x`g ea=kky;

(jktHkk"kk foHkkx)

ubZ fnYyh] 3 twu] 2014

dk-vk- 1609-—jktHkk"kk (la?k ds 'kkldh; iz;kstuksa ds

fy, iz;ksx) fu;e 1976 ds fu;e 10(4) ds vuqlj.k esa dsanz

ljdkj is;ty ,oa LoPNrk ea=kky; dks ftlds 80 izfr'kr ls

vf/d vf/dkfj;ksa ,oa deZpkfj;ksa us fganh dk dk;Zlk/d Kku

izkIr dj fy;k gS] vf/lwfpr djrh gSA

¹la- 12022@2@2013&jk-Hkk-@dk-&2º

gfjUnz dqekj] funs'kd (dk-)

MINISTRY OF HOME AFFAIRS

(Department of Official Language)

New Delhi, the 3rd June, 2014

S.O. 1609.—In pursuance of Rule 10(4) of the Official

Language (Use for official purposes of the Union) Rule

1976, the Central Government hereby notifies Ministry of

Drinking Water and Sanitation Affairs, where more than

80% staff has acquired the working knowledge of Hindi.

[No. 12022/2/2013-OL/Impl.-II]

HARINDER KUMAR, Director (Implementation)

2171 GI/2014

(4311)

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- 23]

ubZ fnYyh, twu 1—twu 7] 2014] 'kfuokj@T;s"B 11—T;s"B 17] 1936

No. 23]

NEW DELHI, JUNE 1—JUNE 7, 2014, SATURDAY/JYAISTHA 11—JYAISTHA 17, 1936

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

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

Hkkx II—[k.M 3—mi&[k.M (ii)

PART II—Section 3—Sub-section (ii)

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

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

(Other than the Ministry of Defence)

ukxj foekuu ea=kky;

(,,vkbZ vuqHkkx)

ubZ fnYyh] 24 ekpZ] 2014

dk-vk- 1610-—Hkkjrh; foekuiRru izkf/dj.k vf/fu;e]

1994 (1994 dk la[;k 55) ds [k.M&3 esa varfoZ"V 'kfDr;ksa dk

iz;ksx djrs gq, dsUnz ljdkj ,rn~}kjk rRdky izHkko ls Jh ,l-

epsUnzukFku] HkwriwoZ ,l,l ,.M ,iQ,] ukxj foekuu ea=kky; ds

LFkku ij lqJh ,e- lR;orh] vij lfpo ,oa foÙk lykgdkj] ukxj

foekuu ea=kky; dks Hkkjrh; foekuiÙku izkf/dj.k cksMZ esa va'kdkyhu

lnL; ds :i esa fu;qDr djrh gSA

¹la- ,oh&24015@5@2013&,,vkbZº

lS;n bejku vgen] voj lfpo

MINISTRY OF CIVIL AVIATION

(AAI Section)

New Delhi, the 24th March, 2014

S.O. 1610.—In exercise of the powers conferred

under Section 3 of the Airports Authority of India Act, 1994

4312

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

(No. 55 of 1994), the Central Government hereby appoints

Ms. M. Sathiyavathy, Additional Secretary and Financial

Adviser in the Ministry of Civil Aviation, as part-time

Member on the Board of Airports Authority of India vice

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

(miHkksDrk ekeys foHkkx)

(Hkkjrh; ekud C;wjks)

ubZ fnYyh] 27 ebZ] 2014

dk-vk- 1611-—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e (1) ds [kaM ([k) ds vuqlj.k esa Hkkjrh; ekud C;wjks

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

vuqlwph

Øe la[;k

l~Fkkfir Hkkjrh; ekud

Lk~Fkkfir frfFk

Hkkjrh; ekud (dksa) tksfd

jí gksus dh frfFk

(dksa) dh la[;k o"kZ vkSj

jí gksus gS] vxj gS]

'kh"kZd

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

(1)

(2)

(3)

(4)

(5)

vkbZ ,l 2112 % 2014 pkanh ,oa pkanh

30 vizSy] 2014

vkbZ ,l 2112 % 2003

30 tqykbZ] 2014

feJ/krq,a vkHkw"k.k@f'kYk~idkjh&'kq¼rk

,oa eqgjkadu & fof'k"V (rhljk iqujh{k.k)

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

ubZ fnYyh] dksydrk] p.Mhx<+] psUubZ] eqEcbZ] rFkk 'kk[kk dk;kZy;ksa% vgenkckn] caxykSj] Hkksiky] Hkwous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn]

t;iqj] dkuiqj] iVuk] iw.ks rFkk fr:ouUrkiqje esa fcØh gsrq miyC/ gSaA Hkkjrh; ekudksa dks http://www.standardsbis.in }kjk baVjusV ij

[kjhnk tk ldrk gSA

¹lanHkZ% PUB/STD/2:3º

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

MINISTRY OF CONSUMER AFFIRS, FOOD AND PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

(BUREAU OF INDIAN STANDARDS)

New Delhi, the 27th May, 2014

S.O. 1611.—In pursuance of Clause (b) of sub-rule (1) of Rules 7 of the Bureau of Indian Standards Rules, 1987,

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

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

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

the date indicated against them in the fifth column.

SCHEDULE

Sl. No.

No. & Year of the Indian

Date of

No. & Year of the Indian

Date of

Standards Established

Establishment

Standards to be

cancellation

cancelled, if any

(1)

(2)

(3)

(4)

(5)

IS 2112 : 2014 Silver and Silver alloys,

30 April, 2014

IS 2112 : 2003

30 July, 2014

Jewellery/Artefacts-Fineness and

Marking- Specification (Third Revision)

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

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

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

Patna, Pune, Kochi.

[Ref : PUB/STD/2 :3]

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

Shri S. Machendranathan, former SS&FA, Ministry of Civil

Aviation, with immediante effect.

[F. No. AV. 24015/5/2013-AAI]

SYED IMRAN AHMED, Under Secy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4313

Je ,oa jkstxkj ea=kky;

ubZ fnYyh] 22 ebZ] 2014

dk-vk- 1612-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-lh-,y- ds

izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je

U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 96@1998) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 22@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&20012@743@1997&vkbZvkj (lh&I)º

ch- ,e- iVuk;d] MSLd vf/dkjh

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 22nd May, 2014

S.O. 1612.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 96/1998)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court No

1, Dhanbad as shown in the Annexure, in the Industrial

Dispute between the management of M/s. CCL and their

workmen, received by the Central Government on 22/05/2014.

[No. L-20012/743/1997-IR (C-I)]

B. M. PATNAIK, Desk 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

Reference No. 96 of 1998

Employer in relation to the management of Kargali

Colliery of M/s. CCL

AND

Their workman

Present : SRI R. K.SARAN, Presiding Officer

Appearances:

For the Employers

: Sri D.K. Verma, Advocate

For the Workman

: Sri B.B. Pandey, Advocate

State : Jharkhand

Industry : Coal.

Dated : 25-4-2014

AWARD

By order No. L-20012/743/1997-IR(C-I), dated

09/11/1998 the Central Govt. 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

“Kya Coalfield Mazdoor Union ki mang ki karmkar

Sri Mohammad Mayjuddin ko unke kanisth

karmkaro ke sath pdonnati tatha waristhta di jay

nayasangat hai?” yadi haa to karmakar kis tithi se

kis rahat ka patra hai?”

The case is received from the Ministry of Labour on

23.11.1998. After receipt of reference, both parties are

noticed. The Sponsoring Union files their written

statement on 17.09.1999. And the management files their

written statement -cum-rejoinder on 08.09.2000. The claim

of the workman is that he was working as general mazdoor

category I and he is to be promoted to category II which

has been ignored.

It is agreed by the management that before the ALC

that they will give chance to the workman to avail the

DPC. It is not known said chance has been given or not. In

the meantime 18 years has been elapsed.

Considering the facts and circumstances of this case,

It is ordered to enroll the name of the present workman at

bottom of the workman of category II. The award be

implemented soon after publication of the award in the

gazette.

This is my award.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 22 ebZ] 2014

dk-vk- 1613-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch-lh-lh-,y-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k

31@2003) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 22@05@2014

dks izkIr gqvk FkkA

¹la- ,y&20012@226@2002&vkbZvkj (lh&I)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 22nd May, 2014

S.O.

1613.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 31/2003)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court No

2, Dhanbad as shown in the Annexure, in the Industrial

Dispute between the management of M/s. BCCL and

their workmen, received by the Central Government on

22/05/2014.

[No. L-20012/226/2002-IR (C-I)]

B. M. PATNAIK, Desk Officer

4314

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

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. 31 OF 2003

Parties :

The Vice President,

Janta Mazdoor Sangh,

Vihar Building, Jharia (Dhanbad)

Vs.

Gen. Manager,

Sijua Area -V of

M/s. BCCL, Dhanbad

APPEARANCES:

On behalf of the

: Mr. K. N. Singh, Ld. Advocate

workman/Union

On behalf of the

: Mr. D. K. Verma, Ld. Advocate

Management

State : Jharkhand

Industry : Coal

Dated, Dhanbad, the 26th 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-

20012/226/2002-IR.(C-I ) dt. l 0.03.2003.

SCHEDULE

“Whether the action of the management of Mudidih

Colliery of M/s. BCCL, in dismissing Smt. Jaimala

Devi, Shale Picker from service vide order No. 90 dt.

7/8.1.2000 is proper and justified? If not to what

benefits is the concerned workman entitled?”

On receipt of the Order No. L-20012/226/2002-IR

(C-I) dt.10.03.2003 of the above mentioned reference from

the Government of India, Ministry of Labour, New Delhi

for adjudication of the dispute, the Reference Case No. 31

of 2003 was registered on 10th April, 2003 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 workwoman Jaimala Devi as sponsored

by the Janta Mazdoor Sangh is that she was a permanent

employee of Mudidih Colliey of M/s BCCL. She was served

with the charge sheet on 25/26.5.1999 for the allegation of

her fraudulently getting employment as second wife of ex-

employee. She was subsequently dismissed from service

w.e.f. 08.0l.2000.She submitted her reply, denying the

allegation but without considering it, she was immediately

suspended and the domestic enquiry in that regard was

conducted. The charge of misconduct in lack of its

ingredient was legally unmaintainable, as after her

sufficient long and satisfactory service. The Management

raised the issue about herself fake, and stopped her from

duty followed by the chargesheet.The charge sheet

No.2511/99 dt.25/26.9.1999 was vague, as it unrevealed

any nature of the misconduct even prescisely. Even her

dismissal letter without any factual basis was perverse

and prejudicial finding of the Enquiry Officer. She was

appointed under clause 9:4:2 of NCWA for the service in

the year 1993 after due verification and identification, as

her husband Rameshwar Dusadh, a permanent switchman

of the colliery, had expired in harness on 15.2.1987 and she

had been working as Shale Picker at Mudidih Colliery. She

had fully satisfied the management about her identity duly

certified by the Competent Authority. Since her marriage

was solemnized as per the Hindu rites and custom prevalent

in the Society. She is legal wife of the ex-employee evident

from her nomination recorded in the service of the ex-

employee as also from the certificate issued by the Pramukh

Panchayat Samittee,Karpi,and verification of her genuiness

by the Superintendent of Police, Jahanabad (Bihar). The

status of the ex-employee having two marriages: one with

Kauleshwari Devi and second with the concerned

workwoman was well known to the knowledge of the

Management prior to taking her into employment As the

first wife was leper and incapable to serve the management,

it was agreed that she would get the amount of Gratuity

and others of the ex-employee, and his service would be

given to the second wife (workwoman);as such the

workwoman was offered the employment on approval of

the Competent Authority of the Company. The Industrial

Dispute firstly raised for resumption of duty and payment

of wages on 21.12.2000, was converted into the dispute

against her dismissal before the A.L.C.(C),Dhanbad. But

failure in its conciliation resulted in the reference for an

adjudication. Thus the action of the Management in

dismissing the workwoman as per their letter No.90

dt.7.8.2000 is not justifiable.

The sponsoring Union in its rejoinder specifically

denied the allegations of the O.P./Management, and stated

the workwoman had got the employment with clean hand

being a wife and nominee of the ex- employee. The enquiry

was unfairly conducted and was not based on evidence.

The Management had miserably failed to prove the charge

against her by wrongly shifting the onus of proof on her.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4315

Whereas the contra case of the O.P./Management

with categorical denials is that the Industrial Dispute is

unmaintainable in Law and facts, and highly belated. The

workwoman entered into employment in BCCL at Mudidih

Colliery fraudulently as shale picker in place of Late

Rameshwar Dusadh Ex. S.B. Attendant of the Colliery

under clause 9.4.2. of NCWA-V, by presenting herself as

his legally married second wife. The act of her was

misconduct under the Certified Standing Order of the

Company. She was issued the charge sheet dt.25/26.6.1997

by the Management for her misconduct. She replied to it

but her reply was found unsatisfactory. Sri A.N.P. Ambasta,

Personnel Manager of the Colliery appointed as the

Enquiry Officer by the Management fairly conducted the

domestic enquiry according to the principle of natural

justice, and submitted his enquiry report, holding her guilty

of the charges levelled against her. The Disciplinary

Authority after considering the enquiry report decided to

dismiss her. She had fully participated along with her

Defence Representative in the domestic enquiry. So the

dismissal of the workwoman is legal and justified. She is

not entitled to any relief. The O.P./Management sought

permission to adduce evidence afresh to prove the charge,

if the domestic enquiry found unfair at the preliminary

hearing.

Denying categorically the allegations of the

workwoman, the O.P./Management has pleaded in rejoinder

that no workman is permitted to hold his second marriage

during the life time of his first wife.

FINDING WITH REASONS

In the instant case, at the preliminary point, the

Tribunal as per Order No. 39 dt. 27.6.2013 held the domestic

enquiry fair, proper and in accordance with the principle

of natural justice. Hence it directly came up for hearing

argument on merits.

Mr. K. N. Singh, the Union Representative cum

Advocate for the workwoman has to submit that admittedly

Ex-workman Rameshwar Dusadh had two wives: firstly

Kameshwari Devi who was a patient of leprosy, so his

second wife Smt. Jaimala Devi was provided the

employment on compassionate ground, and whose name

was recorded as his nominee in the service record of the

Ex-workman during his life time. It is also urged on her

behalf that at the time of the employment of the

workwoman, the first wife of the Ex-workman had also

given her own undertaking for it, and after full and

authentic verification, the workwoman was given

employment on 16.6.1993, but after lapse of 6 (six) years,

the action of the management for her dismissal from service

on the allegation of getting employment fraudulently, which

though arises not, is not at all justified. In response to it,

the contention of Mr.D.K.Verma, the Learned Advocate

for the O.P./Management is that as the charges of

misconducts levelled against the workwoman have been

crystally clearly proved, the punishment of her dismissal

for her fraudulent employment was quite just and proper.

After hearing the Learned Counsels for the

respective parties, I have gone through the materials

available on the case record, I find the indisputable facts

that workwoman Jaimala Devi has all along been claiming

to have got her employment as a Shale Picker in Cat. I

under the relevant clause of the NCWA in place of her

husband Late Ramehswar Dusadh, Ex-workman of Mudidih

Colliery. It is also an acknowledged fact that she was

married to him during the life time of Kauleshri Devi, the

first wife of the aforesaid Ex-workman. The Hindu Marriage

Act 1955 under Sec.5 prohibits the second marriage which

is null and void under its Sec.ll Under these circumstances

it stands prima facie fraudulently getting the employment

of the workwoman Jaimala Devi which was a grave

misconduct on her part under clause 26.1.12 of the Certified

Standing Order of the BCCL. So the punishment of her

dismissal for such grave misconduct was quite appropriate

in view of the nature of it. The workwoman does not

deserve any grace of relief under Sec. 11 A of the Industrial

Dispute Act, 1947.

In result, it is, in the terms of the reference, hereby

responded and accordingly.

ORDERED

That the action of the Management of Mudidih

Colliery of the M/s BCCL in dismissing Smt. Jaimala

Devi,Shale Picker from her service as per Order No.90 dt.

7/8.1.2000 is quite proper and justified. The workman

(workwoman) is not entitled to any benefits.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 22 ebZ] 2014

dk-vk- 1614-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,vj bf.M;k

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; ua- 2] eqEcbZ ds iapkV (lanHkZ la[;k 2@86

of 2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 22@05@2014

dks izkIr gqvk FkkA

¹la- ,y&11012@14@2005&vkbZvkj (lh&I)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 22nd May, 2014

S.O. 1614.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 2/86 of

2005) of the Cent. Govt. Indus. Tribunal-cum-Labour Court

No 2, Mumbai as shown in the Annexure, in the industrial

dispute between the management of M/s. Air India and

their workmen, received by the Central Government on

22/05/2014.

[No. L-11012/14/2005-IR (C-I)]

B. M. PATNAIK, Desk Officer

4316

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : K. B. KATAKE, Presiding Officer

REFERENCE NO. CGIT-2/86 of 2005

Employers in relation to the management of

Air India Ltd.

The Chairman-cum-Managing Director

Air India Ltd.

Old Airport

Santacurz (E)

Mumbai-400 029

AND

THEIR WORKMEN

The President

Air India Employees Guild

Old Airport

Santacruz (E)

Mumbai-400 029.

APPEARANCES :

FOR THE EMPLOYER : Ms. Geeta Raju, Advocate i/b.

M/s. M.V. Kini & Co.

FOR THE WORKMAN : Mr. P. B. Kakade, Advocate

Mumbai, dated the 10th February, 2014

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No.L-11012/14/2005-IR (C-I),

dated 02.06.2005 in exercise of the powers conferred by

clause (d) of sub-section (1) and sub-section 2 (A) of

Section 10 of the Industrial Disputes Act, 1947 have referred

the following industrial dispute to this Tribunal for

adjudication:

“Whether the demand of the Air India Employees

Guild from the management of Air India that Sh. S.

U. Chandan Shive be appointed as Trainee

Technician with all consequential benefits w.e.f 1984

justified? If so, to what relief is the workman

entitled?”

After receipt of the reference, notices were issued

to both the parties. Both the parties appeared before the

Tribunal. However the second party union did not file the

statement of claim. Therefore the reference was dismissed

for want of prosecution. Thereafter the workman has filed

Miscellaneous Application. The said application was

allowed and the reference was restored. The workman has

filed his statement of claim at Ex-19.According to him he

was employee of the first party. Before that he was serving

in Indian Army. Before retirement he successfully did the

diploma course of Vocational Trades from Ordinance

Factory, Kanpur for the trade of Fitter. He has also

completed the course of Army Educational Corps. While

he was serving with first party he had applied for

promotion. However he was victimised by the management

and they did not promote him to the post of Trainee

Technician. Therefore he prays for declaration that he is

entitled for promotional benefits of the said post w.e.f.

1984 and claims arrears of full back-wages w.e.f. 1984.

The first party resisted the statement of claim vide

its written statement Ex-23. According to them there is in

ordinate delay in raising the dispute. They further

contended that the workman retired on 31/05/2009 on

reaching the age of superannuation and since then he is

not in the employment of the first party. Therefore reference

is not tenable. They further contended that, though the

dispute was raised by the union, the union did not pursue

the reference. Therefore it was dismissed for want of

prosecution. The workman has applied for restoration and

after restoration he himself has filed the statement of claim.

Neither union pursued the matter nor filed statement of

claim. It is the dispute in respect of promotion and the

same cannot be raised by individual workman. For all these

reasons according to the first party the reference is not

maintainable.

They further contended that the workman could not

be promoted to the post of Trainee Technician or as a

Bench Fitter as he was not qualified for the said post. The

requisite qualification for appointment to the post of

Trainee Technician in the year 1984 was SSC or its

equivalent with minimum three years’ experience as a

cleaner in Engineering Department. The workman was not

qualified for the post in the year 1984. Again in the years

1989 and 1999 and 2000 and 2002 there were employment

notices. However the workman was not qualified for the

post. Therefore he was not promoted. His claim that he

was victimised is not sustainable. Therefore they pray

that the reference be rejected.

Following are the issues for my determination. I

record my findings thereon for the reasons to follow.

Sr.

Issues

Findings

No.

Whether the employee Shri

No.

S.U.Chandanshive was eligible

and deserves to be Promoted to

the post of Trainee Technician

w.e.f. 1984?

Whether he was superseded high

No.

handedly and illegally?

Whether the workman is entitled

No.

to monetary benefit since 1984 as

claimed for?

What order?

As per

order below.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4317

REASONS

Issues Nos. 1 to 3

All these issues are interlinked. Therefore in order

to avoid repetition of discussion they are discussed and

decided simultaneously. In the case at hand the fact is not

disputed that the workman was an Ex-serviceman and has

undergone vocational training at Ordinance Factory,

Kanpur. The fact is also not disputed that after retirement

he joined the services with the first party since 1984.

According to the workman he was victimised and not given

promotion though he was entitled to get the same. He has

not given any circumstance as to why he was victimised.

On the other hand the workman is claiming promotion

since 1984 and dispute for the same was raised in the year

2005. No explanation is offered for such a long delay in

raising the dispute. There is also no reason offered by the

workman as to why and who victimised him. That apart he

has not even contended by leading evidence to show that

he was eligible to the post of Trainee Technician and inspite

of that he was not promoted.

In this respect after perusing the staff notices Ex-31

to 35 for selection to the post of Trainee Technicians, it is

revealed from Ex- 31 that, the qualification for the post of

Trainee Technician is mentioned as SSC or its equivalent

with a minimum of three years’ experience as a Cleaner in

the Engineering Department as on 01/02/1984. In this

respect the workman himself has admitted in his cross at

Ex-27 that he has passed 9th Std. and has also passed

Diploma of Fitter Trade. In the year 1984 when staff notice

dated 20/02/1984 was issued for the post of Trainee

Technician, neither workman had passed SSC nor he had

three years’ experience in the Engineering Deptt. as he

has joined in 1983.

In respect of the second staff notice (Ex-32) dated

24/10/1989 for selection of Trainee Technician, the

educational qualification is given SSC or its equivalent

examination and a specific note was given thereunder that

non SSC or non-matric will not be considered for the

selection and they should not apply.

The third employment notice was given on

15/12/1999 (Ex-33), fourth notice (Ex-34) was given on

26/8/2000 and fifth notice (Ex-35) was given on 2/5/2002.

As per the third notice (Ex-33), the minimum educational

qualification was candidate must be diploma holder for

Trainee Technician and Higher Secondary or equivalent

and diploma in Electronics and Radio Engineering. For

Trainee Technician (Bench Fitter) the minimum qualification

was prescribed SSC and ITI/NCTVT in the trade of Bench

Fitter from Industrial Training Institute with five years full

time experience.

10.

As per the fourth notice (Ex-34), the minimum

educational qualification was the candidate must be

diploma holder in Mechanical/Electrical/Electronics/

Instrumentation/Production Engineering awarded by the

Director of Technical Education of State Government and

Higher Secondary or equivalent diploma in Aircraft

Maintenance Engineering of three years duration and for

Trainee Technician (ITI/NCTVT) Bench Fitter, the

qualification is prescribed SSC and ITI/NCTVT Certificate

in the trades of Bench Fitter/Turner/Miller/Machinist/

Welder from Industrial Training Institute.

11.

As per the fifth notice (Ex-35) the requisite

qualification for Bench Fitter was Training of Bench Fitter

from Industrial Training Institute or Apprenticeship in any

organisation under Apprenticeship Act 1957 with NCTVT

Certificate and five years full time experience including

Training. The workman herein has obtained NCTVT

Certificate at Ex-38. However he has not completed training

of Fitters from Industrial Training Institute. Therefore as

per notice Ex-35 he was not qualified for the post of Bench

Fitter. The workman has also not passed the SSC

examination which was the requisite qualification for the

post of Trainee Technician as mentioned in the notices

Ex-32 to 34. Admittedly he is educated only upto 9th Std.

Therefore the workman was not qualified for the said post.

Therefore he was not promoted and the management need

not be blamed for the same. Furthermore there is no reason

to victimise the workman.

12.

In the circumstances I come to the conclusion that,

the workman was neither eligible nor deserve to be

appointed as Trainee Technician. Consequently I also hold

that he was not superseded high handedly and illegally.

Therefore he is not entitled to the monetary benefit since

1984 as claimed for. Accordingly I decide these issues

nos. 1 to 3 in the negative and proceed to pass the following

order:

ORDER

The reference stands rejected.

Date : 10/02/2014

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 22 ebZ] 2014

dk-vk- 1615-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-lh-,y- ds

izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je

U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 61@1994) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 22@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&20012@291@1993&vkbZvkj (lh&I)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 22nd May, 2014

S.O.

1615.—In pursuance of Section 17 of the

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

4318

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Government hereby publishes the Award (Ref. No. 61/1994)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.

1, Dhanbad as shown in the Annexure, in the industrial

dispute between the management of M/s. CCL and their

workmen, received by the Central Government on

22/05/2014.

[No. L-20012/291/1993-IR (C-I)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD

IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)

OF I.D. ACT, 1947.

Ref. No. 61 of 1994

Parties : Employers in relation to the management of

Ara Colliery, M/s. CCL

AND

Their workmen

Present : SRI RANJAN KUMAR SARAN,

Presiding officer

Appearances:

For the Employers

: None

For the workman

: None

State : Jharkhand

Industry : Coal

Dated : 21/3/2014

AWARD

By Order No. L-20012/291/93 -IR (C-I), dated

24/03/1994, 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 Ara

Colliery of M/s. C. C. Ltd., terminating the service of

Shri Chawra Ram, piece rated worker, S/o Late Karia

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

entitled?”

After receipt of the reference, both parties are

noticed, they submitted their claim statement, rejoinder

and document. The parties appearing for certain dates

and thereafter none appears from either side. Therefore it

felt that there is no dispute between the parties. Hence

“No Dispute” award is passed, communicate.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 22 ebZ] 2014

dk-vk- 1616-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

,vjykbZul fyfeVsM ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds

deZdkjksa ds chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;&1] fnYyh ds iapkV

(lanHkZ la[;k 205@2011) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj

dks 22@05@2014 dks izkIr gqvk FkkA

¹la- ,y&11012@24@2004&vkbZvkj (lh&I)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 22nd May, 2014

S.O. 1616.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 205/

2011) of the Cent. Govt. Indus. Tribunal-cum-Labour Court

No. 1, Delhi as shown in the Annexure, in the industrial

dispute between the management of M/s. Sahara Airlines

Ltd., and their workmen, received by the Central

Government on 22/05/2014.

[No. L-11012/24/2004-IR (C-I)]

B. M. PATNAIK, Desk Officer

ANNEXURE

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

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 205/2011

Shri Bhupender Kumar through

Private Transport Workers Union,

A-1, 435, Madhu Vihar,

New Delhi.

.....Workman

Versus

M/s. Sahara Airlines,

3rd Floor, Dr. Gopal Dass Bhawan,

28, Barakhamba Road,

New Delhi-11 0001.

....Management

AWARD

M/s. Sahara Airlmes (in short the Airlines) appointed

a driver on 10.02.2001. He was to be on probation/training

for a period of 12 months from the date of his joining.

During period of probation, the driver remained

unauthorizedly absent with effect from 03.08.2001. Since

he failed to resume duties for more than four months, his

name was struck off the roll in December 2011. Aggrieved

by the said, the driver raised a demand on the Airlines for

reinstatement of his services. When the Airlines did not

respond to his demand, he raised an industrial dispute

before the Conciliation Officer. Since the dispute was

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4319

contested by the Airlines conciliation proceedings failed.

On consideration of failure report, submitted by the

Conciliation Officer, the appropriate Government referred

the dispute for adjudication to the Central Government

Industrial Tribunal No. 2, New Delhi, vide order No.

L-11012/24/2004-IR(C-I), New Delhi dated 26.04.2005, with

following terms of reference:

^^D;k izkbosV VªkaliksVZ odZlZ ;wfu;u dh lgkjk ,vjykbal

fyfeVsM ds izcU/ra=k ls ekax fd deZdkj Jh HkwisUnz oqQekj

dks fnukad 18&10&2001 ls lsok esa iw.kZ osru lfgr

iqj%LFkkfir fd;k tk, mfpr ,oa U;k;laxr gSa\ ;fn gka rks

deZdkj fdl jkgr ds ik=k gSa\**

Claim statement was filed by the driver, namely, Shri

Bhupender Singh, pleading that he was employed as a

driver by the Airlines on 01-01-2001. He worked to entire

satisfaction of his supervisors and never gave a chance

of complaint. However, his services were abruptly

terminated on 18.10.2001 illegally, arbitrarily and without

following due process of law. No charge sheet was served

on him. His earned wages for the period 01.09.2001 to

17.10.2001 were also not paid. He regularly approached

the Airlines, seeking reinstatement in service, but his

request felt on deaf ears of the authorities. He raised a

notice of demand on 04.08.2003 claiming reinstatement in

services as well as for payment of his earned wages for

the period from 01.09.2001 to 17.10.2001. The Airlines opted

to keep mum. He is unemployed from the date of his

termination. Action of the Airlines was violative of the

provisions of Section 25F and 25H of the Industrial

Disputes Act 1947. He seeks reinstatement in services of

the Airlines with all consequential benefits.

Claim was demurred by the Airlines pleading that

the claim is baseless, hopelessly stale, misconceived and

devoid of justification. The claimant was appointed as a

driver vice appointment letter datd 01.01.2001, on

probation/training for a period of 12 month from the date

of his joining at a consolidated salary of Rs. 2860.00. The

claimant joined services with the Airlines on 10.02.2001.

On 03.08.2001, the claimant proceeded on leave without

any prior intimation or sanction of leave from the

competent authority and did not resume his duties

thereafter. After waiting for four months his name struck

off the rolls in December 2001, i.e. during the period of

probation. The claimant had not put in 240 days continuous

servcie. Law is well settled that dispensing of servcies of

a workman during period of probation does not amount to

retrenchment. During the short span of probation, servcies

of the claimant was far from satisfactory. He is not entitled

to any wages for the period from 01.09.2001 to 17.10.2001.

He is not entitled to any relief, muchless the relief of

reinstatement in service. His claim may be discarded, being

devoid of merits, pleads the Airlines.

Vide order No. Z-22019/6/2007-IR (C-II) New Delhi

dated 30.03.2010, the case was transferred to this Tribunal

for adjudication by the appropriate Government.

In order to establish his claim, the claimant enteres

the witness box to testify facts. Shri Bharat Bhushan

entered the witness box to depose facts on behalf of the

Airlines. During course of his cross examination, parties

submitted that there was chance of settlement. In view of

these facts the Tribunal associated itself in process of

settlement. Ultimately an amicable settlement was arrived

at between the parties, contents of which are detailed in

subsequent sections.

Claimant made a statement on oath that he is ready

to settle his grievances with the Airlines in case a sum of

Rs. 85,000.00 is paid to him towards full and final settlement

of his claim relating to reinstatement in service, notice

pay, retrenchment compensation, payment of wages,

payment of leave encashment and other statutory benefits.

He announced that on payment of Rs. 85000.00 to him, his

claim would stand satisfied. Shri Anil Bhat, authorised

representative of the Airlines, unfolded that the Airlines is

ready to pay a sum of Rs. 85000.00 to the claimant towards

full and final settlement of his claim, made in the present

dispute.

Out of facts detailed by the parties it crystallized

that on payment of Rs.85000 the claimant will feel satisfied

and his grievances relating to reinstatement in service,

notice pay, retrenchment compensation, wages, payment

of leave encashment and other statutory benefits would

come to an end. The Airlines had agreed to pay a sum of

Rs.85,000.00 to the claimant, within 20 days, towards full

and final settlement of claim of the claimant which

undertaking would be complied with. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dated : 01.04.2014

Dr. R. K. YADAV, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1617-—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; ua- 1] p.Mhx<+ ds iapkV (lanHkZ la[;k

140@2013) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014

dks izkIr gqvk FkkA

¹la- ,y&22011@13@2013&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O.

1617.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 140/

2013) of the Cent. Govt. Indus. Tribunal-cum-Labour Court

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

4320

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

industrial dispute between the management of Food

Corporation of India, District Office, and their workmen,

received by the Central Government on 26/05/2014.

[No. L-22011/13/2013-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI SURENDRA PRAKASH SINGH,

PRESIDING OFFICER, CENTRAL GOVT.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,

CHANDIGARH

Case No. ID 140 of 2013,

Reference No. L-22011/13/2013-IR(CM-II)

dated 24.12.2013

The General Secretary,

FCI Handling Workers Union,

8651, Arakashan Road, Pahar Ganj,

New Delhi-110055

...Union

Versus

The Area Manager,

Food Corporation of India,

District Office, Faridabad,

NH-2, NIT, Faridabad (Haryana) Faridabad

The General Secretary,

Food Corporation of India

Handling Workers’ Union,

8651, Arakashan Road,

Pahar Ganj, New Delhi-110055

The General Manager (Regional),

FCI Regional Office, Haryana,

SCO-29-32, Sector-4,

Panchkula (Haryana)

...Respondents

Appearances :

For the Workman

None

For the Management

None

AWARD

Passed On : 8.5.2014

Government of India Ministry of Labour vide

notification No. L-22011/13/2013-IR(CM-II) dated

24.12.2013 has referred the following dispute to this

Tribunal for adjudication:

Term of Reference:

“Whether the action of the management of Food

Corporation of India in preparing the list of 135

workers (list attached) of the FCI, FSD Palwal over

the issue of induction of 33 Workers (24 Handling

and 9 Ancillary Workers) without considering the

objection of the Union with the supporting

documents along with enlisted workmen (list

attached) is just, proper and illegal? To what relief

the concerned workman is entitled to and from which

date?”

On receipt of the reference, notices were issued to

both the parties. But none appeared. Again notice through

registered post has been issued for today but none

appeared today for the parties. No claim statement has

been filed. It appears that parties are not interested in

pursuing the present reference.

In view of the above, the present reference is

returned to the Central Govt. for want of prosecution as

such. Central Govt. be informed. Soft as well as hard copy

be sent to the Central Govt. for publication.

Chandigarh

8.5.2014

S. P. SINGH, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1618-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w- 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;] ukxiqj ds iapkV (lanHkZ la[;k 96@2005)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@25@2005&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O.

1618.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 96/2005)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Nagpur as shown in the Annexure, in the industrial dispute

between the management of Rawanwara Khas Colliery of

WCL, and their workmen, received by the Central

Government on 26/05/2014.

[No. L-22012/25/2005-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/96/2005

Date : 25.04.2014

Party No. 1: The Manager,

Rawanwara Khas Colliery of WCL,

Pench Area, Post : Dihavani,

Chhindwara (MP).

Versus

Party No. 2: Shri Bhagatsingh Sakravar,

General Secretary,

SKMS (AITUC), CRO Camp,

Iklehara, Chhindwara (MP).

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4321

AWARD

(Dated : 25th April, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Shri Satyanarayan

S/o Rajdhari, for adjudication, as per letter No.L-22012/25/

2005-IR (CM-II) dated 29.11.2005, with the following

schedule:-

“Whether the action of the management of

Rawanwara Khas Colliery of WCL, Pench area Post

Dihavani, Distt. Chhindwara in terminating the

services of Shri Satyanarayan, S/o Rajdhari, Ex-Tub

Loader w.e.f. 26.05.2001 is legal and justified? If not,

to what relief is the workman is entitled?”

On receipt of the reference, parties were noticed to

file their respective statement of claim and written

statement, in response to which, the workman, Shri

Satyanarayan S/o Rajdhari, (“the workman” in short)

through his union, “SKMS (AITUC)”, (“the union” in

short) filed the statement of claim and the management of

WCL, (“party no.1” in short) filed the written statement.

The case of the workman as presented by the union

in the statement of claim is that the workman was working

as a tub loader for many years in Parasia Colliery of Pench

area and previously, he was working in the underground

of Shivpuri Colliery, but as he remained ill, he was

transferred to Ravanwara Khas Colliery and party no.1

issued the charge sheet dated 20.09.2000 against the

workman and the workman submitted his reply to the

charge sheet on 21.09.2000, stating therein of his remaining

absent after taking leave and the workman attended the

departmental enquiry alongwith his co-worker and informed

the enquiry officer about the reasons of his remaining

absent and on 13.09.2000, the workman had submitted an

application alongwith the documents regarding his illness

and treatment to the management and had prayed for

allowing him to resume duties and before the enquiry

officer and management representative, the workman

adduced his evidence in his defence and he was also cross-

examined and as the workman received information to go

to his village, he applied for adjournment of the

departmental enquiry and went to his village and he could

not able to attend the departmental enquiry on the next

date and in the enquiry report, though it was mentioned

that the next date of the enquiry would be intimated to the

workman in his village address, actually neither any

intimation was sent to him nor the enquiry officer waited

for his return, which clearly indicates that management

was predetermined to terminate the services of the workman

and management was successful in its intention and

completed the departmental enquiry without observing

the principles of natural justice and even though, the

departmental enquiry was in progress and the enquiry

officer himself had told to intimate the next date of the

enquiry to the workman, actually without giving the

workman any intimation, the enquiry was closed and as

the enquiry conducted by the party no.1 is quite illegal

and without any basis and against the standing order, the

same is liable to be set aside and quashed and the workman

is entitled for reinstatement in service with continuity and

full back wages.

The union has prayed to direct the party no.1 to

reinstate the workman in service with continuity and full

back wages.

The party no.1 in the written statement has pleaded

inter alia that as the workman is not a member of the

S.K.M.S. Union, the union has no locus standi to raise the

dispute on behalf of the workman and the dispute is highly

belated and not maintainable. It is further pleaded by the

party no.1 that the workman was working as a tub loader

at Rawanwara Khas Colliery and he was a habitual absentee

and he used to remain absent from duty on various

occasions, without any intimation/permission or

sanctioned leave and he remained absent from duty from

15.11.1999 till the date of the submission of the charge

sheet, without any intimation and as such, under the

provision of the Standing Order applicable to the colliery,

charge sheet dated 20.09.2000 was submitted against him

and the workman submitted his reply to the charge sheet

and his reply was found to be unsatisfactory, the

disciplinary authority decided to conduct the departmental

enquiry against the workman and accordingly, Shri

P.M.Lokhande was appointed as the Enquiry Officer to

conduct the enquiry and the Enquiry Officer fixed the

enquiry to 09.10.2000 and as on 09.10.2000, the workman

did not attended the enquiry, the enquiry was adjourned

to 18.11.2000 by the Enquiry Officer, to provide an

opportunity to the workman to participate in the enquiry

and the workman attended the enquiry on 18.11.2000 and

submitted an application to engage Shri Giridhari, the

Mining Sirdar as his co-worker and the Enquiry Officer

allowed the application and fixed the enquiry to 20.11.2000

and the workman attended the enquiry on 20.11.2000 and

requested for adjournment, on the ground of absence of

his co-worker, so the enquiry was adjourned to 21.11.2000

and though the workman attended the enquiry on

21.11.2000, he was not interested to participate in the

enquiry and he informed the Enquiry Officer to have

received a message to go to his village and for that he

would not be able to participate in the enquiry and another

date be given to him and on the request of the workman,

the Enquiry Officer gave a last chance to the workman to

attend the enquiry and adjourned the enquiry to 01.12.2000

at 04.30 P.M. and on 01.12.2000, though the Enquiry Officer,

management representative and witnesses for the

management were present, the workman did not turn up,

4322

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

so, the management representative requested the Enquiry

Officer to proceed with the enquiry ex-parte, but the

Enquiry Officer with a view to give on more last chance to

the workman, adjourned the enquiry to 02.01.2001 and as

the workman did not attend the enquiry on 02.01.2001, the

Enquiry Officer proceeded with the enquiry and the

management representative produced the documents and

oral evidence to prove the charges against the workman

and then the Enquiry Officer closed the enquiry

proceedings and submitted his report to the Disciplinary

Authority, holding the workman guilty of the charges and

the Disciplinary Authority after going through the

documents relating to the departmental enquiry agreed

with the findings of the Enquiry Officer and issued the

show cause notice to the workman, but the workman did

not submit any reply to the show cause notice, so, the

Disciplinary Authority after taking into consideration

about the past records of the workman, passed the order

of termination of the workman from services w.e.f.

26.05.2001 and the order was sent to the workman in his

local home address as well as permanent address vide

letter no.708/2001 dated 26.05.2001 under registered post,

which was received by the workman and the departmental

enquiry was conducted legally, properly and by following

the principles of justice and the order of termination of the

workman from services is not only correct, but also, proper,

legal and justified and the workman is not entitled to any

relief.

In the rejoinder, it is pleaded by the union that the

facts mentioned in paragraph two of the written statement

that the union is not entitled to raise the dispute is not

true, as there is no such provision in the Act and it is also

false to claim that the issue is highly belated, when the

reference has been made by the Government for

adjudication and the workman was not a habitual absentee

and he fell ill on15.11.1999, for which, he had submitted

application alongwith document in support of his illness

and he had taken leave for the same and the allegations

made against the workman were quite false and the charge

sheet submitted against the workman was not in

accordance with the provisions of the Standing Order and

the entire enquiry and the punishment imposed against

the workman are illegal and unconstitutional and are liable

to be set aside.

As this is a case of termination of the services of the

workman, after holding of a departmental enquiry against

him, the fairness or otherwise of the departmental enquiry

was taken up as a preliminary issue for consideration and

by order dated 28.11.2013, the enquiry conducted against

the workman was held to be legal, proper and in accordance

with the principles of natural justice.

At the time of argument, it was submitted by the

Union Representative that the charge sheet against the

workman was submitted under clauses 18.1 and 26.24 of

the Standing Order and there are no such clauses in the

Standing Order, which is in force at present and the entire

departmental enquiry conducted against the workman is

illegal and the workman is entitled for reinstatement in

service with continuity, full back wages and all other

consequential benefits.

It is necessary to mention here that no argument

was made on behalf of the Party No.1.

The argument advanced by the Union representative

is almost regarding the fairness of the enquiry. At the cost

of repetition, it is necessary to be mentioned here that by

order dated 28.11.2013, the departmental enquiry

conducted against the workman has already been held to

be valid and in accordance with the principles of natural

justice. Hence, there is no scope to consider again the

submission made by the Union representative regarding

the fairness of the enquiry. So far the contention regarding

submission of the charge sheet under clauses 18.1 and

26.24 is concerned, on perusal of the charge sheet, it is

found that the submission made by the Union

representative in that regard is not at all true and the same

has no force, as the charge sheet was not submitted under

clause 18.1, but the same was submitted against the

workman only under clause 26.24 of the Standing Order,

which was and is in force and which deals with, “ Habitual

late attendance or habitual absence” from duty without

sufficient cause.

Before delving into the merit of the matter, I think it

necessary to mention the principles envisaged by the

Hon’ble Apex Court in different judgments in regard to

the jurisdiction and power of the Tribunal to interfere with

the findings in a departmental enquiry and punishment

imposed against the delinquent workman.

“It is well settled that departmental enquiry is not

based by strict rules of Evidence Act, but by fair

play and natural justice and only total absence, but

not sufficiency of evidence before Tribunal is

ground for interference by court. It is also well settled

that interference with the finding of fact in a

departmental enquiry is permissible, only when there

is no material for the said conclusion or that on the

materials, the conclusion cannot be that of a

reasonable man.

A finding recorded in a domestic enquiry cannot be

characterized as perverse by the Labour Court, unless it

can be shown that such a finding is not supported by any

evidence, or is entirely opposed to the whole body of

evidence adduced. In a domestic enquiry, once a

conclusion is deducted from the evidence, it is not

permissible to assail the conclusion even though, it is

possible for some other authority to arrive at a different

conclusion on the same evidence.

The jurisdiction of the Tribunal to interfere with the

disciplinary matters for punishment cannot be equated

with an appellate jurisdiction. The Tribunal cannot interfere

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4323

with the findings of the enquiry officer or competent

authority where they are not arbitrary or utterly perverse.

It is appropriate to remember that the power to impose

penalty on a delinquent officer is conferred on the

competent authority either by an act of Legislature or rules

made under the proviso of Article 309 or the Constitution.

If there has been an enquiry consistent with the rules and

in accordance with the principles of natural justice, what

punishment would meet the ends of justice is a matter

exclusively within the jurisdiction of the competent

authority. If the penalty can be lawfully imposed and is

imposed on the proved misconduct, the Tribunal has no

power to substitute its own discretion for that of the

authority.”

So, keeping in view the principles as mentioned

above, now, the present case in hand is to be considered.

On perusal of the materials on record, it is found

that this is not a case of no evidence or that on the

materials, the conclusion drawn by the enquiry officer

cannot be that of a reasonable man. The findings given

by the enquiry officer are based on the materials available

on the record of the departmental enquiry. The enquiry

officer has analyzed the evidence in a rational manner and

has assigned cogent reasons in support of his findings.

Hence, the findings of the enquiry officer cannot be said

to be perverse.

10.

So far the proportionality of the punishment is

concerned, serious misconduct of habitual absenteeism

has been proved against the workman in a properly

conducted departmental enquiry. Hence, the punishment

of dismissal from services imposed against the workman

cannot be said to be disproportionate. In view of the

discussions made above, it is found that there is no

scope to interfere with the punishment imposed against

the workman. Hence, it is ordered:

ORDER

The action of the management of Rawanwara Khas

Colliery of WCL, Pench area post Dihavani Distt.

Chindwara in terminating the services of Shri Satyanarayan

S/o Rajdhari, Ex-Tub Loader w.e.f. 26.05.2001 is legal and

justified. The workman is not entitled to any relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1619-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l- lh- lh-

,y- ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;] xksnkojh[kkuh ds iapkV (lanHkZ la[;k

29@2008) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014

dks izkIr gqvk FkkA

¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O. 1619.—In pursuance of Section 17 of the

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

Government hereby publishes the award of the Indus.

Tribunal-cum-Labour Court, Godavarikhani (IT/ID/29/

2008) as shown in the Annexure in the Industrial Dispute

between the employers in relation to the management of

SCCL and their workmen, which was received by the

Central Government on 26.05.2014.

[No. L-22013/1/2014-IR (C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CHAIRMAN, INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.

DISTRICT & SESSIONS COURT : AT :

GODAVARIKHANI.

Present : Sri G.V. Krishnaiah,

Chairman-cum-Presiding Officer,

Godavarikhani.

Wednesday, 12th day of March, 2014

INDUSTRIAL DISPUTE NO. 29 OF 2008

Between :-

Mohammad Amzad Khan,

S/o Ahmad Khan, Ex. Badli Filler,

E.C. No. 2117950, Goleti No. I Incline,

Bellampalli Area, SCCL,

Aged about 21 years,

R/o. C/o. MD. Shakeel,

Qr. No. ND-2846, Nagarjuna Colony,

Naspur, Mancherial Mandal,

Adilabad District.

.....Petitioner

AND

The Superintendent of Mines,

Goleti No.1 Incline,

Singareni Collieries Company Limited,

Bellampalli Area, Bellampalli,

Adilabad District.

The General Manager,

Singareni Collieries Company Limited,

Bellampalli Area, Adilabad District.

The Chairman & Managing Director,

The Singareni Collieries Company Limited,

Post: Kothagudem,

District: Khammam.

.....Respondents

This Industrial Dispute petition coming on before

me for final hearing in the presence of Sri V. Muralidhar

Yadav Advocate, for the petitioner and of Sri D.

Krishnamurthy, Advocate, for the respondents, and the

matter having stood over before me for consideration till

this date, the Court passed the following:—

4324

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

AWARD

This petition is filed under Sec.2-A (2) of I.D. Act

seeking reinstatement of the petitioner into service as Badli

Filler. Petitioner was dismissed on the ground of habitual

absence after conducting enquiry.

The details of the case are as follows:

Petitioner was appointed as Badli Filler on 19.06.2006.

He could not attend to his duties regularly due to attack of

jaundice and death of his mother in June, 2007. Petitioner

suffered viral hepatitis from 19.09.2007 to 22.11.2007. He

took treatment in Bhadrachalam Government Hospital for

65 days. He worked for only 72 musters in the year 2007.

On 9.02.2008 petitioner was issued charge sheet for

habitual absence. After enquiry he was dismissed from

service. Enquiry was not conducted according to the

principles of natural justice. Without issuing show cause

notice petitioner was dismissed from service. Hence he

may be reinstated.

Respondent filed counter stating that petitioner

attended for only 31 days in the year 2006, 71 days in the

year 2007 and 24 days upto April, 2008. Therefore he was

served with charge sheet as per 25.25 of the standing orders

for habitual absence from duty without sufficient cause.

Petitioner submitted his explanation dated 19.02.2008

stating that his mother expired on 6.07.2007 and he

suffered from jaundice subsequently. Petitioner was issued

enquiry notice dated 18.02.2008 directing to attend enquiry

on 20.08.2008. Petitioner fully participated in the enquiry.

Enquiry report was given holding that the petitioner was

habitually absent without sufficient cause. Management

sent copy of enquiry report and called for his objections.

Subsequently he was dismissed from service.

Respondents also contended that petitioner did not

petitioner did not take treatment from the hospitals of the

company and he did not inform the management about

his sickness or apply for leave. Regarding issuing of show

cause notice it is contended that there is no specific

provision in the standing orders about issuing of show

cause notice proposing the punishment to be imposed on

the delinquent employee and therefore show cause notice

is not necessary.

In the course of hearing petitioner filed memo under

Sec.11-A of I.D. Act stating that he is not objecting to the

procedure adopted in the domestic enquiry.

During the course of enquiry Ex.W-1 to W-10 and

Ex.M-1 to M-8 have been marked.

Now the point for consideration is:

“Whether the petitioner can be reinstated into

service?”

According to the counter, petitioner attended for

duty for 31 days in the year 2006. Petitioner joined on

19.06.2006. Therefore out of nearly six months, he attended

duty for 31 days. In the year 2007 he attended duty for 71

days. Petitioner says that he suffered from viral hepatitis

for 65 days and took treatment in Government Hospital,

Bhadrachalam. In the enquiry he did not file any such

medical certificate. Further in the explanation given in the

charge sheet there is no clear mention that petitioner had

taken treatment in Government Hospital, Bhadrachalam.

He says that he suffered road accident also and no material

is put forth in the enquiry regarding the accident. It is an

admitted fact that petitioner did not apply the leave or

inform about his sickness to the management. Therefore

the habitual absence from duties without sufficient cause

is made out.

10.

Now it remains to be seen whether the extreme

penalty of dismissal of service is justified with the

circumstances of the case.

11.

Habitual absence from duties would have definitely

caused inconvenience to the management but there is no

misconduct involving moral turpitude on the part of the

petitioner. Petitioner joined in service as Badli Filler at a

very young age consequent to the death of his father

while in service. In the early years of service he may not

have been able to cope up with the hard work that is

associated with work of the Badli Filler. Apart from the

illness pleaded by the petitioner, he stated that his mother

died in July, 2007. This explanation of the petitioner cannot

be brushed aside so easily. Upto June, 2007 the petitioner

was absent for 96 days, which means that he worked for

half of the six months period.

12.

Considering the fact that petitioner was a new

entrant to the job and his mother died in the July, 2007, the

extreme penalty of dismissal cannot be justified. In a

decision reported in DIVISION BENCH JUDGMENT OF

GUJARATH HIGH COURT REPORTED IN 1982

LAB.IC.1031 BETWEEN: R.M., PARMAR VRS.,

GUJARATH ELECTRICITY BOARD.

The following guide lines were laid down in the mater

of inflicting punishment of discharge and dismissal:-

In a disciplinary proceeding for an alleged fault of

an employee, punishment is imposed not in order to

seek retribution or to give vent to feelings of wrath.

The main purpose of a punishment is to correct the

fault of the employee concerned by making him more

alert in the future and to hold out of warning to the

other employees to be careful in the discharge of

their duties so that they do not expose themselves

to similar punishment. And the approach to be made

is the approach parents make towards an erring or

misguided child.

It is not expedient in the interest of the administration

to visit every employee against whom a fault is

established with the penalty of dismissal and to get

rid of him. It would be counter-productive to do so

for it would be futile to expect to recruit employees

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4325

who are so perfect that they would never commit

any fault.

In order not to attract the charge of arbitrariness it

has to be ensured that the penalty imposed is

commensurate with the magnitude of the fault. Surely

one cannot rationally or justly impose the same

penalty for giving a slap as one would impose for

homicide.

