System. It further informed that after

passing the entrance test, the candidates including

Palaniyandi were given admission to Post-Graduate First

Year course and that they had taken the same syllabus

and examinations prescribed for the Post Graduate

students of regular stream. The copy of the Hall Ticket for

the entrance test has been produced by the petitioner and

marked as Ext.W4. Ext.W6 is the provisional certificate

issued to Palaniyandi stating that he has qualified for the

Degree of Master of Arts in History. The copy of the

original of Ext.W3 is seen produced by the Respondent

also and marked as Ext.M6. This document very well

reveals that Palaniyandi had undergone a course and had

written entrance test and it was only after passing this

test he was offered admission to Post Graduate course by

¹Hkkx II—[k.M 3(ii)º

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3669

the University. So, the admission of Palaniyandi to

MA (History) Degree Course and acquiring the degree is

in accordance with the stipulation given in the modified

Clause-34 of the Bipartite Settlement. Apart from the

promotion given to him, Palaniyandi was entitled to the

two additional increments also on the basis of the Bipartite

Settlement. So there was no justification for the

cancellation of the two increments by the Respondent.

Even more unjust is the direction given by the Respondent

to recover the amount already drawn by Palaniyandi

consequent to the grant of two additional increments. The

Respondent is liable to withdraw the cancellation of the

two additional increments.

12.

The prayer in the Claim Statement is to grant the two

additional increments with retrospective effect from

02.06.2005. The concerned employee has acquired the

qualification in May 1998. He was promoted as Clerk in

August 1999. Increments granted as per Ext.W8 was w.e.f.

15.06.2010, the date of the annual increment. The modified

Bipartite Settlements stipulating for payment of two

increments for Post Graduation qualification without being

a graduate is to take effect from 02.06.2005 even as per the

Counter Statement. So, the concerned employee is entitled

to the benefit of the settlement from 02.06.2005. The

employee is eligible for two additional increment from this

date.

13.

Accordingly, an order is passed as follows:

The Respondent shall re-fix the wages of

R. Palaniyandi by granting him two additional increments

with effect from 02.06.2005 and shall pay the arrears of

wages.

The reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 4th March, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined :

For the 1st Party/Petitioner Union

: None

For the 2nd Party/Management

: None

Documents Marked :

On the petitioner’s side :

Ex.No.

Date

Description

Ex.W1

20.05.2010

HO/HRM Dept. Circular No. 29/

2010-11 (with the 1st page and

relevant page)

Ex.W2

Nil

Request from Sri R. Palaniyandi,

requesting for sanctioning of

graduation increment

Ex.W3

06.09.2010

Letter from Annamalai University

addressed to Sri R. Palaniyandi

Ex.W4

Copies of ID card and hall ticket

for entrance test of Sri R.

Palaniyandi

Ex.W5

Copy of entrance examination hall

ticket

Ex.W6

09.11.1998

Copy of provisional certificate of

MA Degree of Sri R. Palaniyandi

Ex.W7

07.12.2010

Letter from HRM Deptt. For

noting down the qualification

acquired by Sri R. Palaniyandi

Ex.W8

09.03.2011

Letter from Zonal Office (North),

Chennai

sanctioning

two

increments for acquiring post

graduation qualification

Ex.W9

25.05.2011

Letter from Sri R. Palaniyandi for

retrospective effect sanction of

increments

Ex.W10

19.08.2011

Letter from Zonal office (North),

Chennai cancelling the increments

sanctioned already

Ex.W11

23.08.2011

Letter from Indian Bank

Employees’ Union, Chennai

addressed to ALC, Chennai

raising the dispute over the

withdrawal of increments

Ex.W12

10.10.2011

Counter reply submitted by Zonal

Office (North), Chennai for the ID

raised by the Union

On the Respondent’s side :

Ex.No.

Date

Description

Ex.M1

13.05.2010

Indian Bank – HRM Dept. –

Extract of IX Bipartite Settlement

– HRM – 21/2010-11 dated

13.05.2010

Ex.M2

15.05.2010

Indian Bank – HRM Dept. – IX

BPS – HRM – 26/2010-11 dated

15.05.2011 – Payment of arrears

to Award Staff – clarification

Ex.M3

13.09.2010

Representation of petitioner

Ex.M4

20.07.2011

Letter from Indian Bank, Head

Office to Indian Bank, ZO,

Chennai-North

Ex.M5

29.07.2011

Letter from Indian Bank, Chennai-

North to Indian Bank, H.O. –

HRM Deptt. Chennai-600001 –

enclosing letter from Indian Bank,

3670

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Chief Manager-HRF to Indian

Bank C.V.P.C., Chennai reg.

Palaniyandi

Ex.M6

06.09.2010

Copy of certificate from Annamalai

University, DDE, Open University

System to R. Palaniyandi – signed

for Director

Ex.M7

18.11.2010

Letter from Controller of

Examinations,

Annamalai

University to Branch Manager,

Indian Bank, Annamalai Nagar

Ex.M8

02.06.2005

8th Bipartite Settlement – Extract

– Clause-34 – “Graduation Pay”.

Ex.M9

27.04.2010

9th Bipartite Settlement – Extract

– Clause – 11 (XVI)

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New Delhi, the 30th April, 2014

S.O. 1377.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 76/2012)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the industrial

dispute between the management of Indian Bank and their

workmen, received by the Central Government on 30-4-2014.

[No. L-12011/110/2012-IR(B-II)]

RAVI KUMAR, 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. 76/2012

(In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman)

BETWEEN

The General Secretary

: 1st Party/

Indian Bank Employees Union

Petitioner Union

No. 6, Moore Street, Mannady Corner

Chennai-600001

AND

The Zonal Manager

: 2nd Party/

Indian Bank

Respondent

Corporate Office

Avvai Shanmugam Salai

Chennai-600014

Appearance :

For the 1st Party/

: Sri J. Thomas Jeyaprabhakaran,

Petitioner Union

Authorized Representative

For the 1st Party/

: M/s T.S. Gopalan & Co. Advocates

Respondent

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12011/110/2011-IR (B-II)

dated 21.09.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank in reducing the salary and to recover the alleged

excess salary paid to Sri K. Gunasekaran SR No.

55590/CL-SH Udayarpalayam and stoppage of 2

special increments is legal and justified? What relief

the workman is entitled to?”

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 76/2012 and issued notice to both

sides. The petitioner appeared through authorized

representative and the respondent through its counsel

and filed their claim and counter statement respectively.

The petitioner has filed a rejoinder after the Counter

Statement was filed.

The averments in the Claim Statement in brief are

these:

The petitioner is a recognized Trade Union and is

represented by its General Secretary. Gunasekaran, a

member of the Petitioner Union who was working as Sub-

Staff in the Respondent Bank had passed M.A (History)

Examination conducted by the Annamalai University

during May 2000 under the Open University System. In

terms of the promotion policy settlement signed between

the Federation of Indian Bank Employees’ Union and Bank

Management, sub-staff members are eligible to be

promoted as Clerks on completion of their graduation or

post-graduation. Accordingly, Gunasekaran was promoted

as Clerk on 03.08.1994. Initially he was posted to Kallakudi

branch but was subsequently transferred to

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3671

Udayarpalayam branch. In the Bipartite Settlement dated

27.04.2010, two additional increments were provided for,

for graduation. It was further provided that for those who

acquire post graduation qualification without being a

graduate also two additional increments will be

granted subject to the conditions that the employees

who are registered under the post-graduation courses of

Open University have either passed the foundation/

entrance course or attended the Bachelor’s Preparatory

Programme and they pursued the same course and had

taken the same examination as the formal stream students.

Gunasekaran was admitted to Masters Degree Course after

duly completing the entrance course for two weeks by

attending the preparatory course classes held at the

University Campus and thereafter passing the entrance

test conducted by the University. Gunasekaran had passed

MA Degree Examination held in May 2000. Thereafter on

his request to the Circle Office two additional increments

were sanctioned to Gunasekaran w.e.f. 02.06.2005. While

so, he was served with a communication stating that he

had not fulfilled the conditions as stipulated in the Bipartite

Settlement and is not eligible for special increments. The

Head Office had directed to cancel the increments already

sanctioned and to recover the excess salary paid. The

action of the Respondent is not justified since Gunasekaran

had undergone the entrance course held at the University

and was admitted to the MA Degree only after passing

entrance test. In any case, the Respondent was not justified

in directing to recover the amount already received by

Gunasekaran consequent to sanction of two special

increments to him. An order may be passed holding that

the action of the Management in reducing the salary and

recovering the salary already paid to Gunasekaran is illegal

and unjustified and also directing the Respondent to desist

from recovering any amount as excess amount and to

return the excess amount already recovered and to re-fix

his wages by granting two additional increments with

retrospective effect from 02.06.2005.

The Respondent has filed Counter Statement

contending as follows:

By the 8th Bipartite Settlement dated 02.06.2005 it

was provided that a non-subordinate employee who

acquires graduation/post graduation qualification from

universities/open universities which are recognized by the

University Grants Commission will be considered as having

acquired graduate qualification and will be eligible for two

additional increments for graduation subject to the

conditions that employees who register under Graduation/

Post-Graduation Courses of Open University have either

passed the foundation / entrance course or attended the

Bachelor’ Preparatory Programme and pursued the same

course and had taken the same examination as the formal

stream students, w.e.f. 02.06.2005. This was later modified

by which Post Graduates who acquired qualification

without being a graduate will be granted two additional

increments for graduation subject to the condition that

the employee who have registered under the Post Graduate

Courses of Open University have passed the foundation /

entrance course or attended the Bachelor’s Preparatory

Programme and pursued the same course and have taken

the same examination as the formal stream students.

Gunasekaran had directly acquired Masters Degree in

History from Annamalai University in May 2000. He made

a representation that he had satisfied the stipulations for

grant of two increments. Based on this declaration, on its

face value, increments were sanctioned to him. Later, on

reference made to the Annamalai University it was revealed

that Gunasekaran had not attended and passed the

foundation / entrance course or attended the Bachelor’s

Preparatory Programme. Consequently, the grant of

additional increments was withdrawn w.e.f. August 2001.

As the increment earlier granted was on the basis of mis-

representation the amount paid was proposed to be

recovered. The petitioner is not entitled to any relief.

The evidence in the case consists of documents

marked as Ext.W1 to Ext.W9 and Ext.M1 to Ext.M7. No

oral evidence was adduced by either side.

The points for consideration are :

(i)

Whether the Respondent is justified in reducing the

salary and recovering the excess salary paid to

Gunasekaran and cancelling the two special

increments?

(ii)

What is the relief to which Gunasekaran is entitled?

The Points

Gunasekaran, a member of the Petitioner Union was

working as Sub-Staff with the Respondent. He had acquired

Post Graduate qualification from Annamalai University in

the examination held in May 2000 without being a

Graduate. As per the Bipartite Settlement dated 27.04.2010

entered into between the Employees’ Federation and the

Respondent, an employee who acquire Post Graduation

qualification without being a Graduate will be granted two

additional increments for Graduation/Graduation Pay as

the case may be subject to the following conditions :

(i)

Employees registered under Post Graduation

Courses of Open University have either passed the

foundation/entrance course or attended the

Bachelor’s Preparatory Programme.

(ii)

They pursue the same course and take the same

examination as the formal stream students.

Gunasekaran, on acquiring his Masters Degree had

been promoted as clerk on the basis of the terms of the

Bipartite Settlement. He had requested to the Respondent

for two additional increments on the basis of his newly

acquired qualification and this has been granted also w.e.f.

02.06.2005. However, subsequently he received a

communication from the Respondent to the effect that he

has managed to get the two additional increments on the

3672

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

basis of mis-representation and that the additional

increments are cancelled. Gunasekaran was also directed

to remit back the excess amount drawn by him on the

basis of the two additional increments granted to him. The

stand of the Respondent is that Gunasekaran, though

acquired Post Graduation qualification had not complied

with the conditions stipulated in the Bipartite Settlement

and therefore he is not eligible for two additional

increments. According to the petitioner, the stand of the

Respondent is without any basis. According to it, Sri

Gunasekaran is eligible for two additional increments since

he had acquired qualification after complying with the

conditions in the Bipartite Settlement.

It is not in dispute under which conditions an

employee who acquires Post Graduate degree becomes

eligible for two additional increments. The only question

to be considered is whether the stand of the management

that Gunasekaran had not complied with the conditions in

the Bipartite Settlement dated 02.06.2005 as modified on

27.04.2010 is correct. The petitioner has produced the

relevant documents in support of his case. Ext.W1 is the

copy of the circular given by the Respondent alongwith

the relevant portion of the Bipartite Settlement containing

the modified clause regarding sanction of two additional

increments for those employees who acquired Post

Graduate qualification without being a Graduate. Ext.W2

is the copy of the representation given by Gunasekaran to

the Management stating that he has successfully

completed his MA (History) course and that he may be

sanctioned the eligible increments for graduation. He has

stated in this that he has passed the entrance test for

those without under-graduate degree under Open

University System and had taken the same syllabus and

examination prescribed for the Post Graduate students of

the regular stream. Ext.W5 is the copy of the letter written

by the Chief Manager to the Manager of Udayarpalayam

branch where Gunasekaran was working congratulating

him for his success and also with copy to the Circle Office

directing it to release any eligible increment payable to

Gunasekaran on acquiring his Post Graduate qualification.

On the basis of this, the Zonal Office has written to the

Manager of Udayarpalayam branch sanctioning two

additional increments to Gunasekaran w.e.f. 01.06.2005, as

seen from Ext.W8.

10.

Subsequently, the Zonal Office has written to the

branch of Gunasekaran stating that as per verification

report received from Annamalai University, Gunasekaran

has not fulfilled the conditions as stipulated in the Bipartite

Settlement and therefore is not eligible for the two special

increments. Basic Pay of Gunasekaran was reduced as a

result of the cancellation of the increments. The branch

was given direction to recover excess salary drawn by him

consequent to the grant of two additional increments.

11.

Is there any justification for the Respondent in

cancelling the two increments given and directing recovery

of the amount drawn consequent to the grant of two

additional increments? On going through the documents,

it could be seen that Gunasekaran, the aggrieved worker

has acquired Post Graduation Qualification on compliance

with the modified stipulations in Clause-34 of the Bipartite

Settlement. It has been alleged by the Respondent that

it was accepting the representation given by the employee

on face value, without verifying the correctness of the

representation that the two increments were sanctioned

and that on later verification, this was found to be mis-

representation. While making such a statement the

Respondent was referring to Ext.W2, the request made by

him for sanction of the eligible increments. Ext.W3 is the

communication from Annamalai University regarding

attaining of qualification by Gunasekaran. The University

has informed in this that the employee was offered Masters

Degree after completing the age of 21 years and passing

the entrance test without under-graduate degree under

Open University System. It further informs that after

passing the entrance test, the candidates including

Gunasekaran were given admission to Post-Graduate First

Year course and that they had taken the same syllabus

and examinations prescribed for the Post Graduate

students of regular stream. The copy of the provisional

certificate given to Gunasekaran is seen produced by the

Respondent and is marked as Ext.M3. Ex.M5 is the copy

of the letter from Annamalai University to the petitioner.

This document very well reveals that Gunasekaran had

undergone a course and had written entrance test and it

was only after passing this test he was offered admission

to Post Graduate course by the University. So, the

admission of Gunasekaran to MA (History) Degree Course

and acquiring the degree is in accordance with the

stipulation given in the modified Clause-34 of the Bipartite

Settlement. Apart from the promotion given to him,

Gunasekaran was entitled to the two additional increments

also on the basis of the Bipartite Settlement. So there was

no justification for the cancellation of the two increments

by the Respondent. Even more unjust is the direction given

by the Respondent to recover the amount already drawn

by Gunasekaran consequent to the grant of two additional

increments. The Respondent is liable to withdraw the

cancellation of the two additional increments and also

repay the amount, if any, recovered from Gunasekaran as

excess pay.

12.

The prayer in the Claim Statement is to grant the two

additional increments with retrospective effect from

02.06.2005. This is the date from which two additional

increments were granted earlier. The employee is eligible

for two additional increments from this date.

13.

Accordingly, an order is passed as follows:

The Respondent shall re-fix the wages of

K. Gunasekaran by granting him two additional increments

with effect from 02.06.2005 and shall pay him the arrears of

wages.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3673

The reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 4th March, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined :

For the 1st Party/Petitioner Union

: None

For the 2nd Party/Management

: None

Documents Marked :

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

20.05.2010

HO/HRM Dept. Circular No. 29/

2010-11 (with the 1st page and

relevant page)

Ex.W2

26.06.2010

Request from Sri K. Gunasekaran

requesting for sanctioning of

graduation increment

Ex.W3

16.06.2010

Letter from Annamalai University

addressed to Sri K. Gunasekaran

Ex.W4

29.06.2010

Letter from Zonal Office, Trichy

addressed

HO/HRM

Department

Ex.W5

12.11.2010

Letter from HRM Deptt. For

noting down the qualification

acquired by Sri K. Gunasekaran

addressed to Udayarpalayam

branch

Ex.W6

27.12.2010

Letter from Zonal Office, Trichy

addressed to Udayarpalayam

branch sanctioning two stages of

Professional Qualification pay

Ex.W7

20.07.2011

Letter from HRM Deptt.

addressed to Zonal Office, Trichy

cancelling the increments

sanctioned to Sri K. Gunasekaran

Ex.W8

22.09.2011

Letter from Indian Bank

Employees’ Union, Chennai

addressed to ALC, Chennai

raising the dispute over the

withdrawal of increments

Ex.W9

15.10.2011

Counter reply submitted by Zonal

Office (North), Chennai for the ID

raised by the Union

On the Respondent’s side

Ex.No.

Date

Description

Ex.M1

13.05.2010

Indian Bank – HRM Dept. –

Extract of IX Bipartite Settlement

– HRM – 21/2010-11 dated

13.05.2010

Ex.M2

15.05.2010

Indian Bank – HRM Dept. – IX

BPS – HRM – 26/2010-11 dated

15.05.2011 – Payment of arrears

to Award Staff – clarification

Ex.M3

29.09.2000

Provisional Certificate issued by

Annamalai University – to K.

Gunasekaran – Passed MA in

History in May 2010

Ex.M4

17.07.2010

Letter from Respondent to Branch

(Sic)

Manager, Indian Bank, Annamalai

Nagar to arrange to verify the

01.07.2010

genuineness of the certificate

Ex.M5

20.08.2010

Reply from Controller of

Examinations,

Annamalai

University to the petitioner

Ex.M6

02.06.2005

8th Bipartite Settlement – Extract

– Clause-34 – “Graduation Pay”

Ex.M7

9th Bipartite Settlement – Extract

– Clause-11 (XVI)

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New Delhi, the 30th April, 2014

S.O.

1378.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 09/2013)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the industrial

dispute between the management of Indian Bank and their

workmen, received by the Central Government on 30-4-2014.

[No. L-12012/16/2012-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Thursday, the 27th February, 2014

Present : K.P. PRASANNA KUMARI,

Presiding Officer

Industrial Dispute No. 9/2013

(In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman)

3674

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

BETWEEN :

Sri A. Anbalagan

: 1st Party/

Petitioner

AND

The Deputy General Manager

: 2nd Party/

Indian Bank, Circle Office

Respondent

LRN Colony, Saradha College Road

Salem-636007

Appearance :

For the 1st Party/

: M/s J. Suresh, Authorized

Petitioner

Representative

For the 2nd Party/

: M/s T.S. Gopalan & Co.,

Management

Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12012/16/2012-IR (B-II)

dated 24.01.2013 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank, Circle Office, Salem in imposing the

punishment of “Dismissal without notice” upon Sri

A. Anbalagan, an Ex-Clerk/Shroff of Namakkal

Branch, Indian Bank w.e.f. 25.11.2009 is legal and

justified? What relief the workman is entitled to?”

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 9/2013 and issued notice 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 after the

counter statement was filed.

The averments in the Claim Statement in brief are

these:

The petitioner had joined the service of the

Respondent Bank as Sub-Staff in 1985. In 1993 he was

promoted as Clerk and was posted at Namakkal Branch.

He has been discharging his duties sincerely and

efficiently. On 09.09.2008, while working at Namakkal

Branch the petitioner was placed under suspension. A

Show Cause Notice was issued to him. The petitioner had

given reply to the notice. In spite of that a charge sheet

was served on the petitioner alleging that he had un-

authorizedly and clandestinely withheld the pass book of

one Nagammal, a customer of the branch from the 1st week

of January 2008 till June 2008 and had refused to return it

to her in spite of several request made by her, that while

holding the pass book the petitioner had fraudulently made

two cash withdrawals of Rs. 5,000/- each, one on 14.01.2008

and the other on 24.01.2008 and that payments were made

by him despite deficiencies in the withdrawal slips. An

enquiry was conducted and a report was given finding

the petitioner guilty of the charges. The petitioner was

asked to submit his comments on the findings. Though

the petitioner had submitted his comments, the

Disciplinary Authority had held the petitioner guilty of

the charges and had imposed the punishment of

dismissal without notice by order dated 25.11.2009. The

enquiry against the petitioner was not conducted in a fair

and proper manner. The petitioner has not committed the

alleged misdeeds. The petitioner was dismissed from

service without any justification. An order may be passed

holding that the dismissal of the petitioner from service

without notice is illegal and also directing the Respondent

to reinstate him into service with back wages and all other

benefits.

The Respondent has filed Counter Statement

contending as follows:

The Respondent is a nationalized bank having

branches throughout the country. The bank had

introduced single window operation system where all

services offered by the bank will be delivered at a single

counter. When a single window system is in operation,

the instrument for payment does not need any clearance

at Officer’s level for cheques upto Rs. 20,000/-. In case of

withdrawal by using withdrawal slip, the account holder

should personally come to the branch or should give an

authorization letter to the person who presents the

withdrawal slip and the account holder or the authorized

person should come to the branch with the pass book.

The maximum withdrawal amount by a third party through

withdrawal slips is restricted to Rs. 1,000/-. In the year

2008, the petitioner was working as Clerk-cum-Shroff in

the Namakkal branch of the Respondent Bank. In the last

week of May 2008 Nagammal who was earlier working as a

Sweeper and was drawing pension through her SB account

in the Respondent Bank had represented that the petitioner

had taken her pass book and had not returned it. On

enquiry with the petitioner he had stated that it was

misplaced somewhere. Nagammal, on verification of the

account informed the Manager of the Branch that there is

shortage in the amount shown as balance in her account.

She stated that she was drawing Rs. 1,300/- only per month

and that she had never withdrawn @ Rs. 5,000/- per month.

On 14.01.2008 and 24.01.2008 on which dates withdrawals

of @ Rs. 5,000/- each were made the petitioner was the

single window operator and the withdrawals have been

passed in his ID. Later, the Manager of the bank noticed

that two remittances @ Rs.5,010/- each were made to the

account of Nagammal. On 09.06.2008, Nagammal informed

that no one had remitted amount on her behalf. Preliminary

investigation revealed that petitioner had fraudulently

withdrawn two amounts and had later made remittances

to make good the shortage. On 26.07.2008, the petitioner

had confessed to have withdrawn the amounts. A Show

Cause Notice was issued to him and an enquiry was

conducted subsequently. The petitioner was found

guilty of the charges and the punishment of dismissal

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3675

from service without notice was imposed on him. The

petitioner is not entitled to any relief.

The petitioner has filed a rejoinder after the Counter

Statement was filed.

The evidence in the case consists of oral evidence

of WW1 and documents marked as Ext.W1 to Ext.W33

and Ext.M1 to Ext.M7.

The points for consideration are :

(i)

Whether the action of the Management in imposing

the punishment of dismissal without notice on the

petitioner w.e.f. 25.11.2009 is legal and justified?

(ii)

What is the relief to which the petitioner is entitled?

The Points

The petitioner had admittedly entered the service of

the Bank as Sub-Staff in 1985 and was promoted as Clerk

and posted at Namakkal Branch in 1993. While he was

working at the Bank one Nagammal who was earlier

working in the Bank as Sweeper and was drawing her

pension through her SB A/c in the bank had complained

that the petitioner who had obtained her pass book had

failed to return it in spite of repeated requests.

Subsequently it was noticed that two withdrawals of

Rs. 5,000/- each were made from the account of Nagammal,

while the petitioner was working as single window

operator. Nagammal had denied to have made these

withdrawals. On preliminary enquiry, the Bank has issued

charge memo on the petitioner alleging that he had

unauthorizedly retained the pass book of Nagammal and

that while he was having the pass book with him he had

clandestinely made two withdrawals of Rs. 5,000/- each

from the account of Nagammal without adhering to the

guidelines for single window operation system.

There is no case for the petitioner that enquiry was

not conducted in a fair and proper manner. Both sides

have chosen to mark documents including the enquiry

proceedings and have relied upon these to advance their

arguments. The petitioner was examined before this

Tribunal only to advance his case that he was not

employed gainfully after he was dismissed from service

by the Respondent

10.

The only question for consideration is whether there

is any justification in the dismissal of the petitioner from

service by the Respondent. The main charge against the

petitioner is that he had clandestinely withdrawn Rs. 5,000/-

each from the account of Nagammal on two different dates.

It is also alleged that he had unauthroizedly retained the

pass book of Nagammal and had refused to return it to her

in spite of requests made by her. Ext.W1 is the Show Cause

Notice that was issued to the petitioner after detection of

the alleged misconduct and Ext.W2 is the reply given by

him to the Show Cause Notice. It is clear from Ext.W2 the

reply given that Nagammal, the account holder with SB

Account No. 443833438 was personally known to the

petitioner. In his reply he has stated that since she is

residing in the same street in which he is residing, the

pass book was handed over to him for updating it. In

answer to the allegation that he had retained the pass

book in spite of request from Nagammal he had stated that

due to pressure of work he has forgotten to update the

pass book even after some reminders from Nagammal. That

the petitioner was single window operator on 14.01.2008

and 24.01.2008 also is not disputed by the petitioner. He

has stated in Ext.W2 that due to heavy rush he could not

remember who had tendered the instrument on 14.01.2008

and 24.01.2008. At the same time he has stated that so far

as illiterate customers are concerned it is mandatory that

they should come in person for withdrawals. He has then

added that he has not deviated from the practice followed

by the branch. Ex.W3 is the copy of the order of

suspension served on the petitioner since his reply to the

Show Cause Notice was found unsatisfactory. It was

thereafter charge memo was served on the petitioner and

an enquiry was conducted. The Management had examined

the Assistant Manager of Namakkal branch during the

period as MW1. MW2 was the then Manager of the

Namakkal branch. MW3 is the Inspector of Police of

Fingerprint Bureau who had examined the thumb

impression from found in the withdrawal slip that was used

to withdraw Rs. 5,000/- on two different dates from the

account of Nagammal. MW4 is the Vigilance Officer who

had conducted an enquiry and submitted report. MW5

was previously the Chief Manager of Namakkal branch.

11.

MW1, the Assistant Manager was examined to prove

the document marked as MEX2 in the enquiry proceedings

and marked as Ext.W6 here. MW1 has stated that this was

written by him at the request of the then Senior Manager.

His help was sought since the Senior Manager was from

Karnataka and another Officer was from Kerala. Ext.W6

complaint was written by MW1 at the instance of

Nagammal. It was read over to her. Nagammal at that time

showed the pass book stating that it was a new pass book.

The petitioner seems to have issued a new pass book to

Nagammal after her complaint on the pretext that the

previous one is lost. Nagammal had complained that

amount was withdrawn from her account. There were two

remittances of Rs. 5,010/- each subsequently from Salem.

Nagammal had informed the Vigilance Officer that she had

not given any money to any one at Salem and no one had

repaid money to her through her account also.

12.

MW2 has deposed that the two withdrawal slips of

Rs. 5,000/- each from the SB Account of Nagammal were

made through single window on 14.01.2008 and 24.01.2008

respectively. The two remittances of Rs. 5,010/- each from

Salem were made on 09.06.2008. The attendance register

of the bank of the day was marked as MEX-7 to prove that

the petitioner was not present in the bank on the day but

was availing Casual Leave. This witness has stated that

3676

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Nagammal had given the pass book for updating to the

petitioner. But this was not returned and she had given a

complaint to the Chief Manager and Asstt. Branch

Manager stating that her pass book was not returned. It

was returned after a prolonged delay. She came to know

on getting the pass book regarding the withdrawals of

Rs. 5,000/- each on two different dates. She had then given

a complaint to the Chief Manager.

13.

MW3 has stated that on comparing the admitted

finger impressions of Nagammal with the finger impressions

found in the withdrawal slips used for withdrawing @

Rs. 5,000/- on two different dates, the thumb impressions

in the withdrawal slips were found to be not identical with

any of the admitted finger impressions.

14.

MW4 has stated that he is the one who investigated

the complaint against the petitioner. He has stated that in

the presence of MW1 and another he had questioned

Nagammal. She had told him about the withdrawal of

Rs. 10,000/- from her account on two different occasions.

She has also told him about the retention of the pass book

by the petitioner. According to this witness he had shown

the withdrawal slips to the petitioner and the petitioner

had admitted the guilt. According to MW4, the exact

words spoken by the petitioner were “I have done mistake,

please pardon me”. Though the petitioner was asked to

put it in writing he had refused. So MW1 had taken it

down in the presence of two Officers who were present

and had obtained their signatures. It is for the purpose of

proving the alleged admission also MW2 has examined.

15.

The Authorized Representative of the petitioner has

pointed out that Nagammal on whose complaint the matter

was investigated has not been examined. According to

him in the absence of the evidence of Nagammal there is

no acceptable proof of the alleged misconduct committed

by the petitioner. No doubt, Nagammal is a material witness

to the case and should have been examined. During the

enquiry proceedings attempts seem to have been made to

bring her before the Enquiry Officer to give evidence.

However, since she was not available at the Station the

Management had sought further time but the Enquiry

Officer had closed the evidence since several opportunities

were already given for the purpose.

16.

Even without the evidence of Nagammal, there is

sufficient material to come to the conclusion that the

petitioner or someone with his concurrence must have

withdrawn amounts on two different occasions from the

account of Nagammal. There is the admission by the

petitioner that the pass book of Nagammal was with him at

that time. Admittedly the petitioner was the single window

operator on the dates when withdrawals were made. It is

clear from Ext.W2 reply that Nagammal being a resident of

the same street is a person personally known to him. The

petitioner is aware that if the amount is to be withdrawn

through withdrawals by illiterate customers, they should

come in person for withdrawals. What is stated in Ext.W2

is that because of the rush on 14th and 24th January, 2008

on which dates withdrawals were made there was heavy

rush and he does not remember who has tendered the

instrument. He has no case that Nagammal is a literate

person, on the other hand he knows her to be an illiterate.

MW4 who interrogated Nagammal has deposed that she

is illiterate. Since she is a person known to him personally

he must have remembered it if Nagammal had come to the

Bank for withdrawing the amounts. It is very much clear

from the evidence of MW3 from finger print bureau and

Ext.W5, the report of the finger print bureau that the finger

impressions found in the withdrawal slips were not that

of Nagammal so necessarily someone other than Nagammal

has withdrawn the amount. The guidelines for single

window operation states that withdrawal through

withdrawal slips by a third person should not be above

Rs. 1,000/-. In spite of all this, withdrawals are made at the

rate of Rs. 5,000/- on two different dates while the petitioner

was the single window operator.

17.

The consistent case of Nagammal seems to be that

she was drawing only Rs. 1,300/- per month out of the

pension amount remitted to her account. Ext.W14 the

extract of the pass book would show that Nagammal, without

exception, was withdrawing at the rate of Rs. 1,300/- every

month. This poor woman who was getting a meagre

pension seems to have been spending just Rs. 1,300/- for

her daily expenses every month and retaining the balance

amount in her account for her urgent requirements. It must

have been because of this she was able to tell categorically

to the Manager that she had not withdrawn at the rate of

Rs. 5,000/- from her account on two dates in January 2008.

18.

There is a fact that rather than returning the old

pass book, a new pass book as one in continuation of the

old pass book was issued to Nagammal by the petitioner.

The date on which this was done also is material. After

Nagammal has informed the Manager that she did not

make the withdrawals, two remittances @ Rs. 5010/- each

had come to the account from the branch at Salem. The

remittances were made on 09.06.2008. Nagammal has taken

the stand that there was no one to make remittances to her

account at Salem. It has been pointed out on behalf of the

Management that the petitioner was absent from the Bank

on this particular date. The Vigilance Officer had gone to

Salem and made enquiry and had found that the address

of the person who made the remittances at Salem is a

fictitious one. He was not able to trace the addressee.

Subsequently, he had sent a letter to the addressee and

this had been returned unserved as he could not be traced.

The stand taken by the Management is that the petitioner

himself might have remitted these amounts after the

withdrawals were revealed. It is pointed out that the

distance between Namakkal and Salem is only 80 kms.

19.

Another factor relied upon by the management is

the admission said to have been made by the petitioner

regarding the mistake committed by him. It has been argued

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3677

on behalf of the petitioner that the Investigating Officer

as well as the Manager were not conversant with Tamil,

one being from Kerala and the other from Karnataka. It is

seen from the evidence given by MW2 itself that the help

of MW1 was sought to prepare the complaint of Nagammal

since they were not conversant with the language.

However, it is clear from the evidence of MW2 itself that

though the witness could not write Tamil, he can speak

and understand Tamil perfectly well, so there was no

difficulty for him to make out the words spoken by

petitioner. There is no reason to disbelieve the version of

this witness. So it is clear that some sort of admission was

made by the petitioner regarding the charges against him.

20.

In any case the evidence is clear and speaks of the

misdeed of the petitioner. He was the single window

operator who processed the two withdrawals on the

relevant dates. The finger print report shows that the

withdrawal slips do not contain the thumb impression of

Nagammal. The petitioner, in spite of his knowledge that

Nagammal is not literate had allowed withdrawals even if

by a third person, and that also exceeding the limit. So the

second charge which is the main charge is very much

established. Regarding the retention of the pass book there

is the admission of the petitioner himself in Ext.W2, apart

from the version of the witnesses. It must have been with

clandestine motive the pass book was retained by him.

21.

Now the question is whether the punishment

imposed commensurate with the offence charged, and

whether the punishment is justified in the circumstances.

The petitioner was in service from 1985. There is no case

of any previous misconduct on the part of the petitioner.

When the nature of the offence is taken into account, also

the punishment seems very harsh. A lesser punishment

will meet the ends of justice. So, I am inclined to reduce

the punishment to Compulsory Retirement from service.

22.

Accordingly, the following order is passed:

“The punishment imposed on the petitioner is modified

and reduced to Compulsory Retirement from service”

The reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 27th February, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined :

For the 1st Party/Petitioner

: WW1, Sri A. Anbalagan

For the 2nd Party/Management : None

Documents Marked:

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

09.09.2008

Show Cause Notice issued by CO/

Salem

Ex.W2

26.09.2008

Reply to the Show Cause Notice

Ex.W3

12.12.2008

Charge Sheet issued by CO/Salem

Ex.W4

12.01.2009

29.07.2009

Proceedings of the departmental

enquiry conducted against

30.07.2009

Sri Anbalagan

03.08.2009

04.08.2009

Ex.W5

7/2008

Letter from Mrs. Nagammal,

Namakkal

Ex.W6

26.07.2008

Letter addressed to Investigating

Officer from Mrs. Nagammal

Ex.W7

Withdrawal slips dated 14.01.2008

and 24.01.2008

Ex.W8

05.06.2008

Letter from Mrs. Nagammal to

Branch Manager, Namakkal

Ex.W9

29.07.2008

Investigation report of Mr. L.

Paneerselvam

Ex.W10

Specimen signature card of a/c

28887

Ex.W11

Attendance Register for the

month of June 2008

Ex.W12

Credit challan for the a/c

443883438 dated 09.06.2008

Ex.W13

Teller cash register report for

14.01.2008 and 24.01.2008

Ex.W14

Passbook of a/c 443833438

Ex.W15

01.06.2009

Tamil Nadu Finger Print Bureau

Report

Ex.W16

23.07.2008

Namakkal branch letter to Circle

Office, Salem

Ex.W17

28.07.2008

Letter to Nagaraj, Salem from

Circle Office, Salem

Ex.W18

Envelope addressed to Nagaraj,

Salem

Ex.W19

10.09.2008

Letter from Namakkal branch to

Circle Office, Salem

Ex.W20

26.09.2008

Reply to A. Anbalagan to the

Show Cause Notice

Ex.W21

Statement of a/c of Mrs.

Nagammal for the period from

01.01.2006 to 26.07.2008

Ex.W22

Relevant pages of manual of

instructions on Deposits

Ex.W23

Withdrawal slips dated 01.02.2007

and 04.02.2008

Ex.W24

22.08.2009

Present Officer’s brief

Ex.W25

05.09.2009

Defence summing up

Ex.W26

17.09.2009

Enquiry Officer’s findings

3678

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Ex.W27

29.09.2009

Employees’ comments on Enquiry

Officer’s findings

Ex.W28

31.10.2009

Second Show Cause Notice

Ex.W29

07.11.2009

Reply to the Second Show Cause

Notice

Ex.W30

25.11.2009

Final orders of the Disciplinary

Authority

Ex.W31

21.12.2009

Appeal against the punishment to

the Appellate Authority

Ex.W32

10.07.2010

Orders of the Appellate Authority

Ex.W33

05.11.2010

Petition under Section.2(a) of ID

Act to ALC (C), Chennai

On the Management’s side

Ex.No.

Date

Description

Ex.M1

26.09.2005

Single window system operation

guidelines–Extract–pages 1 to 17

Ex.M2

28.07.2008

Letter from CO, Salem to Mr.

Nagaraj, Salem and cover returned

undelivered (Unopened cover)

RLAD – A – 1432 – Ex.MEX – 13

page no. 70 to 72 in petitioner

typeset and MEX 14 (P.72)

Ex.M3

15.09.2008

Letter from Anbalagan to CO,

Salem requesting time to submit

his explanation

Ex.M4

17.09.2008

Letter from Indian Bank, Circle

Office, Salem granting 3 weeks

time

Ex.M5

24.09.2009

Letter from Anbalagan to Circle

Office, Salem requesting time to

submit reply to the enquiry officer

findings

Ex.M6

01.10.2009

Letter from CO, Salem to

Anbalagan granting time to

submit his reply on the findings

of the enquiry officer

Ex.M7

Statement of Account of

Petitioner – A/c No. 443762828 –

crediting of his PF and Gratuity

dues.

ubZ fnYyh] 30 vizSy] 2014

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New Delhi, the 30th April, 2014

S.O. 1379.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 81/2013)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the industrial

dispute between the management of Indian Bank and their

workmen, received by the Central Government on 30-4-2014.

[No. L-12011/55/2013-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Friday, the 11th April, 2014

Present : K. P. PRASANNA KUMARI,

Presiding Officer

Industrial Dispute No. 81/2013

(In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman)

BETWEEN :

The General Secretary

: 1st Party/

Indian Bank Employees Association

Petitioner Union

(Tamilnadu)

17, Ameerjan Street, Choolaimedu

Chennai-600094

AND

The General Manager (HRM)

: 2nd Party/

Indian Bank, HO:HRM Department

Respondent

Corporate Office

Chennai-600014

Appearance:

For the 1st Party/

: Sri G. Gopal, Authorized

Petitioner Union

Representative

For the 1st Party/

: M/s T.S. Gopalan, Advocates

Respondent

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12011/55/2013-IR (B-II)

dated 07.08.2013 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the Indian Bank management

in respect of transferring Ms. M. Kanakavalli, member

of the Petitioner Union by violating the provisions

of the Periodical Transfer Policy is justified or not?

What relief the workmen is entitled to?”

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3679

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID No. 81/2013 and issued notices to

both sides. The First Party appeared through Authorized

Representative and the Second Party through Advocate

and filed their Claim and Counter Statement respectively.

The averments in the Claim Statement in brief are

these :

The petitioner is a union registered under Trade

Union Act and has substantial following among workmen

in the Respondent Bank. As per the transfer policy of the

Respondent Bank, women employees of and above 50

years of age are exempted from the purview of periodical

transfer policy. Kanakavalli, a member of the Petitioner

Union and was working as a Clerk with the Respondent

Bank had completed the age of 50 years as on 12.05.2012.

However, by transfer order dated 11.12.2012 she was

transferred to Siruseri IT Park Branch under periodical

transfer policy. The transfer order was served on her on

14.05.2012 only. Though a representation was given to

the Management seeking cancellation of the transfer order,

it was not considered. The dispute is raised accordingly.

The Respondent is to be directed to withdraw the transfer

and retransfer Kanakavalli to the original place.

The Respondent has filed Counter Statement

contending as follows:

On 29.06.2001 a settlement was signed on periodical

transfer policy between Management of the Indian Bank

and recognized unions. As per transfer policy female

employees who are of the age of 50 years and above are

not liable to be transferred. Kanakavalli who was working

within Chennai Agglomeration was transferred to another

branch in Chennai Circle. Ever since Kanakavalli had joined

the bank on 02.05.1985 she had remained in the Corporate

Office. She was transferred to Siruseri Branch which is

only 28 kms. from her residence. Kanakavalli had not

crossed the age of 50 years as on the date of transfer. The

transfer was ordered on 30.04.2012 by the Corporate Office.

It is immaterial on which date the transfer order was

actually received by the concerned staff. The claim of the

petitioner is liable to be rejected. An order may be passed

accordingly.

The evidence in the case consists of documents

marked as Ext.W1 to Ext.W9 and Ext. M1 to Ext. M8. No

oral evidence was adduced on either side.

The points for consideration are:

(i)

Whether the transfer of Kanakavalli by the

Management is in violation of its periodical

transfer policy?

(ii) What is the relief to which the concerned

employee is entitled?

The Points

A settlement was arrived at between the Indian Bank

and the Federation of Indian Bank Employees Union

regarding the mode of transfer of the employees. Ext.M1

is the copy of the Memorandum of Settlement on periodical

transfer for Clerical Staff entered into on 29.06.2001 in

between the Management of the Indian Bank and the Bank

Employees’ Unions. Under Clause-6 of this settlement

certain categories of employees are exempted from

periodical transfer. One such category is female employees

who are of the age of 50 years and above.

Kanakavalli on whose behalf the dispute is raised

by the petitioner has been working in HRM Department of

the Corporate Office in Chennai. By Ext.W2 the order dated

11.05.2012 she was transferred to Siruseri IT Park Branch.

The employee seems to have been aggrieved by this. It is

alleged that the transfer is in violation of the settlement

entered into regarding periodical transfer of employees.

The case of the concerned employee is that she has

completed the age of 50 years by the time of the transfer

and therefore she is not liable to be transferred.

The concerned employee has admittedly received

the transfer order on 14.05.2012. According to the

petitioner, the date of receipt of the order is very much

beyond the date on which the concerned employee has

completed the age of 50 years. So there could not be any

doubt that the transfer is in violation of the transfer policy

as per the settlement. The counsel for the Respondent

has referred to the decision of the Apex Court in STATE

OF PUNJAB VS. KHEMI RAM reported in 1969 6 SCC 28

in this respect. It was a case where the order of suspension

on the employee was served on him after the date of his

retirement. The Apex Court has held that it is not on the

date of actual receipt of the order the same becomes

effective but on the date on which the same has been

issued. On the basis of this dictum it has been argued by

the Counsel that the relevant date is the one on which the

order of transfer was made and not the date on which the

same was received by the concerned employee. In the

light of the above dictum laid down by the Apex Court

there cannot be any doubt that the material date is the

date of issue of the transfer order itself and not the date

on which the aggrieved employee had received the transfer

order.

10.

It is apparent from Ext. M1 that a female employee

who is of the age of 50 years and above is exempted from

the purview of periodical transfer. If actually the concerned

employee was aged 50 or above as on the date of transfer

she was eligible for exemption as per Clause-6 of the

transfer policy. So the material question is whether the

concerned employee had completed the age of 50 as on

11.05.2012, the date on which the transfer order was issued.

According to the Respondent the transfer order was issued

on 30.04.2012. But Ext.W2 the order of transfer to the

concerned employee bears the date 11.05.2012 so there is

the date on which the transfer order was issued. The Birth

Certificate of concerned employee is not seen produced.

However, the Date of Birth is available in Ext.W7. The

3680

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

copy of the reply given by the Respondent Bank before

the Assistant Labour Commissioner © in answer to the

dispute raised by the petitioner. As seen from this, the

date of birth of employee is 12.05.1962. The contention

that is raised on behalf of the Respondent is that even if

the transfer order on 11.05.2012, the concerned employee

has not completed the age of 50 years on that date and

she will not fall under the exempted categories of the

periodical transfer policy. In this respect, the wording

used in Ext. M1, the settlement on periodical transfer is

relevant. The wording used in the exemption clause is that

female employees who are of the age of 50 years and above

are exempted from transfer. So to be eligible for exemption

it is enough that the employee completed the age of 50

years and not necessary that she has crossed the age of

50 years. The date of birth of the concerned employee is

12.05.1962. The date of the order of transfer is 11.05.2012.

As on 11.05.2012 the employee has completed the age of

50 years. 12.05.2012 is the date on which she enters the

51 year of her age. It is not the date on which she completes

50 years of age. So 11.05.2012 itself can be taken as the

date on which the concerned employee has completed the

age of 50 years. This being so, she was not liable to be

transferred as if she has completed the age of 50 years on

that date. The concerned employee is entitled to be re-

transferred to the place where she was originally working.

She seems to have been working in the Corporate Office

when she was under the orders of transfer. If there is

vacancy in the Corporate Office, she is to be transferred

to the Corporate Office itself. In the absence of vacancy in

the Corporate Office she can be transferred to a branch in

the closeby area. Accordingly, an award is passed as

follows:

“The Respondent is directed to re-transfer its

employee, Kanakavalli to the Corporate Office, within

a month, if vacancy is available. In the absence of

vacancy in the Corporate Office, the Respondent is

directed to transfer her to a branch in the closeby

area” within the same period”.

The reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 11th April, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1st Party/Petitioner

: None

For the 2nd Party/Management

: None

Documents Marked :

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

05.06.2012

Union letter to ALC, Chennai

IBEA/GEN/167/2010-13 raising an

Industrial Dispute

Ex.W2

11.05.2012

Periodical transfer order to Smt.

Kanakavalli issued by HHh

HO:HRM Dept. Indian Bank to

HO:IRRD

Ex.W3

14.05.2012

Letter from Smt. Kanakavalli to

HO:HRM Deptt.

Ex.W4

04.07.2001

HO:Personnel Deptt. Circular

PRNL:22/2001-02-Transfer of

Clerical Staff at Periodical intervals

with Annexure

Ex.W5

11.06.2012

Asstt. Labour Commissioner letter

No. M.7/12/2012-B-3 invoking

Section 33

Ex.W6

11.06.2012

IBEA (Tn letter IBEA/GEN/169/

2010-13 to HO:HRM Deptt.

requesting not to relieve the

employee on Transfer

Ex.W7

28.06.2012

Indian Bank, HO:HRM letter to

Asstt. Labour Commissioner,

Chennai on transfer

Ex.W8

09.07.2012

Union letter IBEA/GEN/173/2010-

13 in reply to the above letter by

Management of Indian Bank

Ex.W9

26.11.2012

Our Union letter IBEA/Gen/190/

2010-13 in continuation of above

letter dated 09.07.2012

On the Management’s side

Ex.No.

Date

Description

Ex.M1

29.06.2001

Settlement and periodical transfer

for clerical staff between Indian

Bank and the federation of Indian

Bank Employees Union u/r Section

18(1) of ID Act

Ex.M2

30.04.2012

Note from Corporate Office HRM

Department,

Chennai

periodical transfer of award staff

Ex.M3

Annexure-A – Transfer of Clerks

from Chennai City Branch to

Kancheepuram Zone

Ex.M4

18.06.2012

Note from Corporate Office, HRM

Department

Ex.M5

10.07.2012

Communication from Ministry of

Labour – Government of India to

Bank

Ex.M6

20.10.2012

Letter from Corporate Office,

Chennai to ALC(C), Chennai

Ex.M7

Transfer order issued SR

Subramaniam from ZO, CBE to

Vagarayampalayam Branch

Ex.M8

Transfer order to issued to Ms.

Santhakumari from Villivakkam to

Kolathur Branch

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3681

ubZ fnYyh] 30 vizSy] 2014

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izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa

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New Delhi, the 30th April, 2014

S.O. 1380.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 73/2013)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the industrial

dispute between the management of Indian Bank and their

workmen, received by the Central Government on

30-4-2014.

[No. L-12012/4/2013-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Monday, the 7th April, 2014

Present : K. P. PRASANNA KUMARI,

Presiding Officer

Industrial Dispute No. 73/2013

[In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman]

BETWEEN

The General Secretary

: 1st Party/

Indian Bank Employees Union

Petitioner Union

6, Moore Street, Mannady Corner

Chennai-600001

AND

The Zonal Manager

: 2nd Party/

Indian Bank Zonal Office

Respondent

AVR Towers, 4, Bharathi Road

Cuddalore-607001

Appearance :

For the 1st Party/ : Sri J. Thomas Jeyaprabhakaran,

Petitioner Union

Authorized Representative

For the 2nd Party/ : M/s T.S. Gopalan & Co., Advocates

Management

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12012/4/2013-IR(B-II)

dated 12/17.06.2013 referred the following Industrial

Dispute to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank in imposing a punishment of Dismissal without

Notice to Sri B. Nakkiran, Sub-Staff is legal and

justified? What relief the concerned workman is

entitled to?”

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 73/2013 and issued notices to both

sides. The petitioner has entered appearance through

Authorized representative and the Respondent through

counsel and filed their claim and counter statement

respectively. The petitioner has filed rejoinder after the

Counter Statement was filed.

The averments in the Claim Statement in brief are as

below:

The Petitioner Union has raised the dispute

regarding the dismissal of Nakkiran, a member of the

Union. Nakkiran had joined the services of the

Respondent Bank as a temporary staff in 1980 and was

absorbed in regular services in 1991. He had rendered

service for 3 long decades. While working in Cuddalore

Main Branch of the Respondent Bank as Sub-Staff, he

was issued a Charge Sheet dated 12.11.2009 and was placed

under suspension also. It was alleged in the Charge

Sheet that on 12.10.2009 at around 11.00 AM he had

clandestinely removed and stealthily taken cash

amounting to Rs. 9,000 from the Cash Cabin of

Santhakumari, Chief Cashier of the Bank and had committed

theft of the said amount, that he had withheld the

amount for the entire day and had returned it only at

06.00 PM when his act was detected. The reply given by

Nakkiran was found unsatisfactory and a departmental

enquiry was conducted. Nakkiran, the concerned worker

was found guilty of the charges and the punishment of

dismissal without notice was imposed on him. The

Appellate Authority had dismissed the appeal preferred

by the worker against the order of dismissal. The

dispute is raised accordingly. The allegation made

against the concerned worker is without any basis. On

12.10.2009, he was working in the Currency Chest attached

to Cuddalore Main Branch. The chest is situated in the

ground floor of the building and the branch is housed in

the first floor. The concerned worker had approached the

Chief Cashier, Santhakumari at her cash cabin, handed

over two notes of Rs. 500 denomination and had requested

her to exchange it for one used section of Rs. 10

denomination to enable him to exchange the section for

3682

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

fresh currency at the chest. When he was standing at the

cabin door, waiting for the Cashier to exchange the notes

he had a call from one of the customers. In the meanwhile

the Cashier handed over certain sections of notes telling

something to him. Since he was pre-occupied with the

phone he received the amount and immediately left the

cash department. On reaching the ground floor he realized

that he had been handed over Rs. 10,000 instead of

Rs. 1,000. He presumed that the Cashier had given the

additional cash of Rs. 9,000 for exchanging for fresh

currency at the chest. By noon he exchanged fresh

sections from the chest. He got four sections of the same

denomination. The concerned worker was the only Sub-

Staff in the Currency Chest on the day. He had managed

the entire work at the chest single handedly. He kept the

sections inside his pant pocket and resumed his work

intending to hand over the sections as and when he went

to the first floor. However, he totally forgot about the

currency exchanged and kept with him. By 05.00 PM, while

crossing the cash department he found the cash peon

behind the cash counter. Normally the cash department

will be closed by 04.30 PM. He enquired with the peon and

was told that there was a shortage of Rs. 9,000 in the

Cashier’s Counter. The concerned worker remembered

about the amount of Rs. 9,000 exchanged for fresh

currency. He handed it over to Ganesan, the Shroff who

was sitting at the Chief Cashier’s cabin expressing regret.

After this the cash was closed and the cash box was

deposited in the chest. The concerned worker had not

committed any theft. The amount of Rs. 9,000/- was handed

over to him by the Chief Cashier. There is no justification

for the punishment imposed on the concerned worker. The

worker is entitled to be reinstated in service with back

wages, continuity of service and other attendant benefits.

The Respondent has filed Counter Statement

contending as follows :

The concerned workman was working as Sub-Staff

in the Currency Chest attached to Cuddalore Main Branch

of the Respondent Bank. On 12.10.2009 he had approached

Santhakumari, the Chief Cashier for exchange of one Rs.

10/- section by tendering two pieces of Rs. 500/-

denomination . She had given a Rs. 10/- section accepting

the two Rs. 500/- notes. At the time of closing she had

found a shortage of Rs. 9,000/-. She had counted the

amount and verified the vouchers with the help of

Ravindran and Ganesan, two other Staff. Ravindran had

verified the cash handed over by Cuddalore branch to the

Currency Chest. Murugesan, a staff of Currency Chest

had told him that notes of Rs. 10/- denomination were

taken in exchange by the concerned workman on that day.