When different categories of penalties can be

imposed in respect of the alleged fault, one of which

is dismissal from service, the disciplinary authority

perforce is required to consult himself for selecting

the most appropriate penalty from out of the range

of penalty available that can be imposed, having

regard to the nature, content and gravity of the

default. Unless the disciplinary authority reaches

the conclusion that having regard to the nature,

content and magnitude of the fault committed by

the employee concerned, it would be absolutely

unsafe to retain him in service, the maximum penalty

of dismissal cannot be imposed. If a lesser penalty

can be imposed without seriously jeopardizing the

interest of the employees the disciplinary authority

cannot impose the maximum penalty of dismissal

from service. He is bound to ask the inner voice and

rational faculty why a lesser penalty cannot be

imposed.

It cannot be over looked that by and large it is

because the maximum penalty is imposed and total

ruination stares one in the eyes that the employee

concerned is obliged to approach the court and avail

the costly time-consuming machinery to challenge

in desperation the order passed by the disciplinary

authority. If a lesser penalty was imposed, he might

not have been obliged to take recourse to costly

legal proceedings which result in loss of public time

and also result in considerable hardship and misery

to the employee concerned.

When the disciplinary proceedings end in favour of

the employee, the employer has often to pay back

wages say for about 5 years without being able to

take work from the employee concerned. On the

other hand, the employee concerned would have

had to suffer economic misery and mental torture

for all these years. Even the misery of being obliged

to remain idle without work would constitute an

unbearable burden. And when the curtain drops

every one is left with a bitter taste in the mouth. All

because the extreme penalty of dismissal or removal

is imposed instead of a lighter one.

Every harsh order of removal from service creates

bitterness and arouses feeling of antagonism in the

collective mind of the workers and gives raise to a

feeling of class conflict. It does more harm than

good to the employer as also to the society.

Taking of a petty article by a worker in a moment of

weakness when he yields to a temptation does not

call for an extreme penalty of dismissal from service.

More particularly, when he does not hold a sensitive

post of trust (pilferage by a cashier or by a store

keeper from the stores in his charge, for instances,

may be viewed with seriousness). A worker brought

up and living in an atmosphere of poverty and want

when faced with temptation, ought not to, but may

yield to it in a moment of weakness. It cannot be

approved, but it can certainly be understood

particularly in an age when even the rich commit

economic offences to get richer and do so by and

large with impunity (and even tax evasion or

possession of black money is not considered to be

dishonorable by and large). A penalty of removal

from service is therefore not called for when a poor

worker yields to a momentary temptation and

commits an offence which often passed under the

name of kleptomania when committed by the rich.

13.

In the result, the order of dismissal dt.24.04.2008

marked as Ext.M-8 is set aside and the respondents are

directed to reinstate the petitioner into service as “Afresh

Badli Filler” and he shall be subjected to medical test for

post. The petitioner is not entitled to any back wages,

continuity of service and any other attendant benefits.

Typed to my dictation, corrected and pronounced

by me in the open Court on this the 12th day of March,

2014.

G. V. KRISHNAIAH, Chairman-cum-Presiding Officer

Appendix of Evidence

Witnesses Examined

For workman

For Management

-Nil-

EXHIBITS

For workman :

Ex.W-1

Dt.

09-02-2008

Charge sheet.

Ex.W-2

Dt.

20-02-2008

Enquiry

proceedings,

x.copy

Ex.W-3

Dt.

25-02-2008

Enquiry report. x.copy

Ex.W-4

Dt.

29/31-03-2008 Show cause notice.

Ex.W-5

Dt.

24-05-2008

Dismissal letter, x.copy

Ex.W-6

Dt.

—

Postal receipt

Ex.W-7

Dt.

29-05-2008

Demand notice

Ex.W-8

Dt.

22-11-2007

Medical certificate

Ex.W-9

Dt.

31-07-2008

Death certificate

Ex.W-10 Dt.

—

Pay slip for the month of

August, 2008

4326

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

For Management:-

Ex.M-1

Dt.

09-02-2008

Charge sheet o/copy

Ex.M-2

Dt.

20-02-2008

Reply to charge sheet.

Ex.M-3

Dt.

18-02-2008

Enquiry notice

Ex.M-4

Dt.

20-02-2008

Enquiry proceedings

Ex.M-5

Dt.

25-02-2008

Enquiry report.

Ex.M-6

Dt.

29/31-03-2008 Show cause notice.

Ex.M-7

Dt.

16-04-2008

Ack., to show cause notice.

Ex.M-8

Dt.

24-04-2008

Dismissal order.

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1620-—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; ua- 2] ubZ fnYyh ds iapkV (lanHkZ la[;k

24@2009) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014

dks izkIr gqvk FkkA

¹la- ,y&22011@62@2008&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O. 1620.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 24/2009)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court

No. 2, New Delhi as shown in the Annexure, in the

industrial dispute between the management of Food

Corporation of India, and their workmen, received by the

Central Government on 26/05/2014.

[No. L-22011/62/2008-IR (C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT

KARKARDOOMA, DELHI

Present : Shri Harbansh Kumar Saxena

ID No. 24/2009

General Secretary

Versus

Food Corporation of India

AWARD

The Central Government in the Ministry of Labour

vide notification No. L-22011/62/2008- IR(C-II): dated

11.02.2009 referred the following Industrial Dispute to this

tribunal for the adjudication:-

“Whether the demand of the FCI Workers Union

that the management of FCI, Jwalapur should

implement the settlement dated 20.6.1998 entered

with FCI Workers Union and also absorb all the 80

workmen with retrospective effect (as per list

attached) under direct payment system in the

services of Food Corporation of India and also

allowing payment of wages to the workers directly

by Food Corporation of India are justified? If yes, to

what relief are the concerned workmen entitled and

from which date?”

On 20.3.2009 reference was received in this tribunal.

Which was register as I.D. No. 24/09 and claimants were

called upon to file claim statement with in fifteen days

from date of service of notice. Which was required to be

accompanied with relevant documents and list of

witnesses.

After service of notice workmen/claimants filed claim

statement. Wherein he stated as follows:-

That the following reference was made by the

Government of India, Ministry of Labour vide Order

No. L-22011/62/2008-IR(C-II) dated 11.2.2009 :

“Whether the demand of the FCI Workers Union

that the management of FCI, Jwalapur should

implement the settlement dated 20.6.1998 entered

with FCI Workers Union and also absorb all the 80

workmen with retrospective effect (as per list

attached) under direct payment system in the

services of Food Corporation of India and also

allowing payment of wages to the workers directly

by Food Corporation of India are justified? If yes, to

what relief are the concerned workmen entitled and

from which date?”

That as there was an obvious typographical error in

the above reference, this Union took up the matter with

the Government of India, Ministry of Labour for correction

of the terms of reference to avoid any possible objection

that the reference is vague, not clear, defective etc.

That the Government of India, Ministry of Labour

accepted the suggestion of this Union and issued a

Corrigendum vide No.- 22011/62/2008-IR(C-II) dated

27.10.2009. The corrected reference , requiring adjudication

by this Hon’ble Tribunal, is as under:

“Whether the demand of the FCI Workers Union

that the management of FCI, Jwalapur should

implement the settlement dated 20.6.1998 entered

with FCI Workers Union and also absorb all the 80

workmen with retrospective effect (as per list

attached) under direct payment system in the

services of Food Corporation of India and also

allowing payment of wages to the workers directly

by Food Corporation of India are justified? If yes, to

what relief are the concerned workmen entitled and

from which date?”

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4327

FACTUAL MATRIX

That the brief facts leading to this reference are that

a settlement dated 20.6.1998, titled as “Minutes of The

Meeting held on 20.6.1998” was arrived at between the

Union and the management “in order to normalize the

situation in the U.P. and also to fulfill the long pending

demands of the workers.”

That Para No. 2 of the said settlement, which is

relevant for the purpose of the above reference, reads as

under:

“It was agreed upon that 80 workers shall be

employed at Jwalapur out of the list of 160 workers

who have worked there earlier under the contractor

and the list and bio-data of these 80 workers shall

be provided by the Union and the entire 160 workers

are their members. If the workload increases in future,

additional workers shall be provided by the Union

on the request of the management , out of the list of

160 workers as mentioned earlier.”

A true copy of the said settlement is annexed hereto

and marked as Annexure W-1.

That in compliance with the stipulation in the

aforesaid para, the Union, supplied, on 26.12.1998, bio-

data in respect of 80 (eighty) workmen alongwith their

photographs to the District Manager, Food Corporation

of India, Srinagar, Garwal. A true copy of the letter No.

FCIWU/DM(UP)/98/786 dated 26.12.1998 of the Union,

duly receipted by the Assistant Manager of the FCI,

Srinagar, is annexed hereto and marked as Annexure

W-2 .

That it may also be pertinent to mention at this stage

that the Union had filed a Writ Petition WP No. 187(SS of

2005) in the Hon’ble High Court of Uttrakhand, Nainital

and the Hon’ble Court was pleased to pass an order on

20.3.2006, a copy of which is annexed hereto and marked

as Annexure W-3 . The relevant portion of the said order is

extracted below:

“in view of the discussion aforesaid, we are

convinced that there can be conciliation in the

matters under dispute with regard to the points

raised herein. The writ petitioners, therefore, my

move the industrial Adjudicator under the provisions

of the Industrial Disputes Act, 1947. The petitioner

are given 15 day’s time to approach the Assistant

Labour Commissioner shall concluded the

conciliation proceedings within one month. If

conciliation fails, he shall report the matter to the

Appropriate Government, which shall make a

reference to the Labour Court within a period of one

month. The Labour Court concerned shall then

decide the dispute, according to law, within a period

of three months.” (emphasis supplied)

That the above extracted order was modified by the

Hon’ble High Court of Uttrakhand in WP No. 487 of 2005

on 6.6.2007 as under:

Hon’ble Rajesh Tandon, J

Heard Sri A. Kudesia, counsel for the applicant.

Counsel for the petitioner has filed present

application for modification in terms of paragraphs 4 and 5

of the affidavit filed along with the modification application.

The same is quoted below:

“4 That this Hon’ble Court while reserving the

judgment gave assurance that in case of the

petitioners the writ petition is to be taken into

consideration while passing the order but it has been

left in the judgment and order dated 20.3.2006 due

to typographical error.

5. That as the case of the petitioner is different than

the bunch which is decided but as this Hon’ble court

has referred the matter to Assistant Labour

commissioner and it may be directed by this Hon’ble

High that Assistant Labour Commissioner may

consider the case in the light of the settlement dated

20.6.1998 as stated in Para 2,3 and 4 of the writ

petition and further the Hon’ble Court may kindly

be please to grant some additional time for

approaching

before

Additional

Labour

Commissioner as the time granted have come to an

end.”

Without considering the same on merits, it will be

open for the authority concerned to consider the same in

accordance with law.

Subject to aforesaid observation, modification

application is disposed of.

Sd/-

6.6.2007

(RAJESH TANDON, J)

A copy of the said order is annexes herewith and marked

as Annexure W-4.

That as the management failed to absorb the eighty

workmen at Jwalapur Depot, the Union raised an industrial

dispute before the Assistant Labour Commissioner

(Central), Dehradun on 12.07.2007 challenging the grossly

arbitrary and wholly unjust action of the management on

the following among other:-

GROUNDS

BECAUSE Joint Manager, Food Corporation of India

, Lucknow, accepting their legal responsibility and

moral duty, directed the District Manager, Food

Corporation of India, Srinagar, Garwal on 22.6.1998

to implement the decision (dated 20.6.1998) of the

meeting at the earliest and inform the Regional Office

within a week. A copy of the letter dated 22.6.1998 of

4328

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

the Regional Office, Food Corporation of India,

Lucknow (with clean typed copy) is annexed hereto

and marked as Annexure W-5 colly.

Because the 80 (eighty) workmen concerned had

been working at Jwalapur Depot for more than ten(10)

years and were being paid their wages by the

management, which also used to deduct their share

of Provident Fund and used to deposit the same

with the authorities concerned.

Because the workmen were stopped from working

in the year 1997 without assigning any reason

against which the Union filed Writ Petition No. 6126/

1997 (mentioned above) before the Hon’ble High

Court of Allahabad, Lucknow Bench and as a result

whereof, the settlement dated 20.6.1998 was arrived

at.

Because the said settlement dated 20.6.1998 was

duly registered with the Assistant Labour

Commissioner (Central), Kanpur under the Industrial

Disputes Act, 1947 and is , therefore, even otherwise

legally enforceable.

Because the Union complied with the requirement

of supplying the bio-data of all the eighty workmen

to the District Manager, Srinagar long back in the

year 1998 itself.

Because the management, being a Public Sector

Undertaking and an ‘other Authority under Articled

12 of the Constitution of India, is required and

expected to function as a model employer.

Because there can be no justification whatsoever

for the gross delay of over ten years on the part of

the management in not implementing an agreement

entered with the Union which is duly registered

under the trade Unions Act, 1926.

Because the management have caused serious

hardship, suffering and monetary loss to the

workmen concerned by their unjust, arbitrary, illegal

and unfair action.

Because the workmen are entitled, apart from

absorption in Jwalapur Depot of the Food

Corporation of India, also to adequate monetary

compensation for the loss suffered by them.

Because the right to life under Article 21 of the

Constitution of India can have no meaning for a

workman without reasonable and regular income to

sustain himself and his family.

PRAYER

10.

That in the above circumstances, it is most

respectfully prayed that this Hon’ble Tribunal to –

(a)

hold that the demand of the union for implementation

of the settlement is justified;

(b)

direct the management to implement the settlement

dated 20.6.1998 with retrospective effect;

(c)

direct the management to grant consequential

benefits to the workmen concerned from the date of

the settlement.

(c)

direct payment of interest and cost in favour of the

workman; and

(d)

issue any other and/or further orders/directions as

may be deemed just and proper.

Against claim statement management filed following

written statement:-

That I am the Area manager of the Food Corporation

of India, Srinagar (Garhawal) and am fully

conversant with the facts of the case based upon

official record maintained in the ordinary course of

business and am duly authorized to swear this

affidavit on behalf of the opposite party.

That there is absolutely no merit or substance or

truth whatsoever in allegations of fact stated,

documents placed on record by the Applicant and

or the legal grounds urged by the applicant, which

are denied as being factually incorrect and /or legally

untenable.

That the claim of the claimant is liable to be dismissed

as it is misconceived , false and frivolous and due to

misjoinder of party .

That the petitioner not having impleaded the Food

Corporation of India in proper legal manner or the

Management of the Food Corporation of India, is

not entitled to seek any relief against the FCI.

I State that I have gone through the copy of the

Claim filed by respondent/workman, at the very

outset the above named deponent most respectfully

submits that he denies each and every averment

made in the said claim is incorrect and is denied and

every averment until and unless specifically admitted

may be deemed to be denied.

That the claimant have already filed claim and sought

similar relief in Transferred Id No. 69/2008 in Original

I.D. 18 of 2006 titled MAZDOOR SANGH (U.P.)

THROUGH THE GENERAL SECRETARY V/S FOOD

CORPORATION OF INDIA, and same has already

been decided on merits in favour Food Corporation

Of India. The true copy of the award in Transferred

Id. No. 69/2008 in Original I.D. 18 of 2006 titled

MAZDOOR SANGH (U.P.) THROUGH THE

GENERAL SECRETARY V/s. FOOD CORPORATION

OF INDIA passed by the learned presiding officer

Central Government Industrial Tribunal cum Labour

Court is annexed herewith. It is pertinent to mention

here that in the garb of union on various names

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4329

formed by the contractors/self proclaimed leaders

filed the various claims on the same issue and same

relief . The ID. 10.2006, ID No. 18 of 2006 and the ID

31/06 had been filed. The ID 10/2006 and I.D. No. 18

of 2006 has been decided by the learned presiding

officer CGIT . The true copy of the award dated

11.3.2010 and dated 03.05.2010 is annexed herewith.

Therefore the present claim is barred by resjudicata.

R-A Colly.

That there was several unions has been constituted

by the contractor mafia and under the garb or Union

all are claiming similar relief against the Jawalapur

Depot, and these unions created unrest therefore

the work at Jawalapur Depot could not be performed

and running huge loss.

That telegram No. F (78) 96 Jwalapur/Adhoc Dated

15.3.1997 was sent to Sh. Dheer Singh Bhisan Pal,

Village Akoda Kala, Haridwar by the Dy. Manager

(cont) for Sr. Regional Manager, FCI regarding their

appointment as Adhoc Handling Transport

Contractor at Jwalapur Depot, true copy whereof is

placed on record and is marked as Annexure R/1.

That the services of the laboureres were always hired

by the Opposite party through the Agency on the

contract basis as per provisions of the Contract

Labour (Regulation And Abolition Act., 1970 ). The

few other/remaining documents related to the

services hired by the opposite party have been

annexed and marked as annexure R-2.

10.

That it is specifically denied that any alleged member

claimant worked under the Management as a mate

at any time. The services of the labours were hired

on contract basis as per provisions of the contract

Labour (Regulation and Abolition Act. 1970).

11.

That the remuneration for the period which labours

worked as an Adhoc HTCC for FCI was properly

and duly paid as per provisions of the contract

Labour (Regulation and Abolition Act. 1970 ).

12.

That FCI /Opposite party never deployed any Labour

at any point of time but appointed handling –cum

transport contractor (HTC) and got the work done

through them.

13.

That the workers union has itself accepted the facts

that they were working under contractor during the

period of 1994-95. It proves and substantiates FCI

claim that depot was functioned under the contract

system right from beginning /hiring till the closure

of the operations in the depot.

14.

That after the expiry of the contract of Sh. Dheer

Singh Bhishan Pal and Mahipal Giri contractors

M/s. Rana Transport Co. was appointed as regular

HTC for a period of two years. After appointment of

new contractor i.e. M/s Rana Transport Co. the

Ex. Contractor’s Labourers created unrest and

insisted for their induction by the newly appointed

contractors, who had already engaged their workers

for handling work of the Depot become paralyzed

and stop delivery to the state government were

badly effected. Therefore, to solve the problem a

meeting was held at regional level with the FCI

worker’s Union on 20.6.1998 in which it was agreed

that the workers who were working with earlier

contractors may be employed with the existing

contractor and the list of the worker shall be provided

by the union. But the existing contractor was not

ready to engage the labours of ex. Contractors Hence,

the efforts made by the Regional Level Meeting

could be materialized. It further submitted that this

Regional Meeting a committee of FCI officers

contracted the ex. Contractors Sh. Dhir Singh (he is

also filed ID case No. 10/2006 under the garb of the

fabricated union, and judgment of the Court has

been passed in favour of FCI) on 13.05.1998 at

Jawalpur to obtain the list of eighty workers along

with their present addresses so that the work may

be provided to them through the then HTC M/s

Rana Transport Co. But the ex. Contractor Sh. Dhir

Singh flatly refused to give anything in writing as

per D.O. letter No. S & C. 13 (5) /JWP/97/267 Dt.

15.05.98 . It is pertinent to mention here that for eighty

workers inductment illegally with the corporation

several unions have been claiming the same, and

these unions created disturbance and panic at the

work place of the Jawalpur Dept and due to the

disturbance created by the various Contractors/

unions formed by the self proclaimed leaders the

FCI suffered huge loss and constrained to

discontinue the work in Jawalpur Depot. Therefore

it was not possible for the FCI to provide work with

the current contractor and Depot operations become

standstill for long time. It is pertinent to mention

that FCI never entered or agreed for direct

engagement of labours as contract labours has been

employed by the FCI.

15.

That special appeal filed by the FCI /opposite party

against the single judge order dated 2.8.2004 High

Court Nainital W.P. No. 4393 filed by the Sh. Dhir

Singh and others was disposed off.

16.

That the FCI /Opposite party is the statutory body

established by food corporation Act, 1964. It is

pertinent to mention that each depot of the

corporation is separate establishment.

17.

It is submitted that the contract workers are not the

workman of the FCI and there is no relationship of

Master and Servant between the contract labour

and Corporation. Therefore, the applicant has no

right to raise the dispute of the contract workers

4330

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

because they are not employees of the corporation.

If there is any grievance the contract labour has

right to take action against the contractor under

whom they worked.

18.

That it is submitted that the Depot functioned under

contract system right from the day it was hired from

the SWC/ state Government . State Government were

appointed there. Jwalapur Depot had two Godowns

of state Government and SWC where the food grains

of the corporation being stored. These Godowns

were hired from these agencies. In both the Godowns

the agencies stored the food grains of state

government/other agencies and FCI. FCI was not

the exclusive user of these Godowns. It is further

submitted that both the Godowns due to the huge

loss caused by the various unions formed by the

contractors /self claimed leaders.

19.

That it is most respectfully submitted that at

Jawalapur Depot FCI Opposite party never deployed

any labour at any point of time but appointed

handling-cum-transport contractor (HTC) and got

the work done through them. The workers union

has itself accepted the facts that they were working

under contractor during the period of 1994-95. It

proves and substantiates FCI claim that depot was

functioning under contract up to the year 1996. In

fact, the said depot functioned under the contract

system right from beginning /hiring till the closure

of the operations in the depot. It is stated in the

representation that contractor failed to pay the

wages.

PARA WISE REPLY ON MERITS :—

It is most respectfully submitted that after the expiry

of the contract of Sh. Dheer Singh, Bishan Pal and

Mahipal Giri Contractors M/s Rana Transport Co. was

appointed as regular HTC (for a period of two years. After

appointment of new contractors i.e. M/s Rana Transport

the Ex. Contractor’s Labours created unrest and insisted

for their employment by the newly appointed contractors.

Who has already engaged their workers for handling work

for the Depot due to the dispute between the groups

deliveries to the state Government were badly affected.

Therefore to solve the problem a meeting was held at

regional level with the FCI workers Union on 20.6.1998 in

which it was agreed that the workers who were working

with earlier contractors may be employed with the existing

contractors and list of the worker’s shall be provided by

the Union. But the existing contractor was not ready to

engage the labour of the ex. contractor. Hence, the efforts

taken at the regional level meeting could not be

materialized. It is further submitted that before this

Regional meetings a committee of FCI officers contacted

the Ex. Contractor M/s Dheer Singh on 13.05.1998 at

Jwalapur to obtain the list of eighty workers along with

their present addresses so that the workman may be

provided to them through the them HTC (M/s Rana

Transport co. but the ex. Contractor M/s Dheer Singh flatly

refused to give anything in writing as per D/O . Srinagar

letter No. S & C 13 (5) JWP/97/267 Dated 15.05.1998.

Therefore it was not possible for the FCI to provide work

with the current contractor and Depot operations came to

standstill for long time. It is pertinent to mention here that

the list annexed with the present claim by the claimant is

not only bogus but also deferred from the list submitted

on 03.11.1998. It is pertinent to mention that FCI never

entered or engaged for direct engagement of labours.

That the content of the para No. 02 of the statement

of claim need no reply.

That the content of Para No. 03 of the application

are wrong, hence vehemently denied. It is submitted that

Jwalapur Depot was hired Godown form state Govt. and

SWC on actual utilization basis. The handling and

transport work has been arranged through the HTC since

its beginning. HTCs were appointed by FCI from time to

time. FCI has never engaged labour directly. Moreover

the Govt. of India who is appropriate authority to abolish

the contract system from the establishment of FCI has not

issued any notification for abolition of contract system

for Jwalapur Depot. Hence the question of direct

engagement of labour at Jwalapur depot by FCI does not

arise.

That the contents of para 4-9 are misconstrued hence

vehemently denied. It is most respectfully submitted that

the Hon’ble High Court vide order dated pleased to permit

the respondent that if work is available the FCI shall take

the work from those include in the seniority–list

provisionally prepared and referred in the letter dated

27/28-10-2003. (annexure 3 of WP No. 1981 of 2003. ) The

Hon’ble High Court further pleased to clear that any

incidental expression of opinion in this judgment with

regard to the merit of the case shall have no bearing and

the case of the parties shall be decided by the Industrial

adjudicator according to the law applicable thereto. The

Hon’ble Hight Court pleased to set aside the order dated

0.08.2004 passed by the Single. Judge. It is pertinent to

mention here that most of mafia/contractors constituted

there union with malafide intention and severally fighting

and tensions has been roped amongst the unions and

because of their fight amongst the unions the corporation

could not be able to continue function at the Jwalapur

depot and because of the unrest created by the unions

formed by the contractors/mafia the depot was running

huge loss. It is most respectfully submitted that the

claimant has already field another claim, the award is the

said claim is reserved for orders. Therefore the claim has

been barred as per principle of res judicata.

In the above mentioned facts and circumstances

the claim of the claimants may kindly be dismissed.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4331

Workmen filed rejoinder on 14.3.2011. Wherein they

stated as follows:-

Para 1 is formal and does not require any reply.

That the contents of para 2 of the preliminary

objections, as stated, are wrong, incorrect, misleading and

motivated. It is reiterated that the Statement of claim, as

filed before this Hon’ble Tribunal, is factually correct and

legally tenable.

That the contents of para 3 of the Preliminary

Objections is misconceived and baseless. It is wrong and

denied that the statement of claim is in any manner false

and frivolous or that the same is liable to be dismissed for

mis-joinder of party. In terms of Section 2(g) of the Industrial

Disputes Act, 1947 , it is for the FCI to notify the prescribed

authority which it does not appear to have done as the

depot is illegally closed. Otherwise, it is the head of the

department. Therefore, the Statement of Claim has to be

read in conjunction with the corrected order of reference

dated 27.10.2009 which has clearly shown the Senior

Regional Manager, FCI, Dehradun and the Chairman and

Managing Director, FCI, New Delhi as he parties

representing the management. Therefore, management in

the Statement of Claim will have to be read as FCI as

represented by the Senior Regional Manager, Dehradun

and the CMD, New Delhi. It is , therefore, denied that

there has been any mis-joinder of parties. Moreover, the

reference as made in the year 2009 by the appropriate

Government to this Hon’ble Tribunal , was never

challenged by the management in the Hon’ble Tribunal,

was never challenged by the management in the Hon’ble

Delhi High Court on this score. The so called objection

now raised is, therefore, untenable, misconceived and

hence denied.

That the contents of para 4 are vague, confused and

unclear . The same are therefore, denied. Reply given in

para 3 above may also kindly be seen in this connection.

Para 5 is formal. In any case, it is denied that the

deponent has carefully gone through the Statement of

Claim and understood its contents in proper perspective.

It is submitted that the deponent has mechanically signed

the affidavit (obviously prepared by some body else)

without any application of mind on his part to the facts of

the present case.

That the contents of para 6 of the Preliminary

objections are wholly and entirely wrong and therefore

denied. It is specifically and vehemently denied that the

claimant have already filed claim and sought similar relief

in Transferred I.D. No. 69/2008 V/s FCI” or I.D. No. 10/

2006 decided in the Ld. CGIT No. 1 Karkardooma, Delhi . It

is submitted with respect that the above reference has

been made to this Hon’ble Tribunal on the basis of the

industrial dispute raised by this Union which is the largest

and most representative trade union of handling workers

in the Food Corporation of India and with whom the

management of FCI have entered into several agreements

/settlements, including the settlement dated 20.6.1998. The

reference mentioned in this para by the management were

obtained by trade unions which were not representative

in character and they also misrepresented true facts with

the result that both the references were answered against

the workmen. In fact, the FCI Handling Workers Union

was not even in existence in June, 1998 when the settlement

was signed by this Union with the management of FCI. It

is further submitted that the terms of reference made to

this Hon’ble Tribunal by the appropriate Government are

very different from, the above mentioned reference. It is

accordingly denied that the present reference. Which

relates to non-implementation of settlement dated

20.6.1998, is barred by res-judicata, as alleged or at all.

That the contents of this para of the Preliminary

Objections are denied for want of knowledge . However ,

the averment relating to constitution of union by the

contractor mafia is false and strongly denied so far as this

unrest or as claimed relief similar to the relief claimed by

other Unions against Jwalapur Depot.

That the contents of this para, which are totally

irrelevant, are denied for want of knowledge.

That the contents of this para of the Preliminary

Objections are neither correct nor relevant. A perusal of

the Settlement dated 20.6.1998 (Annexure W-1 to the

statement of claim) would show beyond any doubt that

there was no stipulation, and in fact not even a whisper ,

that the 80 workers shall be employed at Jwalapur Depot

through a contractor. Therefore, the averment made by

the management in this para “that the services of the

labourers were always hired by the Opposite Party through

the Agency of contract basis…..” is both misleading and

misconceived . Therefore, it is reiterated that the said

Settlement clearly provided for direct employment of 80

workers by the management of the FCI at Jwalapur Depot.

10.

That the contents of this para are not only incorrect

but knowingly misleading. In this connection, kind

attention of this Hon’ble Tribunal is invited to the following

observations made by Hon’ble CGIT No. 1, New Delhi in

the award dt. 11.3.2010:

“When the said argument is perused, it came to

light that it was agreed between the Corporation

and FCI Workers Union that 80 workers shall be

employed at Jwalapur Depot, out of the list of 160

workers who had worked there under the contractor.”

It would therefore, be evident that regardless of the

past practice, the management of FCI had agreed to directly

employ 80 workers under its own supervision and control

in terms of the settlement dated 20.6.1998.

11.

That this para of the preliminary objections is wholly

irrelevant. Hence , no reply is necessary.

4332

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

12.

13.

That merely because the FCI never deployed any

labour directly in the past does not mean that it can employ

the workers directly for doing the handling work.

14.

That the statement made in this para that on 20.6.1998

it was agreed that the workers who were working with

earlier contractor may be employed with existing contractor

is wholly false. A perusal of the Settlement (Annexure

W-1 to the Statement of Claim) will show that the

underlined words have been interpolated by the

management and were never there in the said Agreement.

As already explained in para 6 above, the references

mentioned in this para were obtained by unrepresentative

trade unions by misrepresenting facts. It is, therefore,

totally wrong for the management to say that FCI never

entered or agreed for direct any engagement of labourers

as contract labour has never been employed by FCI.”

15.

Matter of record.

16.

Does not require any reply as the contents of this

para are irrelevant for the purpose of the present industrial

dispute pending adjudication by this Hon’ble Tribunal.

17.

Contents of this para are both misleading and

misconceived . The management had clearly agreed to

employ 80 workers directly at Jwalapur Depot under the

settlement dated 20.6.1998.

18.

That the contents of this para, other than what is a

matter of record, are denied as being wrong , misleading

and irrelevant.

19.

That the contents of this para are misleading and

wrong. The fact is that the management of FCI consciously

agreed on 20.6.1998 to employ 80 workers directly.

REJOINDER TO PARAWISE REPLY

That the contents of para 1 of the reply (Written

Statement) of the management are incorrect , wrong ,

baseless and misleading . The same are, therefore, denied

and the contents of corresponding para of the Statement

of Claim are reiterated as correct.

No rejoinder is called for.

That the contents of this para of the Written

Statement are incorrect and wrong. The fact that a godown

is a hired one or because the appropriate government has

not issued a notification under Section 10 of the Contract

Labour (Regulation & Abolition ) Act, 1970 prohibiting

employment of contrac labour, does not prevent the

management in any way from engaging direct labour. The

averment made is wholly wrong and specious.

4-9 . That the contents of these paras of the Written

Statement, excepting what is a matter of record, are wrong

and denied and the contents of the corresponding paras

of the statement of claim are reiterated and re-affirmed as

correct.

It is, therefore , submitted that the claim filed by this

Union is correct, both in law and on facts, and may kindly

be allowed in the interest of justice and equity.

It is relevant to mention to here that workmen moved

an application for transfer of the instant ID to the CGIT

Lucknow which was alleged to be pending for adjudication

but no transfer order from ministry has been received.

On 8.1.2013 workmen filed rejoinder again. Copy of

which furnished to management.

In this rejoinder workmen are stated as follows:-

Reply to Preliminary Objection

That he contents of this para are wrong and incorrect

as no authority letter has been filed with the affidavit. It is

denied that Shri Darbara Singh was validly authorized by

the competent authority.

That the contents of para 2 of the preliminary

objections are not only wrong and incorrect but

contemptuous of the orders passed by the Hon’ble High

Court of Uttrakhand in WP (C) No. 187 (SS) of 2005. The

grounds urged by this Union in the Statement of Claim are

legally correct and valid and the same are re-iterated . If

the management was so merit or the reference was illegal,

nothing prevented it for challenging the same before the

Hon’ble High Court and praying for quashing of the

reference . In the absence of any restraint order, this

Hon’ble Tribunal has to proceed with the reference made

by the “appropriate Government” and render an award

based on the pleadings and evidence of the parties

concerned. Kind attention of this Hon’ble Tribunal is

invited to the orders dated 20.3.2006 passed by the Hon’ble

Mr. Justice Rajesh Tandon in WP (C) No. 187(SCC) of

2005, Annexure W-3 to the statement of Claim. It will be

kindly seen therefrom that the reference to this Hon’ble

Tribunal has been made by the appropriate Government

in compliance with the directions given by the Hon’ble

High Court of Uttrakhand. There is , as such, no merit in

the so-called objections raised by the management in this

para.

That the reply given in the preceding para equally

applies to this objection also. Kind attention of the Hon’ble

Tribunal is invited to the award dated 3.5.2010 in ID. No.

69 of 2008 wherein the management has took the contrary

plea that the reference “should have been through

someone like the General Manager or party”. It may be

added that in terms of Section 2(g) of the Industrial

Disputes Act, 1947 , it was for the FCI to notify the

prescribed authority which it does not appear to have

done as the depot is illegally closed. Otherwise, it is the

head of the department. Therefore, the Statement of Claim

has to be read in conjunction with the corrected order of

reference dated 27.10.2009 which has clearly shown the

Senior Regional Manager, FCI, Dehradun and the Chairman

and Managing Director, FCI, New Delhi as he parties

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4333

representing the management. It is , therefore, denied that

there has been any mis-joinder of parties. Moreover, the

reference as made in the year 2009 by the appropriate

Government to this Hon’ble Tribunal , was never

challenged by the management in the Hon’ble Tribunal,

was never challenged by the management in the Hon’ble

Delhi High Court on this score. The so called objection

now raised is, therefore, untenable, misconceived and

hence denied.

That the contents of para 4 of the Preliminary

Objection are wrong, incorrect and misleading. The FCI

has been impleaded through its various officers as it, being

a corporate body, function through them only. As already

submitted above if the reference as made by the

appropriate Government was legally incorrect, it was open

to the management to challenge the same before the

Hon’ble High Court, which was never done. Incidentally,

such hyper technical objections have even otherwise no

place in adjudication of labour disputes.

That the contents of para 5 of the Preliminary

Objections are wrong and therefore, denied. As already

submitted above, the Statement of Claim filed by this Union

is factually correct and based on the reference made by

the appropriate Government in compliance with the

directions given by the Hon’ble High Court of Uttrakhand.

It is submitted that the deponent had mechanically signed

the affidavit without carefully reading the same and

application of mind on his part.

That the contents of para 6 of the Preliminary

objections are wholly and entirely wrong and therefore

denied. It is specifically and vehemently denied that the

claimant have already filed claim and sought similar relief

in Transferred I.D. No. 69/2008 V/s FCI” or I.D. No. 10/

2006 decided in the Ld. CGIT No. 1 Karkardooma , Delhi. It

is submitted with respect that the above reference has

been made to this Hon’ble Tribunal on the basis of the

industrial dispute raised by this Union which is the largest

and most representative trade union of handling workers

in the Food Corporation of India and with whom the

management of FCI have entered into several agreements/

settlements, including the settlement dated 20.6.1998. The

reference mentioned in this para by the management were

obtained by trade unions which were not representative

in character and they also misrepresented true facts with

the result that both the references were answered against

the workmen. In fact, the FCI Handling Workers Union

was not even in existence in June, 1998 when the settlement

was signed by this Union with the management of FCI. It

is further submitted that the terms of reference made to

this Hon’ble Tribunal by the appropriate Government are

very different from, the above mentioned reference. It is

accordingly denied that the present reference. Which

relates to non-implementation of settlement dated

20.6.1998, is barred by res-judicata, as alleged or at all.

That the contents of this para of the Preliminary

Objections are denied for want of knowledge . As already

submitted , FCI Workers Union only represents the

majority of food handling workers in the FCI , including

the Jwalapur Depot. The Averment relating to constitution

of union by the contractor mafia is false and strongly

denied so far as this Union is concerned. It is denied that

either the FCIWU created any unrest or has claimed relief

similar to the relief claimed by other Unions against

Jwalapur Depot.

That the contents of this para are denied for want of

knowledge as a copy of the said telegram was not endorsed

to this Union. The relevance of the said telegram has also

not been disclosed by the management.

That the contents of this para of the Preliminary

objections are neither correct nor relevant. A perusal of

the Settlement dated 20.6.1998 ( Annexure W-1 to be

Statement of Claim) would show beyond any doubt that

there was no stipulation, and in fact not even a whisper

that the 80 workers shall be employed at Jwalapur Depot

through a contractor. Therefore, the averment made by

the management in this para ‘ that the services of the

labourers were always hired by the Opposite Party through

the Agency of contract basis…..” is both misleading and

irrelevant. It is manifest that the management is trying to

confuse the matter to cloud the real issue relating to non-

implementation of the settlement dated 20.6.1998 by it.

10.

That the contents of this para are not only incorrect

but knowingly misleading. In this connection, kind

attention of this Hon’ble Tribunal is invited to the following

observations made by Hon’ble CGIT No. 1, New Delhi in

the award dt. 11.3.2010:

“When the said argument is perused, it came to

light that it was agreed between the Corporation

and FCI Workers Union that 80 workers shall be

employed at Jwalapur Depot, out of the list of 160

workers who had worked there under the contractor.”

It would therefore, be evident that regardless of the

past practice, the management of FCI had agreed to directly

employ 80 workers under its own supervision and control

in terms of the settlement dated 20.6.1998.

11.

That this para of the preliminary objections is wholly

irrelevant. Hence , no reply is necessary.

12.

13.

That merely because the FCI never deployed any

labour directly in the past does not mean that it can employ

the workers directly for doing the handling work.

14.

That the contents of this para of the Preliminary

Objections are wholly incorrect, grossly misleading and a

willful distortion of facts. This will be evident from a perusal

of relevant para in the Agreement 20.6.1998 which is

reproduced below for the kind perusal of this Hon’ble

Court:

4334

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

“it was agreed upon that 80 workers shall be

employed at the Jwalapur out of list of 160 workers

who have worked there earlier under the contractor

and the list and bio-data of these 80 workers shall be

provided by the Union and the entire 160 workers

are their members.”

Therefore, the averment now made by the FCI that it

was agreed that the workers may be employed by the

existing contractor is wholly , false and unbecoming of a

public sector undertaking to make such a knowingly

incorrect averment solely for the purpose of misleading

the Hon’ble Tribunal. It is pertinent to mention that no

contractor was a party to the Agreement dated 20.6.1998.

Rest of the averments are irrelevant and beyond the terms

of reference made to this Hon’ble Tribunal. It is therefore,

wholly incorrect and wrong for the management to say

that it never agreed to direct engagement of labour at

Jwalapur depot… The fact that 80 workers were agreed to

be employed by the FCI itself is also clear from the letter

dated 20.6.1998 written by the Joint Manager (Contracts)

to the District Manager, Srinagar, a copy whereof has

already been filed by this Union with the Statement of

Claim.

15.

That a copy of the orders passed by the Hon’ble

High Court of Uttrakhand in the Appeal filed by the

management have not filed and brought on record by the

Management. No comments can be therefore, be offered

in reply to this para at this stage. As and when a copy of

the said order is brought on record by the management ,

the FCI Workers Union will file its reply thereto.

16.

That while it is not denied that FCI is a statutory

body, the purport of the concluding line “that each depot

of the corporation is a separate establishment “requires

elaboration and clarification . Incidentally , this para does

not constitute any preliminary objection.

17.

Contents of this para are both misleading and

misconceived . As already submitted, the reference made

to this Hon’ble Tribunal it about non-complementation of

the settlement dated 20.6.1998, which the management

cannot now pretend that they did not understand the

import of the words used in the said Settlement. It is also

denied that this union has no right to raise the present

Industrial Dispute.

18.

That the contents of this para, other than what is a

matter of record, are denied as being wrong , misleading

and irrelevant.

19.

That the contents of this para are misleading and

wrong. The fact is that the management of FCI consciously

agreed on 20.6.1998 to employ 80 workers directly.

REJOINDER TO PARAWISE REPLY

That the contents of para 1 of the reply (Written

Statement) of the management are incorrect, wrong,

baseless and misleading. The same are, therefore, denied

and the contents of corresponding para of the Statement

of Claim are reiterated as correct.

No rejoinder is called for.

That the contents of this para of the Written

Statement are incorrect and wrong. The fact that a godown

is a hired one or because the appropriate government has

not issued a notification under section 10 of the Contract

Labour (Regulation & Abolition )Act, 1970 prohibiting

employment of contract labour, does not prevent the

management in any way from engaging direct labour. The

averment made is wholly wrong and specious.

4-9 . That the contents of these paras of the Written

Statement, excepting what is a matter of record, are wrong

and denied and the contents of the corresponding paras

of the statement of claim are reiterated and re-affirmed as

correct.

It is, therefore , submitted that the claim filed by this

Union is correct, both in law and on facts, and may kindly

be allowed in the interest of justice and equity.

On 15.4.2013 My Ld predecessors Dr. R.K.Yadav

framed following issues:-

(1)

Whether award dated 11.3.2010 passed in Industrial

Dispute registered as No. 10/2006 with this Tribunal

titled as Dhir Singh and others Vs. Food Corporation

of India, frustrates claim made by the claimant union?

(2)

As in terms of reference.

Workmen in support of their case filled affidavit of

Sh. M.C. Parida. Wherein he stated as follows:-

That I am the Vice-President of FCI Workers Union

and therefore well versed with the facts of the above matter

and competent to affirm and file this affidavit in this

Hon’ble Tribunal.

I say that a settlement titled “Minutes of the

Meeting” was arrived at between the FCI Workers Union

and the management of Food Corporation of India “in

order to normalize the situation in U.P. and also to fulfill

the long pending demands of the workers.”

That para No. 2 of the above said settlement provided

as under”

“It was agreed upon that 80 workers shall be

employed at Jwalapur Depot out of the list of 160

workers who have worked there earlier under the

contractor and the list and bio-data of these 80

workers shall be provide by the Union and the entire

160 workers are their members. If the workload

increase in future, additional workers shall be

provided by the Union on the request of the

management out of the list of 160 workers as

mentioned earlier.”

A copy of the said settlement dated 20.6.1998 has

already been filed with the statement of Claim filed with

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4335

the Statement by the FCI workers Union and may kindly

be marked as Ex. WW-1/1.

That in compliance with the stipulation in the above

para of the Settlement (ANNEXURE WW-1/1, the FCI

Worker Union supplied on 23.12.1998 bio-data of 80 workers

along with their photographs to the District manager ,

F.C.I ., Srinagar, Garwal. A true copy of the said letter,

bearing No. FCIWU/DM(U.P.) 98/786 dated 26.12.1998 has

already been filed with the Statement of Claim and may be

marked as Ex. WW1/2.

That as the management failed to implement the

settlement dated 20.6.1998, the FCI Workers Union filed a

writ petition in the Hon’ble High Court of Uttrakhand at

Nainital, being Writ Petition No. 187 (SS of 2005), as a

result whereof the following orders came to be passed.

“In view of the above discussion, we are convinced

that there can be conciliation in the matters under

dispute with regard to the points raised herein. The

writ petitioners may therefore move the Industrial

Adjudicator under the provisions of the Industrial

Disputes Act, 1947. The Petitioners are given 15 days

time to approach the Assistant labour Commissioner,

who shall conclude the proceedings within one

month. If conciliation fails, he shall report the matter

to the Appropriate Government, which shall make a

reference to the labour Court within a period of one

month. The Labour Court concerned shall then

decide the dispute , according to law, within a period

of three months. (Emphasis provided).

I may add that the above order was modified on

06.06.2007 and a copy of the modified order has also been

filed with the Statement of Claim.

I am advised to say that the objections raised by the

management in their Written Statement are misconceived

and incorrect because the awards in Transferred I.D. No.

69/2008 and I.D. No. 10/2006 were made on the basis of

purported disputes raised by trade unions who were either

not competent or not even in existence when the

settlement Annexure WW-1/1 was signed by the FCI

Workers Union.

That in addition, the present reference relates to

implementation of settlement dated 20.6.1998 and has been

made in compliance with directions given by the Hon’ble

Court of Uttrakhand. I, therefore say that the above

reference made to this Hon’ble Tribunal is valid, competent

and legally maintainable.

I also rely upon the Statement of Claim and

documents filed therewith and request that the same may

kindly be treated as part of my evidence.

His affidavit was tender on 31.07.2013. He was partly

cross-examined on same day.

His examination in chief and cross-examination is as

follows:-

I relied on my affidavit Ex. WW1/A .Which is signed

A & B . I also relied on documents WW1/1, WW1/2 already

filed with the statement of claim.

XXX by Sh. Anil Sharma, A/R for management.

I am vice president of the union since about last

25 years. I am working in FCI as a Sardar. I joined on

15.6.1973. No appointment letter was issued to me. I was

never posted at Jwalapur Depot. I am deposing on the

basis of my personal knowledge and the record of the

union. It is wrong to say that because I was never posted

in Jwalapur Depot. I do not have knowledge about the

said Depot. It is correct that regular employees of the FCI

are given appointment letter by the corporation on their

appointment. No appointment letter was given to the

workmen in dispute as they were contract labour.The

workers were paid during the period from 1994 to 1998.

The payment was made through the contractors. The

union made representation in respect of the workmen in

dispute and I can file the same before this Hon’ble Tribunal

on the next date.

Cross-examination deferred.

He was further cross-examined on 23.10.2013.

His cross-examination is as follows:-

Contents of two letters WW1/M1 and WW1/M2

are correct which have been filed today. I am representative

of workers union. There was no advertisement in newspaper

for appointment of Workmen. We have applied in written

to management. Copy of settlement is on record. Whatever

is mentioned in that is correct.

Management in support of his case filled affidavit of

Sh. Dhirendra Singh on 20.11.2013. Wherein he stated

as follows:—

That I am the Manager and officer Incharge of the

above said case and am acquainted with facts to the above

said case on the basis of record available at the office. As

such competent to swear this affidavit.

That the claim of the claimant is liable to be dismissed

as it is misconceived , false, frivolous and due to misjoinder

of parties.

That the claimant not having impleaded the food

Corporation of India in proper and legal manner or the

claimant is not entitled to seek any relief against the FCI.

That the Claimant was the contractual worker and

there was no employer and employee relationship between

the Management of FCI and the Claimant. They were the

workers of the contractor, who exercised unassailable

administrative control over these claimant and made

payment to them directly. Moreover these workmen were

never issued appointment letters by the FCI and they were

engaged and deployed by the Contractor.

That they were neither appointed by the

Management of the FCI nor posted, it was the contractor,

who deployed them at various places.

4336

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

That the claimant were neither appointed by the FCI

Management nor they were on the pay roll of the FCI.

That the Claimant was not the regular worker of the

Management of FCI.

That the payment of wages to these claimants was

directly made by the contractor.

That the complainant was engaged by HTC on the

basis of requirement and they were removed when there

was no requirement. No harassment and exploitation

against these claimants was practiced by the Management

of the FCI. It is respectfully submitted that there is no

question arise for any termination from the service of

corporation as there is no violation of any provision of

Industrial Law. It is pertinent to mention here that the

services of claimants were hired through the contractor

on the contract basis as per the provisions of the contract

Labour (Regulation and Abolition Act 1970).

11.

That consolidated contracted amount was paid to

the contractor and thereafter wages to workmen were paid

directly to the contractor and not be the FCI.

12.

That the claimant have already filed claim and sought

similar relief in transferred I.D. No. 69/2008 and the same

has already been decided on merits in favor of the

corporation. It is pertinent to mention here that in the garb

of union on various names formed by the contractor/self

claimed leaders filed various claims on the same issue and

same relief, which were decided in favor of the Corporation.

The true copy of the award dated 11.3.2010 and 3.5.2010

are filed with the Reply be marked as MW-1/1.

13.

That due to the unrest created by these unions the

work at Jwalapur depot could not performed and was

running huge loss. The telegram no. F.1 (78)/96 Jwalapur /

Adhoc dated 15.3.97 was sent to Sh. Dheer Singh Bishan

Pal, Village Akoda Kala, Haridwar regarding their

appointment as Adhoc Handling Transport Contractor at

Jwalapur Depot. The true copy of the same is filed with

the Reply be marked as MW-1/2.

14.

That it is pertinent to mention here that the

respondent invited the tenders under HTC provision and

appointed by HTC and got the work done through them.

The worker union has itself accepted the fact that they

were working under the contractor during the period 1994-

1995 . it proves and substantiates the respondent claim

that depot was functioned under the contract system up

to the year 1996. In fact the said depot was functioned

under the contract system right from beginning/hiring till

the course of the operations in the depot. True copy of

the relevant documents are filed with the reply and he

marked as MW-1/3 (Colly).

15.

That expiry of the contract of earlier contractors

under which the claimant were working, a new Contractor

M/s. Rana Transport Co. was appointed as regular HTC

and the ex- contractor’s labour created unrest and insisted

for their induction in newly appointed contractor, who

had already engaged their workers for handling work of

the depot become paralyzed therefore delivery to the State

Govt were badly effected. Therefore to solve the problem

a meeting was held with the worker union on 20.6.1998 in

which it was agreed that the 80 workers who were working

under the earlier contractors may be employed with the

existing contractor but the other worker union was claiming

for the same relief and the existing contractor was not

ready to engage the labour of Ex contractors hence the

efforts made by the corporation could not be materialized.

Due to the work the corporation constrained to discontinue

the work in Jwalapur Depot and dehired the Godown .

It is therefore the present complaint of the

complainant is wholly misconceived, groundless and

unsustainable in law and liable to be dismissed with cost.

His affidavit was tender on 10.12.2013. He was partly

cross-examined on same day.

His examination in chief and cross-examination is as

follows:-

I tender in evidence my affidavit Ex. MW1/A . Which

bears my signature at point A and B . I rely upon documents

MW1/1 to MW1/3 (Colly).

XXX by Sh. Bijay Kumar, A/R for the workman.

I am working with management since 1997. I was

working as manager at Srinagar in year 1997-98 . It is

correct that I am deposing as per record. I have no personal

knowledge.

Ques:- Can you say that FCI handling workers union was

not in existence in 1997-1998.

Ans. It is a matter of record. Aforesaid facts is not in my

personal knowledge.

I have no knowledge whether in 1997-98 there was

FCI . Handling workers unions was in existence or not.

It is correct that on 20.6.1998 memorandum of

understanding was signed between FCI workers union

and FCI .

Aforesaid memorandum was not signed by F.C.I.

Handling workers.

I cannot say whether it was signed by F.C.I. Majdoor

Sangh Lucknow.

I have gone through the aforesaid memorandum.

It is correct that on aforesaid memorandum there no

sign of F.C.I . Majdoor Sangh Lucknow.

I cannot say whether F.C.I. Majdoor Sangh was

party to aforesaid memorandum due or was not a

representative union at Jwalapur.

I am not challenged the reference of the instant in

Hon’ble High Court by way of writ petition.

It is correct that memorandum is signed by F.C.I

worker union . It is correct that no contractor was party to

M.O.U. dated 20.6.1998.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4337

Ques- Whether F.C.I has given work to the so workers

whose names and particulars are supplied by the F.C.I.

worker union to the F.C.I. ?

Ans- This work was to be performed by Thekedar.

It is correct that F.C.I. worker union has not raised

any issue except this before any Authority.

It is correct that no paper has been filed by

management to show that contractor was directed to

provide according to list of workmen.

It is correct that aforesaid settlement could not be

implemented.

Written Argument on behalf of the Applicants/Workmen.

Wherein they stated as follows :—

That the following industrial dispute was referred

by the appropriate Government to this Hon’ble Tribunal

for adjudication vide order dated 11.2.2009, which was

later on corrected by the orders dated 27.10.2009:

“Whether the demand of the FCI Workers Union

that the management of FCI, Jwalapur should

implement the settlement dated 20.6.1998 entered

with FCI Workers Union and also absorb all the

80 workmen with retrospective effect (as per list

attached) under direct payment system in the

services of Food Corporation of India and also

allowing payment of wages to the workers directly

by Food Corporation of India are justified? If yes, to

what relief are the concerned workmen entitled and

from which date?”

That the brief facts leading to this reference are that

a settlement dated 20.6.1998, titled as “Minutes of The

Meeting” was arrived at between the Union and the

management “in order to normalize the situation in the

U.P. and also to fulfill the long pending demands of the

workers.”

That in compliance with the stipulation in the

aforesaid settlement, the Union supplied, on 26.12.1998,

the bio-data of 80(eighty) workmen alongwith their

photographs to the District Manager, Food Corporation

of India, Srinagar , Garwai . A true cop of the letter No.

FCIWU/DU(UP) /98/786 dated 26.12.1998 of the Union,

duly receipted by the Assistant Manager of the FCI,

Srinagar, was annexed to the Statement of Claim as

Annexure W-2.

That since the Settlement dated 20.6.1998 (Ex.WW-

1/1) is very vital, critical and important, the relevant para

thereof relating to Jwalapur Depot, is reproduced

hereunder for better appreciation of the above industrial

dispute:

“It was agreed upon that 80 workers shall be

employed at Jwalapur out of the list of 160 workers

who have worked there earlier under the contractor

and the list and bio-data of these 80 workers shall be

provided by the Union and the entire 160 workers

are their members. If the workload increases in future,

additional workers shall be provided by the Union

on the request of the management, out of the list of

160 workers as mentioned earlier.”

That it will be evident from a perusal of settlement

dated 20.6.1998 that the:-

(a)

same was arrived at between the management and

this Union only and neither any contractor nor any

other was a partly to the same;

(b)

The clause 2 of the Settlement relating to Jwalapur

Depot and reproduced above in para 4 does not

even whisper, and much less provide, that 80 workers

(whose names and bio-data were to be provided by

this Union) would be employed through any

contractor.

(c)

As the management was represented by an IAS

Officer, then working as Sr. Regional Manager, it can

not be said that he could not properly understand

the contents of the said settlement or the context

thereof.

That in view of the above, the following averment

made in Written Statement (in para 14 ) is wholly incorrect,

misleading and factually wrong.

“Therefore , to solve the problem a meeting was

held at regional level with FCI Workers Union on

20.6.1998 in which it was agreed that the workers

who were working with earlier contractors may be

employed with the existing contractor and the list of

the worker shall be provided by the union”

The underlined words were not there in the

settlement and have now been added by the management

to mislead the Hon’ble Tribunal. Moreover, the settlement

was duly registered with the Assistant labour

Commissioner ( C ),Dehra Dun under the I.D. Act, 1947

and is therefore legally binding on the parties and a breach

of the same constitutes an offence punishable under

Section 29 of the I.D. Act. Therefore , the use of the “words

may be employed” in the Written Statement of the

management constitutes willful distortion and suppressin

very. The management is therefore liable to be thrown out

by this Hon’ble Tribunal on the strength of the dicta in

S.P. Changalvaraya Naidu V/s Jagannath (dead) (AIR -

1994-SC-853)

That it may be further added that juncture that the

Apex Court has further held in the case of P. Virudhachallam

V/s management of Lotus Mills 1998 (1) SCC-650 that a

settlement stands on a higher pedestal than even an order

of a court. It has also been held in the case of ..Viveka…

Nand Sethi V/s J. & K Bank -2005(5) SCC-337 ) that a

settlement is a law between the parties . A copy each of

the above three judgements is also placed below for the

kind perusal of this Hon’ble Tribunal.

4338

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

That the order preliminary objection taken in the

Written Statement (para 6) to the effect “that the present

claim is barred by re-judicata” is also misconceived,

baseless and wrong for the reasons that:-

(a)

the management never challenged the reference on

the alleged ground of res-judicata before the High

Court and no stay or restraint order against the

above reference has been brought on the record;

(b)

that neither the FCI (Handling ) Workers Union nor

the FCI Mazdoor Sangh, U.P, which obtained the

earlier references; being I.D. No. 10/2006 and I.D

No. 68/2008 respectively, by misrepresentation of

facts, were parties to the settlement dated 20.6.1998

. In fact, the FCI(Handling) Workers Union even did

not even exist in 1998.

(c)

the present reference has been made by the

“appropriate Government” in compliance with the

directions of the Hon’ble High Court of Uttrakhand.

That as submitted in Ground ‘B’ of the Statement of

Claim, 80 workers concerned had been working in Jwalapur

Depot for over ten years and were being paid their wages

by the management of FCI directly and their P.F.

subscriptions were also being deducted by the

management of F.C.I.

10.

That it is also submitted that the argument of the

F.C.I. that it had earlier employed the workers through the

contractors only does not bar it from engaging them

directly . Infact, F.C.I is presently employing 18376

departmental workers in 162 depots and 28803 direct

payment system workers in 219 depots and the same is I

consonance with the public policy not to exploit the

contract system.

11.

That in view of the above, it is requested that this

Hon’ble Tribunal may allow the reference in favour of the

workman and against the management.

Written Argument on behalf of the Management.

Wherein it stated as follows:-

That the Claimant was the contractual worker and

there was no employer and employee relationship between

the Management of FCI and the claimant. They were the

workers of the contractors, who exercised unassailable

administrative control over these claimant and made

payment to them directly. Moreover these workmen were

never issued appointment letters by the FCI and they were

engaged and deployed by the contractor.

That they were neither appointed by the

management of the FCI nor posted, it was the contractor ,

who deployed them at various places.

That though the claimant worked with the FCI

Management but they were neither appointed by the FCI

management nor they were on the pay roll of the FCI.

That the claimant was not the regular worker of the

management of FCI.

That the payment of wages to these claimants was

directly made by the contractor.

That the claimant was engaged on the basis of

requirement and they were removed when there was no

requirement. No harassment and exploitation against these

claimants was practiced by the management of the FCI. It

is respectfully submitted that there is no question arise

for any termination from the service of corporation as there

is no violation of any provision of Industrial law. It is

pertinent to mention here that the services of claimants

were hired through the contractor on the contract basis as

per the provisions of the contract labour. (Regulation and

Abolition Act 1970).

That consolidated contracted amount was paid to

the contractor and thereafter wages to workmen were paid

directly to the contractor and not by the FCI.

That the claimant have already filed claim and sought

similar relief in transferred I.D. No. 69 of 2008 and the same

has already been decided on merits here that in the garb of

union on various names formed by the contractor/self

claimed leaders filed various claims on the same relief,

which were decided in favor of the Corporation. The true

copy of the award dated 11.3.2010 and 3.5.2010 are filed

with the Reply be marked as MW-1/1.

That due to the unrest created by these unions, the

work at Jwalapur depot could not performed and was

running huge loss. The telegram no. F.1 (78) /96 Jwalapur/

Adhoc dated 15.3.97 was sent to Sh. Dheer Singh Bishan

Pal, Village Akoda Kala, Haridwar regarding their

appointment as Adhoc Handling Transport Contractor at

jwalapur Depot .12. The true copy of the same is filed with

the Reply be marked as MW-1/2.

10.

That it is pertinent to mention here that the

respondent invited the tenders under HTC provision and

appointed by HTC and got the work done through them.

The worker union has itself accepted the fact that they

were working under the contractor during the period 1994-

1995. It proves and substantiates the respondent claim

that depot was functioned under the contract system up

to the year 1996. In fact the said depot was functioned

under the contract system right from beginning /hiring till

the course of the operations in the depots. True copy of

the relevant document are filed with the reply and be

marked as MW-1/3(colly).

11.

That expiry of the contract of earlier contractors

under which the claimant were working , a new Contractor

M/s Rana Transport Co. was appointed as regular HTC

and the ex contractor’s labour created unrest and insisted

for their induction in newly appointed contractor, who

had already engaged their workers for handling work of

the depot become paralyzed therefore delivery to the State

Govt. were badly effected. Therefore to solve the problem

a meeting was held with the worker union on 20.6.1998 in

which it was agreed that the 80 workers who were working

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4339

under the earlier contractors may be employed with the

existing contractor but the other worker union was claiming

for the same relief and the existing contractor was not

ready to engage the labour of Ex. Contractors hence the

efforts made by the corporation could not be materialized.

Due to the standstill for long time the corporation

constrained to discontinue the work in Jwalapur Depot

and dehired Godown.

12.

That one Hardeep Singh alongwith the other 79

worker file a writ petition before the Uttarakhand High

Court being writ petition no. 187 of 2005 stating that the

petitioners, who are the members of FCI, are contract

labourers prior to 1996 and they are working for more than

10 years at Jwalapur Depot and are taking direct payment

under the provident fund scheme and fund has been

deducted since 1.1.96—15.8.97. The Hon’ble Court had

finally disposed of the petition directing to approach

proper forum.

It is therefore the present claim of the claimant is

wholly misconceived, groundless and unsustainable in

law and liable to be dismissed with cost.

In the light of contention and counter contention I

perused the claim statement, written statement, rejoinder,

evidence of the parties as well as written submission of

Ld. A/R for the parties. Which shows that writ-petition

no. 187(SS)2005 of 80 writ-petitioners has been decided

on 20.3.2006 by Hon’ble High Court of Uttrakhand

alongwith aforesaid writ-petition special appeal also been

decided.

Through order dated 20.3.2006 is Lordship of

Hon’ble High Court of Uttrakhand directed as follows:-

In view of the aforesaid,We are convinced that there

can be conciliation in the matters under dispute with regard

to the points raised herein. The writ petitioners, therefore,

may move the industrial Adjudicator under the provisions

of the Industrial Disputes Act, 1947. The petitioners are

given 150 days’ time to approach the Assistant Labour

Commissioner shall conclude the conciliation proceedings

within one month. If conciliation proceedings within one

month. If conciliation fails, he shall report the matter to the

Appropriate Government, which shall make a reference to

the Labour Court within a period of one month. The Labour

Court concerned shall then decide the dispute, according

to law, within a period of three months.

In compliance of aforesaid direction of Hon’ble High

Court of Uttrakhand certain workmen raised Industrial

Dispute which was registered as ID. No. 10/2006 Dheer

Singh and others V/s the Senior Regional Manager F.C.I.

decided by Dr. R.K. Yadav, Presiding Officer, CGIT-1,

Karkardooma Court, Delhi on 11.03.2010. Through award

dated 11.03.2010 claim was found without merit and

petitioners were held not entitled to any relief. Copy of

this award is on record.

Similarly few workmen raised ID No. 18 of 2006 which

was heard and decided by Sh. Ram Prakash, Presiding

Officer, CGIT-cum-Labour Court , Kanpur on 03.5.2010.

Through which no workmen was found entitled to any

relief. Copy of this award is on record.

On the aforesaid grounds Ld.A/R for the

management stressed that Claim of the claimants is wholly

misconceived, groundless and unsustainable in law and

liable to be dismissed with cost.

While on the other hand Ld. A/R for the workmen

stressed that reference of the instant ID has been made

incompliance of order of Hon’ble High Court of Uttrakhand.

Perusal of record makes it crystal clear that Award

passed in aforesaid Industrial Dispute have become final

because no appeal etc. is set to have been filed by workmen

against awards passed against them.

Although proper remedy to workmen was to seek

remedy against aforesaid Awards which have not been

availed by them.

In this background principle of res-judicata is

applicable because parties etc. are almost similar.

On the basis of aforesaid discussion I am of

considered view that present Industrial Dispute is barred

by principle of res-judicata. Hence Claim of claimants is

liable to be dismissed and workmen is entitled to no relief.

Award is accordingly passed.

Dated : 24/04/2014

HARBANSH KUMAR SAXENA, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1621-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w-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;] ukxiqj ds iapkV (lanHkZ la[;k 54@2005)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@226@2004&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O. 1621.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 54/2005)

of the Cent. Govt. Indus. Tribunal-cum-Labour

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

dispute between the management of Mahakali Colliery of

Western Coalfields Limited, and their workmen, received

by the Central Government on 26/05/2014.

[No. L-22012/226/2004-IR (CM-II)]

B. M. PATNAIK, Desk Officer

4340

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/54/2005

Date : 02.05.2014

Party No. 1 : The Sub Area Manager,

Mahakali Colliery of Western Coalfields

Ltd.,

Post-Chandrapur,

Distt.-Chandrapur (MS)

Versus

Party No. 2 : Shri Sambhoo Vishwakarma,

General Secretary,

Bharatiya Koyla Khadan Mazdoor Sangh

(BMS), Wardha Valley,

Vishwakarma Sadan,

At-Mahakali Colliery,

Post-Babupeth, Tah.-Chandrapur,

Chandrapur (MS)

AWARD

(Dated: 2nd May, 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 Mahakali Colliery of Western Coalfields

Limited and their workman, Shri Mohindranath Roy, for

adjudication, as per letter No.L-22012/226/2004-IR (CM-II)

dated 29.06.2005, with the following schedule:-

“Whether the action of the management in relation

to Mahakali Colliery of WCL in reducing the pay

from Rs. 203.69 day and allowances in group V-A of

loader paid in July, 2001 to Rs. 129.79 per day and

allowances in Cat.-II w.e.f. 01.08.2001 in respect of

Shri Mohindranath Roy, Loader, Mahakali Colliery,

WCL is legal and justified? If not, 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 and accordingly, the workman, Shri

Mohindranath Roy, (‘the workman” in short), filed the

statement of claim through the union, Bhartiya Koyla

Khadan Mazdoor Sangh (BMS) (“the union” in short) and

the management of Western Coalfields Limited (“Party

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

The case of the workman as presented by the union

in the statement of claim is that it (union) is a registered

Trade union under the Trade Unions Act, 1926 and party

no.1 is a government company and is a state within Article

12 of the Constitution of India and under the approval of

Ministry of Coal, Central Government constituted a Joint

Bipartite Committee for the Coal Industry (“JBCCI” in

short) consisting of all employers of Coal Industry and

the five Central Trade Unions and the JBCCI jointly

deliberated over the wage structure including dearness

allowance, fitment in revised scale of pay, Pension, fringe

benefits, service conditions and other allied matters

including welfares/safety measures and such deliberations

is known as “National Coal Wage Agreements” (“the

NCWAs” in short) and the JBCCI has several committees

and sub-committees for proper and uniform

implementation of the provisions of NCWA in the entire

Coal Industry and for maintaining uniformity and proper

implementation, the Secretary, JBCCI issues

implementation instructions from time to time and no

unilateral decision can be taken by any subsidiary in

contravention of the provisions contained in the NCWAs

and the provisions are mandatory and binding on all coal

companies including WCL and so far seven NCWAs have

been signed so far, which are known as NCWAs-I, II, III,

IV, V, VI, and VII dated 11.08.1974, 11.08.1979, 27.07.1989,

19.01.1996, 23.12.2000 and 15.07.2005 respectively and

the workman was appointed as a piece rated loader in

Group-VA on 25.12.1989 and a memorandum of settlement

dated 02.11.1992 was signed under Section 12(1) of the

Act, between the party No.1 and the Union, RKKMS

(INTUC) over 10 point charter of demands before the

Regional Labour Commissioner (C), Nagpur and by virtue

of above settlement, the terms of the settlement become

terms and conditions of service of the workman and are

binding on the management and all the workmen and the

said settlement is at par with an award and cannot be

amended in any way except with the assistance with the

Conciliation Officer. It is further pleaded by the union that

as per the said settlement, the party No.1 agreed to provide

alternate light job to the employees, particularly to loaders,

who are physically weak due to their old age sickness or

I.O.D., irrespective of vacancies and to fully protect the

group wages including SPRA where ever applicable on

conversion from piece rated to time rated/monthly rated

and in terms of NCWA-VI, all the workmen were given

minimum benefit of Rs.414.53 per month or Rs.15.94 per

day and the loaders were placed in group V-A and on

accounts of wage revision as per NCWA VI dated

23.12.2000, the workman was getting basic of Rs.203.69

and special piece rated allowance till the month of July,

2000 and the workman sustained injuries on duty during

and in course of employment on 20.07.2000, while working

as an underground loader at Mahakali Colliery and even

after his sustaining injuries on duty on 20.07.2000, he

continued to get the basic of Rs.203.69 and Rs.38.86 SPRA

per day of group V-A in accordance with NCWA-VI up to

July, 2001 and though the workman was entitled for the

said basic and SPRA of Rs.342.57 per day from 01.07.2001

in view of NCWA-VII, the party No.1 reduced his basic

from Rs.263.69 to Rs.129.79 per day and stopped the

payment of SPRA w.e.f. 01.08.2001.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4341

It is also pleaded by the union on behalf of the

workman that the workman was examined by the Medical

Board and according to the recommendations of the

Medical Board, the Superintendent of Mines/Manager,

Mahakali Colliery issued office order dated 02.09.2002 and

transferred him from loader ‘s job to water supply section

of the colliery to work as a pump khalasi as alternate surface

duty and such transfer was done due to exigency, vacancy

and requirement, in accordance with the provisions of

manpower budget and as per office order No. 147 dated

24.02.2003, the Superintendent of Mines/Manager,

Mahakali Colliery converted 36 piece rated loaders

including the workman to time rated categories with

different designations and the workman was also kept on

probation for a year and his wages was fixed at midpoint

of category II and the workman and the union approached

the party No.1 against the reduction of the wages of the

workman and to protect his basic and SPRA in writing and

also personally, repeatedly, but party No.1 even did not

care to reply to their approach and the action of the party

No.1 is arbitrary, discriminatory and not reasonable and

party No.1 had given wage protection to number of piece

rated loaders on their conversion to time rated categories

due to their ill health like that of the workman and the

reduction of the wages of the workman is in contravention

of the certified standing order and is illegal and the

workman is entitled for protection of his wages of loader

group V-A w.e.f. 01.08.2001and all consequential benefits

including revision of his basic and SPRA in terms of

NCWA –VII.

The party No.1 in the written statement has pleaded

inter alia that the union has not filed on record any

document indicating that the workman was its bona-fide

member and his case is supported and espoused by it as

required under Section 2(k) of the Act and the reference

suffers from basic requirement of industrial dispute and

on this ground, the reference is not maintainable and as at

the time of raising of the dispute by the union before the

ALC and so also, at the time of making the reference by

the Central Government, the workman was not a loader,

but he was a time rated employee, the terms of reference

on this count are factually incorrect and the reference is

not proper.

It is further pleaded by the party No.1 that the

workman was appointed in its service as a piece rated

loader in group V-A w.e.f. 25.12.1989 and the workman got

injured on 27.07.2000, while he was on duty and its Apex

Medical Board examined the workman and assessed his

PPD at 12% and recommended his case for alternate surface

duty and accordingly, surface duty was assigned to him

w.e.f. 17.06.2001 and the workman was also paid

compensation amount of Rs.26520.28 in the month of July,

2001 and even though, surface duty was assigned to the

workman, in the midst of the same, he requested in writing

to assign him the job of pump khalashi, which was to be

vacant in the month of September, 2002 due to retirement

of one Shri Ram Murat Suraj, who was the occupant of the

said post, on the ground of his facing difficulties in

performing the surface job given to him and on

consideration of the request of the workman, he was given

the duty of the pump khalashi at Mahakali Colliery w.e.f.

23.02.2003 and the said post comes under time rated

category and therefore, he was placed in category- II vide

letter No.5147 and the workman happily accepted the same

and never disputed anything at that point of time and in

view of the change of category and post, the wages of the

workman was fixed in the changed category and post and

accordingly, he was given all the benefits in the

subsequent period treating him in category –II w.e.f.

23.02.2003.

Party No.1 has further peladed that the settlement

dated 02.11.1992 stood modified w.e.f. 31.10.1995 and the

same is in force since then without being challenged or

declared legally void and the changes in the wages of the

workman came to be correctly made as per Rules, since he

was working in a lower category and the change of the

workman from piece rated loader to time rated category

was not on administrative ground, but due to the fact that

the workman was not able to perform his job as a loader

and opted for time rated and therefore, the workman is not

entitled for any relief.

In the rejoinder, it is pleaded by the union on behalf

of the workman that the Party No. 1 has raised frivolous

technical points regarding the maintainability of the

reference only to delay and defeat the claim of the workman

and such technical objections cannot be entertained, in

view of the Rulings of the Hon’ble Apex Court given in

different judgments and the Central Government has

referred the industrial dispute for adjudication and as such,

the same is to be adjudicated by the Tribunal and there is

no recognized union in WCL and as per law, when there is

no recognized union, every registered union enjoys similar

status and can raised industrial dispute and Party No. 1

has settled number of cases with the union before the

ALC (C), Chandrapur and it is competent to raise the

dispute on behalf of the workman. The union has also

reiterated the facts regarding sustaining of injuries by the

workman while on duty, his examination by the Medical

Board to assess his disability and giving of light work to

the workman by Party No. 1 as per the recommendation of

the Medical Board and the entitlement of the workman for

protection of his wages etc.

In order to prove the claim, the union has examined

the workman as a witness. One Shri Shrikrishna S. Shelke,

the Senior Personnel Manager of Rayatwari Sub Area has

been examined as a witness by Party No. 1. Both the

parties have relied on documentary evidence as well.

The workman so also the witness for Party No. 1 in

their respective examination in-chief, which is on affidavit

4342

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

have reiterated the facts mentioned in the statement of

claim and in the written statement respectively.

In his cross-examination, the workman has admitted

that the copy of the letter filed by the management as

annexure-A (Ext.M-III) is the copy of his letter submitted

to the Superintendent of Mines/Manager, Mahakali

Colliery.

The witness for Party No. 1 in paragraph 2 of his

affidavit has stated that the workman was deployed in TR

category on the basis of recommendations of the Medical

Board. In his cross-examination, also, the witness for the

party No.1 has stated that after medical examination by

the Apex Medical Board, the permanent disability of the

workman was assessed at 12% and the Medical Board had

recommended to give the workman alternate surface duty

and there is no piece rated duty on surface of the coal

mine.

It is to be mentioned here that in paragraph 6 of the

written statement also, the Party No. 1 has mentioned that

based on the recommendation of the Medical Board,

alternate surface duty was assigned to the workman.

It is to be mentioned further that in view of the stands

taken by the parties in the statement of claim and written

statement, there is no need to discuss the oral evidence of

the witnesses in detail.

In this case all most all the facts pleaded in the

statement of claim have been admitted by the Party No. 1.

The Party No. 1 has pleaded that the workman is not

entitled to protection of his wages, as his placement in the

post of khalashi was made by it, in response to the request

of the workman himself and the provision of protection of

wages as mentioned in the settlement dated 02.11.1992

was not applicable to his case and the fixation of wages of

the workman at midpoint of time rated category was made

as per the policy decision of the Party No.1.

At the time of argument, it was submitted by the

learned advocate for the Party No. 1 that this dispute is

not an industrial dispute and the union has no backing of

any member at Chandrapur and the workman is not a

member of the union and there is no community of interest

and the dispute is purely an individual dispute. It was

further submitted by the learned advocate for the Party

No. 1 that the posting of the workman as khalashi was as

per his request and his wages was fixed at midpoint of

time rate category in accordance with the policy decision

of the company’s modified settlement arrived at by an

agreement dated 31.10.1995 and such facts have been

proved beyond doubt from the evidence on record

including Ext. M-III and such fixation of wages of the

workman is just and fair and the workman is not entitled to

any relief.

Per contra, it was submitted by the learned advocate

for the workman that the evidence on record clearly shows

that the conversion of the workman from loader to time

rated job was as per the recommendation of the Medical

Board of Party No. 1 and not on the request of the workman

and the workman is entitled for protection of his wages as

per the settlement dated 02.11.1992, Ext. W-III and the

union is entitled to raise the dispute and the dispute is an

industrial dispute and the workman is entitled for the reliefs

as claimed.

It is to be mentioned here that learned advocate for

the workman has referred to one award passed by this

Tribunal in support of his submissions. However, it is to

be mentioned that the present reference is to be considered

and decided on the facts and circumstances of this case

and the evidence on record and not on the basis of the

findings given in other case, basing on the respective

facts and circumstances and evidence on record of the

said case.

10.

On perusal of the materials on record, it is found

that the union is entitled to espouse the dispute on behalf

of the workman. From the letter of reference made by the

Central Government, it is found that the dispute was raised

by the union before the conciliation officer and on failure

of the conciliation, the reference has been made for

adjudication to this Tribunal and the union has been

directed to file the statement of claim and relevant

documents in support of the claim. It is also found from

the pleading of the parties and the materials on record that

the dispute raised by the union is an industrial dispute.

11.

From the pleadings of the parties and the evidence

on record, it is clear that the workman was injured while on

duty in the colliery and he was examined by the Medical

Board and the Medical Board on examination found him

unfit to work as a loader, but found him fit to do light work

and recommended to give him alternate duty and on the

basis of such recommendation, the workman was given

alternate work on surface. It is also found from record that

the workman as per Ext. M-III, requested the party No.1 to

post him as a khalashi in the water supply section as he

was facing difficulty in doing the alternate work of tying

tarpoline over the dumpers due to the disability sustained

by him and considering his request, party No.1 posted

him as a khalashi. Moreover, it is found from the pleadings

of the parties, the documents on record and the evidence

of the witness of the party no.1 that the workman was

already given alternate work on surface as per the

recommendation of the Medical Board much prior to

submission of Ext. M-III by the workman. So, it is clear

from the record that the conversion of the work from piece

rated to time rated by the party no.1 on the recommendation

of the Medical Board and not on the request of the

workman.

12.

For better appreciation, I think it proper to mention

paragraphs 1(i) to 1(iii) of the settlement dated 02.11.1992.

The same are as follows:-

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4343

1.1

Demand no.1(i) :

That the management shall provide alternate/light

job to the employees particularly loaders who are

physically weak due to their old age, sickness or I.O.D.

irrespective of vacancies.

1.2

Demand no. 1(ii) :

That the management shall fill up 50% vacancies

arising out of natural wastage in Time Rated and monthly

Rated category/grade from amongst the piece rated

workers who have completed at least 15 years of service.

1.3

Demand no. 1(iii) :

That the management shall on conversion from P.R.

to TR/MR will fully protect the group wages including

SPRA wherever applicable. The basic pay so fixed in the

TR/MR category/grade if exceeds the maximum of the

category/grade, the balance will be treated as personal

pay to the person concerned which shall be adjusted in

the subsequent revision of pay/promotion. This decision

shall be effective from 01.01.1992. It is also agreed that the

cases already converted between 14.11.1990 to 31.12.1991

shall be considered for notional fixation only and earlier

cases not be considered.

13.

On perusal of the settlement dated 02.11.1992, it is

found that in para 1(iii), the party no.1 has agreed to protect

the wages of the loaders converted to time rated or monthly

rated. There is no specification in that paragraph that the

same will apply only to cases covered under para 1(ii). On

plain reading of the paragraphs 1(i) to 1(iii), it is found that

there is nothing in the same to show that para 1(iii) has no

application to the cases of para 1(i), directly or by

implication. Hence, I find no force in the submission made

by the learned advocate in that respect.

14.

So far the modified settlement dated 31.10.1995 is

concerned, on perusal of the same, it is found that the

same is not a settlement at all and the same is only the

record note of discussion held between the management

of WCL and RKKMS on 31.10.1995. The said so called

settlement has no legal sanctity and cannot be said to be

a legal settlement at all.

Moreover, in the said record note of discussion also

in para 5, provision has been made to protect the wages of

the loader converted to time rated or monthly rated

category under certain circumstances. para 5 of the said

record note read as follow:-

“Such piece rated workman who may put in time

rated/ monthly rated in future by managerial decisions i.e.

without seeking option from time rated/monthly rated or

without going through the selection process against

internal notification from time rated/monthly rated, will

continue to get protection of piece rated wages such piece

rated workmen who came to TR as per option given by

them will not get this benefit.”

As in this case, it is already held that the workman

did not give any option for his conversion and the

conversion was made by party no.1 on the

recommendation of its Medical Board and the same is a

managerial decision, the workman is entitled for protection

of the basic wages and SPRA of loader. Hence, it is

ordered:-

ORDER

The action of the management in relation to Mahakali

Colliery of WCL in reducing the pay from Rs. 203.69 day

and allowances in group V-A of loader paid in July, 2001 to

Rs. 129.79 per day and allowances in Cat.-II w.e.f. 01.08.2001

in respect of Shri Mohindranath Roy, Loader, Mahakali

Colliery, WCL is illegal and unjustified.The workman is

entitled for protection of his basic wages and SPRA of

piece rated loader w.e.f. 01.08.2001 and all consequential

benefits arising out of such wage protection.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1622-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w-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; ukxiqj ds iapkV (lanHkZ la[;k 05@2007)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@257@2006&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O. 1622.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 05/2007)

of the Cent. Govt. Indus. Tribunal-cum-Labour

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

dispute between the management of Western Coalfields

Limited, and their workmen, received by the Central

Government on 26/05/2014.

[No. L-22012/257/2006-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/05/2007

Date: 24.04.2014.

Party No. 1 : The Sub Area Manager,

Saoner Sub Area of WCL

Tah. Saoner, Distt. Nagpur

Versus

Party No. 2 : Shri Deorao Baburao Dhurve

R/o. Qr. No. 144, New Hutment Colony,

PO & Tah.-Saoner, Distt. Nagpur.

4344

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

AWARD

(Dated: 24thApril, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Shri Deorao

Baburao Dhurve, for adjudication, as per letter No.L-22012/

257/2006-IR (CM-II) dated 18.01.2007, with the following

schedule:-

“Whether the action of the management of WCL in

terminating the services of Shri Deorao Baburao

Dhurve w.e.f. 27.07.2000 is legal and justified? If

not, to what relief is the workman entitled?”

On receipt of the reference, parties were noticed to

file their respective statement of claim and written

statement, in response to which, the workman, Shri Deorao

Baburao Dhurve, (“the workman” in short) filed the

statement of claim and the management of WCL, (“party

no.1” in short) filed the written statement.

The case of the workman as presented in the

statement of claim is that he was appointed as a labourer

in Saoner Sub-Area of party no.1 on 04.04.1990 and he

worked with sincerity to the satisfaction of the authority

and due to some family problems, he was unable to attend

his duties for two months and for that, the party no.1

issued a charge sheet against him, under clause 26.30 of

the Standing Order, for unauthorized absence from duty

and on bare perusal of the charge sheet and the records of

the inquiry, it can be found that the inquiry was a sham

enquiry and fraud was perpetrated by the enquiry officer

and the enquiry officer acted as a mere stooge for the

party no.1, without showing any respect to the quasi

judicial duties entrusted to him and the equiry report

submitted by the enquiry officer on the fact of the record

is replete with blatant falsehood and no semblance of an

opportunity, much less adequate and effective opportunity

was given to him to demonstrate his innocence and he

was not given any opportunity to defend his case and the

entire enquiry was conducted behind his back and for

obvious reasons, a copy of proceedings was not

forwarded to him and the instant case presents a sordid

picture of management’s arbitrariness and exploitation,

only because, he was the representative of the employees

and every time he had come out with proper demands of

the employees and the order of his dismissal from services

dated 25.07.2002 is bad in law being breach of section 78

of Industrial Relations Act, 1946 and the said order was

passed in respect of his unauthorized absence from duty

and the conclusions reached by the enquiry officer are

perverse and the findings are based on no evidence and

the enquiry officer did not discuss and assess the evidence

of the witness and the perversity of the findings renders

the order of dismissal as illegal and the same amounts to

victimization on account of the union activities carried on

by him.

It is further pleaded by the workman that the

dismissal order was approved by the Chief Manager, WCL,

Saoner Area, who was the Appellate Authority, under

clause 30 of the Standing Order and therefore, his right of

appeal was forfeited and the enquiry as conducted was

nothing but a farce.

The workman has prayed for his reinstatement in

service with continuity, full back wages and all other

consequential benefits.

The party no.1 in the written statement has pleaded

inter-alia that the reference has been made belatedly, as

the workman came to be dismissed on 25.07.2000 and the

workman for the first time approached the Labour

Commissioner on 05.12.2005, after a lapse of more than 4

years and in view of the failure of the conciliation

proceedings, the reference was made to the Tribunal in

2007, however, the workman took almost four years to file

the statement of claim and the conduct of the workman

demonstrates that he is not at all interested in doing the

job and hence, the reference is liable to be answered in the

negative on the ground of delay and latches and during

his service tenure also, the workman was not interested in

performing his duties and constantly remaining absent

without any intimation to the management and the

workman was appointed on 04.04.1990. as a General

Mazdoor and since the date of his appointment, he was

not keen in performing his duties and was remaining absent

and on 05.12.1991, a charge sheet was issued against the

workman for remaining absent and vide letter dated

11.12.1993, he was issued with a warning and as the

workman did not improve his conduct of remaining absent,

another charge sheet dated 28.01.1994 was issued against

him, which was culminated by imposing the punishment

of deduction of one day wages and strict warning and in

similar manner, the workman was issued with warning

letters dated 11.03.1994, 10.05.1994 and 23.07.1994, for

remaining absent continuously and unauthorisedly and

as the workman again remained unauthorized absent, it

was constrained to issue the charge sheet dated 31.01.1995

and the same was culminated by imposing punishment of

stoppage of one increment with cumulative effect and

inspite of the same, the workman did not improve his

conduct, so another warning letter dated 20.05.1995 was

issued against him and on 24.02.1998, another charge sheet

was submitted against the workman for remaining

unauthorized absent and the enquiry conducted against

him culminated by order dated 04.11.1998 by imposing

punishment of stoppage of one increment with cumulative

effect.

It is further pleaded by party no.1 that inspite of

imposition of various kind of punishments upon the

workman and inspite of strict warnings given to him from

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4345

time to time, the workman did not attend his duties for 64

days in the year 1999 and he also did not attend his duties

for a single day up to June, 2010, so, the workman was

issued with the charge sheet dated 08/10.01.2000, which

was self explanatory and the workman did not reply to the

charge sheet, so it had left with no alternative, but to

initiate the departmental enquiry and the workman on the

first date of the enquiry itself i.e. on 14.04.2000, admitted

the charges levelled against him, so the enquiry officer

concluded the enquiry on 14.04.2000 itself and all the

allegations made against the enquiry and enquiry officer

are totally after thought and baseless and management

had given fair opportunity to the workman, however, the

workman himself having admitted the charges was not at

all interested in further enquiry and there could not have

been any further enquiry and after taking into consideration

the aforesaid facts, the management was constrained to

dismiss the workman and the order of dismissal was not

approved by the Chief General Manager, but the same was

confirmed by the Sub-Area Manager, who was the

appointing authority and the workman could have filed

the appeal before the Chief General Manager and the

workman did not file any appeal and he has tried to gain

the sympathy of the Tribunal by making false pleas and

after conclusion of the enquiry, the copy of the enquiry

report, proceedings and other documents were supplied

to the workman on 25.06.2000 and in response to the same,

the workman by his letter dated 27.06.2000 once again

admitted the charges levelled against him and pleaded

sympathy and second show cause notice dated 29/

30.06.2000 was issued to the workman and in his reply

dated 02.07.2000 to the second show cause notice, the

workman once again admitted the charges levelled against

him and pleaded sympathy and by taking into

consideration all the facts, the order of dismissal dated

25.07.2000 was passed by it and the workman is not entitled

to any relief.

As this is a case of termination of the services of the

workman as a punishment in the departmental enquiry

held against him, the fairness or otherwise of the

departmental enquiry was taken up for consideration as a

preliminary issue and by order dated 10.02.2014, the

departmental enquiry held against the workman was held

to be legal, proper and in accordance with the principles

of justice.

At the time of argument, it was submitted by the

learned advocate for the workman that the Enquiry Officer

acted only as a mere stooge of the management and the

enquiry report on the face of the record is replete with

blatant falsehood and no semblance of opportunity much

less adequate and effective opportunity was given to the

workman to demonstrate his innocence and the

conclusions drawn by the Enquiry Officer are perverse

and the findings are based on no evidence and the

perversity of the findings renders the order of dismissal

as illegal and the same amounts to victimization, on

account of union activities carried n by the workman and

the dismissal order was approved by the Chief General

Manager, Saoner Area of WCL, who is the appellate

authority, as declared under clause 30 of the Certified

Standing Order and due to approval of the order of

punishment by the appellate authority, the workman’s right

to appeal was forfeited and as such, the workman is entitled

for reinstatement in service with full back wages and all

other consequence benefits.

Per contra, it was submitted by the learned advocate

for the party No.1 that by order dated 10.02.2014, it has

already been held by this Tribunal that the departmental

enquiry held against the workman to be fair, legal and in

accordance with the principles of natural justice and the

reference is liable to be answered in the negative due to

the delay and latches in raising the dispute by the workman

and the workman was dismissed on 25.07.2000 and after a

period of about more than 5 years, the workman

approached the Assistant Labour Commissioner(central),

Nagpur for conciliation for the first time on 05.12,2005 and

the reference was made to the Tribunal in 2007, after a

period of seven years from the date of dismissal and from

the materials on record, it is clear that the workman is

responsible for the delay and though, the reference was

made in 2007, the workman filed the statement of claim

only on 17.03.2011.

It was further submitted by the learned advocate for

the party No.1 that within a period of 18 months from the

date of his appointment on 04.04.1990, the workman started

remaining unauthorized absent from duty from time to time,

for which several charge sheets were submitted against

him and he was inflicted with punishments of warning,

deduction of wages and withholding of increments with

cumulative effect, but still then, the workman did not

change his attitude of remaining unauthorized absent and

party No.1 noticing the workman to have attended duty

only for 64 days in 1999, issued charge sheet dated 08/

10.01.2000 for remaining unauthorized absent and in the

said charge sheet, there was mention about issuance of

the earlier charge sheets and inspite of receipt of the charge

sheet, the workman did not attend duty for a single day till

June, 2000 and the workman also did not submit his reply

to the charge sheet and in the first sitting of the

departmental enquiry on 14.04.2000, the workman admitted

the charges levelled against him and in view of the

admission of the charges by the workman, the Enquiry

Officer concluded the enquiry and the workman in the

entire statement of claim filed by him has not pleaded as to

how the findings of the Enquiry Officer are perverse and

the punishment imposed against the workman cannot be

said to be shockingly disproportionate and there is no

scope to interfere with the punishment and the workman

is not entitled for any relief.

4346

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

In support of the submissions, the learned advocate

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

in (2008) I SCC-224(L & T Kamastu Vs. N. Uday Kumar).

Before delving into the merit of the matter, at the

cost of repetition, it is to be mentioned that by order dated

10.02.2014,the departmental enquiry conducted against the

workman has already been held to be legal, proper and in

accordance with the principles of natural justice. So, the

submissions made by the learned advocate for the

workman in regard to the fairness or otherwise of the

departmental enquiry cannot be considered again.

The first contention raised by the learned advocate

for the party No.1 is to answer the reference in the negative

due to delay in raising the dispute by the workman.

Admittedly, the workman was terminated from services on

27.07.2000 and he raised the dispute in the year 2005, before

the Assistant Labour Commissioner(central), Nagpur and

there was a delay of about five years. However, it is well

settled by the principles enunciated by the Hon’ble Apex

Court in a number of decisions that, “Merely, because the

Act does not provide a limitation for raising a dispute, it

does not mean that the dispute can be raised at any time

without regard to the delay and reasons there for. It is

only reasonable that the disputes should be referred as

soon as possible after they have arisen and after

conciliation proceedings have failed. The delay would

certainly be fatal if it has resulted in material evidence

relevant to adjudication being lost and rendered not

available.”

However, delay in the present case has not been so

culpable as to disentitle the workman to any relief. Hence,

it is not possible to accept the submission raised by the

learned advocate for the party No.1 that on account of

delay and latches in raising the dispute by the workman,

the reference is liable to be answered in the negative.

It was submitted by the learned advocate for the

workman that the conclusions reached by the Enquiry

Officer are perverse and the said findings are based on no

evidence and the perversity of the findings renders the

order of dismissal as illegal and amounts to victimization.

It is well settled that in a case where there is no

defect in the procedure in the course of a domestic enquiry

in to the charges for misconduct against the employee,

the Tribunal can interfere with an order of dismissal, only

where the findings are perverse or where there is no prima

facie case. In such a case, the Tribunal does not sit as a

court of appeal, weighing or re-appreciating the evidence

itself, but only examines the finding of the Enquiry Officer

on the evidence in the domestic enquiry as it is.

Judging the present case in hand with the touch

stone of the principles as mentioned above, it is found

that the findings of the enquiry officer are not perverse. It

is clear from the materials on record that the workman

attended the departmental enquiry and voluntarily

admitted the charges levelled against him. On the basis of

the own admission of the workman, the Enquiry Officer

held the workman guilty of the charges levelled against

him. Hence, it cannot be said that the findings of the

Enquiry Officer are based on no evidence or they are

perverse.

10.

So far the proportionality of the punishment is

concerned, it is found that grave misconduct of

unauthorized absent from duty has been proved against

the workman in a properly conducted departmental

enquiry. It is also found that the workman had been found

guilty of unauthorized absent several times. Applying the

principles enunciated by the Hon’ble Apex Court in (2008)

SCC-224(supra) to the case in hand, it is found that the

punishment of dismissal of the workman from services

cannot be said to be harsh or shockingly disproportionate.

11.

It was submitted by the learned advocate for the

workman that the dismissal order was approved by the

appellate authority, the Chief General Manager and thereby,

the workman lost the scope of appeal. However, on perusal

of the approval order of punishment, it is found that the

same was approved by the Sub Area Manager, Saoner and

not by the Chief General Manager as submitted. Hence,

there is no force in the submission made by the learned

advocate for the workman on that score.

12.

In view of the discussion made above and the

materials on record, it is found that there is no scope to

interfere with the order punishment of dismissal from

services past against the workman. Hence, it is ordered:—

ORDER

The action of the management of WCL in terminating

the services of Shri Deorao Baburao Dhurve w.e.f.

27.07.2000 is legal and justified. The workman is not entitled

to any relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1623-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w- 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;] ukxiqj ds iapkV (lanHkZ la[;k 10@2007)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@261@2006&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O. 1623.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 10/2007)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court, Nagpur

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4347

as shown in the Annexure, in the industrial dispute

between the management of WCL, and their workmen,

received by the Central Government on 26/05/2014.

[No. L-22012/261/2006-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/10/2007

Date : 25.04.2014

Party No. 1 : The Chief General Manager,

WCL, Pench Area, Po:Parsia,

Chhindwara (MP).

Versus

Party No. 2 : The General Secretary,

Sanyukta Koyla Mazdoor Sangh,

(AITUC), Central Office Iklehra, Pench

Kanhan Area,

Chhindwara (MP).

AWARD

(Dated: 25th April, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Shri Sarwan, for

adjudication, as per letter No. L-22012/261/2006-IR (CM-

II) dated 18.01.2007, with the following schedule:-

“Whether the action of the management of M/s.

WCL in dismissing Shri Sarwan from services w.e.f.

20.12.2004 is legal and justified? If not, to what relief

is the workman entitled?”

On receipt of the reference, parties were noticed to

file their respective statement of claim and written

statement, in response to which, the workman, Shri Sarwan,

(“the workman” in short) through his union, “Sanyukta

Koyla Mazdoor Sangh, (AITUC)”, (“the union” in short)

filed the statement of claim and the management of WCL,

(“party no.1” in short) filed the written statement.

The case of the workman as presented by the union

in the statement of claim is that the workman was working

in Bishnupuri no. 2 colliery and on 24.01.2003, a false charge

sheet was submitted against him by the party no.1 and the

workman submitted his reply to the charge sheet within

the stipulated time limit and as the workman became ill, he

was not able to attend duties and he sent information

about his illness to the party no.1 and the workman was

treated at the colliery hospital from 10.02.2003 and he was

declared fit to resume his duties w.e.f. 04.03.2003 and in

the medical certificate it was mentioned that the workman

had remained absent from 27.12.2003 and as the workman

had given prior intimation to the party no.1 about the

reason of his remaining absence by registered post, the

submission of the charge sheet against him was without

any basis and after working for two to three days, the

workman again suffered from mental illness and could not

able to join his duties and the family members of the

workman duly intimated about the mental illness of the

workman to party no.1 by registered post and Dr. C.A.

Tiwari declared the workman fit to resume duties by issuing

the medical certificate and the workman joined duties and

worked for some days, after which, he again suffered from

mental illness and therefore remained absent from duties

and after treatment, Dr. C.A. Tiwari declared the workman

fit to resume duties by issuing the medical certificate and

the workman submitted an application to the party no.1

alongwith the medical certificate to allow him to resume

duties, but party no.1 did not allow him to resume duties

and proceeded with the departmental enquiry on the

charge sheet dated 24.01.2003 and the workman attended

the departmental enquiry with his coworker and put forth

his defence before the enquiry officer, but the enquiry

officer did not consider at all the submission made by the

workman and his coworker and party no.1 was

predetermined to terminate the workman from services, by

hook or crook and in the charge sheet, allegation was

made against the workman that he remained absent from

27.12.2002 and in support of his absence, the workman

had produced the seek certificate issued by the colliery

doctor and he had been allowed to resume duty w.e.f.

04.03.2003 and from such facts, it is clear that the workman

never remained absent and whenever he had remained

absent, he had intimated about the same to the party no.1

and therefore, there was no question of conducting the

departmental enquiry against the workman and the

workman was terminated from services illegally and in

breach of the principles of natural justice and the workman

is entitled for reinstatement in service with continuity and

full back wages.

The party no.1 in the written statement has pleaded

inter-alia that the workman was working as DPR and he

was a habitual absentee and he remained absent from duty

unauthorisedly without intimation, permission or

sanctioned leave, hence he was issued with the charge

sheet dated 24.01.2003 for the misconduct of remaining

unauthorisedly absent from duty with effect from

27.12.2002 and the said charge sheet was sent to the

workman by registered A.D. Post and as no satisfactory

reply was received from the workman, the departmental

enquiry was ordered and vide Order dated 08.07.2003, Shri

P.K. Singh was appointed as the enquiry officer and the

workman attended the enquiry on 17.07.2003 and

requested the enquiry officer for time to bring his coworker

and the enquiry was adjourned to 02.08.2003 and on

02.08.2003, the workman asked for further time to produce

treatment paper and the enquiry officer adjourned the

4348

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

enquiry to 07.08.2003 and vide order dated 09.02.2004, Shri

Manoj Kumar, Assistant Manager was appointed as the

enquiry officer and the enquiry officer fixed the case to

15.04.2003 with due intimation to the workman, but as on

15.04.2003, the workman neither attended the enquiry nor

intimated anything about the reason of his absence, the

enquiry officer proceeded with the enquiry ex parte and

after taking evidence and closure of the enquiry, the

enquiry officer submitted his report to the competent

authority, holding the workman guilty of the charges and

the competent authority being satisfied about the fairness

of the departmental enquiry, issued the show cause notice

alongwith the copy of the enquiry report to the workman

by registered post with AD and as no satisfactory reply

was received from the workman, the competent authority

after taking into consideration the seriousness of the

misconduct proved against the workman, vide order dated

18.12.2004 passed the order of termination of the workman

from services and its action in terminating the services of

the workman is just and proper and the workman is not

entitled to any relief.

In the rejoinder, it is pleaded by the union that the

workman was not a habitual absentee and the workman

did not receive any document of the departmental enquiry

including the charge sheet and the enquiry conducted

against the workman was illegal and in breach of the

principles of natural justice.

As this is a case of termination of the services of the

workman after holding of a departmental enquiry against

him, the fairness or otherwise of the departmental enquiry

was taken up as a preliminary issue for consideration and

by order dated 28.11.2013, the enquiry conducted against

the workman was held to be legal, proper and in accordance

with the principles of natural justice.

At the time of argument,it was submitted by the

union representative that as the charge sheet was not

received by the workman, he did not submit his reply to

the same and in clause 28.1 of the Standing Order, it is

clearly mentioned that a departmental proceeding cannot

be initiated, unless and until the charge sheet is served on

the workman and the workman submitted his reply to the

same and the entire departmental enquiry conducted

against the workman is illegal and the report submitted by

the Enquiry Officer is actually not an Enquiry report, as in

the same, it has been mentioned that the Enquiry Officer

himself and the management representative were absent

on 15.04.2004 and if the enquiry Officer and the

Management representative were absent, then how it was

possible to conduct the departmental enquiry on

15.04.2004 and as such, the enquiry is illegal and concocted

and the workman is entitled for reinstatement in service

with continuity, full back wages and all consequential

benefits.

It is necessary to mention here that no argument

was made on behalf of the Party No. 1.

The argument advanced by the Union representative

is almost regarding the fairness of the enquiry. At the cost

of repetition, it is necessary to be mentioned here that by

order dated 28.11.2013, it has already been held that the

departmental enquiry conducted against the workman is

valid and in accordance with the principles of natural

justice. Hence, there is no scope to consider again the

submission made by the Union representative regarding

the fairness of the enquiry.

So far the contention regarding the report submitted

by the Enquiry Officer mentioning about the absence of

himself and the Management representative on 15.04.2004

is concerned, on perusal of the enquiry report, it is found

that the submission made by the Union representative in

that regard is not at all true and the same has no force.

Before delving into the merit of the matter, I think it

necessary to mention the principles envisaged by the

Hon’ble Apex Court in different judgments in regard to

the jurisdiction and power of the Tribunal to interfere with

the findings in a departmental enquiry and punishment

imposed against the delinquent workman.

“It is well settled that departmental enquiry is not

based by strict rules of Evidence Act, but by fair

play and natural justice and only total absence, but

not sufficiency of evidence before Tribunal is

ground for interference by court. It is also well settled

that interference with the finding of fact in a

departmental enquiry is permissible, only when,

there is no material for the said conclusion or that

on the materials, the conclusion cannot be that of a

reasonable man.

A finding recorded in a domestic enquiry cannot be

characterized as perverse by the Labour Court, unless it

can be shown that such a finding is not supported by any

evidence, or is entirely opposed to the whole body of

evidence adduced. In a domestic enquiry, once a

conclusion is deducted from the evidence, it is not

permissible to assail the conclusion even though, it is

possible for some other authority to arrive at a different

conclusion on the same evidence.

The jurisdiction of the Tribunal to interfere with the

disciplinary matters for punishment cannot be equated

with an appellate jurisdiction. The Tribunal cannot interfere

with the findings of the enquiry officer or competent

authority where they are not arbitrary or utterly perverse.

It is appropriate to remember that the power to impose

penalty on a delinquent officer is conferred on the

competent authority either by an act of Legislature or rules

made under the proviso of Article 309 or the Constitution.

If there has been an enquiry consistent with the rules and

in accordance with the principles of natural justice, what

punishment would meet the ends of justice is a matter

exclusively within the jurisdiction of the competent

authority. If the penalty can be lawfully imposed and is

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4349

imposed on the proved misconduct, the Tribunal has no

power to substitute its own discretion for that of the

authority.”

So, keeping in view the principles as mentioned

above, now, the present case in hand is to be considered.

On perusal of the materials on record, it is found

that this is not a case of no evidence or that on the

materials, the conclusion drawn by the enquiry officer

cannot be that of a reasonable man. The findings given

by the enquiry officer are based on the materials available

on the record of the departmental enquiry. The enquiry

officer has analyzed the evidence in a rational manner and

has assigned cogent reasons in support of his findings.

Hence, the findings of the enquiry officer cannot be said

to be perverse.

10.

So far the proportionality of the punishment is

concerned, serious misconduct of unauthorized absence

from duty for a long period and habitual absenteeism has

been proved against the workman in a properly conducted

departmental enquiry. Hence, the punishment of dismissal

from services imposed against the workman cannot be

said to be disproportionate. In view of the discussions

made above,it is found that there is no scope to interfere

with the punishment imposed against the workman. Hence,

it is ordered:

ORDER

The action of the management of M/s. WCL in

dismissing Shri Sarwan from services w.e.f. 20.12.2004 is

legal and justified.The workman is not entitled to any relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1624-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w- 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;] ukxiqj ds iapkV (lanHkZ la[;k 24@2005)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@165@2004&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O. 1624.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 24/2005)

of the Cent. Govt. Indus. Tribunal-cum-Labour

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

Dispute between the management of Hindustan Lalpeth

U/G Sub Area of WCL, and their workmen, received by the

Central Government on 26/05/2014.

[No. L-22012/165/2004-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/24/2005

Date : 22.04.2014.

Party No. 1 : The Sub Area Manager,

Hindustan Lalpeth U/G Sub Area of WCL,

Post: Lalpeth,

Tah & Distt. Chandrapur (MS).