It transpired that the concerned workman who approached

the Chief Cashier for exchanging two pieces of Rs. 500/-

notes had removed two sections of Rs. 20/- and one section

of Rs. 50/- and had exchanged one section of Rs. 50/- and

two sections of Rs. 20/- for nine sections Rs. 10/-. When

Ravindran verified with Murugesan of Currency Chest

about the exchange the concerned workman went to the

Cashier, Santhakumari and gave Rs. 9,000/- that was

removed by him from the Cash Cabin. When investigation

was conducted the concerned workman had admitted that

he had taken the cash of Rs. 9,000/- for exchange, that he

had kept the same with himself and that on getting exposed

he had handed it over to the Chief Cashier. A Charge Sheet

was issued to him for the misconduct of removing the

amount of Rs. 9,000/- from the Cash Cabin and for keeping

the amount with him for the entire day. In the enquiry

conducted the Enquiry Officer has found that the charges

against the workman are established. On the basis of the

report of enquiry the workman was dismissed from service.

The workman is not entitled to any relief.

The petitioner has filed a rejoinder to the Counter

Statement denying the allegations made therein and also

reiterating the case in the Claim Statement.

The evidence in the case consists of the oral

evidence of WW1 and documents marked as Exts.W1 to

Ext.W19 and Exts.M1 and Ext.M2.

The points for consideration are:

(i)

Whether the action of the Respondent in imposing

the punishment of dismissal from service without

notice on B. Nakkiran, the concerned workman is

legal and justified?

(ii)

What is the relief, if any to which the concerned

workman is entitled?

The Points

The Indian Bank Employees Union has raised the

dispute espousing the cause of B. Nakkiran, a Sub-Staff

of the Respondent Bank. Nakkiran the concerned workman

has joined the services of the Respondent Bank as

temporary staff and was absorbed in the regular service of

the bank in 1991. He was working as Sub-Staff at Cuddalore

Main Branch on 12.10.2009 when the incident resulting in

his dismissal occurred.

The Cuddalore Main Branch of the Respondent

Bank has a currency chest attached to it. The chest is

housed in the ground floor while the branch is housed in

the first floor of the same building. On 12.10.2009, the day

in question the concerned workman was on duty in the

Currency Chest. It is an admitted fact that he had

approached Santhakumari, the Chief Cashier of the Branch

for exchange of two notes of Rs. 500/- denomination for a

Rs. 10/- section. In the evening, at the time of closure of

the account, the Chief Cashier noticed shortage of Rs.

9,000/- in the account. She verified the account with the

help of two other members. One of the staff went to the

Currency Chest and verified and counted the notes that

were deposited in the chest. While doing this, he came to

know from the Cashier of the Chest that the concerned

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3683

workman had exchanged old notes for fresh notes from

the chest. According to the Respondent, when the

concerned workman came to know that the fact of his

exchanging notes had been revealed he panicked and

handed over Rs. 9,000/- to the Chef Cashier.

10.

According to the Chief Cashier she had not handed

over any cash other than a section of Rs. 10/- notes to the

concerned workman in exchange for two pieces of

Rs. 500/-. On the other hand according to the concerned

workman while a section of Rs. 10/- notes had been handed

over to him, the Cash Cashier had given him Rs. 9,000/-

more. He noted it only on reaching the chest which was

his place of duty. He assumed that this might have been

given to him for exchange with Rs. 10/- Sections.

Accordingly, he had exchanged them and kept them with

him intending to hand over the notes to the Cashier as

and when he went to the first floor, to the branch.

However, he totally forgot about this since he was pre-

occupied with his duty and only in the evening when

there was a hustle and bustle in view of the shortage

noticed at the Chief Cashier’s Section he remembered about

the cash that was kept with him and immediately handed

over the amount to Ganesan who was sitting

alongwith the Chief Cashier trying to solve the problem.

The concerned workman was suspended and a Charge

Memo was issued to him. On finding the reply given by

him unsatisfactory, the Respondent proceeded with the

departmental enquiry. Before the enquiry an investigation

was conducted by the Bank. The statements of the persons

related to the incident were recorded by the Investigation

Officer. The evidence given by the Management witnesses

in the departmental enquiry is based on the statements

given by them to the Investigation Officer. During their

examination in the enquiry proceedings they have asserted

that they have given statements. The statements were

marked through the concerned witnesses.

11.

MW1 examined in the enquiry proceedings was the

Chief Manager of the Cuddalore Branch at the time of the

incident. He was on leave on the date of the incident. He

was informed about the incident by the Assistant Branch

Manager. He had informed the matter to the Circle Office

on the basis of this. The copy of this letter by the Manager

is seen marked as Ext.W5. This witness has nothing to do

with the incident and was not involved in the incident at

all, but has knowledge of the same only on the basis of

information given by the Assistant Branch Manager. MW2

is the Vigilance Officer who has conducted the

investigation. Ext.W6 is the report given by him on the

basis of his investigation. He has stated in his report that

he had questioned the concerned workman and he had

told him that he had taken the cash of Rs. 9,000/- for

exchange and had inadvertently kept the same with himself

and had handed it over to the Chief Cashier on getting

exposed. He had also questioned the Assistant Branch

Manager who was in-charge of the Manager who was on

leave, Murugesan who was in-charge of the Currency

Chest, Ravindran who had assisted the Chief Cashier in

verification and counting on noticing the shortage and

also Santhakumari, the Chief Cashier, apart from others.

12.

On going through the evidence in the enquiry

proceedings, it could be seen that the witnesses who are

actually involved in the incident are only MW8, the Chief

Cashier, MW3, the Officer-in-Charge of the Currency

Chest and MW6 who assisted the Chief Cashier on

noticing the shortage. Then there is also the evidence of

MW2 who furnished his report on investigation. On the

side of the workman the evidence of Ganesan who assisted

Chief Cashier in counting and a Peon are there.

13.

The statement given by MW8, the Chief Cashier

has been marked in the enquiry proceedings. The witness

has stated that what is stated in her statement is true.

According to her, by 11.30 AM, the concerned workman

had approached her, handed over two pieces of Rs. 500/-

notes and had asked for one Rs. 10/- section. When she

asked about the purpose he had informed her that he

wanted to exchange it for fresh currency. He had given the

Rs. 10/- section and had made necessary changes in the

system. During the time he was found talking with

somebody by his mobile phone. At 12.00 noon when

customers were less, she started verifying the cash

of lower denominations. She found difference of two

sections in Rs. 20/- denomination. She was not able to

proceed with the verification since more customers reached

the counter. By 03.35 PM she proceeded with the cash

adjustment work and initially noticed shortage of two

sections in Rs. 20/- denomination. She sought the help of

Ganesan, another staff who was examined as DW2 in the

enquiry. They together proceeded with the verification

and found that there was shortage of one section in Rs.

50/- denomination also. Thus there was shortage of Rs.

9,000/- in total. By then MW6 Ravindran who was working

in the loan section also reached there. He was informed of

the shortage. He went to the Currency Chest to verify

the cash that was already sent to the Chest. After this,

the workman reached there and placed Rs. 9,000/-, one

section of Rs. 50/- denomination, two sections of Rs. 20/-

denomination and told them that he had forgotten to give

the amount. MW6, came back from the Currency

Chest by this time and informed that the concerned

workman had exchanged notes for fresh currency from

the Currency Chest.

14.

DW2 in the enquiry proceedings is Ganesan who

had been assisting the Chief Cashier to do the counting

when the shortage was noticed by her. He had stated that

on his checking the vouchers, he had noticed the

difference to be of Rs. 9,000/-. In the meanwhile, MW6

also had come there and he was also informed of the

shortage. DW2 had asked MW6 to verify the cash remitted

3684

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

at the Currency Chest to find out if any excess was there.

After some time, the concerned workman approached him

and told him that he had come to know from DW1 that

there was difference in the cash, that the Chief Cashier

had given amount for exchange and he had forgotten to

return it. There is also the evidence of DW1 who was

working as Cash Peon on that day. According to him, while

he was standing in the next counter the concerned

workman had come to him and he had told him of the

shortage in the Chief Cashier’s account and the workman

had told him that he got the amount for exchange of fresh

currency from the Chief Cashier but forgot to return the

amount. Then he had approached DW2 who was attending

the adjustment work and had given the amount of

Rs. 9,000/- to him.

15.

DWs 1 and 2 seem to have been examined to show

that actually the concerned workman came to know about

the shortage when he came to the cash counter, that he

remembered about the amount only at that time. There is

no dispute regarding the fact that the concerned workman

had returned the amount at the cash counter much after

shortage was noticed and the Chief Cashier had sought

the help of DW2 and MW6 for cash adjustment and MW6

had gone to the Currency Chest to verify if any excess

payment was made at the Currency Chest.

16.

One of the arguments that had been advanced on

behalf of the workman is that it is probable that the Chief

Cashier had handed over the amounts in two sections of

Rs. 20/- denomination and one section of Rs. 50/-

denomination to the concerned workman alongwith one

section of Rs. 10/- denomination in exchange for two notes

of Rs. 500/- denomination and she might have forgotten

about it. I do not think it is possible that the Chief Cashier

would have handed over the sections unconsciously.

During the examination of Chief Cashier as MW8, she has

given details of the manner in which the trays containing

notes of each denomination are kept. She has stated that

she will be keeping Rs.1,000/-, Rs. 500/- and Rs.100/-

denominations in front of her, on the cash table. Below the

drawer in a plastic tray, she used to keep Rs. 10/-

denominations. In trays, near her right leg, she will be

keeping the denominations of Rs. 20/-, Rs. 50/- and Rs. 5/-.

Since the notes of difference denominations are kept in

different trays, it is not possible that she would have

handed over two sections of Rs. 20/- and one section of

Rs. 50/- alongwith one section of Rs. 10/- to the concerned

workman. The plastic tray with Rs. 10/- denomination is in

front of her and the trays with the denominations of

Rs. 50/-, Rs. 20/- and Rs. 10/- are on her right side. While

she is taking out one section of Rs. 10/- in exchange for

two Rs. 500/- notes there is no necessity for her to go to

the trays containing notes of other denominations. So

the argument advanced on behalf of the petitioner that

she might have unconsciously handed over three more

sections, two sections of Rs. 20/- denomination and one

section of Rs. 50/- denomination could not be accepted.

Again, if the explanation given by the workman is

accepted, MW8 had given the notes not unconsciously

but fully aware of what she is doing. Ex.W2 is the

explanation given by the workman in answer to the memo

that was given to him regarding the incident. What he

has stated in this is that MW8 had handed over one

section each of Rs. 50/- and Rs. 10/- denomination and

two sections of Rs. 20/- denomination telling him

something. According to him, his attention was

concentrated on a phone call that came to him and he did

not properly grasp what the Chief Cashier has told him

and he has left the cabin. According to him, he was under

the impression that the Chief Cashier had handed over the

three sections to get exchange from the Currency Chest

with new notes. If this case of the workman is correct, the

Chief Cashier had given him some instruction also when

she handed over the notes. If this is the case she must

have handed over the sections of Rs. 20/- and Rs. 50/

- denominations in which case definitely she would have

remembered about the sections at least when she had

noticed shortage at the time of cash adjustment.

17.

The Authorized Representative of the petitioner has

been arguing with reference to the diagram of the cash

counter of the Chief Cashier that it would not have been

possible for the workman to remove the notes without the

knowledge of the Cashier also. He has also referred to the

version of the Cashier that the workman was standing at

the door of the counter asking for one section of Rs. 10/-

notes. The workman had admittedly approached the Chief

Cashier not from the front portion of the counter where

customers usually approach the Cashier but from behind

through the entrance of the Cashier’s Cabin at the back

side. According to the Authorized Representative, the chair

of the Chief Cashier is almost barricaded on all sides and it

would not have been possible for the workman to remove

the notes. He has referred to Ex.W7 showing the diagram

of the cabin of the Chief Cashier. On the right side of the

Cashier almost parallel to her Chair is the counting machine

and the two trays containing notes are placed by her

nearby to the counting machine, on the side of her right

leg. According to the Authorized Representative, because

of the counting machine it would not be possible for

anyone to reach the trays and remove the notes. I am

unable to accept this argument advanced by the

Authorized Representative. It has come out during

evidence that the distance from the door to the chair of

the Cashier is just two feet. This means the chair of the

Cashier is only at arm’s length. The trays containing the

notes are also almost at this distance. There is space in

between the counting machine and the chair of the Cashier.

The Chief Cashier is unsuspecting because it is the staff

of the bank itself who had approached her and is seeking

exchange. If a person wants to remove notes from the

trays there will not be any difficulty to do it. One can do it

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3685

in the split of a second conveniently when the Cashier’s

attention is on the other side. The Chief Cashier has stated

that she has obtained the two Rs. 500/- notes and had

given one section of Rs. 10/- note in exchange without

turning herself, but by just turning her neck slightly. One

can conveniently reach his hand through the space in

between the chair and the counting machine and lift the

sections of notes. It is worth mentioned that the missing

sections were of Rs. 20/- and Rs. 10/- denomination

kept on the right side.

18.

According to workman he did not grasp what the

cashier has told him. Yet he did not go back to her or ask

her why three sections of notes apart from one section in

exchange were handed over to him. His case is that he

assumed that those sections might have been handed over

to him for exchange for fresh notes. However, his version

to MW3 from whom he had got the sections exchanged

was different. MW3 has stated that the workman had told

him that he is exchanging the notes for his personal

purpose. So far as the notes of Rs. 10/- denominations are

concerned this answer must be correct. However, this

should not have been the answer regarding notes of

Rs. 20/- and Rs. 50/- denominations. The Authorized

Representative has been arguing with reference to some

correction made in the statement given by MW3 to MW2

that MW2, the Investigating Officer was biased and had

not recorded the statement properly. In the statement of

MW3, the sentence “I asked him specifically for whom he

is exchanging” is seen scored off. Then there is a sentence

that the workman voluntarily told him that the notes are

for his personal use. In fact even before the sentence that

is scored off it is seen recorded that the workman had told

him that the notes are for his personal use so the scored

sentence is not of any consequence. The fact is that the

workman had told MW3 whether voluntarily or not, that

the notes are for his personal use. This would show that

at that time he had refused to reveal that he was exchanging

notes that were handed over to him by the Chief Cashier.

What DW1 has stated is that the workman had taken out

the notes from his pant pockets and had handed it over to

DW2. The counsel for the Respondent has referred to

Ext.W5, the report of the Branch Manager wherein it is

stated that the workman had kept the notes in the locker

allotted to him and had forgotten to give it back. According

to the Authorized Representative, there is no case at all

that the notes were kept in the locker. He has pointed out

that the Branch Manager had no personal information of

the incident as he was on leave on that particular day and

that the report given by him is based on the information

given by the Asstt. Branch Manager and that the statement

of Asstt. Branch Manager does not contain a statement

that the workman had told him that the notes were kept in

the locker. If the notes were in the locker, the workman had

taken them out and had kept them in his pocket before he

went to the first floor where the branch was functioning. If

it was in the locker at least when he had taken the notes

out he would have remembered that the notes are to be

given back at the Cash Counter. However, he had not done

so. If the notes were all along in the pant pocket of the

workman as is the case put forth by the Authorized

Representtive R, those notes themselves would have been

a reminder to the workman that those are to be given back.

One section of Rs. 50/- notes and two sections of Rs. 20/-

notes mean there will be 400 pieces of notes in the pocket

of the workman and this certainly would be slightly heavy.

So that itself should have acted as a reminder to the

workman. But he never thought of returning the amount

to the Chief Cashier until the Chief Cashier was sweating

and making all the efforts to find out how the shortage of

Rs. 9,000/- has occurred. At least by 5’O clock when closing

time came, he should have thought about it in the normal

course.

19.

It has been argued by the Authorized Representative

that the workman was not aware of the shortage or the

search made at the Currency Chest and it was only when

he reached the Cash Counter and DW1 informed him about

the shortage he realized that he was having the notes with

him. Referring to the evidence of certain witnesses, the

Authorized Representative has tried to make out that the

concerned workman was not at the currency chest or at

the Cash counter when the Chief Cashier was trying to

find out why the deficit has occurred. MW3 who was the

Working Officer-in-charge of Currency Chest on that day

had stated that MW6 had come to him around 0430PM

and informed that there was cash shortage. He had stated

that while he was in the currency chest inside the sorting

hall, this information was given by MW6 and that

Arumugam the Asst. Manager and MW6 and other clerks

were present in the sorting hall at the time. According to

the Authorized Representative, since the witness has not

stated that the concerned workman was present at the

place it is to be presumed that he was not there at the time

and he was not aware of the same. The Authorized

Representative has also referred to the evidence of MW6

in this respect. MW6 was asked if the concerned workman

was present at the branch when he returned from the chest

and he has answered that he was not there. Thus according

to the Authorized Representative there was no occasion

for the workman to know about the shortage before DW1

told him about it. In fact it is not disputed that MW6 had

gone to the Currency Chest and had come to know from

MW3 about the exchange of notes made by the workman

and by the time be came back to the branch, the workman

had returned the money. Probably he might have left after

this. These aspects would not show that the workman

was not aware of the shortage or about the visit made by

MW6 to the chest to make the verification. If the workman

was not at the chest or at the branch, where was he on that

evening? He was on duty at the chest on that day and was

supposed to be at the chest until the chest was closed.

3686

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

The chest is at the ground floor and the branch is at first

floor. In the normal course, there was no necessity for him

to visit the branch on that evening before he left the office.

20.

Much ado was made by the Authorized

Representative regarding the statement of MW6 that he

had twice visited the chest in connection with the shortage

and that he had asked MW3 if anyone had exchanged

notes. On going through the evidence and the statements

it could be seen that there is not much basis for this.

During his examination, MW6 has stated that he has gone

to the chest in connection with the incident only once and

that when he informed MW3 that the shortage was of

Rs. 9,000/- and that the denominations are of Rs. 20/- and

Rs. 50/-, MW3 had recollected that the concerned

workman had exchanged notes and had informed him so.

However, in his statement his version is that he went to

the chest and verified and came back to the branch and

was told that the shortage is of denominations of Rs. 20/-

and Rs. 50/-, again went to the chest and asked MW3 if

anyone had exchanged notes for Rs. 9,000/- and MW3

had told him about the exchange made by the concerned

workman. The stress given by the Authorized

Representative is on the fact that it is the case of MW6

asking MW3 if anyone had exchanged notes of the missing

denominations and not a case of MW3 informing him

about the incident when he was told about the shortage.

However, on going through the statement of MW3 itself,

it could be seen that the version of MW3 at the time itself

is that when MW6 told him about the denominations in

which shortage has occurred he recollected that the

workman had exchanged notes of the very same

denominations and had informed MW6 about it. Even

before MW6 went back to the branch with this information,

the concerned workman had reached the branch, made the

pretence of an enquiry with DW1 about what is happening

and had returned the amount. So the only possibility is

that the workman who was at the chest itself, somewhere

in the surrounding area, though not inside the sorting

hall, where the conversation between MW3 and MW6

had occurred became aware of the same, got panicked and

decided to return the amount on the pretext that he had

forgotten to give it back.

21.

Another argument that is advanced by the

Authorized Representative is that if the workman had

consciously removed the amount form the cabin of the

Cashier it is unlikely that he would have exchanged them

for fresh notes. He would not have thought that an enquiry

would have been made at the chest. So this by itself could

not be interpreted as absence of mal- intention on the part

of the worker.

22.

The Management has given all the evidence

available. Regarding the case of the workman, there is

only the explanation given by him that it has all taken

place since he forgot about the notes that were handed

over to him by the Chief Cashier. But the workman had not

thought it necessary to get into the witness box to put

forth his case. He seems to have been reluctant to withstand

the cross-examination that he would have to undergo.

23.

It could be seen that the Management has placed all

possible evidence in the enquiry proceedings. The Enquiry

Officer has assessed the evidence and arrived at a probable

conclusion regarding the incident. No perversity could be

detected in the findings of the Enquiry Officer. So this

Tribunal is not required to interfere with the findings

entered by the Enquiry Officer.

24.

Now, coming to the matter of punishment, the

workman was given the punishment of dismissal without

notice. It has been pointed out by the Authorized

Representative that the workman has been working as

Sub-Staff with the Respondent in the year 1980 and was

absorbed into the regular service in 1991 and has a service

of almost three decades. There is no case for the

Respondent that any proceedings had been initiated

against him earlier. It is to be pointed out by the Authorized

Representative that in such cases the Management had

imposed the punishment of voluntary retirement earlier.

When the long service of the workman and other aspects

are taken into account, I am of the opinion that the

punishment of Compulsory Retirement from service will

meet the ends of justice so I am inclined to modify the

punishment to one of Compulsory retirement. Accordingly,

an order is passed as follows:

The punishment imposed on the concerned

workman is modified and the punishment of Compulsory

Retirement from service is imposed on him w.e.f. 06.12.2006.

The reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 7th day of April, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Wtnesses Examined

For the 1st Party/

: WW1, Sri B. Nakkiran

Petitioner Union

For the 2nd Party/

: —

Management

Documents Marked

On the Petitioner’s side

Ex.No.

Date

Description

Ex.W1

02.11.2009

Charge Sheet issued to Sri B.

Nakkiran

Ex.W2

11.11.2009

Reply to the Charge Sheet

Ex.W3

15.03.2010

Letter from Presenting Officer

furnishing list of documents and

witnesses

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3687

Ex.W4

25.03.2010

26.03.2010

Proceedings of the Departmental

23.04.2010

Enquiry

27.04.2010

Ex.W5

20.10.2009

Letter from Cuddalore Main

Branch’

Ex.W6

26.10.2009

Report of the Investigating

Officer

Ex.W7

Plan showing the chief cashier

cabin at Cuddalore Main Branch

Ex.W8

21.05.2010

Presenting Officer’s brief

Ex.W9

05.06.2010

Defence summing up

Ex.W10

21.10.2010

Enquiry Officer’s findings

Ex.W11

13.11.2010

Comments on Enquiry Officer’s

findings

Ex.W12

06.12.2010

Second Show Cause Notice

Ex.W13

14.12.2010

Reply to the Second Show Cause

Notice

Ex.W14

15.12.2010

Minutes of the personal hearing

Ex.W15

21.01.2011

Speaking orders of the DA

Ex.W16

03.03.2011

Appeal

the Appellate

Authority

Ex.W17

14.09.2011

Proceedings of the personal

hearing held by Appellate

Authority

Ex.W18

27.09.2011

Speaking orders of the Appellate

Authority

Ex.W19

09.11.2011

ID under Section 2(a) of ID Act

On the Management’s side

Ex.No.

Date

Description

Ex.M1

24.03.2012

Reply from Indian Bank to ALC

Nakkiran

Ex.M2

31.01.2011 to SB Account No. 410539423

07.07.2011

showing crediting of PF/Gratuity

dues in the account of Nakkiran

on 01.06.2011.

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New Delhi, the 30th April, 2014

S.O. 1381.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 34/2010)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the industrial

dispute between the management of Indian Bank and their

workmen, received by the Central Government on

30/4/2014.

[No. L-12011/25/2010-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Monday, the 7th April, 2014

Present : K. P. PRASANNA KUMARI,

Presiding Officer

Industrial Dispute No. 34/2010

[In the matter of the dispute for adjudication under clause

(d) of sub-section (1) and sub-section 2(A) of Section 10

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

the Management of Indian Bank and their workman]

BETWEEN

The General Secretary

: 1st Party/

Indian Bank Employees Association

Petitioner Union

No. 17, Ameerjan Street, Choolaimedu

Chennai-600094

AND

The General Manager

: 2nd Party/

HO HRM Department, Indian Bank

Respondent

No. 66, Rajaji Salai

Chennai-600001

Appearance :

For the 1st Party/

: M/s V. Ajoy Khose, Advocate

Petitioner Union

For the 2nd Party/

: M/s T.S. Gopalan & Co.,

Management

Advocates

AWARD

The Central Government, Ministry of Labour &

Employment, vide its Order No. L-12011/25/2010-IR(B-II)

dated 24.09.2010 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank in imposing the punishment of Compulsory

Retirement to Sri K. S. Kalyani Kumarasamy is legal

and justified? What relief the concerned workman is

entitled to ?”

3688

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 34/2010 and issued notices to both

sides. Both sides have entered appearance through their

counsel and filed Claim and Counter Statement

respectively. The petitioner has filed rejoinder after the

Counter Statement was filed. During the pendency of the

claim, the concerned workman whose cause was espoused

by the petitioner died. After this, the petitioner has filed a

revised Claim Statement and the Respondent has filed

Counter Statement in answer to this also.

The averments in the original claim statement in brief

are these:

The petitioner is a union registered under the Trade

Union Act. It has substantial following among the workmen

in the Respondent Bank. Kalyani Kumarasamy, a member

of the Petitioner Union was working as Clerk in Villupuram

Branch of the Respondent Bank. He was charged with the

misconduct of unauthorized absence and the punishment

of Compulsory Retirement from service was imposed on

him by the Respondent. Kalyani Kumarasamy, the

concerned workman had met with an accident in the year

2000. Though he rejoined duty sometime after this incident,

his health was in deterioration and he had to be under

continuous treatment. He was diagnosed with the problem

of Deep Vein Thrombhosis. The Respondent had issued

Charge Memo to the concerned worker stating that he

was unauthorizedly absent from duty for a period of 62

days from 09.01.2002 to 08.02.2003, for 19 days from

11.07.2003 to 29.07.2003, for 38 days from 07.08.2003 till

13.09.2003 and since 03.11.2003 to the date of the charge

sheet. The Respondent conducted an ex-parte enquiry

and imposed punishment of Compulsory Retirement on

him on 28.02.2006. The mercy petition filed by the

concerned workman was rejected by the Management.

The concerned workman had approached the High Court

of Madras and the High Court had directed the Appellate

Authority to dispose his appeal on merits. By order dated

31.01.2009, the Appellate Authority upheld the punishment

imposed by the Disciplinary Authority. The concerned

workman could not attend the office because of his health

condition. The punishment of Compulsory Retirement from

service is without any justification. The concerned

workman is entitled to be reinstated in service with back

wages and other attendant benefits.

The concerned workman passed away on 27.05.2011.

In the revised Claim Statement filed by the petitioner

subsequently the petitioner has requested that a direction

should be given to the Respondent to give employment

to the wife of the concerned workman on compassionate

grounds.

The Respondent has filed Counter Statement

contending as follows:

The concerned workman was working in the

Villupuram Branch of the Respondent Bank. On 10.10.2003,

an account holder, Raja had withdrawn Rs. 1,500/- by

withdrawal slip. The concerned worker was the teller who

made the payment and made entry in the Pass Book

showing credit balance of more than Rs. 10,000/-. On

11.11.2003 Raja wanted to withdraw Rs. 8,000/- more and

he was told that there is no sufficient amount to the credit

of the account. But there was amount in his Pass Book.

On verification it was revealed that on 10.10.2003 on which

date Rs. 1,500/- was withdrawn, there was another debit of

Rs. 7,000/- as per the account. The concerned workman

being the teller on that day, he had to be interrogated.

However, he has started abstaining from duty without any

intimation. The concerned workman had remained absent

for 119 days during the period from 09.12.2002 to

19.09.2003. A show-cause notice was issued to the

concerned workman. This was returned undelivered. A

criminal proceeding has been initiated against the

concerned workman. This case ended in acquittal. Charge

Sheet was issued to the concerned workman charging him

with the misconduct of unauthorized absence. However,

the letters sent to him were returned undelivered. Notice

of enquiry was published in a vernacular newspaper also.

A copy of the enquiry report was also sent to the

concerned workman, but this was also returned

undelivered. The alleged illness of the workman was only

a devise to cover his misdeed on 10.10.2003. The petitioner

is not entitled to any relief.

In the rejoinder filed, the petitioner has reiterated

his case and denied the allegations made by the

Respondent. In the revised Claim statement filed by the

petitioner, the petitioner seeks to provide employment to

the wife of the deceased workman. A counter Statement is

filed to the revised Claim Statement also.

The evidence in the case consists of Ext.W1 to

Ext.W13 and Ext.M1 to Ext.M41. No oral evidence was

adduced on either side.

The points for consideration are:

(i)

Whether the action of the Respondent in imposing

the punishment of compulsory retirement on Kalyani

Kumarasamy, the concerned workman is legal and

justified?

(ii)

What is the relief to which the concerned workman

is entitled?

The Points

Kalyani Kumarasamy, the concerned workman on

whose behalf the dispute is raised was working as Clerk

in Villupuram Branch of the Respondent Bank. The

Respondent had issued a Charge Memo to him

stating that he was unauthorizedly absent in four spells,

the last spell of absence continuing even at the time of

issue of the Charge Memo. The Respondent had

conducted an enquiry, found the concerned workman

guilty of unauthorized absence and had imposed the

punishment of Compulsory Retirement from service. The

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3689

appeal later filed by him before the Appellate Authority,

was also dismissed. It is consequently that the dispute

has been raised by the Petitioner’s Association of which

he was a member.

10.

The Counsel for the Respondent has referred to the

documents produced on behalf of the Respondent and

has argued that the concerned workman had committed

the misconduct of withdrawing money from an account

holder and misappropriating the amount. It has been

pointed out by the Counsel for the Petitioner that this

aspect is not a subject matter of the Charge Memo at all.

No proceedings had been initiated against the concerned

worker for such a misconduct. This being the case, as

pointed out by the Counsel, the concerned workman

could not be referred to as the person who has

committed a misconduct of misappropriation by

withdrawal of amount from the account of a customer.

This allegation made against the concerned workman could

not be taken into account while considering the charge of

unauthorized absence made against him also.

11.

The case of the Respondent is that the concerned

workman was absent without any intimation to the Bank

for 62 days from 09.1.2002 to 08.02.2003, for 19 days from

11.07.2003 to 29.07.2003, for 38 days from 07.08.2003 to

13.09.2003 and was in continuous absence for 270 days

from 03.11.2003 to 29.07.2004, the date on which charge

sheet was issued to him. The documents produced on

behalf of the respondent would show that several

communications were issued to the concerned workman

asking him to appear and defend the enquiry proceedings.

However, he did not participate in the enquiry. According

to the Respondent, the letters sent to the concerned

workman bringing to his attention his unauthorized

absence were all returned undelivered. At the same time

as stated in the Counter Statement itself he had addressed

a letter to the Circle Office from his address in his native

place seeking a transfer to Chennai for the purpose of

taking treatment for his illness. Since the notices of enquiry

that were sent to the concerned workman also were

returned undelivered notice was published in a vernacular

newspaper. After this also he did not appear and enquiry

was conducted in his absence. The enquiry report was

also sent to the concerned workman’s address, but was

returned undelivered. A Show Cause Notice issued to him

proposing punishment of Compulsory Retirement also met

without any response. This was followed by a paper

publication advising him to appear for personal hearing. It

was after this the concerned workman was awarded the

punishment of Compulsory Retirement for three of the

charges and censure for one charge. Publication of the

punishment was also made in a daily newspaper.

12.

It is a fact that the concerned workman did not

respond to the notices sent and did not attend the enquiry

proceedings. The documents pertaining to the enquiry

proceedings including the copies of Attendance Registers

produced by the Respondent would show that the

concerned workman was absent all along during the period

in question. In fact there is no case for the petitioner also

that the workman had been attending duty in the period

given in the Charge Sheet as the period of unauthorized

absence.

13.

The argument that is advanced on behalf of the

workman is that his absence was not willful. The case put

forth is that the workman was not in a position to attend

the office because of his illness. He was not in a position

even to participate in the enquiry proceedings. The

concerned workman had died on 27.05.2011, during the

pendency of the dispute.

14.

According to the petitioner the concerned workman

met with a bus accident in the year 2000. It was only a

miracle that he survived the accident. Though he had

rejoined duty sometime after the accident and continued

to attend his duty, his health had deteriorated and he had

gone on leave for long periods because of his ill-health.

According to the petitioner, he was diagnosed to be

suffering from the problem of Deep Vein Thrombhosis

(DVT) and was going on leave frequently, even before the

alleged unauthorized absence.

15.

The petitioner has given a list of hospitals in which

the concerned workman had undergone treatment, giving

the details of the treatment also. This is marked as Ext.W12.

The fact that the concerned workman had met with an

accident and that he was undergoing treatment was not

much disputed by the Respondent. The document marked

as Ext.W11 would show that a National Identity Card and

Pass Book with Disability Certificate was issued to the

concerned workman by the Government of Tamil Nadu. It

is also revealed from Ext.W13 containing the several leave

applications submitted by the workman to the Respondent

that even prior to the period of alleged absence, he was

frequently availing leave on the ground of illness and his

leave applications were being approved by the

Respondent also. As could be deciphered from one of the

leave applications included in Ext.W13 he was on leave

for 88 days from 18.04.2000 to 14.07.2000. The reason for

leave is given as Femur Fracture. The name of the doctor

who was treating the workman also is given in the

application. The leave was recommended. This was

followed by several such applications. As seen from

Ext.W13, he has availed leave for 9 days from 23.07.2002

to 31.07.2002 on account of Varicose Vein Ulcer. His leave

application for the period from 07.08.2002 to 19.09.2002 for

53 days for the same reason was also recommended. There

is still another application for leave from 08.11.2002 to

14.11.2002 which was also recommended. The next is the

application for 64 days from 07.12.2002 to 08.02.2003. Yet

another application is for the period from 19.05.2003 to

22.05.2003. This was followed by subsequent applications

also.

3690

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

16.

The case of the Respondent is that the workman’s

absence during the period for which Charge Memo was

issued was unauthorized for the reason that he has not

given any intimation to his office or has submitted any

application for leave also. However, it is seen from Ext.W13

that at least for the first charge of absence for 62 days, he

has submitted application. Ext.W13 (Page-18 of the typed

set) contains an application for leave for 64 days from

07.12.2002 to 08.02.2003. This leave is seen recommended

by the Branch Manager also. The stand of the Respondent

is that his leave was not sanctioned. The second

unauthorized absence is said to be of the period from

11.07.2003 to 29.07.2003, however in between 08.02.2003

and 11.03.2003 also leave applications are seen submitted

as seen from Ext.W13. Though the document would not

show if leave was recommended or not, it is to be presumed

that leave was given, or this period would have been

counted as period of unauthorized absence. I have referred

to the above leave applications in detail only to mention

that there is basis for the case of the workman that

consequent to the accident he was suffering from

continuous ailment, making it difficult for him to attend

the office frequently. Even from the document produced

by the Respondent it could be seen that he was on

authorized leave for a long time. Ext.M8 and Ext.M9 which

intimates the workman about his unauthorized absence

since 03.11.2003 states that he was on leave on loss of pay

for 278 days.

17.

The counter statement of the Respondent refers to

a communication from the workman asking for transfer to

Chennai to enable him to have effective treatment for his

ailments. This letter seeking transfer was sent by the

workman on 17.12.2004, after the Show Cause Notice was

issued to him. The letter which is marked as Ext.M17 states

in detail about the plight of the workman starting from the

road transport accident he met with in April 2000. He has

stated in this that he had undergone interlocking nailing

in his left leg from a hospital at Coimbatore. He has further

stated that as a consequence of the surgery he is suffering

from Deep Vein Thrombhosis making it difficult for him to

sit and hang his left leg for more than two hours. He has

requested the Respondent to permit him to continue on

leave to proceed with his treatment. He has, by the same

letter, also requested for a transfer to Chennai temporarily

for the purpose of treatment. However, the Respondent

has not heeded to this. Ext.W3, the letter written by him to

the Respondent on 21.12.2005 would show that he was

aware of the disciplinary proceedings that has been

initiated against him. In this letter he has stated that he is

not in a position to move from the bed due to swelling and

unbearable pain on both legs. He has stated that he

requires help even to attend the call of nature. He has

assured in the letter that he is ready to attend the enquiry

on recovering his health. He has sought time for attending

the enquiry. It could be seen that in spite of all this, the

enquiry was conducted in his absence and a verdict of

guilt was pronounced against him. The very fact that the

workman died on 27.05.2011 would show that he continued

to be ill and had died on account of his illness, in all

probability.

18.

In the circumstances referred to above, can the

absence of the workman be treated as unauthorized? The

Enquiry Officer has not considered whether the absence

of the workman was willful or not. On the basis of the

evidence given by the Manager of the Bank, the Enquiry

Officer has concluded that the absence of the workman

was without any previous permission or any intimation

and therefore it is unauthorized absence. The further

question whether there was any reason for the absence,

whether the workman was in a position to face the enquiry

was not considered by the Enquiry Officer. The

Disciplinary Authority has accepted the report, declared

the workman to be unauthorizedly absent and had imposed

the severe punishment of Compulsory Retirement from

service.

19.

The Counsel for the Petitioner has referred to the

decision of the Apex Court in Krushnakanth Vs. Union of

India and Another reported in 2012 3 SCC 178. The Apex

Court has held that if the absence of the employee is the

result of compelling circumstances under which it was not

possible to report or perform duty, such absence cannot

be held to be willful. Absence from duty without any

application or prior permission may amount to

unauthorized absence, but it does not always mean willful,

it was further held. It was also held that in a departmental

proceeding if the allegation of unauthorized absence from

duty is made, the Disciplinary Authority is required to

prove that the absence is willful and in the absence of

such finding, the absence will not amount to misconduct.

In the decision in Geetaben Rathilal Patel Vs. District

Primary Education Officer reported in 2013 7 SCC 182, in

which case there was continuous absence of 1360 days

due to mental illness, the order of reinstatement was upheld

by the Apex Court. In the decision in Bhagwan Lal Arya

Vs. Commissioner of Police, Delhi, reported in 2004 (2)

LLN 7, the Apex Court has held that where a Police

Constable was on leave on medical ground, the

punishment of dismissal from service was excessive and

disproportionate. In the present case the concerned

workman was suffering from ailments which made it

impossible for him to attend the enquiry proceedings and

face the same. Even though he was absent for a long period

his absence could not said to have been willful. Even

assuming that for some period his absence was

unauthorized it was not willful absence. The Respondent

has not attempted to establish before the enquiring

authority that the absence of the concerned workman was

willful. To this extent the finding of the Enquiry Officer is

perverse.

¹Hkkx II—[k.M 3(ii)º

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3691

20.

In the absence of proof of willful absence, the

Disciplinary Authority was not justified in imposing the

punishment of Compulsory Retirement on the concerned

workman. The workman having died on 27.05.2011, the

relief of reinstatement in service is impossible. However,

he is to be deemed to have been in service during the

period of his absence and continued to be in service until

his date of death on 27.05.2011. The workman having

exhausted all his eligible leave, I do not propose to grant

back wages to him till the date of order by the Disciplinary

Authority i.e. 28.02.2006. On the basis of my discussion

and finding above, an award is passed on the following

terms:

(i)

The concerned workman shall be deemed to have

been in service till his date of death on 27.05.2011.

(ii)

The workman will be entitled to 50% back wages

from 28.02.2006 till his date of death.

(iii)

The benefits due to the concerned workman as on

the date of his death shall be calculated and

disbursed to the legal heirs.

(iv)

The amount, if any, the workman has already

received as pension shall be adjusted towards the

amount payable.

(v)

Family Pension shall be calculated as if the workman

was in service till the date of his death i.e. 27.05.2011.

The reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 7th day of April, 2014)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1st Party/Petitioner Union

: None

For the 2nd Party/Management

: None

Documents Marked :

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

26.10.2004

Findings of the Enquiry Officer

Ex.W2

21.12.2005

Second Show Cause notice issued

to the 1st Party

Ex.W3

21.12.2005

Explanation to the Second Show

Cause Notice

Ex.W4

28.02.2006

Punishment order issued by the

2nd Party to the 1st Party

Ex.W5

04.08.2006

Order in WP No. 27435/2007

Ex.W6

29.08.2008

Appeal filed by the 1st Party

before the Appellate Authority

Ex.W7

31.01.2009

Copy of the order rejecting the

appeal preferred by the 1st Party

Ex.W8

09.11.2009

2(A) Petition

Ex.W9

19.03.2010

Counter filed by the 2nd Party

Ex.W10

24.09.2010

Copy of the order of reference

Ex.W11

National Identity Card and Pass

Book with Disability Certificate

issued by the Government of

Tamil Nadu

Ex.W12

List of Hospital in which the

deceased Kalyani Kumarasamy

took treatment

Ex.W13

Leave Applications given by

the deceased workman on various

dates

On the Management’s side

Ex.No.

Date

Description

Ex.M1

2000 April

Pass Book of SB A/c No. 28873 of

2003 Feb.

P. Raja in Villupuram Branch

Ex.M2

11.11.2003

Report of Branch Manager,

Villupuram Main Branch –

Regarding fraudulent debits of

Rs. 7,000/- in P. Raja’s SB A/c No.

28873 – with a partly torn slip

Ex.M3

16.12.2003

Report of Branch Manager,

Villupuram Main Branch to

Inspector of Police – Reg. missing

of withdrawal slip for payment of

Rs. 7,000/- from the voucher

bundle of 10.10.2003.

Ex.M4

17.12.2003

Complaint of P. Raja – SB A/c

Holder 28873 to Branch Manager,

Indian Bank, Villupuram (In Tamil)

SB A/c No. 28873

Ex.M5

21.11.2003

Letter from AGM-Vigilance to

C.V.O. & GM (VSG), HO, Chennai

enclosing report on the fraud by

Circle Head, Puducherry to

Vigilance C.O., Chennai

Ex.M6

20.01.2004

Investigation Report by Vigilance

Officer, C.O., Puducherry

Ex.M7

a) Dec. 2002

Attendance Sheet (MEX-3)

To Feb. 2003

b) July 2003

Attendance Sheet (MEX-3)

c) Aug. 2003 Attendance Sheet (MEX-4)

and Sep.2003

d) Nov. 2003 Attendance Sheet

e) Dec. 2003

Attendance Sheet (MEX-5)

3692

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Ex.M8

29.11.2003

Letter from Villupuram Branch to

M. Kalyani Kumarasamy (to his

Villupuram Address) – regarding

his unauthorized absence since

03.11.2003 and instructing to

report for duty immediately

Ex.M9

12.12.2003

Letter from Villupuram Branch to

Mr. K.S. Kalyani Kumarasamy (to

his South Kadayam Village

Address by RPAD and by

ordinary post) – reg. his

unauthorized absence (UAA)

since 03.11.2003 and instructing

him to report for duty forthwith

and to his Chennai address (Both

– Returned undelivered)

Ex.M10

18.12.2003

News Item published in Dinamani,

Dinamalar and Dinakaran

Ex.M11

24.12.2003

Letter from Villupuram Branch to

K.S. Kalyana Kumarasamy – to his

village address and to his Chennai

address – calling for his

explanation on lapses committed

by him in work (fraudulent

withdrawal) and advising to report

for work immediately

Ex.M12

09.01.2004

Memo from Villupuram Main

Branch to Circle Office,

Puducherry – 24.12.2003 letters

returned undelivered

Ex.M13

27.01.2004

Letter from CO. Vigilance,

Puducherry to CVO and GM (VG)

H.O.V.G. Chennai

Ex.M14

30.04.2004

Memo from C.O., Vigilance –

Pondicherry to Mr. K.S. Kalyana

Kumarasamy on his authorized

habitual absence on various

period beween 09.12.2002 to

30.04.2004 and calling for his

explanation sent by RPAD

Ex.M15

05.05.2004

Memo from Villupuram Main

Branch to CO, Pondicherry

stating that 30.04.2004 letter to the

employee returned undelivered

enclosing copy of Postal

Acknowledgement with Postal

endorsements

Ex.M16

11.05.2004

Letter from Villupuram Main

Branch to Circle Office,

Puducherry stating Memo dated

30.04.2004 sent by RPAD to the

employee returned undelivered

Ex.M17

17.12.2004

Letter from Mr. K.S. Kalyani

Kumarasamy from Dadayam to

AGM, CO, Pondicherry

Ex.M18

16.12.2003

Letter from Branch Manager,

Villupuram to Inspector of Police,

Villupuram – regarding the

fraudulent transaction by KS

Kalyani Kumarasamy

Ex.M19

16.12.2003

FIR

Ex.M20

29.07.2004

Further Memo/Charge Sheet from

CO – Vig. – Pondicherry to Mr.

K.S. Kalyani Kumarasamy

appointing an Enquiry Officer to

enquire into the charges leveled

against Mr. K.S. Kalyani

Kumarasamy

Ex.M21

03.08.2004

Letter from Villupuram Main

Branch to CO, Puducherry letter

dated 29.07.2004 posted in the

door of the place where the

employee last staying

Ex.M22

18.08.2004

Letter from Villupuram Main

Branch to CO, Puducherry that

letters dated 29.07.2004 returned

undelivered

Ex.M23

04.10.2004

Paper Publication in “Dina Malar”

– Notice of Enquiry /Enquiry on

26.10.2004 (in Tamil)

Ex.M24

26.10.2004

Proceedings of Enquiry

Ex.M25

03.11.2004

Presenting Officer’s summing up

Ex.M26

03.06.2005

Letter from Enquiry Officer to

DGM/CH/DA/CO/Pondicherry –

enclosing Enquiry Report

Ex.M27

09.07.2005

Second Show Cause Memo from

CO/Vig./Pondy – to Mr. K.S.

Kalyani Kumarasamy to his

residential address, Kadayam etc.

calling for his comments on the

report of Enquiry Officer – with

Postal Acknowledgement –

(Original) – Confirming receipt of

the Memo

Ex.M28

21.11.2005

Letter from CO/Vig./Pondy to Mr.

K.S. Kalyani Kumarasamy and to

his Kadayam address – advising

again to submit his comments on

enquiry findings – with Postal

Acknowledgement (Original) –

confirming receipt of the letter

Ex.M29

21.12.2005

Second Show Cause Memo

proposing

punishment

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3693

Compulsory Retirement with

superannuation benefits and

censure for second charge –

calling for his reply and to appear

for

personal

hearing

02.01.2006, (SSC Memo dated

21.12.2005 – filed by petitioner also

and postal acknowledgement

Ex.M30

21.12.2005

Representation of K.S. Kalyani

Kumarasami (also filed by

petitioner) (with his Sholiganallur

address)

Ex.M31

04.01.2006

Reply from CO/Per. Deptt./Pondy

to Mr. K.S. Kalyani Kumarasamy

to his Sholinganallur address

Ex.M32

17.01.2006

Letter from Indian Bank, Circle

Office,

Vig.

Department,

Pondicherry – enclosing copy of

postal covers and one returned

undelivered cover.

Ex.M33

04.02.2006

Paper publications (two Nos.)

directing finally to appear from

personal hearing on 22.02.2006 –

against the proposed punishment

of Compulsory Retirement with

superannuation benefits

Ex.M34

28.02.2006

Order of the Disciplinary

Authority

Ex.M35

27.03.2006

Paper publication – proposing the

punishment of Compulsory

Retirement with superannuation

benefits

Ex.M36

30.06.2006

Bank’s reply to Mr. K.S. Kalyani

Kumarasamy on his mercy

petitioner dated 29.05.2006

enclosing letter of 28.06.2006

addressed to the employee and

postal acknowledgement

Ex.M37

04.08.2006

Letter from Mr. Kalyani

Kumarasamy to AGM – Indian

Bank, CO., Pondicherry

Ex.M38

25.08.2006

Bank’s reply to Mr. K.S. Kalyani

Kumarasamy

Ex.M39

28.08.2006

Letter from employee to DGM –

Indian Bank, Puducherry

Ex.M40

05.09.2006

Letter from Bank to the employee

with postal acknowledgement

Ex.M41

13.03.2013

Letter from AGM – Villupuram

Branch to Z.O. Vigilance Cell,

Puducherry

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1382-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,uVhihlh

fyfeVsM ,iQ,lVhihih 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 ,oa Je U;k;ky;] dksydrk ds iapkV

(lanHkZ la[;k 14@2013) dks izdkf'kr djrh gS tks dsUnzh; ljdkj

dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&42011@175@2012&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1382.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 14 of

2013 ) of the Central Government Industrial Tribunal/

Labour Court, Kolkata now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of the NTPC Ltd., FSTPP and their

workmen, which was received by the Central Government

on 28/04/2014

[No. L-42011/175/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 14 of 2013

Parties : Employers in relation to the management of

NTPC Ltd., FSTPP.

A N D

Their workmen.

Present : Justice Dipak Saha Ray, Presiding Officer

Appearance:

On behalf of the

: Mr. U.K. Mondal, Ld. Advocate.

Management

On behalf of the

: None.

Workman

State : West Bengal.

Industry: Power.

Dated: 21st April, 2014.

AWARD

By Order No.L-42011/175/2012-IR(DU) dated

28.02.2013 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 action of the Management of NTPC is

justified for implementing/allowing two types of

wages for contractual workers like ‘norms’ and ‘non-

norms’ is legal and/or justified? If not what relief

the workman are entitled to?”

3694

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

When the case is taken up for hearing today, copy

of judgment dated 28th February, 2014 passed by the

Hon’ble Calcutta High Court in W.P. 21716 (W) of 2013,

W.P. 1357 (W) of 2014 and W.P 1366 (W) of 2014 as

received from the Central Government is placed before

me. Perused the said judgment. From the said judgment it

appears that the Hon’ble Court has been pleased to set

aside the order of reference dated Feb 28, 2013.

Since the order of reference dated 28.02.2013 has

been set aside by the Hon’ble High Court, the instant

reference case is disposed of accordingly.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 21st April , 2014.

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1383-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,uVhihlh

fyfeVsM] ,iQ,lVhihih 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 ,oa Je U;k;ky;] dksydkrk ds

iapkV (lanHkZ la[;k 15@2013) dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&42011@174@2012&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1383.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 15 of

2013 ) of the Central Government Industrial Tribunal/

Labour Court, Kolkata now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of the NTPC Ltd., FSTPP and their

workmen, which was received by the Central Government

on 28/04/2014.

[No. L-42011/174/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 15 of 2013

Parties: Employers in relation to the management of

NTPC Ltd., FSTPP.

A N D

Their workmen.

PRESENT : JUSTICE DIPAK SAHA RAY,

Presiding Officer

Appearance:

On behalf of the

: Mr. U.K. Mondal, Ld. Advocate.

Management

On behalf of the

: None.

Workman

State : West Bengal.

Industry: Power.

Dated: 21st April, 2014.

AWARD

By Order No.L-42011/174/2012-IR(DU) dated

28.02.2013 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 action of the Management of NTPC is

justified forimplementing/allowing two types of

wages for contractual workers like ‘norms’ and ‘non-

norms’ is legal and/or justified? If not what relief the

workmen are entitled to?”

When the case is taken up for hearing today, copy

of judgment dated 28th February, 2014 passed by the

Hon’ble Calcutta High Court in W.P. 21716 (W) of 2013,

W.P. 1357 (W) of 2014 and W.P 1366 (W) of 2014 as

received from the Central Government is placed before

me. Perused the said judgment. From the said judgment it

appears that the Hon’ble Court has been pleased to set

aside the order of reference dated Feb 28, 2013.

Since the order of reference dated 28.02.2013 has

been set aside by the Hon’ble High Court, the instant

reference case is disposed of accordingly.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 21st April , 2014.

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1384-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

Hkkjr lapkj fuxe fyfeVsM] gSnjkckn 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 ,oa Je U;k;ky; gSnjkckn ds

iapkV (lanHkZ la[;k 45@2005) dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@178@2004&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1384.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 45/2005

) of the Central Government Industrial Tribunal/Labour

Court, Hyderabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the General Manager, Bharat Sanchar

Nigam Ltd, Vijayawada and their workman, which was

received by the Central Government on 28/04/2014

[No. L-40012/178/2004-IR(DU)]

P. K. VENUGOPAL, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3695

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

PRESENT :

SMT. M. VIJAYA LAKSHMI, Presiding Officer

Dated the 3rd day of April, 2014

INDUSTRIAL DISPUTE No. 45/2005

Between:

Sri B. Soundhar Kumar,

C/o Sri P. Appa Rao Reddy,

District Secretary,

NUBSNLW(FNTO), No. 252,

Labour Colony, Vidyadharapuram,

Vijayawada – 12.

…...Petitioner

AND

The General Manager,

Bharat Sanchar Nigam Ltd.,

Vijayawada.

….Respondent

Appearances:

For the Petitioner

: M/s. Dr. A. Raghu Kumar &

B. Pavan Kumar, Advocates

For the Respondent : Sri Karoor Mohan, Advocate

AWARD

In pursuance of the claim made by the Petitioner

workman Sri B. Soundhar Kumar, the Government of India,

Ministry of Labour by its order No. L-40012/178/2004-

IR(DU) dated 9.5.2005 referred the following dispute under

section 10(1)(d) of the I.D. Act, 1947 requiring this forum

to decide the question:

SCHEDULE

“Whether the action of the management of Bharat

Sanchar Nigam Limited, Vijayawada in dismissing

services of Shri B. Soundhar Kumar, Ex-casual

Labour is justified? If not, to what relief the

concerned workman is entitled to?”

After receiving the reference this Tribunal has

registered and numbered the reference as I.D. No. 45/2005

and issued notices to both the workman and the

management. Both parties appeared before the court and

engaged their respective counsels. M/s. A. Raghu Kumar

& B. Pavan Kumar appeared for the Petitioner and Sri

Karoor Mohan appeared on behalf of the Respondent.