Versus

Party No. 2 : Shri Lomesh M. Khartad,

General Secretary,

Rashtriya Colliery Mazdoor Congress,

Dr. Ambedkar Nagar

PO & Tah. Ballarpur,

Distt. Chandrapur. (MS)

Workman

: Rajaram Bakalu Nakka (Dead)

Substituted by :

(1)

Durgabai Rajaram Nakka (Wife)

(2)

Bakalu Balaiyya Nakka (father)

(3)

Shankar Bakalu Nakka

(younger brother)

AWARD

(Dated : 22nd April, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Shri Rajaram

Bakalu Nakka, for adjudication, as per letter No.L-22012/

165/2004-IR (CM-II) dated 30.03.2005, with the following

schedule:-

“Whether the action of the management in relation

to Hindustan Lalpeth U/G Sub Area of WCL in

terminating the services of Shri Rajaram Bakalu

Nakka, Coal Filler, Mana Incline, Chandrapur Area

vide Office Order no. WCL/CHA/HLUGSAM/M.I./

SOM/PER/1406 dated 04/05.05.2001 is legal and

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

entitled?”

On receipt of the reference, parties were noticed to

file their respective statement of claim and written

statement, in response to which, the union, the Rashtriya

Colliery Mazdoor Congress, (“the union” in short) filed

the statement of claim on behalf of the workman,Shri

Rajaram Nakka, (“the workman” in short) and the

management of Hindustan Lalpeth under Ground Sub Area

of Western Coalfields Limited (“party no.1” in short) filed

the written statement.

4350

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

The case of the workman as presented in the

statement of claim by the union is that it is a registered

trade union under the Trade Unions Act, 1926 and the

party no.1 is a government company and is a “State” within

the meaning of Article 12 of the Constitution of India and

the workman was appointed as a piece rated loader at

Hindustan Lalpeth Mine no.3 w.e.f. 08.01.1992 and the

workman put unblemished service and party no.1 issued a

charge sheet dated 02.05.1999 against the workman, for

absenteeism from duty from 12.04.1999 and there were

several serious infirmities in the said charge sheet and the

workman replied to the charge sheet, vide his letter dated

04.05.1999, in which, it was explained by him that his

absence was for genuine and satisfactory ground and for

reason beyond his control and the notice of the enquiry

dated 22.07.1999 fixing the enquiry to 06.08.1999 was

issued to the workman and on 02.08.1999, the workman

submitted a representation requesting to allow him to

engage Shri S.S. Gedam as his co-worker in the enquiry,

but party no.1 did not response to the same and after

lapse of about more than one year, a notice was issued by

party no.1 to the workman fixing the enquiry to 21.08.2000,

which was received by the workman on 28.08.2000 and the

workman visited the office and brought the said fact to

the notice of the Enquiry Officer and the enquiry officer

taking advantage of the situation and the simplicity and

ignorance of the workman, tried to blackmail him and

having not been successful, the Enquiry Officer took the

signature of the workman on one pretext or the other and

advised him not to go on duty on 01.09.2000, with the

assurance of arranging for his attendance and payment of

wages for that day and this fact was brought to the notice

of the management and after a lapse of about 8 months of

the so called enquiry, the Mines Manager, Mana Incline

issued a letter dated 27/28.04.2001 enclosing therewith

the copy of the report of the Enquiry Officer to the

workman, asking him to submit his explanation within 72

hours of the receipt of the same and the said letter was

received by the workman on 05.05.2001 and there were

several infirmities in the said letter, but the workman

submitted his explanation on 05.05.2001 under official

receipt and party no.1 without application of mind and

without verifying about the actual date of receipt of the

notice dated 27/28.04.2001, mechanically dismissed the

workman from service by order dated 04/05.05.2001 with

immediate effect and the punishment was harsh and the

same was predetermined and pre-decided and therefore

was illegal and arbitrary and the so called enquiry

proceedings and the enquiry report and the action taken

on the same were also illegal and the order of dismissal

was passed in utter disregard to the principles of natural

justice and amounted to victimization and unfair labour

practice and though several representations were made

by it and the workman himself, for reinstatement of the

workman in service with continuity and full back wages,

the same did not yield any result.

It is further pleaded by the union on behalf of the

workman that the workman appealed to the Chairman-cum-

Managing Director, for his reinstatement vide his letter

dated 29.06.2003, by registered post with AD and the same

was received on 12.07.2003 in the office of the CMD and

the workman also issued a reminder dated 16.08.2003, but

party no.1 did not even acknowledge the receipt of the

letters and the action of party no.1 was against the

provisions of the standing order and the record of the

departmental proceedings was manipulated to victimize

the workman and the charge sheet was vague and the

documents mentioned in the charge sheet were not

supplied to the workman and there was violation of the

principles of natural justice and the charges levelled

against the workman were not proved in the enquiry and

the punishment is too harsh and disproportionate.

Prayer has been made by the union to hold the action

of the party no.1 as illegal and to set aside the same and to

order for reinstatement of the workman in service with

continuity, full back wages and all other consequential

reliefs.

The party no.1 in the written statement has pleaded

inter-alia that the workman was appointed on 08.01.1992

and he had not completed 190 days attendance in any

calendar year till his termination on 05.05.2001 and prior to

issuance of the charge sheet, he was issued with

11 warning letters to improve his attendance and the

workman was served with charge sheet dated 13.04.1999

and on receipt of unsatisfactory explanation from the

workman, a departmental enquiry was constituted and Shri

D.K. Chandhok was appointed as the Enquiry Officer and

the Enquiry Officer issued notice to the workman to attend

the enquiry and the workman attended the enquiry and he

was given sufficient opportunities to defend the case

before the Enquiry Officer and in the enquiry proceedings,

it was noted that the workman confessed and confirmed

that due to illness, he was unable to attend duties, but he

did not produce any material evidence in support of his

claim of illness and the workman defended himself in the

enquiry without the assistance of any worker and the

attendance of the workman in 1992, 1993, 1994, 1995, 1996,

1997, 1998, 1999 and 2000 was 149 days, 147 days, 132

days,154 days, 125 days, 105 days, 155 days, 166 days and

154 days respectively and the workman was given eleven

warning letters and from the above facts, it is clear that

even after giving sufficient opportunities, the workman

never improved his attendance and the action initiated by

it was proper and justified and the workman is not entitled

to any relief.

In the rejoinder, it is pleaded by the union on behalf

of the workman that the workman was victimized in a

preplanned manner and the entire enquiry proceedings

from drawing the charge sheet to the imposition of the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4351

punishment by way of dismissal and even thereafter, suffer

from serious infirmities and party no.1 suppressed material

documents, which were very much relevant to throw light

on the issue and the figure of attendance of the workman

as given in the written statement is concocted and

manipulated.

It is necessary to mention here that during the

pendency of the reference, the workman died, so the widow,

father and younger brother of the workman, namely, Durga

bai Rajaram Nakka, Bakula Balaiyya Nakka and Shankar

Bakula Nakka respectively were substituted as the legal

heirs of the deceased workman, as per order dated

03.04.2007.

As this is a case of dismissal of the workman from

services, after holding of a departmental enquiry, the

fairness or otherwise of the departmental enquiry was taken

up for consideration as a preliminary issue and by order

dated07.02.2014, the enquiry conducted against the

workman was held to be legal, proper and in accordance

with the principles of justice.

At the time of argument, it was submitted by the

learned advocate for the petitioners that the Act is a social

welfare legislation and it is well settled by the Hon’ble

Apex Court that u/S 11-A of the Act, it is the duty of the

Labour Court to consider all points raised before it and

section 11- A empowers the Labour Court/Tribunal to

appreciate evidence and further empowers to alter the

same. It was further submitted by the learned advocate for

the petitioners that the notice of the enquiry was served

on the workman on 28.08.2000, though the enquiry was

fixed on 21.08.2000 and there was violation of the

provisions of clause 28.1 of the standing order and the

Enquiry Officer has recommended the punishment as per

Ext. M-VI and as such, the imposition of punishment upon

the workman is illegal and it is clear from the report

submitted by the Enquiry Officer that though the charge

sheet was dated 02.05.1999, the Enquiry Officer out of

prejudice, crossed his jurisdiction and took into

consideration about the absence of the workman up to

2000 and the same shows his bias attitude and that he

travelled beyond his jurisdiction and in the order of

dismissal dated 04.05.2001, it has been mentioned that the

charge sheet submitted against the workman was dated

31.04.2001 and such a charge sheet did not exist and in the

said order, it was mentioned that the workman did not

submit his reply to the charge sheet, even though, Ext.

M-II, the document submitted by the party No.1 shows

that the workman had in-fact submitted his reply on

04.05.1999 and as party No.1 suppressed the reply

submitted by the workman, adverse inference has to be

drawn against the party No.1 and the reply submitted by

the workman was not considered, before passing of order

for making inquiry and as such, the Enquiry was illegal.

It was further submitted by the learned advocate for

the petitioners that the documents on record show that

the second show cause notice was received by the

workman on 05.05.2001 and he submitted his reply to the

same on the same day, but the order of dismissal was

passed on 04.05.2001 and served on the workman on

05.05.2001 and the above facts clearly show that the order

of dismissal was passed before the service of the second

show cause notice on the workman and there was violation

of the principles of natural justice and the order of dismissal

is liable to be quashed.

The learned advocate for the petitioners further

submitted that the appeal filed by the workman was not

disposed of within 45 days as per clause 30 of the certified

standing order and the punishment is harsh and the

workman was entitled for reinstatement in service with

continuity and full back wages and as the workman has

died, his widow is entitled to monetary benefits and

benefits of Life cover Scheme as per the scheme of NCWA.

In support of the submissions, the learned advocate

for the petitioners placed reliance on the decisions reported

in 1970 II L.L. J.- 1 (The Management of Travancore

Titanium Production Ltd. Vs Their workmen), 2009 LAB I

C-3502(Tekchand vs. Himachal Pradesh Khadi & Village

Board) and 2011 II L L J-627(SC) (Union of India Vs. S.K.

Kapoor).

Per contra, it was submitted by the learned advocate

for the party No.1 that it has already been held by this

Tribunal by order dated 07.02.2014 that the departmental

enquiry conducted against the workman to be legal, proper

and in accordance with the principles of natural justice

and almost all the submissions made by the learned

advocate for the petitioners relate to the fairness of the

enquiry and therefore the said submissions cannot be

reconsidered again and the findings of the Enquiry Officer

are based on the evidence on record of the enquiry and

are not perverse and the punishment imposed is quite

proportionate and is not shockingly disproportionate and

there is no cope to interfere with the punishment and the

petitioners are not entitled to any relief.

Perused the record. Most of the submissions made

by the learned advocate for the petitioners relate to the

fairness of the departmental enquiry, which has already

been decided as a preliminary issue as per order dated

07.02.2014. The submissions made by the learned advocate

for the petitioners that a welfare officer was examined as a

witness by the party No.1 and as such, his evidence is to

be excluded, that the notice of the enquiry was served on

the workman on 28.08.2000, even though, the enquiry was

fixed to 21.08.2000, copy of the document relied on by the

party No.1 in the enquiry was not supplied to the workman,

that the Enquiry Officer had recommended the punishment

and that the enquiry against the workman was held in

4352

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

regard to the charge sheet dated 30.04.1999 and not dated

02.05.1999 were already considered at the time of deciding

of the preliminary issue of the fairness of the departmental

enquiry, so there is no scope for reconsideration of such

submissions again.

10.

The learned advocate for the petitioners submitted

that in Ext.M-VI,the note sheet dated 09.02.2001, the

Enquiry Officer has recommended the punishment to be

imposed against the workman. However, on perusal of

Ext. M-VI, it is found that there is nothing in the same to

show that any punishment was recommended by the

Enquiry Officer. Hence, there is no force in the submission

made by the learned advocate for the petitioners in that

respect.

11.

The next submission made by the learned advocate

for the petitioners is regarding non-consideration of the

explanation submitted by the workman to the charge

sheet,by Party No. 1, before making order for the

departmental enquiry. It was submitted that in the order

of dismissal, Ext. M-VIII, it has been mentioned that the

reply was not given by the workman and a departmental

enquiry was ordered, which shows that the reply of the

workman as per Ext. M-II was not considered by the Party

No. 1. Admittedly, in Ext. M-VIII, it has been mentioned

that no reply was submitted by the workman to the charge

sheet. However, on perusal of the other documents relating

to the departmental enquiry, it is found that inadvertently,

such fact has been mentioned in Ext. M-VIII. In Ext. M-V,

the enquiry report, it has been clearly mentioned that the

reply submitted by the workman to the charge sheet was

not found satisfactory and a domestic enquiry was

ordered. Likewise, in Ext. M-VI, it has been mentioned

that the explanation submitted by the workman to the

charge sheet was not found satisfactory and therefore a

departmental enquiry was ordered. So, it is clear from the

materials on record that Party No. 1 had considered the

reply submitted by the workman to the charge sheet dated

02.05.1999 and finding the same not to be satisfactory,

ordered for the departmental enquiry.

12.

The next contention raised by the learned advocate

for the petitioners is that the second show cause notice

was received by the workman on 05.05.2001and he

submitted his reply to the same on the same day, but the

order of dismissal was served on the workman on

05.05.2001 and it is clear that without consideration of the

reply of the workman, the order of dismissal was passed

and there was violation of the principles of natural justice.

However, on perusal of the record, it is found that there is

no legal evidence on record to show that the workman

received the second show cause notice on 05.05.2001.

Hence, I find no force in the contention raised by the

learned advocate for the workman on that score.

13.

It was submitted by the learned advocate for the

petitioners that the appeal preferred by the workman was

not disposed of by Party No. 1 within 45 days of filing of

the appeal as per clause 30 of the Standing Order and as

such, the punishment imposed against the workman is

illegal. However, on perusal of the documents filed by the

workman, it is found that the workman did not prefer any

appeal before the designated Appellate Authority, i.e.

General Manager/Chief General Manager within the

prescribed time limit for filing of appeal. The letter dated

08.05.2001 alleged to be the appeal of the workman is

addressed the Manager, Mana Incline, Hindustan Lalpeth

Colliery, Chandrapur Area and not to the General Manager

or Chief General Manager. The said letter was submitted

by the workman for reconsideration of his case and to

give him another chance to work in the colliery. There is

no legal evidence on record to show that in fact any appeal

was filed by the workman before the designated Appellate

Authority, when the workman did not file any appeal before

the Competent Appellate Authority within the time limit,

the question of disposal of the same by the Appellate

Authority within the time prescribed for the same does

not arise.

14.

In this case, the workman had admitted the charges

of habitual absenteeism and remaining unauthorized

absent. The workman had taken the plea that due to his

illness, he had failed to attend duty. However, the workman

had failed to produce any document in support of his

illness. The workman failed to substantiate the plea of his

illness. It is also found that the findings of the Enquiry

Officer are based on the materials on record of the

departmental enquiry and the same cannot be said to be

perverse.

In view of the facts and circumstances of the case

as mentioned above, with respect, I am of the view that

the decisions cited by the learned advocate for the

petitioners have no clear application to the present case

in hand.

15.

So far the proportionality of the punishment is

concerned, grave misconducts of unauthorized absence

from duty and habitual absenteeism had been proved

against the workman in a properly conducted departmental

enquiry. Hence, there is no scope to interfere with the

punishment imposed against the workman. Hence, it is

ordered:-

ORDER

The action of the management in relation to

Hindustan Lalpeth U/G Sub Area of WCL in terminating

the services of Shri Rajaram Bakalu Nakka, Coal Filler, Mana

Incline, Chandrapur Area vide Office Order No. WCL/

CHA/HLUGSAM/M.I./SOM/PER/1406 dated 04/

05.05.2001 is legal and justified. As the workman was not

entitled to any relief, the petitioners are also not entitled

to any relief.

J. P. CHAND, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4353

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1625-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w- 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;] ukxiqj ds iapkV (lanHkZ la[;k 47@2013)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 26@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@90@2013&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

New Delhi, the 26th May, 2014

S.O. 1625.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 47/2013)

of the Cent. Govt. Indus. Tribunal-cum-Labour

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

dispute between the management of HLOC Sub Area,

Chandrapur Area, and their workmen, received by the

Central Government on 26/05/2014.

[No. L-22012/90/2013-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/47/2013

Date: 17.04.2014

Party No. 1 : The Sub Area Manager,

HLOC Sub Area, Chandrapur Area,

WCL Post Office-Lalpeth,

Distt. Chandrapur (M.S.)

Versus

Party No. 2 : The General Secretary,

Rashtria Colliery Mazdoor Congress,

Dr. Ambedkar Ward, Ballarpur,

Dist. Chandrapur (M.S.)

AWARD

(Dated: 17th April, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of HLOC Sub Area, Chandrapur Area and the

applicant, Shri Pramod, the dependent son of Shri P.G.

Kajliwale for adjudication, as per letter No.L-22012/90/2013-

IR (CM-II) dated 21.08.2013, with the following schedule:-

“Whether the action of the management of HLOC

Sub Area of Chandrapur Area of Western Coalfields

Limited in denying employment to Shri Pramod

Prakash Kajliwale, the dependant son of Shri P.G.

Kajliwale who has already put in more than 36 years

of service, which is contrary to the provisions of

para 9.4.4 of NCWA is legal & justified? If not, to

what relief the workman is entitled to?”

On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement, by registered post with acknowledge due.

Inspite of sufficient service of the notice, the

petitioner neither appeared nor filed any statement of claim.

The party No.1 appeared through their advocates on

27.01.2014.

Inspite of adjournment of the case four times, for

filing of statement of claim by the petitioner, neither the

petitioner appeared nor filed any statement of claim.So,

on 17.04.2014, the reference was closed, holding that the

petitioner 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

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

the petitioner has neither appeared nor filed any statement

of claim and as such, he is not entitled to any relief. Hence,

it is ordered:-

ORDER

The reference is answered in the negative and

against the petitioner. The petitioner is not entitled to any

relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 26 ebZ] 2014

dk-vk- 1626-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w- 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;] ukxiqj ds iapkV (lanHkZ la[;k 50@2013)

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22012@91@2013&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MSLd vf/dkjh

4354

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 26th May, 2014

S.O. 1626.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 50/2013

of the Cent. Govt. Indus. Tribunal-cum-Labour

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

dispute between the management of Sasti U/G Mines No.

2, Dhoptala Sub Area, and their workmen, received by the

Central Government on 26/05/2014.

[No. L-22012/91/2013-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/50/2013

Date: 08.04.2014

Party No. 1 : The Sub Area Manager,

Sasti U/G Mines No.2 of

Dhoptala Sub Area of Ballarpur Area of

WCL Post Sasti, Tah. Rajura,

Distt. Chandrapur (M.S.)

Versus

Party No. 2 : The General Secretary,

Rashtria Colliery Mazdoor Congress,

Dr. Ambedkar Ward, Ballarpur,

Dist. Chandrapur (M.S.)

AWARD

(Dated: 08th April, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of Sasti U/G Mines No.2, Dhoptala Sub

Area,WCL and the applicant, Shri Ravi Raipocham, the

dependent son of Shri Panja Raipocham for adjudication,

as per letter No.L-22012/91/2013-(IR CM-II) dated

03.09.2013, with the following schedule:-

“Whether the action of the management of Dhoptala

Sub Area of Ballarpur Area, Western Coalfields

Limited in denying employment to Shri Ravi

Raipocham, the dependant son of Shri Panja

Raipocham who has already put in more than 35years

of service, which is contrary to the provisions of

para 9.4.4 of NCWA is legal & justified? If not, to

what relief the workman is entitled to?”

On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement, by registered post with acknowledge due.

Inspite of sufficient service of the notice, the

petitioner neither appeared nor filed any statement of claim.

The party No.1 appeared through their advocates on

17.02.2014.

Inspite of adjourning the casefour times, for filing

of statement of claim by the petitioner, neither the petitioner

appeared nor filed any statement of claim.So, on 08.04.2014,

the reference was closed, holding that the petitioner 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 orderand 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

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

the petitioner has neither appeared nor filed any statement

of claim and as such, he is not entitled to any relief. Hence,

it is ordered:-

ORDER

The reference is answered in the negative and

against the petitioner. The petitioner is not entitled to any

relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1627-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; dksydrk ds iapkV (lanHkZ la[;k 11@2006)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&12011@129@2005&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O.

1627.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 11/2006)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the industrial

dispute between the management of Punjab National Bank,

and their workmen, received by the Central Government

on 29/5/2014.

[No. L-12011/129/2005-IR (B-II)]

RAVI KUMAR, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4355

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 11 of 2006

Parties : Employers in relation to the management of

Punjab National Bank

AND

Their workmen

Present : Justice Dipak Saha Ray, Presiding Officer

Appearance :

On behalf of the Management

: None

On behalf of the Workmen

: None

State : West Bengal

Industry : Banking

Dated : 24th April, 2014

AWARD

By Order No. L-12011/129/2005-IR (B-II) dated 18-4-

2006 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 Punjab

National Bank in discontinuing Mr. Nakul Barui w.e.f.

14-4-2005 as temporary peon during the pendency

of conciliation proceedings is justified and legal?

Whether Mr. Nakul Barui is entitled for regularization

in the bank at Tekhali Bazar Branch as Peon? If so,

from what date? If not, to what relief he is entitled?”

None appears on behalf of either of the parties when

the case is taken up for hearing today. It appears from the

record that on 29.01.2014 the union/workman was given

opportunity to appear before the Tribunal through its

representative on 10.03.2014; but none appeared on the

said date.

Considering the above facts and circumstances and

the conduct of the union, it may reasonably be presumed

that the union does not want to proceed with the case

further. Perhaps, the dispute between the parties has been

settled amicably.

Accordingly, the instant reference is disposed of by

passing a “No Dispute Award”.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 24th April, 2014

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1628-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;] dksydkrk ds iapkV (lanHkZ la- 10@2006)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&12011@128@2005&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1628.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 10/2006

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the industrial

dispute between the management of Punjab National Bank,

and their workmen, received by the Central Government

on 29/05/2014.

[No. L-12011/128/2005-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 10 of 2006

Parties : Employers in relation to the management of

Punjab National Bank.

AND

Their workmen

Present : Justice Dipak Saha Ray, Presiding Officer

Appearance :

On behalf of the Management

: None

On behalf of the Workmen

: None

State : West Bengal

Industry : Banking

Dated : 24th April, 2014

AWARD

By Order No. L-12011/128/2005-IR (B-II) dated 18-4-

2006 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 Mr. Ramjan Ali Mollah, Part Time Sweeper

is entitled for regularization in the Punjab National

Bank as a Peon? If so, from what date? If not, to

what relief he is entitled?” Whether the Bank is

justified in appointing or recruiting some other new

person as Peon at Sarberia Hatkhola Branch by

removing Mr. Ramjan Ali Mollah? If not, what relief

Mr. Ramjan Ali Mollah, Part Time Sweeper is

entitled?”

None appears on behalf of either of the parties when

the case is taken up for hearing today. It appears from the

record that on 29.01.2014 the union/workman was given

opportunity to appear before the Tribunal through its

representative on 10.03.2014; but none appeared on the

said date.

4356

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Considering the above facts and circumstances and

the conduct of the union, it may reasonably be presumed

that the union does not want to proceed with the case

further. Perhaps, the dispute between the parties has been

settled amicably.

Accordingly. the instant reference is disposed of by

passing a “No Dispute Award”.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 24th April, 2014

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1629-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj U;w bafM;k

ba'kksjSa'k dEiuh 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@Je U;k;ky;] dkuiqj ds iapkV (lanHkZ

la- 16@2001) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

27@05@2014 dks izkIr gqvk FkkA

¹la- ,y&17011@10@2001&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1629.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 16/2001)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Kanpur as shown in the Annexure, in the Industrial

Dispute between the management of The New India

Assurance Company Limited and their workmen, received

by the Central Government on 27/05/2014.

[No. L-17011/10/2001-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE SRI RAM PARKASH, PRESIDING

OFFICER, CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CU-LABOUR COURT, KANPUR

Industrial Dispute No. 16 of 2001

Between :

Mithlesh Kumar,

Through Hind Mazdoor Sabha,

117/K-36, Sarvodya Nagar,

Kanpur

And

The Regional Manager,

The New India Assurance Company Limited,

D.O. III, 109/421-A, Hotel Swagat Building,

Nehru Nagar, Kanpur

Ref. L-17011/10/2001-IR (B-II) Dt. 27-7-2001

AWARD

Central Government, Mol New Delhi has referred

the following dispute for adjudication-

Whether the action of the management in New India

Assurance Company Limited, Dibiapur, in terminating the

services of Sri Mithlesh Kumar with effect from 01.05.95,

is legal and justified? If not, what relief the concerned

workman is entitled to?

Brief facts are-

It has been alleged by the workman that he was

engaged as a IVth Employee at Dibiyapur Branch of the

opposite party 11.08.89, which was opened newly. His work

and conduct was satisfactory. But he was removed all of a

sudden by the management on 4.03.91, without any notice

and compensation in an illegal manner. He raised the

dispute before the ALC copy of which has been filed.

Opposite has filed the reply wherein they have admitted

that the worker has worked for 277 days in the last 12

months. At that time before the ALC during conciliation

proceedings the workman was again taken on job by the

management. The copy of this letter has been filed. The

opposite party with malafide intention has continued the

workman to be in the job till 01.05.95 when his services

were again terminated by the employer without any

information or without offering retrenchment compensation

or notice or notice pay. Therefore, the workman has prayed

that the action of the management in the manner stated

above amounts to unfair labour practice and is liable to be

rejected. It has also been stated by the workman that he

had worked for more than 240 days prior to his termination.

It is also alleged that some junior in the name of

Vinod and Jagdish are still working and new recruit in the

name of Raju has also been engaged in his place

Lastly, it has been prayed by him that the action of

the management be declared to be unfair and unjust and

he be directed to be reinstated in the service of the opposite

party with full back wages and all consequential benefits.

Opposite party has filed reply. It has been stated

that the workman was engaged as temporary water boy on

ad-hoc basis with effect from 11.08.89 at the Dibiyapur

branch of the company and he was being paid charges of

Rs.15/- per day as wages. It is further stated that there

never existed relationship of master and servant between

the workman and the employer, he was never asked to

mark his attendance, he never completed continuous work

for 240 days therefore question of compliance of the

provisions of Industrial Disputes Act in the facts and

circumstances of the case does not arise. Therefore, the

reference is liable to be decided against the workman and

in favour of the management.

Rejoinder has also been filed by the workman but

nothing new has been added therein except reiterating the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4357

facts already alleged in his claim statement. Both the parties

have adduced oral evidence. Whereas the workman has

also filed documentary evidence but no documentary

evidence has been filed by the opposite party.

I have examined the statement of w.w.l Mithlesh

Kumar who has stated on oath that when a new branch

was opened at Dibiyapur by the opposite party, he was

engaged on 11.08.89 as a peon. This fact has been admitted

in the written statement as well as in evidence in the cross

by M.W.l Sri S C Arya, who is a Deputy Manager. M.W.l

had been a Manager in the said branch since 1993 to 2000.

10.

W.W.l has pleaded that his services were previously

terminated on 04.03.1991. When he filed a case before the

ALC, alleging that he had completed more than 240 days

in each year so he should be reinstated. By that time he

was reinstated. This fact has not been denied by M.W.1.

But the Government somehow sent a case for regularization

of his services which case could not be materialized.

Getting aggrieved the management again terminated his

services with effect from 01.05.95 orally. When the opposite

party terminated his services he was neither offered any

notice, notice pay or retrenchment compensation.

11.

He has also filed several documents i.e. paper no.32/

8-32/18. Paper no.32/08 is very important, which is an inter-

se correspondence in between the Branch Manager and

the Divisional Manager. On 27.08.92 the opposite party

has admitted the engagement of the applicant clearly. This

letter also states that as per regional office verbal

instructions we again engaged Sri Mithlesh Kumar as water

filling boy as we have to arrange water from outside the

premises as there is no water pipeline. Similarly the

applicant has filed the attendance sheet detailing the

working applicant.

12.

It is also contended by the workman that they have

moved the application for summoning the record but the

opposite party did not file the record. The opposite party

did not challenge the veracity of the document like paper

0.32/8 filed by the workman. It is also admitted by the

opposite party that neither any notice, notice pay or

retrenchment compensation was paid to the workman in

the year 1995. He also admitted that the workman continued

to work during his tenure at the branch office at Dibiyapur.

Therefore, in my view the evidence adduced by the

workman along with the documentary evidence appears

to be believable. The evidence adduced by the opposite

party does not inspire confidence as the engagement of

the applicant has already been in the pleadings.

13.

Therefore, the claimant has been able to prove his

case. Considering the length of the service rendered by

the claimant under the expectation that one day he may

get a regular job, I feel that it is a case, where the

reinstatement of the applicant is desirable. The action of

the management in terminating the services of the claimant

is neither legal nor justified.

14.

Accordingly, I direct the opposite party to reinstate

the workman. The workman was being paid a very low

amount Rs.15/- per day, considering the inflation and other

aspects of the case, I also direct that the workman will also

be entitled 20% of the back wages because the delay has

already been explained by the workman and it is found

that there was no deliberate delay on the part of the

workman.

15.

Reference is decided accordingly in the above terms.

RAM PARKASH, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1630-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

iÙku U;kl 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- 47@2003)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&32011@9@2003&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O.

1630.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 47/2003)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the Industrial

Dispute between the management of Kolkata Port Trust

and their workmen, received by the Central Government

on 29/05/2014.

[No. L-32011/9/2003-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 47 of 2003

Parties : Employers in relation to the management of

Kolkata Port Trust

AND

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 : Port & Dock

Dated : 24th April, 2014

4358

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

AWARD

By Order No. L-32011/9/2003-IR (B-II) dated

12-12-2003 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 Kolkata

Port Trust in denying the Bearer’s pay by creating a

supernumerary post w.e.f. 1.9.1999 in respect of Shri

S. K. Abdul Mabu, Masalchi of S. D. Subarnarekha

is legal and justified? If not, what relief the concerned

workman is entitled to?”

When the case is taken up today for hearing, none

appears on behalf of the union/workmen though the

management is represented by its representative. It appears

from the record that on the last date, i.e., on 08.04.2014

none appeared on behalf of the union inspite of service of

notice. Considering the above facts and circumstances

and the conduct of the union it may reasonably be

presumed that the union/workman is not interested to

proceed with the instant reference case further. Perhaps

the workman has no grievance against the management at

present.

Considering the above facts and circumstances,

instant reference is disposed of by passing a “No Dispute

Award”

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 24th April, 2014

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1631-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV

cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 43@2009)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 21@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&12012@20@2000&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1631.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 43/2009)

of the Cent. Govt. Indus. Tribunal-cum-Labour

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

Dispute between the management of State Bank of India,

and their workmen, received by the Central Government

on 21/05/2014.

[No. L-12012/20/2000-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/43/2009

Date : 16.05.2014

Party No. 1 : The Asstt. General Manager,

Region-I, SBI Zonal Office,

S.V. Sardar Vallabhabhai Patel Marg,

P.B. No. 37, Nagpur-1

Versus

Party No. 2 : Shri S.A. Mukhare,

R/o. Ashok SBI Emp. Colony,

Opp. Ayurved College,

Amravati (MS).

AWARD

(Dated : 16th May, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of SBI and their workman, Shri S.A. Mukhare,

for adjudication, as per letter No.L-12012/20/2000-IR (B-I)

dated 11.02.2010, with the following schedule:-

“Whether the action of the management of State

Bank of India, Nagpur in imposing a penalty of

dismissal on their workman, Shri Shantaramji

Akaramji Mukhare vide order dated 06.05.1999 is

legal and justified? If not, what relief the workman

is entitled to?”

On receipt of the reference, parties were noticed to

file their respective statement of claim and written

statement, in response to which, the workman, Shri

Shantaramji Akaramji Mukhare, (“the workman” in short)

filed the statement of claim and the management of SBI,

(“party no.1” in short) filed the written statement.

The case of the workman as projected in the

statement of claim is that he was appointed as a Clerk in

the year 1960 and was promoted as the Head clerk in 1972

and was posted at Badnera branch, Amravati of party no.1

and his long service career was clean and unblemished

and he was served with the charge sheet dated 22.11.1996,

containing five charges relating to forged withdrawals,

which had been passed by him, in terms of paras 521 (4)(j)

and 521 (5)(a) and he submitted his reply to the said charge

sheet, denying the charges and party no.1 initiated the

departmental enquiry against him and on conclusion of

the departmental enquiry, the Enquiry Officer submitted

his report, holding three of the charges to have been fully

proved, one to have been partly proved and one charge

not to have been proved against him and the Disciplinary

Authority differed with the findings of the Enquiry Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4359

and held all the five charges to have been proved, without

giving him any opportunity to have his say and issued a

show cause notice to him and imposed the punishment of

dismissal by order dated 06.05.1999 and he raised a dispute

under section 2A of the Act, before the ALC (Central),

Nagpur and since the conciliation failed, failure report was

submitted by the ALC to the Central Government, but the

Central Government by letter dated 14.02.2000 refused to

make the reference to the Labour Court.

The further case of the workman is that he filed writ

petition no. 3794/2001, challenging the order dated

14.02.2000, before the Hon’ble High Court, Nagpur Bench

and the Hon’ble High Court by judgment dated 08.12.2009

allowed the petition, therefore, the Government of India

by order dated 11.02.2010 referred the dispute for

adjudication to the Tribunal.

The workman has further pleaded that the charges

levelled against him were regarding five forged withdrawals

and it was not the allegations that he pocketed any amount

and no charge regarding misappropriation was framed

against him and as such, the enquiry officer went beyond

the charge and held that money was handed over to him

and in view of the same, the enquiry held against him is

vitiated and after passing of the five withdrawals by him,

as per practice, the same were countersigned and passed

by another officer and the manager of the branch, therefore,

those officers were also charge sheeted and enquiry was

held against them and punishment of dismissal from

services was also passed against them and those two

officers and he himself preferred departmental appeals and

even though identical charges were framed against all three

of them, his appeal was rejected, whereas, the appeals of

the other officers and the manager were dealt with leniently

and they were let off with minor punishments and thus, it

is clear that he was made the scape goat and discriminated

and victimized and for that the order of his dismissal from

services is liable to be quashed and set aside and the

findings of the enquiry officer are perverse and the findings

are not supported by the evidence on record and he was

not given an opportunity to put forward his case and the

principles of natural justice were not followed and so far

charge (b) is concerned, basing on hearsay evidence, the

enquiry officer held the same to have been proved, as the

account holder Kulkarni died and his son appeared in the

enquiry and gave evidence and the enquiry officer

committed error in holding all the charges except charge

(a) to have been proved and the disciplinary authority

also committed an error holding all the charges including

charge (a) to have been proved and as such, the enquiry

held against him was bad in law and the party no.1 failed

to consider his unblemished service record, while imposing

the punishment of dismissal and so also the fact that he

was due to be retired on 31.05.1999 and thus, the

punishment was not bona-fide, but was in colorable

exercise of employer’s right. The workman has also pleaded

that party no.1 failed to take into consideration that the

entire amount alleged to have been misappropriated was

recovered and the bank was not put to any financial loss

and imposition of the extreme penalty of dismissal was

totally illegal and improper and the 8 criminal cases filed

against him by the CBI are pending and the said facts

support his contention that there was no material to show

that he misappropriated the amount.

The further case of the workman is that accountant-

Mitkari, Field officer- Zamara, Clerk- Kale and peon-

Landge were served with charge sheets and against them

also identical charges were levelled and 8, 6 and 5 criminal

cases were also filed against them respectively and

accountant- Mitkari expired during pendency of the appeal,

so he was treated as retired and his family members were

given pensionary benefits and Field officer- Zamare also

retired from service and he is also getting pensionary

benefits and clerk- Kale and peon- Landge are in service

and peon- Landge became prosecution witness, so he was

let off and these facts show discriminatory treatment given

to him and when criminal prosecution were pending, the

enquiry proceedings ought to have been stayed till

completion of the criminal proceedings and thus, the order

impugned is violative of the provisions of clause 521 (3)

of Sastry Award and in view of the facts and circumstances

mentioned above, the punishment of dismissal from

services imposed against him is grossly disproportionate

and he is entitled for reinstatement in service with effect

from 06.05.1999 with full back wages and continuity in

service and also to the pensionary benefits with effect

from 31.05.1999.

The party no.1 in the written statement of claim has

pleaded inter-alia that the workman came to be appointed

as a clerk in the Bank in 1960 and in 1972, he was promoted

as a Head clerk and posted at Badnera Branch and he was

assigned the duties of passing of withdrawals and while

working at Badnera Branch from 21.02.1990 to 11.12.1990,

he committed various act of fraud, cheating, theft,

misappropriation of funds, criminal breach of trust and

forging accounts etc and the misdeeds amount to gross-

misconduct under the service rules and it lodged a criminal

complaint, which was investigated by CBI and after

investigation, CBI filed charge sheet against the workman

and to its knowledge, the criminal prosecution is still

pending in the court of law and it issued charge sheet

dated 22.11.1996 against the workman, under clause 521

(4) (j) of Sastry Award and the workman submitted his

explanation in a very evasive manner, denying the charges

and it being not satisfied with the explanation, decided to

hold the departmental enquiry against the workman and

the enquiry commenced on 16.05.1998 and concluded on

07.04.1999 and 10 witnesses were examined and 16

documents were produced to prove the charges against

the workman and the workman cross-examined all the

witnesses through his experienced and competent defence

4360

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

representative and the workman produced documents in

support of his case and the Bank and the workman

submitted their case to the enquiry officer and the enquiry

officer submitted his report dated 23.04.1999, holding the

charge (a) not to have been proved, charge (b) to be

partially proved and the rest of the charges to have been

fully proved against the workman and the disciplinary

authority agreed with the findings of the enquiry officer

regarding charges (c), (d) & (e), but did not agree with the

findings in respect of charges (a) and (b) and issued a

detailed reasoned show cause notice dated 29.04.1999

proposing the punishment of dismissal from services

without notice, alongwith the copy of the enquiry report

and it was specifically stated in the show cause notice

that though the charges were simple from procedural point

of view, but their significance was too serious to ignore

the matter or to take it with leniency and the workman

choose not to avail the opportunity to represent his case,

before the disciplinary authority and the workman and his

defence representative did not appear in support of their

case before the disciplinary authority and the disciplinary

authority duly considered the enquiry report and after

examining the entire matter independently, came to the

conclusion that all the charges against the workman to

have been proved and passed the final order of dismissing

the workman from services without notice on 06.05.1999

and the appeal preferred by the workman against the order

of punishment was dismissed by the appellate authority,

after giving opportunity of personal hearing to the

workman and taking into consideration the facts and

circumstances of the case and grounds of appeal.

It is also pleaded by party no.1 that prosecution of

the workman for various offence does not entitle him to

claim immunity from service rules and the purposes of

criminal prosecution and departmental enquiry are different

and different official and officers were charge sheeted for

different misconducts according to their duties and

different punishments were awarded to each workman,

depending upon their duties, charges, proof and other

attending circumstances and there was no question of

any discriminatory treatment against the workman by it

and the punishment imposed on the workman is as per the

service rules and the workman has made attempt to prove

that enquiry was like a criminal trial and principles of

criminal jurisprudence are applicable to the enquiry and

the enquiry officer accepted the evidence after considering

all the facts and circumstances of the matter and the earlier

unblemished record is no ground to interfere with the

punishment and the workman who had committed grave/

gross-misconduct must suffered the consequences for the

same and he cannot be allowed to escape punishment and

the service rules speak that if trial is not commenced within

one year, the bank is at liberty to proceed against the

workman under service law and the punishment imposed

is quite proportionate and the workman was found guilty

of cheating, theft, purloin, forgery, criminal breach of trust

and it was not desirable and possible to continue him in

service and any relief to the workman will amount to

premium on dishonesty and encourage undisciplined in

banking sector and the workman is not entitled to any

relief.

As this is a case of dismissal of the workman from

services as punishment, after holding of a departmental

enquiry against him, the fairness or otherwise of the

departmental enquiry was taken up for consideration as a

preliminary issue and by order dated 10.01.2014, the

departmental enquiry conducted against the workman was

held to be legal, proper and in accordance with the principles

of natural justice.

At the time of argument, it was submitted by the

learned advocate for the workman that the workman joined

the service of party No.1 as a clerk in the year 1960 and in

1972, he was promoted as a Head clerk and his service

record during the long span of his career was absolutely

clean and unblemished and the five charges levelled

against the workman were regarding forged withdrawals

and gross negligence and no charge of misappropriation

was framed against him and no financial loss whatsoever

had been suffered by the Bank as all the money was

recovered and though the workman had passed 4-5 forged

withdrawals, the Enquiry Officer erroneously held that the

money was handed over to the workman and on that

count, the findings of the Enquiry Officer are required to

be quashed and alongwith the workman, five other

employees were charge sheeted and criminal prosecutions

were also launched against them and though minor

punishments were imposed against them, the workman

was discriminated and he was dismissed from services

and this is not permissible in Law and the punishment of

dismissal of the workman from services is shockingly

disproportionate looking into the nature of the charges

and as the workman has already crossed the age of

retirement, he be allowed pensionary benefits.

In support of the contentions, the Learned Advocate

for the workman placed reliance on the decision reported

in 2010-I-LLJ-37 (Bom) (Ratnakar P M Vs. UCO Bank).

Per contra, it was submitted by the Learned

Advocate for the Party No.1 that by order dated 10.01.2014,

the departmental enquiry conducted against the workman

has already been held to be legal, proper and in accordance

with the principles of natural justice and the Tribunal does

not enjoy the powers of appeal and the scope of judicial

review is limited and the evidence adduced and the

documents produced before the Enquiry Officer fully

proved the charges against the workman and the findings

of the Enquiry Officer are based on the evidence adduced

in the enquiry and the findings are not perverse and in the

entire statement of claim, nowhere, there is any whisper

that the findings of the Enquiry Officer are perverse or as

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4361

to how they are perverse and in banking business, absolute

devotion, diligence, integrity and honesty need to be

preserved by every employee of the Bank and the Bank

has lost confidence on the workman and the punishment

is just, fair and as per Law and Rules applicable to the

workman and the workman is not entitled to any relief.

In support of the contentions, the Learned Advocate

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

in 2005 SCC(L&S)-567 (Damoh Panna Sagar Rural Regional

Bank Vs. Munnalal Jain), 2005 SCC(L&S)-200(D.M.

Plantation,Darda Vs.Munnu Barvica), 1998(4) SCC-310

(Union Bank of India Vs.Vishaw Mohan), 1999 LAB IC-

3833(SC)(High Court of Judicature of Bombay Vs. S.S.

Patil), AIR 1998 SC-1185(Union of India Vs. Paramanand),

2005 SCC(L&S)-407 (Did Controller Vs. A.T.Mane) and

many others.

Now, the present case in hand is to be considered,

keeping in mind the principles enunciated by the Hon’ble

Courts in the judgments cited by the Learned Advocates

for the parties.

The two main contentions raised by the learned

advocate for the workman are that besides the workman,

five other employees were charge sheeted by the party

No.1 on similar charges and though the other employees

were given lesser punishments, the workman was

discriminated and he was dismissed from services and as

the amount of money was already recovered, there was no

loss to the Bank and therefore, the punishment is

shockingly disproportionate.

In the decision cited by the Learned Advocate for

the workman, as reported in 2010- I-LLJ-37 (Supra), the

Hon’ble High Court of Bombay have held that;-

“Punishment-Award of- Discrimination in award of

punishment between two delinquent when charges against

them and evidence were identical, held, not justified-

Dismissal of one of them while other awarded reduction to

lower stage in time scale by three stages, held

discriminatory and set aside and same reduction in time

scale imposed.”

However, with respect, I am of the view that the

above said decision has no application to the present case

in hand, due to its different facts and circumstances from

the facts and circumstances of the case referred in the

judgment of the Hon’ble High Court.

In this case, though it is mentioned by the workman

in the statement of claim that identical charges were levelled

against the other employees, there is no pleading that in

all the cases the evidence was also identical. The party

no.1 has pleaded in the written statement that different

officials and officers were charge sheeted for different

misconduct according to their duties and different

punishments were awarded to each employee, depending

upon his duties, charges, proof and other attending

circumstances and the employees were not charged for

identical charges. No evidence has been adduced by the

workman to show that the charges against him and the

other five employees and so also the evidence against all

of them were the same.

At this juncture, I think it proper to mention the

principles enunciated by the Hon’ble Apex Court in the

decision reported in 2003 SCC (L&S)-468 (P.C. Kakkar Vs.

Chairman & Managing Director, United Commercial Bank

& Others).

In the said decision, the Hon’ble Apex Court have

held that:-

“Misconduct-Penalty/punishment-Scope of judicial

review of –Awarding of a lesser punishment to a co-

delinquent, held, not a good ground for judicial

interference with the quantum of punishment- More

so, when the allegations in the two cases were

contextually different- Constitution of India, Art.

226- Interference in service matters.

Misconduct- Generally- Miscellaneous acts of

misconduct- Bank officer- Mode of discharging of duties

by- Held, he should act with utmost integrity, honesty,

devotion and diligence and should do nothing

unbecoming of a bank officer- Bank officer acting beyond

his authority, even if not causing any loss to the bank,

held, is nonetheless committing an of misconduct.”

So, judging the present case with the touch stone

of the principles as enunciated by the Hon’ble Apex Court

as mentioned above, I find no force in the submissions

made by the Learned Advocate for the workman.

It is well settled by the Hon’ble Apex Court in number

of decisions including the decisions cited by the Learned

Advocate for the party no.1 that the Disciplinary Authority

and on appeal the Appellate Authority, being fact finding

authorities have exclusive power to consider the evidence

with a view to maintain discipline. They are vested with

the discretion to impose appropriate punishment keeping

in view the magnitude or gravity of the misconduct. The

High Court/Tribunal while exercising the power of judicial

review cannot normally substitute its own conclusions

on penalty and impose some other penalty.

Keeping in view the principles enunciated by the

Hon’ble Apex Court in the decisions cited by the Learned

Advocate for the party No.1, regarding the power and

jurisdiction of the Tribunal in the matter of interference

with the departmental enquiry and punishment, considered

the materials on record and found that this is not a case of

no evidence or that the findings of the Enquiry Officer are

against the evidence on record or that the findings arrived

at by the Enquiry Officer cannot be that of a prudent man

on the basis of the evidence on record. The findings of

the Enquiry Officer are based on the evidence on record

of the enquiry and not any extraneous materials. The

Enquiry Officer has assigned reasons in support of his

4362

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

findings after analyzing the evidence on the record of the

enquiry in a rational manner. The Disciplinary Authority

has also assigned reasons for not agreeing with the

findings of the Enquiry Officer in regard to charges (a)

and (b) and the reasons for holding the said two charges

to have been fully proved. So, the findings of the Enquiry

Officer or that of the Disciplinary Authority cannot be

said to be perverse.

10.

So far the proportionality of the punishment is

concerned, serious misconduct of doing an act prejudicial

to the interest of the Bank and gross negligence has been

proved against the workman in a properly conducted

departmental enquiry. Hence, the punishment of dismissal

from services passed against the workman cannot be said

to be shockingly disproportionate calling for interference.

Hence, it is ordered.

ORDER

The action of the management of State Bank of India,

Nagpur in imposing a penalty of dismissal on their workman

Shri Shantaramji Akaramji Mukhare vide order dated

06.05.1999 is legal and justified. The workman is not entitled

to any relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1632-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV

cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k ,oa Je U;k;ky;] èkuckn ds iapkV (lanHkZ la[;k

103@1997) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13@5@2014

dks izkIr gqvk FkkA

¹la- ,y&12012@97@1996&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1632.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 103/

1997) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Dhanbad as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of India,

and their workmen, received by the Central Government

on 13/05/2014.

[No. L-12012/97/1996-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

Reference: No. 103 /1997

In the matter of reference U/S 10 (1) (d) (2A) of

I.D. Act, 1947

Employer in relation to the management of

State Bank of India, Sindri, Dhanbad

AND

Their workmen

Present : SRI R. K. SARAN, Presiding Officer

Appearances :

For the Employers

: Sri S.N.Goswami , Advocate

For the Workman

: None

State : Jharkhand

Industry- Banking

AWARD

Dated : 28/4/2014

By order No. L-12012/97/ 1996 /IR (B-I) dated 25/04/

1997, 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 dispute

for adjudication to this Tribunal:

SCHEDULE

“Whether the action of the manager State Bank of

India Sindri Branch P.O. Sindri Dist. Dhanbad in

denying to regularize the services of S/Shri Raghubir

Kamti and four others (S/Sh. Gaghubir Kamit,

Shankar Lal Mahanta, Ram Punit Mishra, Ayodhya

Ram) in violation of the terms of settlement of

Nov. 89 is justified? If not, to what relief the workmen

are entitled?”

After receipt of the reference, both parties are

noticed. But appearing for certain dates none appears

subsequently. Case remain pending. It is felt that the

disputes between the parties have been resolved in the

meantime. Hence, No Dispute Award is passed.

Communicate.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1633-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

da- 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 ,oa Je U;k;ky;] dksydkrk ds iapkV (lanHkZ la[;k

11@2003) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 16@4@2014

dks izkIr gqvk FkkA

¹la- ,y&17011@26@2002&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1633.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 11/2003)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the Industrial

Dispute between the management of National Insurance

Co. Ltd., and their workmen, received by the Central

Government on 16/04/2014.

[No. L-17011/26/2002-IR (B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4363

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 11 of 2003

Parties : Employers in relation to the management of

National Insurance Co. Ltd., Kolkata

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 : Insurance

Dated: 19th March, 2014.

AWARD

By Order No. L-17011/26/2002-IR(B-I) dated

10.02.2003 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 Sri Prabhat Kumar Mukhapadhaya and

13 others who are allegedly working as casual class-

IV employees in different offices of National

Insurance Company Ltd., Kolkata are entitled for

regularization/absorption or not? If so, what relief

they are entitled?”

When this case is taken up today, none appears on

behalf of either of the parties inspite of service of notice.

None also appeared on previous two dates. On careful

perusal of the record it is evident that inspite of being

given opportunities, the union has not turned up to give

evidence. From the above conduct of the union it may

reasonably be presumed that the union is no longer

interested to proceed with this reference further. Perhaps

the dispute between the parties does not exist at present.

Considering the above facts and circumstances, this

Tribunal has neither any scope nor any reason to proceed

with the case further. Accordingly, the present reference

is disposed of by passing a “No Dispute Award”.

Dated, Kolkata

the 19th March, 2014

JUSTICE DIPAK SAHA RAY, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1634-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV

cSad 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 ukxiqj ds iapkV (lanHkZ la[;k 24@2011) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 21@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@52@2011&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O.

1634.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 24/2011)

of the Cent. Govt. Indus. Tribunal-cum-Labour

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

Dispute between the management of State Bank of India,

and their workmen, received by the Central Government

on 21/05/2014.

[No. L-12012/52/2011-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/24/2011

Date : 13.05.2014

Party No. 1 : The Regional Manager,

State Bank of India,

Administrative Office,

S.V. Patel Marg, Kingsway,

Nagpur.

Versus

Party No. 2 : Shri Sunil Mulchand Nakwe,

C/o Shri Roshan Ramprasad Nakwe,

Datta Mandir Ward, Warora,

Tah. Warora, Distt. Chandrapur (MS)

AWARD

(Dated: 13th May, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of State Bank of India and their workman,

Shri Sunil Mulchand Nakwe, for adjudication, as per letter

No.L-12012/52/2011-IR (B-I) dated 11.10.2011, with the

following schedule:-

“Whether the action of the management of State

Bank of India, Warora Branch, Chandrapur (M.S.) in

terminating the service of Shri Sunil Mulchand

Nakwe w.e.f. 05.11.2009 is legal and justified? 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 and accordingly, the workman, Shri Sunil

Mulchand Nakwe, (“the workman” in short), filed the

statement of claim and the management of State Bank of

India (“Party No. 1” in short) filed their written statement.

The case of the workman as mentioned in the

statement of claim is that he was appointed as a sweeper

4364

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

by the party No.1 on 17.4.1994 on temporary basis and he

worked from 17.04.1994 to 05.11.2009 continuously and

without any interruption as per the direction of the Branch

Managers and for the first month, he was paid his salary

by cash and subsequent to that he was paid his salary by

cheque and he was working for more than 12 hours daily

and at times he was also doing overtime and he used to

sign the muster roll and there was neither any complaint

nor any disciplinary action against him and the party No.1

instead of regularizing his services, all of a sudden

appointed someone in his place and terminated his services

orally, without service of one month’s notice in writing

mentioning the reason of termination or payment of one

month’s pay in lieu of notice or retrenchment compensation

and party No.1 failed to comply with the mandatory

provisions of section 25-F of the Act, before termination

of his services and as such, the termination of his services

was illegal and the same is liable to be quashed and set

aside and after termination of his service, he has not been

gainfully employed.

The workman has prayed for his reinstatement in

service with continuity and full back wages.

The party No.1 in the written statement has pleaded

inter alia that the workman worked purely on temporary

and casual basis on daily wages, due to administrative

exigencies and need of work and sometimes he worked for

full time and sometimes for part of the day and the

engagement of the workman was by the Branch Manager,

who had no authority to appoint any person on permanent

basis and his termination cannot be construed as arbitrary

or illegal and the services of the workman were

discontinued as per the settlements and a settlement dated

17.11.1987 was reached between the All India State Bank

of India Staff Federation and the State Bank of India to

provide inter-alia, for giving a chance to the eligible

temporary/ daily wagers/casual employees in the Sub-

ordinate cadre, for being considered for permanent

appointment in the Bank and the said settlement as

modified/ clarified vide settlements dated 27.10.1988,

09.01.1991 and 30.07.1996 and as per with the modification

of the settlement dated 30.07.1996, it was agreed that both

the panels of temporary employees and daily wagers/

casual employees would be kept alive up to 31.03.1997

and the said settlements are “settlements” within the

meaning of section 2(p) and section 18(1) of the Act and

are binding on the parties.

It is further pleaded by party No.1 that there is

procedure for appointment on permanent basis and various

norms including age and qualification are prescribed for

the same and the workman was never subjected to the

said conditions and he was engaged looking to the

exigencies of the services and till persons on permanent

basis were appointed by it in accordance with Rules and

settlements in this regard and when the sanctioned post

of sub-staff was filled, there was no alternative for it, but

to terminate the workman and grant of relief as prayed for

by the workman will be permanent appointment in other

way, without following the procedure and as the initial

engagement of the workman was purely on temporary

basis, termination of his services was inevitable on

completion of the purpose for which he was engaged and

the mere fact of rendering 240 days of work by the workman

in a year would not be sufficient to grant reinstatement,

continuity of service and back wages, in view of the law

laid down by the Hon’ble Apex Court and the workman

did not work continuously from 17.04.1994 to 05.11.2009

and the workman is not entitled to any relief.

No rejoinder was filed by the workman to the written

statement.

It is to be mentioned here that though the workman

had filed his evidence on affidavit in support of his case,

he did not appear for his cross-examination, so, by order

dated 10.10.2013, his evidence on affidavit was expunged.

It is also necessary to mention here that the evidence

of the witness for the party No.1, Shri Kishor Madhukarrao

Mohdarkar on affidavit remained unchallenged, as none

appeared on behalf of the workman to cross-examine the

said witness on 30.01.2014, to which date the reference

was fixed for the said purpose and order of “no cross” of

the witness was passed. On 30.01.2014, order was also

passed to proceed with the reference ex-parte against the

workman, as the workman failed to appear and take part in

the reference.

It is clear from the pleadings of the parties that the

workman was engaged by the Branch Manager on

temporary basis on daily wages. So, the initial burden was

on the workman to prove that infact he had worked for 240

days in the preceding 12 calendar months of the alleged

date of termination of his services i.e. 05.11.2009 to get the

benefits of the provisions of section 25-F of the Act.

However, the workman failed to adduce any evidence.

It is well settled that when a workman raises a dispute

challenging the validity of the termination of his services,

it is imperative for him to file the written statement before

the Industrial Court setting out the grounds on which the

order is challenged and he must also produces evidence

to prove his case. If the workman fails to appear or file

written statement or produce evidence, the dispute referred

by the Government cannot be answered in favour of the

workman and he would not be entitled to any relief.

Judging the present case in hand with the touch

stone of the settled principle as mentioned above, it is

found that the workman has failed to produce any evidence

to prove his case and as such, the reference cannot be

answered in his favour and he is not entitled to any relief.

Hence, it is ordered:-

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4365

ORDER

The action of the management of State Bank of India,

Warora Branch, Chandrapur (M.S.) in terminating the

service of Shri Sunil Mulchand Nakwe w.e.f. 05.11.2009 is

legal and justified. The workman is not entitled to any

relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1635-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV

cSad 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 p.Mhx<+ ds iapkV (lanHkZ la[;k 78@2005) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 23@5@2014 izkIr gqvk FkkA

¹la- ,y&12012@266@2004&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O.

1635.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 78/2005)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court-II,

Chandigarh as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of India,

and their workmen, received by the Central Government

on 23/05/2014.

[No. L-12012/266/2004-IR (B-I)]

SUMATI SAKLANI, 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.78/2005

Registered on 20.4.2005

Smt. Radha Devi,

W/o Sh. Dharam Pal,

R/o Lakhe Wali Dhab,

Tehsil : Fazilka,

District : Ferozepur

.....Petitioner

Versus

The Assistant,

General Manager –I,

State Bank of India,

Zonal Office (Punjab),

Fountain Chowk,

Civil Lines, Ludhiana

.....Respondent

APPEARANCES :

For the workman

: Sh. D.K. Sihag Adv.

For the Management

: Sh. S.K. Gupta Adv.

AWARD

Passed on 6.5.2014

Central Government vide Notification No. L-12012/

266/2004-IR(B-I) Dated 3/21.3.2005, by exercising its

powers under Section 10 Sub Section (1) Clause (d) and

Sub Section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of State

Bank of India, Ludhiana in terminating the service

of Smt. Radha Devi, Ex-sweeper-cum-peon, w.e.f.

11.3.2003 without complying with the statutory

provisions of Sections 25F, G and H of ID Act is just

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

entitled to?”

In response to the notice, the workman appeared

and filed statement of claim pleading that she worked with

the respondent management as Sweeper-cum-Peon for the

last more than 10 years at Kheo Wala Dhab Branch of

respondent management. Her services were arbitrarily

terminated on 3.11.2003 without issuing her any notice,

charge-sheet and without payment of any compensation.

She was drawing Rs. 50 per day. It is further pleaded that

as per Shastri Award, notice was required to be served

before termination of her services but no such notice was

served on her. It is further pleaded that respondent bank

used to give salary after obtaining signature of another

person and thus indulged in unfair labour practice. It is

further pleaded that Ram Kumar was employed in her place.

Since the termination of her services is illegal, she be

reinstated in service with back wages.

Respondent management filed written reply pleading

that the workman was engaged as a casual labourer from

October 1997 to August 2003 as and when required on an

agreed sum to work as sweeper and she was not appointed

as sweeper as no such post exist in the branch. It is denied

that Ram Kumar was engaged in the bank.

Parties led their evidence.

In support of its case the workman appeared in the

witness box and examined Ashwani Kumar and Rameshwar

Dayal.

Workman filed her affidavit reiterating her case as

set out in the claim petition.

Ashwani Kumar is an official of the bank and was

summoned with the record. He has deposed that the

workman used to be engaged as a casual labourer and

was paid Rs. 25 per day. He has further deposed that the

attendance of the casual labourers is not recorded and

only the payment of wages are mentioned in the petty

cash register.

4366

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Rameshwar Dayal is another official of the bank and

remained posted at Kheo Wala Dhab Branch in the year

1988. He has stated that management used to call the

workman and at times somebody else was called to work.

The workman was paid Rs. 20 per day initially and at the

time of her termination she was getting Rs. 50 per day.

On the other hand the management has examined

Bansi Lal, Branch Manager who filed his affidavit

reiterating the stand taken by the management in the written

statement.

I have heard Sh. D.K. Sihag, counsel for the workman

and Sh. S.K. Gupta, counsel for the management.

It was vehemently argued by the learned counsel

for the workman that she continuously worked as sweeper-

cum-peon for 10 years and her services were arbitrarily

terminated on 3.11.2003 without complying with the

provisions of the Act and as such the termination is illegal.

On the other hand it was contended by the learned

counsel for the management respondent that workman

was employed as a sweeper on work need basis and she

was paid for the day she worked and she has got no right

to the post as much as no post of sweeper exists in the

branch and the claim made by the workman without merit

be dismissed.

It as an admitted fact that the workman worked with

the respondent management from 1997 to 2003 as sweeper.

It is the stand of the management that she was engaged as

sweeper as and when required as a casual labourer. The

workman herself summoned and examined two officials of

the respondent bank namely Ashwani Kumar and

Rameshwar Dayal along with the record and who at one

point of time remained posted in the branch where the

workman worked. Ashwani Kumar has specifically stated

that the workman used to be engaged as a casual labourer

and was paid Rs. 25 as daily wages in the year 2002.

Rameshwar Dayal who remained posted in the branch in

1988 has also stated that management used to call the

workman sometimes and at times somebody else used to

work in case of need and she was paid Rs. 20 per day

initially. Thus the witnesses examined by the workman

have specifically stated that the workman was engaged as

a casual labourer for sweeping purposes on daily wage

basis. There is nothing on the file to suggest that the

workman was appointed as a sweeper in the branch or any

procedure was followed for appointing her as such and

therefore she can claim that she was appointed as sweeper.

It is also not her case that she was appointed as such by

the management. Thus the only conclusion is that the

management used to call her at times to do the work of

sweeping and she was paid on daily wages basis. She

herself admits that she was not getting any pay for the

holiday which further shows that she was working on

daily wage basis. When it is so, she has got no right to

the post and her termination cannot be termed as illegal as

the termination of daily wagers do not amount to

‘retrenchment’ and in this respect reliance may be placed

on –

Himanshu Kumar Vidyarthi and others, Petitioners

v. State of Bihar and others, Respondents wherein it was

observed that – They are temporary employees working

on daily wages. Under these circumstances, their

disengagement from service cannot be construed to be a

retrenchment under the Industrial Disputes Act. The

concept of retrenchment, therefore, cannot be stretched

to such an extent as to cover these employees. The learned

counsel for the petitioners seeks to contend that in the

High Court, the petitioners did not contend that it is a

case of retrenchment but termination of their services is

arbitrary. Since they are only daily wage employees and

have no right to the posts, their disengagement is not

arbitrary.

Thus, it cannot be said that the termination of the

services of the workman are illegal and she is not entitled

to any relief and the reference is answered against her. Let

hard and soft copy of the award be sent to the Central

Government for further necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1636-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.k ekykckj

xzkeh.k cSad 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 20@2012) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13@5@2014 izkIr gqvk

FkkA

¹la- ,y&12011@04@2012&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O.

1636.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 20/2012) of

the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Ernakulam as shown in the Annexure, in the

Industrial Dispute between the management of South

Malabar Gramin Bank, and their workmen, received by the

Central Government on 13/05/2014.

[No. L-12011/04/2012-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

ERNAKULAM

Present : Shri D.SREEVALLABHAN, B.Sc., LL.B,

Presiding Officer

(Tuesday the 29th day of April, 2014/9thVaisakha, 1936)

ID 20/2012

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4367

Union

: The General Secretary

South Malabar Gramin Bank Staff

Association

C/o South Malabar Gramin Bank

Malappuram Kerala - 676505

By Adv Shri Vinod Vallikappan

Management : The Chairman

South Malabar Gramin Bank

Malappuram Kerala - 676505

By M/s. ANP Associates

This case coming up for final hearing on 28.04.2014

and this Tribunal-cum-Labour Court on 29.04.2014 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 vide its Order

No-L-12011/04/2012-IR(B-I) dated 11.06.2012 has referred

the industrial dispute to this tribunal for adjudication.

The dispute is:

‘Whether the demand of the Union, South Malabar

Gramin Bank Staff Association, for payment of salary

for the period of suspension to Shri Sreedharan V.

Staff No.760, is legal and justified? To what relief

the workman is entitled?’

The workman was working as a Clerk-cum-Cashier

in the management bank. While he was working in the

Karaparamba Branch he was suspended from service

w.e.f.24.11.2008 after initiating disciplinary proceedings

against him for the alleged misconduct of insubordination

and dishonest behaviour coming within the meaning of

Regulations 17 and 19 of the South Malabar Gramin Bank

(Officers & Employees) Service Regulations, 2001 and

punishable under Regulation 38(II) therein. After

conducting enquiry into the charges levelled against him

he was imposed with the penalty of Censure by order

dated 25.02.2010. The period of suspension from

24.11.2008 to 21.01.2009 is to be treated as not spent on

duty as per that order. The appeal submitted by him

challenging the findings of guilt and the imposition of

penalty was dismissed by the Appellate Authority by order

dated 15.07.2010. The dispute was raised with regard to

the non-payment of salary for the period of suspension

and the same was referred for adjudication.

After appearance before this tribunal union filed

claim statement challenging the findings of the enquiry

officer on the ground that the same were entered into

without any reliable evidence and with the prayer to set

aside the penalty imposed on him and the order of no pay

for the period of suspension.

Management filed written statement contending that

the penalty was imposed on the workman after conducting

a proper enquiry by affording sufficient opportunity of

defence to the workman and without violation of the

principles of natural justice. It is also contended that the

period of suspension was ordered to be treated as not on

duty after duly considering the circumstances by exercising

the discretion vested under Regulation 46 of the South

Malabar Gramin Bank (Officers and Employees) Service

Regulations, 2001. It is perfectly legal and just and hence

the workman is not entitled to any relief.

Union did not file any rejoinder in spite of the

opportunity afforded for that purpose.

After posting the case for evidence union was

continuously absenting without any representation and

hence was set ex-parte. From the side of the management

one witness was examined as MW1 and Ext.M1 was

marked.

The points that arise for consideration are:

(i)

whether the demand of the union for payment of

salary for the period of suspension to the workman

is legal and justified?

(ii)

what relief the workman is entitled to?

Point No. (i) : There is no challenge as to the validity

of the enquiry in the claim statement. The imposition of

penalty is challenged therein stating that findings were

entered into by the enquiry officer not based on any reliable

evidence. The enquiry officer was examined as MW1 and

enquiry file was marked as Ext.M1. There is nothing to

satisfy that the findings are perverse which calls for any

interference. There was no attempt on the part of the

union to satisfy that the demand for payment of salary for

the period of suspension is based on any statutory

provision or rules. It is specifically contended in the

written statement that the disciplinary authority has the

discretion to treat the period of suspension as not spent

on duty. The burden is cast upon the union to prove that

it is not legal. Union has failed to discharge the burden to

prove it. The prayer for payment of salary for the period

of suspension is made in the claim statement by making

the allegation that the findings of the enquiry officer are

liable to be set aside. There is no reason to set aside the

findings of the enquiry officer. Union did not participate

in the proceedings to prove that the findings are perverse

and based on which no penalty can be imposed on the

workman. Hence it can only be held that the demand of

the union for payment of salary for the period of

suspension is not legal and justified.

10.

Point No. (ii) : In the result an award is passed

holding that the demand of the union for payment of salary

for the period of suspension is not legal and justified and

hence the workman is not entitled to any relief.

4368

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

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

29th day of April, 2014.

D. SREEVALLABHAN, Presiding Officer

APPENDIX

Witness for the workman

- NIL

Witness for the management

MW1

25.04.2014

Shri C. M. Vinod Kumar

Exhibit for the workman

- NIL

Exhibit for the management

Enquiry file

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1637-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad

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] fnYyh ds iapkV (lanHkZ la[;k 109@2012) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 21@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@101@2011&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O.

1637.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 109/2012)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Delhi as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of

Hyderabad, and their workmen, received by the Central

Government on 21/05/2014.

[No. L-12012/101/2011-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

KARKARDOOMA, DELHI

Present : Shri Harbansh Kumar Saxena

ID No. 109/2012

Sh. Sanjib Mondal

Versus

State Bank of Hyderabad

No DISPUTE AWARD

The Central Government in the Ministry of Labour

vide notification No L-12012/101/2011-IR(B-I) dated

24.2.2012 referred the following Industrial Dispute to this

tribunal for adjudication :-

“Whether the action of the management of State

Bank of Hyderabad, Kailash Colony, New Delhi in

terminating the services of Sh. Sanjib Mondal w.e.f.

05.08.2009 after paying one month salary and

retrenchment compensation under Section 25 F of

ID, Act 1947, is legal and justified? To what relief the

workman is entitled for?

On 23.03.2012 reference was received in this tribunal.

Which was register as I.D No. 109/12 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. Sanjib

Mondal not filed claim statement but management moved

an application for dismissal on 10.03.14. Wherein it

mentioned as follows:-

That from order sheet dated 23.03.2012 passed by

this Hon’ble Tribunal received reference no.L-12012/

101/2011-IR(B-1) dated 24.02.2012 from Govt. of

India, Ministry of Labour , New Delhi and this

Hon’ble Tribunal directed to register it as ID case

No. 109/12 and further directed to issue notice to

parties for 13.06.2012 for first hearing of this case.

The workman has been directed to file claim

statement within 50 Days from the date of receipt of

notice complete with all relevant documents, list of

reliance and witnesses.

That thereafter this case was adjourned to 13.06.12 ,

05.09.2013, 12.12.2012, 27.02.2013, 12.07.2013,

20.08.2013, 01.10.2013, 19.12.2013 and now for

10.02.2014 and it is pertinent to mention here that till

date the workman did not comply the order dated

23.03.2012 passed by this Hon’ble Tribunal.

That in these circumstances it is clear that the

workman is not interested to pursue his case and

this case only deserves to the dismissed.

Prayer :

In view of above facts and circumstances of this

case and also clear cut case of non compliance by the

claimant of order dated 23.03.2012 till date, this case may

kindly be dismissed for non prosecution.

Any other order/orders in favour of Respondent

bank and against the claimant in view of facts and

circumstances humbly submitted by the Respondent

bank.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4369

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 is liable to be dropped and

no dispute award is liable to be passed.

No Dispute Award is accordingly passed.

Dated : 25/04/2014

HARBANSH KUMAR SAXENA, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1638-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj if'pe 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 vgenkckn ds iapkV (lanHkZ la[;k 127@2012) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 24@4@2014 dks izkIr

gqvk FkkA

¹la- ,y&41011@45@1995&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O.

1638.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 127/2012)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Ahmedabad as shown in the Annexure, in the

Industrial Dispute between the management of Western

Railway, and their workmen, received by the Central

Government on 24/04/2014.

[No. L-41011/45/1995-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present : SHRI BINAY KUMAR SINHA,

Presiding Officer, Ahmedabad

Dated:14th March, 2014

Reference (CGITA) No. 127/2012(New)

Reference (I.T.C) No. 14 of 1997(old)

Adjudication Order No. 41011/45/95-IR(B-I)

The Chief Project Manager,

Western Railway,

Kothi Compound, Rajkot

The Divisional Railway Manager,

Western Railway, Kothi Compound,

Rajkot

The Executive Engineer(C&S)

Western Railway, Kothi Compound,

Rajkot

……1st party

And

Their workman

Through the Secretary ,

Paschim Railway Karmachari Parishad,

E/209, Sarvottam Nagar,

Behind New Railway Colony,

Sabarmati, Ahmedabad

……2nd party

For the 1st Party

: Shri Harsh B. Shah, Advocate

For the 2nd party : Shri K.T. Mishra, Advocate

Shri R.S. Sisodia,General Secretary,

P.R.K.P., Ahmedabad

AWARD

The industrial dispute between the management of

western railway and their workmen had been initially

referred for adjudication to the C.C.I.T. Labour Court,

Kanpur under the adjudication order no.41011/45/95-IR

(B-1) dated dt.07/02/97 by the desk officer, Government of

India/Ministry of labour, New Delhi which was

subsequently with drawn by the Central Government/

Ministry of Labour, New Delhi by order dated dt.17/

20.03.1997 and was transferred for adjudication to the

presiding officer Industrial Tribunal, Ahmedabad to

proceed with the proceeding from the stage at which they

are transferred and to dispose of the case as per terms of

reference specified in the schedule.

SCHEDULE

“Whether the action of the management of divisional

Railway Manager, Western Rly. Rajkot for not

conducting the screening and the regularisation of

the services of the 17 project casual labourers under

PWI(C) Nadiad and all those project casual labourers,

who have been recruited in the geographical

jurisdiction of Rajkot division and presently are on

the rolls of Chief project manager, Western Railway,

Ahmedabad, is proper and justified? If not to what

relief, the concerned project casual labourers are

entitled and from which date and what directions

are necessary in the matter?

It may not be out of place to mention that earlier in

this reference under (I.T.C) No 14/97 award dated 09.02.2004

was passed by Smt. N.J.Shelat, the then Presiding

officer,Industrial Tribunal, Ahmedabad in such way – under

the facts and circumstances of the case and in view of the

aforesaid discussions. I find that all the 17 projects Causal

Labours under P.W.I(c) Nadiad and all those project Casual

labourers who have been recruited in the geographical

jurisdiction of Rajkot division and at present are on the

rolls of Chief Project Manager, Western Railway,

Ahmedabad have already been regularised and therefore

they are not entitled to any relief and rejecting the reference

as infructuous. Then the Union (P.R.K.P.) preferred special

civil application No. 5567 of 2004 before the Hon’ble Gujarat

4370

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

High Court against the aforesaid award dated 09.02.2004

and the Hon’ble High Court vide judgment dated

05.07.2012 passed in S.C.A. No. 5567 of 2004 with Civil

Application No. 371 of 2012 in S.C.A. No. 5567 of 2004 has

been pleased to quash the award dated 09.02.2004 passed

in the reference case 14/97 and remanded back the record

to the Tribunal for deciding it afresh in the light of the

terms of reference. The Tribunal on remand shall decide

the same as soon as possible, preferably within six months

from the date of receipt of writ of this Court as per direction

given in para 7 and 8 of the judgement. “In view of order

passed in main petition Civil application No. 371/2012 will

not survive and is disposed of with the main matter Rule

discharged. No costs.”

Thereafter the record of reference was received in

this C.G.I.T-cum- Labour Court on 12.09.2012 from the

Industrial Gujarat, Ahmedabad and new (C.G.I.T.A) No.

127/12 was registered and notice was issued to the parties

to appear and to argue the matter since as per direction of

the Hon’ble Court this reference case has to be disposed

of within six months, fixing for hearing on 04.10.2012. The

argument of the 2nd party Union was heard and concluded

on 10.08.2013 and the matter was fixed for hearing argument

of the party (Rly.) and when it was fixed for argument of

the 1st party Railway on 02.09.2013, 1st party’s lawyer

Shri H.B.Shah appeared on filed an application (Ext.49) to

allow the parties to file afresh S/c and W.s and to adduce

evidence in view of the order passed by the Hon’ble

Gujarat High Court at para 8 of judgement in S.C.A. No.

5567 of 2006 with Civil Application No.371/2012. The prayer

made by the 1st party lawyer vide Ext. 49 was rejected by

this Tribunal by a detailed order dated 02.09.2013 (Ext.50)

directing the 1st party’s lawyer to argue on 05.09.2013.

But the 1st party (Rly.) challenged the order dated

02.09.2013 before the Hon’ble Gujarat High Court in Civil

Application No. 11301 of 2013 in S.C.A. No. 5567 of 2004

and the Hon’ble High Court vide order dated 23.10.2013

rejected the application of the chief project manager & 2

other applicants (present 1st party in the reference case)

with observation….. “The court is of the view that no

clarification is required to be made in the light of the

observation of this court made in paragraph-8 in order

passed on 5th July 2012 in S.C.A. No. 5567 of 2004”.

Thereafter the 1st party’s lawyer submitted written

argument before this Tribunal on 22.11.2013 and its copy

furnished to the 2nd party Union, then on conclusion of

argument the case was kept for award.

The case of 2nd party as per statement of claim

(Ext.11) is that employees mentioned in the schedule and

other project casual labourer were recruited as skilled, semi

skilled and non skilled employees within geographical

sphere of Rajkot division on different dates. These project

labours were transferred to different stations outside limit

of Rajkot division e.g. Nadiad, Kota, Jaipur and other

station as and when required. As per Hon’ble Supreme

Court direction, Railway administration prepared a

combined seniority list dividing employees in geographical

sphere. As per direction of Hon’ble Supreme Court Rajkot

division also prepared combined seniority list. Due to

shifting of employees, also due to different stations also

due to termination of certain employees their names were

not included in this combined seniority list. Due to non –

inclusion in seniority list many employees were deprived

from regular posting. The Ex.Engineer (C) Ahmedabad

vide their letter No. E/839/94 dated 17.08.1994 asked Dy.

CE(C), Ahmedabad to submit the working particulars of

affected casual labourer as these were recruited by the

project to the Divisional Rly. Manager, Rajkot, the list of

employees enclosed. These labourer being senior to many

could not be regularised due to administrative error and

these labours are still suffering where as juniors to these

employees have been regularised. Further case is that the

skilled labourers should be observed against skilled

category without absorbing them in group D staff (list

enclosed). As per existing policy as per sub para.(ii) of

para. 2512 of I.R.E.M. artisan recruited should be posted

in skilled category. Accordingly Bhavanagar Division of

Western Railway absorbed skilled Project labour in skilled

category with this statement of claim two list have been

attached (1) list of 13 of labour of Nadiad reflected in the

dispute. (2) list of 31 Artisan staff scale 950-1500. The 2nd

party union has sought for the relief that the affected

casual labourer be absorbed against the regular post from

the date their juniors are posted with due seniority and

to give all consequential benefit with cost and

compensation.

As against this the case of the 1st party as per written

statement (Ext.17) is that the matter referred for adjudication

relates to 17 causal Labourers who were at the relevant

time working as project casual labourer under P.W.I(C) of

Nadiad. The subject matter referred for adjudication is for

not conducting screening and regularisation of 17 project

casual labourers working under P.W.I.(C) at Nadiad by

DRM(E) Western Railway, Rajkot. All these 17 project

causal Labours are initially recruited within geographically

jurisdiction of DRM(E) W. Rly. Rajkot and at present they

are on the roll of Chief Project Manager, Western Railway,

Ahmedabad. The dispute referred for adjudication is with

respect to 17 Project Casual labourers and so this Tribunal

is not empowered to decide or deal with the other project

casual labourer. As per S/c, Name of 13 project casual

labourer showing in schedule in attached and the dispute

is to be determined as to 13 project casual labourers and

the dispute for others have not been raised nor referred

by the Government of India for adjudications. Further

contention is that it is not correct to say that Supreme

Court in the case of Indrapal Yadav gave direction to

prepare combined seniority list dividing employees in

geographical sphere. Rather as per directives of the

Hon’ble Supreme Court and also on the basis of the said

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4371

letter dated 11.09.1986 was issued by Railway Board to

each Zonal Manager to prepare seniority list of project

causal labourers with following guide line.

(A)

Each zonal Railway is directed to prepare the seniority

list of project causal labour for each division i.e.

Division wise seniority list to be prepared for project

causal labourers.

(B)

Unskilled Causal Labourers will be treated as on

category of unskilled.

(C)

Semi skilled and skilled Causal Labours will be treated

tradewise.

(D)

Senoirity list to be recasted by Zonal Railway/

Constructions/Railway Administration in the

aforesaid manner.

(E)

Seniority list to be as on 01.04.1985 position and

also to cover those Causal Labours who have been

in employment at any time from 01.01.1981 and

onwards.

Further case is that the Railway Board’s letter dated

02.03.1987 was addressed to G.M. of each zone and was

circulated by G.M. W. Rly. Vide letter dated 12.03.1987, and

a chance was given to project casual labourers to empanel

their names in seniority list for want of further work or on

completion of work and such casual workers had to submit

on or before 31.03.1987 application to concern Div. office.

The seniority list of project casual labourers prepared by

DRM(E) Rajkot. W.Rly. project and published on vide

letter No. DRM(E) RJT.dated 24.12.1987. In this seniority

list names of concerned project casual labourer who were

in employment/initially employed as project casual

labourers in geographical jurisdiction of Rajkot Division.

Para 5 of S/c is not correct to say that the said project

casual labourers service were terminated due to shifting

the said project Causal Labourers on completion of the

work or non-availibity of work do not suffer starvation,

rather they have been shifted to other places afresh where

work is in progress and as their names were not in the

combined seniority list, with regard to para 6 of S/c it is

contended that the action of non-inclusion in seniority

list by Rajkot Division not be deprived them from regular

posting as averred in the said para and accordingly denied

para 6. With regard to para 7 of S/c it is stated that allegation

is not true that there is administrative error of first party

(W.Rly). The allegations in para 8 &9 of the S/c are denied

and replied in this way that Railway Board’s latter dated

08.04.1997 has got statutory force and this tribunal is not

empowered to modify it. Only President of India is

empowered to modify. Railway Board’s letter issued

guidelines for regularisation of project casual labourers

as follows:

(A) Project Casual labourer working in construction

as class ‘C’ scale be regularised in group ‘D’ post on

Division and that in case those Causal Labours are in

need in construction they may be continued as group ‘C’

work charged post in construction and would be adhoc

promotion basis. The office of G.M. Western Rly. Issued

guidelines in connection with regularisation of project

casual labourers working in group ‘C’ scale vide letter

dated 08.06.1998.

(a)

Casual labourers in group ‘C’ scale whether they are

diploma holder or have other qualification may be

given a chance to appear for examination conducted

by Railway Recruitment Board or the Railway for

the posts as per their suitability and qualifications

without any age bar.

(b)

Not with standing above, such of the casual

labourers in Group ‘C’ scale as are presently entitled

for absorption as skilled artisan against 25% of the

promotion quota may continue to be considered for

absorption as such.

(c)

Not with standing (a) or (b) above, all casual

labourers may continue to be considered for

absorption Group ‘D’ on the basis of number of days

put in as such casual labourers respective units.

Further case is that the issues of regularisation of

project casual works in Group ‘C’ were raised before the

several central Administrative Tribunals holding that a

casual labourer in Railway can be regularised in Group ‘D’

only. There can be no direct regularisation of casual

labourers against group ‘C’ posts/ A casual labourer can

be promoted in group ‘C’ scale , only on being regularised

in group ‘D. The stand of the 1st party is that the

concerned 17 project casual labourer had already been

regularised as per the instructions laid down by G.M.

Western Railway, in consonance with Railway Board’s

decision. And so, the issue with regards to regularisation

of 17 project casual Labourers under reference is already

settled and therefore the matter referred for adjudication

is infructuous. On these grounds, it is stated that the

present dispute referred for adjudication had already been

decided by CAT and project casual labourers have been

given benefits and so the reference is not maintainable

and is fit to be rejected with costs.

In view of the rival contentions of the parties in

respective pleadings as also in view of the order dated

05.07.2012 passed by the Hon’ble Gujarat High Court in

S.C.A. No.5567 of 2004 with civil application no.371 of

2012 in S.C.A. 5567 of 2004, the following issues are taken

for discussions and determination:-

ISSUES

(i)

Is the reference maintainable?

(ii)

Whether the 2nd party / union /concerned workmen

have got valid cause of action?

(iii)

Whether the concerned project workmen were in

fact engaged as a skilled and semiskilled labours

4372

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

against class ‘C’ position and vacancies and were

actually paid wages on that basis only? Whether

the workmen involved were given temporary status

as group ‘C’?

(iv)

Whether the provision of Indian Railway

Establishment Manual provide only by way of

regularisation in class ‘D’ category and there is no

scope for direct regularisation in class ‘C’ category

of the concerned project workmen who were if

engaged in group ‘C’ casual labourer and given

temporary status in group ‘C’ category being skilled

and semi skilled casual labourers?

(v)

Whether the action of management of Divisional

Railway Manager, Western Railway, Rajkot for not

conducting screening and regularisation of 17 project

casual labourers under P.W.I. (C) Nadiad and other

project casual labourers recruited in the geographical

jurisdiction of Rajkot and at present are on the rolls

of Chief Project Manager, Western Railway,

Ahmedabad is legal, proper and justified?

(vi)

Whether the concerned project workmen’s claim for

being entitled to be absorbed in group ‘C’ category

after being screened properly is justified? If so, from

which date and what directions are necessary is in

the matter?

FINDINGS

Issue No (iii) :- It has been argued on behalf of the

2nd party that 17 project Causal Labours were working in

semiskilled and skilled category in the scale 950-1500 who

are involved in this reference case among the 2nd list of

artisan workers attached to the statement of claim , but

now out of 17 project casual labourers only 12 are

contesting for the cause that they were engaged as skilled

and semiskilled casual labourers in project work in the

geographical area of Rajkot Division and were granted

T.S. (temporary status) in scale 950-1500 as skilled, semi

skilled casual labourers class ‘C’ category but were not

absorbed in class ‘C’ category, rather were wrongly

absorbed in class ‘D’ category and they have been reverted

back to class ‘D’ category even their names were entered

in the combined seniority list of category wise of skilled

and semi skilled category as per Ext. 31/6 of Divisional

office Rajkot dated 15.09.1987 (list enclosed in 10 pages)

with reference to CCG. Letter No E (R&T) 615/10 dated

19.09.1986 and in terms of para 5.2.1 of Railway Board’s

letter no. 11.09.1986 circulated under G.M. (E) CCG’s letter.

It has been further argued that break up of category wise

skilled and semiskilled casual labourers are- Drivers,

carpenter, Black smith, Sarang, Bridge fitter, painter , Air

compressor driver, pipe fitter, pump driver, welder, fitter

mechanic, sutar, mason and mate (semiskilled khalasi). In

argument the name of 12 contesting concern workman has

been given in the category of carpenter Sl. No. 9 Bhikha

Kamji- Sl. No. 12 Asraf, Sl. No. 18 samsuddin and in pipe

fitter Sl. No. 01, Laxman Dave, in pump driver category

Sl. No. 3 Ushman Ahmed, in mason category Sl. No. 5-

Deva Khira , Sl. No. 8 Ranmal Biram, Sl. No. 11-Hiralal

Devsi, Sl. No. 15 Ambaam Ganesh and Sl. No. 24 Kasab

Allah Rakha and in Driver Category Sl. No. 20 Shahibkhan

and also name of Hargovind Ranchhoddas in male

category (Semi skilled). But on scrutiny of Ext. 31/6 the

seniority list prepared by Divisional office of Rajkot

Division, the name of Hargovind Ranchhoddas in male

category in the seniority list. So out of the 12 artisan

workers in project works only names off 11 are in the

seniority list of category driver, carpenter, pipe fitter, pump

driver and mason who are now only in fray in this reference

case and one Hargovind Ranchhor in mate category is out

of court for his claim for being absorbed in class ‘C’

category instead of class ‘D’ category. It has also been

argued on behalf of the 2nd party that as per list of 13

labours of Nadiad in the dispute are not contesting this

reference case and in the 2nd list of 31 Artisan staff scale-

950-1500, the name of Sl. No. 1,3,4,5,7,9,13,14,15,22 and 24

find place in seniority list category wise as per Ext. 31/6.

The second party has produced 10 (ten) documents

as per list Ext.31. Ext.31 is letter dated 17.12.1990,

mentioning list regarding confirmation of ‘C’ class staff-

40% permanent construction reserve post artisan staff

S&C dept. showing their date of confirmation. Ext. 31/1 is

memorandum dated 05.02.1999 of office of the D.CE (C&S)

department A.D.I in the subject, promotion, reservation

and transfer of drivers , RJT division. This shows that

Shri Laxman Narayan, Driver (T.S), Shri Bhupat Singh, Shri

Kalubhai (T.S), and Shri Batukbhai Agar Singh (T.S) were

promoted in the scale 4000-6000 (Rps) as Shri Natha

Vashram, Pradeep and Rewa Narayan H.S driver/scale 4000-

6000 (RPS) are juniors to all above said employees. This

has approval of competent authority. Ext. 31/2 is office

order No. 99 dated 01.09.1997 of W.Rly on the subject of

regularisation of project casual workers in class iv category

showing also names of 9 Artisan staff in the scale 950-

1500. Ext. 31/4 is Railway Board’s letter No. ENG/12/97/

RC-3/4,NewDelhi dated 09.04.1997 circulated among

General Manager (P) All India Railway, Zone on the sub-

Regularisation of casual labourer working in Group ‘C’

series –giving instruction -3 (i) All casual labourer/

substitutes in Group ‘C’ scales whether they are diploma

holder or have other qualifications may be given a chance

to appear in examination conducted by R.R.B. or the

Railway for without any age bar. – 3 (ii) Not withstanding

(i) above such of casual labourer in Group ‘C’ are presently

entitled for absorption as skilled artisans against 25% of

promotion quota may continue to be considered for

absorption as such. Ext. 31/5 is extract of chapter XXV as

Rule 2501 to 2513 of I.R.E.M. Ext. 31/6 is seniority list of

project casual labourer of Rajkot Division dated 15.09.1987.

Ext. 31/7 is western Railway H.Q. office (CCG Bombay)

letter No. K/Sig/615/6/10 dated 14.02.1999 on the subject

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4373

casual labourer/substitutes Appointment Sig & telecom

Dept. SB/W/shop with regard to clarification of para 2512

(ii) of chapter XXV of IREM. –I &ii skilled casual labour

engaged in work charged Esst. can be straightway

absorbed in regular vacancies in skilled grade provided

they have passed the requisite test to the extent of 25% of

vacancies reserved for departments promotion from the

unskilled and semiskilled category. These orders also

applied to Causal Labour who was recruited directly in the

skilled categories in work charges esst. after qualifying in

the trade test.

(iii) Causal Labours who have earned temporary status

are required to be given all benefits as admissible to

temporary employees. Ext 31/9 is order/letter dated

28.01.1991 of Divisional Office Bhavnagar on the subject

Trade test N.G. staff engg. Dept carpenter scale Rs 950-

1500(R.P) and regularising the artisan casual labourer (T.S)

in class ‘C’ category. Ext.31/10 is letter dated 03.02.1992 of

ALC(Central) Adipur to the D.R.M. Western Railway

Rajkot to consider the demand of union (P.R.K.P.)

regularising the artisan staff against 25% quota since

Bhavnagar Division has regularised artisan staff in class

‘C’ Category after taking trade test. Locally and absorbed

them in ‘C’ category scale. Ext.31/8 is statement showing

details of service particulars of Causal Labours appeared

before screening committee for absorption against 40%

construction reserved post for artisan staff position as on

31.05.1985.

On the other hand, the 1st party has submitted 10

documents with list Ext.32, Ext.32/1 is copy of reference

order of this case. Ext.32/2 is Railway Board’s letters dated

11.09.1986. Ext.32/3 is letter of G.M. Western Railway,

Mumbai dated 12.03.1987.Ext.32/5 is Railway Board’s letter

dated 09.04.1987 (given pucca Ext.41) says to give a scales

to Causal Labour in group ‘C’ scales to appear in

examination conducted by R.R.B. or the Railway for post

as per their suitability. Ext.32/6 is Western Rly, Mumbai

,H.Q letter dated 03.06.1998 on the subject regularisation

of Casual labourers working in group ‘C’ scale with

reference to Railway Board’s letter dated 09.04.1997.

Ext. 32/7 ,32/8 and 32/9 are copy of judgment of CAT, Jaipur,

New Delhi in O.A. No 501/97,1892/92 and 3217/92

respectively. Ext.32/10 is copy of judgement of Hon’ble

Supreme Court in W.P. no. 548/2000 in the case of Indrapal

Yadav & others vs. Union of India.

10.

On behalf of 2nd party out of the 11concerned

workmen in the fray one of them Shri Hiral Devsi deposed

in support of case at Ext.21 that he jointed railway

construction as artisan staff mason in scale Rs.900-1550

on 04.12.1971 as casual labourer and he was getting wages

Rs.7000/- p.m.. He deposed that in Jamnagar his screening

test of mason had been taken but others were made

permanent mason but his case was not considered. In

cross examination, it has come that in the year 1983 he got

temporary status of mason (skilled casual labourer). The

1st party also examined its witness namely Om Prakash

Ramprashad Upadhyaye working in construction

department of the 1st party. He deposed at Ext.40. He

deposed that temporary casual labourer can not be

observed in class 3 scale. But he admitted during cross

examination that the artisan staffs involved in this reference

case are working in project/construction from the

beginning as artisan staff class ‘C’ scale. He also stated

that it is true that they got temporary status of class III

category of casual labourer and that is the facts mentioned

in the documents marked Ext.32/5 are true which is pucca

Ext.41.

11.

It has been argued on behalf of the 2nd party / union

that the Div. Railway Manager, Western Railway, Rajkot

conducted the screening of these contesting 12 artisan

workmen for making them regular and permanent against

the existing vacancies on his division violating the existing

principle and rules of the conducting screening (1) The

number of vacancies to be notified against which the

screening is to be conducted , categories wise (2)

Notification of the seniority list of the staff categories

wise (3) The staff to be screened and allotted the same

category and post, on which they are working. But these

principle are violated by the D.R.M., Western Railway,

Rajkot since nonotification was issued declaring the

number of vacancies out of 25% quota for artisan staff

fixed against which the person were to be screened (4) no

seniority list was notified category wise. But the combined

general seniority list of class III and class IV persons were

issued and the concerned 12 affected artisan staff of this

case were wrongly screened and allotted low grade post

of class IV (d) in the category of Gangman scale 196-232/

750-940. It has been further argued had the vacancies

notified against which the screening was conducted, this

dispute could have been avoided but it was not done,so

internally to put the concerned contesting workmen in

financial and status loss. Further argument is this that the

1st party has misrepresented the facts under page 3 and 8

of the W.s. (Ext.17) and mislead the facts the copy of letter

dated 08.04.1997 and 08.06.1998 were not produced the

combined seniority list of the construction department

and the Div. Railway Manager, Western Railway Rajkot

Division did not produced as per para.9 of W.s. (Ext.17)

the list of person regularised.He further argued that as per

Ext.32/2 page 5:2:1 (II) The skilled artisan staff are to be

treated as one category but it was not done so in screening

conducted under D.R.M. Rajkot No.ER/891/1/16 vol.3 of

09.09.1997. Ext.32/5 also says the policy for regularising

the class III artisan worker in class III post only vide para.

No. 3(i) (ii). It has been further argued that the copy of

judgement of CAT Ext.32/7, 32/8 and 32/9 do not apply in

this case as is the present case concerned worker were

recruited on class III artisan staff. Reliance has been placed

up on the case law of V.M. Chandra Vs. Union of India

4374

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

(A.I.R. 1889 S.C.1624)wherein their lordship directed for

making class III artisan workers Causal Labour against

25% direct recruitment. In the case law of Hussain

SasamSaheb Kaladgi Vs. State of Maharastra (A.G.R 1987

S.C 1627) it was ordered that the person recruited in the

post should not be reverted to the lower post. The case

law reported in 1988 1 SCC 306 regularisation of service on

granting T.S, 2005 11 SC.C 301 Indrapal Yadav & others

Vs. Union of India -not to revert railway employee on

regularisation, Union of India Vs. AshaBhai son 2003 S.C.A

715 where in case of Ram Kumar and other dealt with/

Railway has no right to take different views in different

case. Summing up the argument, it has been submitted

that in the instant case concerned contesting artisan

workmen are to be governed by the above case laws cited

since they are project artisan workers recruited directly in

group ‘C’ Category, getting scale 950-1550 and also given

T.S. and working for more than 20 years so they should be

regularised in group ‘C’ scale after proper screening by

Rajkot Division against 25% reserved quota to be duly

notified with post category wise.

12.

On the other hand,it has been argued by the learned

counsel for the 1st party that the dispute raised by the

union with regard to 17 project casual labourer who was

initially engaged as class ‘D’ and were granted temporary

status (T.S.) or completing required days of work on casual

labourers class ‘D’ . But such argument made on behalf of

the 1st party falls to the ground since as per seniority list

of Rajkot Division (Ext.31/6) the 11 contesting worker who

are only in the fray in this reference case on project workers

are initially recruited in the scale 950-1500 grade ‘C’ as

artisan staff- viz. mason, carpenter, driver, pipe fitter, pump

driver category having scale of Rs.950-1500 more so the

claim statement (Ext.11) has not been denied in the W.s.

(Ext.17) that those 17 project workers out of wohom only

11-12 are contesting were initially engaged as artisan staff

class ‘C’ category in the scale 950-1500. But in the written

argument submitted by Shri H.B. Shah, Railway Lawyer

on 24.11.2013 it has been submitted that the dispute raised

by the union with regard to 17 project casual labourers are

engaged initially class ‘D’ and are granted temporary status

on completing required days of work as casual labourer

class ‘D’. The seniority list of project as casual labourer

has been notified and published vide Ext.31/6 and the

concerned workmen were empanelled and not submitted

any grievances. The seniority list of the project casual

labourer is find and accordingly their services were

regularised in class ‘D’ group. But such written submission

of the learned lawyer of the 1st party is not inconsonance

with the actual state of the affairs. Ext.31/6 is seniority list

of artisan staff working under jurisdiction of Rajkot

Division in the category of drivers, carpenter, Sarang,

Bridge fitter, painter, Air Compressor Driver, pipe fitter,

welder fitter/ Mechanic, record shorter, Mason, semiskilled

khalasi. As per own letter of Western Railway Dy.(ECC)

West’s office, Ahmedabad dated 05.12.1988, category of

Blacksmith, Carpenter, Fitter Mason, Welder, Painter,

Sarang, Driver are in the scale Rs 950-1500 (class III post).

In the seniority list category wise 11 workmen leaving

12th person Hargovind Ranchhoddas (semiskilled mate)

have been shown as Artisan staff scale 950-1500 with total

days of working means they were initially engaged as

Artisan staff scale 950-1500 and are getting wise of class

‘C’ grade but on regularisation by Rajkot Division they

are degraded to class ‘D’ post without notifying 25%

vacancies for project artisan staff category wise for having

screening test etc. In Ext.32/2 there is direction for

preparation of seniority test category wise (a) unskilled

casual labourer(b) semi skilled casual labourer (c) skilled

casual labourer treated trade wise. As per Railway Board’s

later dated 09.04.1997 Ext.32/5 (Ext.41) para.3(i) All casual

labourer / substitutes in group ‘C’ scale may be given

chance to appear in the examination conducted by R.R.B.

or the Railway for post as per their suitability. This directive

of the Railway Board was not followed in Rajkot Division

in true sense where as in Bhavnagar Division vide Ext. 31/9

directivesof Railway Board and followed by Western Rly

H.Q.order were followed in true scene for skilled Artisan

Carpenter, Category wise screening / trade test exam.

13.

As per discussion and consideration of the oral and

documentary evidence, I am of the of the view and

therefore find and how that as per list prepared by Rajkot

Division Categories wise out of 12 contesting project

workers the name of Hargovingd Ranchhoddas semi-

skilled mate(Khalasi) does not find place in the seniority

list of artisan staff(Ext.31/6) but the names of 11 project

workers of artisan staff find place in the list (Ext.31/6) who

are pump driver Usman Ahmad, engaged on 01.09.1980

days of work 1580 day Pipe fitter Laxman Dave engaged

on 16.04.1979 -2050 days of work, Carpenters Samsuddin,

Ashraf Mohd, and Bhikha Kangi engaged on 19.10.1983,

25.02.1980 and 22.02.1980 on days working 499, 1759 and

1819 respectively. Mason Dava Khira engaged on

17.11.1976 days of work 2889, Raman Viram, engaged on

20.10.1977 on days of work 2557, Hiralal Devasi engaged

on 21.04.1977 on days of work 2051, Ambaram Ganesh

engaged on 12.11.1979 on days of work 1854 and Kasab

Allahrakha engaged on 18.08.1980 on days of work 1593,

Driver Category- Shahibkhan w.e.f 27.11.1978, on days of

work 2164. All these 11 project workers got temporary

status as skilled worker(Artisan Staff) under direction of

the Hon’ble Supreme Court as per Indrapal Yadav and

other Vs. Union of India case (supra.). So it can be safely

presumed that these 11 Artisan staff got T.S in category

‘C’ in which they are initially appointed/engaged Casual

labourer(skilled Category) and were actually paid ways

on that basis only. Thus this issue No.(III) is decided

accordingly that 11 contesting concerned project worker

above named were in fact engaged as skilled worker

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4375

(Labours) against class ‘C’ position and vacancies and

are actually paid wages on that basis only and are given

T.S. (Temporary Status) as group ‘C’.

14.

Issue No(IV) : As per discussion and finding to issue

No-III in the forgoing paras. I find that the provision of

Indian Railway Establishment Manual (IREM) do not

provides only by way of regularisation of project workers

engaged in class ‘C’ Category to be in class ‘D’ category

rather there is scope as per Railway Board’s own order

(Ext-41) para -3(I) that provides scope for direct

regularisation in class ‘C’ category being skilled/semi-

skilled project worker in the scale 950-1500 by calling

them in screening/trade test category wise as per

notification of vacancies in 25% quota. This issue is

decided accordingly against the management of the

1st(W.Rly).

15.

Issues No-V : As per findings to issue No III & IV in

the foregoings, I find and hold further that the action of

the management of Divisional Railway Manager, Western

Railway, Rajkot for not conducting screening and

regularisation of 11 project Causal workers under P.W.I(C)

Nadiad, recruited in the geographical jurisdiction of Rajkot

is not legal Proper and justified since because of violating

the existing principles and rule of conducting screening

i.e., number of vacancies to be notified against which

screening is to be conducted, categories wise. The project

Artisan staff to be screened and quoted the same

categories and post on which they were working but these

principles were violated by the Divisional Railway Manager,

W. Rly, Rajkot.

16.

Issue No VI : As per finding above to issue no III, IV

and V in the foregoings I further find and hold that the

claim of 11 concerned project workers named mentioned

as para.13 of this order/Award are justified to be absorbed

in group ‘C’ category after being screened properly

according to principle of natural justified and following

the list category wise in true sense and if any of them or

all of them succeed in screening trade test category wise,

they should be absorbed in class ‘C’ category from the

dates their juniors are observed in class ‘C’ category. So

Rajkot Division is directed to conduct screening afresh

without violating the principles of natural justice and

following the direction of Railway Board’s order (Ext.41)

within two months of this order/ awards.

17.

Issue No. i & ii : The reference is maintainable and

11 project workers have valid cause of action in this case.

This reference is accordingly allowed in part so far

as 11 project workers (Casual labourer) engaged initially

in class ‘C’ category as artisan staff who have got valid

cause of action in this case. No. order as to any cost.

This is my Award.

BINAY KUMAR SINHA, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1639-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV

cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k] gSnjkckn ds iapkV (lanHkZ la[;k 18@2007) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 7@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@84@2006&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1639.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 18/2007)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Hyderabad as shown in the Annexure, in the

Industrial Dispute between the management of State Bank

of India, and their workmen, received by the Central

Government on 07/05/2014.

[No. L-12012/84/2006-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : SMT. M. VIJAYA LAKSHMI, Presiding Officer

Dated the 10th day of April, 2014

INDUSTRIAL DISPUTE No. 18/2007

Between :

The General Secretary,

State Bank Employees Union,

C/o G. Krishna Murthy,

16-32, Kowtha Subba Rao street,

Poornanandampet, Vijayawada

......Petitioner

AND

The Deputy General Manager,

State Bank of India, Zonal Office,

Tirupathi

....Respondent

Appearances :

For the Petitioner

: Party in person

For the Respondent : M/s. B.G. Ravindra Reddy &

Y. Ranjeeth Reddy, Advocates

AWARD

The Government of India, Ministry of Labour by its

order No. L-12012/84/2006-IR(B-I) dated 12.2.2007 referred

the following dispute under section 10(1)(d) of the I.D.

Act, 1947 requiring this forum to decide the question:

4376

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

SCHEDULE

“Whether the action of the Management of State

Bank of India not confirming the services of Shri M.

Rama Krishna Rao, Messenger, State Bank of India,

Tirupati branch w.e.f. 2.1.1981 is legal and justified?

If not, what relief he is entitled to?”

After receiving the said reference and registering it

as ID No. 18/2007 on the file of this Tribunal, the presence

of both the Petitioner union and the Management has

been secured and the claim made by the Petitioner union

and the counter filed by the Management have been

received.

The averments made in the claim statement filed by

the Petitioner union in brief are as follows:

The workman Sri M. Rama Krishna Rao was

appointed as a godown watchman at Eluru branch of the

Respondent bank on 1.1.1970. After taking his service

continuously for over 270 days he was retrenched without

any reference to retrenchment laws. Petitioner union

successfully prosecuted the dispute raised against the

illegal termination of the workman. Thereafter Respondent

bank has reinstated the workman into service on 10.8.1983

and posted him at its Tirupathi branch as a messenger,

paid back wages granting him increments etc., from

16.1.1976, the date on which the Hon’ble Supreme Court

of India gave it’s historic judgement in Sundaramoney Vs.