The Petitioner/workman filed his claim statement

with the averments in brief as follows:

Petitioner has been interviewed and selected as

casual mazdoor on daily wages by the Assistant Engineer,

Railway Electrification Project, Kajipet of the Erstwhile

Indian Post and Telegraph Department, vide his letter

No. E-2/Mazdoor/84-85/20 at Kajipet dated 1.10.1984. He

was continued as such from 1.6.1985 to 1.6.1989 and

subsequently again from November, 1996 to 31.5.1999. He

completed 8 years of service. The Director General,

Telecom, New Delhi vide their letter dated 7.11.1989

introduced a scheme called Casual Labourers(Grant of

Temporary Status and Regularization) Scheme, which came

into force w.e.f. 1.10.1989 and it is applicable to the casual

labourers employed by the Department of Telecommunications

as detailed in paras 2 and 3 of the annexure to the said

scheme. As per para 4 vacancies in Group D cadre in

various offices of the Department are to be exclusively

filled by regularization of casual labourers fulfilling the

eligibility conditions as per para 4(B). The casual labourers

be conferred temporary status as per para 5(i). Even

currently employed casual labourers will be conferred with

temporary status if they rendered continuous service of

atleast one year. Out of which they must have been

engaged on work for a period of 240 days. Such

confirmation of temporary status would be without

reference to the creation/availability of regular Group ‘D’

posts. The temporary status would entitle the casual

labourers for wages on daily rates with reference to a

minimum of pay scales for a regular Group ‘D’ official

including DA, HRA and CCA etc., as per para 8 of the

Annexure to the scheme. A temporary status mazdoor

can be disengaged only in accordance with the relevant

provisions of the Industrial Disputes Act, 1947. Petitioner

is entitled to the grant of temporary status and

regularization as per the scheme. The Department of

Telecommunication vide its letter dated 29.9.2000 decided

to regularize all the casual labourers working with them

including those who were granted temporary status w.e.f.

1.10.2000. The Petitioner was disengaged w.e.f. 1.6.1999

by oral order without following the provisions of Sec.25F

of the Industrial Disputes Act, 1947 which is illegal,

arbitrary and void ab initio. He approached Assistant

Labour Commissioner (C) on 22.9.2003 for re-engagement

and for conversion of his case into full time casual labourer

and consequential benefits such as regularization etc..

Conciliation failed. Thus, the reference. Petitioner is entitled

for reinstatement, grant of temporary status and

regularization as per the scheme mentioned above.

Respondent have regularized the services of many of the

juniors of the Petitioner while refusing to grant the same

to the Petitioner. Thus, the Respondent be directed to

reinstate the Petitioner with consequential benefits of

grant of temporary status and regularization while holding

the action of the Respondent disengaging the services of

the Petitioner, w.e.f. 1.6.1999 and the scheme of the

Respondents, dated 7.11.1989 and 17.12.1993 as violative

of Sec.25F and Sec.25(B) of Industrial Disputes Act, 1947.

Respondent filed his counter with the averments in

brief as follows:-

Contention of the Petitioner that he was interviewed

and selected as casual mazdoor on daily wages vie order

dated 1.10.1984 w.e.f. 1.6.1984 is all denied. It is also denied

that Petitioner worked at different places upto 3.5.1999

and completed 8 years of service with the Respondent.

3696

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

The scheme calling the casual labourers (grant of

temporary status and regularization) scheme DOT Lr.

No.269-10/89-STN dated 7.11.1989 effective from 1.10.1989

has been formulated and there after orders were issued

from time to time extended scheme to the casual mazdoors

working up to 1.8.1998. All the persons who are eligible as

per the orders mentioned above were granted temporary

status and regularization. Petitioner’s name was nowhere

found to be eligible under the said scheme. He has not

been engaged and hence, the question of granting of

temporary status and regularization of his service does no

arise. Petitioner was neither engaged nor disengaged.

Thus, following all the provisions of Sec.25F of Industrial

Disputes Act, 1947 does not arise. He is not a workman.

Respondent filed written statement before Assistant

Labour Commissioner (C), Vijayawada denying that the

Petitioner’s services were ever engaged by the

Respondent. The relief prayed by the Petitioner are

untenable totally and he was never engaged by the

Respondent and he is not a workman. No particulars of

juniors who according to the Petitioner were regularized,

even not mentioned in the petition which itself shows the

aforesaid falsity of the allegations. Petitioner is not entitled

to an order of reinstatement with consequential benefits

of regularization, grant of temporary status sought for.

Petition is liable to be dismissed.

To substantiate the contentions of the Petitioner, he

examined himself as WW1 and got marked Ex.W1 to W5.

On behalf of the Respondent management MW1 has been

examined and got marked Ex.M1 to M4.

WW1 has been cross examined for management.

whereas inspite of giving due opportunity, for Petitioner,

cross examination of MW1 was not held. This court is

constrained to forfeit the Petitioner to cross examine MW1,

thus the evidence of MW1 remained unchallenged.

Heard the arguments.

The point that arise for determination is:-

Whether the Petitioner is entitled for the relief

sought for?

Point:

It is the contention of the Petitioner that he worked

as casual mazdoor for the Respondent for about 8 years.

Whereas it is the contention of the Respondent that

Petitioner was never engaged as casual mazdoor for them

and he never worked for them. To substantiate his

contentions Petitioner examined himself as WW1 and he

relied upon, Ex.W1, the copy of the letter dated 1.10.1984

said to have been issued by Assistant Engineer, Railway

Electrification Project, Kajipet to the Petitioner, stating to

the effect that Petitioner has been interviewed on 1.01.1984

at Kajipet and was selected as casual mazdoor on daily

wages and Ex.W2 is the copy of work particulars of one

Sri Battu Sundar Kumar, said to have been issued by

Assistant Engineer, Telecom, Railway Electrification

Project, Vijayawada.

As can be seen from the cross examination of the

Petitioner as WW1, Respondent is disputing with the

genuineness of Ex.W1 and W2. It is suggested to WW1

for Respondent that these documents are fabricated for

this case. WW1 denied the truth of the said suggestion,

but has admitted that these are Photostat copies and

expressed his preparedness to file the originals. But no

such originals are produced before the court.

10.

As already discussed above, Ex.W2 is pertaining to

one Sundara Kumar, whereas the name of the workman is

‘B. Soundhara Kumar’. Thus, the said document can not

be connected to the Petitioner. Likewise, it is for the

Petitioner to establish genuineness of Ex.W1 also. The

rest of the documents filed for the Petitioner are pertaining

to the scheme for regularization of casual labourers

regarding which there is no dispute.

11.

MW1, the Sub Divisional Engineer of the

Respondent, has categorically stated that Petitioner was

never interviewed and was never selected as mazdoor on

daily wages and that Petitioner never put in 8 years of

service as claimed by him and that he was never

disengaged. It is their categorical contention that the

scheme for regularization of casual labourers formulated

is not at all applicable to the Petitioner as his services

were never engaged. This witness has not been subjected

to cross examination for the Petitioner, thus, his evidence

remained unchallenged.

12.

In the given circumstances, it is to be taken that

Petitioner failed to establish his claim that he has been

working as casual mazdoor for the Respondent and that

he was disengaged by the Respondent at any point of

time. Thus, he is not entitled for any direction for

reinstatement into service and consequential benefits of

conferring of temporary status and regularization, sought

for by him.

This point is answered accordingly.

Result :

In the result, the reference is answered as follows:

There is no proof that the management of Bharat

Sanchar Nigam Limited, Vijayawada engaged the services

of the Petitioner and dismissed his services, hence, the

Petitioner is not entitled for any of the reliefs sought for.

Hence, reference is answered in negative.

Award passed accordingly. Transmit.

Dictated to Smt. P. Phani Gowri, Personal Assistant

transcribed by her and corrected by me on this the 3rd

day of April, 2014.

M. VIJAYA LAKSHMI, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3697

Appendix of evidence

Witnesses examined for

Witnesses examined for the

the Petitioner

Respondent

WW1: Sri B. Soundhar

MW1 : Sri M. Panakala Rao

Kumar

Documents marked for the Petitioner

Ex.W1:

Photostat copy of the lr. No.E-2/Mazdoor/84-85/

20, dated.1.10.1984

Ex.W2:

Photostat copy of the employment particulars of

one Sri Battu Sundar Kumar

Ex.W3:

Photostat copy of DG Telecom, New Delhi

lr.No.269-10/89-STN dt.7.11.89

Ex.W4:

Photostat copy of lr. of DOT, New Delhi No.269-

4/93 dt. 17.12.93

Ex.W5:

Photostat copy of Lr. No.269-94/98-STN-II

dt.29.9.2000

Documents marked for the Respondent

Ex.M1:

Photostat copy of DG Telecom, New Delhi

lr.No.269-10/89-STN dt.7.11.89

Ex.M2:

Photostat copy of lr. of DoT lr.No.269/4/93-STN-

II dated 17.12.1993

Ex.M3:

Photostat Copy of TCHQ lr.No. 269-4/93-STN-II

dated 12.2.1999 reg. sanction of posts of regular

mazdoor for regularization of temporary status

casual mazdoors.

Ex.M4:

Photostat copy of lr. No.269-12/99-STN-II of DTS

New Delhi dt. 9.6.2000

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1385-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

tujy eSustj] Hkkjr lapkj fuxe fyfeVsM] gSnjkckn 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 ,oa Je

U;k;ky;] gSnjkckn ds iapkV (lanHkZ la[;k 47@2005) dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@180@2004&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1385.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 47/2005

) of the Central Government Industrial Tribunal/Labour

Court, Hyderabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the General Manager, Bharat Sanchar

Nigam Ltd, Vijayawada and their workman, which was

received by the Central Government on 28/04/2014.

[No. L-40012/180/2004-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT

AT HYDERABAD

Present : Smt. M. Vijaya Lakshmi, Presiding Officer

Dated the 3rd day of April, 2014

INDUSTRIAL DISPUTE No. 47/2005

Between :

Sri N. Shiva Kumar,

C/o Sri P. Appa Rao Reddy,

District Secretary,

NUBSNLW (FNTO), No.252,

Labour Colony, Vidyadharapuram,

Vijayawada – 12.

…...Petitioner

AND

The General Manager,

Bharat Sanchar Nigam Ltd.,

Vijayawada.

….Respondent

Appearances:

For the Petitioner

: M/s. Dr. A. Raghu Kumar &

B. Pavan Kumar, Advocates

For the Respondent : Sri Karoor Mohan, Advocate

AWARD

In pursuance of the claim made by the Petitioner

workman Sri N. Shiva Kumar, the Government of India,

Ministry of Labour by its order No. L- 40012/180/2004-

IR(DU) dated 3.5.2005 referred the following dispute under

section 10(1)(d) of the I.D. Act, 1947 requiring this forum

to decide the question:

SCHEDULE

“Whether the action of the management of Bharat

Sanchar Nigam Limited, Vijayawada in dismissing

services of Shri N. Shiva Kumar, Ex-casual Labour is

justified? If not, to what relief the concerned

workman is entitled to?”

After receiving the reference this Tribunal has

registered and numbered the reference as I.D. No. 47/2005

and issued notices to both the workman and the

management. Both parties appeared before the court and

engaged their respective counsels. M/s. A. Raghu Kumar

& B. Pavan Kumar appeared for the Petitioner and Sri

Karoor Mohan appeared on behalf of the Respondent.

The Petitioner/workman filed his claim statement

with the averments in brief as follows:

Petitioner has been interviewed and selected as

casual mazdoor on daily wages by the Assistant Engineer

(Cables) CTO Building, Vijayawada, vide his letter No.1-9/

Mazdoor/83-84/65 at Vijayawada dated 390.4.1984 w.e.f.

3698

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

1/4/1984. He was continued as such from 1.4.1984 to

1.4.1998. He completed 14 years of service. The Director

General, Telecom, New Delhi vide their letter dated

7.11.1989 introduced a scheme called Casual

Labourers(Grant of Temporary Status and Regularization)

Scheme, which came into force w.e.f. 1.10.1989 and it is

applicable to the casual labourers employed by the

Department of Telecommunications as detailed in paras 2

and 3 of the annexure to the said scheme. As per para 4

vacancies in Group D cadre in various offices of the

Department are to be exclusively filled by regularization

of casual labourers fulfilling the eligibility conditions as

per para 4(B). The casual labourers be conferred temporary

status as per para 5(i). Even currently employed casual

labourers will be conferred with temporary status if they

rendered continuous service of atleast one year. Out of

which the must have been engaged on work for a period

of 240 days. Such confirmation of temporary status would

be without reference to the creation/availability of regular

Group ‘D’ posts. The temporary status would entitle the

casual labourers for wages on daily rates with reference to

a minimum of pay scales for a regular Group ‘D’ official

including DA, HRA and CCA etc., as per para 8 of the

Annexure to the scheme. A temporary status mazdoor

can be disengaged only in accordance with the relevant

provisions of the Industrial Disputes Act, 1947. Petitioner

is entitled to the grant of temporary status and

regularization as per the scheme. The Department of

Telecommunication vide its letter dated 29.9.2000 decided

to regularize all the casual labourers working with them

including those who were granted temporary status w.e.f.

1.10.2000. The Petitioner was disengaged w.e.f. 2.4.1998

by oral order without following the provisions of Sec.25F

of the Industrial Disputes Act, 1947 which is illegal,

arbitrary and void ab initio. He approached Assistant

Labour Commissioner (C) on 22.9.2003 for re-engagement

and for conversion of his case into full time casual labourer

and consequential benefits such as regularization etc..

Conciliation failed. Thus, the reference. Petitioner is

entitled for reinstatement, grant of temporary status and

regularization as per the scheme mentioned above.

Respondent have regularized the services of many of the

juniors of the Petitioner while refusing to grant the same

to the Petitioner. Thus, the Respondent be directed to

reinstate the Petitioner with consequential benefits of

grant of temporary status and regularization while holding

the action of the Respondent disengaging the services of

the Petitioner, w.e.f. 2.4.1998 and the scheme of the

Respondents, dated 7.11.1989 and 17.12.1993 as violative

of Sec.25F and Sec.25(B) of Industrial Disputes Act, 1947.

Respondent filed his counter with the averments in

brief as follows:-

Contention of the Petitioner that he was interviewed

and selected as casual mazdoor on daily wages vide order

dated 30.4.1984 w.e.f. 1.4.1984 is all denied. It is also denied

that Petitioner worked at different places upto 1.4.1998

and completed 14 years of service with the Respondent.

The scheme calling the casual labourers (grant of

temporary status and regularization) scheme DOT Lr.

No.269-10/89-STN dated 7.11.1989 effective from 1.10.1989

has been formulated and there after orders were issued

from time to time extended scheme to the casual mazdoors

working up to 1.8.1998. All the persons who are eligible as

per the orders mentioned above were granted temporary

status and regularization. Petitioner’s name was nowhere

found to be eligible under the said scheme. He has not

been engaged and hence, the question of granting of

temporary status and regularization of his service does no

arise. Petitioner was neither engaged nor disengaged.

Thus, following all the provisions of Sec.25F of Industrial

Disputes Act, 1947 does not arise. He is not a workman.

Respondent filed written statement before Assistant

Labour Commissioner (C), Vijayawada denying that the

Petitioner’s services were ever engaged by the

Respondent. The relief prayed by the Petitioner are

untenable totally and he was never engaged by the

Respondent and he is not a workman. No particulars of

juniors who according to the Petitioner were regularized,

even not mentioned in the petition which itself shows the

aforesaid falsity of the allegations. Petitioner is not entitled

to an order of reinstatement with consequential benefits

of regularization, grant of temporary status sought for.

Petition is liable to be dismissed.

To substantiate the contentions of the Petitioner, he

examined himself as WW1 and got marked Ex.W1 to W4.

On behalf of the Respondent management MW1 has been

examined and got marked Ex.M1 to M4.

WW1 has been crossexamined for management.

Whereas inspite of giving due opportunity, for Petitioner,

cross examination of MW1 was not held. This court is

constrained to forfeit the Petitioner to cross examine MW1,

thus the evidence of MW1 remained unchallenged.

Heard the arguments.

The point that arise for determination is:-

Whether the Petitioner is entitled for the relief

sought for?

Point:

It is the contention of the Petitioner that he worked

as casual mazdoor for the Respondent for about 14 years.

Whereas it is the contention of the Respondent that

Petitioner was never engaged as casual mazdoor for them

and he never worked for them. To substantiate his

contentions Petitioner examined himself as WW1 and he

relied upon, Ex.W1, the copy of the letter dated 30.4.1984

said to have been issued by Assistant Engineer(Cables),

Vijayawada to the Petitioner, stating to the effect that

Petitioner has been interviewed on 30.4.1984 at Vijayawada

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3699

and was selected as casual mazdoor on daily wages and

Ex.W2 is the copy of work particulars of the Petitioner

said to have been issued by Assistant Engineer, Cable,

Vijayawada.

As can be seen from the cross examination of the

Petitioner as WW1, Respondent is disputing with the

genuineness of Ex.W1 and W2. It is suggested to WW1

for Respondent that these documents are fabricated for

this case. WW1 denied the truth of the said suggestion,

but has admitted that these are Photostat copies and

expressed his preparedness to file the originals. But no

such originals are produced before the court.

10.

It is for the Petitioner to establish genuineness of

Ex.W1 and Ex.W2. He failed to do so. The rest of the

documents filed for the Petitioner are pertaining to the

scheme for regularization of casual labourers regarding

which there is no dispute.

11.

MW1, the Sub Divisional Engineer of the

Respondent, has categorically stated that Petitioner was

never interviewed and was never selected as mazdoor on

daily wages and that Petitioner never put in 8 years of

service as claimed by him and that he was never

disengaged. It is their categorical contention that the

scheme for regularization of casual labourers formulated

is not at all applicable to the Petitioner as his services

were never engaged. This witness has not been subjected

to cross examination for the Petitioner, thus, his evidence

remained unchallenged.

12.

In the given circumstances, it is to be taken that

Petitioner failed to establish his claim that he has been

working as casual mazdoor for the Respondent and that

he was disengaged by the Respondent at any point of

time. Thus, he is not entitled for any direction for

reinstatement into service and consequential benefits of

conferring of temporary status and regularization, sought

for by him.

This point is answered accordingly.

Result:

In the result, the reference is answered as follows:

There is no proof that the management of Bharat

Sanchar Nigam Limited, Vijayawada engaged the services

of the Petitioner Shri N. Shiva Kumar and dismissed his

services, hence, the Petitioner is not entitled for any of the

reliefs sought for.

Hence, reference is answered in negative.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant and corrected by me on this the 3rd

day of April, 2014.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

Witnesses examined for the

the Petitioner

Respondent

WW1: Sri N. Shiva

MW1: Sri M. Panakala Rao

Kumar

Documents marked for the Petitioner

Ex.W1:

Photostat copy of the lr. No.1-9/Mazdoor/83-84/

65 dated 30.4.1984

Ex.W2:

Photostat copy of the employment particulars of

one Sri N. Siva Kumar

Ex.W3:

Photostat copy of DG Telecom, New Delhi

lr.No.269-10/89-STN dt.7.11.89

Ex.W4:

Photostat copy of Lr. No.269-94/98-STN-II

dt.29.9.2000

Documents marked for the Respondent

Ex.M1:

Photostat copy of muster roll folio No.5, Book

No.AP 518 pertains to May, 1984 issued by Sub-

Divisional Officer(Phones) Vijayawada.

Ex.M2:

Photostat copy of muster roll folio No.5, Book

No.AP 518 pertains to June, 1984 issued by Sub-

Divisional Officer (Phones) Vijayawada.

Ex.M3:

Photostat copy of DG Telecom, New Delhi

lr.No.269-10/89-STN dt.7.11.89

Ex.M4:

Photostat copy of lr. of DoT lr.No.269/4/93-STN-

II dated 17.12.1993

Ex.M5:

Photostat Copy of TCHQ lr.No. 269-4/93-STN-II

dated 12.2.1999 reg. sanction of posts of regular

mazdoor for regularization of temporary status

casual mazdoors.

Ex.M6:

Photostat copy of lr. No.269-12/99-STN-II of DTS

New Delhi dt. 9.6.2000

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1386-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

lqifjUVsUMsUV vkWiQ iksLV] gsM iksLV vkWfiQl] 'kgMksy 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 ,oa Je

U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k CGIT/LC/R/25@2005)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&40012@161@2004&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1386.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGIT/

LC/R/25/2005 ) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

3700

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Annexure in the Industrial Dispute between the employers

in relation to the management of the Supdt. of Post, Head

Post Office, Shahdol and their workman, which was

received by the Central Government on 28/04/2014

[No. L-40012/161/2004-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/25/05

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Yadvendra Singh,

S/o Shri Darku Singh,

Vill/PO Mithori,

Distt. Shahdol (MP)

.....Workman

Versus

The Supdt. Of Post,

Head post Office,

Shahdol (MP)

.....Management

AWARD

Passed on this 8th day of April 2014

As per letter dated 22-3-2005 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-40012/

161/2004-IR(DU). The dispute under reference relates to:

“ Whether the action of the Supdt. Of Head Post

Office, shahdol MP in terminating the services of

Shri Yadvendra, Post Master, who rendered

continuous service of 18 months (completed more

than 240 days of continuous services in a calendar

year) without complying the provisions of the

I.D.Act, 1947 is legal and justified? If not, to what

relief the workmen are entitled to?”

After receiving reference, notices were issued to

the parties. workman submitted statement of claim. Case

of workman is that he had submitted application for

EDBPM, Mithouri on 18-4-85. As per order dated 12-3-05,

he was appointed as post master Mithouri, he was

performing his duties continuously 18 months. . he received

treatment on 3-11-1985. As per order dated 16-2-85, he was

entrusted entire work of mobile post office. On 12-9-86, he

was directed to handover charge to one Brijesh Prasad

Dwivedi of branch Nigheri. Thereafter he submitted

application to the appointing authority, Suptd. Of Post

office, Raipur on 18-10-86. As per letter dated dated

26-11-86, he was assured that his name was included in

Waiting List. Despite of repeated correspondence, he was

not allowed to look after the work of mobile post office.

Only assurances were given about his appointment. He

was not appointed on any other post. There were vacancies

that on 23-1-04, workman issued notice to the appointment

authority Shahdol as per reply dated 24-2-04, the authority

refused his request for his appointment. Workman submits

that he may be reinstated with consequential benefits.

IInd party Suptd. Post Office, Shahdol submitted

Written Statement at Page 8/1 to 8/3. Claim of workman is

denied. It is submitted that workman was involved in

offence under Section 302. He was committed to jail. Brijesh

Prasad Dwivedi was entrusted work of Mithouri branch

Mobile Post office from 27-5-81. The workman was

acquitted in criminal case No. 44/85 on 4-8-86. He was

allowed to work in branch office from 4-9-86 subject to

certain conditions. In parawise remark, IInd party submits

that applications were called for Mobile Postman on

18-4-85. Workman had admitted terms and conditions. His

services were liable to be terminated without notice. It is

denied that workman was given training of sub Post office.

All other material contentions of workman are denied.

Workman was entrusted work subject to terms and

conditions. As per letter dated 26-11-86 it was informed to

workman that employee working less than 3 years can be

terminated any time. That as per letter dated 23-2-79, if

vacant post is not available within one year, name from

waiting List is to be withdrawn. It is submitted that

workman is trying to mislead this Tribunal. There is no

provision for payment of compensation..workman cannot

be appointed as no post is liable vacant.

Workman submitted rejoinder reiterating his

contentions in statement of claim. IInd party also submitted

rejoinder reiterating contentions in Written Statement.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the Supdt.

In Affirmative

of Head Post Office, shahdol MP

in terminating the services of Shri

Yadvendra, Post Master, who

rendered continuous service of

18 months (completed more than

240 days of continuous services

in a calendar year) without com-

plying the provisions of the

I.D.Act, 1947 is legal and justified?

(ii) If not, what relief the workman is

As per final

entitled to?”

order

REASONS

Workman is challenging termination of his services.

Details pleaded in his written statement. The workman

filed affidavit of his evidence. Workman has stated that he

was appointed as per order dated 12-3-85 as sub

postmaster. He has continuously rendered his services till

1988. On 16-2-86, he was entrusted the entire charge of

work. He was relieved on 18-10-86 as per the directions of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3701

Suptd. of Post Office, Raipur. Thereafter his repeated

request and representations were not considered. He was

not allowed to work. He was not paid retrenchment

compensation etc. In his cross-examination workman says

he had readover memo signed at the time of joining Exhibit

M-1. He denies that if the work was over he would be

provided work at other place. When he requested for his

joining, he was informed that his name was included in the

Waiting List. He had received training at Annuppur about

work of Saving scheme. He was allowed work of saving

Scheme time to time. Accordingly he was working. The

document Exhibit W-1 is by office of Suptd. Of Post Office,

Shahdol is a notice for filling office of mobile Post Office.

The remuneration was Rs. 177/- per month. It was subject

to several conditions mentioned in the document. That

the candidates would be local, he should possess

accommodation for such Post office. Memorandum Exhibit

W-2 clearly shows that appointment of Ist party workman

was liable to be terminated without notice. The provisional

appointment was till regular appointment was made. It is

clear that workman was not regularly appointed. Document

Exhibit W-3 is about training received by workman. Exhibit

W-4 is order of appointment of workman on 16-2-85. As

per document Exhibit W-5, workman was liable to be

terminated at any time. The requisite forms were to be

filled by workman. Exhibit W-6 is the list of handing over

charge. Exhibit W-7 is letter given by Suptd. of Post

Shahdol directing workman to handover charge and he

was relieved. Documents Exhibit W-8 shows that workman

was informed his name was included in Waiting List in

pursuance of letter dated 18-10-86. Exhibit W-9 is notice

issued by workman, W-10 is reply by management denying

his request for appointment. The evidence discussed

above clearly shows that appointment of workman was

not till regular appointment was made. His appointment

was subject to conditions. His services were liable to be

terminated without notice. When workman was not

appointed on regular basis, his services were liable to be

terminated without notice. As per the terms of appointment

workman is not entitled to protection under Section 25 of

I.D.Act. therefore I record my finding in Point No.1 in

Affirmative.

In the result, award is passed as under:-

(1)

The action of the Supdt. Of Head Post Office, shahdol

MP in terminating the services of Shri Yadvendra,

Post Master, who rendered continuous service of

18 months (completed more than 240 days of

continuous services in a calendar year) without

complying the provisions of the I.D.Act, 1947 is

legal and proper.

(2)

Workman is not entitled to relief claimed.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1387-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

VsyhdkWe fMfLVªDV eSustj] lkxj 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 ,oa Je U;k;ky;] tcyiqj ds

iapkV (lanHkZ la[;k CGIT/LC/R/22@2003) dks izdkf'kr djrh gS

tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@45@2002&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1387.—In pursuance of Section 17 of the

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

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

LC/R/22/2003) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the Telecom District

Manager, Sagar and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/45/2002-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

No. CGIT/LC/R/22/03

PRESIDING OFFICER : SHRI R. B. PATLE

Shri Kailash Rajak,

S/o Shri Gopilal Rajak,

46, Cantt. Dr.Ramesh,

Sagar (MP)

.....Workman

Versus

Telecom District Manager,

Sagar (MP)

.....Management

AWARD

Passed on this 11th day of April 2014

As per letter dated 8-1-03 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-40012/

45/2002-IR(DU). The dispute under reference relates to:

“ Whether the action of the management of Telecom

District Manager, Sagar (MP) Deptt. Of Telecom

now converted into Telecom District Manager, Sagar

(MP) Bharat Sanchar Nigam Limited in terminating

3702

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

the services of Shri Kailash Rajak S/o Shri Gopilal

Rajak w.e.f. 30-4-89 and not regularizing as regular

employee is justified? If not, what relief the workman

is entitled to?”

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim

at Page 2/1 to 2/2. Case of workman is that he was engaged

as casual labour on muster roll from April 1986 and worked

under IInd party No.3 District Manager, BSNL, Circle

Bhopal. He continued to work till March 1989. There was

no grievance about his work. As per terms of Hon’ble

Supreme Court, scheme for regularization of casual labours

was introduced. The letter in that regard was issued by

IInd party. Instead of regularization his services as per the

scheme from March 1989, he was discontinued. Order in

writing terminating his services was not received, he was

not paid retrenchment compensation. Notice was not

issued to him. Termination of his service is in violation of

Section 25-F, N of I.D.Act. on such ground, workman prays

for his reinstatement with consequential benefits.

IInd party filed Written Statement at Page 8/1 to 8/2.

IInd party contents that MP Telecom is having largest

area in the country. The telecom facilities were less in

comparison to other states. For development of telecom

facilities, it is planned to increase the telecom facilities by

opening new telephone exchanges in rural areas/ laying

cables and other work of installation. In order to complete

the project at various places labours were engaged at daily

rated basis. Workers were not engaged for regular work as

an when project work were completed. Casual workers

were not required to be continued. There was no need to

keep casual workers. Therefore their services were

discontinued. It is further submitted that workman was

never appointed against any post in the department. He

worked purely on casual basis for specific target project

work. That the workman worked 151 days in 1985, 351

days in 1986, 365 days in 1987, 298 days in 1988 & 90 days

in 1989. That as per instructions contained in letter dated

30-8-85, the casual labours could not be engaged after

30-3-85. In project electrical circles only for specific work

casual labours were required to be retrenched. Accordingly

the casual labours were discontinued after completion of

the work who were engaged after 30-3-85. That workman

is not entitled to temporary status and benefit of

regularization scheme 1989 as benefit of said scheme was

only to workers engaged prior to 30-3-85 continuing casual

workers as on 7-11-89 employees who completed 240 days

continuous service. The workman was not engaged during

said period. On such ground, IInd party submits that

workman is not entitled for regularization. He was engaged

purely on temporary basis. There is no question of

compliance of Section 25-G of I.D.Act. On such grounds.

IInd party prays for rejection of claim.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the manage-

In Negative

ment of Telecom District Manager,

Sagar (MP) Deptt. Of Telecom now

converted into Telecom District

Manager, Sagar (MP) Bharat Sanchar

Nigam Limited in terminating the

services of Shri Kailash Rajak

S/o Shri Gopilal Rajak w.e.f. 30-4-89

and not regularizing as regular

employee is justified?

(ii) If not, what relief the workman is

As per final

entitled to?”

order.

REASONS

Workman is challenging termination of his services

for violation of Section 25-F of I.D.Act. that he was

continuously working with IInd party 3 & 4 from April

1986 to March 1989 as casual employee. His services

were terminated without notice, retrenchment

compensation was not paid to him. He was not given

benefits of the scheme. For regularization of casual

employees. IInd party denies all material contentions of

workman. It is reiterated that the workman was engaged

as casual employee. He was not appointed against regular

post, compliance of Section 25-F is not followed.

Workman filed affidavit of his evidence covering

most of his contentions in statement of claim. He has

stated that he had worked for 152 days in 1985, 351 days in

1986, 365 days in 1987, 298 days in 1988, 90 days in 1989.

That benefit of scheme for regularization of casual

employees was not given to him. His services were illegally

terminated without notice. Workman did not appear for

his cross-examination. His evidence was closed on

23-5-2012. Management filed affidavit of its witness Shri

R.G.Gohe. witness of the management has stated that

workman was engaged for laying down telephone cable

Project of the department, said work is over. Thereafter

the workman was discontinued. The evidence of

management’s witness remained unchallenged. Though

the workman is not made available for cross-examination,

his evidence could not be considered. The evidence of

management’s witness remained unchallenged. In Written

Statement itself, IInd party has admitted working days of

the workman. Workman has completed 351 days in 1986,

365 days in 1987, 290 days in 1988. His services were

discontinued from April 1989. Thus the evidence is clear

that workman had completed 240 days continuous service.

He is covered as workman under Section 25(B) of I.D.Act.

the documents Exhibit M-2 shows the working days of the

workman. The said document is admitted by IInd party.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3703

Evidence of management’s witness is silent about

compliance of Section 25-F. No retrenchment compensation

was paid, notice of termination was not issued to workman

as per pleadings in Written Statement of the IInd party.

Therefore the termination of services of workman is illegal

for violation of Section 25-F of I.D.Act. For above reasons,

I record my finding in Point No.1 in Negative.

Point No.2- In view of my finding in Point No.1, the

services of workman were terminated in violation of

Section 25-F , question arises whether workman is entitled

for reinstatement with back wages. On the point, learned

counsel for IInd party Mr. Kapoor relies on ratio held in

case of

“ Senior Superintendent Telegraph (Traffic) Bhopal

versus Santosh Kumar Seal and others reported in

2010 (6) Supreme Court Cases 773. Their Lordship

dealing with the point of reinstatement with back

wages held relief by way of reinstatement with back

wages not automatic even if termination of employee

is found to be illegal or in contravention of the

prescribed procedure and monetary compensation

in cases of such nature may be appropriate. On facts

as the workmen were engaged as daily wagers about

25 years back and they worked hardly for 2-3 years,

relief of reinstatement and back wages to them

cannot be said to be justified. Monetary

compensation of Rs.40,000/- was directed to be

paid.”

Copy of award passed by this Tribunal in R/7/03 is

produced by counsel for IInd party. In said case,

considering length of service more than 5 years,

compensation Rs. 1 Lakh was allowed to the concerned

workman.

In present case as per documentary evidence,

workman was working with management from 1986 to 1989

for about 4 years. Since April 1989, workman is not in

employment. He was not appointed following recruitment

rules. Considering above, aspects, reinstatement of

workman is not justified. In my considered view,

compensation Rs. 75,000/- would be appropriate to meet

the ends of justice. Accordingly I record my finding in

Point No.1.

In the result, award is passed as under:-

(1)

The action of the management of Telecom District

Manager, Sagar (MP) Deptt. Of Telecom now

converted into Telecom District Manager, Sagar

(MP) Bharat Sanchar Nigam Limited in terminating

the services of Shri Kailash Rajak S/o Shri Gopilal

Rajak w.e.f. 30-4-89 and not regularizing as regular

employee is illegal.

(2)

IInd party management is directed to pay

compensation Rs.75,000/- to the workman.

Amount as per above order shall be paid to workman

within 30 days from the date of publication of award. In

case of default, amount shall carry 9 % interest per annum

from the date of award till its realization.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1388-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

viQlj bu pktZ] VsyhxzkiQ fMikVZesaV] dksjck 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 ,oa Je U;k;ky;]

tcyiqj ds iapkV (lanHkZ la[;k CGIT/LC/R/92@2000) dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@40@2000&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1388.—In pursuance of Section 17 of the

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

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

LC/R/92/2000 ) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the Officer-in-charge,

Telegraph Department, Korba and their workman, which

was received by the Central Government on 28/04/2014.

[No. L-40012/40/2000-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/92/2000

PRESIDING OFFICER : SHRI R.B. PATLE

Shri Ganesh Ram Banjare,

Vill.Salihabhata (Dong Garah),

PO Nonbirrah,Via Bhaisma,

Korba (MP)

.....Workman

Versus

Officer-in-charge,

Telegraph Department,

Departmental Telegraph Office,

PO Korba,

Korba (MP)

.....Management

3704

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

AWARD

Passed on this Ist day of April 2014

As per letter dated 29-5-00 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-40012/

40/2000/IR(DU). The dispute under reference relates to:

“ Whether the action of the management of Officer-

in-charge, Departmental Telegraph Office, Korba in

terminating the services of Shri Ganesh Ram Banjare,

ex-messenger of Telegraph Office w.e.f. 1996/19-5-

99 is legal and justified? If not, to what relief the

workman is entitled?”

After receiving reference, notices were issued to

the parties. workman submitted statement of claim at page

3/1 to 3/2. Case of workman is that he was working as part

time sweeper from May 1991 to 99 in establishment of IInd

party. He was continuously working. He was paid regular

salary form 87 in Pay scale Rs. 375/- in addition to DA from

1992 he was paid gross salary Rs.600/- per month. That as

per judgment of Apex Court dated 24-1-97, he was not

regularized by IInd party. Instead regularizing his service,

his services were terminated. Ist party further submits that

he had completed 240 days continuous service. He was

denied benefits of regularization, order was issued by CGM,

HRD, Bhopal for regularization of part time employees. It

was not followed by IInd party. His services were illegally

terminated. Workman has calculated wages he would have

received if not terminated by IInd party amounting to

Rs. 2,82,147/-. Workman prays for his reinstatement with

back wages.

Management filed Written Statement in form of

affidavit. That Mohd. Bashir Khan was appointed as

Presenting Officer in the matter. He was conversant with

facts and documents of the case. That Ist party workman

had worked in IInd party whenever work was available.

His employment was on basis of availability of work. There

was no question of continuous employment in case of

casual workers. It was denied that Ist party workman was

continuously working. It was alleged there was no cause

of action. IInd party prays for rejection of claim.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the manage-

In Negative

ment of Officer-in-charge, Depart-

mental Telegraph Office, Korba in

terminating the services of Shri

Ganesh Ram Banjare, ex-messenger

of Telegraph Office w.e.f. 1996/19-5-99

is legal and justified?

(ii) If not, what relief the workman is

As per final

entitled to?”

order.

REASONS

Workman is challenging termination of his services.

Instead of regularizing his services by IInd party, his

services were illegally terminated. He was not given benefit

of regularization of his services as per the direction given

by Asstt. General Manager, Telephone Bhopal dated 27-8-98

and judgment by Apex Court dated 24-1-97. Workman has

pleaded that he was continuously working and he was

paid salary as per pay scale and DA. IInd party has denied

continuous working of Ist party workman. There was no

question of his continuous working as casual employee.

However rest of contentions of workman are denied in the

Written Statement filed by management.

Workman has filed affidavit of his evidence covering

his contentions in Statement of claim that he was working

in IInd party from 1991 to 1995 for 1642 days and

continuously from 1996 to 1999. He was regularly working

with IInd party. That he was not working under contractor.

His salary was paid by the department. He was working

as messenger . He has estimated back wages Rs. 2,82,147.

In his cross-examination, workman says that he has not

received appointment letter, he was distributing telegram.

He was paid wages for his working days. He has produced

documents about his working. He was retaining zerox

copies of the documents he received for distribution. He

had never worked under contractor.

Management filed affidavit of witness Shri

N.D.Sharma. Management’s witness has denied that

workman was continuously working from 1991 to 99. That

workman was engaged on daily wages as and when subject

to availability of work. Workman was not engaged as

regular employee through Employment Exchange following

recruitment process. In his cross-examination,

management’s witness says workman was working during

1993-94 as temporary labour. He admits Exhibit M-1, it is of

their department. That proposal for regularization of

workman was submitted to the office Exhibit M-2.

Document Exhibit M-1 provides for conversion of

part time casual labours to full time staff. Para-1 of the

directions reads as under:-

“Issue of conversion of part time casual labourers

into full time staff has been taken up by the staff

side in the 28th JCM Meeting. In this connection, it

is mentioned that the employment of part time casual

labourers was banned vide this office order No. 269-

39/84-STN dated 14-8-84 wherein it was decided that

existing part time casual labourers may be absorbed

against regular vacancies and in future, there will be

no further recruitment of part time mazdoors in the

department. Para-3 of the directions deals with- that

part time casual employees may be brought to the

strength of full time casual labourers subject to the

availability of work and suitability. For this purpose,

the work requirements of different types and at

neighboring units can be pooled.”

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3705

However workman was not given benefit of

directions. His services were terminated without

notice.

Learned counsel for workman has submitted copy

of award in Case No. R/87 to 91/2000. In Para 17 ratio held

in case of Director, Fisheries Terminal Department versus

Bhiubhai Meghajibhai Chavda in 2010(2) MPLJ 30 is

discussed. The legal position is clear that after workman

claims he was continuously working more than 240 days,

management is in custody of the record, the burden shifts

on management to establish that workman has not

completed 240 days continuous service. Management has

not produced any record to establish that workman has

not completed 240 days continuous service during any of

the year. Therefore the evidence of workman deserves to

be believed. The services of workman are terminated

without notice, no retrenchment compensation is paid.

Workman was not given benefit of regularisation as per

direction Exhibit M-1. Therefore, I record my finding in

Point No.1 in Negative.

10.

Point No.2- In view of my finding that the termination

of service of workman is illegal, question arises to what

relief the workman is entitled. The evidence of workman is

silent what work he was doing after termination of his

service. Management also not adduced evidence that

workman was in gainful employment. As per Exhibit M-1,

workman was entitled for regularization of his service.

Therefore the workman is entitled for reinstatement with

25 % back wages. Accordingly, I record my finding in

Point No.2.

11.

In the result, award is passed as under:-

(1)

The action of the management of Officer-in-charge,

Departmental Telegraph Office, Korba in terminating

the services of Shri Ganesh Ram Banjare, ex-

messenger of Telegraph Office w.e.f. 1996/19-5-99 is

not legal and proper.

(2)

IInd party management is directed to reinstate

workman with 25 % back wages.

12.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1389-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

viQlj bu&pktZ] VsyhxzkiQ fMikVZesaV] dksjck 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 ,oa Je U;k;ky;]

tcyiqj ds iapkV (lanHkZ la[;k lhthvkbZVh@,ylh@vkj/88@2000)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&40012@42@2000&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1389.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGIT/

LC/R/88/2000 ) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur, now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the Officer-in-charge,

Telegraph Department, Korba and their workman, which

was received by the Central Government on 28/04/2014.

[No. L-40012/42/2000-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/88/2000

PRESIDING OFFICER : Shri R. B. Patle

Shri Jogilal Chauhan,

C/o Santosh Kuteer, Mudapar,

Korba (MP)

. . .Workman

Versus

Officer-in-charge,

Telegraph Department,

Departmental Telegraph Office,

PO Korba,

Korba (MP)

. . . Management

AWARD

Passed on this 1st day of April, 2014

As per letter dated 29-5-00 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D. Act, 1947 as per Notification No.

L-40012/42/2000/IR(DU). The dispute under reference

relates to :

“ Whether the action of the management of Officer-

in-charge, Departmental Telegraph Office, Korba in

terminating the services of Shri Jogilal Chauhan, ex-

messenger of Telegraph Office w.e.f. 1996/April, 1999

is legal and justified? If not, to what relief the

workman is entitled?”

After receiving reference, notices were issued to

the parties, workman submitted statement of claim at pages

3/1 to 3/2. Case of workman is that he was working as part

time sweeper from 1-7-86 to 99 in establishment of IInd

party. He was paid Rs. 150/- per month. He was

continuously working. He was paid regular salary form 87

in Pay scale Rs. 375/- in addition to DA from 1992 he was

paid gross salary Rs.600/- per month. That as per judgment

of Apex Court dated 24-1-97, he was not regularized by

IInd party. Instead regularizing his service, his services

were terminated. Ist party further submits that he had

3706

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

completed 240 days continuous service. He was denied

benefits of regularization, order was issued by CGM, HRD,

Bhopal for regularization of part time employees. It was

not followed by IInd party. His services were illegally

terminated. Workman has calculated wages he would have

received if not terminated by IInd party amounting to

Rs. 2,82,147/-. Workman prays for his reinstatement with

back wages.

Management filed Written Statement in form of

affidavit. That Mohd. Bashir Khan was appointed as

Presenting Officer in the matter. He was conversant with

facts and documents of the case. That Ist party workman

had worked in IInd party whenever work was available.

His employment was on basis of availability of work. There

was no question of continuous employment in case of

casual workers. It was denied that Ist party workman was

continuously working. It was alleged there was no cause

of action. IInd party prays for rejection of claim.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the manage-

In Negative

ment of Officer-in-charge, Depart-

mental Telegraph Office, Korba in

terminating the services of Shri

Jogilal Chauhan, ex-messenger of

Telegraph Office w.e.f. 1996/April,

1999 is legal and justified?

(ii) If not, what relief the workman is

As per final

entitled to?”

order.

REASONS

Workman is challenging termination of his services.

Instead of regularizing his services by IInd party, his

services were illegally terminated. He was not given benefit

of regularization of his services as per the direction given

by Asstt. General Manager, Telephone Bhopal dated 27-8-98

and judgment by Apex Court dated 24-1-97. Workman has

pleaded that he was continuously working and he was

paid salary as per pay scale and DA. IInd party has denied

continuous working of Ist party workman. There was no

question of his continuous working as casual employee.

However rest of contentions of workman are denied in the

Written Statement filed by management.

Workman has filed affidavit of his evidence covering

his contentions in Statement of claim that he was working

in IInd party from 1986 to 1990 for 1665 days, 4 hours per

day from 1991 to 1995, 1388 days from 1996 to 1999. He

was regularly working with IInd party. That he was not

working under contractor. His salary was paid by the

department. He was working as sweeper. He has estimated

back wages Rs. 2,82,147/- . In his cross-examination,

workman denied he was working under contractor. There

is no contention in Written Statement filed by management

that workman was engaged by contractor. The suggestion

appears to be after thought. Workman in his cross-

examination says the post was not advertised. He was

called as per exigency of staff. He was paid wages for

working days. He has not produced documents about his

working in the department. He denied suggestion that he

had not completed 240 days continuous service.

Management filed affidavit of witness Shri

N.D.Sharma. Management’s witness has denied that

workman was continuously working from 1986 to 99. That

workman was engaged on daily wages as and when subject

to availability of work. Workman was not engaged as

regular employee through Employment Exchange following

recruitment process. In his cross-examination,

management’s witness says he is working in Korba office

of IInd party from May 08. He claims ignorance whether

workman Jogilal Chouhan and other 5 workers were

recommended for regularisation. Management’s witness

admitted document Exhibit M-1. Wages were paid to

workman through his office. He claims ignorance whether

the workman was terminated without notice. No document

is produced about the workman engaged through

contractor.

Document Exhibit M-1 provides for conversion of

part time casual labourers to full time staff. Para-1 of the

directions reads as under:-

“Issue of conversion of part time casual labourers

into full time staff has been taken up by the staff

side in the 28th JCM Meeting. In this connection, it

is mentioned that the employment of part time casual

labourers was banned vide this office order No. 269-

39/84-STN dated 14-8-84 wherein it was decided that

existing part time casual labourers may be absorbed

against regular vacancies and in future, there will be

no further recruitment of part time mazdoors in the

department. Para-3 of the directions deals with- that

part time casual employees may be brought to the

strength of full time casual labourers subject to the

availability of work and suitability. For this purpose,

the work requirements of different types and at

neighbouring units can be pooled.”

However, workman was not given benefit of

directions. His services were terminated without notice.

Learned counsel for workman has submitted copy

of award in Case No. R/87 to 91/2000. In Para 17 ratio held

in case of Director, Fisheries Terminal Department versus

Bhiubhai Meghajibhai Chavda in 2010(2) MPLJ 30 is

discussed. The legal position is clear that after workman

claims he was continuously working more than 240 days,

management is in custody of the record, the burden shifts

on management to establish that workman has not

completed 240 days continuous service. Management has

not produced any record to establish that workman has

not completed 240 days continuous service during any of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3707

the year. Therefore the evidence of workman deserves to

be believed. The services of workman are terminated

without notice, no retrenchment compensation is paid.

Workman was not given benefit of regularisation as per

direction Exhibit M-1. Therefore, I record my finding in

Point No.1 in Negative.

10.

Point No. 2- In view of my finding that the

termination of service of workman is illegal, question arises

to what relief the workman is entitled. The evidence of

workman is silent what work he was doing after termination

of his service. Management also not adduced evidence

that workman was in gainful employment. As per Exhibit

M-1, workman was entitled for regularization of his service.

Therefore the workman is entitled for reinstatement with

25% back wages. Accordingly, I record my finding in Point

No. 2.

11.

In the result, award is passed as under:-

(1) The action of the management of Officer-in-

charge, Departmental Telegraph Office, Korba in

terminating the services of Shri Jogilal Chauhan,

ex-messenger of Telegraph Office w.e.f. 1996/

April, 1999 is not legal and proper.

(2) IInd party management is directed to reinstate

workman with 25 % back wages.

12.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1390-—vkS|ksfxd fookn vf/fu;e] 1947(1947

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

bafnjk xka/h jk"Vªh; ekuo laxzgky;] Hkksiky 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 ,oa Je U;k;ky;]

tcyiqj ds iapkV (lanHkZ la[;k lhthvkbZVh@,ylh@vkj@181@98)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&42012@18@98&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1390.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGIT/

LC/R/181/98 ) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur, now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the Director, Indira Gandhi

Rashtriya Manav Sangrahalaya, Bhopal and their

workman, which was received by the Central Government

on 28/04/2014.

[No. L-42012/18/98-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/181/98

PRESIDING OFFICER : Shri R. B. Patle

Shri Sena,

S/o Narsingh Beel, Suraj Nagar,

Bhadbhada,

Bhopal

. . . Workman

Versus

The Director,

Indira Gandhi Rashtriya Manav

Sangrahalaya, Shamla Hills,

Bhopal

. . . Management

AWARD

Passed on this 7th day of April, 2014

The Government of India, Ministry of Labour vide

its Notification No. L-42012/18/98-IR(DU) dated 22-7-98

has referred the following dispute for adjudication by this

tribunal:-

“ Whether the action of the management of Director,

Indira Gandhi Rashtriya Manav Sangrahalaya,

Bhopal in terminating the services of Shri Sena, S/o

Narsingh Beel is legal and justified? If not, to what

relief the concerned workman is entitled?”

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim.

Case of workman is that he was appointed as chowkidar

in clear vacancy on 16-4-90. The service record was

excellent. He was member of Rashtriya Manav Sangrahalaya

Karmchari Sangh. His services were terminated w.e.f.

8-8-95. That he had continuously worked for more than

240 days in calendar year. He was not served notice, no

retrenchment compensation was paid to him. The services

were terminated in violation of Section 25-H of I.D. Act on

such ground, workman prays for his reinstatement with

consequential benefits.

Management filed Written Statement. IInd party

submitted that it is not covered as industry under Section

2(j) of I.D. Act. That appropriate Government for IInd party

is State Govt., Central Govt. has no authority to make

reference. Workman was engaged on daily wages w.e.f.

8-8-95. Workman remained absent from work. There are no

ground to make out dispute between parties. IInd party

denied that workman was appointed against clear vacant

post of chowkidar. That there is no registered Union. The

violation of Section 25-F, G, H of I.D. Act is denied by IInd

party.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

3708

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

(i) Whether Indira Gandhi Rashtriya

Not proved

Manav Sangrahalaya is an Industry?

(ii) Whether the management illegally

In Affirmative

terminated the services of the

workman?

(iii) Whether their workmen is entitled to

In Affirmative

reinstatement with full back wages?

(iv) Whether the reference is

Reference is

maintainable?

tenable.

(v) Relief and costs?

As per final

order.

REASONS

Workman is challenging termination of his service

for violation of Section 25-F of I.D. Act. Workman filed

affidavit of his evidence. He has stated that he was

appointed on post of chowkidar against clear vacancy on

16-4-90. He was continuously working till 18-8-95. His

services were terminated. That he had worked more than

240 days prior to termination of his service. He was not

paid retrenchment compensation. Prior permission of

Competent authority for termination was not taken. In his

cross-examination workman says he rendered services at

Vallabh Bhawan, Bhopal. He had to produced appointment

order. He was not working on daily wages. He was paid

monthly wages. He worked from 1990 to 1995 but he has

no document.

Management failed to adduce evidence. Evidence

of management is closed on 7-4-2011. Thus the

management has failed to substantiate his contentions,

no evidence is adduced about what are the activities carried

out by the IInd party. Workman has produced office order

dated 31-12-2010, temporary status given to the employees

of IInd party. The evidence of workman that he was

continuously working for more than 240 days prior to

termination of his service is not shattered. As per terms of

reference, the date of termination of workman is not

mentioned. However in his statement workman has claimed

that his services were terminated from 8-8-95. In his

evidence, workman says he worked from 1990 to 1993. It

cannot be hurdle in granting relief to the workman. The

evidence of workman that he was not paid retrenchment

compensation , the approval of Govt. was not obtained

remained unchallenged. The evidence clearly shows that

services of workman are terminated in violation of Section

25-F, G, H of I.D.Act.

Learned counsel for IInd party in support of its

argument that burden lies on workman to prove that he

was continuously working for 240 days , reliance is placed

in ratio held in :

“MP Electricity Board through its Superintending

Engineer and Manoj Kumar and others reported in

2006(109)FLR 1035. Ratio held in the case is order

casting burden of proof on shoulder of employer by

Industrial Court. That the employee has not

continuously worked for 240 days, the order is not

valid and quashed.”

In present case, evidence of workman about his

continuously working for more than 240 days is not

shattered. No issue has been framed casting burden

on management therefore ratio cannot be applied to

case at hand.

The evidence clearly shows that service of workman

are illegally terminated in violation of Section 25-F,

management has not substantiated by evidence that it is

not covered as industry therefore the reference is tenable,

the contentions of management that State Govt. is

appropriate Govt., Central Govt. has no power to make

reference. The order of reference is not challenged by

IInd party and therefore this Tribunal is bound to decide

the reference. I make it clear that reference is tenable.

The workman is claiming for reinstatement with

back wages. Workman was working for short period. There

is no evidence that any king of recruitment process was

followed therefore reinstatement of workman cannot be

granted. In my considered view, considering length of

service, compensation Rs. 75,000 will meet the ends of

justice for above reasons, I record my finding on Point

No.1 as not proved, 2 in Affirmative, 3 that workman is

entitled to compensation Rs. 75,000 and 4 as reference is

tenable.