State Bank of India case. The Respondent bank took a

policy decision to confirm all the reinstated workman

retrospectively with effect from 2.1.1981 with a notional

probation period of 6 months after an interview. The

workman also was called for an interview held at Regional

office of the Respondent bank on 14.4.1984. He was sent

for medical examination on 11.1.1985. But he was not given

appointment without disclosing the outcome of the medical

examination held on 11.1.1985 he was made to undergo

another medical examination in April, 1985. Even then,

without disclosing result of the said examination,

Respondent bank constituted a medical board at LHO,

Hyderabad and got the workman subjected to yet another

medical examination on 15.11.1985. Since the services of

the workman were not confirmed on par with the other

reinstated workmen with effect from 2.1.1981 as per the

Respondent bank’s circular letter No. PER No.401-3-3 dated

27.1.1984, an industrial dispute has been raised

complaining that there was not only discrimination and

unfair labour practice against the said workman but also

he was being treated as temporary workman. During

conciliation proceedings before the Conciliation Officer,

Respondent bank revealed that as there were two

contradictory opinions by the opthalmologists, the

workman was got examined by the medical board on

15.11.1985 and since the said board diagnosed the said

candidate as suffering from primary retinitis, Pigmentose,

the said workman was considered as medically unfit for

the post of messenger. The conciliation officer suggested

the Petitioner union to pursue the issuance of medical

fitness for the workman with the Respondent bank and in

case of failure on their part they can reopen the dispute.

Respondent bank also was suggested to give reasonable

opportunity to workman to present his case. Pursuant to

the said suggestions Petitioner union in right earnest taken

up with the Respondent bank the matter regarding

confirmation but in vain. In the mean time Respondent

bank served the workman with the notice of termination

from service dated 30.11.1986. The conciliation

proceedings on the industrial dispute against such

proposed termination ended in failure. Dispute

questioning legality of the notice of termination was

referred for adjudication to this Tribunal. After adjudication

on the whole issue this Tribunal gave its award on 27.9.1993

in ID No.47/1987. As per the operative portion of the said

award workman is entitled to be reinstated into service

with full back wages and all other attendant benefits. In

the said award the Tribunal stated that,

“I find all these acts as unfair labour practices and

discrimination against the Petitioner workman and

taken the extreme step of terminating the services of

the Petitioner workman. It is also found that the

Petitioner-Workman was discriminated in relation to

other re-instated workmen. Thus, I am of the clear

view that the Respondent bank has resorted to unfair

labour practice of keeping the Petitioner –Workman

temporary without confirming him in service. This

Tribunal is left with no other alternative except to

reinstate Sri M. Ramakrishna Rao, Messenger into

service w.e.f. 30.11.1986.”

It is clear that this award is emphatic in that the

workman is entitled to besides reinstatement, all the

benefits as applicable to the other workmen who were

reinstated along with him in 1983. The Tribunal has directed

the Respondent bank to give same treatment to the

workmen herein in the mater of back wages and other

attendant benefits as given to other workmen which

includes, the benefit of confirmation as per bank’s circular

letter PER/No.401-3-3 dated 27.1.1984. But, the Respondent

bank informed the workman through their letter dated

16.12.1993 that he would be deemed as a confirmed

messenger with effect from 30.11.1986. For this there is no

basis and it is in a deliberate misinterpretation of the award.

Thus, the workman is forced to seek legal remedy due to

the precipitate action of the Respondent bank in issuing

an order of termination from service on 27.8.1987. He

invoked the writ jurisdiction by filing WP No.1390/1987

and succeeded in restraining the bank from giving effect

to the said termination order dated 24.8.1987 with all reveal

the vindictive attitude of the bank against the workman.

Finding that the Respondent bank is not amenable to

reasons and as they have ignored the representation of

the workman in order to get justice to him Petitioner union

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4377

had to raise yet another dispute on 4.5.2005 exclusively

on the question of date of confirmation which has been

duly considered by the Ministry of Labour and

Employment, Government of India, New Delhi and referred

for adjudication. The workman is entitled for confirmation

into service with effect from 2.1.1981 as per the circular

letter dated 27.1.1984 on par with the other workers who

were reinstated into service along with him in the year

1983. As per the directions in the award passed in Industrial

Dispute No.47/1987 also he is entitled for such

confirmation. While this dispute is pending the workman

retired from service on 31.5.2005 on attaining the age of

superannuation. The contention of the Respondent bank

raised before conciliation officer , that the issue has already

been adjudicated is false. The Respondent bank is to be

directed to confirm the workman M. Rama Krishna Rao in

service with effect from 2.1.1981 and to grant all other

attendant benefits consequent to such confirmation.

Respondent bank filed their counter with the

averments in brief as follows :

As a result of the award rendered in I.D. 47/1987 the

workman has been paid the back wages with effect from

16.1.1976 i.e., the date on which Hon’ble Supreme Court of

India has rendered its judgement in Sundaramoney’s case.

The bank has taken a policy decision vide circular

No.PER.401-3-3 dated 27.1.1984 to regularise and confirm

the services of those workmen who have put in continuous

service of 240 days or more in any 12 calendar months

preceding their termination subject however to a formal

interview and medical examination. While the services of

all other similarly placed workmen who were found

successful in interview and medical examination were

confirmed with effect from 2.1.1981 services of the present

workman were not confirmed as he was declared medically

unfit

due

progressive

ocular

diseases

Retinitispigmentosa. Since he was declared medically unfit

the bank proposed to dispense with his services on the

said ground with effect from 9.10.1986. Petitioner raised

and industrial dispute which was referred for adjudication

to this Tribunal. On adjudication of the said dispute the

award has been passed in ID No. 47/1987 dated 27/9/1993.

In the said award the claims raised by the same Petitioner

on same issues in letter and spirit were considered and the

workman was reinstated into service with effect from

30.11.1996 with full back wages and all attendant benefits

as per the direction in the said award. On the very same

issues the present dispute is raised and therefore it is

untenable. The allegation that the award is emphatic in

that the Petitioner is entitled to besides reinstatement all

the benefits as applicable to the other workmen reinstated

along with him in 1983 are all misconceived and nothing

but misinterpretation of the award of the Tribunal. The

said award is very clear in respect of both the aspects i.e.,

reinstatement as well as attendant benefits as it is clearly

stated that the workman is to be reinstated with effect

from 30.11.1986 with full back wages and attendant benefits.

The bank has implemented the said award in letter and

spirit. That is why only Petitioner has kept quiet all these

years. Present dispute is an after thought. That too after

retirement of the workman. The issues which are already

adjudicated can not be seek to be reopened. Petitioner is

estopped from raising the same issues once again by

application of doctrine of res judi cata. Further the claim is

time barred. Sec.11 of civil procedure code is applicable to

the industrial disputes as well. Hence, the claim is to be

dismissed.

4. Petitioner union filed a rejoinder with the

averments in brief as follows :

The attendant benefits in the context of the

observation of this Tribunal at para 10 of the award in I.D.

47/1987 include confirmation with effect from 2.1.1981.

While the workman was entitled to be confirmed in service

with effect from 2.1.1981 along with others, Respondent

bank confirmed him only with effect from 30.11.1986. It is

this that constitutes the present reference before this

Tribunal. Inspite of the specific observations of this

Tribunal in para 10 of the award dated 27.9.1993 in I.D

No.47/1987 the Respondent bank kept the workman

temporary till 29.11.1986 without confirming him from

2.1.1981 as done in the case of other reinstated workmen.

The same can not be termed as implementing the award in

letter and spirit. Due to non-confirmation of the workman

services with effect from 2.1.1981, he was denied several

benefits and it resulted into artificial degradation of his

seniority. His non-admission to provident fund with effect

from 2.1.1981 resulted in loss of PF contribution for about

6 years i.e., from 2.1.1981 to 30.11.1986. He is denied

admission to the pension fund also from 2.1.1981 resulted

in substantial reduction in fixation of his pension. He was

entitled to promotion as Duftry, Duffadar and Head

Messenger in the sub-ordinate cadre but was denied of

the same. He was selected for the clerical cadre post of

record keeper and cashier in 2002 but, said promotion was

denied to him on the alleged ground that he was medically

unfit. All his actions are indicative of vindictiveness on

the part of Respondent bank.

To substantiate the contentions of the Petitioner,

the workman was examined as WW1 and Ex.W1 to W16

were marked. On behalf of the Management MW1 was

examined and no documentary evidence was adduced.

Heard the arguments of either party. Written

arguments were also filed for either party and the same are

considered.

The points arise for determination are :

Whether the award passed in ID No. 47/1987

operates as res judi cata for the present proceeding?

II.

Whether the workman Sri M. Rama Krishna Rao is

entitled for confirmation of his services with effect

from 2.1.1981?

4378

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Point No. I :

It is an admitted fact that I.D. 47/1987 arose from the

reference made by the Government of India, Ministry of

Labour and Employment, New Delhi requiring the Central

Government Industrial Tribunal cum Labour Court, to

adjudicate upon the legality or otherwise of the termination

notice dated 9.10.1986 issued by the Respondent bank

proposing to terminate the services of the workman with

effect from 30.11.1986. On adjudicating the said dispute

the Tribunal has rendered its award dated 27.9.1993 in I.D.

47/1987. Ex.W12 is the copy of the said award published

in the gazette of India. Whereas present reference is

made for adjudication of the dispute i.e.,

“Whether the action of the Management of State

Bank of India not confirming the services of Shri M.

Rama Krishna Rao, Messenger, State Bank of India,

Tirupati branch w.e.f. 2.1.1981 is legal and justified?

If not, what relief he is entitled to?”

Thus, one can clearly see that the dispute

adjudicated in I.D. 47/1987 and the present dispute are

totally distinct and different. In ID No. 47/1987 the dispute

adjudicated upon is the legality or otherwise of the notice

issued by the Respondent bank on 9.10.1986, proposing

to terminate the services of the workmen with effect from

30.11.1986 whereas, the dispute now sought to be

considered in this case is the reasonableness and legality

of the action of the Respondent bank in not confirming

the services of the workman with effect from. 2.1.1981.

In the given circumstances, one can see that at any

stretch of imagination the proceedings of I.D.No. 47/1987

do not operate as res judi cata for the present proceedings.

This point is answered accordingly.

10.

Point No. II :

It is an admitted fact that Petitioner has been

reinstated into service on 10.8.1983 along with several

other workmen who were all retrenched earlier, as a result

of Petitioner union successfully prosecuting the dispute

raised against such retrenchment. That means, all these

workmen including the present workman Sri M. Rama

Krishna Rao are on par with each other and are standing

on one and the same footing.

11.

It is also an undisputed fact that Respondent bank

took a policy decision to confirm all the workmen who

completed continuous service of 240 days and more in

any 12 calendar months preceding their termination

subjected however to a formal interview and medical

examination and confirmed such persons’ services with

effect from 2.1.1981.

12.

As far as the present workman is concerned, though

he was called for interview and medical examination, as he

was similarly placed to the other workmen whose services

were confirmed with effect from 2.1.1981, he was denied

such confirmation and on the other hand his services were

proposed to be terminated on the ground that he was

medically unfit. The said decision was challenged in the

proceedings of I.D No. 47/1987. It is an admitted fact that

Ex.W12 is the copy of the award dated 27.9.1993 rendered

in ID 47/1987, published in Government of India gazette.

By virtue of this award, the Respondent bank was directed

to reinstate the present workman into service with effect

from 30.11.1986 with full back wages and all other attendant

benefits.

13.

The effect of the award rendered in I.D.47/1987 which

became final and is binding on the Respondent bank, is

that the contention of the Respondent bank that the

workman is medically unfit is not an acceptable contention.

Further, as per this award, the workman become entitled

for all attendant benefits consequent to his reinstatement

into service. Consequent to his reinstatement into service

with effect from 30.11.1986, he is to be deemed as in

continuous service of the Respondent bank on par with

other workmen who were confirmed in service with effect

from 2.1.1981 as he was also called for interview and

medical examination in adherence to the circular letter dated

27.1.1984. While giving effect to the award dated 27.9.1993

rendered in I.D. 47/1987, Respondent bank ought to have

extended all benefits to the workman herein on par with

the other workmen who were similarly placed and whose

services were confirmed with effect from 2.1.1981.

14.

But they confirmed his services only w.e.f.

30.11.1986. The Respondent bank is not coming out with

any specific reason why they discriminated the present

workman and confirmed his services only with effect from

30.11.1986. Their contention that they implemented the

award rendered in I.D. 47/1987 by letter and spirit is not at

all correct. If they have done so, they would have

confirmed the services of the present workman with effect

from 2.1.1981. Thus, Petitioner is entitled for such

confirmation of his services.

15.

No doubt, the Petitioner has raised the dispute

somewhat belatedly. But, the contention of the

Respondent bank that dispute has been raised after the

retirement of the workman is not correct. It was raised at

the fag end of his service. The Industrial Disputes Act,

1947 is not prohibiting the workman to raise such industrial

disputes belatedly. This may be in consideration of the

disadvantageous position in which the workmen are placed

socially and economically. Therefore, on the ground of

delay the relief can not be denied.

16.

In view of the fore gone discussion of the material

on hand, it can safely be held that Sri M. Ramakrishna

Rao, the workman is entitled for confirmation of his

services as Messenger from 2.1.1981 and also all

consequential benefits.

This point is answered accordingly.

Result :

In the Result, the reference is answered as follows:

The action of the Management of State Bank of India

in not confirming the services of Sri M.Rama Krishna Rao,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4379

Messenger, State Bank of India, Tirupathi Branch, with

effect from 2.1.1981 is neither legal nor justified. The

services of the said workman shall be confirmed with

effect from 2.1.1981 forthwith. The said workman is entitled

for all the benefits consequent to the said confirmation of

the services. Respondent shall extend all such benefits to

the workman forthwith.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant and corrected by me on this the 10th

day of April, 2014.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

the Petitioner

the Respondent

WW1 :

MW1 :

Sri M. Rama Krishna Rao

Sri N. Rama

Subrahmanyam

Documents marked for the Petitioner

Ex.W1:

Photostat copy of circular No. PER No. 401-3-

3, dt. 27.1.1984 dt. 27.1.1984

Ex.W2:

Photostat copy of representation of WW1 dt.

11.4.1984

Ex.W3:

Photostat copy of RM’s sanction lr dt.

11.1.1985 advising particulars of basic pay,

increment etc.

Ex.W4:

Photostat copy of representation of Petitioner

union reg. confirmation of WW1 dt.30.9.1985

Ex.W5:

Photostat copy of representation to the

ALC(C) about non-confirmation of the

workman dt. 16.12.1985

Ex.W6:

Photostat copy of lr. to the Respondent by

Petitioner union dt. 3.8.1986

Ex.W7:

Photostat copy of representation of Petitioner

union to the ALC (C) dt.3.10.1986

Ex.W8:

Photostat copy of FOC report dt. 21.1.1987

Ex.W9:

Photostat copy of representation of the

Petitioner union to the Ministry of Labour and

Employment dt. 27.8.1987

Ex.W10:

Photostat copy of WW1’s representation dt.

24.9.1987

Ex.W11:

Photostat copy of notification for the award

in ID No.47/1987 dt. 12.10.1993

Ex.W12:

Photostat copy of award in ID No.47/1987 dt.

6.11.1993

Ex.W13:

Photostat copy of Respondent’s lr. dt.

16.12.1993 reg. reinstatement of the Petitioner

workman

Ex.W14:

Photostat copy of representation of WW1 to

the Respondent bank dt. 24.8.1996

Ex.W15:

Photostat copy of representation by the

Petitioner union dt.4.5.2005

Ex.W16:

Photostat copy of FOC report No.7(13)/2005.

E2 dt. 9.5.2006

Documents marked for the Respondent

NIL

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1640-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iwoZ rV 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]

Hkqous'oj ds iapkV (lanHkZ la[;k 45@2013) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 28@5@2014 dks izkIr gqvk FkkA

¹la- ,y&41012@47@2012&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1640.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 45/2013)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Bhubaneswar as shown in the Annexure, in the

Industrial Dispute between the management of East Coast

Railway, and their workmen, received by the Central

Government on 28/05/2014.

[No. L-41012/47/2012-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT

BHUBANESWAR

Present

: Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour Court,

Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 45/2013

(Lok Adalat)

Date of Passing Award – 27th December, 2013

Between : The Sr. Divisional Operating Manager,

East Coast Railway,

Khurda Road,

At./Po. Jatni, Dist. Khurda,

Khurda (Orissa)

...1st Party-Management

And

Their workman represented through the

District Secretary,

Bharatiya Mazdoor Sangha,

Khurda District, VA/23/3,

Ashok Nagar, Bhubaneswar (Orissa)

...2nd Party-Union

4380

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Appearances :

Shri Sashi Kanta

: For the 1st Party Management.

Mohanty,

None

: For the 2nd Party Union.

ORDER

Case taken up before Lok Adalat. Authorized

representative for the 1st Party-Management is present.

The 2nd Party-Union has not responded despite sending

notice for today.

From the record of the case it transpires that the 2nd

Party-Union has not appeared on any of the dates fixed in

the case so far despite sending notice through ordinary

as well as registered post on 5.9.2013 and 22.10.2013

respectively which makes it abundantly clear that the 2nd

Party-Union has got no interest in the case. It might have

left the case un-settled either due to loss of record or its

un-traceability. The 2nd Party-Union, if has any claim

against the 1st Party-Management, it must have pursued

the matter after reference by the Central Government. But

by its conduct it appears that the 2nd Party-Union does

not want to pursue the matter any further. Therefore, in

the circumstances of the case, the case cannot be kept

pending for long and a no-dispute award is to be passed.

Accordingly a no-dispute award is passed.

The reference is decided in the above terms.

Dictated & Corrected by me.

JITENDRA SRIVASTAVA, Presiding Officer

ubZ fnYyh] 29 ebZ] 2014

dk-vk- 1641-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;] dksydrk ds iapkV (lanHkZ la[;k 14@2008)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&12011@31@2008&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 29th May, 2014

S.O. 1641.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 14/2008)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the Industrial

Dispute between the management of Punjab National Bank,

and their workmen, received by the Central Government

on 29/05/2014.

[No. L-12011/31/2008-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 14 of 2008

Parties : Employers in relation to the management of

Punjab National Bank

AND

Their workmen

Present : JUSTICE DIPAK SAHA RAY, Presiding Officer

Appearance :

On behalf of the Management : None

On behalf of the Workmen

: None

State : West Bengal

Industry : Banking

Dated : 24th April, 2014

AWARD

By Order No. L-12011/31/2008-IR (B-II) dated 19-6-

2008 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 Punjab

National Bank, Kolkata by discontinuing the variable

DA on special allowance of Rs. 7 and Rs. 13 payable

to the Clerk-cum-Cashiers of the erstwhile New Bank

of India (ENBI) presently employed in Punjab

National Bank as per the service conditions as

mentioned in their respective appointment letters is

justified? If not, what relief the concerned workmen

are 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 none appeared on behalf of the union/

workment on two consecutive dates. Considering the

above facts and circumstances and the conduct of the

union, it may reasonably be presumed that the union does

not want to proceed with the case further. Perhaps, the

dispute between the parties has been settled amicably.

Accordingly, the instant reference is disposed of by

passing a “No Dispute Award”.

JUSTICE DIPAK SAHA RAY, Presiding Officer

Dated, Kolkata,

The 24th April, 2014

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1642-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ueZnk ekyok

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] tcyiqj ds iapkV (lanHkZ la[;k 144@92) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@05@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@63@92&vkbZvkj (ch&III)º

lqefr ldykuh] vuqHkkx vf/dkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4381

New Delhi, the 30th May, 2014

S.O. 1642.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 144/

92) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of Narmada Malwa

Gramin Bank, and their workmen, received by the Central

Government on 30/05/2014.

[No. L-12012/63/92-IR (B-III)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/144/92

PRESIDING OFFICER : SHRI R. B. PATLE

Shri Sudhir Kumar Gupta,

62, Hatampura, Mohd. Patel Marg,

Khandwa, MP

.....Workman

Versus

Secretary,

Narmada Malwa Gramin Bank,

Pradhan Karyala- 201,

Arket Silver, Near Shop No.56,

New Plasiya, Indore

.....Management

AWARD

Passed on this 12th day of May 2014

As per letter dated 30-6-92 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D. Act, 1947 as per Notification No. L-12012/

63/92-IR(B-3). The dispute under reference relates to:

“Whether the action of the management of Nimar

Kshetriya Gramin Bank in dispensing with the

services of Shri Sudhir Kumar Gupta w.e.f. 31-5-86 is

justified? If not, to what relief the concerned

workman is entitled to?”

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim

at Page 5/1 to 5/2. Case of workman is that he was employed

by IInd party on 1-6-84. He was transferred to Dhulkot

branch and working in branch office Goul sailani when his

services were terminated on 31-5-86. That he had put

continuous service more than 1 year defined under Section

25(B) of I.D. Act. Though he was designated as Officer, he

was performing clerical duty as such he is covered as

workman under I.D. Act. that he was not paid retrenchment

compensation or wages neither he was paid wages in lieu

of notice before termination of his service as per Section

25-F of I.D. Act. That IInd party issued pay slip amounting

to Rs. 4050 i.e. Rs. 2700 wages for two months notice and

Rs.1350 as retrenchment compensation. However he

collected said amount on 3-6-1986. He further submits that

he not rendered surplus in Bank. His services are

terminated under Section 25-G of I.D. Act, principles of

last come first go were violated. Junior employee namely

Shri Raj Singh Chouhan and others were continued in

service. IInd party violated Section 25-F of I.D. Act as six

persons namely Shri Manohar Singh Sarsodia and 5 others

were appointed after his termination. On such ground,

workman prays for his reinstatement with back wages.

IInd party filed Written Statement at Page 11/1 to

11/4. IInd party raised preliminary objection when Ist party

workman is not covered under Section 2(1)(s) of I.D. Act.

Ist party was appointed on promotion for 2 years in

managerial capacity. He was doing duties of Manager.

Therefore reference is liable to be rejected. That Ist party

was offered appointment as per letter dated 8-5-84 for

appointment in the post of officer. The probation was of 2

years subject to satisfactory record and antecedents. He

could be confirmed in service. The Bank at its sole

discretion without assigning reason to terminate his

service, Ist party agreed to the terms and conditions of

appointment letter and executed and delivered to the non-

applicant a service bond on 23-5-84 and joined services

from 1-6-84. The services of workman ended in accordance

with terms and conditions in the bond. It is reiterated that

reference is not tenable as Ist party is not covered as

workman under I.D. Act. That Ist party was performing

managerial duties at various branches. Violation of Section

25-F of I.D. Act is denied. The services of Ist party were

terminated as per contract. By way of amendment by

terminating services of Ist party workman the amount was

paid. Workman did not collect till 31-5-86. That termination

of service is according to the conditions of contract.

Termination of his service is not illegal. On such grounds,

IInd party prays for rejection of claim.

Workman filed rejoinder at Page 13/1 to 13/2

reiterating that though he was appointed as officer, he

was performing duties of clerical nature. Principles of last

come first go was violated.

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 it is proved as Ist party

In Negative

is workman under Section 2(s) of

I.D. Act?

(ii) Whether the action of the manage-

In Affirmative

ment of Nimar Kshetriya Gramin

Bank in dispensing with the

services of Shri Sudhir Kumar

Gupta w.e.f. 31-5-86 is justified?

(iii) If not, what relief the workman

As per final

is entitled to?”

order.

4382

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

REASONS

The award was passed by my predecessor on

15-2-96 against workman. It was held by my predecessor

that Ist party is not covered under Section 2(s) of I.D. Act

and Tribunal has no jurisdiction to decide justification of

termination of his service. The award was challenged in

Writ Petition No.1409/96 . His Lordship set aside the award

and remanded matter to this Tribunal for deciding afresh.

The parties are in dispute whether Ist party Sudhir Kumar

Gupta is covered as workman under Section 2(s) of I.D.

Act. Workman filed affidavit of his evidence stating that

he was appointed as officer on 8-5-84. He had taken charge

on 1-6-84 at Khargone branch and thereafter working at

Gol Selani branch. That after termination of service, IInd

party had issued duty list and seniority list in his cross-

examination workman says appointment order Exhibit M-1

was issued to him on his application dated 8-5-84. He was

holding post of officer from 1-6-84 to 31-5-86. As he was

working as Officer, the progress report of subordinate was

sent by him to Head Office. His progress report was sent

by his senior. That leave application of Badri was forwarded

by him. he had forwarded matter of one Tarachand. He

says that he was not having managerial powers. Amount

of Rs. 1000 was passed by him. Document 14/20. After

loan was sanctioned to Tarachand, loan was paid by him.

For loan agreement, order was obtained from Head Office.

The court fees stamp for loan agreement was given by

him. He has sent cash memo register. He denies that he is

not covered as workman but falls in officers category.

The document Exhibit M-1 is appointment letter containing

terms and conditions subject to satisfactory completion

of probation period. Document Exhibit M-2 shows that

the appointment of Ist party workman was on probation

for period of 2 years. Several conditions are mentioned in

said document. Exhibit M-3 is report of Ist party submitted

by Superintendent. Exhibit M-4 is bond executed by Ist

party. Exhibit M-5 is copy of attendance register. M-6 is

report submitted by Ist party regarding G.N. Petoda

subordinate working under him. Thus Ist party workman

working as Manager had written monthly return about his

subordinate Shri G.N. Patoda. Leave application by

Badrinarayan Exhibit M-6 was also addressed to workman.

M-9 is signed by 1st party as Manager of Salani branch.

M-10 is loan application of Tarachand. Exact role of Ist

party is not clear from said document. From evidence on

record, it is clear that workman was appointed as officer

on probation. He was posted as Branch Manager. He has

submitted report of his subordinate Shri G.N. Patoda. Leave

application was also forwarded to him. Considering the

evidence contentions of 1st party that he is not covered

as workman under Section 2(s) of I.D. Act cannot be

accepted. Section 2(s) provides-

“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 doesnot include any such person –

(i)

Who………..

(ii)

Who…….

(iii)

Who is employed mainly in a managerial or

administrative capacity”

1st party workman was working as Branch Manager

and therefore he is not covered under Section 2(s) of I.D.

Act. For above reasons, I record my finding in Point No.1

in Negative.

In view of Ist party is not covered as workman under

Section 2(s) of I.D. Act, this Tribunal has no jurisdiction

to decide justification of termination of services of 1st

party workman. Besides above I may mention that at the

time of termination of service, 1st party was paid amount

one months pay in lieu of compensation and two months

pay towards retrenchment. Therefore also the termination

of his services cannot be said in violation of Section 25-F

of I.D. Act. For above reasons, I record my finding in Point

No. 2 in Affirmative.

In the result, award is passed as under:-

“Ist party is not covered as workman therefore this

Tribunal has no jurisdiction to decide justification

of termination of services of Ist party.”

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1643-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

bankSj 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] tcyiqj ds iapkV (lanHkZ la[;k 149@2003) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 28@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@131@2003&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1643.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 149/

2003) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of Indore,

and their workmen, received by the Central Government

on 28/05/2014.

[No. L-12012/131/2003-IR (B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4383

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/149/2003

PRESIDING OFFICER : SHRI R. B. PATLE

General Secretary,

Daily wages Bank Employees Association,

9, Sanswer Road, Ujjain

.....Workman/Union

Versus

General Manager (Operations),

State Bank of Indore,

Merged as State Bank of India

Local Head Office,

Hoshangabad Road,

Bhopal

.....Management

AWARD

Passed on this 24th day of April, 2014

As per letter dated 14-8-2003 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-12012/

131/2003-IR(B-I). The dispute under reference relates to:

“ Whether the action of the management of General

Manager (O), State Bank of Indore (merged as State

Bank of India) in terminating and not regularizing

the services of Shri Lakshman Kumar and not paying

him bonus is justified? If not, what relief the

workman is entitled for?”

After receiving reference, notices were issued to

the parties. workman filed statement of claim at Page 2/1 to

2/7. Workman submits that he was engaged on daily wages

Rs.35/- for work of cleaning, sweeping in Bhanpura branch

of State Bank of Indore he was engaged on 10-3-97 and

continued to work till 15-4-00 after transfer of Branch

Manager. Certificate about his working was issued by

Branch Manager. He further submitted that after transfer

of Branch manager, Dewasthali is successor of Mr. Korthari

was obtaining signature of payment of wages in name of

different persons. Workman submits that he completed

more than 240 days continuous service preceding 12

months of his termination. His services are terminated

without notice or paying retrenchment compensation. He

has raised dispute before ALC. After the dispute was

raised, show-cause notice was issued for violation of

Section 25-F of I.D.Act. workman was again allowed to

work from 8-12-2000. Workman had continuously worked

till 9-6-03. Workman submits that he had completed 240

days, he is covered as workman under Section 25 B of

I.D.Act, his services are terminated in violation of Section

25-F , G of I.D.Act, that the workman was not paid bonus

as per Section 8 of Payment of Bonus Act. Workman prays

for his reinstatement with 18% interest.

Workman has further referred to letter dated 6-8-90

of Ministry of Finance, Govt. of India prohibiting casual

employment. Bipartite settlement providing absorption of

casual labour.

IInd party filed Written Statement at Page 4/1 to 4/5.

IInd party denied employer employee relationship.

Workman was not employee of the Bank. He was not

appointed following recruitment process, his name was

not sponsored through Employment Exchange. The Bank

has procedure for appointment of messengers, peon

following recruitment process after advertising in news

paper calling names from Employment Exchange, such

procedure is not followed. Workman had not completed

240 days continuous service. He was intermittently

engaged. As per exigencies, his services were utilized for

1-2 hours. Wages were paid to him. Engagement of

workman is not covered under Section 2(oo) of I.D.Act. If

workman is absorbed, it amount to back door entry in

service. IInd party denied violation of Section 25-F, G, H of

I.D.Act. On such grounds, IInd prays for rejection of claim

of workman.

Workman filed rejoinder at Page 9/1 to 9/3 reiterating

his contentions in statement of claim. That he had

completed 240 days continuous service, his services were

terminated without notice, without paying retrenchment

compensation.

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

Termination of

management of General

services of

Manager (O), State Bank of

workman is

Indore in terminating and not

illegal.

regularizing the services of

Shri Lakshman Kumar and

not paying him bonus is

justified?

(ii) If not, what relief the workman

As per final order.

is entitled to?”

REASONS

Though the terms of reference relates to termination

not regularization of Ist party workman, non-payment of

bonus to him, the workman has filed documents about

payment of bonus. The claim of workman w.r.t. non-payment

of bonus appears not prosecuted. Workman in his

evidence on affidavit has stated that he was working with

IInd party from 10-3-97. He was continuously working for

579 days till 19-6-99. He raised dispute before ALC, Bhopal

on 8-12-2000 during pendency of conciliation proceeding.

4384

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

IInd party violated Section 33 of I.D.Act. his services were

terminated from 8-2-2000 without notice, without paying

retrenchment compensation. In his affidavit of evidence,

he has further stated that after show-cause notice for

violation of Section 33 of I.D.Act was received, he was

reinstated from 23-7-02. His services were discontinued

from 13-6-02. The working of workman after show-cause

notice issued by ALC, Bhopal was under the orders of

Competent Authority. Workman in his cross-examination

says 3 regular peons were working in the branch namely

Shri B.K.Vyas, T.S.Thakur and M.C.Upadhyay. He had

not appeared any examination for selection. He was

opening branch, he was taking files from table to other

table. He was received wages Rs. 35 per day. He was

working 3-4 hours per day. He was receiving wages for six

days in a week. In Document Exhibit W-1, working days of

workman during the period 3-3-97 to 19-6-99 are shown

579 days. It corroborates evidence of workman that he

completed 240 days continuous service preceding his

termination by IInd party. Document Exhibit W-2 reply

filed before ALC. It is specifically stated that workman

was engaged as casual labour, he was doing work of

filling water. The wages were paid to him for working days.

IInd party had assured payment of bonus to workman.

Exhibit W-3 is show-cause notice. Exhibit W-4 is reply

given by management before ALC. IInd party had advised

Branch Manager to restore workman as prevailing from 8-

12-2000. Exhibit W-5 is letter given by IInd party

discontinuing services of workman from 13-6-02. The

documentary evidence discussed above corroborates

evidence of workman that he was working in the Bank for

more than 240 days continuous service.

Management’s witness K.J.Mohite filed affidavit of

evidence but he has not appeared for cross-examination.

Rajendra Singh, Management’s witness supported

contentions of IInd party management. That workman

was not appointed in the bank. It is denied that workman

was continuously working from 10-3-97 to 8-2-2001.

Witness of management has stated that workman was

engaged for cleaning work. He was working one hour

morning and one hour evening. Workman was not

appointed after following recruitment process. In his cross-

examination, witness of management says that he was

not working in branch during 1997 to 2003. His affidavit of

evidence is filed on the basis of record. He had seen Form

B register, Attendance register before filing the affidavit.

No documents are available about workman was engaged

with prior permission of authorities. He claims ignorance

about the letter given by ALC. Workman was not paid

compensation before termination of his service. If evidence

of workman and management’s witness Rajendra Singh

are considered, the evidence of workman is supported by

document whereas evidence of management are not

supported. He was not working at relevant period. Though

the evidence is based on document, the documents about

attendance, payment sheet etc. are not produced.

Document W-1 clearly shows workman had worked more

than 240 days preceding his termination. His services are

terminated without notice, without paying retrenchment

compensation. On such ground, IInd party has violated

Section 25-F of I.D.Act. Therefore I record my finding on

Point No.1 accordingly.

As per terms of reference, regularization in service

is also referred. The evidence of workman shows that he

had not appeared for examination for selection of

candidates. Management’s witness has also stated about

it. Workman was engaged after following selection

process. Workman was engaged as casual labour.

Document P-6 is copy of settlement dated 13-7-93 as a one

time measure, the employees were allowed opportunity

for absorption on permanent basis. The employee who

had completed 240 days service during 12 consecutive

months, list of temporary employees were prepared.

Workman was not working in the Bank in 1993 as he was

not in employment of the Bank. Workman cannot get

absorption as per said settlement. The claim for

regularization of workman is opposed by IInd party.

10.

Learned counsel for IInd party Shri Tripathi relies

on ratio held in

Case of Madhya Pradesh Administration versus

Tribhuban reported in 2007(9) Supreme Court Cases 748.

Their Lordship of the Apex Court dealing with the relief

to be given on non-compliance with Section 25-F of I.D.Act

held distinction between relief to be granted to daily wager

who doesnot hold a post and to a permanent employee

are to be considered that at one point of time reinstatement

with full back wages used to be automatically granted, a

change in the said trend is now found in recent decisions

of Supreme Court. Workman was granted compensation

Rs. 75,000.

In case of Rajkumar versus Jalagaon Municipal

Corporation reported in 2013 (2) Supreme Court Cases 751,

their Lordship of the Apex Court considering single

judgment and Division bench of the High Court recorded

a finding that appellants were temporarily appointed on

daily wages as and when work was available and not

posted on regular basis against any sanctioned post. There

was no reason to interfere with the orders refusing to set

aside termination.

In case of Chandra shekhar Azar Krishi Evam

Prodyogiki Vishwavidyalaya versus united Trades

Congress and another reported in 2008(2) Supreme Court

Cases 552, their Lordship held that working for more than

240 days continuously from the date of engagement by

itself doesnot confer any right upon a workman to be

regularized in service.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4385

As the workman was engaged on daily wage without

following recruitment process, reinstatement cannot be

justified. On the point of burden of proof reliance is placed

on ratio held in 2009(11) Supreme Court Cases 522, 2006(2)

Supreme Court Cases 716. The detailed discussion of

ratio in those cases is not necessary in view in document

Exhibit W-1 579 working days of workman are shown.

11.

Shri Ram Nagwanshi Union Secretary relied on ratio

held in Case of Samishta Dube and City Board Etawah

and another reported in 1999(81) FLR 746. Ratio held in

the case is in absence of any agreement between the

employeor and the workman on behalf the employer shall

ordinarily retrench the workmen who was the last person

to be employed.

In case of Jaipur Development Authority versus

Ramsahai and another reported in 2007(1) Supreme Court

Cases (L&S) 518, their Loreship held Section 25-G, H of

I.D.Act requirement of continuous work in terms of Section

25-B held the same is not necessary.

In present case, from pleading and evidence

workman has not made out ground of any other person

engaged after termination of his service, violation of

Section 25-G, H is not made out. Workman was working

from 1997 to 2001 approximately 4 year. He was engaged

on daily wages as casual employee. Considering above

aspects, in my considered view, compensation Rs.50,000

would be appropriate and shall meet the ends of justice.

Accordingly I record my finding in Point No.2.

12.

In the result, award is passed as under:-

(1)

The action of the management of General Manager

(O), State Bank of Indore (merged as State Bank of

India) in terminating and not regularizing the

services of Shri Lakshman Kumar is illegal.

(2)

IInd party is directed to pay compensation Rs.50,000

to the workman within 30 days from the 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.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1644-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

bankSj 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 tcyiqj ds iapkV (lanHkZ la[;k 132@2005) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 28@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@102@2005&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1644.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 132/

2005) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of Indore,

and their workmen, received by the Central Government

on 28/05/2014.

[No. L-12012/102/2005-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/132/2005

PRESIDING OFFICER : SHRI R. B. PATLE

General Secretary,

Daily wages Bank Employees Association,

9, Sanwer Road, Ujjain

.....Workman/Union

Versus

General Manager (Operations),

State Bank of Indore,

Merged as State Bank of India

Local Head Office,

Hoshangabad Road,

Bhopal

......Management

AWARD

Passed on this 25th day of April 2014

As per letter dated 1-12-2005 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-12012/

102/2005-IR(B-I). The dispute under reference relates to:

“Whether the action of the management of General

Manager (O), State Bank of Indore, Indore in

terminating the services of Shri Kamal Damodare

w.e.f. 1-4-2002 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 5/2 to 5/5. Case of workman is that he was engaged

as peon on 1-9-95 by Branch Manager, MG Road, Indore

at wages Rs.20/- per day. The wages were increased to

Rs. 30, 40, 50. He was rendering his services satisfactorily.

The workman was paid wages in different names like

Suresh, Santosh, Mukesh, different kinds of bills were

drawn. That he completed 240 days continuous service

4386

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

prior to termination of his services on 1-4-02. That his

services were terminated without notice though

retrenchment compensation was paid to him. That he is

covered as workman under Section 25 B of I.D.Act. His

services were terminated without notice, retrenchment

compensation was not paid to him. That he is covered as

workman under Section 25 B of I.D.Act. His services are

terminated in violation of Section 25-F, G, H of I.D.Act. On

such grounds, workman prays for his reinstatement with

consequential benefits.

IInd party Written Statement at Page 10/1 to 10/10.

IInd party denied claim of workman. It is submitted that

workman had not completed 240 days service preceding

his termination, he is not covered as workman under

I.D.Act. the reference is not liable. There is no employer

employee relationship. That Ram Nagwanshi is a dismissed

employee. He claimed to be General Secretary of Dainik

Vetan Bhoti karmchari Union. He is not competent to

represent workman in the reference.

It is further submitted that IInd party Bank is

corporate under Subsidiary SBI Act 1959. The Bank has

its own service Regulation for recruitment of Class-III, IV

employees as formulated by Govt. of India. The

appointment of sweeper , peon, Daftry are made by Head

Office adopting recruitment procedure publishing in

newspaper calling names from Employment Exchange.

Workman was not appointed following recruitment

process. He was not appointed by the Branch. Workman

has not completed 240 days continuous service. Workman

was engaged as per exigencies. His discontinuation is

covered under Section 2(oo)(bb) of I.D.Act. the

discontinuation of workman doesnot amount to

retrenchment. The claim of workman is to get back door

entry as employee of the Bank. IInd party has referred

ratio in various cases and submits that merely completing

240 days continuous service doesnot give right for

regularization. The daily wagers are not entitled for

absorption. Any part time employee is not covered as

employee of the Bank. On such ground, IInd party prays

for rejection of claim of workman.

Ist party workman filed rejoinder at page 12/1 to 12/

3 reiterating his contentions in statement of claim that

services of workman are terminated without notice,

retrenchment is not paid.

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 Whether the action of the

management of General Manager(O),

State Bank of Indore, Indore in

terminating the services of Shri

Kamal Damodare w.e.f. 1-4-2002

is justified?

(ii) If not, what relief the workman is

Workman is

entitled to?”

not entitled to

relief claimed

by him.

REASONS

Workman is challenging termination of his service

for violation of Section 25-F of I.D.Act. That he completed

240 days continuous service preceding his termination.

His services were terminated without notice, no

retrenchment compensation was paid. Covering all those

contentions, workman filed his affidavit of evidence.

However workman did not appear for his cross-examination

and consequently it was recorded that his evidence shall

not be considered. As such the claim of workman is not

supported by evidence on record. Management filed

affidavit of witness Bhanu Pratap Singh Bhati contending

that workman was engaged for cleaning work, one hour

morning, one hour evening. Workman had not completed

240 days continuous service. Management’s witness in

his cross-examination admitted documents marked Exhibit

W-1 to W-34. Witness of the management says he had

made enquiry form earlier Managers of the Bank. The details

of working days of workman are not produced. He claims

ignorance whether workman was admitted and staff

members raised fund for his support. The documents

Exhibit W-1 to W-4 are not only w.r.t. wages paid for

working days of the workman but those documents relates

to various kinds of payment, purchase of glass, repairing

charges, cleaning of Almirah, fan, purchase of stool,

miscellaneous charges, handwatch etc. The documents

W-1 to W-34 donot establish that workman was

continuously working for 240 days preceding 12 months

of his termination and as such there is no evidence that

workman was continuously working for more than 240

days preceding his termination. Workman is not covered

under section 25(B) of I.D.Act. consequently workman is

not entitled to protection of Section 25-F,a of I.D.Act. That

workman has not completed 240 days continuous service

preceding his termination, IInd party was not bound to

comply Section 25-F. Termination notice or payment of

retrenchment compensation was not required by

management. Reliance placed by Shri Ram Nagwanshi on

ratio held in case of Samishta Dube and City Board, Etawah

reported in 1999(81)FLR-746 & Jaipur Development

Authority versus Ramsahai and another reported in

2007(1) Supreme Court Cases (L&S) 518 cannot be

beneficially applied to case at hand. So far as violation of

Section 25-F, G, H of I.D.Act, there is absolutely no

pleading, no evidence is adduced as to whether

management had engaged any other temporary employee

after terminating services of Ist party workman.

Considering the evidence discussed above, reliance is

placed by learned counsel for IInd party on ratio held in

2008(1) SSC-575, 2008(2) SSC-552 is not necessary to

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4387

discuss in detail. From the evidence discussed above as

workman failed to prove that he completed 240 days

continuous service, I record my finding on Point No.1 in

Affirmative.

In the result, award is passed as under:-

(1)

The action of the management of Whether the action

of the management of General Manager (O), State

Bank of Indore, Indore in terminating the services of

Shri Kamal Damodare w.e.f. 1-4-2002 is legal and

proper.

(2)

Workman is not entitled to relief claimed by him.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1645-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV

cSad 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] tcyiqj ds iapkV (lanHkZ la[;k 66@06) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 28@5@2014 izkIr gqvk FkkA

¹la- ,y&12012@113@2005&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O. 1645.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 66/06) of

the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of India,

and their workmen, received by the Central Government

on 28/05/2014.

[No. L-12012/113/2005-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/66/06

PRESIDING OFFICER : SHRI R.B. PATLE

Shri Shivlal Raikwar,

S/o Gafloo Raikwar,

R/o Vill Ghat Pipariya,

Post Anantpura,

Tahsil Deory, Sagar (MP)

....Workman

Versus

Branch Manager,

State Bank of India,

Rehli Branch,

Distt. Sagar (MP)

.....Management

AWARD

Passed on this 21st day of April 2014

As per letter dated 12-10-06 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-12012/

113/2005-IR(B-I). The dispute under reference relates to:

“ Whether the action of the management of State

Bank of India, Rehli Branch, Distt. Sagar in

terminating the services of Shri Shiv Lal Raikwar, Ex-

Waterman w.e.f. 31-5-97 is justified or not? If not

what relief he is entitled to and from which date?”

After receiving reference, notices were issued to

the parties. workman submitted his statement of claim at

Page 3/1 to 3/3. Case of workman is that he was appointed

by IInd party on post of messenger cum waterman since

May 1993 at Anantpura branch. Later on said branch was

shifted to Tehli without any break in service, his salary

was paid at the rate of wages fixed by the Collector. He

had acquired status of permanent employee, his services

were terminated from 31-5-97 by IInd party without

assigning reasons. That his appointment was made

following recruitment process of sub staff. That Branch

Manager was authorized by higher authorities of the

branch or making appointment of sub staff as per the

vacancies in the branch. That he was appointed against

vacant post by competent authority. He had worked more

than 240 days during 12 preceding months preceding his

termination on 31-5-97. That he is covered as workman

under Section 25-B of I.D.Act. His services are terminated

without following provisions of Section 25-F of I.D.Act.

Workman submits that he had regularly approaching

management. Management issued letter dated 23-2-99

calling details about his working. Management had raised

salary. Difference of salary was paid to him by cheque on

25-5-98. The Regional Office, Gwalior also called details

about his service as per letter dated 13-3-99. The workman

submitted particulars about him on 24-4-99. That his

services were illegally terminated. He is unemployed after

termination of his services. On such ground, workman

prays for his reinstatement with full back wages.

IInd party filed Written Statement. Case of IInd party

is that Ist party workman was engaged at Anatpura branch

as part time daily wager for supplying water to the branch.

He was intermittently engaged during 1-6-93 to 31-5-97.

When Anantpura branch was merged in Rehli branch in

the year 1997, the workman did not come to work. Workman

did not offer his services since past 8 years of his

discontinuance of his service. The material facts are

suppressed by workman. Engagement of workman at

Anantpura branch was on contract basis dependent on

exigency of work. As soon as work was over, the workman

didnot exist. Workman was not engaged as full time worker.

He was not continuously working. It is denied that

workman had completed 240 days continuous service

4388

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

preceding 12 months of his service. Workman is not

covered under Section 25 B of I.D.Act. there are

administrative instructions for recruitment of sub staff in

the Bank. Only after selection by recruitment committee,

the required appointment would be made. Workman had

not gone through selection process. The Branch Manager

working at various branches have no authority to appoint

sub staff. Workman doesnot get right to continue in the

Bank by virtue of his temporary engagement on daily

wages. IInd party prays for rejection of his 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

In Negative

management of State Bank

of India, Rehli Branch, Distt.

Sagar in terminating the

services of Shri Shiv Lal

Raikwar, Ex-Waterman w.e.f.

31-5-97 is justified?

(ii) If not, what relief the workman

As per

is entitled to?”

final order.

REASONS

Workman is challenging termination of his services

for violation of Section 25-F of I.D.Act. Workman submits

that from 1-6-93 to 31-5-97, he was continuously working

as messenger. His services are discontinued without

notice. Management denies above allegation. IInd party

submits that workman was engaged as part time daily

wager. He has not completed 240 days continuous service,

he is not covered as workman under Section 25 B of I.D.Act.

Workman has filed affidavit of evidence covering most of

his contentions in statement of claim that he completed

240 days service in 12months preceding his termination,

his services were terminated without notice. Workman has

produced documents Exhibit W-1, W-2. As per Document

Exhibit W-1, certificate is issued by IInd party that Ist

party workman was working in Anatpura branch from

1-6-93 to 31-5-96. His work was satisfactory. As per

document Exhibit W-2, the details about working of Ist

party workman were called by him form the Bank. As per

document Exhibit W-3, workman was paid difference of

wages for the period June 93 to February 1997 . those

documents clearly corroborate evidence of workman that

he was continuously working from June 93 to May 1997

on daily wages. He was paid difference of wages. Workman

in his cross-examination says that he was given

appointment letter. In June 1993, it was taken but after 1 ½

years. He had worked in Anatpura branch. Said branch

was shifted to Rehli. He worked for one year at Rehli branch

and 3 years at Anatpura branch. He was doing work of

filling water, taking dak/letters, moving ledgers etc. he was

appointed by Shri B.M. Upadhyay when Anatpura branch

was opened. He was not interviewed. The evidence of

workman about his working in the branch is not shattered

in his cross-examination.

Management filed affidavit of its witness Sohanlal.

The witness of the management submits that workman

was not appointed following recruitment process.

Workman was intermittently engaged on daily wages

during June 93 to May 1997. He had not completed 240

days continuous service. He is not entitled to protection

under Section 25-F of I.D.Act. in his cross-examination,

management’s witness says that his affidavit is based on

documents. Workman was working in the same branch

from 1993 to 1997. He claims ignorance about any argument

between the Bank and the workman. He claims ignorance

about shifting of Anatura branch to Rehli branch. He also

claims ignorance about circular No. 53. He claims ignorance

about different working period of Ist party workman.

Management’s witness claims ignorance when workman

was discontinued or workman herself absented form work.

Management’s witness admitted document Exhibit W-3

relating to payment of difference of wages. He denies that

workman had completed more than 240 days service. The

evidence of workman is corroborated by documents

whereas evidence of management’s witness is not cogent.

He claims ignorance about details of working of workman.

The evidence of workman corroborated by documents

Exhibit W-1 to W-3 is sufficient to hold that workman was

continuously working from June 93 to May 97 as

messenger cum waterman. On the point of completion of

240 days continuous service, learned counsel for

management Ashish Shroti relies on ratio held in case of

Surendranagar Distt. Panchayat and another versus

Gangaben laljibhai and others reported in 2006(9)SSC 132.

Their Lordship dealing with Section 25-F, 25-B, 2(A) and

requirement of 240 days continuous service, ownus lies

on workman, he must adduce evidence to prove the factum

of being in such an employment. In present case, evidence

of workman is corroborated by document Exhibit W-1 to

W-3.

Reliance is also placed in ratio held in case of

Nedungadi Bank Ltd. Versus K.P. Madhavankutty and

others reported in 2000(2) Supreme Court Cases 455. Their

Lordship held law although doesnot prescribe in time limit

for appropriate Govt. to exercise powers under Section 10

of I.D.Act. This power cannot be exercised to revive settled

matters or to refer stale disputes. Workman was

discontinued in service in May 1997. The reference is made

in 2006 after about 9 years. Workman in his affidavit of

evidence has stated that information was called by him

from Manager in 1999. Thus workman appears to be

pursuing redressal form management. It cannot be said

that reference has become stayed.

In case of Surendranagar District Panchayat and

another versus Jethabhai Pitamberbhai reported in 2005(8)

supreme Court Cases 450. Their Lordship held ownus to

prove 240 days continuous service lies on workman the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4389

evidence of workman is corroborated by documentary

evidence. He had completed 240 days continuous service.

His services were terminated without notice, retrenchment

compensation was not paid to him. Thus termination of

services of workman is in violation of Section 25-F of

I.D.Act, therefore I record my finding in Point No. in

Negative.

Point No.2- In view of my finding in Point No.1 that

termination of workman is illegal, question arises whether

workman is entitled to reinstatement with back wages.

Workman claims that he was appointed by Branch

manager, he is competent to make appointment of sub

staff but his evidence doesnot show that any public notice

was issued or recruitment process was followed with

participation of other candidates. The workman was

engaged on daily wages. Appointment order was not

issued to the workman, no evidence is adduced how many

post of messenger from waterman were vacant in Anatpura/

Raheli branch. Therefore the workman who worked for a

period of about 4 years may not be entitled for

reinstatement. Learned counsel for workman relies on ratio

held in case of Kuldeep singh Versus G.M, Instrument

Design Development and facilities Centre and another

arising out of SLP 417/07. Their Lordship of apex court

following ratio in Sapan Kumar Pandit versus UP State

electricity Board, reinstatement of workman with out back

wages. The facts of present case are not comparable. Ratio

cannot be applied to present case. Considering short

period of work on daily wages of workman, in my

considered view, compensation Rs. 50,000/- would be

appropriate relief. Accordingly I record my finding in Point

No.2.

10.

In the result, award is passed as under:-

(1)

The action of the management of State Bank of India,

Rehli Branch, Distt. Sagar in terminating the services

of Shri Shiv Lal Raikwar, Ex-Waterman w.e.f. 31-5-97

is illegal.