10.

In the result, award is passed as under:-

(1)

The action of the management of Director, Indira

Gandhi Rashtriya Manav Sangrahalaya, Bhopal in

terminating the services of Shri Sena, S/o Narsingh

Beel is not legal and proper.

(2)

IInd party management is directed to pay

compensation Rs. 75,000 to the workman within 30

days from date of publication of award.

Amount as per above order shall be paid to workman

within 30 days. In case of default, amount shall carry 9 %

interest per annum from the date of award till its realization.

11.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1391-—vkS|ksfxd fookn vf/fu;e] 1947(1947

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

bafnjk xka/h jk"Vªh; ekuo laxzgky;] Hkksiky 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 ,oa Je U;k;ky;]

tcyiqj ds iapkV (lanHkZ la[;k lhthvkbZVh@,ylh@vkj/179@98)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&42012@17@98&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3709

New Delhi, the 30th April, 2014

S.O. 1391.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGIT/

LC/R/179/98) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the Director, Indira Gandhi

Rashtriya Manav Sangrahalaya, Bhopal and their

workman, which was received by the Central Government

on 28/04/2014.

[No. L-42012/17/98-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/179/98

Presiding Officer : SHRI R. B. PATLE

Shri Kachhu,

S/o Nana, H.No.369,

Naya Basera,

Kotra Sultanabad,

Bhopal

.....Workman

Versus

The Director,

Indira Gandhi Rashtriya Manav

Sangrahalaya, Shamla Hills,

Bhopal

.....Management

AWARD

Passed on this 7th day of April, 2014

The Government of India, Ministry of Labour vide

its Notification No.L-42012/17/98-IR(DU) dated 11-8-98 has

referred the following dispute for adjudication by this

tribunal:-

“ Whether the action of the management of Director,

Indira Gandhi Rashtriya Manav Sangrahalaya,

Bhopal in terminating the services of Shri Kachhu

S/o Nana is legal and justified? If not, to what relief

the concerned workman is entitled?”

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim.

Case of workman is that he was appointed as Maali Gardner

in clear vacancy on 16-6-93. The service record was

excellent. He was member of Rashtriya Manav

Sangrahalaya Karmchari Sangh. His services were

terminated w.e.f. 15-3-95. That he had continuously worked

for more than 240 days in calendar year. He was not served

notice, no retrenchment compensation was paid to him.

The services were terminated in violation of Section 25-H

of I.D.Act. on such ground, workman prays for his

reinstatement with consequential benefits.

Management filed Written Statement. IInd party

submitted that it is not covered as industry under Section

2(j) of I.D. Act. That appropriate Government for IInd party

is State Govt., Central Govt. has no authority to make

reference. Workman was engaged on daily wages w.e.f.

7-8-94. Workman remained absent from work. There are no

ground to make out dispute between parties. IInd party

denied that workman was appointed against clear vacant

post of maali from 16-6-93. That there is no registered

Union. The violation of Section 25-F, G, H of I.D. Act is

denied by IInd party.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether Indira Gandhi Rashtriya

Not proved

Manav Sangrahalaya is an Industry?

(ii) Whether the management illegally

Not proved

terminated the services of the

workman?

(iii) Whether their workmen is entitled to

In Negative

reinstatement with full back wages?

(iv) Whether the reference is maintainable? Reference

is tenable.

(v) Relief and costs?

As per final

order.

REASONS

Though workman is challenging his termination for

violation of Section 25-F, G, H of I.D. Act, he has not

adduced any evidence to substantiate his claim. IInd party

claims that it is not covered as industry under Section 2(j)

of I.D. Act but no evidence is adduced by IInd party as to

what are the activities carried out by it. Thus IInd party

failed to substantiate its contention. In absence of above

violation of Section 25-F, G, H of I.D. Act are not proved

therefore workman is not entitled to reinstatement for

reasons given above. I record my finding in Issue No.1

to 3.

In the result, award is passed as under:-

(1)

The action of the management of Director, Indira

Gandhi Rashtriya Manav Sangrahalaya, Bhopal in

terminating the services of Shri Kachhu S/o Nana is

legal and proper.

(2)

Workman is not entitled to relief prayed by him.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

3710

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1392-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

bafnjk xka/h jk"Vªh; ekuo laxzgky;] Hkksiky 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 ,oa Je U;k;ky;]

tcyiqj ds iapkV (lanHkZ la[;k CGIT/LC/R/182@98) dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&42012@16@98&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1392.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGIT/

LC/R/182/98) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the Director, Indira Gandhi

Rashtriya Manav Sangrahalaya, Bhopal and their

workman, which was received by the Central Government

on 28/04/2014.

[No. L-42012/16/98-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/182/98

Presiding Officer : SHRI R. B. PATLE

Shri Shankar,

S/o Krishnan, 178, A-I, Sector-A,

BHEL, Govindpura,

Bhopal

.....Workman

Versus

The Director,

Indira Gandhi Rashtriya Manav

Sangrahalaya, Shamla Hills,

Bhopal

.....Management

AWARD

Passed on this 7th day of April, 2014

The Government of India, Ministry of Labour vide

its Notification No.L-42012/16/98-IR(DU) dated 11-8-98 has

referred the following dispute for adjudication by this

tribunal:-

“Whether the action of the management of Director,

Indira Gandhi Rashtriya Manav Sangrahalaya,

Bhopal in terminating the services of Shri Shankar

S/o Krishnan is legal and justified? If not, to what

relief the concerned workman is entitled?”

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim.

Case of workman is that he was appointed as Maali Gardner

in clear vacancy on 16-4-93. The service record was

excellent. He was member of Rashtriya Manav

Sangrahalaya Karmchari Sangh. His services were

terminated w.e.f. 6-5-95. That he had continuously worked

for more than 240 days in calendar year. He was not served

notice, no retrenchment compensation was paid to him.

The services were terminated in violation of Section 25-H

of I.D. Act. on such ground, workman prays for his

reinstatement with consequential benefits.

Management filed Written Statement. IInd party

submitted that it is not covered as industry under Section

2(j) of I.D. Act. That appropriate Government for IInd party

is State Govt., Central Govt. has no authority to make

reference. Workman was engaged on daily wages w.e.f.

2-4-95. Workman remained absent from work. There are no

ground to make out dispute between parties. IInd party

denied that workman was appointed against clear vacant

post of maali from 16-4-93. That there is no registered

Union. The violation of Section 25-F, G, H of I.D. Act is

denied by IInd party.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether Indira Gandhi Rashtriya

Not proved.

Manav Sangrahalaya is an Industry?

(ii) Whether the management illegally

Not proved.

terminated the services of the

workman?

(iii) Whether their workmen is entitled

In Negative

to reinstatement with full back

wages?

(iv) Whether the reference is

Reference is

maintainable?

tenable.

(v) Relief and costs?

As per final

order.

REASONS

Though workman is challenging his termination for

violation of Section 25-F, G, H of I.D. Act, he has not

adduced any evidence to substantiate his claim. IInd party

claims that it is not covered as industry under Section 2(j)

of I.D. Act but no evidence is adduced by IInd party as to

what are the activities carried out by it. Thus IInd party

failed to substantiate its contention. In absence of above

violation of Section 25-F, G, H of I.D. Act are not proved

therefore workman is not entitled to reinstatement for

reasons given above. I record my finding in Issue No.1

to 3.

In the result, award is passed as under:-

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3711

(1)

The action of the management of Director, Indira

Gandhi Rashtriya Manav Sangrahalaya, Bhopal in

terminating the services of Shri Shankar, S/o

Krishnan is legal and proper.

(2)

Workman is not entitled to relief prayed by him.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1393-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

Oghdy iSQDVªh] tcyiqj 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 ,oa Je U;k;ky;] tcyiqj ds iapkV

(lanHkZ la[;k CGIT/LC/R/65@97) dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&14012@14@96&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1393.—In pursuance of Section 17 of the

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

Government hereby publishes theAaward (I.D No. CGIT/

LC/R/65/97) of the Central Government Industrial Tribunal/

Labour Court, Jabalpur now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of the General Manager, Vehicle Factory

and their workman, which was received by the Central

Government on 28/04/2014.

[No. L-14012/14/96-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM LABOUR-COURT,

JABALPUR

No. CGIT/LC/R/65/97

Presiding Officer : SHRI R. B. PATLE

Smt. Rohini Bai, Smt. Geeta,

Shri Rajesh, Smt. Savita & Ku. Pooja

LRs of Shri Rohini Prasad,

S/o Shri Ram Prasad,

H.No.82, Ramnagar,

Vehicle Factory, Jabalpur

....Workman/LRs

Versus

General Manager,

Vehicle Factory,

Jabalpur

....Management

AWARD

Passed on this 31st day of March, 2014

As per letter dated 26-2-97 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-14012/

14/96-IR(DU). The dispute under reference relates to:

“Whether the action of the management of General

Manager, Vehicle Factory, Jabalpur (MP) in

terminating the services of Shri Rohini Prasad, S/o

Shri Ramprasad is legal and justified? If not, to what

relief the workman is entitled?”

After receiving reference, notices were issued to

the parties. Ist party workman has submitted statement of

claim at Page 3/1 to 3/5. Case of Ist party workman is that

he was working as labour semi-skilled, Token No. GNVFJ-

62/3229. His service record was unblemished. Chargesheet

was issued to him on 1-3-1994. Allegation against him were

that on 1-1-94, his duty hour were from 7.30 to 4.30. He

entered painting booth No.3 at 6.45 hours (AM). That he

had went to No.3, removed welding cables which were

kept hidden in the section. That he had removed rubber

insulation, he was caught red handed by the security. On

this basis chargesheet was issued to the workman.

Workman denied charges. Enquiry was conducted against

him. He was removed from service after findings of Enquiry

Officer that charges were proved. Workman had pleaded

that he was not given reasonable opportunity for his

defence. Enquiry was not conducted properly, principles

of natural justice were not followed. The findings of Enquiry

Officer are not supported by evidence. Findings are

perverse. There was no application of mind while

considering the findings of Enquiry Officer and deposing

the punishment. On such ground, workman is praying for

his reinstatement with consequential benefits.

Management filed Written Statement at Page 6/1 to

6/2. Management denied all material contentions of

workman. It is submitted that workman had entered in Plant

No.1 and went to painting booth No.3, he had removed

rubber insulation of the welding cables, he was caught

red handed by the Security Staff, chargesheet was issued

to workman. Workman denied charges. Enquiry Officer

was appointed after conducting enquiry as per rules.

Punishment of removal was imposed. Punishment was

legal. Workman was given reasonable opportunity for his

defence. IInd party prays for rejection of claim.

Enquiry conducted against workman is found proper

and legal as per order dated 6-9-2014.

Considering pleadings on record and above findings,

the points which arise for my consideration and

determination are as under. My findings are recorded

against each of them for the reasons as below:-

3712

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

(i)

Whether the charges of misconduct

Partly

alleged against workman are proved?

Affirmative

(ii) Whether punishment of removal

In Negative

awarded against workman is legal?

(iii) If so, what relief the workman is

As per final

entitled to?”

order

REASONS

As stated above, enquiry conducted against

workman is found legal and proper. Therefore the question

remains to be decided whether from evidence in Enquiry

Proceedings, charges against workman are proved,

whether the punishment of removal imposed against him

is legal. The statements of witness No.1 Subramanyam

not supported the management in cross-examination by

Defence Assistant. He submitted report on 1-1-94. The

report in question shown to him. The witnesses had

confirmed the report Exhibit P-1. However in cross-

examination, he says he did not find how workman was

allowed to enter the factory. In reply to Q.No.10, he says

that he did not see how workman entered through Gate

No.1. statement of witness No. 2 & 4 have fully supported

management that workman had entered from Gage No.1

around 6.40 hours, they all had gone near plant and

noticed that individual entered in plant No.1 from IInd

gate around 6.45 hours, they all got some doubt why so

early he had entered the plant, they had gone behind him

and saw workman entering into painting booth and

removing insulation cable rubber. The evidence of witness

No. 2 is corroborated by witness No. 4 Narmada Prasad. In

his evidence on cross-examination on the point of entering

painting booth and removing rubber insulation is not

shattered. There is no evidence that workman committed

its theft taking rod out of premises dishonestly. The

burden of proof in Enquiry proceeding is not similar to the

Criminal proceeding. For above reasons. I record my finding

in Point No.1 in partly Affirmative.

Point No. 2- punishment of removal is imposed

against workman, the charges alleged against workman

are of removing rubber insulation from welding cables.

Workman was not a stranger. There was no evidence that

he had taken those welding rods out of the painting

section to commit theft. Therefore the proved misconduct

cannot be said serious. The punishment of removal from

service imposed on workman cannot be said proportionate

to the proved misconduct. The punishment imposed

against workman is excessive and needs to be suitably

modified. Workman has died during pendency. Workman

cannot be reinstated in service therefore appropriate order

deserves to be passed. LRs namely Smt.Rohini Bai,

Smt. Geeta, Shri Rajesh, Smt. Savita & Ku. Pooja are

brought on record. Widow of deceased workman may get

pensionary benefits.

Keeping above aspects in view, the award is passed

as under-

(1)

The action of the management of General Manager,

Vehicle Factory, Jabalpur (MP) in terminating the

services of Shri Rohini Prasad S/o Shri Ramprasad

is not proper and legal.

(2)

On account of death of workman, IInd party is

directed to give pensionary benefit to widow of

deceased workman taking into account continuity

of service without back wages.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1394-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

vkWMZusUl iSQDVªh] tcyiqj 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 ,oa Je U;k;ky;] tcyiqj ds

iapkV (lanHkZ la[;k CGIT/LC/R/4@93) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&14012@118@91&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1394.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

LC/R/4/93 ) of the Central Government Industrial Tribunal/

Labour Court, Jabalpur now as shown in the Annexure in

the Industrial Dispute between the employers in relation

to the management of the General Manager, Ordnance

Factory and their workman, which was received by the

Central Government on 28/04/2014.

[No. L-14012/118/91-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/4/93

Presiding Officer : SHRI R. B. PATLE

Smt. Beni Devi,

LR of Shri Bansi Yadav,

Through Shri L.P.Yadav, Advocate,

524, Ranjhi Bazar, Jabalpur

.....Workman

Versus

General Manager,

Ordnance Factory,

Khamaria, Jabalpur

.....Management

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3713

AWARD

Passed on this 2nd day of April 2014

As per letter dated 7-1-93 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-14012/

118/91-IR(DU). The dispute under reference relates to:

“Whether the action of the management of Ordnance

Factory, Khamaria, Jabalpur (MP) in terminating the

services of Shri Banshi Yadav, Ex-Labour w.e.f. 6-10-85

is justified? If not, what relief he is entitled to?”

After receiving reference, notices were issued to

the parties. Workman submitted statement of claim at Page

3/1 to 3/6. Case of workman is that he was employed as

labour in Ordnance Factory, Khamaria, Jabalpur, Token

No. A-2/30 OFK. He was originally in A-2 section.

Thereafter he was transferred to ME Section and allotted

Token No. ME64. His work was satisfactory. Around

January 1984, his seniors behaved rude with him. He was

subjected to harassment. He was assigned other duties.

In January 1984, he applied for leave. However his pay

was deducted. He was asked to accept less amount of his

salary. On his refusal abruptly the deductions were made

for absence on duty. That he was permanent employee of

IInd party. He was entitled for different kinds of leave. He

was not paid full salary for January 1984. Action of the

management was not justified. The principles of no work

no pay does not apply in his case. The restrictions imposed

about his pay were violative of justice.

He further submits that he was transferred from A-2

section to ME Section merely on remarks and reports of

Foreman who was jealous of the workman. The foreman

was having illwill about him. Workman was subject to

harassment by foreman. Evenafter his transfer to ME

section, workman continued to attend A-2 section.

Chargesheet was issued to him for alleging misconduct

and willful refusal to carry out order etc. he was suddenly

transferred to ME section as per the order of Foreman.

The chargesheet and documents were not written in Hindi,

enquiry was not properly conducted. He was not given

opportunity to cross-examine witness. The enquiry was

conducted exparte. On such ground, workman has prayed

for his reinstatement with consequential benefits.

Management filed Written Statement at Page 2/1 to

2/3. Management submits that workman was employed in

A-2 section holding post of Furnaceman (G). He was

transferred to ME Section. He was absent from duties

disobeying the orders. Chargesheet was issued to him.

Workman was placed under suspension. During course of

enquiry, workman was asked to appear in the proceeding

for his defence, principles of natural justice were followed

by Enquiry Officer. However workman failed to participate

in the enquiry, enquiry was conducted exparte. Workman

was removed from service after receiving report of Enquiry

Officer. Workman had submitted application under

P.W.Act amount of Rs. 981 was deducted from his wages

for January 1984. The objection of workman was about

stoppage of his salary till 30-11-86 suffers immaterial

effects. Labour Court has passed order for recovery of

Rs.31,500 with cost Rs. 100 without properly considering

the documents. The order passed by Labour Court for

payment of wages was stayed by Hon’ble High Court.

IInd party submits that dispute is raised after long lapse

of years is biased. On such ground, IInd party prays for

rejection of claim of workman.

As per order dated 3-2-2014, enquiry is found legal

and proper. Both parties did not adduce evidence on other

issues.

Considering above aspects, the points which arise

for my consideration and determination are as under. My

findings are recorded against each of them for the reasons

as below:-

(i)

Whether the charges against work-

In Affirmative

man are proved from evidence in

Enquiry Proceedings?

(ii) Whether punishment of dismissal

In Negative

imposed on workman is legal?

(ii) If so, to what relief the workman is

As per final

entitled to?”

order

REASONS

As per order dated 3-2-2014, enquiry against

workman is found proper and legal. Question remains to

be decided whether the misconduct alleged against

workman is proved from evidence in Enquiry Proceedings,

whether punishment of removal from service is proper and

legal. Record of enquiry proceeding is produced.

Workman was served with chargesheet. The document

Exhibit M-1 is the memorandum of articles. The articles of

charges relates to workman transferred to A-2 Section to

ME section on 6-5-86, did not join his duty in ME section.

He was attending A-2 section disobeying orders of

transfer. The reports of the Foreman Shri M.K.Sain is

produced at Exhibit M-2, M-3, M-4. The report in the form

of information was sent to General Manager as per

document M-5. In his statement of claim, workman has

admitted he was transferred from A-2 section to ME section

but he was attending A-2 section only. The report of

Foreman M-8 shows that workman had not joined duties

in ME Section. The document of Enquiry Proceedings are

sufficient to prove the misconduct alleged against

workman. Therefore I record my finding in Point No.1 in

Affirmative.

Point No. 2- misconduct alleged against workman

is proved as per finding in Point No.1, question arises

whether punishment of dismissal of workman is legal or

he is entitled for reinstatement with consequential benefits.

It appears that workman died during pendency. His widow

3714

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Smt.Benidevi is substituted as LR. Therefore relief of

reinstatement cannot be allowed. In view of misconduct

alleged against workman is proved, workman has

disobeyed order of his transfer, he failed to join duty in

ME section, disobeying of the orders of superiors is

certainly a misconduct but the record shows that order of

transfer in writing was not served on workman. Oral

directions were given to the workman. Therefore the

punishment of dismissal from service appears excessive

and exorbitant. Workman had died, his widow is

substituted on record. Considering above aspects,

punishment of withholding increment for 3 years would

be appropriate. Accordingly I hold and record my finding

on Point No.2.

In the result, award is passed as under:-

(1)

Action of the management of Ordnance Factory,

Khamaria, Jabalpur (MP) in terminating the services

of Shri Banshi Yadav, Ex-Labour w.e.f. 6-10-85 is not

proper.

(2)

Punishment of dismissal from service is substituted

with withholding increment for 3 years. The order

of dismissal of workman is set aside.

(3)

Management is directed to reinstate workman with

continuity in service without back wages till his

death and pensionary benefits be allowed to his

widow.

10.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1395-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

flD;ksfjVh isij fey] gks'kaxkckn ds izcaèkra=k ds lac¼ fu;kstdksas

vkSj muds deZdkjksa ds chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;] tcyiqj ds

iapkV (lanHkZ la[;k CGIT/LC/R/186@90) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&16012@4@89&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1395.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

LC/R/186/90 ) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Secruity Paper Mill, Hoshangabad and their workmen,

which was received by the Central Government on

28/04/2014.

[No. L-16012/4/89-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/186/90

PRESIDING OFFICER : SHRI R.B. P ATLE

General Secretary,

SPM Karmchari Union,

Security paper Mill,

Hoshangabad

.....Workman/Union

Versus

General Manager,

Security Paper Mill,

Hoshangabad

.....Management

AWARD

Passed on this 3rd day of April, 2014

As per letter dated 19-9-90 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-16012/

4/89-IR(DU). The dispute under reference relates to:

¶D;k Jh ch- osQ- iokj] isij ckW; dks egkizca/d] izfrHkwfr

dkxt dkj[kkuk gks'kaxkckn }kjk vf/d mRiknu ds vk/kj

ij mPp xzsM esa inksUufr u fn;k tkuk tSlk fd vU;ksa dks

fn;k x;k gS mfpr gS\ ;fn ugha] rks og fdu&fdu vuqrks"kksa

ds vf/dkjh gSa rFkk dc ls\¸

2. After receiving reference, notices were issued to

the parties. Union has filed statement of claim showing

wrong nomenclature of parties. General Manager is shown

as applicant and General Secretary of employees Union as

Non-applicant. Hereinafter Union is referred as Ist party

and General Manager as lInd party. Statement of claim is

filed by Union at page 3/1 to 3/5. Case of Union is that

workman Shri B.S.Pawar, T.No. 317 was initially appointed

with Security paper Mill Hoshangabad on 21-8-67. Initially

he was appointed as Paper boy, he was transferred to Sheet

Trimming Section. Presently he was working in Inspection

section. That there are separate departmental rules,

regulations in the matter of promotion of employees of Ilnd

party SPM. Management entered into agreement with

Union about norms for promotion. These norms are

inconsistent with rules and regulations of promotions as

per the norms employ who gives production of 8 reams is

promoted to the post of paper worker. That workman

Shri Pawar was not physically buildup to work on machine

effectively. He was not in position to give required target,

he was denied from time to time. Junior to Pawar appointed

in 1975 were promoted. Promotions were given only because

of production as per prescribed norms. It is further

submitted that management cannot fix norms of production

contrary to recruitment rules. The recruitment rules and

promotion rules are not produced. It is further submitted

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3715

that in 1979, Shri B.S. Pawar achieved production targets.

He should have been promoted in 1979. However his keys

was not considered for promotion on the ground that

disciplinary action was pending against him. So called

chargesheet was withdrawn. However action was not taken

on the chargesheet therefore denial of promotion to Shri B.

S. Pawar on said ground is illegal. That in 1979,

representation of Mehta Committee Report was

implemented. As per said report, employee working as paper

worker in Trimming Section were upgraded as Paper Worker

Grade I in the scale of pay Rs. 260-350. The benefit of

upgradation was not given to Shri B.S. Pawar. After

completion of 12 years service in the Paper Trimming

department, he was denied said benefit, employee junior to

him were upgraded. Shri B.S. Pawar was upgraded after 1½

years in 1981, promoted as Paper worker Grade-I in pay

scale Rs. 260-350.

It is further contented that Babulal Kumhar, Gendlal

Sagoriya, A.K.Mitra who were junior to him were

superseded. They were promoted in the scale 320-400 (pre-

revised). That Shri B.S.Pawar belong to SC. He was active

member of the Union. He was targeted by the management.

He was denied promotions. He was superseded by junior

employees. On such ground Union prays that workman is

entitled to promotion in the post of Charge Hand Grade-II

in Pay scale 1200-1800 from the date Shri Babulal Kumhar

and S.K.Tiwari were promoted.

IInd party filed Written Statement at page 6/1 to 6/5.

It is submitted that IInd party Security paper Mill

Hoshangabad was commissioned in the year 1967. That

management had settled dispute before conciliation officer.

The dispute were repeatedly raised by Shri B.S. Pawar.

That the workman was initially appointed on 21-8-67 as

Paper boy in Pay Scale 70-85. He was promoted as Paper

worker on 1-1-1969 in pay scale 85-110. Shri B.S. Pawar

was posted in Trimming Section. He had failed to give

production of 7 reams therefore he was reverted to lower

grade. The promotion policy in Trimming Section was

production oriented. Many persons were promoted and

reverted depending upon quantum of production. The

details of promotion and reversion of Shri B.S. Pawar from

1971 to 1978 are given. That Shri Pawar never worked

satisfactorily. He was reverted of giving short production.

He was repeatedly reverted considering his manpower.

During 21-12-1978 to 20-1-1979, Shri Pawar had given

production of 7 reams. He could not be promoted as

disciplinary proceedings are pending against him. On

recommendation of Mehta Committee report implemented

from 1-3-79, B.S. Pawar was upgraded in Scale 85-110. All

other contentions of Union are denied. The junior

employees who were giving production as per target were

promoted. Such employees were also reverted when they

failed to give production as per target. That seniority is

not relevant for production in Trimming Section. On such

ground, IInd party prays for rejection of claim.

Union filed rejoinder reiterating its contentions in

statement of claim and additional Written Statement after

amendment carried out in Written Statement filed by IInd

party reiterating the contentions raised in statement of

claim filed by Union.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether denial of promotion to

In Negative

Shri B.S.Pawar Paper Boy by

General Manager Security Paper

Mill Hoshangabad on the ground

of production is justified and legal?

(ii) If not, what relief the

As per final

workman is entitled to?”

order

REASONS

Union has raised dispute about denial of promotion

to workman Shri B.S. Pawar working as Paper boy. The

appointment of workman B.S. Pawar as paperboy in 1967 is

not in dispute. IInd party management has contented’ that

promotions are given as per the norms of production

achieved by employees. The targeted production is

achieved, the employees are reverted back. Workman filed

exhaustive affidavit covering most of his contentions in

statement of claim at Page 9/1 to 9/5. That he was denied

promotion as he failed to give production of 9 reams. That

he was not physically buildup to work in machine

effectively. In 1979, he had achieved production target, he

should have been promoted. Management denied

promotion to him as some disciplinary action was pending

against him. That so called chargesheet was withdrawn,

no action was taken in the chargesheet therefore he could

not have been demed promotion in 1979. His further

affidavit is devoted that Mehta Committee report was

implemented in 1979. He was upgraded to post in pay scale

210- 290. Junior employees appointed in 1975 were given

benefit of upgradation . That he claims to be entitled to the

post of Grade- II in Pay scale 1200-1800 on par with Shri

Babulal Kumhar and S.K. Tiwari, employees junior to him.

In his cross-examination, workman says that he should

have been given promotion as per seniority. It is wrong

that promotion was to be given as per norms of production.

That the management had framed rules for promotion on

the basis of norms of production. He was reverted by the

management when his production was less than the norm

fixed and when he had given more production, benefit of

promotion was given to him. Mehta committee report was

introduced from 1979. Thereafter agreement was entered

between Union and the management. On basis of said

agreement, he was given upgraded post. He claims that he

should have been promoted as per the production given

by him. The so called norms of promotion on basis of

3716

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

production any rules are not produced by the management

neither such rules are referred to the workman.

Management’s witness Shri Sahadevan Pillai filed

affidavit of his evidence covering most of the contentions

of Ilnd party management that promotion was linked with

the norms of production and revered many times during

1970 to 1978. That workman Pawar has not given promotion

as per prescribed norms. Mehta Committee Report was

implemented. The employees were upgraded according to

seniority roster point. In 1979, after implementation of

Mehta report, the workers were upgraded in their respective

sections. At that time Pawar was working as Paperboy, he

was upgraded as paper worker. As he was not giving

production as per norms, junior employees giving

production as per the prescribed quota were promoted.

That upgradation in Pay Scale Rs. 210-290 was result of

implementation of Mehta Committee Report. It was done

according to seniority. Ist party workman did not find place

in seniority.

Management witness in his cross-examination says

workman was appointed as Paper boy in 1967. That

promotion and recruitment in his department has its

prescribed policy. Ist party workman was promoted to

Grade- I, II. The reversion of workman was not by way of

punishment. Therefore chargesheet was not received to

him. His work was found unsatisfactory but showcause

notice was not issued to workman. Circulars are issued

about the working targets. If the targets are not achieved,

the employee is reverted. There is no mention of such rules

in the production policy. Management witness was unable

to tell Babulal had not given production as per norms and

he was promoted. Mehta Committee Report was introduced

in 1979. Management’s witness was unable to tell anything

about Mehta Committee report. The document Exhibit W-1

is appointment order, the name of workman is not appearing

in it. Exhibit W-2 is order closing the matter of chargesheet

issued to workman dated 17-7-80. Ehibit W-3 is copy of

establishment of office order No. 977, name of workman is

appearing at Sl. No. 208, pay scale Rs. 214. Exhibit W-4 is

copy of office order No. 1209 giving upgradation benefits

to the employees, name of workman is appearing at

Sl.No.152 in pay scale Rs.1230/- from 1-4-93. The evidence

of workman that in 1979 he had achieved production norms

but he was denied promotion on the ground that some

disciplinary proceedings were pending, the chargesheet

was withdrawn is not challenged by IInd party. When

workman has achieved the norms of production, the

chargesheet was also withdrawn as per Exhibit W-2. There

was no hurdle for upgrading workman in 1979. Thus even

if the rules for promotion as per norms of production are

accepted, the management failed to consider claim of

workman for upgradation after withdrawal of chargesheet

and he when had achieved norms of production in 1979.

The action of management denying promotion/upgradation

to workman and giving said benefit to the junior employees

is illegal. For above reasons, I record my finding in Point

No.l in Negative.

10.

In the result, award is passed as under:-

(1)

Action of the IInd order party management denying

promotion/upgradation in pay scale 260-350 is not

proper.

(2)

IInd party is directed to give benefit of up gradation

to workman of pay scale Rs. 260-350 from date of

withdrawal of chargesheet dated 17-7-80. The

consequential benefits also be given to the workman.

11.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1396-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lhfu;j

lqifjUVsUMsUV vkWiQ iksLV vkWfiQl] jk;iqj fMoh”ku 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 ,o Je

U;k;ky; tcyiqj ds iapkV (lanHkZ la[;k lhthvkbZVh@,ylh@

vkj@114@89) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@62@87&Mh- II (ch)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1396.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. CGIT/

LC/R/114/89 ) of the Central Government Industrial

Tribunal/Labour Court, Jabalpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the Sr. Spudt. of Post

Office, Raipur and their workman, which was received by

the Central Government on 28/04/2014.

[No. L-40012/62/87-D.II (B)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/114/89

PRESIDING OFFICER : SHRI R. B. PATLE

Shri Prakash Kumar Sahu,

Gram Kirkal,

Tehsil Rajim,

Raipur

.....Workman

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3717

Versus

Sr.Supdt. of Post Office,

Post office Raipur Division,

Raipur

.....Management

AWARD

Passed on this 4th day of April, 2014

As per letter dated 19-5-89 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-40012/

62/87-D-II(B). The dispute under reference relates to:

“Whether the action of the management of Sr. Suptd.

of Post Office, Raipur Division, Raipur terminating

services of Ravi Prakash Sahu, Addnl. Divisional

Milk Carrier/ Delivery Agent from 27-9-87 is legal? If

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

After receiving reference, notices have been issued

to the parties. Ist party workman submitted his statement

of claim at Page 3/1 to 3/4. Case of workman is ex-post

master, Branch Kirvai. Rajendra Kumar Sharma was

promoted as teacher. He had resigned as post master on

24-11-86. After his retirement Vyas Narayan Sahu was

holding post of postmaster. Ist party workman was

engaged in pay scale Rs.425. He was continuously

working from 28-11-86 to 26-9-97 for 299 days. Letter

dated 2-1-87 was issued by Suptd. of Post Office, Raipur

with object to regularize service of workman. That workman

had submitted all documents from 13-9-82. As per letter

dated 3-7-87, Sr. Suptd. Post office Raipur had given

directions for completing the formalities. Accordingly

workman have completed required formalities. On 26-9-87,

Sr. Supdt. Post Office therefore orally relieved workman

and one Tejram was appointed as Post Master. Vyas

Narayan was appointed as Postman. Workman submits

that Tejram Sahu had received education upto 8th standard.

He was less educated than workman. The workman had

better experience and qualification than Tejram Sahu.

Workman was orally terminated and appointing Tejram is

illegal. Workman further submits that his services are

terminated without notice, retrenchment compensation is

paid to him. His service record was excellent. His character

was good. He was illegally terminated by IInd party. On

such grounds, workman prays for reinstatement with

consequential benefits.

IInd party submitted Written Statement at 10/1 to

10/2. It is contented by IInd party that Rajendra Kumar

Sharma EDBPM Kirwai had submitted resignation on

24-11-86. He did not wait for relieving. He handed over

charge to Shri Vyas Narayan Sahu on 27-11-86. Rajendra

Kumar Sharma had unauthorisely god relieved. Vyas

Narayan sahu was performing duties of EDBPM from

27-11-86. A substitute was provided in place of EDMC/DA

on his own responsibility from 28-11-86. After selection,

Tejram Sahu was appointed as EDBPM Kirwai following

the rules and procedure on 26-9-87. That workman was

appointed by his brother Vyas Narayan as substitute. His

services were in nature of staff gap arrangement till the

vacancy was filled regularly. The order dated 24-8-87 was

issued for discontinuing workman. The appointment of

workman as EDBPM was considered by his real brother

working as EDMC/DA in same post office. Contravening

order dated 22-1-86 by C.O.STA. after reversion of Vyas

Narayan Sahu from post of branch Post Master Kirwai,

workman was automatically discontinued. On such

ground, IInd party prays for rejection of claim.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the manage-

In Affirmative

ment of Sr.Suptd.of Post Office,

Raipur Division, Raipur terminating

services of Ravi Prakash Sahu,

Addnl. Divisional Milk Carrier/

Delivery Agent from 27-9-87 is

legal?

(ii) If not, what relief the workman is

Workman is

entitled to?”

not entitled to

relief prayed

by him.

REASONS

Workman is challenging termination of his services

for violation of Section 25-F of I.D.Act,. he claims to have

been appointed in Pay Scale Rs. 425 and work continuously

for 99 days. His services are terminated without notice

and paid retrenchment compensation. IInd party submits

that Ist party workman was appointed as a substitute by

his own brother in contravention of certain office order.

After reversion of brother of workman, services of workman

were automatically discontinued. Workman filed affidavit

of his evidence covering most of his contentions in

statement of claim. That he was appointed on 28-11-86

and he continued to work till 26-9-87. His service was

satisfactory. He was holding permanent post. After

termination, he was not called in the department. The work

was of regular nature. In his cross-examination, workman

says his name was sponsored though Employment

Exchange. However said fact is not pleaded in his statement

of claim. He denies that as the post was lying vacant

therefore he was engaged for the work. He denies that he

was not engaged against regular post.

IInd party filed affidavit of evidence of Shri Rajendra

Kumar Sharma. However the management’s witness failed

to appear for cross-examination. Then management filed

affidavit of evidence of Shri D.P.Yadav said witness also

3718

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

failed to appear for his cross-examination therefore

evidence on affidavit of both witness of the management

cannot be considered. The pleadings and evidence of

workman itself shows that he was appointed as the regular

post was lying vacant. Thus the appointment of workman

is as substitute and not appointed against regular vacant

post. The selection process was not followed. Workman

has not proved certificate issued by one Sonaram Sahu,

Sarpanch. The appointment order is not produced as

workman was not appointed against regular post following

selection procedure. He was appointed as substitute. The

discontinuation of service of workman cannot be said

illegal. For above reasons, I record my finding in Point

No.1 in Affirmative.

In the result, award is passed as under:-

(1)

Action of the management of Sr.Suptd.of Post Office,

Raipur Division, Raipur terminating services of Ravi

Prakash Sahu, Addnl. Divisional Milk Carrier/

Delivery Agent from 27-9-87 is legal and proper.

(2)

Workman is not entitled to relief prayed by him.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1397-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

tujy eSustj] VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+

ds iapkV (lanHkZ la[;k 578@2005) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@382@99&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1397.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 578/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/382/99-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : Sri Kewal Krishan, Presiding Officer

Case No. I.D. No. 578/2005

Registered on 23.8.2005

Sh. Pawan Kumar

S/o Sh. Rattan Lal,

C/o Jeet Singh,

President, Telecom Labour Union,

Mohalla Harinagar, Lal Singh Basti Road,

Bathinda.

.....Petitioner

Versus

The General Manager,

Telecom, Bathinda

.....Respondents

APPEARANCES :

For the workman

Sh. Charanjeet Adv.

For the Management

Sh. Anish Babbar Adv.

AWARD

Passed on- 4-4-2014

Central Government vide Notification No. L-40012/

382/99/ IR(DU) Dated 9.2.2000, 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 General

Manager Telecom, Bathinda in terminating the

services of Sh. Pawan Kumar S/o Sh. Rattan Lal is

legal and justified? If not to what relief the workman

is entitled and from which date?”

According to the workman, he served in Telephone

Exchange Budhladha on a permanent job from 22.8.1994

and used to draw Rs.2138 as monthly wages. His services

were terminated on1.3.1999 in violation of the provisions

of the Act. That persons junior to him were retained in

service and even new persons were recruited without

calling him. That he be reinstated in service.

Respondent management filed written reply denying

the relationship and pleaded that workman was never

employed by the management. That the management used

to hire labour through the contractor and the applicant

may have worked as a casual labour for the contractor.

That since he was not an employee of the respondent

management, the provisions of the Act are not applicable

to it.

In support of its case workman appeared in the

witness box and filed his affidavit reiterating the case as

set out in the claim petition. He has also examined Durga

Prasad who has stated that he joined service with the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3719

management in 1995. That the workman also worked as a

daily wager.

On the other hand the management examined Ashok

Kumar and Baldev Krishan; who have filed their respective

affidavits reiterating the stand taken by the respondent

management.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

Learned counsel for the workman carried me through

the statement of the workman and submitted that his

statement get corroboration from the statement of Durga

Prasad and therefore it be held that workman was an

employee of the respondent management whose services

have been illegally terminated.

I have considered the contention of the learned

counsel.

It may be added that according to the workman he

worked on a permanent job from 22.8.1994 to 1.3.1999 and

was paid Rs.2138 as monthly wages. There is nothing on

the file to suggest that there was any such vacancy in the

Telephone Exchange Budhladha at the relevant time and

any procedure was followed for filling up that vacancy.

According to the workman he was paid Rs.2138 per month

but no record has been summoned from the department to

establish that he was paid any amount by way of wages

by the department. From the simple assertions that

workman worked with the respondent management

drawing monthly wages of Rs.2138 do not establish that

he was an employee of the respondent management. It is

the definite stand that management used to hire labour

through contractor and the workman may have worked

under the contractor.

The statement of Durga Prasad is also of no help to

the workman as he was not appointed by the management

in his presence. If he has worked in the department, he

may have worked as a man of the contractor.

Thus the workman has failed to prove by leading

cogent evidence on the file that he was an employee of

the respondent management and his services have been

terminated and he is not entitled to any relief. The reference

is accordingly answered against the workman.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1398-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+ ds iapkV (lanHkZ

la[;k 808@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@174@99&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1398.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 808/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/174/99-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : Sri Kewal Krishan, Presiding Officer

Case No. I.D. No. 808/2005

Registered on 6.9.2005

Miss Babita, C/o Sh. N.K. Jeet,

President, Telecom Labour Union,

Mohalla Hari Nagar,

Lal Singh Basti Road, Bathinda.

.....Petitioner

Versus

The General Manager, Telecom,

Bathinda.

.....Respondents

APPEARANCES

For the workman

: Sh. Charanjeet, Adv.

For the Management

: Sh. Anish Babbar, Adv.

AWARD

Passed on-3.4.2014

Central Government vide Notification No. L-40012/

174/99-IR(DU) Dated 29.9.1999, 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 General

Manager Telecom, Bathinda in terminating the

services of Miss Babita is just and legal? If not to

what relief the workman is entitled to and from which

date?”

In response to the notice, the workman appeared

and submitted statement of claim pleading that she served

as a Clerk in TRA O/o GMT Bathinda on a permanent job

from 27.1.1997 and drawing a salary of Rs.2140 per month.

Her services were terminated on 31.12.1997 in

contravention of the provisions of the Act. That the

3720

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

persons junior to her were retained in service and even

new hands have been employed without calling her. That

termination of her services is illegal and she be reinstated

in service with all the benefits.

Respondent management filed written reply

controverting the averments and further pleaded that GMT

Bathinda entered into an agreement with Sh. Amarjit Singh

and Sh. Ashok Kumar Garg for the supply of contract

labour in the year 1996 and 1997 and the workman may

have worked under the aforesaid contractor on daily wage

basis. She is not an employee of the respondent

management. She was not paid any wages by it. Thus the

relationship of employer and employee has been denied

by the respondent management.

In support of its case the workman appeared in the

witness box and filed her affidavit reiterating the case as

set out in the claim petition and further deposed therein

that she was to draw Rs.2138 per month but was paid only

Rs.1200 per month. That she was employed on the job by

A.O. Telecom, Bathinda who used to pay her the wages.

That the attendance register and the record relating to

wages paid to her is with the respondent management.

She has placed on record photocopy of daily dairy register

consisting of 46 pages.

On the other hand the management examined Baldev

Krishan who filed his affidavit reiterating the stand taken

by the respondent management in the written statement.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

It was argued by the learned counsel for the workman

that the workman has worked in the department from

27.1.1997 to 31.12.1997 and the same is also evident from

the copies of the daily diary register Exhibit WW1/1 and

since the department has failed to produce any record or

examine the contractor and therefore, it is reasonable to

presume that the workman was actually an employee of

the respondent management whose services have been

illegally terminated.

I have considered the contention of the learned

counsel.

It may be added that according to the workman she

was employed by A.O. Telecom, Bathinda who used to

pay her wages. There is nothing on the file to suggest

that who was the A.O at the relevant time in the office nor

the said person has been examined by the workman to

establish that she was actually engaged by him. Again

there is nothing on the file to show that the said person

was ever authorized to engage the workman as Clerk. Thus

the engagement of the workman as Clerk with the

respondent management is not proved. The workman has

relied on the copies of the daily diary register which are at

page 21 to 65 of the file. But the entries therein are in the

hand of the workman herself and are not verified by any

official of the respondent management. Even the said

entries do not establish that the workman was actually

engaged by the respondent management whose definite

case is that a contractor used to supply labour and the

workman may have worked under the contractor. Since it

is not proved that the workman was employed by the

management, it was not necessary for the management to

examine contractor. According to the workman she was

drawing Rs.2140 per month. But in her affidavit she has

deposed that she was paid only Rs.1200 per month which

goes a long way to show that she was not actually

employed by the department nor any record has been

summoned to establish that the department has paid her

any salary. Thus it cannot be said that she was ever

employed by the management and her services were

terminated by it.

In result, it is held that workman has failed to prove

that she was employed by the respondent management

and her services were terminated and she is not entitled to

any relief and 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] 30 vizSy] 2014

dk-vk- 1399-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+ ds iapkV (lanHkZ

la[;k 812@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@264@99&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1399.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 812/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/264/99-IR(DU)]

P. K. VENUGOPAL, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3721

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : Sri Kewal Krishan, Presiding Officer

Case No. I.D. No. 812/2005

Registered on 7.9.2005

Sh. Shinder Pal, C/o Jeet Singh,

President, Telecom Labour Union,

Mohalla Harinagar,

Lal Singh Basti Road, Bathinda.

.....Petitioner

Versus

The General Manager,

Telecom, Bathinda.

.....Respondents

APPEARANCES

For the workman

: Sh. Charanjeet Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on-3.4.2014

Central Government vide Notification No. L-40012/

264/99/ IR(DU) Dated 18.11.1999, by exercising its powers

under Section 10 Sub Section (1) Clause (d) and Sub

Section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of General

Manager Telecom, Bathinda in terminating the

services of Sh. Shinder Pal is legal and justified? If

not to what relief the workman is entitled?”

In response to the notice the workman submitted

statement of claim pleading that he served the respondent

management as Telegraph Man in DTO Bathinda on a

permanent job from 28.11.95 to 31.7.97 and Rs.2140/- were

paid to him as monthly wages. That his services were

terminated on 31.7.1997 in contravention of the provisions

of the Act and the persons junior to him were retained in

service. That new hands have been recruited without

calling him. That his termination is illegal and he be

reinstated in service with all the benefits.

Respondent management filed written reply

controverting the averments and denied that there was

any relationship of employer and employee between the

parties. That the management did not pay the workman

any salary. That management used to hire labour through

a contractor for the performance of emergency work and

used to make payment to the contractor who was paying

the amount to the labour. That workman was not an

employee of the respondent management and his services

were not terminated by it.

Parties led their evidence.

In support of its case the workman appeared in the

witness box and examined Surinder Kumar and Ashok

Kumar.

Workman filed his affidavit supporting his case as

set out in the claim petition.

Surinder Kumar has stated that he worked in the

Telegraph Office in Bathinda in 1992 where the workman

was working as a katcha worker and used to deliver

telegrams and serve water etc.

Ashok Kumar was examined to produce the record

i.e. duty slips of the office from 1995 to 1997, attendance

the workman for the said period. He has stated that the

record is not available in the Department.

On the other hand the Department has examined

Baldev Krishan who filed his affidavit reiterating the case

of the respondent management as set out in the written

statement.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

It was contended by the learned counsel for the

workman that the workman worked with the respondent

management from 28.11.1995 to 31.7.1997 on a permanent

job and the same stands proved from the duty slips placed

on the file and found at page No.29 to 119 of the file and

further get corroboration from the statement of Surinder

Kumar. The learned counsel further argued that the

management did not examine the contractor to establish

that the workman was actually an employee of the

contractor. Management also did not produce the record

summoned by the workman and therefore it is valid to

draw an inference that workman was an employee of the

respondent management.

I have considered the contention of the learned

counsel.

It may be added that the definite case of the workman

is that he worked with the respondent management from

28.11.1995 to 31.7.1997 on a permanent job and used to

draw Rs.2140/- as wages per month. Respondent

management is a statutory body having its rules and

regulations for appointing its employees. There is nothing

on the file that any rule or procedure was followed when

the workman was allegedly appointed by the respondent

management. According to the workman he used to draw

Rs.2140/- as wages. Again no record has been summoned

from the respondent to prove that it used to pay the said

sum to the workman. From the mere allegations that the

workman worked with the respondent for a said period, it

cannot be said that the workman was an employee of the

respondent management.

3722

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Respondent management has taken the stand that it

used to get labour through a contractor for performing

emergency work. It is nowhere pleaded that the workman

was actually an employee of the contractor. Thus if the

management did not examine the contractor or summon

the record, the same do not prove that the workman was

an employee of the respondent management.

The workman summoned certain record from the

management and it is the definite stand of the management

that workman was never its employee and in the

circumstances, the respondent management was not to

maintain any record regarding the workman. The duty

slips placed on the record also do not establish that the

workman was an employee of the respondent management

as the author of the said slips has not been examined and

the same are not proved on the file.

So far as the statement of Surinder Kumar is

concerned he simply stated that the workman used to work

as a katcha worker and when it is so he may have been

provided by the contractor and his statement do no

establish that the workman was actually employed by the

respondent management.

In result, it cannot be held that workman was an

employee of the respondent management and his services

were terminated by it. Accordingly the reference is

answered against the workman and 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] 30 vizSy] 2014

dk-vk- 1400-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+ ds iapkV (lanHkZ

la[;k 552@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@310@2001&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1400.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 552/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/310/2001-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present: Sri Kewal Krishan, Presiding Officer

Case No. I.D. No. 552/2005

Registered on 23.8.2005

Smt. Charan Kaur, C/o Sh. N.K. Jeet,

27349, Lal Singh Basti Road,

Bathinda.

.....Petitioner

Versus

The General Manager,

Telecom, E-10 B Building,

Behind HPO, Bathinda.

.....Respondents

APPEARANCES

For the workman

: Sh. Charanjeet Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on-2.4.2014

Central Government vide Notification No. L-40012/

310/2001-IR(DU) Dated 5.2.2002, 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 General

Manager Telecom, Bathinda in terminating the

services of Smt. Charan Kaur, W/o Sh. Gurjant Singh,

Sweeper, w.e.f. 1.3.99 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 she served with the

respondent management at Jhuneer as Sweeper on a

permanent job from 14.1.1986 drawing Rs.200/- as monthly

wages. Her services were terminated on 1.3.1999 in

contravention of the provisions of the Act and the persons

junior to her were retained in service and even new hands

were recruited without calling her. That she be reinstated

in service.

Respondent management filed written reply pleading

that the department imposed a partial ban on 30.3.1985 for

engagement of casual labourer for any type of work and a

complete ban was imposed vide order dated 22.6.1988. It

is denied that claimant was appointed on a permanent job

and pleaded that she was employed on contract basis and

she was engaged as a part time sweeper for 0.53 hours in

a day on need basis only. That she is not an employee of

the management. All other averments have been denied.

Parties led their evidence.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3723

Workman appeared in the witness box and filed her

affidavit reiterating the stand taken by her in the statement

of claim. She has further deposed that the department

promised her minimum wages but she was paid only

Rs. 200 per month.

On the other hand respondent management examined

Baldev Krishan who filed his affidavit.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar counsel for the management.

It was argued by the learned counsel for the workman

that workman was actually employed by the respondent

management for the period 14.1.1986 to 1.3.1999 which get

corroboration from the fact that the department did not

produce any record and also had given evasive reply

regarding her salary and therefore it is just to presume

that she was an employee of the respondent management

whose services have been illegally terminated.

I have considered the contention of the learned

counsel.

The case of the workman is that she served as a

Sweeper in Telephone Exchange Jhuneer on a permanent

job from 14.1.1986 to 1.3.1999 and her monthly wages were

Rs. 200. Thus it was for her to prove that she worked on a

permanent job for the said period, but there is nothing on

the file to suggest that either there was any permanent

post against which the workman was employed or she

actually worked regularly. If she was employed on a

permanent job, she must have drawn the salary as per the

pay scale but according to her she used to draw Rs.200/-

for the entire period from 14.1.1986 to 1.3.1999 which falsify

her case that she worked against a permanent job.

Respondent management has clearly pleaded that workman

was employed as a part time sweeper on contract basis

and she was engaged as such for 0.53 hours in a day on

need basis only. If she was engaged on need basis and as

a part time worker the same do not establish that she was

a regular employee or casual employee of the respondent

management who has certain rules and regulations for

giving employment and nothing has come on the file that

any such rule was followed before employing the workman.

Thus it cannot be said that the workman actually worked

on a permanent job for the period in question and her

services were terminated in contravention of the provisions

of the Act. If the management did not give a specific reply

regarding her salary, no adverse inference can be drawn

against it as according to the management the workman

was employed purely on need basis as part time sweeper

and in this situation if the management was unable to give

a specific reply regarding her salary the same do not itself

shows that the workman was an employee of the

respondent management.

In result, it cannot be held that workman was an

employee of the respondent management and her services

were terminated by it. Accordingly the reference is

answered and the workman 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] 30 vizSy] 2014

dk-vk- 1401-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+ ds iapkV (lanHkZ

la[;k 271@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@444@99&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1401.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 271/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/444/99-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

PRESENT : SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No. 271/2005

Registered on 11.8.2005

Miss Vijay Laxmi, C/o Sh. N.K. Jeet,

President, Telecom Labour Union,

Mohalla Hari Nagar,

Lal Singh Basti Road, Bathinda

.....Petitioner

Versus

The General Manager,

Telecom, Bathinda

.....Respondents

APPEARANCES

For the Workman

: Sh. Charanjeet Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on 2.4.2014

Central Government vide Notification No. L-40012/

444/99-IR(DU) Dated 17.2.2000, by exercising its powers

under Section 10 Sub-section (1) Clause (d) and Sub-

3724

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial Dispute for adjudication to this Tribunal:-

“Whether the action of the management of General

Manager Telecom, Ferozepur in terminating the

services of Miss Vijay Laxmi D/o Sh. J.P. Pandey 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 she served as a clerk in

the Office of A.O (TRA) Ferozepur on a permanent job

since 1.6.1995 drawing monthly wages of Rs. 2138 per

month. Her services were terminated on 5.3.1999 in

violation of the provisions of the Act. That the persons

junior to her were retained in service and even new hands

were recruited without calling her. That the termination of

her services is illegal and she be reinstated in service.

Respondent management filed written reply

controverting the averments and pleaded that she was

never employed by the management. That the management

used to engage labour through the contractor to do

emergency work and the workman was neither employed

nor paid by it.

Workman filed rejoinder.

In support of its case the workman appeared in the

witness box and examined Smt. Neelam Kumari.

Workman filed her affidavit reiterating the case as

set out in the claim petition and further deposed that she

was employed by Mr. Sharma A.O. who used to pay her

the wages. That A.O. used to allot her the work and used

to sign the documents.

Neelam Kumari has deposed in her affidavit that she

had seen the workman working as Clerk in the Office of

A.O. (TRA) Ferozepur from 1.6.1995 to 5.6.1999.

The workman has also examined Narinder Kumar, an

official of the respondent management. He was summoned

to produce the record and he brought the attendance

its copies as WW3/450 and further stated that the

remaining record summoned was not maintained in the

office.