(2)

IInd party is directed to pay compensation Rs.50,000/

- to workman within 30 days from the 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.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1646-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

bankSj 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 tcyiqj ds iapkV (lanHkZ la[;k 111@97) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 28@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@01@96&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1646.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 111/97) of

the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of Indore,

and their workmen, received by the Central Government

on 28/05/2014.

[No. L-12012/01/96-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/111/97

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Ram Nagwanshi,

General Secretary,

All India State Bank of Indore

Employees Congress,

INTUC, Jardev Niwas, 9,

Sanwer Road, Ujjain

.....Workman/Union

Versus

General Manager (Operations),

State Bank of Indore,

Merged as State Bank of India

Local Head Office,

Hoshangabad Road, Bhopal

.....Management

AWARD

Passed on this 25^th day of April 2014

As per letter dated 8-4-97 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-12012/

01/96/IR(B-I). The dispute under reference relates to:

“Whether the action of the management of State

Bank of Indore, Regional Office, Indore in not

promoting Shri Balak Ram Jial, Sub staff for the period

from 1976 to 1985 to the post of clerk/cashier instead

of paying him officiating allowance 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 through

General Secretary of the union. Case of workman is that he

was appointed as peon in IInd party Bank on 1-3-61. That

with permission of management of Bank, he had passed

High Secondary in 1975. The entry of his educational

qualification was taken in his service record. That from

4390

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

1976, though workman was posted as peon he was

assigned work of cashier. He was regularly performing

work on cash counter from 1976 to 1979 at Prince Yashwant

Road branch, Indore. On 1-10-79 he was transferred to

MG Road Branch, Indore. On same day workman had taken

charge in said branch. From 1-10-79 to 1-6-86, he was

working in cash section on receipt counter. That he had

passed examination for post of clerk but he was declared

fail in oral interview. Despite of working in cash section

from 1976 to 85, he was not regularized, he was paid

officiating allowance and the regular salary of clerk was

not paid to him. He was repeatedly declared failed in oral

interview. Workman submits that seniority list was declared

in 1988, his date of birth was wrongly shown 4-5-37. His

correct date of birth is 12-8-42. That he was retired

assuming his date of birth as 4-5-37. That he was paid

officiating allowance 7.5 % and 15 % of pay scale of clerk/

cashier. The regular pay for post of clerk was not paid to

him. Workman estimates amount of Rs.1,08,000/- is due

against IInd party on account of working as clerk. Workman

further submits that as per bipartite settlement dated

19-10-66, Para 9.10,11 , the officiating allowance cannot

be paid for working days more than 10 days. Workman

was paid officiating allowance from 1976 to

1-6-85. He had submitted repeated applications for

correction of his date of birth but no action was taken. On

such ground, workman prays amount of Rs. 1,08,000/- for

working on the post of clerk, annual increments payment

on account of 2 annual increments for passing graduation

for correction of date of birth and reinstatement in service.

IInd party filed Written Statement at Page 4/1 to 4/8.

IInd party submits that Union has no locus-standi to

represent the workman, no authority letter is produced by

the Secretary of Union though it is passed by Union

authorizing to represent workman in the case. That the

Director of Bank is not necessary party. It is bad for joinder

of parties. Statement of claim is not properly verified. Claim

is not tenable. The dispute is raised after lapse of more

than 10-15 years, it is barred by limitation.

IInd party further submits that workman was paid

officiating allowance during 1976 to 79 for his working.

The officiating allowance was paid as per rules. Workman

was transferred for administrative exigencies. The passing

of H.Sc or graduation doesnot give right of promotion to

clerk to workman. The claim of workman for promotion is

denied. Workman had passed written examination but he

had failed in interview therefore workman was not eligible

for obtaining post of clerk. Date of birth of workman was

recorded at the time of joining service. The date of birth

cannot be correct. Workman had not raised dispute about

date of death after joining service. The claim about date of

birth was wrongly shows as 4-5-1937 is incorrect. The

parties raised dispute after a long delay. Therefore he is

not entitled to relief claimed by him. IInd party prays for

rejection of claim.

Ist party workman submitted rejoinder at Page 13/1

to 13/2 reiterating his contentions in statement 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

In Affirmative

management of State Bank of

Indore, Regional Office, Indore

in not promoting Shri Balak Ram

Jial, Sub staff for the period from

1976 to 1985 to the post of clerk/

cashier instead of paying him

officiating allowance is legal and

justified?

(ii) If not, what relief the workman

Workman is not

is entitled to?”

entitled to relief

claimed by him.

REASONS

The terms of reference relates to denial of promotion

to Shri Balak Ram Jial to the post of clerk cum cashier

instead of paying officiating allowance is legal. The terms

of reference doesnot cover the controversy of date of

birth and consequent retirement of workman . I will make it

clear that the contentions of workman in statement of claim

in that regard are beyond the terms of reference and

deserves no consideration. Workman filed affidavit of his

evidence. He has stated that he was appointed as peon on

1-3-1961. He passed H.sc in 1975. From 1975 to 1979, he

worked at Yashwant Niwas Road, Indore Branch. From

1979 onwards at MG Road branch, Indore. That during

1975 to 1990, though he was holding post of peon, he was

doing work of clerk , officiating allowance was paid to him,

his date of birth was wrongly shown and he was retired

prematurely in 1997. However workman could not be cross-

examined because of his death. His LR are brought on

record. LR Ajay Jial filed affidavit of his evidence. He has

stated identical facts in his affidavit of evidence and says

that his farther though working as clerk from 1976 was not

promoted as clerk. In his cross-examination, witness says

his father was appointed as Presenting Officer. He passed

H.Sc. examination, his father was working as clerk in cash

section, permission was not given to him. The witness

claims ignorance about the channel of promotion and

qualification procedure. The evidence of LR of workman

is absolutely silent about payment of officiating allowance

paid to the workman was less. The pleadings in Statement

of claim is also silent about less payment to officiating

allowance to the workman.

Management’s witness Sukhmal, S/o Indermal

Pancholi in his affidavit of evidence says that there is no

provision about promotion can be given only on ground

working on officiating basis as clerk. That the deceased

workman was paid officiating allowance from 1966 to 1985.

No record is available. He further says that it is incorrect

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4391

that deceased workman was continuously performing work

of clerk. In his cross-examination, witness of management

says that he was not working at Yashwant Niwas Road

branch Indore from 1976 to 1979. He was not working at

MG Road branch from 1979 to 1979. He did not discuss

the matter with the earlier Branch Managers. He claims to

have seen provisions of Sastry Award, Desai Award. He

had seen order on officiating work of the workman.

Documents Exhibit W-1 is admitted by the witness of

management. Witness had denied that deceased workman

had passed BA in1975. On admission of management’s

witness document is marked Exhibit W-2, the document

Exhibit W-1 shows working of deceased workman of

different period of work on officiating basis. Said document

doesnot show how much officiating allowance was paid

to him. Document Exhibit W-2 provides payment of

officiating allowance as per para 6.56 of Desai Award to

sub staff. That difference of pay in the post of peon and

initial pay scale for post of clerk is required to be paid as

officiating allowance. The pleadings and evidence of

workman is not disclosing that officiating allowance paid

to workman was less. No other rule or settlement is

produced by Ist party providing promotion on the basis

of officiating working on the post of clerk. As per Exhibit

W-2 officiating allowance is made, the claim of workman

to the post of clerk and pay scale of that post from 1976 to

1985 has no basis. Consequently the claim of difference of

amount officiating allowance and pay scale for post of

regular clerk cannot be allowed. The action of the

management paying officiating allowance and not

promoting the deceased 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)

The action of the management of State Bank of

Indore, Regional Office, Indore in not promoting Shri

Balak Ram Jial, Sub staff for the period from 1976 to

1985 to the post of clerk/cashier instead of paying

him officiating allowance is legal and proper.

(2)

Relief prayed by workman is rejected.

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 ebZ] 2014

dk-vk- 1647-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV

cSad 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 tcyiqj ds iapkV (lanHkZ la[;k 203@99) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 28@5@2014 izkIr gqvk FkkA

¹la- ,y&12012@46@99&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1647.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 203/

99) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of India,

and their workmen, received by the Central Government

on 28/05/2014.

[No. L-12012/46/99-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/203/99

PRESIDING OFFICER : SHRI R. B. PATLE

Shri Sarman Lal,

S/o Shri Prem Lala Agarwal,

At/PO Shahpur,

Shankerganj,

Distt. Mandla (MP)

.....Workman

Versus

Asstt. General Manager,

Region-II, State Bank of India,

Zonal Office, Marhatal,

Jabalpur, MP.

.....Management

AWARD

Passed on this 21st day of April 2014

As per letter dated 11-5-99 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-12012/

46/99/IR(B-I). The dispute under reference relates to:

“Whether the action of the management of State

Bank of India, Region-II, Zonal Office, Jabalpur in

terminating the services of Shri Sarman Lal, S/o Shri

Premlal Agarwal, subordinate staff and not

considering him for further employment under

Section 25 H of the I.D.Act is justified? If not, what

relief is the concerned workman entitled for?”

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim

at Page 2/1 to 2/3. Case of workman is that he worked as

Messenger/ farrash for 98 days during the period 13-11-80

to 24-12-80, 1-1-81 to 25-2-81 in IInd party Bank, Shahpura

branch. Thereafter he worked for 75 days from 7-10-92. He

was engaged on daily wages in Karondi branch of the

bank. That from July 94, he worked on daily wages for 90

days. Workman submits that he would be absorbed as

permanent employee. Workman submits that he was called

for interview but result of interview was not communicated

4392

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

to him. He claims ignorance about the result of the interview.

That after July 1994, workman was not taken for work. He

was not give appointment. During 7-10-92 to 1-7-94,

workman had completed 181 days working as messenger

and 607 days as canteen boy. As such he had completed

more than 240 days service during the period 1980 to 1994.

He was called for interview. He is eligible for regularization

in service. He has submitted representations raising the

dispute and ultimately the dispute has been referred.

Workman prays for regularization of his service from 16-

11-90, he prays for declaring result of the interview held

on 16-11-90 and regularization of his service.

IInd party filed Written Statement at Page 8/1 to 8/7.

IInd party raised preliminary objection that relief sought

by workman is not covered in terms of reference. Workman

has not sought any relief as per terms of reference. The

Tribunal is obliged to adjudicate only dispute referred by

it. The claim by workman in his application is not covered

in the terms of reference therefore no relief can be granted

to him. That dispute is filed in 1994. Any reasons are not

assigned for delay of 4 months. Therefore the dispute is

liable to be rejected.

IInd party further submits that workman was engaged

as canteen boy of management between 13/5/92 to 16/11/

92. There is local Implementation Committee in the Bank.

The committee is constituted by staff members of Welfare

committee. Branch Manager used to be President, any

Union Representative become secretary and one staff

member becomes member of such committee. The Bank

provides subsidy to the committee to run work in the

branch. Such committee engages canteen boy. Bank has

nothing to do with such engagement by candidates

committee. Bank has no control or supervision over the

canteen boy. That during 1980-81, workman was engaged

for 98 days. Workman has worked as messenger cum

farrash on contract basis as per exigencies. Workman was

not engaged. His services stood automatically terminated.

Workman had not completed 240 days continuous service.

He is not covered as workman under Section 25 B of I.D.Act.

workman has not alleged violation of Section 25-H. No case

is made out about right of workman under Section 25 B of

I.D. Act. As per agreement dated 17-11-87, workman was

interviewed on 16-11-90. Workman was not found suitable

therefore he was not appointed. There was no right of

appointment as claimed by him.

IInd party reiterates that workman was engaged for

short period of 98 days during 1980-81. Workman was

engaged as messenger cum farrash. As per exigency of

work. He was paid wages Rs.20/- per day on contract basis.

Workman has not completed 240 days. He has not entitled

to relief prayed by him.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the

In Affirmative

management of State Bank of

India, Region-II, Zonal Office,

Jabalpur in terminating the

services of Shri Sarman Lal,

S/o Shri Premlal Agarwal,

subordinate staff and not

considering him for further

employment under Section

25 H of the I.D.Act is justified?

(ii) If not, what relief the workman

Workman is not

is entitled to?”

entitled to relief

prayed by him.

REASONS

As per the terms of reference, dispute for

adjudication is whether termination of service of workman

is legal and not, considering workman for employment

under Section 25 H are referred for adjudication. However

the workman in his statement of claim has pleaded that he

worked for 98 days during 13-11-1980 to 25-2-81, 75 days

since 7-10-92 and 90 days till July 94. He claims to be

entitled for regularization of services. That he was called

for interview on 16-11-90 but result of interview was not

informed. In Para-3 of his statement of claim, workman has

pleaded that from 1980 to 1990, he worked for more than

240 days. His pleadings are silent that he had worked

continuously for more than 240 days, 12 months preceding

the date of termination of his services. The pleadings of

workman are not clear on what ground he is challenging

termination of his services. His claim for regularization is

beyond the terms of reference. The claim for regularization

in service is not clear based on Bipartite Settlement Rules

or Regulations. Thus the pleadings in statement of claim

are vague. Working days claimed by workman are not

disputed. Workman has filed affidavit of his evidence. He

has stated about working for 98 days during 13-11-80 to

25-2-81, 4 days in August 89, 4 days in Sept.1989, he was

called for interview on 16-11-90 for permanent appointment

as per bipartite settlement dated 17-11-87, the result was

not informed. He claims to be entitled for permanent

appointment. In para-6 he claims that he rendered

continuous service more than 240 days in calendar year

preceding his retrenchment on 2-7-94. No notice or

compensation in lieu of notice was given to him. In his

cross-examination workman says he was not given

appointment letter, that he was not working as canteen

boy, he was working as messenger. During 13-11-80 to 25-

2-81, he was working at Karondi branch. There was no

canteen at karondi branch. After 1994, he did not work, he

was called for interview twice. He was not informed reasons

why he was not selected. He was paid wages by cheque.

He denies that he had not completed continuous service

during any of the year. The evidence of workman is not

consistent with his own pleadings. Workman has pleaded

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4393

in his statement of claim that he had worked as messenger

for 181 days during 1980 to 1994 and 607 days as canteen

boy. There is no evidence that the canteen was run or

controlled by the Bank. In absence of such evidence, Ist

party workman cannot be said employee of IInd party

Bank. The evidence of workman is not cogent to establish

that he was working for more than 240 days preceding

12 months of his termination in July 1994.

The evidence of management’s witness Rajshekhar

Shrivastava is consistent with the contentions raised in

Written Statement that workman had worked 90 days as

Farrash in 1980-81 at Shahpura branch. He further worked

for 75 days in Karondi branch. He was paid Rs.20/- per

day. As per settlement dated 17-11-87 he was called for

interview on 16-11-90. He was not found suitable for

absorption. That the canteen boy employed by canteen

committee the Bank has no control or supervision on his

working. Workman has not completed 240 days continuous

service. In his cross-examination, management’s witness

says that he had seen payment vouchers. On its basis, he

says workman worked for 76 days. He denies that he

deposed false about workman working for 75 days.

Management’s witness denies that during 7-10-92 to

1-7-94, workman was working as messenger. The witness

says that he was working as canteen boy during said

period. The payment were made to workman by banker

cheque as canteen boy. He denies that all Banker cheque,

payment to workman are not deliberately produced.

Management’s witness was unable to tell reasons why

workman was not selected as messenger. The burden lies

on workman to prove that he completed 240 days

continuous service. Learned counsel for management relies

on ratio held in Case of Krishna Bhagya Jala Nigam Ltd.

Versus Mohammed Rafi reported in 2009(11) Supreme

Court Cases 522. Their Lorship held burden of proof as to

completion of 240 days of continuous work in a year

reiterated lies on the aggrieved workman. The evidence

discussed above is not sufficient to discharge such

burden. Rather pleading of workman itself is clear that he

worked for 181 days as messenger and 607 days as canteen

boy.

Counsel for Ist party relies on bunch of citations.

In case of Central Bank of India and others versus

Central Bank Canteen boys, their Lordship of Guahati

High Court after considering large number of citations

concluded in para-17 that the decision of Supreme Court

would show that the Court will have to record a finding

that there was statutory or other explicit or implicit

obligation on the part of the organization to maintain the

canteens for staff and only then can the staff of such

canteens be treated as employees of the organization.

In present case, the pleadings and evidence of

workman are silent on the point canteen was run by bank

therefore working of workman as canteen boy cannot be

considered as employee of the Bank.

Reliance is also placed by counsel for workman in

case of Central Bank of India versus S.Satyam and others.

Their Lordship dealing with Section 25-H observed the

next provision in Section 25-H which is couched and is

capable of application to all retrenched workmen, nor mere

covered by Section 25-F. It doesnot requirement of the

ordinary meaning of the word retrenchment . The

provision for re-employment of retrenched workmen

merely gives preference to a retrenched workmen in the

mater of re-employment over other persons.

In present case, pleadings and evidence of workman

are silent as to who was employed after his termination

and opportunity of employment was denied to him in

violation of Section 25-H of I.D.Act. Therefore principles

laid down cannot be beneficially applied to present case

at hand.

10.

Learned counsel for workman Pranay Choubey

argued that at the time of termination of services of

workman, seniority list was not displayed on notice board.

Industrial Dispute Central Rules 1957 Rule 77 & 79 are

violated. However there is absolutely no pleading or

evidence on the point , therefore the ratio held in the case

cannot be applied in the present case. Besides above in

Case of State Bank of Bikaner and Jaipur versus Om

Prakash Sharma reported in 2006(5) SCC-123 relied by Shri

Pranay Choubey, it is held that violation of Rule 77 may

attract penalty under Rule 79 but would not by itself entitle

workman to reinstatement. Termination of workman is not

illegal, no daily wages messenger was engaged in the Bank.

For above reasons, I record my finding in Point No.1 in

Affirmative.

11.

In the result, award is passed as under:-

(1)

The action of the management of State Bank of India,

Region-II, Zonal Office, Jabalpur in terminating the

services of Shri Sarman Lal, S/o Shri Premlal Agarwal,

subordinate staff and not considering him for further

employment under Section 25 H of the I.D.Act is

legal and proper.

(2)

Workman is not entitled to relief prayed by him.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1648-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

bankSj 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] tcyiqj ds iapkV (lanHkZ la[;k 231@97) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 izkIr gqvk FkkA

¹la- ,y&12012@81@96&vkbZvkj (ch)º

lqefr ldykuh] vuqHkkx vf/dkjh

4394

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 30th May, 2014

S.O.

1648.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 231/

97) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of Indore,

and their workmen, received by the Central Government

on 30/05/2014.

[No. L-12012/81/96-IR (B)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/231/97

PRESIDING OFFICER : SHRI R.B.PATLE

Smt. Sulochana, widow, Sunil, Anil,

sons- LRs of deceased workman through

General Secretary,

All India State Bank of Indore Employees Congress,

Hardev Niwas, 9, Sanver Road,

Ujjain.

.....Workman/Union

Versus

Dy.General Manager,

State Bank of Indore,

Zonal Office,

163, Kanchanbag,

Indore

.....Management

AWARD

Passed on this 9th day of May 2014

As per letter dated 6-8-97 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-12012/

81/96-IR(B). The dispute under reference relates to:

“Whether the action of the management of State

Bank of Indore in terminating the services of Shri

Shankar Rao Gilbile w.e.f. 1-3-95 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 General

Secretary of Union. Case of Ist party workman is that he

was working as Armed Security Guard from 15-8-74 in IInd

party Bank. In 1994, he was working in the Bank. His wife

and daughter were suffering from illness. They were

admitted in hospital. For taking their care, he had proceeded

on leave from 5-12-94. He had submitted application for

leave. On 15-3-95, letter by RPAD was received by IInd

party treating him as voluntarily retired. He had submitted

to Regional Office as well the Manager of the IInd party

Bank that he was not desiring voluntary retirement. He

was on leave for taking care of his wife and daughter. It is

further submitted that Ist party had sent application dated

3-3-95 requesting him to allow join duty. The application

was received back. It was further submitted that the

workman was in service for 20 years. He had not received

letter dated 3-2-95 from IInd party. The allegation of IInd

party about his unauthorized absence are false. He had

received notice dated 1-3-95 on 15-3-95. That if he fails to

join service within 15 days he would be deemed retired.

He had not received said notice. That as per Bipartite

settlement dated 8-9-83, it is provided that if workman

remains absent without application continuously for more

than 90 days or workman is employed at some other place,

he has no intention to attend duties. If satisfactory reason

is not given about his absence from duty, then only

workman would be deemed to have voluntary retired.

That as per Circular dated 9-11-92, 4 letters are required to

be given to the workman. After giving 3 notices, notice for

voluntary retirement can be given to the workman. That

any of the notices were not served on the workman. That

no notice was published in newspaper.

Workman submits that other employees shown in

Para-10 were absent from duty for long period. No action

of voluntary retirement was taken against them. IInd party

is committed to engage security guard on contract,

therefore his services were terminated without notice. That

termination of his service is against principles of natural

justice. his services are terminated in violation of Section

25-F, G, H of I.D.Act. On such ground , workman prays for

his reinstatement with back wages.

IInd party filed Written Statement at Page 7/1 to 7/9,

IInd party has raised objection that Union is not registered.

It has no locus to submit statement of claim. Union has no

territorial jurisdiction to raise the dispute. The statement

of claim is not submitted in prescribed proforma. Workman

was engaged on duty as Security Guard. All material

contentions of workman are denied. It is submitted by

IInd party that workman remained absent without

application from 30-12-94. Intimation was issued to

workman on 3-2-92. The directions given in said letter was

not obeyed by workman. That 30 days notice was issued

to workman by RPAD on 13-3-95. It was duly served on

the workman. Workman didnot submit explanation. It is

denied that workman has personally met the Regional

Officer requesting to allow him to join duty. IInd party

submits that notice dated 3-2-95 sent by RPAD was

received by Sunil, Son of workman on 9-2-95. Workman

did not join duty as per the directions. Workman was

deemed voluntary retired from 15-3-95. The order on

workman deemed voluntary retired is legal. The employees

referred by workman in his statement of claim, no action

for voluntary retirement was taken. Their case is not

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4395

comparable and relevant. It is reiterated that workman

was unauthorisely absent on 9-3-93, 12-7-93, 29-9-93,

18-10-93, 21-9-94. Workman was in habit of remaining

absent unauthorisely. It is denied that services of workman

are terminated in violation of Section 25-F,G,H of I.D.Act.

it is submitted that for unauthorised absence of workman,

workman is voluntary retired. Workman failed to join duty

within 15 days even after notice dated 3-2-95. The action

of the management is legal and proper. Workman was

unauthorisely absent for 400 days during 1988 to 1992,

250 days during 1993-94. On such grounds, IInd party

prays for rejection of claim.

Union filed rejoinder at Page 8/1 to 8/4 reiterating

his contentions in statement of claim. Workman died

during pendency of reference and his LR Smt. Sulochana-

widow, Sunil, Anil- sons of deceased workman are brought

on record.

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 Whether the action of the

management of State Bank of Indore

in terminating the services of Shri

Shankar Rao Gilbile w.e.f. 1-3-95 is

justified?

(ii) If not, what relief the workman is

As per

entitled to?”

final order.

REASONS

As per terms of reference, legality of termination of

services of deceased workman needs to be decided.

Workman died on 25-5-99 during pendency of reference

proceeding. His widow Sulochana filed affidavit of

evidence. She has stated that her husband Shri Shankar

Rao was working as Security Guard from August 1974.

Her husband was on leave to take care of his daughter

and herself for their illness. They were admitted in hospital.

Her husband was voluntarily retired from 1-3-95 without

giving him any opportunity. In her cross-examination, she

denies that her husband had taken voluntary retirement.

Management filed affidavit of evidence of Surendra

Kumar Farkiya, J.T.Birle but they failed to appear for their

cross-examination. Affidavit of evidence of Shri S.M.

Pacholi is filed by management. From his evidence,

documents Exhibit M-1 to M-16 are proved. Management’s

witness in his affidavit of evidence has stated that

deceased workman was absent form duty form 29-1-93.

Notice was issued to workman on 9-3-93. Notice was served

on 13-3-93. Workman was absent from duty from 28-5-93,

again from 15-9-93 to 28-10-93, the notices were issued to

workman for his unauthorised absence. Workman was

absent from duty from 26-11-93, 4-4-94, 27-7-94. Notices

were issued to workman about period of unauthorized

absence. Workman remained absent from 5-12-94, notice

was issued to him as per Clause 17 of Bipartite settlement

dated 10-4-99 on 3-2-95. It was received by Sunil, son of

deceased workman on 9-2-95. That workman was

unauthorisely absent. He was treated to have retired.

Workman was paid amount of Rs. 52098 by cheque on

10-7-95. In his cross-examination, witness claims ignorance

whether deceased workman was appointed on 15-4-74.

That witness was not working in the Bank during 1994-95.

He claims that workman had not submitted any leave

application. That he had not disclosed the matter with any

of the Security Officer of the bank. Only he had seen office

record. Before termination of service, no chargesheet was

issued to workman, enquiry was not conducted against

him. The services were terminated as per Sastry Award.

The witness did not admit documents about the absence

of Sunita, Ramesh, Balwant Singh. Witness did not

remember date of unauthorized absence of workman.

As per document Exhibit M-1 workman was absent

from 29-1-93, said letter was issued on 9-3-93. Exhibit M-2

is postal acknowledgement. As per Exhibit M-3 workman

was absent form duty form 28-5-93 and letter was issued

on 12-7-93. As per Exhibit M-4 workman was absent from

duty from 15-9-93, letter was issued on 29-9-93. M-5 is the

postal acknowledgement. Exhibit M-6 is notice issued to

workman for his absence from 15-9-93 i.e. unauthorized

absence shown in Exhibit M-4.Exhibit M-8 shows workman

was unauthorisely absent from 26-11-93, notice was issued

on 21-9-93. Exhibit M-9 shows workman is absent from

duty from 4-4-94. Notice was issued on 3-5-94. M-10 shows

absence of workman from duty from 27-7-94, letter issued

on 21-9-94. In Exhibit M-12, unauthorized absence is shown

from 5-12-94. Workman was directed to report on duty

within 30 days otherwise he would be treated voluntary

retired as per Para 522(3) of Sastry Award. Said notice was

issued on 30-2-95. This is the main document issuing notice

for voluntary retirement to workman. The unauthorized

absence is shown from 5-12-94 i.e. period of absence is

less than 90 days on the date of issuing notice. Exhibit M-14

is notice issued on 13-3-95 treating workman voluntary

retired. As per Para 22(3) of Sastry Award. Exhibit M-16 is

document showing recovery of amount from workman at

different heads. Para-17 of Bipartite settlement provides.

Voluntary Cessation of employment by the employee

Clause (a) of Para-17 provides when an employee absents

himself from work for a period of 90 or more consecutive

days without submitting any application for leave or for

its extension or without any leave to his credit or beyond

the period of leave sanctioned originally/subsequently

or when there is satisfactory evidence that he has taken

up employment in India or when the management is

reasonably satisfied that he has no intention of joining

duties, the management may at any time thereafter give a

4396

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

notice to the employee at his last known address calling

upon him to report for duty within 30 days of the date of

the notice, stating interalia the grounds for coming to the

conclusion that the employee has no intention of joining

duties and furnishing necessary evidence where available.

Unless the employee reports for duty within 30 days of

the notice or gives an explanation for his absence within

the said period of 30 days satisfying the management that

he has not taken up another employment or avocation

and that he has no intention of not joining duties, the

employee will be deemed to have voluntarily retired from

the bank’s service on the expiry of the said notice.”

10.

Notice Exhibit M-12 doesnot show unauthorized

absence for consequently more than 90 days documents

Exhibit M-1, 2,3,4,6, 8,9,10 donot show unauthorized

absence of Ist party workman consequently. Notice Exhibit

M-12 & 14 are silent about the workman was employed at

other place or satisfaction of the management that the

workman will not join duties.

11.

Learned counsel for IInd party Shri Shroti emphasized

that voluntary retirement of workman is on the ground of

satisfaction of management that workman had no intention

of joining duties as 3rd part of sub clause a of Clause 17 .

However as notice Exhibit M-12,14 are silent about

satisfaction of the management that workman will not join

his duties and argument advanced on the point cannot be

accepted. The notice Exhibit M-12,14 are not showing

unauthorized absence of workman for 90 days or more

rather period of unauothorised absences comes hardly

30 days. The earlier period of absence from duty of

workman cannot be tagged with his unauthorized absence.

Clause 17(a) contemplates consecutive absence for 90 days

or more. Thus voluntary retirement of deceased workman

is not in compliance of Section 17(a) of Bipartite Settlement.

12.

Learned counsel for IInd party Mr. Shroti relies on

ratio held in Case of Punjab and Sind Bank and others

versus Sakattar Singh reported in 2001(1) Supreme Court

Cases 214. The ratio held in the case that deemed voluntary

retirement under Clause 16 of IV Bipartite settlement

cannot be said in violation of rules of natural justice. The

rules of natural justice cannot be could not applied in a

vacuum without reference to the relevant fact and situation.

In case of Syndicate Bank versus General secretary,

Syndicate Bank Staff Association and another reported in

2000(5) Supreme Court cases 65. Their Lordship held

requirements of facts held stood satisfied even without

holding a departmental enquiry. Bank employee

unauthorisedly absenting himself from work for the period

exceeding the prescribed limit of 90 days. Bank in terms of

Bipartite Settlement serving notice on him by registered

post, requiring him to submit his explanation and to join

work within the prescribed time limit of 30 days. In such

case voluntary retirement without holding DE is not

violative of principles of natural justice.

The facts of present case are not comparable.

Workman was not consecutively absent from duty for 90

days as per Exhibit M-12,14. There is no evidence about

satisfaction of the management that workman will not join

duty. Therefore the ratio in both the cases cannot be

applied to the case at hand.

13.

Copy of judgment in Case No. R/28/98 is also

brought to my notice. The facts of the case are not

comparable. However in said case directions were issued

for reinstatement with 30 % back wages.

14.

From evidence and legal position discussed above,

it is clear that deemed voluntary retirement of workman is

not as per Clause 17(a) of Bipartite Settlement reproduced

above. Therefore I record my finding in Point No.1 in

Negative.

15.

Point No.2- in view of my finding in Point No.1 that

action of management is not legal, question arises to what

relief the workman/ LRs are entitled. The deemed voluntary

retirement of workman is found illegal. Workman had died

in 1999. There is no evidence on record what deceased

workman was doing after his voluntary retirement.

Management has not adduced any evidence about

workman was in gainful employment. Considering above

status of evidence, it would be appropriate to allow

reinstatement of deceased workman with 50 % back wages.

Accordingly I record my finding in Point No.2.

16.

In the result, award is passed as under:-

(1)

The action of the management of State Bank of

Indore in terminating the services of Shri Shankar

Rao Gilbile w.e.f. 1-3-95 is illegal.

(2)

IInd party is directed to reinstate workman with

continuity of service and 50% back wages till his

death i.e. 24-5-99.

Amount as per above order shall be paid to workman

within 30 days from the date of notification of award. In

case of default, amount shall carry 9 % interest per annum

from the date of award till its realization.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1649-—vkS|ksfxd fookn vf/fu;e] (1947 dk

14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj jryke eUnlkSj

{ks=kh; xzkeh.k cSad 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] tcyiqj ds iapkV (lanHkZ la[;k 171@97)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&12012@237@95&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4397

New Delhi, the 30th May, 2014

S.O. 1649.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 171/

97) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of Ratlam Mandsour

Kshetriya Gramin Bank and their workmen, received by

the Central Government on 30/05/2014.

[No. L-12012/237/95-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/171/97

PRESIDING OFFICER : SHRI R. B. PATLE

Shri Dinesh Sharma,

Gram & Post Mandwi,

Tehsil Jawra,

Ratlam.

.....Workman

Versus

The Chairman,

Ratlam Mandsour Kshetriya Gramin Bank,

Near Civil Hospital,

Mandsour

.....Management

AWARD

Passed on this 9th day of May, 2014

As per letter dated 23-6-97 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-12012/

237/95-IR(B-I). The dispute under reference relates to:

“ Whether the action of the management of Ratlam

Mandsour Kshetriya Gramin Bank in terminating the

services of Shri Dinesh Sharma w.e.f. October 1990

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

2/1 to 2/4. Case of Ist party workman is that he was working

as Messenger in IInd party Bank form 30-4-88 to 22-9-90.

He was also required to work as sweeper. In October 1990,

regular messenger was appointed in Head office. Thereafter

the Manager without any reason terminated him. While

terminating his services, assurance was given to him of

regular appointment in Bank. Workman further submits

that he was paid Rs.11 per day. His wages were less than

Collector rate. Amount of PF was not deducted from him.

He was not given any kind of leave. IInd party violated

the statutory provisions. That wages were paid to him

obtaining his signature on vouchers. That he had

completed 281 days in the year 1989. That he was

continuously working till 22-9-90. When matter was taken

before ALC, IInd party submitted that workman had not

completed 18 years of age, he had not passed 7th standard.

He was not fulfilling conditions of eligibility. Workman

further submits that material facts were suppressed. IInd

party anyhow wanted to terminate his services. He is

rendered unemployed. On such grounds, Ist party

workman prays for his reinstatement with consequential

benefits. He also claims compensation Rs. 5 lakh.

IInd party has not filed Written Statement. IInd party

is proceeded exparte on 22-3-2013.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the

In Affirmative

management of Ratlam

Mandsour Kshetriya Gramin

Bank in terminating the services

of Shri Dinesh Sharma w.e.f.

October 1990 is legal and

justified?

(ii) If not, what relief the workman

Workman is not

is entitled to?”

entitled to relief

claimed by him.

REASONS

Workman filed statement of claim. IInd party has

not filed Written Statement. Workman has not participated

in the reference proceeding. He remained absent since

4-6-09. Workman engaged Alok Hoonka, Advocate, he also

remained absent. As workman failed to adduce evidence

in support of his 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 Ratlam Mandsour

Kshetriya Gramin Bank in terminating the services

of Shri Dinesh Sharma w.e.f. October 1990 is legal.

(2)

Workman is not entitled to relief claimed by him.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1650-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

bankSj 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 tcyiqj ds iapkV (lanHkZ la[;k 9@07) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@74@2006&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

4398

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 30th May, 2014

S.O. 1650.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 9/07)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of Indore,

Regional Office, State Bank of Indore and their workmen,

received by the Central Government on 30/05/2014.

[No. L-12012/74/2006-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/9/07

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Upendra Narayan Singh,

S/o Shri Ramji Singh,

Resident of behind MIG-50,

Vadunandamnagar,

Bilaspur CG

.....Workman

Versus

General Manager (Operations),

State Bank of Indore,

Merged as State Bank of India

Local Head Office,

Hoshangabad Road,

Bhopal

.....Management

AWARD

Passed on this 13th day of May, 2014

As per letter dated 4-1-07 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-12012/

74/2006-IR(B-I). The dispute under reference relates to:

“Whether the action of the management of State

Bank of Indore, Bilaspur branch, (merged as State

Bank of India) in terminating the services of Shri

Upendra Narayan Singh, S/o Shri Ramji Singh, Ex-

Peon is legal and 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 3/1 to ¾. Case of Ist party workman is that he was

engaged as permanent peon by Branch Manager Kumar

Satyendra from 27-4-97. He was paid wages Rs.40 per day.

He rendered his services with devotion without grievance

from any corner. His wages were increased from Rs. 40 to

50, 55, 70, 80, 100. He was working Monday to Saturday-

6 days in a week. He was not paid wages for holidays. He

worked under Branch Manager Satyendra, K.C.Jain,

K.M.saxena, D.K.Urkude & J.P.Nimje during 1997 to 13-

12-05. His services were terminated without notice. He

was not paid retrenchment compensatin. Though he

completed 240 days continuous service during each of

the year, his services were terminated in violation of

Section 25-F of I.D.Act. that he is covered as workman

under Section 25 B of I.D.Act. IInd party violated Section

25-G, N of I.D.Act. Principles of Ist come first go was not

followed. IInd party violated Section 25-H of I.D.Act. On

such ground, workman prays for his reinstatement with

back wages.

IInd party filed Written Statement at page 7/1 to 7/8.

The claim of workman has opposed. IInd party submits

that it is established under SBI Act 1959. The appointment

of clerk and sub staff is made as per rules, regulations

made by Govt. of India. The appointments of messengers,

daftaries are made as per rules. The post are advertised ,

names are called from Employment Exchange. The

workman was not appointed following such procedure.

Claim of workman is to obtain Bank employment by back

door entry. That workman was engaged for cleaning and

duty work in the branch for about 1 ½ hours in the morning

and 1 or 2 hours after closing of the bank. Workman had

not completed 240 days continuous service. Workman

doesnot get status of regular employee of the Bank. There

was no need to terminate his services. Workman was not

issued appointment letter. He not completed 240days

continuous service. IInd party referred to the ratio held in

various cases. It is submitted that workman is not entitled

to regularization or reinstatement. 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 State Bank of Indore,

Bilaspur branch, (merged as State

Bank of India) in terminating the

services of Shri Upendra Narayan

Singh, S/o Shri Ramji Singh, Ex-

Peon is legal and justified?

(ii) If not, what relief the workman is

As per

entitled to?”

final order.

REASONS

Workman is challenging termination of his services

for violation of Section 25-F,G, H of I.D.Act. That his

services were terminated without notice and without

paying retrenchment compensation despite of the fact

that he completed 240 days continuous service during

each of the year. Above contentions of workman are denied

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4399

by management. Workman filed affidavit of evidence. He

has stated in his affidavit that he was working as permanent

peon from 27-4-97 with IInd party. He was paid wages

Rs. 40 per day. He was working 8 hours every day. He

completed 240 days continuous service. That other

employees Laxeshwar Prasad Gupta, Lalit Kumar Soni, Anil

Singh are engaged by Bank after termination of the service.

That he was continuously working from 27-4-97 to 12-12-05.

In his cross-examination, workman says he passed 8th

standard. He understands English with some difficulty.

That appointment letter was not given to him. He was not

called for interview or written test. He was given identify

card for carrying cash. He had not submitted application.

He had made oral request. Certificate was not signed in

his presence. From evidence of the workman document

Exhibit W-6 circular issued by Branch Manager and Exhibit

W-7 identity card are admitted in evidence. In his cross-

examination, there is no suggestion that workman was not

continuously working. That he not completed 240 days

continuous service. The evidence of workman on the

above point is not shattered in cross-examination.

Document Exhibit W-1 produced by workman pertains to

the expenses of different nature incurred by Bank. Said

document is not exclusive related to the payment of wages

to worker. Exhibit W-3 is letter given by Controlling

Authority. Asstt. Manager of Bank for payment of gratuity

amount. Order of payment of gratuity amount is filed by

the Competent Authority. Exhibit W-4 is copy of cheque

of Rs.10,290 paid to workman on account of bonus.

Document Exhibit W-5 is copy of the provisions of I.D.Act

admitted by IInd party. Exhibit W-5 cannot be said a

document of Party rather it is copy of statutory provisions.

Exhibit W-6 is certificate issued by Branch Manager. That

workman was working from 27-4-97 till 31-3-01 in State

Bank of Indore Main Branch, Bilaspur. Exhibit W-7 is

Identity Card. Claim of applicant is supported by certificate

Exhibit W-6 as discussed above. The evidence of Ist party

workman that he was continuously working from 1997 to

2005 is not shattered in his cross-examination.

The evidence of management’s witness Satyendra

supporting management’s contention that workman was

engaged for 1-2 hours normally. In his cross-examination,

management’s witness says during 1997 to 2005, he was

not working in Bilaspur Branch. There was no sanctioned

post of peon in said branch. The witness of the

management has no personal knowledge about working

of the Ist party in the branch. He has not produced

document regarding working days or payment of wages.

He claims ignorance about how wages were paid to

workman. Evidence cannot be relied in preference to

evidence of workman supporting the documents. In Para-10

of his cross-examination, he says that he has not produced

documents to show that workman was working for 1-2

hours in the branch. Thus the oral evidence of workman

corroborated by documents is worth to place reliance. From

evidence discussed above, it is clear that workman was

continuously working for more than 240 days preceding

termination of his service, his services were discontinued

without notice, without paying retrenchment

compensation. Therefore termination of his service is in

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 that

termination of service of workman is illegal for violation of

Section 25-F of I.D.Act, question arises whether workman

is entitled for reinstatement with back wages. Evidence of

workman is clear that he has not submitted application, he

was not interviewed, he not appeared for cross-

examination. Evidence is clear that post of sanctioned post

is not available in the branch therefore reinstatement of

workman working on daily wages would not be

appropriate.

Mr. Ram Nagwanshi submitted copies of judgments

in Case of Samishta Dube Versus City Board Etawah and

another reported in 1999 (81) FLR-746. Ratio held in the

case that employer shall ordinarily retrench the workmen

who was the last person to be employed in that category,

unless for reasons to be recorded, the employer retrenches

any other person.

The ratio cannot be beneficially applied to present

case as controversy does not relate to retrenchment of

senior or junior employees.

Reliance is also paced in ratio held in case of

Regional Manager, SBI Versus Rakesh Kumar Tewari

reported in 2006(108)FLR 733. Ratio held in the case is

that Section 25-G, H of I.D. Act, deals with contradiction.

The Tribunal cannot contradict case of violation of Section

25-G. Learned Counsel for IInd party Mr. Tripathi produced

copy of judgment in R/65/07 by this Tribunal. Considering

the facts and tenure of service, compensation Rs.75,000

was awarded instead of reinstatement.

Shri Tripathi also relies on ratio held in case of Raj

Kumar Versus Jalagaon Municipal Corporation reported

in 2013(2) Supreme Court Cases 751. Their Lordship

considering facts held payment of Rs.10,000 each to the

appellants will not adequately compensate them. Hence

appellants who approached for conciliation after 8 to 10

years from date of termination are entitled to a sum of

Rs.50,000 each whereas appellant who approached

Conciliation Officer within 2-3 years shall be entitled to

get a sum of Rs. 1 Lakh. From reading of Para-2 of the

judgment, it is clear that the employees engaged as coolies

in the construction department of the corporation in 1989,

his services were terminated after 2 years in 1991.

In present case workman was working from 1997 to

2005. Considering the spam of working on daily wages,

compensation Rs. 1 Lakh would be appropriate.

10.

In the result, award is passed as under:-

4400

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

(1)

The action of the management of State Bank of

Indore, Bilaspur Branch, (merged as State Bank of

India) in terminating the services of Shri Upendra

Narayan Singh, S/o Shri Ramji Singh, Ex-Peon is not

legal.

(2)

IInd party is directed to pay compensation Rs. 1 Lakh

to workman Shri Upendra Narayan Singh.

Amount as per above order shall be paid to workman

within 30 days from the date of notification of award. In

case of default, amount shall carry 9 % interest per annum

from the date of award till its realization.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1651-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

bankSj 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 85@2001

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@05@2014 dks izkIr

gqvk FkkA

¹la- ,y&12012@48@2001&vkbZvkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O. 1651.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 85/2001)

of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Jabalpur as shown in the Annexure, in the Industrial

Dispute between the management of State Bank of Indore,

and their workmen, received by the Central Government

on 30/05/2014.

[No. L-12012/48/2001-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/85/2001

Present : SHRI R.B.PATLE, Presiding Officer

General Secretary,

Daily Wages Bank Employees Association,

9, Sanwer Road,

Ujjain

...Workman/Union

Versus

General Manager (Operations),

State Bank of Indore,

Merged as State Bank of India

Local Head Office,

Hoshangabad Road,

Bhopal

...Management

AWARD

Passed on this 15th day of May, 2014

As per letter dated 14-05-2001 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-12012/

48/2001-IR(B-I). The dispute under reference relates to:

“ Whether the action of the management of State

Bank of Indore, Indore in terminating the services of

Shri Raisuddin w.e.f. 05-10-99 is 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 3/5. Case of Ist party workman is that he was

engaged as permanent peon on daily wages Rs. 25 by

Branch Manager E.C. Saini in June 1990. His wages were

increased to Rs. 30, 35 per day. He was working under

Branch Manager E.C.Saini, B.B.Ratan Parkhi, K.G.Joshi,

Subhash Saronde & Shri R.S.Bhargav. He was paid wages

under voucher. After Branch Manager Rajendra joined in

the Bhopal branch, he was assigned duties of Daftary and

peon. During July 97 to March 97, he was assigned duty

in extension branch. The wages were paid in different

names. That he had completed more than 240 days

continuous service all the years. He was paid bonus. His

services were discontinued from 12-10-99 without notice.

He was not paid retrenchment compensation. After

termination of his service, other employees were continued

by the branch. His services are terminated in violation of

Section 25-F, G, H of I.D.Act. On such grounds, Ist party

workman prays for reinstatement with back wages.

IInd party filed Written Statement at Pages 6/1 to 6/8.

IInd party raised preliminary objection that as workman

has not produced documents about working for more

than 240 days, reference is not tenable. That workman

was not employee of the Bank. Reference is vague. It is

not tenable. Workman was not terminated by Bank. There

was no employer employee relationship between parties.

That Ram Nagwanshi is a dismissed employee of the Bank,

he is not competent to represent Ist party workman.

IInd party submits that a Bank incorporated as per

SBI Act, 1959. That as per prevailing procedure the

appointment of peon, Daftary, sweeper are made by Head

office following recruitment process giving publication in

newspaper, names sponsored through Employment

Exchange. Workman was not appointed following such

procedure. Workman is trying to get employment in Bank

for back door entry. It is reiterated that workman had not

completed 240 days continuous service his services were

engaged as per requirement. His discontinuation of

workman is covered under Section 2(oo)(bb) of I.D.Act.

workman was engaged for 2-3 hours per day. Workman is

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4401

not entitled to regularization/reinstatement in the Bank

being engaged temporarily.

Ist party filed rejoinder at Pages 9/1 to 9/2 reiterating

his contentions in statement of claim. That his services

are terminated in violation of provisions of I.D.Act.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

“Whether the action of the

In Affirmative

management of State Bank

of Indore, Indore in termi-

nating the services of Shri

Raisuddin w.e.f. 5-10-99 is

justified?

(ii) If not, what relief the

Relief prayed by

workman is entitled to?”

workman is

rejected.

REASONS

Workman is challenging termination of his services

for violation of Section 25-F, G, H of I.D.Act. workman filed

affidavit of his evidence at Pages 11/1 to 11/2. However he

failed to appear for his cross-examination. As per order

sheet dated 3-9-2012, the representative of workman

submitted that he does not workman to be cross-examined

as such evidence of workman was closed. His evidence

was not to be looked into in the case. Thus claim of

applicant is not supported by any evidence. Affidavit of

workman cannot be considered. Management has filed

affidavit of Shri Arun Kumar supporting contentions of

management that workman was engaged as per exigencies

for 2-3 hours per day. He had not completed 240 days

continuous service. Management’s witness in his cross-

examination says during 1989-90, he was not working in

the branch. He did not receive information from the earlier

Branch Manager. The documents are not produced by

him. He claimed ignorance about the appointment orders,

attendance register and payment vouchers. The evidence

of management’s witness is not supported by documents.

He claimed ignorance on all material points though his

evidence be hardly relied, workman has also failed to make

himself available for his cross-examination and his

evidence cannot be considered. Thus for absence of

evidence of workman, his contentions cannot be upheld.

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 State Bank of

Indore, Indore in terminating the services of

Shri Raisuddin w.e.f. 05-10-99 is proper.

(2)

Relief prayed by workman is rejected.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1652-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;&1] /uckn ds iapkV (lanHkZ la[;k

55@2009) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@05@2014

dks izkIr gqvk FkkA

¹la- ,y&12011@67@2009&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1652.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 55/2009)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court-

1, Dhanbad as shown in the Annexure, in the Industrial

Dispute between the management of Punjab National Bank,

and their workmen, received by the Central Government

on 30/05/2014.

[No. L-12011/67/2009-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO.1), DHANBAD

IN THE MATTER OF A REFERENCE

U/S 10(1) (D) (2A) OF I.D. ACT, 1947

Ref. No. 55 of 2009

Employers in relation to the management of Punjab

National Bank, Zonal Office, Ranchi

AND

Their workmen

Present : Sri Ranjan Kumar Saran, Presiding officer

Appearances :

For the Employers

: Sri Arun Kr. Sinha, Sr. Manager

For the workman

: Sri N.N. Choudhary, Rep.

State : Jharkhand

Industry : Banking

Dated 28/03/2014

AWARD

By Order No.L-12011/67/2009 -IR -(B-II), dated

12/10/2009, 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:

4402

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

SCHEDULE

“Whether the action of the management of Punjab

National Bank, Zonal Office, Ranchi by imposing

punishment of discharged from service with

superannuation benefits as would be due otherwise

at the stage of which he was presently placed and

without disqualification from future employment on

Shri Jwala Prasad, Head Cashier, Dumka Branch in

the decision making process is justified &

appropriate? What relief the aggrieved workman is

entitled to?”

The case is received from the Ministry of Labour on

21.10.2009. After notice both parties appeared. The

Sponsoring Union/Workman files their written statement

on 11.11.2009. The management files their written

statement on 24.02.2011. Thereafter they are files their

rejoinder and documents.

The short point involved in the case as to whether

discharge of the workman with service benefits is proper

or not. The workman is the cashier of Punjab National

Bank. He faced charges and faced enquiry. On the basis

of the said enquiry report he has been discharged from

duty. But before this Tribunal the departmental enquiry

conducted by the management has ordered improper, and

order reached finality.

On the basis of two charges, the workman has been

discharge from service. 1st There was short of cash of

Rs. 8000 in the hand of the workman and the same was

deposited in the said Bank. 2nd the workman took false

T.A. from the bank management.

First enquiry was conducted by the enquiry Officer

i.e. Sr. Manager Bokaro Steel found charge was not proved.

But Bank authority discharged the workman. The Bank

management held that charge No.1 was partly proved.

Misappropriation cannot be proved partly. It is either

temporary misappropriation or permanent.

Moreover on the date of cash loss the cash has

been deposited in banks such type of things usually

happened for which bank book circular has prescribed. If

the cash is deposited in the same day, no one will be held

responsible. Moreover workman witnesses have sated

that daily wager of bank, occasionally handled cash.

Therefore, charge No.I has not been proved against the

workman.

So far as false T.A. has been taken, it must have

been passed by the higher authority. If it is falsely taken,

same could have been recovered. Moreover a cashier who

sits in cash counter cannot go on T.A without the order of

the Branch Manager of the bank. The workman has also

stated so in his counter, which has not been controverted.

Particularly a bank staff has stated so. Moreover MW-4

has stated that “purpose of all journey and journey taken

up by the workman were as per document.”

Moreover if the Bank management found the

workman guilty why he did not dismissed him, after

following due procedure. Without any serious lapses or

stigma, discharge of the workman is not proper. The

workman be reinstated in service. It is on record that

workman has died in the meantime after prolonged illness,

The question of his gainfully engagement during the

period of discharge does not arise at all.

Considering the facts and circumstances of this case,

I hold that the action of the management of Punjab National

Bank, Zonal Office, Ranchi by imposing punishment of

discharged from service with superannuation benefits

without disqualification from future employment of

Shri Jwala Prasad, Head Cashier, Dumka Branch in the

decision making process is not justified & appropriate.

Hence workman be reinstated with 75% of back wages.

The benefits of a workman/ deceased workman if any be

given to the workman /legal representative.

This is my award.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1653-—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;&2] eqacbZ ds iapkV (lanHkZ la- 2@41@2008) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@05@2014 izkIr gqvk FkkA

¹la- ,y&12012@27@2008&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O. 1653.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 2/41/

2008) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court-II, Mumbai as shown in the Annexure, in the

Industrial Dispute between the management of Indian Bank,

and their workmen, received by the Central Government

on 30/05/2014.

[No. L-12012/27/2008-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : K. B. KATAKE, B.A.LL.M, Presiding Officer

REFERENCE NO. CGIT-2/41 of 2008

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF INDIAN BANK

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4403

The Deputy General Manager

Indian Bank

Vigilance Cell, Circle Office,

18-F, Maker Tower,

Cuffe Parade,

Mumbai-400005

AND

THEIR WORKMAN

Shri Sanjay G. Dhindle

Siddharth Nagar,

Dumping Road,

Behind Gala Company,

Mulund (W),

Mumbai-400 080.