On the other hand the management examined

Sh. D.L. Purohit who filed his affidavit reiterating the stand

taken by the management.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar counsel for the management.

It was argued by the learned counsel for the workman

that workman was employed as Clerk who continuously

worked from 1.6.1995 to 5.3.1999 when her services were

arbitrarily terminated. In support of his contention he has

carried me through the photocopies of the diary and

submitted that the work done by the workman during the

period 1.6.1995 to 30.4.1999 has been recorded therein

which clearly prove that workman was an employee of

the respondent management and this fact also get

corroboration from the statement of Smt. Neelam Kumari

examined by the workman. The learned counsel further

submitted that the department intentionally did not

produce the record and therefore adverse inference be

drawn against it to hold that workman was an employee of

the respondent management.

I have considered the contention of the learned

counsel.

The definite case of the workman is that she served

the respondent management against a permanent job

getting a salary of Rs. 2138 per month and further deposed

in her affidavit that she was employed by Mr. Sharma A.O.

(TRA) Ferozepur. Suffice it to say that respondent

management is governed by certain rules and regulations

for employing the persons in its office and there is nothing

on the file to suggest that any procedure was followed for

appointing the workman as Clerk in the office. The A.O.

Sharma has not been examined by the workman to prove

that she was actually engaged by him. No record has

been produced on the file to show that the department

ever has paid her any wages. Therefore it cannot be said

that she was ever an employee of the respondent

management and in the circumstances, the oral statement

of Neelam Kumari is of no help to the workman.

The photocopies of the daily diary work done Exhibit

WW1/2 to WW1/449 are in the hand of the workman

herself and are not signed by any official of the respondent

management and do not establish by any stretch of

imagination that the workman ever worked as an employee

of the respondent management. Narinder Kumar brought

the attendance register as summoned by the workman but

nothing has been pointed out to establish that attendance

of the workman was ever marked therein which again rules

out the possibility that the workman ever worked in the

department as its employee. Narinder Kumar has

specifically stated that the other record summoned by the

workman i.e. rolls of payment of wages of casual labourer

and work allotment to them and attendance register of the

casual labourers is not maintained in the office and as

such could not be produced and no inference is to be

drawn to hold that the workman was an employee of the

respondent management.

Thus in result, it is held that workman has failed to

prove by leading cogent evidence that she was an

employee of the respondent management and her services

were terminated. Accordingly the reference is decided

against her and she 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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3725

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1402-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+ ds iapkV (lanHkZ

la[;k 656@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@194@2001&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1402.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 656/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/194/2001-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH.

Present: Sri Kewal Krishan, Presiding Officer

Case No. I.D. No. 656/2005

Registered on 24.8.2005

Sh. Ashok Singh, C/o Sh. N.K. Jeet,

27349, Lal Singh Basti Road,

Bathinda.

.....Petitioner

Versus

The General Manager,

Telecom, E-10 B Building,

Behind HPO, Bathinda.

.....Respondents

APPEARANCES

For the Workman

: Sh. Charanjeet Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on 2.4.2014

Central Government vide Notification No. L-40012/

194/2001-IR(DU) Dated 5.9.2001, by exercising its powers

under Section 10 Sub-section (1) Clause (d) and Sub-

section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial Dispute for adjudication to this Tribunal:-

“Whether the action of the management of General

Manager Telecom, Bathinda in terminating the

services of Sh. Ashok Singh S/o Sh. Godhu, 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 served as Cable Jointer

in Telephone Exchange, Mansa on a permanent job from

1.7.1993 and used to draw Rs. 2138 as monthly wages. His

services were terminated on 1.3.1999 in contravention of

the provisions of the Act. That the workmen junior to him

were retained in service. Since the termination of service

was illegal, he be reinstated in service with all the benefits.

Respondent management filed written reply

controverting the averments and denied that there was

any relationship of employer and employee between the

parties. That the workman was never paid any wages by

the management who used to get labour for the

performance of petty jobs from contractor. The workman

may have been engaged by the contractor but the workman

was never employed by the management at any point of

time nor he was paid any salary. Further objection that

this Court had no jurisdiction to try the reference was also

taken.

Parties led their evidence.

In support of its case, the workman appeared in the

witness box and examined Ashok Kumar and Parmod Singh.

Ashok Kumar workman filed his affidavit reiterating

the case as set out in the claim petition and further

mentioned the work performed by him and the places where

he did the duty.

Parmod Singh has deposed that he was working in

Mansa in 1979 as a lineman and the workman also worked

there and had come from Jhuneer Exchange.

Ashok Kumar, an official of the respondent

management was summoned to produce the record i.e.

messenger delivery slips, progressive reports of work done

and fault register of Telephone Exchange Jhuneer. But he

stated that the summoned record is not available and the

same were not prepared by him.

On the other hand the management examined Baldev

Krishan who had reiterated the case of the management

as set out in the written statement.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

The learned counsel for the workman carried me

through the statement of the workman and submitted that

his statement get corroboration from the statement of

Parmod Singh and since the department did not produce

any record as summoned by the workman, it is proved on

the file that the workman was employed by the respondent

management and he worked under it and his services have

been arbitrarily terminated.

3726

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

I have considered the contention of the learned

counsel.

The definite stand of the respondent management

is that the workman was never employed by it. That the

management did not pay him any wages. The workman

summoned certain record, as stated above but Ashok

Kumar who appeared in the witness box and specifically

stated that the record is not available. Since the

management denies the relationship of employer and

employee, it cannot be said that any record was maintained

regarding any service of the workman. Thus if no record

is produced by the management, the same itself do not

prove that the workman was an employee of the

management.

Parmod Singh has stated that the workman worked

in Mansa Exchange in 1997 as a labourer and further stated

that the manpower was supplied to the office through J.E.

Thus if it is taken that the workman worked at Mansa

Exchange for some time, he may have been sent there by

the contractor and workman cannot drive any benefit from

the statement to reach at the conclusion that he was

actually appointed by the respondent management.

There is a self-serving statement of the workman

which also do not lead to the conclusion that he was

appointed by the management or he was ever paid any

wages by it. It is not denied that management has its rules

and regulations for employing the persons and nothing

has come on the file to show that any such procedure was

followed before giving him appointment to the workman.

There is no cogent evidence on the file that he was ever

an employee of the respondent management and when it

is so, it is hard to hold that his services were terminated.

In result it is held that workman has failed to prove

that he was an employee of the respondent management

and his services were terminated and he is not entitled to

any relief. The reference is accordingly answered against

the workman. Let hard and soft copy of the award be sent

to the Central Government for further necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1403-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+ ds iapkV (lanHkZ

la[;k 809@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@176@99&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1403.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 809/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014.

[No. L-40012/176/99-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH.

Present : Sri Kewal Krishan, Presiding Officer.

Case No. I.D. No.809/2005

Registered on 6.9.2005

Miss Sweety Singla,

C/o The President,

Telecom Labour Union,

Mohalla Hari Nagar,

Lal Singh Basti Road, Bathinda.

.....Petitioner

Versus

The General Manager,

Telecom, Bathinda.

.....Respondents

APPEARANCES

For the Workman

: Sh. Charanjeet Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on 4.4.2014

Central Government vide Notification No. L-40012/

176/99-IR(DU) Dated 29.9.1999, 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 General

Manager Telecom, Bathinda in terminating the

services of Miss Sweety Singla 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 she served as a Clerk in

TRA, O/o GMT, Bathinda on a permanent job from 27.1.1997

and was paid Rs. 2140 as monthly wages. Her services

were terminated on 31.12.1997 without any charge-sheet,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3727

inquiry and compensation. That the persons junior to her

were retained in service and new hands were recruited

without calling her. That she be reinstated in service with

all the benefits.

Respondent management filed written reply

controverting the averments and denied that there was

any relationship of employer and employee and further

pleaded that the applicant was never appointed as Clerk

by the management. General Manager Telecom entered

into an agreement dated 26.6.1996 and 1.4.1997 with the

contractor for supply of contract labour who used to supply

labour to the department and the applicant may have been

employed through the contractor on need basis. That she

cannot claim herself to be an employee of the respondent

management.

Parties led their evidence.

In support of its case the workman appeared in the

witness box and filed her affidavit reiterating her case as

set out in the claim petition. She has further stated that

work was allotted to her by JAO/HC who used to supervise

her work. That she used to prepare telephone bills from

local call statements and Trunk Call Tickets for the

Telephone Numbers pertaining to 256 and 257 Group. She

named some of the employees who worked with her as

regular employees and some as casual workers. She has

also placed on record photocopies of the Daily Diary

On the other hand the management has examined

Baldev Krishan who filed his affidavit supporting the case

of the management and further deposed that the applicant

was not the employee of the management.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

It was argued by the learned counsel for the workman

that workman was employed as a Clerk by the respondent

management and she worked at Bathinda from 27.1.1997

to 31.12.1997 when her services were terminated in

contravention of the provisions of the Act. In support of

his contention he further submitted that the management

did not produce the record maintained by it and also did

not examine the contractor under whom the workman

allegedly worked and these facts go to prove that workman

was actually an employee of the respondent management

which further get corroboration from the statement of the

workman herself.

I have considered the contention of the learned

counsel.

The definite case of the workman is that she worked

as a Clerk on a permanent job from 27.1.1997 to 31.12.1997.

Respondent management is a statutory body having its

rules and regulations and follow certain procedure before

filling the post in the office. There is nothing on the file

that any procedure was followed before employing the

workman as Clerk in the Office. According to the workman

she was drawing Rs.2140/- as monthly wages but during

cross-examination she has stated that she was paid only

Rs.1200/1300/- which goes a long way to demolish her

case that she worked as a Clerk and that too under the

respondent management. She has placed on record

photocopies of the daily diary work done statement for

the month of July 1997 to December 1997 and certain other

documents to prove that she actually worked as a Clerk

with the Department but the author of the said documents

has not been examined to prove the same and therefore no

reliance can be placed on the said documents to hold that

these documents were prepared in the office of respondent

management. She has summoned certain record from the

respondent management to which a definite reply was filed

that the record is not maintained by the department

regarding the persons who were engaged by the contractor.

She has stated that her attendance was used to be

recorded by Sh. J.S. Mann and were checked by A.O. Desraj

but both of the above said persons has not been examined

to support her version that she attended the office as an

employee of respondent management.

The definite stand taken by the management is that

it used to hire labour from the contractor on need basis

and if the management has no examined the contractor or

summoned his record the same do no show that the

applicant was an employee of the respondent management

as it is for the workman to prove by leading cogent

evidence that she was actually employed by the

management which she has failed to prove by leading any

cogent and convincing evidence. It was contended that

the contractor used to supply labourers to the management

not the Clerks and since the workman worked as a Clerk it

be presumed that she was an employee of the respondent

management. Admittedly Baldev Krishan has stated that

contractor only used to supply labour to the department

and not Clerks but he has also stated that Clerks are the

regular employees of the department. There is no evidence

except the bare statement of the workman that she worked

as a clerk with the department. Thus it cannot be said that

she did work as a clerk with the department. When the

workman is not proved to be an employee of the respondent

management, it is needless to say that her service record

was to be maintained by the management.

In result it is held that the workman has failed to

prove that she was an employee of the respondent

management and her services were terminated in

contravention of provision of the Act and she 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

3728

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1404-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsyhdkWe] c¯BMk 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 ,oa Je U;k;ky;&2] paMhx<+ ds iapkV (lanHkZ

la[;k 1010@2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

28@04@2014 dks izkIr gqvk FkkA

¹la- ,y&40012@272@2001&vkbZvkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1404.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 1010/

2005 ) of the Central Government Industrial Tribunal/

Labour Court No. 2, Chandigarh now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of the General Manager,

Telecom, Bathinda and their workman, which was received

by the Central Government on 28/04/2014

[No. L-40012/272/2001-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : Sri Kewal Krishan, Presiding Officer

Case No. I.D. 1010/2005

Registered on 17-9-2005

Sh. Major Singh,

C/o Sh. N.K. Jeet,

27349, Lal Singh Basti Road,

Bathinda

.....Petitioner

Versus

The General Manager, Telecom,

E-10 B Building, Behind HPO,

Bathinda.

.....Respondents

APPEARANCES :

For the Workman

Sh. Charanjeet Adv.

For the Management

Sh. Anish Babbar Adv.

AWARD

Passed on 3-4-2014

Central Government vide Notification No. L-40012/

272/2001 IR (DU) Dated 31-12-2001, by exercising its

powers under Section 10 Sub-section (1) Clause (d) and

Sub-section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial dispute for adjudication to this Tribunal :—

“Whether the action of the management of General

Manager Telecom, Bathinda in terminating the

services of Sh. Major Singh S/o Sh. Pritam Singh,

workman w.e.f. 1.3.99 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 served as a workman

in Telephone Exchange, Mansa on a permanent job from

14.10.1993 and was drawing Rs. 2138/- per month as wages.

His services were illegally terminated on 1.3.1999 and

against the provisions of the Act. That the persons junior

to him were retained in service.

Respondent management filed written reply denying

the relationship and pleaded that the workman was neither

appointed nor paid by the management at any time. That

the management used to engage labour through the

contractor and the workman may have been engaged by

the contractor. That the workman was never employed by

the management. Further objection that this Court had no

jurisdiction to try the reference was also taken.

Parties led their evidence.

In support of its case the workman appeared in the

witness box and filed his affidavit reiterating the case as

set out in the claim petition.

On the other hand the management examined Baldev

Krishan who filed his affidavit reiterating the stand taken

by the respondent management.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

It was argued by the learned counsel for the workman

that workman was an employee of the management who

intentionally withheld the record and adverse inference

may be drawn against it to hold that the workman was

appointed by the management and his services were

illegally terminated.

I have considered the contention of the learned

counsel.

It is the definite case of the workman that he worked

with the management on a permanent job from 14.10.1993

to 1.3.1999 and it is for the workman to prove the said fact

by leading cogent and convincing evidence on the file.

The respondent management is a statutory

organization having its rules and regulations and nothing

has come on the file that any procedure was followed

while employing the workman. Again no evidence has come

on the file to show that the workman was ever paid the

wages by the management. From the bare statement of the

workman it cannot be held that he was an employee of the

respondent management, more especially in view of the

stand taken by the respondent management that they used

to employ labour through the contractor and the workman

may have worked for the contractor. Thus, it cannot be

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3729

said that workman was an employee of the management

and was paid wages at any point of time and when it is so

it cannot be said that his services were terminated by the

management.

In result, it cannot be held that workman was an

employee of the respondent management and his services

were terminated by it. Accordingly the reference is

answered and the workman 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] 30 vizSy] 2014

dk-vk- 1405-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj if'pe

jsyos 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;] t;iqj ds iapkV (lanHkZ la[;k 32@2013)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 24@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&41011@16@2013&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1405.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 32/2013)

of the Central Government Industrial Tribunal-cum-Labour

Court, Jaipur now as shown in the Annexure in the

Industrial Dispute between the management of the North

West Railway and their workmen, received by the Central

Government on 24/04/2014.

[No. L-41011/16/2013-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, JAIPUR

PRESENT : BHARAT PANDEY, Presiding Officer

I.D. 32/2013

Reference No.L-41011/16/2013-IR(B-I)

dated: 7.6.2013

Mandal Mantri,

North West Railway Karmachari

Sangh, Ajmer Mandal, 370/E,

Babu Line, Railway Colony,

Topada, Ajmer

V/s

The Divisional Railway Manager,

North West Railway,

Ajmer

Sr. Divisional Manager,

North West Railway,

Ajmer.

AWARD

25.3.2014

The Central Government in exercise of the powers

conferred under clause (d) of Sub-section 1 & 2(A) of

Section 10 of the Industrial Disputes Act, 1947 has referred

the following Industrial Dispute to this tribunal for

adjudication:-

“Whether the action of the management of North

West Railway, Ajmer in imposing penalty i.e.

reduction of Pay Band from Rs. 4600 to Pay Band

4200 to Sh. P. K. Srivastava w.e.f. 9.11.12 is legal and

justified? If not, to what relief he is entitled ?’’

After receipt of reference it was registered on

9.7.2013 & registered notices were sent to both the parties

on 23.9.2013 fixing 17.10.2013 for filing statement of claim.

On 17.10.2013 vakalatnama was filed on behalf of opposite

party. Applicant, Mandal Mantri, North West Railway

Karmachari Sangh, Ajmer Mandal, 370/E, Babu Line,

Railway Colony, Topada, Ajmer remained unserved for

17.10.2013 & none came in appearance on behalf of

applicant. The registered notice returned back which is on

record with endorsement of postal department that on the

designated address no one lives who is said to be Mandal

Mantri hence, the registered letter is returned back. Order

was passed on 17.10.2013 to sent registered notice again

as per address given in reference and 19.12.2013 was fixed

for filing claim & appearance of parties.

On 19.12.2013 none appeared on behalf of applicant

& there was appearance of learned counsel on behalf of

opposite party. Registered notice as per order dated

17.10.2013 was not sent hence, again it was ordered on

19.12.2013 to send registered notice for 10.3.2014. On

30.1.2014 registered notice was sent to the applicant for

the date fixed 10.3.2014. On 10.3.2014 learned counsel for

opposite party was present & none appeared on behalf of

applicant. Registered notice sent on 30.1.2014 returned

back which is on record of the file with endorsement of the

postal department that on the designated address no one

lives as indicated in the address. This endorsement has

been made on 1.2.2014. On 10.3.2014 learned advocates

were on strike hence, 14.3.2014 was next date fixed for

further order & case was adjourned.

On 14.3.2014 none appeared from both the side.

Applicant remained unserved with endorsement on

registered notices that no one resides as mentioned in the

address. Applicant on his own motion also as per direction

of the letter of reference dated 7.6.2013 did not attempt to

file statement of claim which was to be filed within 15 days

from the date of receipt of reference.

3730

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

In above circumstances, there remained no further

scope to answer the reference under adjudication in

absence of statement of claim & evidence in connection

therewith. Accordingly, on 14.3.2014 case was reserved

for passing the award.

Due to none filing of statement of claim by applicant

as per direction of the Ministry of Labour dated 7.6.2013

& due to none appearance of applicant on repeated

registered notices of the Tribunal adjudication of reference

on merit has become impossible hence, “No Claim Award”

is passed in respect of reference under adjudication. The

reference in question is answered accordingly.

Award as above.

Let a copy of the award be sent to Central

Government for publication u/s 17(1) of the I.D. Act.

BHARAT PANDEY, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1406-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.k iwoZ 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;] tcyiqj ds iapkV (lanHkZ la[;k 26@2007)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 16@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&41015@2@2007&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1406.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 26/2007)

of the Central Government Industrial Tribunal-cum-Labour

Court, Jabalpur now as shown in the Annexure in the

Industrial Dispute between the management of S.E. Railway

and their workmen, which was received by the Central

Government on 16/04/2014.

[No. L-41015/2/2007-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/26/07

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Prabhakar Mohitkar

S/o Shri Vithoba Mohitkar,

R/o 259/3, R.M, Railway Colony,

Raipur (Chhattisgarh)

.....Workman

Versus

General Manager,

S.E.Rly, Garden Reach,

Calcutta (West Bengal)

Chief Engineer (Construction),

S.E.Rly, Raipur (Chhattisgarh)

District Engineer (Construction),

S.E.Rly, Raipur (Chhattisgarh)

Assistant Engineer (Construction) &

Enquiry Officer,

S.E.Rly, Raipur (Chhattisgarh)

.....Management

AWARD

Passed on this 12th day of March 2014

As per letter dated 10-4-07 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D. Act, 1947 as per Notification No. L-41015/

2/2007-IR(B-I). The dispute under reference relates to:

“Whether the action of the management of South

Eastern Railway ( now South East Central Railway

(SECR) in removing Shri P.V. Mohitkar, Ex-Junior

Clerk, SER, Raipur from service w.e.f. 2-8-76 is

justified? If not to what relief the workman is

entitled?”

After receiving reference, notices were issued to

the parties. Despite of repeated notices, workman failed to

submit his statement of claim. Workman was proceeded

ex-parte on 22-4-2010. IInd party submitted ex-parte Written

Statement.

The case of IInd party management is that workman

P.V. Mohitkar was removed from service on 2-8-76 for

unauthorized absence. That Mr. R. B. Saxena was

appointed as Enquiry Officer. 4 sittings of enquiry were

held. After considering report of Enquiry Officer, workman

was removed from service. Workman failed to file appeal.

Statement of claim is also not filed by him. That workman

remained absent without intimation. The Government work

was affected because of his unauthorized absence and

not handing over keys. That the workman was absconding

without reasons therefore he was removed from service.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

“Whether the action of the manage-

In Affirmative

ment of South Eastern Railway

( now South East Central Railway

(SECR) in removing Shri P.V. Mohitkar,

Ex-Junior Clerk, SER, Raipur from

service w.e.f. 2-8-76 is justified?

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3731

(ii) If not, what relief the workman is

Workman is

entitled to?”

not entitled

to any relief.

REASONS

Workman has not participated in reference

proceeding. He failed to submit his statement of claim or

evidence. Management filed Written Statement and

contents that for unauthorized absence, workman was

removed from service, DE was conducted. Affidavit of

evidence is filed by witness T. Lakra Dy.Chief Personnel

Officer supporting contentions of the IInd party

management. That enquiry was conducted about

unauthorized absence. After receiving finding of Enquiry

Officer, workman was removed from service. The evidence

remained unchallenged. I find no reason to disbelieve

evidence of management’s witness. Therefore I record my

finding in Point No.1 in Affirmative.

In the result, award is passed as under:-

(1)

The action of the management of South eastern

Railway ( now South East Central Railway (SECR) in

removing Shri P.V.Mohitkar, Ex-Junior Clerk, SER,

Raipur from service w.e.f. 2-8-76 is legal.

(2)

Workman is not entitled to relief prayed by him.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 vizSy] 2014

dk-vk- 1407-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj jsyos esy

l£ol 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] t;iqj ds iapkV lanHkZ la[;k 31@2006 dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 16@04@2014 dks izkIr gqvk FkkA

¹la- ,y&41012@125@2005&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vfèkdkjh

New Delhi, the 30th April, 2014

S.O. 1407.—In pursuance of Section 17 of the

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

Government hereby publishes the award I.D No. 31/2006

of the Central Government Industrial Tribunal-cum-Labour

Court, Jaipur now as shown in the Annexure in the

Industrial Dispute between the management of Railway

Mail Service and their workmen, received by the Central

Government on 16/04/2014.

[No. L-41012/125/2005-IR (B-I)]

SUMATI SAKLANI, Section Officer

vuqca/k

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa

Je U;k;ky;] t;iqj

lh-th-vkbZ-Vh- izdj.k la- 31@2006

Hkjr ik.Ms;] ihBklhu vf/kdkjh

jsQjsUl ua- -L- 41012 /125 / 2005– IR (B-I) fnukad 21 /2/2006

Sh. Prem Kumar, S/o Sh. Mangturam,

R/o Ward No. 15, Near Surya Cinema,

Ratangarh, Distt. Churu. (Rajasthan)

v/s

The Superintendent, Railway Mail Service,

ST Division, Jodhpur.

Sub Record Officer,

Railway Mail Service, ST Division,

Bikaner (Rajasthan)

izkFkhZ dh rjQ ls

% Jh lUrks"k dqekj lSuh & ,MoksdsV

vizkFkhZ dh rjQ ls % Jh Vh- ih- 'kekZ & ,MoksdsV

% iapkV %

fnukad % 25-02-2014

dsUnzh; ljdkj }kjk vkS|ksfxd fookn vf/kfu;e 1947 dh

/kkjk 10 mi&/kkjk 1 [k.M+ (?k) ds vUrxZr fnukad 21-02-2006

ds vkns’k ls izsf"kr fookn ds vk/kkj ij ;g izdj.k U;k;fu.kZ;u

gsrq lafLFkr gSA dsUnzh; ljdkj }kjk izsf"kr fookn fuEuor~ gS %&

“Whether the action of the management of

Superintendent, Railway Mail Service, ST Division,

Jodhpur and Sub Record Officer, Railway Mail

Service, ST Division, Bikaner in terminating the

service of claimant Shri Prem Kumar from the post of

Class IV employee w.e.f. 30.6.2004 is legal and

justified ?If not, what relief the claimant is entitled

to and from which date ?”

izkFkhZ izsedqekj dh rjQ ls izLrqr LVsVesUV vkWQ Dyse

fnuk¡fdr 7-4-2007 ds vuqlkj laf{kIr% izkFkhZ izsedqekj dk dFku

gS fd jsy Mkd lsok esa foi{khx.k ds vèkhu nSfud osru Jfed

ds :Ik esa fnukad 25-6-87 dks og prqFkZ Js.kh deZpkjh ds in

ij fu;qDr gqvk vkSj lsok ls i`Fkd gksus dh frfFk 30-6-2004 rd

yxkrkj fcuk fdlh O;oèkku ds fu;ksftr jgkA mDr vofèk ds

nkSjku mlls prqFkZ Js.kh deZpkjh dk leLr dk;Z dk;kZy; dh

lQkbZ] ikuh Hkjus rFkk Mkd ds caMy ckaèkdj mUgsa Mkd cSx esa

iSd djus rFkk caMyksa dks Bsys ij j[kdj jsy ds fMCcs rd

igWqapkus] Mkd cSx dks jsy Mkd okgu esa NksMus rFkk Mkd cSx

ykus vkfn leLr dk;Z crkSj deZdkj fy;k tkrk Fkk vkSj mDr

vofèk esa izkFkhZ dh lsok iw.kZr;k lUrks"kizn jghA foi{khx.k dk

laLFkku ,d vkS|ksfxd laLFkku gS ftlds fu;kstu esa dSys.Mj

o"kZ esa 240 fnu ls dgh vfèkd yxkrkj dk;Zjr jgus ls izkFkhZ

3732

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

,d vkS|ksfxd deZdkj gks x;k vkSj foi{khx.k ls mldk lEcUèk

etnwj ,oa ekfyd dk jgkA foi{khx.k ds vèkhu izfrfnu 8 ?k.Vs

ls vfèkd crkSj deZdkj izkFkhZ us 'kkjhfjd Je vkSj dkS’kyiw.kZ

dk;Z djrk jgk] ,slh fLFkfr esa izkFkhZ dh lsok vkS|ksfxd fookn

vfèkfu;e 1947 ,oa vkS|ksfxd fookn fu;e 1957 ds vkKkid

izkoèkkuksa ds izfrdwy lekIr ugha dh tk ldrhA

foi{khx.k us ekSf[kd vkns’k ls fnukad 30-6-2004 dks

nksigj ckn crkSj **NaVuh** izkFkhZ dh lsok lekIr dj nhA lsok

lekfIr ds iwoZ izkFkhZ tSls dk;Zjr deZdkjksa dh dksbZ ojh;rk lwph

ugha tkjh dh xbZA foi{khx.k }kjk cnfu;rh ls izkFkhZ dh lsok

voSèk] vuqfpr ,oa xSj dkuwuh :Ik ls in fjDr gksrs gq, Hkh

blfy, lekIr dj nh rkfd izkFkhZ dks mldh lsok vofèk ds

vuq:Ik fu;fer lsok dk ykHk izkIr u gks ldsaA

vkxs izkFkhZ dk ;g dFku gS fd lsok ls i`Fkd djus ls iwoZ

mls vkS|ksfxd fookn vfèkfu;e 1974 dh èkkjk 25 (,Q) ds

vUrxZr fuèkkZfjr uksfVl vFkok uksfVl ds cnys osru ,oa NaVuh

eqvkotk jkf’k dk Hkqxrku ugha fd;k x;kA ;g Hkh dgk x;k gS

fd lsok ls i`Fkd djus ls iwoZ deZdkjksa dh dksbZ lwph dsUnz

ljdkj dks ugha Hksth xbZ vkSj u gh dksbZ ,slh lwph dk;kZy; ds

uksfVl cksMZ ij pLik dh xbZ] bl izdkj vkS|ksfxd fookn fu;e

1957 ds fu;e 77 ,oa 78 dk ikyu ugha fd;k x;kA ;g Hkh dgk

x;k gS fd izkFkhZ ds lkFk fu;qDr ,oa izkFkhZ dh fu;qfDr ds ckn

Hkh fu;qDr deZdkjksa dks foi{khx.k }kjk lsok ls i`Fkd ugha fd;k

x;k vkSj os vkt Hkh fu;ksftr jgrs gq, fu;fer lsok dk ykHk

izkIr dj pqds gSA bl izdkj foi{khx.k }kjk vkS|ksfxd fookn

vfèkfu;e dh èkkjk 25 (th) ds vkKkid izkoèkku rFkk izFke vk,a

vkSj vkf[kj tk,a ds fl)kUr dk ikyu ugha fd;k x;kA

;kfpdk ds izLrj 8 esa izkFkhZ us ;g mYys[k fd;k gS fd

mldh lsok foi{khx.k ds vèkhu fdlh Hkh vLFkk;h Ldhe vFkok

lafonk ij vFkok va’kdkyhu deZdkj vFkok Bsdk izFkk ij ugha

jghA izkFkhZ dh lsok foi{khx.k }kjk fu;fer ,oa LFkk;h izÑfr ds

dk;Z ij yh xbZ vkSj ml in ds vkt Hkh fjDr gksrs gq, bl

eU’kk ls **NaVuh** ds rkSj ij lekIr dj nh xbZ rkfd izkFkhZ

viuh foxr lsok&vofèk ds vuq:i fu;fer lsok dk ykHk izkIr

u dj ldsaA ;g Hkh dgk gS fd og vius ifjokj esa ,dek=

dekus okyk O;fDr gS ftldk ikfjokfjd thou ladV ls f?kj

x;k gS vkSj og thou&;kiu ds fy, dtZnkj gks x;kA

izLrj 9 esa izkFkhZ us ;g mYys[k fd;k gS fd mldks lsok

ls Ik`Fkd djus ds ckn foi{khx.k us loZJh fouksn j{kd] jkeizlkn]

jruyky] izsedqekj iaokj] nqxkZjke vkfn O;fDr;ksa dks fu;ksftr

fd;k tks fu;fer lsok dk ykHk izkIr dj pqds gS vkSj izkFkhZ tks

ges’kk fu;kstu ds fy, rRij jgk mls tkucw>dj foi{khx.k us

fu;kstu ls ofUpr j[kk vkSj fu;kstu ds fy, ugha cqyk;kA bl

izdkj muds }kjk vkS|ksfxd fookn vfèkfu;e 1947 dh èkkjk 25

(,p) dk mya?ku fd;k x;kA

;g Hkh dgk x;k gS fd foi{khx.k le;≤ ij vkns’k

ikfjr dj izkFkhZ dh lsok vofèk dks c<+krs jgs vkSj cszd nsus dh

eU’kk ls izkFkhZ dks lafonk ij n’kkZ, tkus dh voSèkkfud dk;Zokgh

vey esa yk;h rFkk jrux<+ bdkbZ dks cUn gksuk n’kkZ dj izkFkhZ

dks csjkstxkj dj fn;k tcfd izkFkhZ foi{khx.k ds vèkhu fdlh

Hkh dk;Z&LFky ij lsok nsus ds fy, rS;kj Fkk ysfdu voSèkkfud

rkSj ij mldh lsok lekIr dj nh xbZ tks foi{khx.k dk izkFkhZ

ds fo:) ikapoh vuqlwph esa fufgr **vuqfpr Je O;ogkj** gSA

vkxs ;g dFku gS fd izkFkhZ us voSèk :Ik ls lsok lekIr djus ij

foi{khx.k ,oa muds mPpkfèkdkjh;ksa dks lsok esa iqu% ysus ds fy,

fuosnu fd;k ftl ij foi{khx.k us ekSf[kd vkns’k nsdj

bUrtkj esa j[kk vkSj jrux<+ dk;kZy; dks pq: esa LFkkukUrfjr

dj fn;k rFkk jrux<+ ds dk;kZy; esa dk;Zjr deZdkjkas dks pq:

vkSj fcdkusj ds vèkhu lek;ksftr dj fn;k ysfdu izkFkhZ dks

lek;ksftr u dj crkSj NaVuh mldh lsok lekIr dj nhA vr%

izkFkhZ us ;g vuqrks"k ekax dh gS fd lsok lekfIr dk vkns’k

fujLr dj osru lfgr] lsok dh fujUrjrk dk ykHk iznku fd;k

tk; vkSj ,fj;j dh èku jkf’k ij 12 izfr’kr okf"kZd C;kt dh

nj ls C;kt fnyok;k tk;A

foi{khx.k dh rjQ ls LVsVesUV vkWQ Dyse dk izLrjokj

tokc fnukafdr 26-5-2010 izLrqr dj izLrj ,d ds lEcUèk esa

dgk x;k gS fd bl ij fVIi.kh dh vko’;drk ugha gSA izLrj

nks] rhu] pkj] ikWp] N%] lkr] vkB] ukS] nl vkSj X;kjg esa izLrqr

fd;s x;s dFku dks vLohdkj fd;k x;k gS vkSj vkxs ;g dgk

x;k gS fd ;kph jsy Mkd lsok] mi vfHkys[k dk;kZy;] jrux<+

esa ikuh Hkjus ds fy;s va’kdkyhu rkSj ij j[kk x;k Fkk ,oa

vko’;drk gksus ij dk;kZy; esa lQkbZ] Mkd ds caMy ckWaèkdj

mUgsa Mkd FkSyksa esa iSd djus ds dk;Z ds fy, j[kk x;k FkkA jsy

Mkd lsok] mi vfHkys[k dk;kZy;] jrux<+ dks Mkd foHkkx }kjk

fnukad 1-7-2004 dks cUn dj fn;k x;k blfy, ;kph dks

1-7-2004 ds ckn dk;Z ds fy, ugha cqyk;k x;kA vkxs fo’ks"k :Ik

ls bl ckr dk mYys[k fd;k x;k gS fd izkFkhZ Jfed dks dHkh

fu;qDr ugha fd;k x;k] blfy, mlds }kjk 240 fnu rd dk;Z

djus dk iz’u mRiUu ugha gksrkA

10-

;g Hkh dgk x;k gS fd ikuh Hkjus ds fy;s ;kph dks

dHkh&Hkh LFkk;h :Ik ls ugha j[kk x;k Fkk vkSj tc vko’;drk

gksrh Fkh rc va’kdkyhu rkSj ij mls ikuh Hkjus ds fy, cqyk;k

tkrk Fkk vkSj dHkh fdlh Hkh :Ik esa fdlh in ij mldh fu;qfDr

ugha dh x;hA

11-

vkxs ;g mYys[k gS fd ;kph dh fdlh in ij fu;qfDr

ugha dh x;h blfy, crkSj **NVuh** mls gVkus dk dksbZ iz’u

ugha mBrkA mls va’kdkyhu rkSj ij dsoy ikuh Hkjus ds fy,

tc vko’;drk gksrh Fkh rc mls cqyk;k tkrk Fkk vkSj mls dHkh

LFkk;h :i ls ugha j[kk x;k FkkA ;kph dks dksbZ fu;qfDr vkns’k

vFkok fu;qfDRk i= iznku ugha fd;k x;k Fkk blfy, mls gVkus

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3733

ds fy, uksfVl vFkok uksfVl ds cnys osru ,oa NVuh eqvkotk

dk Hkqxrku ugha fd;k x;kA

12-

LVsVesUV vkWQ Dyse esa izLrj 9 esa ftu O;fDr;ksa dks

;kph us n’kkZ dj ;g mYys[k fd;k gS fd mUgsa ;kph dks lsok

ls i`Fkd djus ds ckn fu;ksftr fd;k x;k vkSj os fu;fer lsok

dk ykHk Hkh izkIr dj pqds gS bl lEcUèk esa foi{khx.k us oknksÙkj

ds izLrj 9 esa ;g mYys[k fd;k gS fd os yksx foHkkx esa igys

ls gh fuèkkZfjr foHkkxh; fu;qfDr izfØ;k ds vuqlkj lsokjr gS

vkSj fu;fer lsok dk ykHk izkIr dj jgs gSA

13-

**vuqfpr Je O;ogkj** ds lEcUèk esa LVsVesUV vkWQ Dyse

esa izLrqr dFku ds fo:) foi{khx.k dk ;g tokc gS fd ;kph

dks dHkh fu;qfDr ugha fd;k x;k blfy, mls lsok ls i`Fkd

djus dk iz’u gh ugha mBrk vr% ;kph }kjk **vuqfpr Je

O;ogkj** ds dFku ls foi{khx.k dks dksbZ ysuk&nsuk ugha gSA

14-

oknksÙkj ds izLrj 11 esa ;g Lohdkj fd;k gS fd vLFkk;h

:i ls dk;Zjr jsy Mkd lsok dk;kZy; ds deZpkfj;ksa dks pq:

vkSj fcdkusj ds dk;kZy; esa LFkkukUrfjr fd;k x;k vkSj ;kph

dsoy va’kdkyhu dk;Z ds fy, j[kk x;k Fkk ftlds }kjk ;kfpr

vuqrks"k rFkk LVsVesUV vkWQ Dyse esa of.kZr rF; xyr] eux<+Ur

vkSj fofèk fo:) gksus ds dkj.k Lohdkj fd;s tkus ;ksX; ugha gS

vkSj ;kph fdlh izdkj dk vuqrks"k ikus dk vfèkdkjh ugha gS] vr%

LVsVesUV vkWQ Dyse fujLr fd;k tk;A

15-

izkFkhZ Jfed dh rjQ ls ;kfpdk ds leFkZu esa izys[kh;

lk{; ds :i esa nLrkostksa dh lwph fnukafdr 28-4-2011 ds lkFk

9 vnn vfHkys[k izLrqr fd;s x;s gS ftu ij izn’kZ MCY;w 1

yxk;r izn’kZ MCY;w 12 Mkyk x;k gSA izn’kZ MCY;w 2 fufnZ"V

fookn (Refrence) ij Mkyk x;k gSA ;kph }kjk nLrkostksa dh

lwph fnukafdr 29-3-2012 ds lkFk lwpuk ds vfèkdkj vfèkfu;e

ds vUrZxr izLrqr izkFkZuk&i= dh izfr rFkk iathÑr Mkd ls

Hksth xbZ] iath;u jlhn Øe’k% izn’kZ MCY;w 10 ,oa izn’kZ MCY;w

11 izLrqr gSA izkFkhZ Jfed dh rjQ ls vU; dksbZ vfHkys[k ugha

izLrqr gSA ekSf[kd lk{; ds :Ik esa izkFkhZ Jfed izsedqekj dh

uksVjh }kjk izekf.kr 'kiFk&i= fnukad 29-3-2012 lk{; esa

izLrqr dh xbZ gS ftlds fo:) foi{k }kjk izkFkhZ Jfed dh

fnukad 26-6-2012 dks izfrifj{kk dh xbZ gSA blds vfrfjDr

izkFkhZ Jfed dh rjQ ls lk{; esa euksgj yky iq= Jh x.kir

yky dk 'kiFk&i= izLrqr gSA 'kiFk&i= fnukad 5-9-2012 dks

izLrqr gS ysfdu Jh euksgy yky foi{k }kjk izfrijh{kk ds fy;s

mifLFkr ugha gq, gSA

16-

foi{khx.k dh rjQ ls dksbZ vfHkys[kh; lk{; izLrqr ugha

fd;k x;k gS vkSj ekSf[kd lk{; ds :Ik esa Jh diwjpUn oekZ iq=

Jh ohj flag] fujh{kd] jsy Mkd lsok ,l-Vh- fMohtu fcdkusj]

tkSèkiqj dk 'kiFk&i= izLrqr fd;k x;k gSA ;kph i{k }kjk Jh

diwjpUn oekZ dh izfrijh{kk ugha dh x;h gSA

17-

eSus foi{khx.k dh rjQ ls muds fo}ku vfèkoDrk dh

cgl lquh rFkk i=koyh dk lE;d~ voyksdu fd;kA izkFkhZ

Jfed dh rjQ ls cgl ds fy;s dksbZ mifLFkr ugha gqvkA

foi{khx.k dh rjQ ls fyf[kr cgl Hkh izLrqr dh x;h gSA

18-

fu.kZ;kFkZ i{kdkjksa ds vfHkopuksa rFkk mlds leFkZu esa

izLrqr vfHkys[kh; ;k ekSf[kd lk{; dh leh{kk ds iwoZ mu

ifjfLFkfr;ksa dk bl Lrj ij mYys[k djuk eSa vko’;d le>rk

gw¡Wa ftu ifjfLFkfr;ksa esa i=koyh fu.kZ; gsrq fnukad 5-2-2014 dks

vkjf{kr dh x;hA fnukad 26-6-2012 dks foi{k }kjk izkFkhZ Jfed

izsedqekj dh izfrijh{kk iwjh gqbZ vkSj izkFkhZ Jfed us vfrfjDr

lk{; izLrqr djus dk dFku fd;k ftlds ifj.kkeLo:Ik rRdkyhu

fo}ku ihBklhu U;k;kèkh’k us fnukad 5-9-2012 dks izkFkhZ Jfed

ds 'ks"k lk{; ds fy;s frfFk fuèkkZfjr dhA fnukad 5-9-2012 dks

izkFkhZ Jfed Lo;a mifLFkr Fkk rFkk mlds fo}ku izfrfufèk Hkh

mifLFkr FksA foi{k dh vksj ls dksbZ mifLFkr ugha FkkA izkFkhZ

Jfed i{k dh rjQ ls lk{kh Jh euksgj yky dk 'kiFk&i=

izLrqr fd;k x;k ysfdu euksgj yky Loa; mifLFkr ugha Fks

vr% fnukad 29-11-2012 dks euksgj yky dh izfrijh{kk gsrq

frfFk fuèkkZfjr dh x;hA fnukad 29-11-2012 dks izkFkhZ Jfed dh

rjQ ls dksbZ mifLFkr ugha Fkk vkSj lk{kh Jh euksgj yky Hkh

mifLFkr ugha FksA foi{khx.k dh rjQ ls muds fo}ku izfrfufèk

mifLFkr Fks ftUgsa Jh euksgj yky ds 'kiFk&i= dh izfrfyfi

nh xbZ vkSj lk{; ds fy;s 24-1-2013 frfFk fu;r dh xbZA fnukad

24-1-2013 dks Jfed i{k vuqifLFkr Fkk vkSj foi{k mifLFkr FkkA

vr% Jfed i{k ds fo:) esjs fo}ku iwokZfèkdkjh }kjk ,di{kh;

dk;Zokgh fd, tkus dk vkns’k ikfjr fd;k x;k rFkk fnukad 7-

3-2013 foi{kh dh lk{; gsrq fu;r dh x;hA fnukad 7-3-2013

dks fo}ku vfèkoDrkx.k U;k;kf;d dk;Z ls fojr jgs vkSj

mHk;i{k vuqifLFkr FksA vr% fnukad 9-5-2013 dks foi{kh lk{;

ds fy;s frfFk fu;r dh x;hA fnukad 9-5-2013 dks Jfed i{k

vuqifLFkr Fkk vkSj foi{k mifLFkr FkkA foi{k us viuk lk{;

izLrqr djus ds fy;s volj pkgk tks Lohdkj fd;k x;k vkSj

lk{; ds fy, vxyh frfFk 23-7-2013 dks fu;r dh x;hA

fnukad 23-7-2013 dks Jfed i{k vuqifLFkr vkSj foi{k mifLFkr

Fkk] ysfdu U;k;ky; fjDr FkkA vr% lk{; gsrq fnukad 23-9-

2013 dks frfFk fu;r dh x;h vkSj 23-9-2013 dks Hkh U;k;ky;

fjDr jgus ds dkj.k 9-12-2013 frfFk fu;r dh x;hA u;s ihBklhu

U;k;kèkh’k us fnukad 10-10-2013 dks dk;ZHkkj xzg.k fd;kA

19-

fnukad 9-12-2013 dks izkFkhZ i{k vuqifLFkr jgk vkSj foi{k

mifLFkr FkkA foi{k us lk{; ds :Ik esa Jh diwjpUn oekZ]

fujh{kd dk 'kiFk&i= izLrqr fd;kA 'ks"k lk{; gsrq fnukad

5-2-2014 frfFk fu;r dh x;hA fnukad 5-2-2014 dks Hkh ;kph i{k

vuqifLFkr FkkA foi{k ds fo}ku vfèkoDrk mifLFkr gq, vkSj

fyf[kr cgl izLrqr dhA mDr fLFkfr esa foi{k dk lk{; lekIr

fd;k x;k ,oa foi{k dh ,di{kh; cgl lquh x;h rFkk i=koyh

fu.kZ;kFkZ vkjf{kr dh x;h ,oa rn~uqlkj fu.kZ; vkns’k ikfjr

3734

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

fd;k tk jgk gSA mYys[kfu; gS fd vkns’k rkyhdk dh mDr

fLFkfr ls ;g tkfgj gS fd izkFkhZ Jfed dh izfrifj{kk vafdr gksus

ds ckn og dsoy vxyh rkjh[k fnukad 5-9-2012 dks Jh euksgj

yky lk{kh dh 'kiFk&i= ds lkFk mifLFkr gqvk gSA fnukad

5-9-2012 ds ckn vc rd fdlh Hkh frfFk dks izkFkhZ Jfed

mifLFkr u gh vk;k gS vkSj u gh lk{kh Jh euksgjyky lk{;

ds fy;s mifLFkr gq, gSaA tgkWa rd LVsVesUV vkWQ Dyse esa ;kph

i{k }kjk izLrqr fd;s x;s dFku ds fl) ik, tkus dk iz’u gS

bl lEcUèk esa mYys[kuh; gS fd foi{k ds lk{; ls izkFkhZ Jfed

dks fdlh izdkj dh enn ugha fey ldrh gS D;kasfd foi{kh lk{kh

Jh diwjpUn oekZ] fujh{kd dh Jfed i{k }kjk dksbZ izfrifj{kk

ugha dh x;h gSA foi{k dh rjQ ls dksbZ izys[kh; lk{; Hkh ugha

izLrqr fd;k x;k gSA vr% izys[k ds vkèkkj ij Hkh foi{k ls

Jfed i{k dks dksbZ enn ugha nh tk ldrhA ;g Hkh mYys[kuh;

gS fd foi{kh lk{kh dh izfrijh{kk ugha dh x;h gS vr% foi{k ds

'kiFk&i= ij vfo’okl djus vFkok mldks crkSj lk{; u xzg.k

djus dk dksbZ fofèkd vkèkkj ugha gSA

20-

foIk{khx.k ds fo}ku vfèkoDrk }kjk vius ekSf[kd cgl esa

fyf[kr cgl ds rF;ksa dh iqujko`fRr djrs gq, ;g dgk x;k gS

fd izkFkhZ Jfed fdlh izdkj dk vuqrks"k ,oa ifjykHk izkIr djus

dk vfèkdkjh ugha gS] LVsVesUV vkWQ Dyse eux<+Ur rF;ksa ij

vkèkkfjr gS] vr% mls fujLr fd;k tk;A fyf[kr cgl esa

eq[;r% ;g dFku gS fd Jfed dks jrux<+ esa va’kdkyhu

deZpkjh ds rkSj ij ikuh Hkjus ds fy;s j[kk x;k Fkk vkSj

vko’;drk gksus ij dk;kZy; esa ikuh Hkjus ds lkFk lQkbZ] Mkd

ds caMy ckaèkdj mUgsa Mkd Fksyksa esa iSd djus ds fy;s va’kdkyhu

rkSj ij j[kk x;k Fkk] pwafd jsy Mkd lsok] mi&vHkhys[k

dk;kZy;] jrux<+ dks jsy Mkd foHkkx }kjk fnukad 1-7-2004 dks

cUn dj fn;k x;k blfy, Jfed dks fnukad 1-7-2004 ds ckn

dk;Z ds fy, ugha cqyk;k x;k D;ksafd dk;kZy; cUn gks tkus ds

dkj.k dksbZ dk;Z ugha jg x;kA fyf[kr cgl esa ;g Hkh dgk x;k

gS fd dsoy vko’;drk gksus ij ikuh Hkjus ds fy, mls cqyk;k

tkrk Fkk vkSj LFkk;h rkSj ij ugha j[kk x;k Fkk blfy;s Jfed

us fdlh Hkh o"kZ esa 240 fnu rd dk;Z ugha fd;k vkSj mls fdlh

in ij fu;qfDr ugha dh x;h FkhA fyf[kr cgl esa 'ks"k mUgha

ckrksa dh iqujko`fRr dh x;h gS ftudk mYys[k oknksRrj esa fd;k

x;k gSA

21-

tgkW rd Jfed i{k dh rjQ ls lk{; dk iz’u gS Jfed

us dksbZ fu;qfDr i= vFkok lsok lekfIr ls lEcfUèkr i= ugha

izLrqr fd;k gSA izys[kh; lk{; esa izLrqr izn’kZ MCY;w 3 yxk;r

izn’kZ MCY;w 7 dk mYys[k fuEuor~ gS % &

Ex. W-3

**;g izekf.kr fd;k tkrk gS fd Jh izse dqekj 'kekZ S/o

Jh eaxrwjke dks jsy Mkd lsok jrux<+ eSa UAC in ij

vLFkk;h rkSj ij fu;qDr fnukad 25&6&87 ls fd;k tkrk

gSA

Mkd vnku&iznku djus gsrq jsYos IysV QkeZ ij vk tk

ldrk gSA**

gLrk{kj viBuh;

25-6

¼mi vfHkys[k vfèkdkjh

jsy Mkd lsok *,l Vh* e.My

jrux<+ & 331 022½

LVSEi

Ex. W-4

**;g izekf.kr fd;k tkrk gS fd izse dqekj 'kekZ S/o eaxrq

jke 'kekZ bl dk;kZy; esa ikuh okyk ds in ij vLFkkbZ

rksj ij 1-4-95 ls dk;Z dj jgk gSA**

gLrk{kj viBuh;

26-12-97

(S.D. Bhardwaj)

Sub-Record Officer

R.M.S. “ST” Dn.

RATANGARH-331 022)

LVSEi

Ex. W-5

izek.k i=

**izekf.kr fd;k tkrk gS fd Jh isze dqekj iq= Jh eaxrq

jke bl dk;kZy; esa Contigent Paid ikuh okyk esa

dk;Zjr gSA o le;≤ ij ED UAC esa Hkh dk;Z

djrk jgrk gSA**

gLrk{kj viBuh;

15-1-99

(S.D. Bhardwaj)

Sub-Record Officer

R.M.S. “ST” Dn.

RATANGARH-331 022)

LVSEi

Ex. W-6

**;g izekf.kr fd;k tkrk gS fd izse dqekj 'kekZ S/o Jh

exarq jke 'kekZ bl dk;kZy; esa dUVhts.V ikuh okyk ds

:Ik esa dk;Z djrk gS o le;≤ ij ED UAC ds in

ij Hkh dk;Z djrk gSA**

gLrk{kj viBuh;

14-7-99

(S.D. Bhardwaj)

Sub-Record Officer

R.M.S. “ST” Dn.

RATANGARH-331 022)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3735

LVSEi

Ex. W-7

**;g izekf.kr fd;k tkrk gS fd Jh izse dqekj S/o Jh

eaxrw jke 'kekZ us bl dk;kZy; fjdkWMZ vuqlkj le; 2

ij ED UAC esa bl dk;kZy; ds NaVkbZ dk;kZy; esa dk;Z

fd;k gSA**

gLrk{kj viBuh;

(gsejkt)

¼mi vfHkys[k vfèkdkjh

jsy Mkd lsok *,l Vh* e.My

jrux<+ & 331 022½

LVSEi

22-

mDr izn’kZ MCY;w 3 yxk;r izn’kZ MCY;w 7 ds lE;d~ ,oa

lw{e voyksdu ls ;g tkfgj gS fd izn’kZ MCY;w 7 frfFk fofgu

gS ftlesa ;g mYys[k gS fd le;≤ ij izsedqekj us NaVkbZ

dk dk;Z fd;k gSA vfHkys[k izn’kZ MCY;w 3 fnukafdr 25-6-87]

MCY;w 4 fnukafdr 26-12-97] MCY;w 5 fnukafdr 15-1-99 vkSj

MCY;w 6 fnukad 14-7-1999 gSA izn’kZ MCY;w 3 esa izsedqekj us ;g

n’kkZus dk iz;kl fd;k gS fd og 25-6-87 ls jrux<+ esa ;w-,-lh-

ds in ij vLFkk;h rkSj ij fnukad 25-6-87 dks fu;qDr gqvk gSA

blds Bhd yxHkx 10 lky ckn dk vfHkys[k MCY;w 4 fnukad

26-12-87 dk gS ftlesa ;g mYys[k gS fd izsedqekj ikuh okyk

ds in ij vLFkk;h rkSj ij 1-4-95 dks fu;qDr gSA izn’kZ MCY;w

5 esa tks izn’kZ MCY;w 4 ds yxHkx ,d lky ckn dk vfHkys[k

gS mlesa ;g mYys[k gS fd izsedqekj dUV~htsUV Hkqxrku ij ikuh

okyk ds :Ik esa dk;Zjr gS vkSj le;≤ ij ;w-,-lh- esa Hkh

dk;Z djrk jgrk gSA fnukad 14-7-1999 dks fuxZr izn’kZ MCY;w

6 esa Hkh mlh ckr dk mYys[k gS] tks izn’kZ MCY;w 5 esa vafdr

gSA bu lHkh izn’kZ MCY;w 3 yxk;r izn’kZ MCY;w 7 ls ;g tkfgj

gksrk gS fd izsedqekj ikuh Hkjus ds fy, fu;qDr Fkk ysfdu bu

lHkh vfHkys[kksa ls le; dh lhek fuèkkZfjr ugha gksrh vkSj u gh

lsok dh vfofPNUurk dk ckSèk gksrk gSA tgka rd vfHkys[k izn’kZ

MCY;w 3 yxk;r izn’kZ MCY;w 7 dks fl) fd;s tkus dk iz’u gS

bl vfHkys[kksa dks fuxZr djus okys fdlh Hkh lk{kh dks izLrqr

ugha fd;k x;k gS vkSj U;k;ky; ds le{k izsedqekj ds vfrfjDr

dksbZ vU; lk{kh ekSf[kd lk{; esa ugha izLrqr fd;k x;k gSA bu

vfHkys[kksa dk mYys[k ;kph us lk{; esa izLrqr 'kiFk&i= ds

izLrj 9 esa fd;k gS vkSj ;g dgk gS fd MCY;w 3 yxk;r MCY;w

8 le;≤ ij foi{kh }kjk mlds fy;s tkjh M;wVh vkns’k

gSA tgkW rd MCY;w 8 dk iz’u gS ;g vfHkys[k ;g iznf’kZr djrk

gS fd lc fjdkWMZ vkWfQlj vkj-,e-,l- jrux<+ us fujh{kd

egksn;] mi-[k.M+ & fcdkusj] dks fnukad 28-8-95 dks i=

fy[kdj izsedqekj vkSj èkEkZpUn dk uke fujh{kd egksn; ds

funsZ’k ij ikuh Hkjus dk dk;Z djus ds fy, vuqeksnu gsrq Hkstk

gS vkSj i= esa ;g n’kkZ;k gS fd jrux<+ eas fjDr gq, okVj eSu

ds in ij O;oLFkk djus gsrq funsZ’k nsus dh d`ik dh tk; vkSj

i= fy[kus dh frfFk 28-7-95 dks bl dk;Z ij izsedqekj vLFkk;h

:Ik ls ikuh Hkj jgk gSA bl i= ls Hkh dsoy ;gh fu"d"kZ

fudyrk gS dh izsedqekj jrux<+ esa izkjfEHkd :Ik ls okVj&eSu

ds :Ik esa vLFkk;h rkSj ij yxk;k x;k FkkA

23-

tgkWa rd izkFkhZ }kjk lsok ls gVk;s tkus dh frfFk 30-6-

04 ls Bhd iwoZ 240 fnu rd yxkrkj dke fd;s tkus ds lk{;

dk iz’u gS foi{kh us bl rF; ls bUdkj fd;k gS vkSj bl ckr

dk [k.Mu 'kiFk&i= esa fd;k gS vr% bl rF; dks fl) djus

dk Hkkj izkFkhZ i{k ij gSA ;kph }kjk izLrqr vfHkys[k ls yxkrkj

240 fnu dk;Z djus ds rF; dh iqf"V ugha gksrh gSA bl lEcUèk

esa osru izkIr djus lEcfUèkr dksbZ vfHkys[k izkFkhZ us ugha izLrqr

fd;k gSA fdlh lg dehZ dks Hkh lk{; esa ugha izLrqr fd;k gSA

,slk dksbZ izys[k i=koyh ij ugha gS ftlls 240 fnu yxkrkj

dk;Z djus dh voèkkj.kk gh xzg.k dh tk ldsaA

24-

izkFkhZ dh fnukad 30-9-2010 dh vkosnu esa foi{k lsa dqN

vfHkys[k dh ekWax dh x;h gS ftlesa ls rRdkyhu fo}ku

ihBklhu U;k;kèkh’k us dsoy mifLFkfr iaftdk ,oa osru Hkqxrku

iaftdk izLrqr djus ds fy, fnukad 28-4-11 dks vkns’k fd;k gS

vkSj dgk gS fd vfHkys[k izLrqr u djus dh fLFkfr esa 'kiFk&i=

lEcfUèkr vfèkdkjh dks izLrqr fd;k tk;A foi{k dh rjQ ls bl

lEcUèk esa 'kiFk&i= fnukafdr 15-9-11 izLrqr gS ftlesa dgk

x;k gS fd Dyse izkFkZuk&i= dkYifud gS ,oa foi{k ds ikl

fjdkWMZ miyCèk ugha gS ,oa Dyse ,sls nLrkostksa ij vkèkkfjr gS

tks foi{k ds ikl dHkh ugha jgs ,oa mUgas izLrqr djuk lEHko ugha

gSA bl izdkj 240 fnu ds osru Hkqxrku ,oa mifLFkfr ds rF;

dks izkFkhZ lkfcr ugha dj ldk gSA izfrijh{kk esa izkFkhZ us i`"B ,d

ij Lohdkj fd;k gS fd mls dksbZ fu;qfDr i= ugha feyk Fkk

tcfd ;kfpdk esa izLrj nks esa ;g dgk gS fd mls prqFkZ Js.kh

deZpkjh ds in ij fnukad 25-6-87 dks fu;qDr fd;k x;k FkkA

pijklh dk in ,slk in gS tgWk dksbZ fu;qfDr fcuk fu;qfDr

&i= ds ugha dh tk ldrh gSA izkFkhZ }kjk izLrqr fdlh Hkh

vfHkys[k ls mldh 240 fnu rd lsok dh fujUrjrk dk lk{;

ugha curk gS ftlds lEcUèk esa izfrijh{kk esa izkFkhZ us dgk gS fd

240 fnu dke djus ds lEcUèk esa mlus nLrkosth lk{; izLrqr

fd;k gSA vkxs izfrijh{kk esa ;g dgk gS fd mls nSfud etnwjh

ij yxk;k x;k Fkk tks vLFkk;h ugha Fkk vkSj bl lq>ko ls bUdkj

fd;k gS fd mlus fdlh vofèk esa 240 fnu rd yxkrkj dk;Z

ugha fd;k gSA mYys[kuh; gS fd nSfud etnwjh ij LFkkbZ in

ij fu;qfDr dk iz’u ugha mBrk gSA izkFkhZ us izfrijh{kk esa ;g

Hkh Lohdkj fd;k gS fd mls lsok ls gVkus dk vkns’k i= Hkh ugha

fn;k x;k Fkk ,oa bl lq>ko ls bUdkj fd;k gS fd le;≤

ij vko’;drkuqlkj mls vLFkk;h rkSj ij ikuh fiykus gsrq

yxk;k x;k Fkk ,oa ;g dgk gS fd og Mkd vkfn dk dk;Z Hkh

djrk FkkA izys[kh; ,oa ekSf[kd lk{; dh mDr O;k[;k ,oa

fo’ys"k.k ds vkèkkj ij eSa bl fu"d"kZ ij gwWa fd izkFkhZ bl rF;

3736

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

dks fl) djus esa vlQy gS fd mlus 240 fnu rd vfofPNUu

lsok lekfIr dh frfFk fnukad 30-6-04 ds Bhd iwoZ fd;k gSA

25-

èkkjk 25 ¼,Q½ esa nh x;h O;oLFkk ds vuqlkj fdlh

fu;ksDrk ds vèkhu ftl deZpkjh us èkkjk 25 ¼2½ ¼a½ ¼ i½ ds

vuq:Ik ,d o"kZ vofèk dh vfofPNUu lsok dj yh gS mldh

NVuh 25 ¼,Q½ esa nh x;h izfØ;k dk ikyu fd;s fcuk ugha dh

tk ldrh gSA bl lEcUèk esa 2006] lqizhe dksVZ ¼,y-,.M,l-½]

38 esa ekuuh; lokZsPp U;k;ky; }kjk nh x;h fofèk O;oLFkk

mYys[kuh; gSA]

26-

2006 lqizhe dksVZ ¼,y-,.M ,l-½] 38] lqjsUnz uxj ftyk

iapk;r & vihykFkhZ cuke ng~;kHkkbZ vej flag & izR;FkhZ esa

izdj.k ds rF;kuqlkj izR;FkhZ dh lsok 15-8-85 ds vkns’k ls

lekIr dj nh x;h FkhA lsok lekfIr ds yxHkx lkr lky ckn

fnukad 01-6-92 dks izR;FkhZ us vihykFkhZ dks lsok esa iquLFkkZiuk

dh uksfVl Hksth vkSj vUrr% izR;FkhZ dh lsok lekfIr dk fookn

U;k;fu.kZ;u gsrq vkS|ksfxd U;k;kfèkdj.k dks lqiqnZ fd;k x;kA

27-

izR;FkhZ us vius LVsVesUV vkWQ Dyse esa ;g mYys[k fd;k

fd og lsok lekfIr ds vkns’k fnukad 15-8-85 rd 10@& :i;s

nSfud etnwjh ij vihykFkhZ dh lsok esa Fkk ,oa lsok lekfIr ds

vkns’k fuxZr gksus ds iwoZ vkS|ksfxd fookn vfèkfu;e ds izkfoèkkuksa

dk ikyu ugha fd;k x;kA Je U;k;ky; ds le{k izR;FkhZ dh

rjQ ls ,d vkosnu vihykFkhZ dks funsZ’k tkjh djus ds fy,

izLrqr gqbZ fd vihykFkhZ 1976 ls 1986 rd dh lsok vofèk dk

osru jftLVj ,oa eLVj jksy izLrqr djsaA vihykFkhZ us LVsVesUV

vkWQ Dyse ds fo:) ;g dFku izLrqr fd;k fd izR;FkhZ Loa;

dke ij vkuk cUn dj dj fn;k ,oa mls dksbZ LFkk;h fu;qfDr

ugha nh x;h FkhA og eqrQdkZ dk;kZsa ds fy, fu;qDr Fkk rFkk

tc dke gksrk Fkk rks mls cqyk fy;k tkrk FkkA ;g Hkh dgk x;k

fd deZpkjh us lsoklekfIr ds Bhd iwoZ iwoZorhZ 12 ekgksa esa 240

fnu rd yxkrkj dk;Z ugha fd;k gSA ;g Hkh dgk x;k fd mlus

lu~ 82] 83 vkSj 84 esa dze’k% 114] 63 vkSj 124 fnu dk;Z fd;k

gS vr% mldh lsok,sa lekIr djus ds iwoZ èkkjk 25 ¼,Q½

vkS|ksfxd fookn vfèkfu;e esa nh x;h izfØ;k dk vuqikyu

djus dh fofèkd vko’;drk ugha FkhA

28-

izR;FkhZ us Loa; dks lk{; esa izLrqr dj l’kiFk dgk fd

og nl lky rd 470@& :i;s izfrekg ds osru ij fu;qDr

FkkA vihykFkhZ dh rjQ ls ,d deZpkjh us lk{; esa mifLFkr

gksdj dgk fd deZpkjh us dHkh Hkh ,d o"kZ esa 240 fnu dke

ugha fd;kA Je U;k;ky; us izR;FkhZ ds lk{; ij Hkjkslk fd;k

vkSj eLVj jksy rFkk 1976 ls 86 rd dh osru jftLVj u

izLrqr djus ij izfrdwy voèkkj.kk xzg.k dj ;g voèkkfjr

fd;k fd izR;FkhZ us 240 fnu ls T;kns dk;Z fd;k vr% mldh

lsokeqfDr voSèkkfud FkhA Je U;k;ky; us èkkjk 25 ¼,Q½] 25

¼th½ ,oa 25 ¼,p½ dh izfØ;k dk ikyu u djus ds dkj.k

deZpkjh dks iquLFkkZiuk ds fy, vknsf’kr fd;k ,oa lkFk gh

fiNys osru dh 20 izfr’kr èkujkf’k vnk djus dk funsZ’k fn;kA

29-

ekuuh; mPp U;k;ky; dh ,dy ihB us Je U;k;ky;

ds fu.kZ; dh iqf"V dh rFkk Je U;k;ky; ds fu.kZ; ds fo:)

vihykFkhZ dh ;kfpdk [kkfjt dhA ,dy ihB ds fu.kZ; ds

fo:) ekuuh; mPp U;k;ky; dh [k.MihB us ysVlZ isVsaV

vihy fujLr dh ,oa ;g voèkkfjr fd;k fd Je U;k;ky; us

lgh voèkkfjr fd;k gS fd deZpkjh us ekSf[kd lk{; ls vius

dFku lkfcr fd;k gSA ekuuh; [k.MihB us Je U;k;ky; }kjk

osru iaftdk] eLVj jksy] rFkk deZpkfj;ksa dh ofj"Brk lwph u

izLrqr djus ij xzg.k dh x;h izfrdwy voèkkj.kk dks Hkh lgh

Bgjk;kA Je U;k;ky; us ;g Hkh voèkkfjr fd;k fd izR;FkhZ dh

rqyuk esa ,oa dfu"d deZpkjh dh lsok fu;fer :Ik ls tkjh

j[kh x;h vkSj izR;FkhZ dh lsok lekIr dj nh x;hA

30-

ekuuh; loksZPp U;k;ky; ds le{k ekuuh; mPp U;k;ky;

dh [k.MihB ds fu.kZ; ds fo:) vihykFkhZ dh ;g cgl Fkh fd

ekuuh; loksZPp U;k;ky; us vius vusd fu.kZ;ksa esa vR;Ur

Li"V :Ik ls ;g voèkkfjr fd;k gS fd izkjfEHkd rkSj ij fl)

djus dk nkf;Ro deZpkjh ij gS fd lsok lekfIr dh frfFk ds

iwoZ ,d o"kZ esa deZpkjh us 240 fnu dk;Z fd;k gS tks nkf;Ro

fuokZg djus esa deZpkjh vlQy jgk gSA ;g cgl Hkh dh x;h

fd 10 lky dk vfHkys[k izLrqr u djus ij izfrdwy voèkkj.kk

xzg.k djus dh dksbZ otg ugha FkhA izR;FkhZ dh rjQ ls ;g cgl

dh x;h Je U;k;ky; us izfrdwy voèkkj.kk vfHkys[kksa ds lEcUèk

esa xzg.k djds Je U;k;ky; us lgh fd;k gS D;ksafd fu;kstd

ds dCts esa vfHkys[k Fks vr% Je U;k;ky; }kjk ekWx fd;s tkus

ij mls izLrqr djuk fu;ksDrk dk drZO; FkkA ;g cgl Hkh dh

x;h fd vfHkys[k fu;ksDrk ds dCts esa gS blfy, mldk nkf;Ro

gS fd og fl) djs fd lEcfUèkr vofèk esa deZpkjh us 240 fnu

dk;Z ugha fd;k gSA

31-

mHk;i{k dh mDr cgl ds ifjis{; esa ekuuh; loksZPp

U;k;ky; us èkkjk 2 ¼vksvks½] èkkjk 25 ¼ch½ ,oa 25 ¼,Q½ dh Li"V

,oa cksèkxE; O;k[;k djrs gq, izLrj 8 i`"B 43 esa deZpkjh }kjk

rF;ksa dks fl) djus ds nkf;Ro ds lEcUèk esa rFkk NVuh dh

oSèkkfudrk ds lEcUèk esa ;g voèkkfjr fd;k gS] “To attract

provisions of Section 25-F, the workman claiming

protection under it, has to prove that there exists

relationship of employer and employee; that he is a

workman within the meaning of Section 2(s) of the Act;

the establishment in which he is employed is an industry

within the meaning of the Act and he must have put in not

less than one year of continuous service as defined by

Section 25- B under the employer. These conditions are

cumulative. If any of these conditions is missing the

provisions of Section 25 –F will not be attracted. To get

relief from the court the workman has to establish that he

has right to continue in service and that his service has

been terminated without complying with the provisions

of Section 25-F of the Act.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3737

32.

The section postulates three conditions to be

fulfilled by an employer for getting a valid retrenchment,

namely:-

(i)

one month’s clear notice in writing indicating the

reasons for retrenchment or that the workman has

been paid wages for the period of notice in lieu of

such notice;

(ii)

payment of retrenchment compensation which shall

be equivalent to 15 day’s average pay for every

completed year of continuous service or any part

thereof, in excess of six months;

(iii)

a notice to the appropriate Government in the

prescribed manner.”

33-

ekuuh; loksZPp U;k;ky; us izLrj 10 esa ¼1980½ 4 ,l-

lh-lh i`"B 443] lqjsUnz dqekj oekZ cuke lsUVªy xoZesaUV b.MLVªh;y

fVªC;wuy de yscj dksVZ esa vius iw.kZihB ds QSlys lfgr vusd

QSlyksa dk mYys[k ,oa mudh O;k[;k djrs gq, ;g voèkkfjr

fd;k gS fd ;g fl)kUr gS fd fl) djus dk nkf;Ro deZpkjh

ij gS fd og n’kkZ;s fd dfFkr NVuh dh frfFk ds Bhd iwoZ ,d

o"kZ esa mlus 240 fnu dk;Z fd;k gS vkSj ;g nkf;Ro Hkh mlh

ij gS fd og Loa; ds Lkk{; esa ifjf{kr djkus ds vfrfjDr lk{;

izLrrqr djsaA

34-

fu.kZ; ds iz’rj 18 esa ekuuh; loksZPp U;k;ky; us

mYys[k fd;k gS fd izR;FkhZ dh rjQ ls ekSf[kd lk{; ds

vfrfjDr dksbZ lk{; 240 fnu dk;Z djus ds lEcUèk esa ugha

izLrqr fd;k x;k gS] u osru ;k etnwjh ds lEcUèk esa dksbZ

jlhn] ;k vfHkys[k ;k vkns’k izLrqr gS] u dksbZ lgdeZpkjh

ifjf{kr djk;k x;k] u gh fu;ksDrk }kjk izLrqr eLVj&jksy ij

dksbZ [k.M+u izLrqr fd;k x;kA

35-

ekuuh; loksZPp U;k;ky; us ;g Hkh mYys[k fd;k gS fd

;g vlEHko gS fd deZpkjh tks bruh yEch lsok djus dk nkok

djrk gS mlds ikl fu;ksDrk ds vèkhu lsok esa yxs jgus rFkk

dk;Z dh izÑfr ds lEcUèk esa dksbZ vfHkys[kh; lk{; ugha gksxkA

ekuuh; loksZPp U;k;ky; us voèkkfjr fd;k fd deZpkjh us 240

fnu rd dk;Z esa layXu jgus ds rF; dks fl) djus ds nkf;Ro

dk fuokZg ugha fd;k gS ,oa fo}ku vèkhuLFk U;k;ky;ksa us

fu;ksDrk }kjk 10 o"kZ dk vfHkys[k u izLrqr djus ds lEcUèk esa

izfrdwy voèkkj.kk xyr xzg.k dh gSA ekuuh; loksZPp U;k;ky;

us ;g voèkkfjr fd;k fd izR;FkhZ dh lsok lekfIr ds iwoZ izR;FkhZ

dks èkkjk 25 ¼,Q½ dh lqj{kk vFkok vuqikyu dk vfèkdkj ugha

FkkA

36-

èkkjk 25 ¼th½ ,oa 25 ¼,p½ ds vuqikyu ds lEcUèk esa ;g

lk{; Fkk fd nSfud osru Hkksxh dh lwph dk j[kj[kko vihykFkhZ

}kjk ugha fd;k tkrkA bl lEcUèk esa ekuuh; loksZPp U;k;ky;

us ;g voèkkfjr fd;k gS fd deZpkjh fu;fer lsok ds vHkko esa

vihykFkhZ ls nSfud osru Hkksfx;ksa dh ofj"Brk lwph ds j[k j[kko

dh mEehn ugha dh tk ldrh gSA vfHkys[kkas dh ekax ij

vihykFkZhZ }kjk u izLrqr fd;s tkus ij èkkjk 114 (III) ¼th½

Hkkjrh; lk{; vfèkfu;e ds vUrxZr U;k;ky; }kjk izfrdwy

voèkkj.kk xzg.k fd;s tkus ds lEcUèk esa ekuuh; loksZPp U;k;ky;

us ;g voèkkfjr fd;k gS fd ,slh voèkkj.kk xzg.k djus ls iwoZ

U;k;ky; ds le{k deZpkjh }kjk bl ckr dk lk{; izLrqr

djuk gksxk fd dksbZ ofj"Brk lwph vfLrRo esa gS vU;Fkk izfrdwy

voèkkj.kk xzg.k djus dh vuqrks"k ugha iznku dh tk ldrhA

U;k;ky; }kjk izfrdwy voèkkj.kk xzg.k djus gsrq vfèkdkj

iznRr gksus ds fy, U;k;ky; dks lUrq"V gksuk vfuok;Z gS fd

lk{; vfLrRo esa gS vkSj mls fl) fd;k tk ldrk FkkA ekuuh;

loksZPp U;k;ky; us rnuqlkj vihy Lohdkj dhA

37-

tgk¡ rd èkkjk 25 ¼th½ ,oa 25 ¼,p½ ds mYya?ku dk iz’u

gS Jfed us Loa; izfrijh{kk esa Lohdkj fd;k gS fd og nSfud

etnwjh ij Fkk ijUrq vLFkk;h ugha Fkk] vr% ofj"Brk lwph ds

j[k&j[kko dh vis{kk foi{kh ls ugha dh tk ldrh gS tSlk fd

ekuuh; mPp U;k;ky; us voèkkfjr fd;k gSA bl izdkj Jfed

i{k us èkkjk 25 ¼th½ ,oa 25 ¼,p½ dk mYya?ku lkfcr ugha fd;k

gSA

38-

tgk¡ rd **vuqfpr Je O;ogkj** dk iz’u gS Jfed dk

dFku gS fd jrux<+ bdkbZ dks cUn n’kkZdj mls csjkstxkj fd;k

x;k tks **vuqfpr Je O;ogkj** gSA Jfed dk ;g dguk

fcYdqy vlR; gS D;ksafd izfrijh{kk esa mlus Lohdkj fd;k gS

jrux<+ dk dk;kZy; 2004 ls cUn gSA Jfed dk ;g Hkh dguk

gS fd og dgha Hkh dk;Z djus ds fy, rS;kj gS ijUrq bl lUnHkZ

esa mYys[kuh; gS fd Jfed dk ;g nkf;Ro gS fd og n’kkZ;s fd

ftl le; jrux<+ bZdkbZ cUn dh x;h ml le; vU;= ln`’k

in [kkyh Fkk vkSj mls ogk¡ fu;qDr gksus dk vfèkdkj FkkA mlds

}kjk dksbZ ln`’k in fjDr ugha crk;k x;k gS ,oa 25 ¼,Q½ ds

izkfoèkku ds vuqlkj bldk gVk;k tkuk xyr ugha gS blfy,

og nwljh txg fu;qfDr ikus dk gdnkj Hkh ugha gS] vr% Jfed

ds lkFk **vuqfpr Je O;ogkj** fd;k x;k ,slk dgus dk dksbZ

vkèkkj ugha gsSA

39-

lwpuk vfèkdkj fu;e ds vUrxZr tks lwph Jfed us

izLrqr dh gS mlesa lu~ 1987 ds ckn ds tks O;fDr fu;qDr gS

os lHkh Jfed izsedqekj dh rqyuk esa fHkUu inksa ij gSa vkSj

izsedqekj ds ln`’k in ij dksbZ ugha fu;qDr gS vr% blds vkèkkj

ij dksbZ ykHk izkFkhZ dks ugha fey ldrk gSA

40-

i{kdkjksa ds vfHkopuksa rFkk mlds leFkZu esa iznRr lk{;

Hkh mDr leLr O;k[;k ,oa fo’ys"k.k ds vkèkkj ij eSa bl

fu"d"kZ ij gw¡ fd izkFkhZ Jfed izsedqekj bl rF; dks fl) djus

esa vlQy gS fd mls èkkjk 25 ¼,Q½ vkS|ksfxd fookn vfèkfu;e

ds izkfoèkku ds mya?ku esa mldh lsok lekIr dh x;h gS] vr%

lqifjUVsUMsUV] jsyos esy lfoZl] ,l-Vh-fMohtu tksèkiqj vkSj lc

fjdkWMZ vkWfQlj] jsyos esy lfoZl] ,l-Vh- fMfotu] fcdkusj

3738

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

}kjk nkosnkj izsedqekj dh prqFkZ Js.kh in ls fnukad 30-6-2004

ls lsok lekIr djuk oSèk ,oa fofèk }kjk U;k;kuqer gS rFkk

nkosnkj fdlh vuqrks"k dks ikus dk gdnkj ugha gSA U;k;fu.kZ;u

gsrq izsf"kr funsZ’k dk mRrj mDr izdkj fn;k tkrk gSA iapkV

rn~uqlkj ikfjr fd;k tkrk gSA

41-

iapkV dh izfrfyfi dsUnzh; ljdkj dks vkS|ksfxd fookn

vfèkfu;e 1947 dh èkkjk 17 ¼1½ ds vUrxZr izdk’kukFkZ izsf"kr dh

tk;A

Hkjr ik.Ms;] ihBklhu vfèkdkjh

ubZ fnYyh] 1 ebZ] 2014

dk-vk- 1408-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l- 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;] tcyiqj ds iapkV (lanHkZ la[;k

31@1998) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 01@05@2014

dks izkIr gqvk FkkA

¹la- ,y&22012@248@1997&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vfèkdkjh

New Delhi, the 1st May, 2014

S.O. 1408.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 31/1998)

of the Central Government Industrial Tribunal-cum-Labour

Court, Kolkata now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the Dankuni coal complex of SECL,

and their workman, which was received by the Central

Government on 01/05/2014

[No. L-22012/248/1997-IR(C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 31 of 1998

Parties: Employers in relation to the management of

Dankuni Coal Complex, CIL

A N D

Their workmen

Present: Justice Dipak Saha Ray, Presiding Officer

Appearance :

On behalf of the Management

: None

On behalf of the Workmen

: None

State : West Bengal

Industry: Coal.

Dated: 2nd April, 2014.

AWARD

By Order No.L-22012/248/97/IR(CM-II) dated

23.07.1998 and Corrigendum No. L-22012/248/97/IR(C-II)

dated 28.09.1998 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 demand of the union functioning in

Dankuni Coal Complex of Coal India Ltd. for direct

employment of this contractors workers who are

engaged in manufacturing and maintenance job and

payment to them at par with NCWA-IV is justified?

If not, to what relief they are entitled?”

None is found present on behalf of any of the parties

when the case is taken up for hearing today inspite of

service of notice. It appears from the record that previously

notices were also sent to the unions, but none turned up.

It is to be kept in mind that the present reference has been

made by the Central Government on the basis of the

industrial dispute raised by the unions.

Considering the above facts and circumstances and

the conduct of the unions, it may reasonably be presumed

that the said unions are not interested in the instant

reference. Perhaps they do not want to proceed with the

reference case further.

Accordingly, the instant reference case is disposed

of by passing a “No Dispute Award”.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 2nd April, 2014.

ubZ fnYyh] 1 ebZ] 2014

dk-vk- 1409-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj th- vkj- ,l-

bZ- 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; dksydkÙkk ds iapkV (lanHkZ la[;k 25@2002)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 01@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&42012@121@2002&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vfèkdkjh

New Delhi, the 1st May, 2014

S.O. 1409.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 25/2002)

of the Central Government Industrial Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure in the Industrial

Dispute between the management of M/s. Garden Reach

Shipbuilders & Engineers Ltd. and their workmen, received

by the Central Government on 01/05/2014.

[No. L-42012/121/2002-IR(CM-II)]

B. M. PATNAIK, Desk Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3739

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 25 of 2002

Parties : Employers in relation to the management of

M/s. Garden Reach Shipbuilders and Engineers Ltd.

A N D

Their workmen.

Present : Justice Dipak Saha Ray, Presiding Officer

Appearance :

On behalf of the

: Mr. Dipak Kumar Ghosh,

Management

Ld. Counsel with Mr. Ranjay De,

Ld. Counsel.

On behalf of the

: None.

Workmen

State : West Bengal.

Industry: Shipbuilding.

Dated: 2nd April, 2014.

AWARD

By Order No.L-42012/121/2002-IR(CM-II) dated

30.10.2002 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 action of the management of Garden

Reach Ship Builders and Engineers Limited in

terminating the services of Sri Samarendra Nath

Mishra, Ticket No.E-753, Service man-IV of salary

and wages section w.e.f. 19th September, 1988 is

legal and justified? If not, to what relief the workman

is entitled to?”

When the case is taken up for hearing today, none

is found present on behalf of the workman though the

management is represented by its Ld. Counsel. It appears

that the workman is not appearing before the Tribunal on

two consecutive dates inspite of service of notice. From

the above conduct of the workman it may be presumed

that he does not want to proceed with the case further.

Perhaps at present he has got no grievance against the

management.

Considering the above, the instant reference is

disposed of by passing a “No Dispute Award”.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 2nd April, 2014.

ubZ fnYyh] 1 ebZ] 2014

dk-vk- 1410-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l- bZ- lh-

,y- 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; dksydkrk ds iapkV (lanHkZ la[;k 11@2001)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 01@05@2014 dks izkIr

gqvk Fkk A

¹la- ,y&22012@164@2000&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vfèkdkjh

New Delhi, the 1st May, 2014

S.O. 1410.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 11/2001)

of the Central Government Industrial Tribunal-cum-Labour

Court, Kolkata now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of the Dankuni Coal Complex of SECL,

and their workman, which was received by the Central

Government on 01/05/2014.

[No. L-22012/164/2000-IR(C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 11 of 2001

Parties: Employers in relation to the management of

S.E.C.L.

A N D

Their workmen.

Present : Justice Dipak Saha Ray, Presiding Officer

Appearance:

On behalf of the Management

: None.

On behalf of the Workmen

: None.

State : West Bengal.

Industry: Coal.

Dated: 9th April, 2014

AWARD

By Order No.L-22012/164/2000-IR(C-II) dated nil 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:

3740

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

“Whether the action of the management of Dankuni

Coal Complex of SECL (a subsidiary of Coal India

Ltd.) in not granting the advance increment to Sh. S.

Srinivasan Rao, Data Entry Operator in obtaining

Post Graduate Diploma in Industrial Relations and

Personnel Management is legal and justified? If not,

to what relief the workman is entitled?”

When the case is taken up today for hearing, none

appears on behalf of either of the parties. It appears from

the record that the union at whose instance the present

reference has been made did not appear on the last two

consecutive dates also inspite of service of notice.

Considering the above facts and circumstances and

also from the conduct of the union it may reasonably be

presumed that the union is no more interested to proceed

with the present reference case. Perhaps at present the

union has got no grievance against the management.

Accordingly, the instant reference is disposed of by

passing a “NO Dispute Award”.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 9th April, 2014.

ubZ fnYyh] 1 ebZ] 2014

dk-vk- 1411-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l- bZ- 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; dksydkrk ds iapkV (lanHkZ la[;k 19@2005)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 01@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@221@2002&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vfèkdkjh

New Delhi, the 1st May, 2014

S.O. 1411.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. D No. 19/

2005) of the Central Government Industrial Tribunal-cum-

Labour Court, Kolkata as shown in the Annexure in the

Industrial Dispute between the management of the South

Eastern Coalfields Limited, and their workmen, received

by the Central Government on 01/05/2014

[No. L-22012/221/2002-IR(C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 19 of 2005

Parties: Employers in relation to the management of

South Eastern Coalfields Limited

A N D

Their workmen.

Present : Justice Dipak Saha Ray, Presiding Officer

Appearance:

On behalf of the : Mr. Uttam Kumar Mondal, Advocate.

Management

On behalf of the : None.

Workmen

State: West Bengal.

Industry: Coal.

Dated: 13th February, 2014.

AWARD

By Order No.L-22012/221/2002-IR(C-II) dated

31.03.2005 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 action of the management of SECL in

terminating the services of Shri Binod Jha, Driver is

legal and justified? If not, to what relief the workman

is entitled?”

Instant reference was sent by the Central

Government as the union/workman raised an industrial

dispute. After receiving the order of reference, all the

formalities in the matter of proper adjudication of this case,

have been observed. One witness of the workman was

partly examined in chief. Subsequently, several

opportunities were given to the union/workman to appear

before the Tribunal, but none has turned up even today.

The above conduct of the union/workman goes to show

that the union does not want to proceed with this reference

any further presumably because no industrial dispute at

present exists between the parties and accordingly the

instant reference has become infractuous.

In view of the above, the reference is disposed of by

passing a “No Dispute Award”.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 13th February, 2014.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3741

ubZ fnYyh] 1 ebZ] 2014

dk-vk- 1412-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,iQ- lh- vkbZ-

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; tcyiqj ds iapkV (lanHkZ la[;k 7@2007)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 01@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@218@2006&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vfèkdkjh

New Delhi, the 1st May, 2014

S.O. 1412.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 7/2007)

of the Central Government Industrial Tribunal-cum-Labour

Court, Jabalpur now as shown in the Annexure in the

Industrial Dispute between the management of the Food

Corporation of India, and their workmen, received by the

Central Government on 01/05/2014.

[No. L-22012/218/2006-IR(C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/7/07

PRESIDING OFFICER : SHRI R.B.PATLE

The President,

FCI(Handling) workers Union,

8654, Arakashan Road,

Paharganj, New Delhi.

.....Workman/Union

Versus

The District Manager,

Food Corporation of India,

Gwalior.

.....Management

AWARD

Passed on this Ist day of April 2014

As per letter dated 2-1-2007 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-22012/

218/2006-IR(CM-II). The dispute under reference relates

to:

“ Whether the action of the management of Food

Corporation of India in terminating the services of

Shri Dharmendra Singh w.e.f. 28-11-2002 is legal and

justified? If not, to what relief the workman is

entitled?”

After receiving reference, notices were issued to

the parties. Ist party Union submitted statement of claim

at Page 2/2 to 2/8. Case of Ist party workman is that the

FCI is established as per act of 1964. There are about 1700

depots of FCI all over country. The workers are discharging

various functions of loading, unloading food grains in

wagons, trucks , sacking etc. FCI Workers Union came in

existence in 2001. Union is registered under Trade Union

Act. Union can expouse the cause of its members. That

workman Dharmendra Singh is member of Union. He has

authorized General Secretary for filing case to safeguard

his interest. That area Manager of FCI Distt. Gwalior MP

vide its order dated 28-11-2002 terminated services of

Dharmendra Singh without following principles of natural

justice. He was not allowed opportunity for his defence.

That FCI was wrong in holding that the workman not

reported on duty since 19-8-96. Workman had submitted

letter dated 6-5-02 requesting to allow him to join duties.

That his request was not allowed on the ground that the

documents about his illness were not accepted.

Union submits that before termination of service of

workman Dharmendra, no enquiry was conducted.

Provisions of Section 14(4) of Industrial Employment

Standing Orders Act (Central)Rules, standing orders were

violated. Relevant provisions are reproduced in Para-5 of

the Statement of claim. It is further contented that no

enquiry was conducted against workman despite of his

request , principles of natural justice were violated. In

letter dated 20-11-02, the Enquiry officer was appointed

but no enquiry was conducted on the ground that

workman had not requested for personal hearing. The

termination of service of workman is illegal.

IInd party management filed Written Statement at

Page 10/1 to 10/9. The claim by Union about workman is

denied. It is not disputed that FCI is established as Trade

Act of 1964. That Dharmendra Singh S/o Pihar Singh was

initially appointed as ancillary labor from 1-4-91 on the

basis of biodata submitted by FCI Union. As per the

biodata submitted by Union 58 workers along with

workman were given appointment from 4-2-92. Workman

had given his permanent address, his father’s name was

shown as Pihar Singh was certified by FCI Union. The

name of his father was found different. The workman had

obtained employment fraudulently showing name of his

father as Pihar Singh. Memorandum was issued to him on

24-7-92, workman did not submit reply to it. Workman had

absconded. He was served with memorandum dated

13-12-95 for his absence. His leave was sanctioned.

Thereafter workman attended duties for certain period but

he absconded from duties from 7-8-96. He had submitted

application for joining duties on 6-5-02. The medical

certificates were submitted along with the application

issued from Shivam Hospital, Ghaziabad. It was found

that name of father of workman was shown as Kohar Singh

in the Medical Certificates. Though the medical certificates

3742

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

were issued for the period 96 to 2002, his age was shown

26 years in all the certificates. The certificates were found

suspicious. Workman was directed to produce certificate

from medical board vide letter dated 26-6-02. Workman did

not produce certificate from Medical Board. Chargesheet

was issued to workman asking him to submit reply within

4 days. The chargesheet was acknowledged by workman.

He submitted his reply on 14-11-02. The reply was not

found satisfactory about his absence from duty. The

District Manager being Disciplinary Authority invoking

power under Rule 9(3) of standing orders hold workman

guilty of misconduct and terminated services of the

workman. It is reiterated that termination order of workman

is legal. He cannot be retained in service. It is submitted

that management of FCI may be permitted to lead evidence

to substantiate charges against workman. On such

grounds, management prays for rejection of the claim.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the manage-

In Affirmative

ment of Food Corporation of India

in terminating the services of Shri

Dharmendra Singh w.e.f. 28-11-2002

is legal and justified?

(ii) If not, what relief the workman

Workman is

is entitled to?”

not entitled to

relief prayed

by him.

REASONS

The Union is challenging termination of services of

Shri Dharmendra Singh contending that his services are

terminated without enquiry in violation of Section 14/4 of

IE(SOs)Act. However Union has not adduced any

evidence in support of its claim. The evidence of Ist party

Union was closed on 1-6-2011. The documents produced

on record Exhibit W-1 is not complete document. Para 1 to

5 of the document are not produced. Document refers to

termination of service of workman for misconduct under

Clause 14-3(E). Doument M-1 is the biodata submitted by

Union of ancillary workers in F.S.D, Gwalior Railway siding.

Name of Shri Dharmendra Singh is appearing at Sl.No. 8.

Workman Shri Dharmendra Singh was appointed as

ancillary labour as per document Exhibit M-2 w.e.f. 1-4-91.

Office order Exhibit M-3 shows that Shri Dharmendra Singh

was departmentalized as per order dated 14-3-92. As per

document Exhibit M-4, Shri Dharmendra Singh has

requested management to permit him to join duty. He has

completely recovered of his illness. Medical certificates

Exhibit M-5(a) to (d) are produced. In document Exhibit

M-6, workman had again requested to allow him to join

duty on 14-11-2002.

Management filed affidavit of evidence of witness

Shri K. N.Purohit in his affidavit, he has stated most of the

contentions of management of IInd party. Workman was

absent from duty for six years. The medical certificates

were found suspicious, name of his father was recorded

as Kohar Singh, his age was shown 26 years though the

medical certificates were issued for the period 1996 to 2002

and therefore Medical Certificates Exhibit M-5(a) to (d)

are suspicious. The chargesheet issued to workman is not

produced. The counsel for management Shailendra Pandey

has submitted written notes of argument narrating the

details of the facts of workman joining duties and remaining

absent after six years submitting application for joining

duty. Chargesheet was issued to workman on 14-11-2002.

That reply submitted to chargesheet by workman was not

found satisfactory. Workman was found absent from

duties, the medical certificates were not authentic. As

Union/workman has not adduced any evidence, the action

of the management cannot be said illegal for want of

evidence by Ist party Union/ workman. Therefore I record

my finding in Point No.1 in Affirmative.

In the result, award is passed as under:-

(1)

The action of the management of Food Corporation

of India in terminating the services of Shri

Dharmendra Singh w.e.f. 28-11-2002 is proper.

(2)

Union is not entitled to relief prayed by it.

Let the copies of the award be sent to the Government

of India, Ministry of Labour& Employment as per rules.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 1 ebZ] 2014

dk-vk- 1413-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l- bZ- 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; tcyiqj ds iapkV (lanHkZ la[;k 2@2001)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 01@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@128@2000&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vfèkdkjh

New Delhi, the 1st May, 2014

S.O. 1413.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 2/2001)

of the Central Government Industrial Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure in the Industrial

Dispute between the management of SECL, and their

workman, received by the Central Government on

01/05/2014.

[No. L-22012/128/2000-IR(CM-II)]

B. M. PATNAIK, Desk Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3743

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/2/2001

PRESIDING OFFICER: SHRI R.B.PATLE

The President,

Rashtriya Colliery Workers Federation,

Regional Stores, PO Korea Colliery,

Distt. Korea, MP

.....Workman/Union

Versus

Chief General Manager,

M/s. South Eastern Coalfields Ltd.,

PO Chirimiri Colliery,

Distt. Korea (MP)

Management

AWARD

Passed on this Ist day of April 2014

As per letter dated 8-21/11/2000 by the Government

of India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-22012/

128/2000/IR(CM-II). The dispute under reference relates

to:

“ Whether the action of the Chief General Manager,

Chirimiri Area of SECL PO Chirimiti, distt. Korea (MP)

in superseding Shri U.N.Sinha and Shri B.K.S.Yadav,

Store Keepers of Regional Stores, Korea of SECL,

Chirimiri Area by their juniors Shri S.K.Das and

others is legal and justified? If not, to what relief the

workmen are entitled?”

After receiving reference, notices were issued to

the parties. Workman Shri U.N.Sinha and Shri B.K.S.Yadav

jointly filed statement of claim at Page 2/1 to 2/3. Case of

both the workman is that they were appointed as General

Mazdoor on 1-1-1980, they were promoted as Clerk Grade-

III on 7-1-1982, their service record was satisfactory as per

Circular dated 6-6-1982, applications were invited for post

of Assistant Store Keepers from clerical cadre. They had

submitted applications for the post they were interviewed

to promote as Assistant Store Keeper from 20-8-83. That

Shri S.K. Das and six others were promoted as Assistant

Store Keeper on 22-6-86 as per Circular dated 26-1-1982.

Earlier these employees were working in clerical cadre,

they opted for cadre of Assistant Store Keeper. It is

submitted that management had given seniority in cadre

of Assistant Store Keeper for period they worked as clerk.

Consequently Shri S.K. Das and six other persons got

seniority above the workman. Shri S.K. Das and six persons

were promoted as store keeper on 24-9-89 and Senior Store

Keeper from 7-8-96. Ist party workman were supersede,

workmen Shri U.N. Sinha and Shri B.K.S. Yadav were

promoted as Store Keeper on 30-12-1992. The action of

the management assigning seniority to Shri S.K. Das and

six others is in violation of standing orders applicable to

IInd party. That Shri S.K. Das and others were junior to Ist

party workman, they should not have been given seniority

while working in clerical cadre. On such ground, workman

prays that management be directed to give them seniority.

IInd party management filed Written Statement at

Page 7/1 to 7/2. There is no specific denial that workmen

were engaged as General mazdoor from 1-1-1980 and

promoted as Clerk Grade III from 7-1-1980. Management

submits that Shri S.K. Das and others were senior to

workman as clerks or Assistant Store Keeper though they

were designated as Grade II clerks they were actually

discharging the work of Assistant Store Keeper even

before the entry of workman in service. Since Shri S.K.Das

and others were discharging duty of store keeper it was

reasonable to regularization, re-designating their services

as Store Keeper. That re-designation is as per cadre scheme

vide order dated 22-6-86. That Ist party workman were not

senior to Shri S.K. Das and others in clerical cadre or in

store keeper. They were declared and discharging job of

store keeper since before joining of the workman. That

Shri S.K. Das and others were senior to the workman. They

were rightly re-designated. It is reiterated that re-

designation of Shri S.K. Das and others is legal as they

were discharging work of Assistant Store Keeper.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the Chief

Partly

General Manager, Chirimiri Area

Negative

of SECL PO Chirimiri, distt. Korea

(MP) in superseding Shri U.N. Sinha

and Shri B.K.S. Yadav, Store Keepers

of Regional Stores, Korea of SECL,

Chirimiri Area by their juniors Shri

S.K. Das and others is legal and

justified?

(ii) If not, what relief the workman

As per final

is entitled to?”

order

REASONS

Though present reference relates to workman

U.N.Sinha and B.K.S.Yadav, U.N.Sinha has not participated

in the reference proceeding. He has not adduced evidence.

Ist party workman B.K.S. Yadav filed affidavit of evidence.

He has stated that he was posted as Asstt. Store Keeper

on 20-8-83 as per cadre scheme. Shri S.K. Das had given

option on 22-6-86 for re-designation as store keeper.

Seniority of Shri S.K. Das for the post of Asstt. Store

Keeper would be considered from the said date but he

was given seniority from 9-10-77 is illegal. That the award

3744

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

passed by this Tribunal in the matter of Shri S.K.Daswas

Para-4 to 6 were overlooked by the management while

giving seniority for the post of Asstt. Store Keeper to Shri

S.K.Das. That cadre scheme I.I.No.34 was introduced from

17-8-84. He has referred to Note No.3of I.I.34.Workman

stated that Section 3.3 of standing orders provide for

regularization of employees working for 240 days etc.

Workman was not cross-examined on said affidavit.

Workman was cross-examined on affidavit filed on

12-10-2012. Workman in his cross-examination says that

he has retired from service on 31-5-2011. He was appointed

as General Mazdoor on 1-1-1979. He was promoted as Clerk

Grade III on 1-1-1980. Cadre Scheme to clerical cadre is

applicable. That he was selected on post of Clerk Grade III

as per acting allowance. Written order was issued to him.

Order is produced at Exhibit W-9. He has filed affidavit in

support of his claim and not in respect of Shri U.N.Sinha.

He denies that employee cannot change his cadre through

DPC.Ist appointment of Shri S.K.Das was 6-9-1973. While

he was working as General Mazdoor, he was working in

Korea Colliery. He claims ignorance whether Shri S.K.Das

was posted at that time. That he was promoted as Assistant

Store Keeper on 20-8-83 as Store keeper on 15-11-94 and

Sr. Store Keeper on 23-2-07. The documents Exhibit W-1

shows that workman was promoted as Asstt. Store keeper

from 20-8-93, Exhibit W-2 shows that 6 employees Shri

Sushil Paul, Swadesh Ku. Mitra, Arun Kumar Malik. Surjit

Sen Gupta, Subrat Ku. Das, D.Vasant Kumar had given

option and re-designated as Asstt. Store Keeper as per

order dated 22-6-86. However their new designation was

made effective from 1-4-1978, 7-3-84, 1-3-84, 9-10-77,

8-9-88 without monetary benefits, no reasons are given

for giving retrospective re-designation to them. The copy

of award in R/33/80 clearly shows that claim of Shri S.K.Das

for regularization on the post of Asstt. Store Clerk from

6-8-1973 to 9-10-77 was rejected. Para-14 of the awards

reads that in the light of findings given as above. The

workman is not found entitled to relief claimed by him.

The said award was passed on 16-2-1983 when his claim

of Shri S.K.Das was judicially rejected, there was no

business of management of IInd party to grant re-

designation from retrospective date. The said act on part

of management is motivated to negative the award passed

by this Tribunal.

So far as evidence of management witness Shri

Ashok Sahu tried to support re-designations to Shri

S.K.Das and six others stating that they were working as

Assistant Store keepers and their re-designation was

proper and legal. In his cross-examination, management’s

witness says that for change of cadre, DPC recommendation

is not necessary, option is called from the concerned

employees. The process is carried as per service rules.

Without going through record, he was unable to tell how

many post of Asstt. Store Keeper were vacant in 1986-87

or in 1977, he was unable to tell option of how many clerks

were called from clerical cadre, how many clerks were re-

designated as Asstt. Store Keeper. Management’s witness

in his further cross-examination says there is no rule in

NCEA for change of clerk cadre to store cadre. Both the

cadres have separate rules. He denies that Shri S.K.Das

and others were working as Store keeper from 27-6-86.

The management’s witness claims ignorance about Note

No. 4 of I.I.No.34 from 17-7-84. When claim of Shri Yadav

was rejected by this Tribunal as per Award in R/33/80

granting benefit of re-designation retrospectively is not

justified. It is clearly motivated to give them undue benefits.

Reliance is placed on ratio held in

“A.J.Fernandis versus Divisional Manager, South

Central Railway and others reported in 2001(1)

Supreme Court Cases 240. Their Lordship dealing

with seniority and date of regularisation for post of

ticket collector in S.C.Railway. considering the facts

that respondent No.3 appointed as a porter in

commercial department and subsequently appellant,

a Porter in Transportation (Traffic) Department

getting himself posted in commercial department.

Both of them later appointed as ticket collectors on

adhoc basis.Subsequently both of them competing

for the post of Ticket collector but appellant getting

selected and posted as Ticket Collector while

Respondent No.3 not selected. Their Lordship held

in such circumstances, irrespective of the fact that

appellant had joined Commercial Department later

than Respondent No.3 held Respondent No.3

couldnot claim seniority over the appellant.”

In present case, the workmen were promoted as

Asstt. Store Keeper on 20-8-83. Shri S.K.Das and 6

others were re-designated as Asstt. Store Keeper

after option submitted by them on 22-6-86. They

cannot claim seniority over workman Shri

B.K.S.Yadav. The claim of Shri S.K.Das was rejected

in the Award passed by this Tribunal in R/33/80.

Therefore the action of the management cannot be

justified when Shri S.K.Das and 6 others were

granted re-designation from retrospective date,

workman Shri B.K.S.Yadav is entitled to that post

from date junior is given benefit. He is entitled to

seniority form the date of re-designation given to

Shri S.K.Das and 6 others.

Reliance is also placed in ratio held in Case of

Amrjeet Singh Versus Devi Ratan reported in

2010(1)SCC-417. Their Lordship dealing with

seniority criteria and length of service on which

basis of deemed promotion from earlier date. Their

Loreship held persons who would have been

promoted earlier under unamendedrules but for an

interim order passed by supreme Court held to rank

senior to shoes who were deemed to have been

promoted from subsequent dates. In Para-27 , their

¹Hkkx II—[k.M 3(ii)º

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3745

Lordship observed the law permits promotion with

retrospective effect only in exceptional

circumstances when there has been some legal

impediment in making the promotions, like an

intervention by the court. An officer cannot be

granted seniority prior to his birth in the cadre

adversely affecting the seniority of other officers

who had been appointed prior to him.”

In present case, Shri B.K.S.Yadav was promoted as

Asstt. Store Keeper from 20-8-83. Shri S.K.Das and

others were re-designated on their option from

22-6-86. They cannot be given retrospective re-

designation prior to the date of promotion of

workman Shri B.K.S.Yadav. workman as well as Shri

B.K.S.Yadav and others appeared to have been

retired from service. For above reasons, I record my

finding in Point No.1 partly Affirmative in respect of

Shri B.K.S.Yadav.

In the result, award is passed as under:-

(1)

The action of the Chief General Manager, Chirimiri

Area of SECL PO Chirimiti, distt. Korea (MP) in

superseding Shri U.N.Sinha and Shri B.K.S.Yadav,

Store Keepers of Regional Stores, Korea of SECL,

Chirimiri Area by their juniors Shri S.K.Das and

others is legal and proper.

(2)

IInd party is directed to give seniority on the post

of Asstt. Store Keeper to Shri B.K.S.Yadav from date

of re-designation as Store Keeper given to Shri

S.K.Das and consequential benefits be allowed to

workman.

10.

Let the copies of the award be sent to the Government

of India, Ministry of Labour& Employment as per rules.

R. B. PATLE, Presiding Officer

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New Delhi, the 1st May, 2014

S.O. 1414.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. 6/2007) of

the Central Government Industrial Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure in the Industrial

Dispute between the management of the Food Corporation

of India, and their workman, received by the Central

Government on 01/05/2014

[No. L-22012/217/2006-IR(CM-II)]

B. M. PATNAIK, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/6/2007

PRESIDING OFFICER : SHRI R.B.PATLE

The President,

FCI (Handling) workers Union,

8654, Arakashan Road,

Paharganj, New Delhi.

....Workman/Union

Versus

The District Manager,

Food Corporation of India,

Gwalior.

....Management

AWARD

Passed on this Ist day of April 2014

As per letter dated 2-1-2007 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-22012/

217/2006-IR(CM-II). The dispute under reference relates

to:

“Whether the action of the management of Food

Corporation of India in terminating the services of

Shri Ram Bhool Singh w.e.f. 28-11-2002 is legal and

justified? If not, to what relief the workman is

entitled?”

After receiving reference, notices were issued to

the parties. Ist party Union submitted statement of claim

at Page 2/2 to 2/8. Ist party Union submits that it is

registered under Trade Union Act, 1926. General Secretary

is authorized to represent the workman Shri Ram Bhool

Singh from 28-11-2002 without hearing the principles of

natural justice violated , no enquiry was conducted as per

Section 14/4 of Industrial Employment standing Orders

Act. The provisions of said rule are reproduced.

Management had not conducted enquiry, principles of

natural justice were violated while terminating services of

the workman. On such grounds, Union prays for

reinstatement with consequential benefits.

IInd party management filed Written Statement at

Page 8/1 to 8/11. IInd party denies claim of Union. It is

submitted that after Union submitted biodata of Shri Ram

Bhool Singh, he was appointed in FCI from 1-4-1991. His

date of birth was 5-5-1965. The name of his father was

Kripal Singh. Letter was issued on 27-2-92. Workman had

3746

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

suddenly absconded and remained unauthorisely absent.

That as per letter dated 28-6-96 addressed to FCI District

Manager, workman revealed there was enmity between

workman and one Ramchand Yadav Trade Union worker.

The workman has absconded. Despite of receiving letters

dated 27-12-96, workman failed to join duty. He remained

absent from duty from 4-1-95 to 25-4-02. Workman had

submitted application on 6-5-02 requesting permission to

join duties. He had submitted that he suffers from illness

medical certificate obtained from Rajnagar , Ghaziabad were

produced. The certificates were not accepted. Workman

was not suffering from illness. He was served with

chargesheet dated 2-11-2002. Workman replied to the

chargesheet, reply was not found satisfactory as workman

had not requested personal hearing. Invoking powers

under Rule 9(3) of Standing Orders, services of workman

were dismissed. The dismissal order of workman is proper

and legal. IInd party prays for rejection of claim of workman.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i) Whether the action of the manage-

In Affirmative

ment of Food Corporation of India

in terminating the services of Shri

Ram Bhool Singh w.e.f. 28-11-2002

is legal and justified?

(ii) If not, what relief the workman is

Union is not

entitled to?”

entitled to

relief prayed.

REASONS

Though the termination of services of workman is

challenged by Union on the ground that no enquiry was

conducted against workman, workman was suffering from

illness and he was not allowed to join duty, his services

were terminated without holding enquiry. Union or

workman had not adduced any evidence to substantiate

their claim. The documents produced Exhibit W-1 is order

of termination dated 28-11-2002. It is observed that

workman has not requested for personal hearing. There

was no substance in his contentions.

Management filed affidavit of evidence of witness

Shri K.N.Purohit. he has stated most of the contentions in

Written Statement filed by the management. The witness

is not cross-examined in Para-14 of the affidavit of

management’s witness he has stated that reply filed by

workman was not found satisfactory. He had not requested

for holding Departmental Enquiry but requested for

passing orders. Letters are produced. I donot find reason

to disbelieve evidence of management’s witness. There is

no evidence in support of the claim of Ist party Union. For

want of evidence by Union in support of its claim, I record

my finding in Point No.1 in Affirmative.

In the result, award is passed as under:-

(1)

The action of the management of Food Corporation

of India in terminating the services of Shri Ram Bhool

Singh w.e.f. 28-11-2002 is legal.

(2)

Union is not entitled to relief prayed by him.

Let the copies of the award be sent to the Government

of India, Ministry of Labour & Employment as per rules.

R. B. PATLE, Presiding Officer

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New Delhi, the 2nd May, 2014

S.O. 1415.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref.

No. 235/2004) of the Central Government Industrial

Tribunal-cum-Labour Court, Ahmedabad as shown in the

Annexure in the Industrial Dispute between the

management of Western Railway, and their workman,

received by the Central Government on 16/04/2014

[No. L-41011/15/99-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad, Dated 17th February, 2014

Reference (CGITA) No. 235/2004

Reference (ITC No. 166 of 1999 (old)

The General Manager,

Western Railway,

Churchgate, Mumbai-400001

The Divisional Railway Manager,

Western Railway,

Vadodara Division,

Pratapnagar

Baroda-390004

..... (1st party)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3747

And

Their workman

Through the President

Paschim Railway Karmachari Parishad,

E/209, Sarvottam Nagar,

Near Railway Colony, Sabarmati,

Ahmedabad(Gujarat)

........(2nd party)

For the First Party

: Shri Mukesh Pandit,

Advocate

For the Second Party

: Shri Raghuvir S. Sisodia,

President, P.R.K.P.

AWARD

The Government of India/Ministry of Labour, New

Delhi vide Order No. 41011/15/99/IR(B-I) dated 11.11.1999

under clause (D) of sub section (1) and sub section (2A)

of section 10 of the Industrial Disputes Act, 1947 , referred

the dispute for adjudication to Industrial Tribunal,

Ahmedabad (Gujarat) specified in the Schedule:-

SCHEDULE

“Whether the demand of Union Paschim Railway

Karamchari Parishad, Ahmedabad for granting the

benefit of stepping up of pay of Shri P.K. Mukherji

and Shri B.S. Pandya, chief Reservation Inspector

at Par with their Juniors Shri K.P. Khakkar and Shri

P.B. Shukla is legal, proper and justified? If so, to

what relief these two workmen Mr. P.K. Mukherji

and Mr. B.S. Pandya are entitled to and from which

date and what other directions are necessary in the

matter?”

The case of the 2nd party as per statement of claim

(Ext.3) is that Shri P.K. Mukherji and Shri B.S. Pandya

along with Shri K.P. Khakkar and Shri P.B. Shukla were

appointed as Enquiry-cum-Reservation clerk over the

Western Railway in the Scale of Rs. 330-560. Shri P.K.

Mukherji and Shri B.S. Pandya were posted at Ahmedabad

and Shri K.P. Khakkar and Shri P.B. Shukla were posted at

Rajkot in the year December, 1980. As per rules their

seniority was under control of Head quarters’ office. So all

promotion etc. were controlled by the Head Quarter,

Mumbai though the staff was posted at different station/

Division of the Western Railway. Shri P. K.Mukherji and

Shri B.S. Pandya as per rules had claim of earlier

promotions then Shri K.P. Khakkar and Shri P.B. Shukla. In

December, 1982 some vacancies fell vacant in scale

Rs. 425-640 at Rajkot. The Railway instead of posting

senior persons like Shri Mukherji and Shri Pandya of

Ahmedabad on promotion to Rajkot promoted Shri

Khakkar and Shri Pandya though junior on 08.12.1982 in

scale Rs. 425-640 overlooking the claim of Mukherji and

Pandya. These promotions were against the para 320 on

Indian Railways Establishment Manual. Shri Mukherji and

Shri Pandya were senior to Shri Khakkar and Shri Shukla

and as such they had earlier claim of promotion. But

Shri Khakkar and Shri Shukla continuously officiated from

08.12.1982 till regularised in the year 1985 by the Head

Quarter in the scale Rs. 425-640. The denial of promotion

to Shri Mukherji and Shri Pandya at Rajkot caused heavy

financial and status loss to them because Shri Khakkar

and Shri Shukla got early promotions in different grades

like 1600-2660 and 2000-3200 at Rajkot itself. If Shri

Mukherji and Shri Pandya had been posted at Rajkot in

1982 on promotion instead of Shri Khakkar and Shri Shukla

they would have got all the privilege in the grade 1600-

2600 and 2000-3200 whereas Shri Mukherji , Pandya,

Khakkar Shukla and others got regular promotion only in

1985 vide CCS(E) CCG’s letter No. EC/839/4/38/2 of

17.12.1984. Divisional Order No. EC/839/4/22 Pt. dt.

19.01.12985 when head quarter office issued the

promotions ordered and they were fixed at Rs. 425 in the

Scale 425-640, whereas Shri Khakkar was at Rs. 455 itself

in the scale 425-640 though juniors but because they were

given ad hock promotion in 1982 itself at Rajkot. The Head

Quarter office failed to safe guard the privileges of seniors

like Mukherji and Pandya and they were put to loss of

Rs. 30/- though Mukherji, Pandya, Khakkar and Shukla are

from the same cadre. The grade in which they have been

promoted are identical and in same cadre. On these grounds

relief sought for is that the pay of Shri P.K. Mukherji and

Shri B.S. Pandya be refixed in scale 425-640 at par with Shri

K.P. Khakkar and Shri P.B. Shukla with all consequential

benefits payment of arrears and Shri P.K. Mukherji and

Shri B.S. Pandya be given promotions in different grades

the day their juniors Shri Khakkar and Shri Shukla were

promoted with payment of arrears and also to any relief to

which the workman Mukherji and Pandya are found

entitled.

In the reply (Written statement) Ext.7 para 1 and 2 of

statement of claim are admitted as true and correct. The

contention of para 3 and 5 of statement of claim have also

not been denied and it has been submitted that the matter

is already referred to the H.Q. office to the S.P.O. (W) CCG

vide DO letter No. EC/P/ 205 dated 19.11.1999 but no reply

is received until now. 1st party will take necessary action

on receipt of reply from the H.Q. office. As regards para 4

of statement of claim no comment made. No comment to

para 6 &7 of S/c since formal with respect to para 8, it has

been contended that the 2nd party is not entitled to any

relief and the reference be rejected.

As per rival contention in the pleadings of the

parties, the following issues are taken for discussions and

consideration:

ISSUES

(i)

Is the reference maintainable?

(ii)

Has the 2nd party valid cause of action?

(iii)

Whether the demand of Union(PRKP) for getting

the benefit of stepping up of pay of Shri P.K.

3748

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Mukherji and Shri B.S. Pandya chief Reservation

Inspector at par with their Juniors Shri K.P. Khakkar

and Shri P.B. Shukla is legal, proper and justified?

(iv)

Whether these two workmen Mr. P.K. Mukherji and

Mr. B.S. Pandya are entitled to the stepping up of

pay? If so, from which date?

(v)

What other directions are necessary in the matter?

FINDINGS

ISSUE No. iii & iv: - The 2nd party submitted four

documents with list Ext.8 which were issued by the

Railway. (1) Head Quarter (W. Rly) letter No. EC/839/4/38/

2/ dated 17.12.1984(2) Rly Board’s letter of 28.08.1985

regarding adhoc promotion (3) Head Quarter (W. Rly) letter

No. EC/1030/4/23 dated 03.10.1985 and (4) DRM’s Rajkot

letter dated 20.03.1989 addressed to DRM (E) Baroda

regarding pay of K.P. Khakkar and P.B. Shukla and its

copy received by the lawyer of the 1st party and production

allowed on 08.07.2002. Then application dated 19.10.2004

of 2nd party was filed for closing its evidence and this

pursis was seen by the 1st party’s lawyer. The 1st party

examined a witness Anilkumar Ramanlal Mehta on

12.09.2005. He deposed in examination in chief when

vacancy falls vacant in any division officiating benefits

are given to the senior most of local unit. If local person

can be made available the said benefit is not availed to

other person. In cross examination he deposed that the

branch officer passes the order of officiating when regular

promotion order is issued, seniority is ascertained.

Officiating order is in force until regular order is passed.

The said case is not of adhoc promotion and permission is

required to be obtained from higher officer for the time

more than three months. If the same is continued in the

officiating, he is given the benefit in the salary when he is

given regular promotion. Officiating is stop-gap

arrangement and if a person available in the local unit, the

same is given to him. Officiating was given to Mr. Khakkar

and Mr. Shukla for some time. It was the responsibility of

the concerned officer that damage is not caused to the

senior due to centralized officiating. The regular promotion

of Mr. Khakkar, MR. Shukla, Mr. Pandya and Mr. Mukherji

was the same.

The 2nd party representative Shri S.B. Nigam had

filed application on 19.10.2004 for closing it evidence which

was seen by the then Rly Lawyer Shri R.K.P. Sharma and

the evidence of the 2nd party was treated as closed.

Thereafter the 1st party witness AnilKumar Ramanlal Mehta

was examined on 12.09.2005 whose evidence has been

discussed above. Then the 1st party’s lawyer also filed

pursis on 12.09.2005 closing evidence of the 1st party which

was seen on behalf of the 2nd party. Then on 02.01.2006,

the 2nd party representative Shri S.B. Nigam submitted

written argument and its copy was received by the 1st

party’s lawyer Shri R.K.P. Sharma. With the written

argument extract off swami’s compilation of F.R. &SR part

1 of 1985 of page 75 rule (10) has been filed. Also copy of

judgement dated 04.11.1988 of CAT Ahmedabad has been

filed through which direction was given to the respondent

(Union of India /Rly) for removing the anamoly of pay of

applicant Asilal U. Kuraria had been given. The stage of

the 1st party for leading further evidence was reopened

by order passed below Ext.13 the pursis of 1st party dated

02.04.2012. On the same date 2nd party’s representative

Shri R.S. Sisodia filed a pursis (Ext.14) for reopening the

stage of 2nd party to lead oral evidence on which objection

was noted by the 1st party’s the then Lawyer Shri R.K.P.

Sharma that 2nd party’s argument are completed. The

pursis was ordered to be kept on the record by order

passed below Ext.14.

The 1st party’s lawyer filed pursis (Ext.15) on

18.04.2012 for allowing to produce documents and as per

list dated 18.04.2012 (Ext.16) 15 documents were produced.

Ext. 16/1 is promotion letter of Shri P.K. Mukherji from

ECRC to ARS dated 19.01.1985. Ext. 16/2 is promotion letter

dated 13.02.1985 as ARS in grade 425-640(R) who taken in

dependent charge from 31.01.1985 and direction for

drawing pay accordingly. Ext. 16/3 is notice of imposing of

penalty to Shri P.K. Mukherji dated 14.10.1985 regarding

censured Ext. 16/4 is standard form of memorandum of

charge for imposing minor penalties dated 17.11.1987. Ext.

16/5 is letter of DRM, Baroda to S.S. Ahmedabad dated

23.08.1988. On the subject stepping up of pay equal to

juniors of Shri Mukherji, ARS.ADI informing that stepping

up of pay is not admissible in terms of Railway board’s

letter No. PO III 74/ROP-I/32 dated 04.09.1974 for this

informing to Shri P. K. Mukherji. Ext. 16/6 is letter of DRM,

Baroda to S.S. Ahmedabad dated 27.02.1989 to the effect

that juniors employees pointed out by the employee (P.K.

Mukherji) are working on Rajkot Division and they belong

to different cadre and seniority and as such stepping up

of pay is not admissible in terms of Rly. Board’s letter P.O.

III-74/ROP/1/32 dated 04.09.1974 para (a) circulated under

G.M. (E) CCL’s letter No. E (P&A) 11773/0 vol. IV dated

09.09.1974. Ext. 16/7 is letter of P.K. Mukherji to DRM,

Baroda dated 29.03.99 and Ext. 16/8 is Note P.K. Mukherji’s

interview to D.R.M. Baroda dated 03.04.1989 with such

order that Shri Mukherji came under administrative control

of BRC division due to de-centralization of selection of

ARS scale 425-640 (R) after 01.08.1985. Though the two

employees are junior to Shri Mukherji were promoted as

ARS scale 425-640 (R) under the same order by which Shri

Mukherji was promoted but due to local vacancy in scale

Rs. 425-640 (R) on Rajkot Division., these two employees

junior to Shri P.K. Mukherji have officiated as ARS from

08.12.1982 on Rajkot Division which is accelerated

promotion being local unit. Stepping up of pay is therefore,

not admissible in such case as per rule. Ext. 16/9 is letter of

SS Ahmedabad to DRM Baroda of taking charge by P. K.

Mukherji as CHRI(Chief Reservation Inspector) dated

¹Hkkx II—[k.M 3(ii)º

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3749

08.10.1993. Ext. 16/10 is letter of DRM dated 27.04.1995 to

L.E.O. , Ahmedabad. Ext. 16/11 is letter of B.S. Pandey to

L.E.O. Ahmedabad dated 18.12.1995. Ext. 16/12 is letter of

adhoc promotion of P.K. Mukherji and B.S. Pandya dated

08.09.1997 from CHRI to CESRS scale 2000-3200. Ext. 16/13

is letter of G.M. H.O. Churchgate W.R. dated 15.01.1996 to

DRM (E) Baroda informing on the subject stepping up of

pay-equal to juniors. Case of P.K. Mukherji, ARS/ADI-

that as per Board’s letter No. PCIII/87/FP/9 dated 10.09.1987,

there is no case for stepping up of pay when junior is

promoted earlier than senior as it tentaments to accelerated

promotion. Ext. 16/14 is letter dated 24.09.1998 as to

promotion of P.K. Mukherji and B.S. Pandya (2nd party

workman) as CHRI in the scale 1600-2160 along with other

employee ARS. Ext. 16/15 is extract of railway establishment

Rules page-328 go to support the case of the 2nd party

that-normally empanelled employee should be appointed

against the selection post, but in case where no empanelled

employee is available and it became inevitable to make

local arrangement, it should be made for a short period as

possible, but not more than three months. The 1st party

also submitted a documents with list Ext.18 dated

27.04.2012 and its copy received by the 2nd party

representative. Ext. 18/1 is service sheet of Shri P.B. Shukla

(admittedly Junior to Shri P.B. Mukherji and Shri B.S.

Pandya). It shows that P.B. Shukla was appointed as

Enquiry cum reservation clerk (ECR) on 18.12.1980 and

promoted as ARS Rajkot in scale 425-640 (R) on 08.08.1983,

but again reverted to his original post of ECR scale 330-

560 on 07.05.1984. Again promoted to officiate as ARS

scale 425-640 (R) and posted at Jamnagar on 16.01.1985

again posted as ARS RST. Vide order dt. 27.05.1985. The

1st party has not filed service sheet of Shri K.P. Khakkar

against whom one of the 2nd party workman Shri P.K.

Mukherji in claiming seniority for stepping up of his pay.

On behalf of the 2nd party three documents were

submitted on 08.05.2012 with a list Ext.19 marked Ext. 19/1

to 19/3 and its copy given to 1st party’s lawyer. Ext. 19/1 is

DRM (E) Baroda letter NO EC /P/205 dated 11.12.1995

addressed to GM(E) OCG admitting to this extent that the

two employees of Rajkot Div.Mr. K.P. Khakkar and B.S.

Shukla are junior to Mr. P.K . Mukherji but Mr. Mukhrji

come under administrative control of BRC Division due to

decentralisation of selection of ARS scale 425-640 after

01.08.1985 vide HQ No. E (834/4/17) of 31.07.1985 and that

stepping up of pay is not admissible in such case and in

this line LEO ADI was to be informed. Ext. 19/2 is order of

CAT-Mumbai passed in O.A. No. 108 of 1991 decided on

March 23, 1994 in the case of V.B. Lal vs. Union of India

and others and order was passed directing to respondant

Rly. to step up the pay of the applicant to 3300 with effect

from 08.10.1986 with all normal benefits of back wages and

arrears of pay and allowance. Ext. 19/3 is letter No. SC

1030/4/23 H.Q. office Churchgate, Mumbai dated

03.10.1985. On the subject seniority of non-gazetted staff

commercial Department- Reservation staff – line Unit with

reference to H.Q. Office letter No. EC 1030/4/23 dated

30.06.1979 by which integrated seniority list of reservation

staff in the scale Rs. 700-900 (R) Rs. 550-750 (R), Rs. 455-

700 (R) and 425-640 (R) is enclosed. Para 3 of letter say

that if any employee has any grievances against the

seniority assigned to him/her in the integrated seniority

list he/she may submit representation within two months

from the date of issue of this letter. Para 5 of letter is

regarding decentralization of ECRC in scale 330-560 (R)

and ARS in scale Rs. 425-640 (R) with effect from 01.08.1985.

Extract copy of list from Sl. No. 1 to 35 in group IV ARS

has been filed to show that name of P.K. Mukherji and

B.S. Pandya are at Sl. No. 7 & 8 (BRC) having date of birth

19.01.1955 and 14.04.1955 respectively and date of

appointment 13.12.1980 where as name of K.P. Khakkar

and P.B. Shukla are at Sl. No. 11 and 12 (RJT) having date

of appointment 18.12.1980 clearly go to show that Shri

P.K. Mukherji and B.S. Pandya are senior to Mr. K. P.

Khakkar and P.B. Shukla in the cadre of ARS but Mr. P.K.

Mukherji and B.S. Pandya pay was admittedly fixed less

than that of K.P. Khakkar and P.B. Shukla whereas K.P.

Khakkar and P.B. Shukla were to officiate as ARS at Rajkot

Division for not more than three months as per adhoc

arrangement as per Ext. 16/15= Ext. 8/2 (rly. Board’s letter

dated 28.08.1985) sub para (iii).

The affidavit of P.K. Mukherji in support of oral

evidence filed without reopening the case of the 2nd party

which had long been closed on 19.10 2004 by filing pursis

by representative Shri S.B. Nigam for 2nd party so the

affidavit of P.K. Mukherji at Ext 20 was expunged vide

order sheet 03.09.2013 on behalf of the 2nd party (Union)

three documents with list Ext. 23 was submitted on

13.08.2013 which are marked Ext. 23/1 to 23/3. Ext. 23/1 is

service sheet of Mr. P.K. Mukherji CERS. Ext. 23/3 is

summary of pay of mr. P.B. Shukla, K.P. Khakkar , p.K.

Mukherji and B.S. Pandya.

10.

As per written argument of 2nd party (Union)

submitted on 02.01.2006 the concerned employee Shri P.K.

Mukherji and B.S .Pandya were appointed as reservation

clerk along with Shri K.P. Khakkar and P.B. Mukherji and

B.S. Pandya were posted at Ahmedabad and Mr. Khakkar

and Shukla were posted at Rajkot and others were posted

at different stations. The 1st party in w.s. para 3 has

admitted that Mr. Mukherji and Mr. Pandya are senior to

Mr. Khakkr and Shukla and their seniority and promotion

were controlled by Head quarter i.e. Western Railway

Chuchgate, Mumbai, General manager’s offices till

01.08.1985 (Ext.8/3) It has been further argued that when

in December two vacancies, occurred in Rajkot and at that

time seniority of ECRC was controlled by H.Q. office

Mumbai but the Railway instead giving promotion and

posting to Shri P.K. Mukherji and Shri Pandya to Rajkot

promoted their juniors Shri K.P. Khakkar and Shri Shukla

and if such promotion by local available ECRC had been

3750

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

made it was addhoc and in no case can be extended

beyond three months or until as per H.Q. controlled

seniority ECRS senior are posted at Rajkot on falling of

such vacancy. But adhoc promotion of Mr. Khakkar and

Shukla was kept in force against the Railway Board’s letter

dated 28.08.1985 vide Ext. 8/2 para (iii,iv &v). It has also

been pointed out in written argument that the Rly (1st

Party) in para 4 of their w.s. admitted the anamoly and

stated that they have moved the matter to H.Q. Office,

Mumbai on 19.11.1999. Further argument is this that

irregular promotion to Shri Khakkar and Shukla was for

long duration, adversely affected to Mukherji and Pandya

by way of financial and status loss as Khakkar and Shukla

though juniors got higher grades at Rajkot earlier than Mr.

Mukherji and Pandya. Reliance was also placed upon

fundamental Rule No. 22(C) para 10 (a)- for removal of

anamoly stepping of pay of seniors on promotion drawing

less pay than his juniors. The extract of ENC is attached

with written argument of the 2nd party Union. As per chart

showing summary of pay of Mr. Khakkar vis a vis Mr.

Mukherji and Mr. P. B. Shukla vis-à-vis Mr. B.S. Pandya

produced by the 2nd party at Ext. 23/3 go to show anamoly

in getting less pay in the scale of 425-640 (R.P) by Mukherji

and Pandya though senior because of wrong promotion

given by the Rly to Juniors though seniors were available

in the year 1982 to be posted at Rajkot when the vacancies

had fallen and more so at that time seniority and promotion

of ECRS were controlled by the H.Q. and not by the

Division since decentralisation of promotion had come

into force in the year 1985 (01.08.1985) and not before. In

support of such written argument judgment of the Hon’ble

Bench of CAT, Ahmedabad dated 04.01.1988 in the case of

Asulal U. Kureria, M.R. Anand vs. Union of India & others

has been cited with its copy attach therewith the written

argument.

11.

On the other hand, the learned Advocate for the 1st

party in his argument pointed out that the case of one of

the concerned employee Mr. B.S. Pandya is not at all fit to

be examined since he (Mr. Pandya) had been awarded the

penalty of withholding of increment for 2 years from

01.12.1984 to 01.12.1986 whereas Shri P.K.Mukherji had

drawn the yearly increment regularly. In argument Ext. 16/10

(Divisional Office Baroda) letter dated 27.04.1995 has been

referred. More show the comparative chart (summary of

pay)Ext. 23/3 of the 2nd party go to defeat the claim of Shri

B.S. Pandya regarding stepping up of his pay as two

increment stopped, prior to 31.01.1985.

12.

As per Ext. 8/1 H.Q. Churchgate, Mumbai order

dated 17.12.1984 on the subject of promotion and transfer

of class III staff in commercial Dept. Reservation staff-

Line Unit the employees were given promotion to ARS

(Assistant Reservation Supervisor) scale 425-640 (R) the

name of P.K. Mukherji and B.S. Pandya are at Sl. No. 49

and 50 respectively whereas name of Shri K.P. Khakkar

and P.B. Shukla are at Sl. No. 54 and 55 respectively. So

according to this order if there occurred any anamoly in

pay of seniors it should be stepped up as per FR. 22-C

(Swami’s compilation) as mention in the written argument

of the 2nd party dated 02.01.2006. As per Ext.16/1 which is

copy of Baroda Div. Office order dated 17.01.1985 the

employees including P.K. Mukherji was promoted as ARS

scale 425-640 (R) as per order of H.Q. order dated 17.12.1984

(Ext. 8/1). The name of P.K. Mukherji is at Sl. No. 14 showing

present designation EC scale 330-560 ADI and revised

position A.R.S. scale 425-640 at ADI within Baroda

Division. But his junior Mr. Khakkar and Shukla got

accelerated promotion being local unit as per Ext. 16/10

which could not have been granted since they are to

officiate as ARS , Rajkot Div. for not more than three

months in the year 1982 (08.12.1982) as per Ext/8/2 (already

discussed above). But Mr. Khakkar and Shukla remained

officiating till their regular promotion along with Mr. P.K.

Mukherji and B.S. Pandya be H.Q order dated 17.12.1984

(Ext.8/1) in which Mr. Khakkar and Shukla are shown junior

to Mr. Mukherji and Pandya in A.R.S. Cadre. So it is very

surprising why the Rly administration failed to remove

atleast pay anamoly to Shri P.K. Mukherji who had not

been awarded any penalty as per Ext. 16/10 the documents

produced by the 1st party. In the case of V.B. Lal vs. Union

of India and others (1984) 28 Administrative Tribunal case

(472) stepping up of pay was allowed to the applicant. But

the Rly. Administration inspite of series of representation

and also seeking for personal interview dated 03.04.1989

by P.K. Mukherji with D.R.M. BRC. Stepping up of pay

was not allowed which is against judgment of

administrative Tribunals already discussed above and also

against the F.R. 22C para 10 already discussed above.

13.

As per discussion and considerations of the oral

evidence of the 1st party witness Shri Anilkumar and the

admission made by witness and by the 1st party in their

w.s. and also taking into account of difference judgment/

Order of the Administrative Tribunal and also in view of

H.Q. order dated 17.12.1984 (Ext. 8/1) issued when the

promotion of ECRC and ARS are centralized through H.Q

office and seniority and promotion had not been

decentralized division wise , the claim of Shri P.K. Mukherji

is justified in stepping up of pay on regular promotion in

ARS vide H.Q office order dated 17.12.1984 (Ext.8/1) and

on BRC div. order of promotion (ext.16/1) in view of H.Q.

order dated 17.12.1984. Stepping up of pay Shri Mukherji

was justified to remove the anamoly of less pay of Mr. P.K.

Mukherji than Mr. K.P. Khakkar. The case of concerned

employee Mr. B.S. Pandya is not fit to be considered

because of penalty of withholding of increment for two

years from 01.12.1984 to 01.12.1986. So the claim of

workman Shri B.S. Pandya by the Union for stepping up

of his pay is not at all justified since B.S. Pandya is out of

court in this case. As per Ext. 16/2 Shri P.K. Mukherji ECADI

in grade 330-560 was promoted as ARS grade 425-640(R)

and had taken independent charge from 31.01.1985 (BN).

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3751

So from 31.01.1985 Shri P.K. Mukherji is entitled for

stepping up of his pay at par with his junior Shri K.P.

Khakkar ARS, Rajkot.

14.

Thus Issue No (iii) is answered in this way that the

demand of Union (PRKP) for getting the benefit of

stepping up of pay of Shri P.K. Mukherji at par with his

junior Shri K.P. Khakkar is legal, proper and justified. But

the demand of Union for Shri B.S. Pandya for stepping up

of his pay at par with Shri P.B. Shukla is not legal and

justified. Issue No .iv is answered in this way that out of

the two workman Mr. P.K. Mukherji and Mr. B.S. Pandya

only Mr. P.K .Mukherji is entitled to the stepping up of

pay at par with Mr. K.P. Khakkar w.e.f. 31.01.1985. Shri

B.S. Pandya is not entitled for the benefit of stepping up

pay in this case.

15.

ISSUE No. I & II:- In view of findings to Issue No. iii

& iv in the foregoing paras the reference is maintainable

so far as demand of union for workman Shri P. K. Mukherji

is concerned. Likewise, the 2nd party (Union) has valid

cause of action so far as the claim of workman Shri P.K.

Mukherji is concerned. For the claim of other workman

Shri B.S. Pandya the 2nd party Union has no cause of

action.

16.

ISSUE No. V : - The 1st party is directed to remove

the pay anamoly of the workman Shri P.K. Mukherji by

stepping up his pay at par with his Junior Shri K.P. Khakkar

w.e.f. 31.01.1985.

The reference is allowed in part accordingly.

The 1st party to comply with the order within two months

of receipt of the award.

This is my Award.

Let two copies of the award be sent to the appropriate

Government for publication u/s. 17 of the I.D. Act.

BINAY KUMAR SINHA, Presiding Officer

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jsyos ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

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vfèkdj.k ukxiqj ds iapkV (lanHkZ la[;k 64@2013) dks izdkf'kr

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New Delhi, the 2nd May, 2014

S.O. 1416.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 64/2013)

of the Central Government Industrial Tribunal-cum-Labour

Court, Nagpur now as shown in the Annexure in the

Industrial Dispute between the management of South East

Central Railway and their workmen, which was received

by the Central Government on 16/04/2014

[No. L-41012/30/2013-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No.CGIT/NGP/64/2013

Date: 04.04.2014.

Party No. 1 : The Senior Divisional Personnel Officer,

South East Central Railways,

Kings Way,Nagpur

Versus

Party No. 2 : The Gopal Kishan Zodge,

R/o Saleshari, Post : Thutanbori,

The : Bhiwapur, Distt. : Nagpur.

Nagpur

AWARD

(Dated: 04thApril, 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 South East Central Railways and the

workman,Shri Gopal Kishan Zodge for adjudication, as

per letter No.L-41012/30/2013-IR (B-I) dated 18.10.2013,

with the following schedule:-

“Whether the action of the management of South

East Central Railways, Nagpur in terminating the

services of Shri Gopal Kishan Zodge, substitute

Bunglow Peon/ TADK vide their order dated

26.06.2011 is fair, just or legal? To what relief the

workman is entitled?”

On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement, by registered post with acknowledge due.

Inspite of sufficient service of the notice, the

workman neither appeared nor filed any statement of claim.

The party No.1 appeared through their advocates on

23.12.2013.

Inspite of adjourning the case twice for filing of

statement of claim by the workman, neither the workman

appeared nor filed any statement of claim. So, on

04.04.2014, the reference was closed, holding that the

workman was not interested to proceed with the reference

and the reference was fixed for award.

It is well settled that whenever a party challenges

the legality of an order, the burden lies upon him to prove

the illegality of the order and 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 party fails

3752

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

to appear or file written statement or produce evidence,

the dispute referred by the Government cannot be

answered in favour of the said party and the party would

not be entitled to any relief.

Judging the present case with the touch stone of the settled

principles as mentioned above, it is found that as the

workman has neither appeared nor filed any statement of

claim, he is not entitled to any relief. Hence, it is ordered:-

ORDER

The reference is answered in the negative and

against the workman. The workman is not entitled to any

relief.

J. P. CHAND, Presiding Officer

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New Delhi, the 2nd May, 2014

S.O. 1417.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 32/2011)

of the Central Government Industrial Tribunal-cum-Labour

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

the Industrial Dispute between the management of IRCON

International Ltd. and their workman, which was received

by the Central Government on 21/04/2014

[No. L-41012/40/2011-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD

PRESENT :

SHRI KISHORI RAM, Presiding Officer.

In the matter of an IndustrialDispute under Section

10(1)(d) of the I.D.Act.,1947.

REFERENCE NO. 32 OF 2011.

PARTIES : Smt.Rita Devi.

Moh: Lodipur, Christian Colony,

Patna-1(Bihar)

Vs.

The General Manager,

IRCON International Ltd.,

B.C.Patel Path, Patna (Bihar)

APPEARANCES :

On behalf of the workman/Union

: None

On behalf of the Management

: None

State

: Jharkhand

Industry

: Railways

Dhanbad, the27th March, 2014.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on then under Sec.10(1)(d)

of the I.D. Act.,1947 has referred the following dispute to

this Tribunal for adjudication vide their Order No.L-41012/

40/2011-IR(B-I) dt.28.11.2011.

SCHEDULE

“Whether the action of the Management of IRCON

International Ltd., Patna in terminating he services

of Smt.Rita Devi w.e.f. 01.06.2007 without any notice

and without following the provisions under section

25 F of Industrial Dispute Act.,1947 is legal and

justified? Whether Smt.Rita Devi is entitled for her

reinstatement with full back wages and continuity

in service? To what relief the Smt.Rita Devi is

entitled?”

Neither of the parties appeared nor workwoman Rita

Devi filed her written statement along with any documents

despite three Regd.Notices issued to her on her address

noted in the Reference itself. Under these circumstances,

it appears that workwoman Rita Devi is not willing to

contest the case for the reason best known to her. Hence

the case is closed as no I.D.existent between both the

parties; accordingly No Dispute Award is passed.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 2 ebZ] 2014

dk-vk- 1418-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dVksfyd ljsu

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 v:ukoqQye ds iapkV (lanHkZ la[;k 25@2012) dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 16@04@2014 dks izkIr

gqvk FkkA

¹la- ,y&12011@38@2012&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vfèkdkjh

New Delhi, the 2nd May, 2014

S.O. 1418.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 25/2012)

of the Central Government Industrial Tribunal/Labour

Court, Ernakulam now as shown in the Annexure in the

Industrial Dispute between management of Catholic Syrian

Bank Limited, and their workman, which was received by

the Central Government on 16/04/2014

[No. L-12011/38/2012-IR(B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3753

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

ERNAKULAM

Present : Shri. D. Sreevallabhan, B.Sc., LL.B,

Presiding Officer

(Wednesday the 12th day of March, 2014/

21st Phalguna 1935)

ID 25/2012

Workman/Union :

The General Secretary Catholic

Syrian Bank Staff Association AIBEA

House, Kaliath Royale Square Palace

Road Thrissur (Kerala) - 20

By M/s. ANP Associates

Management

The Chairman Catholic Syrian Bank

Ltd. Head OfficeThrissur (Kerala) By

M/s. B S Krishnan Associates

This case coming up for final hearing on 12.03.2014

and this Tribunal-cum-Labour Court on the same day

passed the following:

AWARD

In exercise of the powers conferred by clause (d) of

sub-section(1) and sub-section (2A) of Section 10 of

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

Government of India/Ministry of Labour as per Order No-

L-12011/38/2012-IR(B-I) dated 28.09.2012 referred this

industrial dispute to this tribunalfor adjudication.

The dispute is:

“Whether the action of the management of Catholic

Syrian Bank in denying the payment of over time

allowance to Shri Jimmy C Akkarappatty for his work

on 1.10.2009 till 7:15 PM; on 8.1.2010 till 7:00PM and

on 28.1.2010 till 9:15PM is legal and justified? To

what relief the workman is entitled?”

After submission of pleadings by the parties the

case was posted in the Lok Adalath as agreed to by both

sides. The matter was settled between the parties by

entering into a full and final settlement. They have jointly

filed compromise incorporating the terms of the settlement.

Hence an award can be passed in terms of the compromise.

In the result an award is passed in terms of the

compromise which will form the part of the award.

The award will come into force one month after its

publication in the Official Gazette.

Dictated to the Personal Assistant, transcribed and

typed by her, corrected and passed by me on this the 12th

day of March, 2014.

D SREEVALLABHAN, Presiding Officer

APPENDIX - NIL

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM

ID No. 25/2012

Catholic Syrian Bank Staff Association.

…..Union

Catholic Syrian Bank Limited

…Management

The matter was taken up in Lok Adalat and the parties

agreed to settle the dispute on the following terms:-

The management agreed to pay a sum of Rs.2,133/-

(Rupees Two thousand one hundred and thirty three only),

towards their claim to the workman.

It is agreed by both the parties that the settlement in

the above matter shall not be treated as a precedent in any

other matter.

The management agreed to pay the above said

amount of Rs. 2,133 within one month from the date of this

settlement.

Subject to the above the Union agreed to withdraw

all their contentions in the above ID.

Dated this the 12th day of March, 2014.

Union :

Management :

Counsel for Union :

Consel for Management :

ubZ fnYyh] 2 ebZ] 2014

dk-vk- 1419-—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 fnYyh ds iapkV (lanHkZ la[;k 108@11) dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 17@04@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@87@2011&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vfèkdkjh

New Delhi, the 2nd May, 2014

S.O. 1419.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 108/11)

of the Central Government Industrial Tribunal-cum-Labour

Court, New Delhi as shown in the Annexure in the

Industrial Dispute between the management of State Bank

of India , and their workman, which was received by the

Central Government on 17/04/2014.

[No. L-12012/87/2011-IR(B-I)]

SUMATI SAKLANI, Section Officer

3754

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT - II, ROOM

NO.33, BLOCKS-A, GROUND FLOOR,

KARKARDOOMA COURT COMPLEX,

KARKARDOOMA, DELHI 110032

Present :—Shri HARBANSH KUMAR SAXENA

ID No. 108/11

Sh. Gulab Chand

Versus

State Bank of India.

No DISPUTE AWARD

The Central Government in the Ministry of Labour

vide notification No L-12012/87/2011-(IR(B-1)) dated

24.11.2011 referred the following industrial Dispute to this

tribunal for the adjudication :-

“Whether the action of the management of State

Bank of India, Region –II, Parliament Street New

Delhi in terminating the services of Sh. Gulab Chand

S/o Chander Saini , Ex-Workman w.e.f 11/11/2009, is

legal and justified? To what relief the workman is

entitled?”

On 08.12.11 reference was received in this tribunal.

Which was register as I.D No. 108/11 and claimant was

called upon to file claim statement with in fifteen days

from date of service of notice. Which was required to be

accompanied with relevant documents and list of

witnesses.

After service of notice workman/claimant Sh. Gulab

Chand not filed claim statement but management in

response to reference filed response wherein it mentioned

as follows:-

The terms of reference reads as under:

“Whether the action of the management of State

Bank of India, Region –II, Parliament Street New

Delhi in terminating the services of Sh. Gulab Chand

S/o Chander Saini , Ex-Workman w.e.f 11/11/2009, is

legal and justified? To what relief the workman is

entitled?”

Sh. Gulab Chand was engaged as canteen boy by

the Local Implementation Committee, Ferozepur,

Jhirka Branch from 5.2.1993. On 30.11.1995, his

services were disengaged by the Local

Implementation Committee, Ferozepur , Jhirka Branch.

The applicant raised an Industrial Dispute Wherein

vide award dated 08.11.2006, the Hon’ble Industrial

Tribunal concluded that “The action of management

of State Bank of India in terminating the services of

Sh. Gulab Chand Messenger-cum-Water boy-cum-

General Servant cum canteen boy w.e.f 1.12.1995 is

neither just nor fair. The workman applicant is

entitled to be reinstated with 25% back wages. The

management should reinstate the workman within

two months from the publication of the award and

pay him arrears of back wages.”

In terms of the award, the Applicant was reinstated

in the supernumerary capacity and paid the back

wages. In terms of the award, he was reinstated as a

temporary employee. He was retrenched from the

services of the Bank after paying him retrenchment

compensation and one month pay (i.e. Rs. 24000 +

Rs. 3000/- ) on 11.11.2009. Since the retrenchment

has been done in compliance of Sec. 25F of the

Industrial Disputes Act, the same is legal and

justified. No unfair labour practice was ever adopted

by the management. The Applicant accepted the

retrenchment compensation and one months pay

without any demur.

Since he accepted his full and final benefit voluntarily, he

did not prefer any execution of the award. He has not filed

any claim before the Ld. Central Govt. Industrial Despite

various notices.

Thus there exists no “industrial dispute”. The

reference be decided in favour of the management.

On the basis of non-interestedness of workman. The

proceeding of this case is not liable to be proceeded further.

Hence proceeding of the case or liable to be dropped and

no dispute award is liable to be passed. Reference is

decided accordingly.

No Dispute Award is accordingly passed.

Dated : 02-04-2014

HARBANSH KUMAR SAXENA, Presiding Officer

ubZ fnYyh] 2 ebZ] 2014

dk-vk- 1420-—vkS|ksfxd fookn vf/fu;e] 1947(1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj f=kiqjk xzkeh.k

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 xqokgkVh ds iapkV (lanHkZ la[;k 3@2012) dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 01@04@2014 dks izkIr gqvk FkkA

¹la- ,y&12011@60@2011&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vfèkdkjh

New Delhi, the 2nd May, 2014

S.O. 1420.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 3/2012)

of the Central Government Industrial Tribunal-cum-Labour

Court, Guwahati now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of Tripura Gramin Bank, and their

workman, which was received by the Central Government

on 01/04/2014

[No. L-12011/60/2011-IR(B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3755

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. 03 of 2012.

In the matter of an Industrial Dispute between :-

The Management of Tripura Gramin Bank, Tripura.

-Vrs-

Their workmen rep. by the General Secretary, Tripura

Gramin Bank Employees Association, Agartala, Tripura.

APPEARANCES

For the Workman.

: Mr. A. D. Choudhury, Advocate,

Mr. S. Deka, Advocate.

For the Management

: Mr. A. Dasgupta, Advocate.

Mr. S. Dutta, Advocate.

Date of Award: 31.03.2014

AWARD

This Reference has been initiated on an Industrial

Dispute raised by the Tripura Gramin Bank Employees

Association, Agartala, Tripura against the Management

of Tripura Gramin Bank, Agartala, consequent upon denial

by the Management the fitment of pay in respect of 47

Messenger-cum-Peons as per National Industrial Tribunal

(NIT) Award; which was referred by the Ministry of Labour

for adjudication vide their Order No.L-12011/60/2011-IR

(B-I) dated 25.10.2011 on the FOC Report forwarded by

the Assistant Labour Commissioner (C), Silchar, No.8 (13/

2008-S/A-3497 dated 08.08.2011. The Schedule of this

reference is as under:

SCHEDULE

“Whether the action of the management of Tripura

Gramin Bank (TGB), Agartala in denying fitment of

pay in regards to forty seven (47) Messenger-Cum-

Peons (as per list enclosed) as per NIT Award

counting their services from the date of initial

engagement/appointment as daily rated worker/part

time workers is legal & justified? To what relief the

workmen are entitled ?”

On receipt of the order from the Ministry of Labour,

Government of India, New Delhi, this reference case was

registered and notices were issued by Registered Post to

the parties concerned directing them to appear in the Court

on the date fixed and to file their written statement along

with the relevant documents in support of their claim.

Accordingly both the parties appeared and submitted their

respective claim statement/written statement. Thereafter

due to absence of the Tripura Gramin Bank Employees

Association in stead of getting sufficient opportunities,

the case proceeded ex-parte against them.

The fact of the case of the Tripura Gramin Bank

Employees Association, (in short, the Association) is that

the Regional Rural Banks (hereinafter called RRB) were

incorporated under the Provision of Regional Rural Bank’s

Act,1976 and the Tripura Gramin Bank is one of the said

RRBs which was constituted for Banking operation in the

Rural Sector, having 50% share hold by the Central

Government, 15% by the concerned State Government

wherein the bank is situated and 35% by the sponsored

Bank which means a nationalized bank by which such

RRBs have been sponsored. The United Bank of India is

the sponsored bank in respect of the Tripura Gramin Bank.

The employees of RRBs all over India has been making a

grievance that in the matter of their pay structure, they are

entitled to get the same pay, as is available to the employees

of the Rural Branches of different nationalized commercial

banks but the Government failed to meet the aforesaid

legitimate demand of the employees of RRBs. Finding no

other alternative remedy the employees Association

preferred a Writ Petition on behalf of the All India Gramin

Bank Association and All India Regional Bank Employees

Association praying for striking down the Section 17 of

the RRBs Act,1976 which is ultra vires to the Constitution

of India, and a writ in the nature of mandamus be issued

directing the Union of India to fix the emoluments of

Regional Rural Bank Employees in conformity with the

judicial maxim of “equal pay for equal work” and “industry-

cum-region formula” and for bringing about parity in

emoluments between the employees of RRBs inter se and

employees of the Nationalized Commercial Banks. The

Hon’ble Supreme Court while adjudicating on the said

Writ Petitions agreed to appoint a National Tribunal to

decide the question relating to pay, salary, other allowances

and other benefits payable to the employees of RRBs.

Then the Hon’ble Supreme Court of India left all the

contentions open and directed the Central Government to

refer the dispute to the Tribunal, preferably to a retired

Chief Justice of a High Court. In terms of the aforesaid

order of the Supreme Court the Central Government

appointed Justice S. Obul Reddy, retired Chief Justice of

the High Court of Andhra Pradesh as Chairman of National

Industrial Tribunal and referred the dispute to the said

Tribunal which after adjudication passed an Award on

30.04.1990 holding that there should be parity in regard to

the wages payable to the National Bank Employees and

the Rural Bank employees in the equal nature of jobs

performed by the employees of the Rural Banks vis-à-vis

the sponsored Banks as equal pay and other benefits as

are admissible to regularly appointed full time messenger

in the respective RRBs; and the management can not extract

full time work and even beyond the working hours from

the so called part time messengers merely showing them

3756

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

the acquaintance rolls as part time employees paid on either

daily wages or some other basis or on some proportionate

basis; their services shall be regularized with effect from

the date of their continuous engagement.

Pursuant to the observation made by the National

Industrial Tribunal, the Government of India appointed a

Committee called Equation Committee to examine the issue

pertaining to the equation of posts in RRBs and sponsored

Bank and a consequential fixation of pay and allowances

and other benefits. The Equation Committee submitted its

report to the Central Government which by an order dated

22.02.1991 accepted the award of the Tribunal and

recommendation of the Equation Committee and directed

all the RRBs to implement the National Industrial Tribunal

Award and recommendation of the Equation Committee at

the earliest. The Government of India also in its

communication dated 22.2.1991 directed the Chairman of

the RRB to consider the case of each part time employee

of RRBs on merits and to decide whether such employees

performed part time and full time work in the bank and to

determine their fitment accordingly. Pursuant to the said

decision of the Central Government , the NABARD

constituted a working group under the Chief General

Manager, NABARD which submitted its report to the

Central Government recommending to identify such of

those employees used on full time basis though employed

on part time basis for regularizing their services by the

concerned RRBs. It is observed that only those Sweepers

and Messengers on part time post to work and actually

used on full time basis, will have to be paid full time wages

and determination and identification of such employees

required to be made by the concerned Chairman of the

RRBs. It is also recommended by the working group that

the Chairman of the respective group has to get the

exercise completed within a maximum period of six months

from the date of acceptance of the report by the Central

Government. Ultimately the report of the working group

dated 17.02.1992 was accepted by the Central Government

with certain modification and also directed the RRBs to

implement the recommendation of the Working Group.

The Employees Association mentioned that the pay

scale of the Messenger-cum-Peons was revised making it

at par with their counterpart in the sponsored bank with

effect from 01.09.1987, but while doing so the formula of

fitment has been ignored without taking into consideration

the initial date of appointment of the Messenger-Cum-

Peons (MCPs). It was the objective of the NIT that the

MCPs who have completed 5 years or more of service will

be placed at least at the 2nd stage of the new scale, i.e. the

scale pertaining to the similar post of the sponsoring bank;

and that those who have completed 10 years or more of

service will be placed at the third stage of the new pay

scale but the said direction has been flouted and disobeyed

causing financial losses to the MCPs who were eligible to

the benefit of fitment at the 2nd and 3rd stage of

computation of years is to be made from the initial date of

engagement as MCPs. Due to ignoring of the length of

service from the date of initial engagement as MCPs there

has been denial of financial benefit to the MCPs working

in Tripura Gramin Bank, the very idea of the fitment of the

2nd and 3rd stage of pay scale had been mooted and

executed to stave off financial loss and also to ensure the

benefit earned in the previous scale by dint of length of

service did not get diluted. The workmen further mentioned

that there is a group of MCPs who were engaged before

01.09.1987 and they were absorbed as MCP with regular

pay scale as per NIT award and those MCPs became

entitled to be fitted in the first stage of the regular scale of

pay w.e.f 01.09.1987 but they were given benefit of fitment

at the first stage of regular scale of pay with effect from

01.09.1987 and as a result they suffered financial loss and

disadvantage. The Association added that the

Management of Tripura Gramin Bank has flouted the order

of NIT dated 01.09.1987 in as much as they have decided

to follow the NABARD Circular dated 20.03.1993 whereby

it was decided by the Management of Tripura Gramin Bank

that fitment of the MCP as per the aforesaid award counting

their services from the date of their initial engagement/

appointment as D.R.W/part time workmen can not be

considered. The Association mentioned that such kind of

illegality was committed in the case of Neelachal Gramya

Bank, Puri, Odissa and the said illegality was challenged

by the Puri Gramya Bank Workers’s Union before the Orissa

High Court which allowed and held that MCPs are entitled

to regularize from the date of initial appointment with arrear

of salary, and the said decision of the Hon’ble Orissa High

Court was challenged by the Management before the

Hon’ble Supreme Court which was dismissed.

The Association further stated that altogether 47

Messenger-cum-Peons have been denied the benefit of

the award of the National Industrial Tribunal and the

recommendation of the Equation Committee. In support

of their contention the Association has enclosed a detail

list of the MCPs who were appointed on 01.09.1987 and

are entitled to fitment in the 1st, 2nd and 3rd stage. It is

contended by the Association that the method of

computation of length of service adopted by the Tripura

Gramin Bank was in violation of NIT award dated 30.4.1990

which clearly stated that those staff who have completed

5 years or more as MCPs and those who have completed 5

years or more and 10 years or more in service would be

eligible for fitment in the 2nd and 3rd stage respectively. It

is also added that apart from the violation of the Rules by

the Management of Tripura Gramin Bank as mentioned

above another group of Messenger who were employed

before 1.9.1987 were engaged as Messenger as per NIT

award dated 30.4.90 were fitted in the 1st stage of the

regular pay w.e.f. 01.09.1989 without taking into account

their date of appointment which has caused great financial

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ebZ 10] 2014@oS'kk[k 20] 1936

3757

loss. The Association has drawn the attention of the

Tripura Gramin Bank Management to the gross anomalies

regarding fitment of the MCPs vis-à-vis the award of NIT

dated 30.4.90 but the Management inspite of repeated

prayers and meetings and assurances given to the

Association, has only been hoodwinking the Association

members. Hence, the Association prayed for passing

appropriate order granting relief and compensation to the

employees of the Tripura Gramin Bank.

The case of the Management of Tripura Gramin Bank,

Tripura in brief, is that the Rural Banks were constituted

by a statute called Regional Rural Bank Act, 1976 and by

virtue of this Act different Rural Banks were constituted

for the Banking operation in Rural Sector with a view to

render adequate financial aid in the agricultural sector and

other allied purposes and the Rural Banks were managed

by the sponsor Banks. The Section 17 of the said Bank

provides that Central Government shall determine the

salary payable to the Rural Banks employees from time to

time, and as a result, two categories of salary were

introduced. The Commercial Banks employees are entitled

to their salary fixed by settlement arrived at from time to

time while Rural Bank employees were getting their salaries

in terms of the Notification issued by the Central

Government and their salaries were fixed in consonance

with the salary of the different State Government

Employees for which the salary of the Rural Bank

Employees for making uniform through out the country.

Upon raising demand Rural Banks that since they are

performing same and similar nature of job to that of the

sponsored Bank, but the Central Government declined to

their demand. Then the employees of the Rural Banks

approached the Hon’ble Apex Court by a Writ Application

assailing the provision contained u/s 17 of the aforesaid

Act with regard to the fixation of the salary. During

pendency of the said Writ proceeding, the Central

Government agreed to constitute a National Tribunal to

examine the cause espoused by the employees of the Rural

Banks through their Writ Applications before the Hon’ble

Apex Court which passed an order dated 01.09.1987 to

constitute a National Industrial Tribunal. Accordingly a

National Industrial Tribunal was constituted. The Tribunal

after appreciation of evidence vide Award dated 30.04.1990

came to the conclusion that there should be parity in regard

to the wage payable to the National Banks employees and

the Rural Banks employees for equal nature of job

performed by the employees of the Rural Banks vis-à-vis

the sponsored Banks; and that till 01.09.1987 the Rural

Banks employees are entitled to have their scale of pay

keeping parity with the scale of pay of the concerned State

Government employees as determined by the Central

Government; and after 01.09.1987 the Rural Banks

employees are entitled to have their scale of pay keeping

parity with the scale of pay of the employees of the

sponsored Banks and the same shall be determined by the

Central Government in exercise of the powers conferred

under Section 17 of the Act. It was also held by the National

Industrial Tribunal that the question of equation of post

and consequence of fixation of new scale of pay,

allowances and other benefits should be decided by the

Central Government. Pursuant to the Award passed by

the National Industrial Tribunal the Government of India

constituted an Equation Committee under the

Chairmanship of Sri P.Kotaiah, Managing Director,

NABARD with four others. Accordingly Equation

Committee determined the post in Regional Rural Banks

and the corresponding posts of sponsored Banks for the

purpose of fixation of salary in terms of the Award.

The Management stated that from the award passed

by the National Industrial Tribunal it reveals that for the

purpose of fixation of scale of pay of the employees of

Rural Bank including their fitment in the scale of pay of

the sponsored Bank shall be reckoned from 01.09.1987

and it can not be computed for the purpose of fixation of

pay scale and corresponding fitment benefit with reference

to a date prior to 01.09.1987. Thus for all other purposes

including the purpose of fixation of scale of pay with allied

fitment benefits vis-à-vis regularization, if so required, shall

be computed from the date of regularization in the Rural

Bank. The Management averred that the contention of

the Union in the instant reference is that while fixing of

pay of the Rural Banks employees as on 01.09.1987 keeping

parity with the employees of the sponsored Bank, fitment

of pay should be made with reference to the initial

engagement of the concerned employees of the Rural Bank.

The Management also mentioned that since keeping the

parity of scale of pay of the Rural Bank employees with

concerned sponsored Banks employees was to take effect

from 01.09.1987, the question of awarding fitment prior to

that date does not arise at all. It is further stated by the

Management that in the instant case 47 messengers were

engaged and regularized in the service prior to 22.02.1991

and they were drawing scale of pay of the State Government

as applicable in this Rural Bank and their pay was fitted

into the sale of pay of sponsored Bank as on 01.09.1987 at

par with the Notification dated 22.2.1991 issued by the

Central Government. Accordingly the Management of

Tripura Gramin Bank implemented the Award of the National

Industrial Tribunal dated 30.04.1990 and the

recommendation of the Equation Committee in line with

the Government of India’s Circular dated22.02.1991 and

NABARD’s Circular dated 20.03.1993. Therefore the claim

of the Union in regard to fitment of pay of 47 messenger-

cum-peon counting their services from the date of their

initial engagement is only figment of their imagination and

not borne out of any record. Hence, the Management

prayed for passing an award holding that the fixation of

salary of 47 messenger-cum-peon should be with effect

from respective date of regularization as borne by the

Management as per Government’s circular dated 22.02.1991.

3758

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

The Association did not adduce any evidence, while

the Management examined their solitary witness Mr.

I.K.Dandapat, the General Manager of Tripura Gramin Bank,

who was examined ex-parte. I have gone through the

evidence of MW.1 along with documents submitted by

both the parties.

According to the Management witness No.1, the

RRBs were constituted by a Statute called Regional Rural

Bank Act,1976 and in order to operate those Banks a

Statutory Scheme was formulated whereby RRBs were

managed by Commercial Banks/Cooperative Banks called

as sponsored Banks. The United Bank of India is the

sponsor of Tripura Gramin Bank, and as per the RRB

Act,1976, the RRB employees will get salary at par with

the scale of respective State Government employees of

comparable level and status where it operates. In due

course the RRB employees made a demand to the Central

Government to the effect that they are to be paid equal

salary at par with the employees to the satisfaction for

performing the same and similar nature of job to that of

sponsored banks. On being refused by the Central

Government who accepted the demand of the employees,

the RRB employees approached the Hon’ble Supreme

Court by filing Writ Petition No. being W.P.7149/1982 and

132/1982 demanding equal pay for equal work. The Hon’ble

Supreme Court vide its order dated 1.9.87 held that a

National Industrial Tribunal to be constituted which with

due appreciation of evidence will examine the matter for

the purpose. Accordingly the issue was examined by

National Industrial Tribunal presided over by the Hon’ble

Chief Justice Mr. S.Obul Reddy (Retd.) as Presiding Officer,

and passed an order dated 30.4.1990 holding that the

employees of RRBs would be entitled to the salaries, etc.

and other benefits which were enjoyed by the State

Government employees and other RRBs vis-à-vis

sponsored Banks upto 31.8.87 and from 1.9.87 they would

be entitled to the pay scale of the employees of the

sponsored banks in their respective jobs. The Hon’ble

National Industrial Tribunal also observed that the RRB

employees are entitled to have their pay scale keeping

parity with the scale of pay of the employees of the

sponsored bank and the same shall be determined by the

Central Government in exercise of power conferred u/s 17

of the I.D.Act; and that the question of equation of post

and consequence of fixation of new scale of pay,

allowances and other benefits should be decided by the

Central Government. In pursuance of the Award of the

NIT the Central Government constituted an Equation

Committee under the Chairmanship of Sri P.Kotaiah, the

Chief General Manager of NABARD with four other

members. The Equation Committee submitted its report

vide Exhibit-B which was accepted by the Government of

India and notified on 22.2.91 directing RRBs throughout

the India to implement the said report vide Exhibit-C.

The Management witness also stated that as per

the report of the Equation Committee the scale of pay of

different posts of Tripura Gramin Banks would be equated

and fitted with the post and scale of pay of the sponsored

Bank i.e. United Bank of India with effect from 1.9.87; and

the bank employees are entitled to have their pay scale in

terms of different bipartite settlement arrived from time to

time. Accordingly the effect of 5th Bipartite Settlement

was extended to the employees of Tripura Gramin Bank

with effect from 1.11.1987. He also added that altogether

47 numbers of messengers involved in this reference were

engaged and regularized prior to 22.2.1991 and finally

drawing scale of pay of State Government as applicable;

and their pay, allowances and other benefits were fitted

into those of the sponsored bank as on 1.9.87 vide Exhibit-

D. The said 47 numbers of messengers were regularized

from 26.12.86 to 20.10.89. The MW.1 has proved the

documents vide Exhibit-E to R which are the orders of

regularization in respect of 14 numbers of employees of

Tripura Gramin Bank. The Union raised demands for due

fitment with effect from the initial date of engagement,

which is not tenable and legal as all the employees were

engaged initially on daily wage basis/part time basis and

the payments were made through vouchers. The MW.1

further stated that as per the guidelines of NABARD dated

20.3.93 marked as Exhibit-S regularization would mean

providing a regular pay scale to an employee who would

be entitled to increment annually. The RRB in normal course

was required to maintain the records and the acquaintance

roll for their messenger and part time employees; and that

the employees in sub-staff cadre who were in service of

the RRB on 22.2.91 and who have completed 240 days of

continuous service after that date may be treated as regular

employee of the RRB with effect from 22.2.91; and that the

cases in respect of the employees already been settled/

regularized by the authorized bank officers and the said

employees are drawing pay scale at the pay corresponding

to the employees of the United Bank of India as such, the

fitment made in respect of the instant 47 employees is

legal and justified, proper and according to the guidelines

and instruction given by the Government of India and the

Award passed by the Hon’ble National Industrial Tribunal.

I have perused the entire case record along with the

pleading of both the sides & the evidence adduced by the

Management. The para4.424,4.427 & 4.428 of the Award

of the National Industrial Tribunal headed by Mr. S.Obel

Reddy, Hon’ble Chief Justice (Retd.) runs as under:

“4.424. …………….The duties of Officers and other

employees in a banking industry are absolutely dis-

similar and different from the duties of Officers or

other employees on the executive side of the

Government. Similarly, the duties of employees in a

steel industry or aviation, medical and health,

engineering and so on, require special qualifications

and training. To equate employees in those

professions or avocations with the employees in

the Secretariat or any Department of Government

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3759

where there could be no semblance of similarity of

functions and duties, would be ludicrous. It is well

to remember that the pay scales in a Government

establishment are not determined having regard to

the comparable status and level of employees in a

steel industry, petroleum industry, Indian Airlines

etc., That would be absolutely illogical and irrational.

The crux of the matter is that for comparison, it must

stand the test of reasonableness when scrutinized

in the light of identity or similarities in the nature of

duties and functions…… The only comparable posts

are in the commercial banks and it is not denied that

the employees in a rural branch of commercial banks

are of comparable level having regard to the

commonalities in their duties and functions. There

is any amount of justification in the demand of the

Writ Petitioners that they ought to have been

equated to comparable posts in commercial banks

and their salary structure should have been so

related as to be in conformity with the salary

structure in the nationalized banks……….”

In para 4.425 – It was decided by the National

Industrial Tribunal that what flows from its findings

that the officers and other employees of RRBs will

be entitled to claim parity with the Officers and other

employees of the Sponsor Banks in the matter of

pay scales, allowances and other benefits.

The Hon’ble National Industrial Tribunal in para

4.427 and 4.428 has made clear regarding the

elimination of anomalies & to uniformity in the pay

scale etc. In the para 4.427 it is mentioned that having

regard to the above, in order to eliminate the

anomalies and bring about uniformity in the pay

scales in all the RRBs at least to the extent of each

State, I find that they will be entitled to all the

allowances, benefits which the State Government

servants of comparable level and status are entitled

to. They will, therefore, be only entitled to claim the

difference in allowances and other benefits, so as to

bring about uniformity with the State Government

employees in all matters of pay scales, allowances,

benefits etc., till 31st day of August, 1987.

Para 4.428 speaks as follows :

“ So far as the equation of posts and the consequent

fixation of the new scales of pay allowances and

other benefits for Officers and other employees of

the RRBs on par with the Officers and other

employees of comparable level in corresponding

posts in sponsor banks and their fitment into the

new scales of pay as are applicable to Officers of

sponsor banks in corresponding posts of

comparable level, it is a matter which has to be

decided by the Central Government in consultation

with such authorities as it may consider necessary.

This will also include the pay scales, benefits, other

allowances and fitment of sub-staff of the RRBs with

the sub-staff of sponsor banks. This Award is

accordingly passed and it shall cover all the existing

RRBs. The Award shall be given effect to from 01st

day of Septemeber,1987.”

Thus it is clear that the Hon’ble National Industrial

Tribunal has been pleased to allow the RRB employees

the pay scale and other benefits at par with those of the

sponsored Banks with effect from 1.9.87 and that the

question of equation of post and consequent fixation of

new scale of pay and other benefit of the RRBs and their

fitment into the new scale of pay is to be decided by the

Central Government in consultation with the appropriate

authorities. Accordingly the Central Government vide its

No. 2775 dated 5.10.1990 constituted an Equation

Committee under the Chairmanship of Sri P. Kotaiah, M.D,

NABARD with four other members and the said Committee

submitted its report before the Government of India on

8.1.1991 vide Exhibit-B, the report of Equation Committee

was accepted by the Government of India vide order dated

22.2.1991 proved as Exhibit-C.

The present dispute is relating to fitment of pay

scales and allowances of the employees of the RRB i.e.

Tripura Gramin Bank. The Management both in their

pleadings as well as the evidence as mentioned above has

clearly stated that they have regularized the service of the

47 numbers of messenger-cum-peon involving in this

reference from the period with effect from 26.12.86 to

20.10.89 and their fitment has already been made as shown

in the statement produced by the Management vide

Exhibit-D. While the Association in their pleading pointed

that the pay scale of the messenger-cum-peon was revised

making it at par with the counter part in the sponsored

bank but while doing so the Management have ignored

the formula of fitment and the initial date of appointment

of the messenger-cum-peon in as much as it was clear

direction of the National Industrial Tribunal that their

services should be regularized with effect from the date of

the continuous appointment. It is also pleaded by the

Association that the Award of the National Industrial

Tribunal is clear that who have completed 5 years or more

of services will be placed at least at the second stage of

new scale i.e. the scale pertaining to the similar post of the

sponsored bank, and those who have completed 10 years

or more of services will be placed at the 3rd stage of the

new pay scale. But the said direction has not been complied

with the by the Management. It is also alleged by the

Association that a group of messenger-cum-peon were

engaged before 1.9.87 and they were regularized as per

NIT Award and those MCPs became entitled to be fitted in

the first stage of regular pay of scale with effect from

1.9.87 but they were given benefit of fitment at the first

stage of regular scale of pay with effect from 1.9.89 and

consequently they suffer loss and disadvantages. It is

3760

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

also mentioned by the Association in their pleading that

some of the messenger-cum-peon appointed on 1.9.87 and

some are eligible for fitment in the second stage and

thereby the Management of Tripura Gramin Bank deprived

the benefit of the messenger-cum-Peon accorded with the

regular scale of pay for not being provided fitment

protection with effect from 1.9.87.

The report of the Equation Committee of RRBs dated

18.1.91 dealt with the fitment by way of protection of pay

+ D.A. in para-4.12 to para 4.15 which runs as under :-

4.12. Whenever employees of different

organizations having different pay packages have

been brought under a standard and uniform package,

the fitment has been given only on the basis of

protection of pay or emoluments and not on stage

to stage basis. The procedure followed in such cases

is to give equation fitment in the standard scales of

pay in such a manner that the emoluments in the

standard pay package work out to be equal or slightly

higher than what was actually drawn.

4.13. In the Banking Industry, the latest

example of this nature is, standardization of pay

scales for Officers of Nationalised Banks in 1979,

based on Pillai Committee Recommendations, where

fitment was given to Officer from different banks

placed in heterogenous scales of pay into a standard

scales on Pay + DA protection basis. The Committee,

therefore, considers it appropriate to recommend

fitment on the basis of protection of Pay + DA drawn

(i.e. Basic Pay, Dearness Pay, DA, Ad-hoc or

Additional DA, Interim relief or any such allowance

which forms part of Pay or DA).

4.14. In any formula, it is not feasible to ensure

that the employees in different organizations equal

in all respects are fitted at the same stage in the new

scales of pay drawing the same total Pay+DA. This

however ought to be ensured amongst employees

drawing equal basis pay in the same cadre in the

same organization.

4.15. If two employees in the same cadre and

organization draw same basis pay but different

allowances on the appointed date, they should be

placed at the same stage in the new scales of pay

and where there is difference of stages, between the

two, that difference should be broadly reflected in

the fitment into new scales of pay. This can be

ensured if only those components are taken into

account which are common for all employee and not

linked to the place of posting and type of posting.

Only the basic Pay and Dearness Allowances have

such characteristics.

In para 4.12 of the Equation Committee report it is

clearly mentioned that the fitment has been given only on

the basis of protection of Pay or emoluments and not to

stage to stage basis; and the procedure followed in such

cases is to give equation fitment as per pay scale in such

a manner that the emoluments in the standard pay packages

work out to be equal or slightly higher than what was

actually drawn. It is also recommended by the Committee

that the fitment is to be made on the basis of protection of

Pay + DA drawn ( i.e. Basic Pay, Dearness Pay, DA, Ad-

hoc or Additional DA, Interim relief or any such allowance

which forms part of Pay or DA).

The pleadings of the Management in their W.S. and

the evidence of the MW.1 shows that the RRB in normal

course is required to maintain records and Acquaintance

Roll for their messenger and part time employees, and the

employees in the sub-staff cadre who were in service of

Regional Bank on 22.2.91 ( the date on which the

Government of India has notified the acceptance of NIT

Award) and who have completed 240 days of continuous

service after that date they may be treated as regular

employees of RRBs with effect from 22.2.91. It is also

categorically mentioned by the Management witness No.1

that they have already regularized all the 47 numbers of

employees involved in this case within the period of 1986

to 1989 and they are now drawing the pay scale as Pay

scale corresponding to the employees of the United Bank

of India, and thus the fitment made in respect of the said

47 numbers employees is legal and justified according to

the guidelines as well as instruction given by the

Government of India and the Award passed by the NIT. In

support of their contention the list of messengers produced

by the Management witness vide Exhibit-D, which shows

that some of the workers were engaged prior to 1.9.87 but

they were shown in the column “date of service

regularized” with effect from the date shown against each

of the worker and the engagement letter issued against

the said 47 workers after 30.6.82 and also they were

regularized on subsequent dates.

In the Award passed by the National Industrial

Tribunal in para 4.410, it has been stated as :-

“In view of the authoritative pronouncements of

the Supreme Court, it must be held that the part-time

sweepers-cum-messengers who were employed on

daily wages or on half of the salary or on some other

proportion of the salary of a regular messenger, will

be entitled to their various claims such as equal pay

and all other attendant benefits as are admissible to

regularly appointed full time messengers in the

respective RRBs. That there was/is no sanctioned

post of a regular messenger in a branch or the head

office is absolutely irrelevant and immaterial in view

of the proved facts that the so called part-time

messengers whether on daily wages or on some other

basis were made to work full time by their respective

managements. The Managements cannot extract full

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3761

time work and even beyond the working hours from

the socalled part-time messengers by merely

showing them in the acquittance rolls as part-time

employees paid on either daily wages; or some other

basis; or on some proportionate basis. Their services

shall be regularized with effect from the date of their

continuous engagement. If deemed necessary it will

be open to the Government of the RRBs as the case

may be, to sanction the required number of posts to

accommodate the writ petitioners and all those

belonging to their class.

In the instant reference although the Association

contended that some of the messengers-cum-Peons have

been working since 21.12.76 onward, their fitment should

be made treating them as regular employees. But the

Association have not been able to produce any evidence

to the effect that the said messengers-cum-peons have

been engaged part time basis and worked regularly or on

daily wages or on some other basis were made to work full

time by their management merely showing them in the

acquittance roll as part time employees, as claimed by them.

In such a situation I find no rason to entertain the

grievances of the Association. The Association also failed

to establish their plea taken in their claim statement

adducing supporting evidence.

In view of my above discussion I am of the opinion

that the Tripura Gramin Bank Employees Association have

not been able to prove their case. In the result, it can

safely be held that the action of the Management of Tripura

Gramin Bank, Agartala in denying fitment of Pay regarding

47 messengers-cum-Peon as per National Industrial

Tribunal Award counting their services from the date of

initial engagement/appointment as daily rates worker/part

time workers is legal. Accordingly this reference is decided

in affirmative.

Given under my hand and seal of this Court on this

31st day of March,2014, at Guwahati.

Send the Award to the Ministry as per procedure.

SHRI L.C. DEY, Presiding Officer

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New Delhi, the 2nd May, 2014

S.O. 1421.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No. 63/98)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, New Delhi as shown in the Annexure in the

Industrial Dispute between the management of Corporation

Bank, and their workman, received by the Central

Government on 31/03/2014

[No. L-12012/175/97-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

DELHI 110 032

Present :—Shri HARBANSH KUMAR SAXENA

ID No. 63/98

Sh. Rajinder Kumar Mawal

Versus

Corporation Bank.

AWARD

The Central Government in the Ministry of Labour

vide notification No L-12012/175/97-IR(B-I)) dated 04.02.98

referred the following Industrial Dispute to this tribunal

for adjudication :-

“Whether the action of the management of

Corporation Bank in awarding punishment of

dismissal from bank’s services imposed on Shri

Rajinder Kumar Mawal, Typist-cum-Clerk vide orders

dated 07.05.1996 is just and legal? If not, to what

relief the workman is entitled?”

On 17/3/98 reference was received in this tribunal.

Which was register as I.D No.63/98 and claimant was

called upon to file claim statement with in fifteen days

from date of service of notice. Which was required to be

accompanied with relevant documents and list of

witnesses.

Workman on 20/3/1998 filed claim statement in detail.

On the basis of grounds mentioned in claim petition

he prayed that this order dated 7.5.1996 passed by the

Disciplinary Authority and order dated 6.9.96 passed by

the Appellate Authority may be declared illegal, wrongful

and against the principles of natural justice, fair play and

enquiry by reinstating the workman to his post of Typist -

cum-Clerk with benefit of full back wages, continuity of

service and attendant benefits.

3762

THE GAZETTE OF INDIA : MAY 10, 2014/VAISAKHA 20, 1936

[PART II—SEC. 3(ii)]

Management in reply to claim statement filed its written

statement on 28.12.1998 .

On the basis of averments made in W.S. Management

prayed as follows:-

As regards the punishment of dismissal imposed on

the workman, as averred by him at Para 20, it is submitted

that the charge established against him are serious,

warranting the punishment of dismissal from the service.

There are no extenuating/mitigating circumstances to take

a lenient view in order to interfere with the punishment

imposed.

With reference to the prayer, it is submitted that the

claim of the workman deserves to be rejected. It is

accordingly prayed that the same be rejected.

Management on 26.3.2001 again filed Written Statement.

Wherein it mentioned as follows:-

It is submitted that the management had issued a

Chargesheet dated 20.5.1995 to the workman. The

charges leveled against the workman were that, that

the workman with the ulterior motive encashed the

Banker’s Cheque of Rs. 2.00 lacs prompted and

assisted by one Sh. Sunil Kumar Srivas to open a

Savings Bank Account in the name of the payee of

the cheque, allotted S.B A/c No.3383 thereto without

placing the relevant documents before the branch

officials for verification, and authorization to open

the account, and accepted cheque for Rs.2.00 lacs

to the credit of the said account. The said actions

were tantamount to doing acts prejudicial to the

interest of the Bank/gross negligence or negligence

involving or likely to involve the bank in a serious

loss, gross mis-conduct under Clause 19.5(j) of the

Bipartite Settlement applicable to the workman,

besides amounting to moral turpitude in him.

The workman in response to the above charges

wrote a letter dated 26.6.1995 denying all he charges

against him. Thereafter, Enquiry Officer was

appointed on 13.7.1995.

The workman was provided with the copy of the

management documents alongwith the chargesheet

before the Preliminary hearing. An additional

documents relied on by the management was also

furnished to the workman before the preliminary

hearing. The workman participated in the domestic

inquiry from the very first hearing and was

represented by Defence Representative of his choice.

That Preliminary hearing of the inquiry was held on

7.8.1995. On that date, the workman alongwith his

representative were present and the proceedings

recorded were duly signed by the workman as well

as his representative. The said proceedings state as

under:

“the CSO is allowed one day time to verify the

documents proposed to be relied upon by the

management and he is granted time till 21.8.1995 to

submit his list of witness and documents if any”.

The workman never raised any objection that the

documents relied upon by the Management were

not given to him at the Preliminary hearing or at any

other

stage.

The

proceedings

dated

12.9.1995,13.9.1995 and other proceedings were also

participated in by the workman alongwith his defence

representative and the same were duly signed.

The workman at no stage ever raised any objection

whether in writing or oral or in any kind of letter to

the management that the documents relied upon by

the management were not given to the workman.

The Preliminary Investigation which was held before

issuing the Chargesheet was administrative in nature

with a view to find out whether there were sufficient

grounds to initiate Disciplinary proceedings. There

was no legal requirement to associate the workman

with the Preliminary investigation. However, when

the Management decided to issue a chargesheet

alsongwith the chargesheet, the Management

supplied a complete copy of investigation report

alongwith its enclosures to the workman to put

forward his defence.

Two witnesses Sh. Sunil Kumar Srivas and Prasant

Kumar Jain could not be examined due to the

circumstances beyond the control of the

management. The management made its best efforts

to procure their presence. However, since they did

not come forward to appear as witnesses, there was

nothing illegal or wrong if the said witnesses were

dropped.

It is submitted that the Inquiry Report dated 16.1.1996

was forwarded to the workman alongwith the

Provisional Order (proceedings) dated 7.3.1996. The

allegation that the said report was supplied only

one day before the date of hearing before the

Disciplinary Authority is false.

10.

It is submitted that the claim made by the workman

states as under:

“Although the communication dated 7.3.96 did

mention that the report of the Enquiry Officer is

being enclosed, but no such report was enclosed

with the communication, which was supplied to the

undersigned workman and which report was

supplied to the undersigned workman only a day

before he was to appear before the Disciplinary

Authority alongwith the written statement at the

time of personal hearing on 22.3.1996”

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3763

The actual position is that the workman was supplied

inquiry report alongwith the provisional order dated

7.3.1996. The allegation that inquiry report was not

supplied alongwith provisional order is denied.

Moreover, the hearing i.e. dated 22.3.96 one day

before which the workman has claimed to have

received the inquiry report is concocted date as there

was no such hearing on that date. The hearing was

held on 20.4.1996. On that day, the workman

submitted a letter. That letter did not make any

grievance regarding non supply of inquiry report or

late supply thereof infact the letter challenged the

findings of the Enquiry Officer which could not have

been done without the receipt of the inquiry report.

The said letter is Annexure R-1 to reply of the

management.

11.

The workman has made an objection to the effect

that the Bank had not notified the appointment of

Disciplinary Authority and Enquiry Officer. The same

is baseless, as the Bank vide Circular No. HRD:

1854:84 dated 22.10.1984 had notified that the Officer

in Senior Management Grade Scale IV would be the

Disciplinary Authority in respect of employees of

the Bank in Clerical and Subordinate Staff cadre. In

the instant case the Chargesheet and Order were

issued by the Chief Manager who is an Executive in

Senior Management Grade Scale IV. Therefore, the

action of the Chief Manager as Disciplinary

Authority in issuing the Chargesheeet /Order in

domestic inquiry and appointing the Presiding

Officer is proper and valid.

12.

It is submitted that the copy of the statement of

witnesses Sh. Sunil Kumar Srivas, Mrs. Baddi and

Mr. Prashant Kumar Jain which were annexures to

Investigation Report and the said report was

forwarded to the workman alongwith the

Chargesheet dated 20.5.1995.

13.

In the domestic inquiry which has Quasi Judicial

procedure, enforcement of outside witness is often

rendered difficult. The Management made all

possible efforts to produce the two outside

witnesses i.e. Sh. Sunil Kumar Srivas and Mr.

Prashant Kumar Jain but were not successful in their

efforts. The statements earlier recorded have not

been disputed by the workman and were

corroborated by the then Branch Manager Jabalpur.

The statement of Smt. Baddi on the other hand was

confirmed by her during the inquiry and marked as

Exh. M-14.

14.

The claim filed by the workman is denied in its

totality and also the Affidavit by way of evidence is

also denied. The allegation made by the workman

that the Enquiry Officer was biased against the

workman is wrong and denied. The workman in his

claim referred to the stage of questioning by the

Enquiry Officer. It is the settled position of law that

where the workman has not got himself examined as

a witness, the Enquiry Officer is right in questioning

the workman at the incriminating circumstances

appearing against him, which also provide yet

another opportunity to the workman either to rebut

or clarify the incriminating evidence appearing

against him. Such a questioning by the Enquiry

Officer cannot be alleged as illegal.

15.

It is submitted that the charges established against

the workman are serious, warranting punishment of

dismissal from services. There was no extenuating

mitigating circumstances to take lenient view in order

to interfere with the punishment imposed on the

workman.

16.

It is submitted that preliminary inquiry was valid,

proper and preliminary issue be decided in favour of

the Management.

Workman/Claimant filed rejoinder in reply of Written

Statement on 7.1.1999. Wherein he stated as follows:-

1-3 Paras No.1 to 3 of the preliminary submissions

are wrong as stated and hence same are denied. In reply it

is submitted that the enquiry conducted without following

the principle of natural justice and without afforded the

reasonable opportunity to the workman to cross-examine

the prosecution witnesses and the enquiry officer

conducted the inquiry in biased manner. It is submitted

that the reply in the present case filed by the Regional

office Delhi who is the management in the present case

and whose offices is situated in Delhi and therefore this

Hon’ble Tribunal have a territorial jurisdiction to decide

the issue.

Reply to Parawise Reply

Before starting the reply of the Counter it is relevant

to submit here that the management not supplied the

annexures of their reply which are stated in the reply as

R-1, R-2 etc.

Para No. 1 of the Reply is wrong as stated and hence

same is denied. In reply it is submitted that the workman

not committed any misconduct and alleged charge-sheet

is a vague charge sheet which not discloses any charge

on the workman. Para No.1 of the claim statement is correct

and same is reiterated here again.

2 &3 Para No. 2 & 3 of the reply of the Management

are wrong as stated and hence same are denied. In reply it

is submitted that the management without considering

the case / representation against the charge sheet the

management appointment the Enquiry officer of their

choice who has conducted the enquiry in biased manner.

Para No.2 & 3 of the claim statement is correct and the

same is reiterated here again.

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4-6 Para No. 4 to 6 of the reply of the Management

are wrong as stated and hence same are denied. In reply it

is submitted that the applicant was not supplied with the

copy of the relied documents and the copy of the statement

of witnesses and the copy of the preliminary enquiry report,

which is illegal in the eyes of law and against the principle

of natural justice. It is submitted that the Management

without any reason rejected the demand of the applicant

for additional documents. It is further relevant to submit

here that in the present case Sh. Sunil Kumar Srivas and

Sh. Prasant Kumar Jain were only the key witnesses for

establishing the charges leveled against the workman but

same were not produced before the enquiry officer, which

is illegal in the eyes of principle laid down by Supreme

Court in the case of Brielly Electric Supply Co. Ltd. Vs

Workmen 1971(2) SCC 617 has held as follows:-

“No materials can be relied upon to established a

contested fact which are not spoken to by persons who

are competent to speak about them and are subjected to

cross-examination by the party against whom they are

sought to be uses.”

It is further relevant to mention here that, it is well

settle principle of law that failure to examine single witness

on whose testimony entire case rests, vitiates whole

enquiry as laid down in the case P.N. Mukharjee Vs. Union

of India reported in 225 Swamy’s case law Digest 1993

page No. 346 and in the present case the main witnesses

Sh. Sunil Kumar Srivas and Sh. Prashant Kumar Jain who

could testify to the effect that the workman played any

role in opening of the account. Paras No.4 to 6 of the claim

statement are correct and same are reiterated here again.

Para 7 needs no reply.

8-9. Para No.8 of the reply is wrong as stated and

hence same is denied. In reply it is submitted that the

workman was not supplied the copy of the Enquiry Officer

Report before passing the provisional orders of the

disciplinary authority dated 7.3.1996 as well as alongwith

the provisional order dated 7.3.1996 and non-supplying

the Enquiry Officer report before passing the final order is

illegal in the eyes of law. Para No.8 of the claim statement

is correct and same is reiterated here again.

9-10. Para No. 9 & 10 of the reply are wrong as stated

and hence same are denied. In reply it is submitted that

the disciplinary authority as well as appellate authority

not applied their mind before passing the orders and they

reproduced the observation of Enquiry Officer in their

orders, which are not speaking orders and therefore same

are liable to be quashed. Para No. 9 & 10 of the claim

statement are correct and same are reiterated here again.

11. Para No. 11 of the Counter is wrong as stated

and same is denied. In reply it is submitted that the

disciplinary authority passed the impunged dismissal order

on the basis of past record, which was not the part of the

Charge Sheet and which was not produced before the

Enquiry Officer and therefore the impunged order of

dismissal is illegal and parawise reply of the Grounds are

as under:-

I to iv. Para No. i to iv of the reply are wrong as

stated and hence same are denied. In reply it is submitted

that the workman not committed any misconduct and

therefore the impunged charge sheet is illegal and the

charge sheet itself is a vague charge sheet. It is further

relevant to submit here that the appointment of the Enquiry

Officer and Presenting Officer were not proper invalid. It

is submitted that the Enquiry Officer submitted his report

on the basis of statement of Sunil Kumar Srivas and Mr.

Jain which were recorded during the preliminary enquiry

and in absence of the workman. Paras No. i to iv of the

Claim Statement are correct and same re-iterated here again.

v to x. Para No. v to x of the reply are wrong and

same are denied. In reply it is submitted that the Enquiry

Officer examined the workman at length, which is illegal

and against the principle of natural justice and against the

well settle principle of law laid down by Hon’ble Supreme

Court that one can not acted as a prosecution as well as

judge. Paras no. v to x of the Claim Statement are correct

and same are reitereated here again.

12-17. Para No. 12 to 17 of the reply are wrong as

stated and hence same are denied. In reply it is submitted

that each and every allegation in para 12 to 17 stated by

the management is also denied. In reply it is submitted

that the Enquiry Officer conducted the inquiry without

adopting the rules and procedure and without following

the principle of natural justice as well as without giving

the reasonable opportunity to the workman and submitted

his report in biased manner which is not sustainable in the

eyes of law. Paras No. 12 to 17 of the Claim Statement are

correct and some are reiterated here again.

18-20.Para No. 18 to 20 of the counter reply are wrong

and hence are denied. Para No. 18 to 20 of the Claim

statement are correct and some are reitereated here again.

It is therefore respectfully prayed that the Hob’ble

Court may graciously be pleased to pass an order of

allowing the claim of the workman.

On basis of pleadings of parties following issues has been

framed by my Ld. Predecessor on 7/1/1999:-

Whether the domestic enquiry conducted against

the workman is fair and proper?

As per the term? Reference ?

After framing the issues my Ld. Predecessors fixed

25.2.1999 for producing evidence by management on

preliminary issue no. 1.

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3765

Management in support of its case filed affidavit of Sh.

S.V.S Dattatreya on 16.7.1999. Wherein he stated as

follows:-

I was appointed as inquiry officer in the above case

to conduct domestic inquiry in the case of Sri

Rajender Kumar Mewal, Typist –cum-Clerk,

Faridabad Branch. I was appointed an inquiry officer

in terms of para 19.14 of Biparitite settlement and my

name as inquiry officer for Faridabad Branch for the

said purpose was circulated to the staff of the

branch. The C.S.O never objected to my appointment

as the inquiry officer.

After being appointed as the inquiry officer in above

case, I issued notice to both the Management and

the workman. I gave them full opportunity to state

their respective cases, file documents, adduce

witnesses, and cross- examine each others

witnesses. The inquiry was conducted by me in terms

of the principles of natural justice. Copies of each

days proceedings were given to the parties and their

signatures were taken. Full opportunity of hearing

was also given. Both parties submitted their written

briefs.

After completing the inquiry and relying on the

documents/statements of witnesses, I finally

submitted the report to the management.

I am filing herewith the relevant documents /

proceedings of the inquiry which be read as part

and parcel of this affidavit:-

(a)

Charge sheet issued to Sh. R.K. Mawal vide

letter no. PAD/IRW/DISC/1051/95 dated

20.5.1995 marked –Ex MW1/1.

(b)

Proceedings dated 07.8.95 marked –

Ex. MW ½.

(c)

Statement of CSO dated 07.08.95- Ex. MW 1/3.

(d)

Order Sheet dated 12.9.95 and 13.9.95 marked

–Ex. MW ¼.

(e)

Statement of MW1 marked-Ex. MW 1/5.

(f)

Statement of MW2 marked-Ex. MW 1/6.

(g)

Statement of MW3 marked-Ex. MW 1/7.

(h)

Statement of DW1 marked-Ex. MW 1/8.

(i)

Questioning of CSO by me marked- Ex.

MW.1/9.

(j)

Proceedings of domestic enquiry dated

16.09.1996 submitted by the Enquiry Officer

marked- Ex. MW 1/10.

Affidavit tendered on 29/5/2000. MW1 Sh. S.V.S

Dattatreya was cross-examined by Ld.A/R for workman.

His examination-in-chief and cross-examination is as

follows:-

Affidavit Ex. MW1 is correct. It may be read as part

of my statement.

XXXXX

A preliminary enquiry was also held against the

workman before issuing of the charge sheet. I do not know

whether copy of the preliminary enquiry report was

supplied to the workman or not. The copies of the listed

documents were supplied to the workman. I had not cross

–examined the witnesses of the management since I was

Enquiry Officer. On his request the workman was given

the Assistance of defence representative. The copies of

the statement of the listed witnesses were supplied to the

workman at the time of the charge sheet given to him. It is

wrong to say that the Management witnesses were cross-

examined by the workman. It is also wrong to say that

only to fill up the gap I had cross-examined the management

witnesses. We having our regional office at Delhi also.

My affidavit filed in the case was drafted by an advocate.

It is wrong to say that facts stated in my affidavit are

wrong.

Workman in support of his case filed affidavit in his

evidence wherein he stated as follows:-

That while working as clerk in Faridabad Branch of

the corporation bank a charge sheet dt. 20.5.1995

was issued to me alleged that “ with the malafide

intention , in collusion with Sh. Sunil Kumar Srivas

manipulated the opening of S/B.A/c No. 3383, in the

name of Sh. Badri Prashad Srivas to encashment of

the said cheque and attempted to defraud the Bank,

which is totally wrong and the charge against me

are totally wrong and vague.

That the charge sheet was based on the documentary

as well as witnesses but the copies of relied upon

documents and the statement of witness and the

copy of the preliminary enquiry report were not

supplied to me along with the charge sheet by which

I was deprived to make an effective representation

against the charge sheet.

That the charge sheet which was issued on the basis

of five witnesses but only three witnesses were

produced during the enquiry and two key witnesses

were dropped and I was not given and reasonable

opportunity to cross-examination of the witness.

That the Enquiry officer conducted the enquiry in

biased manner without following the rules and

principle of natural justice. And I was not given

reasonable opportunity to produced my defence in

proper way.

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That I made special request for Additional documents

during the enquiry but the same were not supplied

to me without any reasons.

That dis missal order dt. 7.5.96 and the appellate

order dt. 6.9.96 are illegal, passed without applying

mind, against the rules, against the principle of

natural justice.

That before passing the dismissal order dt. 7.5.96

and appellate order 6.9.96 , no personnal hearing

was granted to me.

That my claim statement and the rejoinder filed in

the above case may be treated as a part and parcel

of this affidavit.

Affidavit tendered on 9.10.2000. WW1 Sh. Rajender

Kumar Mawal was cross-examined by Ld.A/R for

Management.

On 9.10.2000 his examination-in-chief and cross-

examination is as follows:-

Affidavit Ex. WW1/1 is correct. It may be read as

part of my statement.

XXXXX

It is correct that myself and my defence

representative both had participated in the enquiry

proceed-ings from its very beginning. No list of documents

annexed to the charge sheet on the record of the case was

given to me only charge sheet was given to me. In my

reply to charge sheet I had denied the charges leveled

against me. It is correct that on 7.8.95 at the time of

preliminary enquiry myself and my defence representative

were present and I had put my signatures on the

proceedings of the enquiry . It is wrong to say that I was

supplied the entire copies of the documents relied upon

by the management and the preliminary investigation report

before 7.8.95. In the enquiry proceeding dated 7.8.95 the

observation of the enquiry officer that C.S.O. was allowed

one day time to verify the documents proposed to be relied

upon by the management and he has granted time till

21.8.95 to submit his list of witnesses and documents if

any made therein is not correct. Myself and my

representative both had signed on the said documents on

the request of the management. I had given in writing to

the enquiry officer for the supply of the copy of the

documents relied upon by the management in my case. I

do not remember that the said letter was given by me to

the enquiry officer on 7.8.95 or prior to it in a proceeding

of 12.9.95 and 13.9.95. I had signed on the proceedings on

the request to the management the date of 22.3.96 before

the disciplinary authority for hearing given in para 8 of my

statement of claim is correct. It is wrong to say that no

hearing on 22.3.96 before the disciplinary authority was

not hold. I do not remember whether the hearing before

the disciplinary authority was held on 22.4.96 or not. I am

unable to say whether my letter date 20.04.96 annexed to

the written statement an annexure R-1 was handed over

by my representative personally to the disciplinary

authority or not. In the said letter dated 25.4.96 it is not

written that the copy of the enquiry report was not

supplied to me. It is wrong to say that my affidavit is false.

It is wrong to say that I was not given full opportunity

during the domestic enquiry to defend my case as per

rules.

WRITTEN SUBMISSION ON BEHALF OF THE

MANAGEMENT IS AS FOLLOWS:-

It is submitted that the Management had issued a

chargesheet dated 20.5.1995 to the workman. The

Charges leveled against the workman were that, the

workman with the ulterior motive encashed the

Banker’s Cheque of Rs. 2.00 lacs prompted and

assisted one Shri. Sunil Kumar Srivas to open a

Savings Bank Account in the name of the payee of

the cheque, allotted S.B. A/c No. 3383 thereto

without placing the relevant documents before the

branch officials for verification, and authorization

to open the account and accepted cheque for

Rs. 2.00 lacs to the credit of the said account. The

said actions were tantamount to doing acts prejudicial

to the interest of the Bank/gross negligence or

negligence involving or likely to involve the bank in

a serious loss, gross mis-conduct under Clause

19.5(j) of the Bipartite Settlement applicable to the

workman, besides amounting to moral turpitude in

him.

The workman in response to the above charges

wrote a letter dated 26.6.1995 denying all the charges

against him. Thereafter, Enquiry Officer was

appointed on 13.07.1995.

The workman was provided with the copy of the

Management documents alongwith the Chargesheet

before the Preliminary hearing. An additional

document relied on by the management was also

furnished to the workman before the Preliminary

hearing. The workman participated in the domestic

inquiry from the very first hearing and was

represented by Defence Representative of his choice.

The Preliminary hearing of the inquiry was held on

7.8.1995. On that date, the workman alongwith his

representatives were present and the proceedings

recorded were duly signed by the workman as well

as his representative. The said proceedings state as

under:-

“ The CSO is allowed one day time to verify the

documents proposed to be relied upon by the

Management and he is granted time till 21.8.1995

submit his list of witnesses and documents if any”.

The workman never raised any objection that the

documents relied upon by the Management were

not given to him at the Preliminary hearing or at any

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3767

other later stage. The proceedings dated 12.09.1995,

13.9.1995 and other proceedings were also

participated in by the workman alongwith his defence

representative and the same were duly signed.

The workman at no stage ever raised any objection

whether in writing or oral or in any kind of letter to

the Management that the documents relied upon by

the Management were not given to the workman.

The Preliminary Investigation which was held before

issuing the Chargesheet was administrative in nature

with a view to find out whether there were sufficient

grounds to initiate Disciplinary proceedings. There

was no legal requirement to associate the workman

with the Preliminary investigation. However, when

the Management decided to issue a chargesheet

alongwith the chargesheet, the Management

supplied a complete copy of investigation report

alongwith its enclosures to the workman to put

forward his defence.

Two witnesses Sh. Sunil Kumar Srivas and Prashant

Kumar Jain could not be examined due to the

circumstances beyond the control of the

Management. The Management made its best efforts

to procure their presence. However, since they did

not come forward to appear as witnesses, there was

nothing illegal or wrong if the said witnesses were

dropped.

It is submitted that the Inquiry Report dated 16.1.1996

was forwarded to the workman alongwith the

Provisional Order (proceedings) dated 7.3.96. The

allegation that the said report was supplied only

one day before the date of hearing before the

Disciplinary Authority is false.

10.

It is submitted that the claim made by the workman

states as under:-

“Although the communication dated 7.3.96 did

mention that the report of the Enquiry Officer is

being enclosed, but no such report was enclosed

with the communication, which was supplied to the

undersigned workman and which report was

supplied to the undersigned workman only a day

before he was to appear before the Disciplinary

Authority alongwith the written statement at the

time of personal hearing on 22.3.1996”

The actual position is that the workman was supplied

inquiry report alongwith the provisional order dated

7.3.1996. The allegation that inquiry report was not

supplied alongwith provisional order is denied.

Moreover, the hearing i.e. dated 22.3.96 one day

before which the workman has claimed to have

received the inquiry report is concocted date as there

was no such hearing on that date. The hearing was

held on 20.4.1996. On that day, the workman

submitted a letter. That letter did not make any

grievance regarding non supply of inquiry report or

late supply thereof infact the letter challenged the

findings of the Enquiry Officer which could not have

been done without the receipt of the inquiry report.

The said letter is Annexure R-1 to reply of the

Management.

11.

The workman has made an objection to the effect

that the Bank had not notified the appointment of

Disciplinary Authority and Enquiry Officer. The same

is baseless, as the Bank vide Circular No. HRD:

1854:84 date 22.10.1984 had notified that the Officer

in Senior Management Grade Scale IV would be the

Disciplinary Authority in respect of employees of

the Bank in Clerical and Subordinate staff cadre. In

the instant case the Chargesheet and Order were

issued by the Chief Manager who is an Executive in

Senior Management Grade Scale IV. Therefore, the

action of the Chief Manager as Disciplinary

Authority in issuing the Chargesheet/Order in

domestic inquiry and appointing the Presiding

Officer is proper and valid.

12.

It is submitted that the copy of the statement of

witnesses Sh. Sunil Kumar Srivas, Mrs. Baddi and

Mr. Prashant Kumar Jain which were annexures to

Investigation Report and the said report was

forwarded to the workman alongwith the

Chargesheet dated 20.5.1995.

13.

In the domestic inquiry which has Quasi Judicial

procedure, enforcement of outside witness is often

rendered difficult. The Management made all

possible efforts to produce the two outside

witnesses i.e. Sh. Sunil Kumar Srivas and Mr.

Prashant Kumar Jain but were not successful in their

efforts. The statements earlier recorded have not

been disputed by the workman and were

corroborated by the then Branch Manager Jabalpur.

The statement of Smt. Baddi on the other hand was

confirmed by her during the inquiry and marked as

Exh. M-14.

14.

The claim filed by the workman is denied in its

totality and also the Affidavit by way of evidence is

also denied. The allegation made by the workman

that the Enquiry Officer was biased against the

workman is wrong and denied. The workman in his

claim referred to the stage of questioning by the

Enquiry Officer. It is the settled position of law that

where the workman has not got himself examined as

a witness, the Enquiry Officer is right in questioning

the workman at the incriminating circumstances

appearing against him, which also provide yet

another opportunity to the workman either to rebut

or clarify the incriminating evidence appearing

against him. Such a questioning by the Enquiry

Officer cannot be alleged as illegal.

15.

It is submitted that the charges established against

the workman are serious, warranting punishment

from services. There was no extenuating mitigating

circumstances to take lenient view in order to

interfere with the punishment imposed on the

workman.

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[PART II—SEC. 3(ii)]

16.

It is submitted that preliminary inquiry was valid,

proper and preliminary issue be decided in favour of

the Management.

Written Argument of workman is as follows:—

That the workman while working as clerk in Faridabad

Branch of the Corporation Bank was issued with a

charge sheet dated 20.5.1995 alleging that with the

malafide intention, in collusion with Sh. Sunil Kumar

Srivas manipulated the opening of Saving Bank

Account as 3383 in the name of Shri Badri Prasad

Srivas to facilitate encashment of the said cheque

and attempted to defraud the Bank. Although the

charge sheet dated 20.05.1995 provided for filing

reply to the said charges, yet since the management

had already made up and exhibited its mind to

proceed with the inquiry without waiting the reply

of the workman to the charges alleged, as such,

calling for reply to the charge sheet was sham and

mere formality.

That before issuing the charge sheet the workman

was neither associated with any preliminary Enquiry/

Investigation nor communicated that proceedings

the issuing of charge sheet some investigations have

been made an during such investigation, the

investigating officer has recorded the statement of

same individual or some documents in criminating

the workman have been collected by such

investigation office on whose report the charge

sheet appears to have been based.

That although the charge sheet contains the names

of five persons as witnesses of the management,

yet the management closed their evidence by

examining three witnesses namely Sh. G.Prabhakar

Nayak, Capt. V.K. Wadhwa (both officers of the bank)

and one Smt. Baddi by dropping Sh. Sunil Kumar

Srivas and Sh. Prashant Kumar Jain. It is further

relevant to submit here that in the present case

Sh. Sunil Kumar Srivas and Sh. Prasant Kumar Jain

were only the key witnesses for establishing the

charges leveled against the workman but same were

not produced before the enquiry officer, which is

illegal in the eyes of principle laid down by Supreme

Court in the case of Brielly Electric Supply Co. Ltd.,

Versus Workman 1971(2) SCC 617 has held as

follows:-

“No material can be relied upon to established a

contested fact which are not spoken to by persons

who are competent to speak about them and are

subjected to cross-examination by the party against

whom they are sought to be used.”

It is further relevant to mention here that, it is well

settle principle of law that failure to examine single

witness on whose testimony entire case rests,

vitiates whole enquiry as laid down in the case of

P.N. Mukherjee versus Union of India reported in

225 Swamy’s case law digest 1993 page No. 346 and

in the present case the main witnesses Sh. Sunil

Kumar Srivas and Sh. Prashant Kumar Jain who

could testify to the effect that the workman played

any role to opening of the account.

That it is important to submit that the workman was

not supplied the copy of the Enquiry officer report

before passing the provisional orders of the

disciplinary authority dated 7.3.1996 as well as along

with the provisional order dated 7.3.1996 and non-

supplying the Enquiry officer report before passing

the final order is illegal in the eyes of law.

That it is relevant to submit here that the disciplinary

authority as well as appellate authority not applied

their mind before the passing the orders and they

reproduced the observation of Enquiry Officer in

their order, which are not speaking orders and

therefore same are liable to be quashed.

That it is submitted that the disciplinary authority

passed the impugned dismissal order on the basis

of past record, which was not part of the charge

sheet and which was not produced before the

Enquiry Officer and therefore the impugned order of

dismissal is illegal.

That both impugned orders dated 7.3.1996 passed

by the purported disciplinary authority and the order

dated 6.9.96 passed by the purported appellate

authority are illegal, wrong, against the principle of

natural justice, fair play and equity hence void and

in operative, inter-alia on the following grounds:-

(a)

that the whole enquiry proceeding are rendered

void as being conducted by a person who

was not a validity appointed enquiry officer

in terms of para 19.14 of bipartite settlement

as the name of the enquiry officer for Faridabad

Branch, of the bank as well as the name of the

disciplinary authority for the that purpose was

never notified or circulated either on the notice

board of the branch, or to the staff of the

branch. In view of the statutory infirmity the

whole enquiry proceeding are rendered void

and any punishment proceeding from such

proceeding is rendered nugatory and non-

established.

(b)

That the enquiry officer was baised, interested

and heavily leaning in favour of the

management acting as other agent is obvious

from the proceeding of enquiry itself. He was

acting both as prosecutor and judge at the

same time, is apparent from his malicious action

of subjecting the workman to cross-examine

him even before the workman entered his

defence and appeared as his on witness. This

was purposefully done by the biased and

interested enquiry officer in order to prejudice

the defence of the workman.

(c)

The enquiry officer in this report mentioned

“The crucial aspects to be determined would

be whether the C.S.O. knew the identity of

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Sunil Kumar Srivas...” This crucial aspect has

been determined by the Enquiry Officer with

conclusion that since no other official of the

bank know the identity of Sunil Kumar Srivas,

as such it is only the undersigned-workman

who know the identity of Sh. Sunil Kumar

Srivas. This conclusion of the Enquiry Officer

is a legal affront.

(d)

The Enquiry Officer in order to infuse the life

in otherwise dead case of the bank has biased

his conclusions against the documentary

evidence on the record. Regarding the entering

of draft by workman and allotting the SB

Account No. this approach on the part of the

Enquiry Officer is legally unwarranted.

(e)

With prejudice to what has been submitted

above, it is earnestly submitted that the

punishment inflicted on the undersigned is

disproportionate to the charge alleged. The

undersigned workman has throughout

performing his duties with devotion and has

earned the laurels in the shape of certificate

from the bank for mobilizing the deposit for

the bank. This single lapse even if it is so

assumed should not terminate the career of

the workman.

(f)

It is therefore, prayed that the order dated

7.5.1996 passed by the disciplinary authority

and order dated 6.9.96 passed by the appellate

authority may be declared illegal, wrongful

and against principles of natural justice, fair

play and equity by re-instating the workman

to his post of typist-cum-clerk with benefit of

full back wage continuity of service and

attendant benefits.

Issue No.1. was heard and decided by me as

preliminary issue on the basis of evidence of the parties.

Which was decided on 9/12/2013 against workman

and in favour of management and domestic enquiry report

dated 16.1.1996 submitted by Sh. S.V.S Dattatreya enquiry

officer was found just, proper and legal. On the basis of

enquiry report disciplinary authority awarded punishment

of dismissal to workman Sh. Rajender Kumar Mawal. On

7/5/1996 which was confirmed by appellate authority on

6/9/1996. Thereafter this tribunal fixed 16.12.2013 for

argument on the point of proportionality of punishment.

But Ld A/R for the workman vehemently argued on

21.1.2014 that workman has never been punished in his

whole service carrier except the instant case. That

punishment imposed on workman in the instant case is

excessive and harsh so liable to be modified to stoppage

of few increments on the basis of principle laid down in

the following ruling and order of O.A. No. 3660/2012

decided on 31.10.2013 by principal bench of Central

Administrative Tribunal.

1. Chandra Vilash Rai V/s State of Bihar and others

(2003) 11 Supreme Court Cases 741

While on the otherhand Ld A/R for the management

on 12.3.2014 replied that punishment imposed on workman

is just, proper and legal in the instant case as the workman

with Ulterior Motive enchased the banker’s cheque of Rs.

2 Lacs prompted and assisted by Sh. Sunil Kumar Srivas

to open a Saving Bank Account in the name of the payee

of the cheque, allotted SBI Account No. 3383 thereto

without placing the relevant documents before the branch

officials for verification, and authorization to open the

Account and accepted cheque for Rs. 2 Lacs to the credit

of the said Account. The said actions were tentamount to

doing acts prejudicial to the interest of the bank which is

gross misconduct.

As well as appeal filed by workman against his

punishment has also been dismissed on merits by appellate

authority on 6/9/1996. Principle laid down in cited ruling

on behalf of workman is inapplicable due to

distinguishable facts.

So workman deserves no sympathy on the point of

punishment. Hence his punishment is not liable to be

modified.

In the light of contention and counter contention I

perused the pleading of the parties , their evidence on

record, written arguments as well as principal laid down in

cited ruling and settled law on the point and provision of

Section 11 A Industrial Dispute Act and case law based

on this section.

Although ruling cited on behalf of workman is

inapplicable due to distinguishable facts.

But perusal of record shows that in the instant case

punishment of dismissal has been awarded to workman

which is in itself maximum punishment. So, penalty is

extreme and harsh.

It is also relevant to mention here that in case of

dismissal person dismissed becomes disentitled to almost

all pecuniary service benefits.

Which not only affects to dismissed person but

materially and financially affects the family members of

the dismissed person. Admittedly workman is not previous

convict so punishment of dismissal of workman is liable

to be modified.

On the basis of aforesaid discussion I am of

considered view that punishment of dismissal of workman

Sh. Rajender Kumar Mawal is liable to be modified to

punishment of discharge (removal). Which is accordingly

modified.

Reference is accordingly decided. Award is accordingly

passed.

Dated:-25.3.2014

HARBANSH KUMAR SAXENA, Presiding Officer

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