APPEARANCES :

FOR THE EMPLOYER : Mr. Abhay Kulkarni, Advocate

FOR THE WORKMAN : Ms. Kunda Samant, Advocate

Mumbai, dated the 13th December, 2013

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No. L-12012/27/2008 -IR (B-II)

dated 18/6/2008 in exercise of the powers conferred by

clause (d) of sub-section (1) and sub-section 2(A) of

Section 10 of the Industrial Disputes Act, 1947 have referred

the following Industrial Dispute to this Tribunal for

adjudication:

“Whether the action of the management of Indian

Bank, Prabhadevi Branch, Mumbai by orally

terminating the services of Shri Sanjay G. Dhindle

w.e.f. 29/8/2007 is justified? If not, what relief the

workman, Shri Sanjay G. Dhindle is entitled to ?”

After receipt of the reference, notices were issued

to both the parties. In response to the notice, the second

party workman filed his statement of claim at Ex-7.

According to the second party workman he has passed

10th Std. He is 35 years of age. He belonged to reserved

category of Scheduled Tribe and hails from a very poor

family and residing in slum area. He also completed his

12th Std. by joining night college. The first party has

employed him as sub-staff-cum-Peon. Initially he has

worked in the Stationary Department of the Bank. There

he used to make packages of the stationery articles for

handing over the same to various branches of the bank.

He also used to clean the premises of the Bank, used to

collect petty cash of the bank from other banks and was

working as a Peon. He was appointed by the first party on

22/1/1993 in the Stationery Department in Vidya Vihar

Branch. He worked there for six years. Thereafter he was

transferred to Prabhadevi Branch and worked there as

Peon-cum-sub-staff. His working hours were 9.30 a.m. to

4.30 p.m. daily. They used to pay him against vouchers.

He used to work from Monday to Saturday. They used to

obtain his signatures on the vouchers. Three days in his

name as Sanjay and used to ask him to sign for the remaining

three days in the name of Santosh. He worked more than

240 days in a calendar year without any break. They used

to pay him meager amount initially @ Rs.29 per day.

Gradually, they increased it to Rs.30 per day then Rs.40

and lastly they used to pay him Rs.100 per working day on

vouchers. The vouchers are in the custody of first party.

The workman has got some xerox copies thereof. The

workman has worked since 1993. He worked continuously

for 14 ½ years for meager amount as daily wages. The

first party bank has regularized the services of some of his

colleagues as permanent employees of the bank. The

second party workman also requested the first party bank

to regularize his services. Therefore, the concerned officer

of the bank orally asked him not to attend the work of the

first party from 29.8.2007. He was victimized by the first

party. The first party indulged in Unfair – Labour –

Practices. They exploited the situation by extracting work

for meager amount of wages. In spite of more than 14 ½

years of service, they did not regularize his services. On

the other hand, when workman has asked for the same

they have terminated his services.

The workman therefore has raised industrial dispute

before A.L.C.(C). As conciliation failed on the report of

A.L.C., the Labour Ministry sent the reference to this

Tribunal. The workman claims that he is not gainfully

employed. Therefore, he prays for the declaration that

termination of his services be declared unjustified. He

also sought for declaration that, the action of the first

party is illegal in not absorbing him in the permanent

vacancy of sub-staff. He also prays for direction to the

first party to reinstate him with full back wages and

consequential benefits and the cost.

The first party Bank resisted the statement of claim

vide their written statement at Ex-11. According to them,

the Govt. has not made reference in respect of absorption

of the workmen in the employment of the bank. Therefore,

Tribunal cannot give any such direction. It is further

contended that the Govt. and RBI has imposed ban on the

recruitment of any regular employee in the bank which is a

Public Sector Undertaking. Furthermore the workman was

never recruited in the employment by following the

procedure prescribed therefor. Therefore, such a backdoor

entry in the services of bank cannot be allowed. According

to them, the workman was engaged on daily wages and on

the basis of as and when required for. They denied that

workman has worked continuously for 240 days in any

calendar year. They denied that the workman has worked

for 14 ½ years continuously with the first party bank. They

denied that the workman was employed by them. They

also denied that, they terminated the services of the

workman. According to them, as they have never

employed or appointed the workman, thus the question of

4404

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

termination of his services does not arise. In the

circumstances, it is submitted on behalf of the first party

that reference is not maintainable. As the workman was

not appointed by following recruitment procedure

therefore, he cannot be absorbed in the services of the

bank. Hence, they pray that the reference be rejected with

cost.

Following are the issues for my determination. I

record my findings thereon for the reasons to follow.

Sr.

Issues

Findings

No.

Whether there exists employer-

Yes

employee relationship between

the parties?

If yes, whether action of the

management in terminating the

services of the workman is justified?

If not, whether the workman is entitled

Yes

to be reinstated and regularized in the

services of the first party with full back

wages as prayed for?

What order?

As per the

final order.

REASONS

Issue No. 1 :—

In respect of the inter-se relations between the

parties, it is the case of the first party that the workman is

not their employee and he was engaged on daily wages

and as and when required for. According to them, the

workman never worked with them continuously as has

been alleged. Therefore, they contended that there exists

no employer-employee relationship between them and the

reference thus not tenable. As against this it is the case of

the workman that, he was working with the first party as

sub-staff/Peon since 1993. Initially he worked in Vidya

Vihar Branch for 6 years. There he worked in Stationary

Department as Peon/sub-staff. His working time was 9.30

a.m. to 4.30 p.m. daily. He has given the list of duties

which he was performing in Stationary Department where

he worked for about 6 years. According to him, he was

appointed against regular vacancy and he was doing the

work of regular permanent sub-staff of cleaning and

sweeping the office daily. He also used to swipe the floor

twice a week. He worked in Prabhadevi Branch also. He

worked for 14 ½ years in the first party bank as a peon.

According to him, he was doing the work of regular/

permanent sub-staff and he had worked more than 240

days in a year without break. However, neither bank

regularized his services nor paid him the wages and other

allowances at par with the regular sub-staff/peon.

According to him, three other employees i.e. Shri. Gautam,

Mariyappan and Suresh Lele were also doing the same

type of work and the first party had made them permanent

after 10 years continuous service. The first party has also

made some other workers permanent.

In this respect the ld. adv. for the second party

pointed out the reply given by MW-1, Mr. K.V. Marali in

his cross at Ex-24. He admitted that the workman was

working in Vidyavihar Branch since 22.01.1993. He admitted

that he was working for 6 years. He has also admitted that

the workman had worked at Prabhadevi Branch. He denied

that the workman worked at Prabhadevi Branch upto

29.8.2007. He says that he worked there upto 28.2.2006.

He has not denied that the workman was taking items from

Stationary Department to give it to indenting branches in

Mumbai. He has also admitted in his cross that the

workman used to arrange the stationary branch-wise to

be given to various branches. This witness has admitted

in his cross that Pandurang Bhangare was the permanent

sub-staff in Stationary Department when workman was

working there. This witness further admitted in his cross

that only one person Pandurang Bhangare was the regular

Peon working in the said branch. The said branch was

Vidya Vihar Branch where one Peon is not expected to

arrange, maintain and supply stationary items to various

branches, and do the other work of Peon in the branch. It

indicates that the first party must have availed the services

of the workman. These admission and circumstances on

record support the version of the workman that he was

working in Vidya Vihar Branch since 22.1.1993 for 6 years

continuously and he also worked in Prabhadevi Branch

upto 29.8.2007. In this respect I would also like to point

that MW-1 has admitted in his cross at Ex-24 that Shri.

Gautam, Mariyappa and Suresh Lele were made permanent

after 10 years of service for doing the same work like the

workman. This reply also indicates that workman was

working as a Peon like the above referred 3 workmen who

were absorbed in the service of bank as permanent

employees of the bank.

In the light of these admitted facts and circumstances

on record, it is clear that the workman was working as a

sub-staff/peon with the first party bank and there exists

employer-employee relationship between them.

Accordingly, I decide this issue No.1 in the affirmative.

Issue No. 2:—

From the above discussions and the evidence on

record, I find that the version of the workman is well

corroborated by the evidence on record especially the

admissions given by MW-1 in his cross-examination at

Ex-24. He has admitted that 3 other workmen were made

permanent after 10 years of service for doing the same

work like that of the workman. It indicates that the workman

was working with the first party as a Peon. There is also

no reason to discard the version of the workman that he

worked for 14 ½ years continuously since 1993. There is

also no reason to discard his version that he had worked

more than 240 days in each calendar year.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4405

In the circumstances, the workman was entitled to

the protection u/s 25-F of The Industrial Dispute Act, 1947.

His services thus cannot be terminated without following

the procedure u/s 25-F of the I.D. Act. In the case at hand,

the management has not followed the procedure led down

u/s 25 F of the I.D. Act. Therefore, I hold that the

termination of the services of the workman is illegal and

unjustified. Furthermore, it is also found that, the

management has also violated Sec. 25 G of I.D. Act, as

they have regularized the services of 3 other employees

who had worked for 10 years and terminated the services

of the workman who worked for more than 14 years. In

this backdrop, I decide this issue no. 2 in the negative that

the action of the management in terminating the services

of the workman is not justified.

Issue No. 3:-

10.

In respect of reinstatement, the Ld. Adv. for the first

party submitted that there was total ban for recruitment,

imposed by the Govt. and RBI. Furthermore, the workman

was not appointed by following the recruitment procedure

prescribed under the rules. Therefore, the workman cannot

be reinstated or regularized in the services of the first

party which is a Govt. Undertaking. In support of his

argument, the Ld. Adv. for the first party resorted to Apex

Court rulings in Account Officer (A&I) APSRTC & Ors.

V/s. V.K. Ramana & Ors. 2007 II CLR 81 wherein the Hon’ble

Court on the point on regularization observed that;

“Even if the contract labourers or casual workers or

ad hoc employees have worked for a long period,

they cannot be regularized de hors the rules for

selection, as has been held in Uma Devi’s case.”

11.

The Ld. Adv. for the first party also resorted to

another Apex Court ruling in State of H.P & Anr. V/s

Ravinder Singh 2009 LAB. I. C. 866 wherein the Hon’ble

Apex Court on the point observed that;

“It has also to be clarified that merely because a

temporary employee or a casual wage worker is

continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed

in the regular service or made permanent.”

12.

However in the case at hand the workman had

worked for 14 ½ years. He had worked continuously for

more than 240 days in each calendar year. Therefore he

was entitled to the protection U/s 25 F of the Industrial

Disputes Act 1947. Termination of the services of the

workman, without following the procedure laid down there

under, is no doubt illegal and unjustified. Furthermore the

services of three other employees who had performed the

work for 10 years as like workman, were regularized in the

services by the first party. Whereas the services of the

workman was terminated who has served for more than 14

years with the first party. It is in violation of Sec. 25 G of

the I.D. Act. In this respect I would like to point out that,

first party has regularized the services of the three above

named employees performing same type of work like

workman for 10 years. The said fact is admitted by the

M.W. 1 in his cross at Ex.24. The first party is not expected

to regularize the services of those three employees without

provision in the rules to that effect. Furthermore there

were clear vacancies of sub-staff and M.W.1 has not denied

the same in his cross-examination at Ex-24. On the other

hand it is the case of the first party itself that, they had not

recruited the posts due to ban on recruitment imposed by

the Govt. and RBI. Furthermore the work being performed

by the workman was of perennial nature.

13.

In 1993 when he was appointed, his name was

enrolled with the Employment Exchange. He has stated to

that effect in his cross-examination at Ex-17. He is from

Schedule Tribe category. He has passed XIIth Std. and

was eligible to be appointed as sub- staff. The first party

has regularized the services of three others working like

the workman. Now the first party cannot be allowed to

plead that, the services of the workman cannot be

regularized, as he was not appointed by following the

recruitment procedure. The first party therefore also

cannot rely on the above rulings as they have regularized

the services of similarly placed three other workers.

Therefore the ratio laid down in the above ruling is not

attracted to the set of facts of the present case as

management herein has authority to regularize the services

of sub-staff who has worked as casual worker for a

sufficient period.

14. In this respect the Ld. Adv. for the second party

also pointed out that as the services of workman were

terminated in contravention of Section 25 F of I.D. Act,

therefore Labour Court or Industrial Tribunal can very

well reinstate the workman in the service of the first party

and the above referred rulings or the ratio laid down even

in the case of Uma Devi would not be attracted to the set

of facts of the present case. In support of her argument,

the Ld. Adv. for the second party resorted to the Bombay

High Court ruling in Administrator Kalyan Municipal

Corporation, Kalyan V/s Alka B. Bramhe and Anr 2010 III

CLR 727 wherein the Hon’ble Court observed that;

“Whenever a daily wager has put in continuous

service for more than 240 days in a year, his services

cannot be terminated without complying with

Section 25-F of the I.D. Act.”

In that case service of the workman therein was

terminated in violation of Section 25 F of the Industrial

Disputes Act. Therefore the Labour Court has given

direction for reinstatement and continuity of service of

the workman. The Hon’ble High Court held that the

judgement in the case of State of Karnataka V/s. Uma Devi

2006 II CLR 261 (SC) would not come in the way to reinstate

the workman whose services were terminated in violation

of Section 25-F of the I.D. Act. The Hon’ble Court in this

respect in para 15 of the judgment observed that;

4406

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

“The direction of the Labour Court to grant

reinstatement and continuity of service and back

wages to the respondent no.1 from 16/9/1991 cannot

be faulted as admittedly notice or wages in lieu of

notice or retrenchment compensation under Section

25 F of the I.D.Act were not tendered to the

respondent no.1, workman prior to terminating her

services.”

15.

The Ld. Adv. for the second party also resorted to

Apex Court ruling in Harjinder Singh V/s. Punjab State

Warehousing Corporation 2010 I CLR 884. In that case

the Labour Court held that the retrenchment of workman

therein was illegal and passed the award giving direction

of reinstatement with 50% back wages and continuity of

service. In Writ Petition by the management single Judge

modified the award and in lieu of reinstatement with 50%

back wages, compensation of Rs. 87,582 was granted. In

appeal before Apex Court the Hon’ble Court held that, Ld.

Single Judge not at all justified in entertaining new plea

that Appellant has not completed 240 days service.

16.

Furthermore the Hon’ble Court in respect of the

implementation of Labour Legislations and the

Constitutional mandate observed that;

“The Preamble and various Articles contained in

part IV of the Constitution promote social justice so

that life of every individual becomes meaningful and

he is able to live with human dignity. The concept

of social justice engrafted in the Constitution

consists of diverse principles essentially for the

orderly growth and development of personality of

every citizen. Social justice is thus an integral part

of justice in the generic sense, justice is the genus,

of which social justice is one of its species. Social

justice is a dynamic device to mitigate the sufferings

of the poor, weak, dalits, tribals and deprived

sections of the society and to elevate them to the

level of equality to live a life with dignity of person.”

In para 23 of the judgement the Hon’ble Apex Court

further observed that;

“The stock plea raised by the Public employer in

such cases is that the initial employment/engagement

of the workman – employee was contrary to some or

the other statute or that reinstatement of the

workman will put unbearable burden on the financial

health of the establishment. The Courts have readily

accepted such plea unmindful of the accountability

of the wrong doer and indirectly punished the tiny

beneficiary of the wrong ignoring the fact that he

may have continued in the employment for years

together and that micro wages earned by him may

be the only source of his livelihood. It needs no

emphasis that if a man is deprived of his livelihood,

he is deprived of all his fundamental and

constitutional rights and for him the goal of social

and economic justice and equality of status and of

opportunity, the freedoms enshrined in the

constitution remain illusory. Therefore, the approach

of the courts must be compatible with the

constitutional philosophy of which the directive

principles of State policy constitute an integral part

and justice due to the workman should not be denied

by entertaining the spacious and untenable grounds

put forward by the employer, public or private.”

With these observations the Hon’ble Court set aside

the order of the High Court and restored the award of the

Labour Court with cost.

17.

The Ld. Adv. for the second party also cited another

ruling of Hon’ble Bombay High Court in Damodar Mahipat

Gawande & Anr V/s. Dy. Engineer, GSDA, Buldhana &

Ors. 2010 II CLR 847. In that case the workmen therein

have challenged their dismissal in ULP Complaint seeking

benefit of permanency in the services. The Industrial Court

has turned down their request of reinstatement on the

ground that petitioners failed to prove unfair labour

practice by the employer. The Hon’ble High Court while

setting aside the order held that, petitioners have shown

that they have right to permanency flowing from Model

Standing Order 4 (C). They had completed not just 240

days of continuous work but had very long service before

attaining age of superannuation.

18.

The Ld. Adv. for the second party further submitted

that, the rulings referred on behalf of the first party based

on the ratio laid down in the case of Uma Devi (supra) are

not applicable to the set of facts of the present case as in

the case at hand the first party had regularized services of

three other similarly placed workmen. In support of her

argument the Ld. Adv. for the second party resorted to

recent Apex Court ruling in H.S. Rajashekhara V/s. State

Bank of Mysore and Anr. 2012 (2) MHLJ 570 wherein

similarly placed workman was absorbed in the service of

the Bank as regular employee. The petitioner therein has

also filed application and prayed to pass suitable order of

appointment in his favour equivalent to the job given to

another employee. In this matter the Hon’ble Court in

respect of ruling of Uma Devi observed that;

“The appeal preferred by the petitioner, assailing

the order passed by the Ld. Single Judge in Writ

Petition no. 22324 of 2005, was adjudicated upon

with reference to the decision rendered by this Court

in Secretary, State of Karnataka V/s. Uma Devi &

Ors. (Supra) even though the same had no relevance

to the prayer made by the petitioner. The simple

question raised by the petitioner was with reference

to the decision of the Bank in absorbing Shri

Devaraju as a permanent employee. The claim of

the petitioner was founded under Articles 14 and 16

of the Constitution of India. Unfortunately the

aforesaid issue was not considered even in the

second round of litigation.”

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4407

19.

The same point is raised in the reference at hand

that, the Bank had regularized the services of three other

equally placed employees. In the circumstances there is

no reason to deny the equal opportunity to the workman

herein. Thus I hold that the rulings referred on behalf of

the first party are not applicable to the set of facts of the

case at hand. On the other hand the facts of the case in

the above referred ruling of Rajashekhara (supra) are

identical to the facts of the case at hand. Thus I hold that

the workman is entitled to be reinstated and regularized in

the service with continuity of service.

20.

In respect of back wages it is the case of the second

party that the workman is not gainfully employed and as

his services were terminated illegally he should be granted

full back wages. In this respect it is the case of the first

party that the burden was on the workman to show that he

was not gainfully employed. It was also pointed out that

‘no work no wages’ is the settled principle of law. Thus

the workman is not entitled to any back wages. I do

consider the fact that the workman is not on duty since

29/08/2007. He may be doing some petty work to meet the

two ends. At the same time I would also like to point out

that, he is a poor worker working for meager amount on

daily wages and his services were terminated illegally. After

giving conscious thought to the submissions of both the

parties, to meet the end of justice, I think it proper to

award 60% back wages to the workman. Accordingly I

decide this issue no.3 partly in the affirmative that the

workman is entitled to be reinstated in the service with

60% back wages and continuity of service. He is also

entitled to be absorbed in the service of the first party as

permanent sub-staff w.e.f. 21/01/1995 i.e. after expiry of

probation period of two years from the date of his initial

appointment. Thus, I proceed to pass the following order:

ORDER

The reference is partly allowed with no order as to

cost.

Action of management in terminating the services

of the workman is found not justified.

The management is directed to reinstate the

workman with 60% back wages from 29/08/2007 and

continuity of service.

The management is also directed to absorb the

workman as their permanent employee w.e.f.

21/01/1995 and pay the difference in the pay and

allowances till 28/08/2007.

Date : 13/12/2013

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1654-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bykgkckn 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;] y[kumQ ds iapkV (lanHkZ la- 51@2007)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&12012@32@2007&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O. 1654.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 51/2007)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Lucknow as shown in the Annexure, in the Industrial Dispute

between the management of Allahabad Bank and their

workmen, received by the Central Government on 30/05/2014.

[No. L-12012/32/2007-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESENT : Dr. MANJU NIGAM, Presiding Officer

I.D. No. 51/2007

Ref. No. L-12012/32/2007-IR(B-II) dated: 28.09.2007

BETWEEN

Shri Kapaldev Tiwari

S/o Shri Tribhuvandutt Tiwari

R/o Birwa Fakir, Post Office, Distt. Gonda

Gonda (U.P.)

AND

The Regional Manager

Allahabad Bank

Regional Office, Bhariech Road, Gonda

Jamthara Branch

Gonda (U.P.)

AWARD

By order No. L-12012/32/2007 - IR (B-II)) dated:

28.09.2007, the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by

clause (d) of sub-section (1) and sub-section (2A) of

Section 10 of the Industrial Disputes Act, 1947 (14 of 1947)

referred this industrial dispute between Shri Kapaldev

Tiwari, S/o Shri Tribhuvandutt Tiwari, R/o Birwa Fakir,

Post Office, Distt. Gonda, Gonda (U.P.) and the Regional

Manager, Allahabad Bank, Regional Office, Bhariech Road,

Gonda, Jamthara Branch, Gonda (U.P.) for adjudication.

The reference under adjudication is:

“WHETHER

THE

ACTION

THE

MANAGEMENT OF ALLAHABAD BANK IN

TERMINATING THE SERVICES OF SHRI KAPIL

DEV TIWARI S/O SHRI TRIBHUVAN TIWARI AS

DAILY WAGER FROM SERVICES W.E.F. 14.03.2006

IS LEGAL AND JUSTIFIED? IF NOT, TO WHAT

4408

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

RELIEF THE CONCERNED WORKMAN IS

ENTITLED?”

The case of the workman, Kapil Dev Tiwari, in brief,

is that he was appointed as peon on 14.02.2000 and worked

continually as such up to 14.02.2000 when his services

have been terminated by the management, orally, without

assigning any reason, in violation to the provisions of

labour Acts. The workman has further stated that he

worked continually for six years as peon/messenger and

had become eligible for being permanent; but the

management instead of making him permanent, terminated

his services; which is covered by the definition of

‘retrenchment’ but the management has not followed the

conditions precedent to retrenchment. The workman has

also alleged that the management is in practice of a policy

in not letting anyone become permanent by terminating

him after some time and engaging the new face.

Accordingly, the workman has prayed that he be reinstated

in service with continuity and other consequential benefits

including back wages.

The management of the Allahabad Bank has

disputed the claim of the workman and filed its written

statement; wherein it has stated that the workman had

never been appointed by the Bank inasmuch as all the

recruitment of Class IV is done according to Bank’s

circularized instruction, Government of India guidelines

and mandatory provision of Employment Exchange

(Compulsory Notification of Vacancies) Act, 1959. The

workman has never undergone the procedure prescribed

under Rules for appointment of Class IV staff; and any

appointment/engagement made contrary to the Rules

would amount to back door entry. It is also submitted that

the documents relating to working days are manipulated

and has denied the working of the workman with the Bank.

Accordingly, the Bank management has prayed that the

claim of the workman be rejected without any relief to him

being devoid of merit.

The workman has filed its rejoinder whereby he has

stated nothing new apart from reiterating his averments

already made in the statement of claim.

The workman has filed documentary proof in support

of his claim; whereas the management has filed none. The

workman has examined himself whereas the management

examined Shri Ashok Kumar Saxena, Manager (Retd.) and

Shri Santosh Kumar Mishra, Manager in support of their

stands. The parties availed opportunity to cross-examine

the each other’s witnesses apart from availing opportunity

to forward oral arguments.

Heard representatives of the parties and perused

entire evidence on record and gone through respective

pleadings of the parties.

The authorized representative of the workman has

argued that the workman worked with the opposite party

for more than six years since 14.02.2000 and had become

entitled for getting regularization; but the management of

the bank adopted colorable exercise and to deprive him of

the regularization, terminated his services without

assigning any reason in violation to the provisions of the

Industrial Disputes Act, 1947. He has further argued that

the termination of the workman after having worked for six

years comes under the definition of retrenchment; but the

management has not complied with the conditions

precedent the retrenchment; hence, the management has

acted illegally.

In rebuttal, the authorize representative of the

management has contended that there was no relationship

of employer and employee between the Bank and the

workman and the workman was neither been appointed by

the management nor was paid for the same at any point of

time. He has also argued that the workman never under

gone through the regular selection process of the post of

peon and as per law of the land any person engage in

violation of statutory rules/regulations/circulars/norms

provide for the process of recruitment of any post , would

be illegal. It has relied on 1997 Lab 578 (SC) Ashwani

Kumar and others vs. State of Bihar; and 2001 (91) 824

Pramod Kumar vs State of Bihar.

10.

I have given my thoughtful consideration to the

arguments forwarded by the learned representatives and

scanned entire evidence available on record in the light of

the aforesaid rival contentions of the parties.

11.

The workman has come up with the case that he has

been appointed a peon by the Bank and worked for six

years; and the Bank instead of making him permanent

terminated his services, which was in fact ‘retrenchment’.

In rebuttal, the management has taken stand that there is

no relationship of employer and employee between the

bank and the workman. The management has also pleaded

that there is prescribed procedure for recruitment of class

IV employee in the Bank; and the workman never under

gone the channel of recruitment; therefore, any

appointment against due procedure shall be deemed to be

illegal.

12.

The workman in his cross-examination has stated

that he neither received any appointment letter from

Employment Exchange nor received any letter for interview

from the Bank. He stated that paper No. 5/14 is his

appointment letter. On the other hand the management

witness, Ashok Kumar Saxena stated that he worked in

the Gonda Branch from 2001 to 2004; but the workman

never worked in the Bank. He also denied his signatures

on paper No. 5/14. Moreover, he also disputed the

genuineness of the stamp on it. MW-2, Shri Santosh Kumar

Mishra stated that he worked in Jamghara branch from

May, 2004 to July, 2007 and he also denied that the workman

worked in the branch from 14.02.2000 to 13.03.2006.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4409

13.

Admittedly no appointment letter was issued to the

workman also there is no iota of evidence that the workman

had been engaged with the Bank following due procedure

for appointment/engagement of the Peon. The workman

has relied on paper No. 5/14 as his appointment letter

whereas the alleged signatory of the letter, in his evidence

before this Tribunal, has not only denied his signatures;

but also has stated that the stamp of the bank inscribed

on it seems to be fake. The workman has come up with a

case that he worked continuously from 14.02.2000 to

14.03.2006 for more than six years even then his services

have been terminated/retrenched in violation to the

provisions of the Industrial Disputes Act, 1947. In 2005

(107) FLR 1145 (SC) Surenderanagar Panchayat and

another v. Jethabhai Pitamberbhai Hon’ble Apex Court

came to the conclusion that where the workman failed to

prove that he had been in employment with the employer

for a period of 240 days uninterruptedly, he is not entitled

to protection in compliance of section 25- F of the Industrial

Disputes Act, 1947. It was held by the Hon’ble Supreme

Court that the scope of the enquiry before the Labour

Court was confined only to 12 months preceding the date

of termination to decide the question of the continuous

service for the purpose of section 25-F of the Industrial

Disputes Act, 1947. Further, Hon’ble Apex Court has

observed as under:

“The claimant, apart his oral evidence has not

produced any proof in the form of receipt of salary

or wages for 240 days or record of his appointment

or engagement for that year to show that he has

worked with the employer for 240 days to get the

benefit under section 25-F of the Industrial Disputes

Act. It is now well settled that it is for the claimant

to lead evidence to show that he in fact worked for

240 days in a year preceding his termination.”

Therefore, in view of the above referred case law, in

order to take any relief for non-compliance of mandatory

provisions contained in section 25-F of the Act, it is

necessary for the claimant to lead evidence to the effect

that he was actually in employment of the opposite party

for 240 days in the year preceding his termination and he

was actually paid for it. In the instant case there is no iota

of evidence to show that the workmen worked for 240

days with the management of the Bank in twelve calendar

months preceding the date of termination. The workman

has filed photocopy of few working certificates and

statements in respect of his working with the opposite

party; but they do not suffice the need. The certificate

filed by the workman, paper No. 5/12, regarding working

from 14.02.2000 to 05.06.2001 is of no use even taken into

account as the alleged date of termination of the workman

is 14.03.2006 and there is no document to show that he

worked for 240 days in the twelve preceding months from

the date of termination i.e. from 12.03.2005 to 13.03.2006.

Likewise paper No. 5/14, the so called appointment letter

and paper No. 5/15 regarding instructing the workman to

work w.e.f. 03.01.2006 in Jamthara branch of the bank does

not give any evidence that the workman was in

employment of the Bank in the twelve preceding months

from the date of termination. On the contrary the

management has denied his engagement with it out rightly

and has pleaded that there was no relationship of employer

and employee between the Bank and the workman. Hence,

it was incumbent upon the workman to come forward with

the evidence that he actually worked with the Bank. The

documents filed by the workman are denied by the

management witnesses; hence it was for the workman to

summon the working details from the Bank i.e. Muster

Roll and payment vouchers to substantiate his version

that there was employee and employer relationship

between him and the Bank and he worked with the bank

continuously for 240 days in twelve calendar months

preceding the alleged date of termination i.e. 14.03.2006;

but the workman has utterly failed to do so.

14.

It is well settled that if a party challenges the legality

of order the burden lies upon him to prove illegality of the

order and if no evidence is produced, the party invoking

jurisdiction of the court must fail. In the present case

burden was on the workman to set out the grounds to

challenge the validity of the termination order and to prove

the termination order was illegal. It was the case of the

workman that he had worked for six years and his services

were terminated/retrenched illegally. This claim has been

denied by the management; therefore, it was for the

workman to lead evidence to show that he had in fact

worked up to 240 days in the year preceding his alleged

termination. In (2002) 3 SCC 25 Range Forest Officer vs.

S.T. Hadimani Hon’ble Apex Court has observed as under:

“It was the case of the claimant that he had so worked

but this claim was denied by the appellant. It was

then for the claimant to lead evidence to show that

he had in fact worked for 240 days in the year

preceding his termination. Filing of an affidavit is

only his own statement in his favour and that cannot

be regarded as sufficient evidence for any court or

tribunal to come to the conclusion that a workman

had, in fact, worked for 240 days or order or record

of appointment or engagement for that period was

produced by the workman. On this ground alone,

the award is liable to be set aside.”

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

4410

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

given year. This burden is discharged only upon

the workman stepping in the witness box. This

burden is discharged upon the workman adducing

cogent evidence, both oral and documentary. In

cases of termination of services of daily wages

earner, there will be no letter of appointment or

termination. There will also be no receipt or proof of

payment. Thus, in most cases, the workman

(claimant) can only call upon the employer to produce

before the Court the nominal muster roll for the given

period, the letter of appointment or termination, if

any, the wage register, the attendance register etc.

Drawing of adverse inference ultimately would

depend thereafter on facts of each case. The above

decisions however make it clear that mere affidavits

or self serving statements made by the claimant/

workman will not suffice in the matter of discharge

of the burden placed by law on the workman to prove

that he had worked for 240 days in a given year. The

above judgments further lay down that mere non

production of muster rolls per se without any plea

of suppression by the claimant workman will not be

the ground for the tribunal to draw an adverse

inference against the management.”

In the present case the workman has stated that he

has worked continuously for six years, but has not

corroborated the same with cogent evidence. In order to

claim the benefit of the provisions contained in the Section

25 F of the Industrial Disputes Act, 1947, the burden was

on the workman to show by the way of cogent evidence

that he actually worked for 240 days in the preceding 12

months from the date of his alleged termination; but he

failed to do so.

Mere pleadings are no substitute for proof. Initial

burden of establishing the fact of continuous work for 240

days in a year preceding the date of alleged termination

was on the workman but he failed to discharge the above

burden. There is no reliable material for recording findings

that the workman had worked for 240 days in the preceding

year from the date of his alleged termination and the alleged

unjust or illegal order of termination was passed by the

management.

16.

Accordingly, in view of the law cited and discussions

made hereinabove, the reference under adjudication is

answered positively with observation that the action of

the opposite party in terminating the services of the

workman w.e.f. 14.03.2006 is neither illegal nor unjustified

and the workman, Kapil Dev Tiwari is not entitled to any

relief.

17.

The reference under adjudication is answered

accordingly.

18.

Award as above.

Lucknow, 1st January, 2014

Dr. MANJU NIGAM, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1655-—vkS|ksfxd fookn vf/fu;e] (1947 dk

14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksfj,aVy cSad

vkWiQ dkWelZ 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;&2] eqacbZ ds iapkV (lanHkZ la-

2@24@2006) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk FkkA

¹la- ,y&12012@15@2006&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1655.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 2/24/

2006) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court-II, Mumbai as shown in the Annexure, in the

Industrial Dispute between the management of Oriental

Bank of Commerce, and their workmen, received by the

Central Government on 30/05/2014.

[No. L-12012/15/2006-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : K.B. KATAKE, Presiding Officer

REFERENCE NO.CGIT-2/24 of 2006

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF ORIENTAL BANK OF COMMERCE & ANR.

(1)

The General Manager

Oriental Bank of Commerce, Regional Office

Mumbai South, Maker Tower ‘F’

14th floor, Cuffe Parade

Mumbai-400 005.

(2)

Shri Y. S. Rao,

Chief Executive Officer

M/s. Global Corporate Services Pvt. Ltd.

Plot No.118-A, 5th floor

Mandani Complex, Raj Bhavan Road

Near Yeshoda Hospital, Somagee Guda

Hyderabad-82 (AP)

AND

THEIR WORKMEN.

Shri Santosh Mulaje & 14 ors.

C/o. Narsaiah S. Deeti

116/9, Jijamata Nagar

Teen Dongri, Goregaon (W)

Mumbai-400 090.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4411

APPEARANCES :

FOR THE EMPLOYER (1)

: Mr. T. Vijay Kumar,

Advocate.

FOR THE EMPLOYER (2)

: No appearance.

FOR THE WORKMEN

: Mr. V. B. Joshi, Advocate.

Mumbai, dated the 20th December, 2013

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No.L-12012/15/2006-IR (B-II),

dated 25.04.2006 in exercise of the powers conferred by

clause (d) of sub-section (1) and sub-section 2 (A) of

Section 10 of the Industrial Disputes Act, 1947 have referred

the following Industrial Dispute to this Tribunal for

adjudication:

“Whether any relationship of employer and

employee exists between the management of Oriental

Bank of Commerce and S/Sh. Santosh Mulaje,

Nagula Ranjan, Mota Rajaiah Malai, Vinod Patil, Bijay

Gowda, Prakash Chavan, Rahul Kumar Valmiki,

Gangaram Garige, Satish R. Madas, Korimeely

Achaboi, Kamal Ahmed, Arul Rajan, Anand Pande,

Rajaiah Kalluri and Narsaiah Deeti? If yes, whether

the action of the management in terminating their

services w.e.f. 28.06.2005 is justified? If not, what

relief these fifteen workers are entitled to ?”

After receipt of the reference, notices were issued

to both the parties. In response to the notice, the second

party workmen filed his statement of claim at Ex-6.

According to the second party the first party no.1 is a

Corporate Body under Banking Act and Government of

India Undertaking. Whereas the first party no.2 is

providing jobs to the persons in their company who were

also running Global Trust Bank and recruiting the staff

since 2001 for Global Trust Bank. These 15 workmen were

appointed as Drivers at various branches at the respective

dates and pays as mentioned in the statement of claim.

They were working for Global Trust Bank since 1994 till

August, 2005. Some of them have worked continuously

for about 11 years. Period of each Driver varies as per his

date of recruitment. In the year 2004 the Global Trust Bank

was amalgamated with the Oriental Bank of Commerce and

the scheme to that effect was sanctioned by Government

Notification dt. 13.8.2004. The staff of erstwhile Global

Trust Bank was accepted by the Oriental Bank of

Commerce. Even after amalgamation the workmen worked

with the Oriental Bank of Commerce for about a year.

Thereafter services of these workmen were terminated.

The workmen raised industrial dispute before ALC (C). As

the conciliation failed on the report of ALC (C), the Ministry

of Labour & Employment, Govt. of India sent the reference

to this Tribunal. The workmen pray that the first party

no.1 be directed to reinstate them in the services with full

back-wages, with continuity of service and consequential

benefits.

The first party no.1 resisted the statement of claim

vide their written statement at Ex-7. According to them

the workmen herein are neither employees of the Global

Trust Bank nor of the Oriental Bank. According to them

they were employees of Global Corporate Services Pvt.

Ltd. who was a contractor of the Global Trust Bank. They

further contended that these drivers were employed by

Global Corporate Services Pvt. Ltd. and they were used as

personal drivers for Executives of the Bank employed

through outsourcing agency. These employees of Global

Corporate Services were never taken over by the Oriental

Bank of Commerce in the amalgamation. There was no

employee-employer relationship between these workmen

and either with the Global Trust Bank or with the Oriental

Bank of Commerce. These workmen have filed similar

proceeding at Hyderabad in which Global Corporate

Services Pvt. Ltd. was one of the parties. The said claim of

the second party was dismissed. For all these reasons

they are not entitled to the reliefs claimed for. The first

party therefore prays that the reference be dismissed with

cost.

The second party workmen have filed their rejoinder

at Ex-8. They reiterated the contents in the statement of

claim and denied the allegations made in the written

statement and pray that the reference be allowed.

Following are the issues for my determination. I

record my findings thereon for the reasons to follow.

Sr.

Issues

Findings

No.

Whether there exist employer-

Yes

employee relationship between the

workmen and first party Bank?

If yes, whether the action of

management in terminating their

services is justified?

If no, whether the workmen are

entitled to be reinstated with full

back wages as prayed for?

Yes.

What Order?

As per

order below.

REASONS

Issue No. 1

In this respect, it is the case of the first party that

the workmen under reference are not their employees. They

were also not employees of the erstwhile M/s. Global Trust

Bank. According to them, these employees were contract

labourers engaged through M/s. Global Corporate Services.

Whereas it is the case of the workmen that they were

appointed as a Driver in the Global Trust Bank on the

respective dates and pay mentioned in the statement of

4412

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

claim. In this respect the Ld. Advocate for the first party

pointed out that all the workmen had admitted in their

cross that they were appointed by M/s. Global Corporate

Services and their services were also terminated by the

said contractor. Therefore, according to them, there was

no employee-employer relationship between these

workmen and the first party No.1. In this respect, the Ld.

Advocate for the second party submitted that these

workmen not only served for Global Trust Bank even after

amalgamation of the said bank with the Oriental Bank of

Commerce. They worked as drivers for one more year as

they were working with the Global Trust Bank. The Ld.

Adv. submitted that the agreement of labour contract is

false and bogus and mere camouflage. It was further

pointed out that these drivers were working years together

as their job was of perennial nature and they were working

against clear vacancies of drivers. It is further contended

that these workmen are very needy, poor and poorly

educated persons and the management seems to have

taken disadvantage of the situation. Such cases are not

uncommon. In this respect the Hon’ble Apex Court has

also taken note of such condition of poor, needy workers

in our country. In Bhilwara Dughd Utpadhak Sahakari S.

Ltd. V/s. Vinod Kumar Sharma & Ors. 2011 III CLR 386

(SC) wherein the Hon’ble Court has taken care of all such

circumstances and observed that;

“Labour Statutes were meant to protect the

employees/workman because it was realised that the

employers and the employees are not on an equal

bargaining position. Hence protection of employees

was required so that they may not be exploited.

However this new technique of subterfuge has been

adopted by some employers in recent years in order

to deny the rights of workmen under various labour

statutes by showing that the concern workmen are

not their employees but are the employees/ workmen

of a contractor, or that they are merely daily wage or

short term or casual employees. When infact they

are doing the work of regular employees. This court

cannot countenance such practice anymore.

Globalisation/liberalisation in the name of growth

cannot be at the human cost of exploitation of

workers.”

In the case at hand as observed herein above that

the workmen were engaged by the erstwhile Global Trust

Bank as Drivers for their officers. It seems that they have

shown these workmen as employees of contractor. Infact

they were working for the Global Trust Bank. They worked

for years together. Some have worked for 3 years. Some

have worked more than that. Even after amalgamation of

Global Trust Bank with Oriental Bank of Commerce, these

workmen continued in the service of the Oriental Bank for

about a year. Their work is of perennial nature. They were

working continuously for years for the Global Trust Bank

and they have also worked for one year continuously for

Oriental Bank of Commerce. It appears that the

management of Global Trust Bank and Oriental Bank have

played tricks and have shown them as contract workers

merely to deprive them from getting the benefit of

permanency. In the circumstances and in the light of above

ruling it is clear that these workmen were performing their

duties as Drivers of the Executive Officers of the Company.

Thus I hold that these workmen were the employees of

the Global Trust Bank and after amalgamation they were

the employees of the Oriental Bank of Commerce.

Accordingly I decide this issue no.1 in the affirmative.

Issue No. 2 :

It is observed in issue no.1 above that these workmen

were the employees of the erstwhile Global Trust Bank. It

is the case of the second party workmen that, as per the

amalgamation scheme all the workers working with Global

Trust Bank were taken over by Oriental Bank. In this

respect MW-1contended in his Cross Ex-75 that, the

employees of Global Trust Bank working in clerical and

runner boys were taken in service of Oriental Bank of

Commerce. In this respect it is the case of the workmen

that, some similarly placed workmen working with GTB

though some other agencies were taken over by Oriental

Bank. Specific suggestion to that effect was put to MW-

1 in his cross at Ex-75. He replied that he does not know

whether similarly placed workers as like the workers under

reference of GTB were absorbed in the services of Oriental

Bank in 2005. It shows that there is no specific denial of

the allegation of these workmen that some similarly placed

workers of GTB were absorbed by the Oriental Bank. As

there is no specific denial it amount to admission.

Furthermore therefore, there is no reason to discard the

version of the workman that some other similarly placed

workmen of GTB as like the workmen under reference were

absorbed by the Oriental Bank and services of these

workmen were terminated. It amounts to violation of

Section 25-G of the Industrial Disputes Act. Furthermore

from the evidence of these workmen it is clear that they

have served with GTB for years together continuously. It

has come on record that even after amalgamation these

workmen have worked with the Oriental Bank continuously

for one year. It shows that they have worked more than

240 days in each calendar year. Therefore they were

entitled to the protection U/s 25-F of I.D. Act.

The fact is not disputed that the management has

not followed the procedure of retrenchment as prescribed

U/s 25 F of I.D. Act. So also the management has violated

the provisions of Section 25 G of I.D. Act as they have

taken over some other similarly placed workmen from GTB.

In this back drop I come to the conclusion that, the services

of these workmen were terminated illegally. Accordingly

I decide this issue no.2 in the negative.

Issue No. 3:-

10.

In respect of reinstatement the law is settled that

when the services of workmen are terminated illegally he

is entitled to be reinstated in the services. In this respect

the Ld. Adv. for the first party submitted that these

workmen were not appointed against clear vacancy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4413

Therefore these workmen are not entitled to be regularised

in the services. In support of his argument the Ld. Adv.

for the first party resorted to Bombay High Court ruling in

Chief Executive Officer Zilla Parishad V/s. Shahezad Bee

Sheikh Jamal 2001 EQ (Bom) 812 wherein the Hon’ble Court

held that unless employee proves that he worked against

the permanent post, he cannot be allowed back door entry

in the services. In this respect from the facts and

circumstances on record it is revealed that the Bank has

maintained cars for their Executive Officers and instead of

filling the post of Drivers they seems to have engaged

these workmen on temporary basis by showing them as

contract labourers. In the circumstances it cannot be said

that there was no vacancy in the GTB or either in Oriental

Bank. Therefore this ruling is not applicable to the set of

facts of the present case.

11.

The Ld. Adv. for the first party also submitted that

as these workmen were not recruited by following the

recruitment process they are not entitled to be regularised

in public service. In support of his argument the Ld. Adv.

resorted to Apex Court ruling in Secretary, State of

Karnataka & ors. V/s. Uma Devi & Ors. 2006 II CLR 261

(SC)wherein the Hon’ble Court observed that;

“It has also to be clarified that, merely because a

temporary employee or casual wage worker is

continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed

in regular service or made permanent, merely on the

strength of such continuance, if the original

appointment was not made by following a due

process of selection as envisaged by the relevant

rules.”

12.

However in the case at hand it is found that as the

management has violated the provisions of Section 25 F.

of I.D. Act. Therefore these workmen are entitled to be

reinstated in the services. Furthermore the management

has regularised the services of some other similarly placed

employees like that of the workmen and violated the

provisions of Section 25 G of the I.D. Act. Therefore these

workmen are entitled to be regularised in the services of

the Bank. The facts in the case at hand are altogether

different than the facts cited in the above referred case.

Therefore the ratio laid down therein is not applicable to

the facts of the case at hand. In respect of violation of

Section 25 G, Apex Court ruling can be resorted to in H.S.

Rajashekhara V/s. State Bank of Mysore and Anr. 2012 (2)

MHLJ 570 wherein similarly placed workman was absorbed

in the service of the Bank as regular employee. The

petitioner therein has also filed application and prayed to

pass suitable order of appointment in his favour equivalent

to the job given to another employee. In this matter the

Hon’ble Court while distinguishing the ruling of Uma Devi

observed that;

“The appeal preferred by the petitioner, assailing

the order passed by the Ld. Single Judge in Writ

Petition no.22324 of 2005, was adjudicated upon with

reference to the decision rendered by this Court in

Secretary, State of Karnataka V/s. Uma Devi & Ors.

(Supra) even though the same had no relevance to

the prayer made by the petitioner. The simple

question raised by the petitioner was with reference

to the decision of the Bank in absorbing

Shri Devaraju as a permanent employee. The claim

of the petitioner was founded under Article 14 and

16 of the Constitution of India. Unfortunately the

aforesaid issue was not considered even in the

second round of litigation.”

13.

In short, the ratio laid down in the case of Uma Devi

(Supra) is not attracted to the set of facts of the present

case as in the case at hand some other similarly placed

workmen were regularised in the service of the first party

and the same opportunity was denied to the workmen

under reference. The said action of the first party is

arbitrary and discriminatory and it also violates the

provisions of Section 25 G of the I.D. Act. Therefore I

hold that the workmen are entitled to be reinstated in

services.

14.

In respect of back wages the Ld. Adv. for the second

party submitted that as services of these workmen were

terminated illegally, these workmen suffered great financial

loss and inconvenience. Therefore they are entitled to

get full back wages. As against this it was submitted on

behalf of the first party that, the workmen have not led

any evidence to show that they are not gainfully employed.

Furthermore it was pointed out that ‘no work-no wages’ is

the settled principle of law. In this respect I would also

like to point out that the workmen under reference are the

trained Drivers and they are not expected to sit idle after

the termination of their services. At the same time I also

take note of the fact that they may not have earned

sufficient or equal to their pay by working as casual or

private drivers. After giving conscious thought to the

facts, circumstances and the arguments on record to meet

the end of justice I think it proper to grant 20% back wages

to these workmen from the date of their termination till the

date of their reinstatement. Thus I partly allow the

reference and proceed to pass the following order:

ORDER

(1)

The reference is partly allowed with no order as to

cost.

(2)

The termination of services of workmen under

reference is declared illegal.

(3)

The first party no.1 is directed to reinstate and

regularize the services of these workmen as Drivers

and pay the back wages @ 20% of their pay &

allowances with continuity of service and all

consequential benefits.

Date : 20th December, 2013

K. B. KATAKE, Presiding Officer

4414

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1656-—vkS|ksfxd fookn vf/fu;e] (1947 dk

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

daiuh 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- 65@98) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&17012@58@1997&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1656.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 65/1998)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the Industrial Dispute

between the management of National Insurance Company,

and their workmen, received by the Central Government

on 30/05/2014.

[No. L-17012/58/1997-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/65/98

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Umesh Bharani,

S/o Shri Jugal Kishore Bharani,

65, Panchvati, Jankinagar, Indore

.....Workman

Versus

Regional Manager,

National Insurance Company Ltd.,

Apollo Tower, 4^th Floor,

2 M.G. Road, Indore

.....Management

AWARD

Passed on this 28^th day of February, 2014

As per letter dated 31-3-98 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-17012/

58/97-IR(B-II).The dispute under reference relates to:

“ Whether the action of the management of National

Insurance Co. Ltd. in terminating the services of

Shri Umesh Bharani, S/o Jugalkishore Bharani w.e.f.

12-6-96 is legal and justified? If not, to what relief

the said workman is entitled?”

After receiving reference notices were issued to the

parties. Ist party workman filed Statement of claim at Page

2/1 to 2/5. Workman submits that he was employed as

Assistant Typist in IInd party office at Gwalior in 1991. He

was working with diligence. In 1994, he had requested for

his transfer from Gwalior to Indore because of illness of

his wife. Chargesheet was issued to him on 3-2-95 for

allegation of unauthorized absence. False enquiry was made,

workman had given reason for his absence. His wife was ill.

Enquiry Officer reported that the reasons were false. On

concocted report of Enquiry Officer, he was removed from

service. Workman has contented that he was not given

opportunity to cross-examine witnesses Shri B.K. Gupta,

D.D. Saxena. That charges against him were not proved.

The punishment imposed against him is harsh and

disproportionate. The punishment is illegal. On such ground,

workman prays for reinstatement with back wages.

IInd party filed Written Statement at Page 8/1 to 8/4.

The claim of workman is denied. It is denied that workman

was working with diligence. It is denied that workman was

apprising the management about the illness of his wife.

That transfer of employee is not a right. The management

has to take decision as per exigency. The employees cannot

trust employees for their transfer. The convenience of the

management is vital in the matter of transfer. IInd party

denies that enquiry was not properly conducted.

Opportunity to cross-examine witnesses is denied to the

workman. That the burden to prove justification for absence

from duty lies on workman. All other adverse contentions

of workman are denied. 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 National Insurance Co.Ltd.

in terminating the services of Shri

Umesh Bharani, S/o Jugalkishore

Bharani w.e.f. 12-6-96 is legal and

justified?

(ii)If not, what relief the workman is

Workman is not

entitled to?”

entitled to relief

prayed.

REASONS

Though the workman is challenging termination from

service filing statement of claim, he has not participated

in the reference proceedings. No evidence is adduced in

support of his claim. Though the case was adjourned to

exparte evidence of management, management of IInd

party also did not participate in reference proceeding. No

evidence is adduced by management. Thus both parties

failed to participate in reference proceeding. Workman has

failed to establish that his termination from service suffers

from illegality. 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 National Insurance

Co.Ltd. in terminating the services of Shri Umesh

Bharani, S/o Jugalkishore Bharani w.e.f. 12-6-96 is

legal and proper.

(2)

Ist party workman is not entitled to relief prayed.

R. B. PATLE, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4415

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1657-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wfu;u cSad

vkWiQ bafM;k 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 (245@89) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 izkIr gqvk FkkA

¹la- ,y&12012@271@89&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1657.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 245/89) of

the Cent. Govt. Indus. Tribunal-cum-Labour Court, Jabalpur

as shown in the Annexure, in the Industrial Dispute between

the management of Union Bank of India and their workmen,

received by the Central Government on 30/05/2014.

[No. L-12012/271/89-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/245/89

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Sanjay,

S/o Shri Yogoeshwar Sirsikar,

14, jawaharnagar,

Nagpur

.....Workman

Versus

Regional Manager,

Union Bank of India,

Regional Office,

Near Jyoti Cinema,

Napier Town, Jabalpur

.....Management

AWARD

Passed on this 25th day of February 2014

As per letter dated 28-11-89 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-12012/

271/89-D-2(A). The dispute under reference relates to:

“Whether the action of the management of Union

Bank of India in terminating the services of Shri

Sanjay S/o Shri Yogeshwar Sirsikar is justified? If

not, to what relief is the workman entitled?”

After receiving reference, notices were issued to

the parties. Ist party workman filed statement of claim at

Page 2/1 to 2/11 . Case of Ist party workman is that he was

appointed as clerk in IInd party Bank vide order dated 20-

8-87 after his selection by banking service recruitment

board. He joined service in the Bank on 23-9-87 at

Garhakota branch, Distt. Sagar MP. That his services were

terminated vide communication dated 21-3-88 which was

served on him on 22-3-88. The termination order was

issued as per clause IV of the appointment letter. That

order of his termination is illegal. Clause IV of appointment

letter provides power to the Bank to terminate services of

the employee during probation period by giving one

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

Workman can resign from service giving 14 days notice to

the Bank. That his services could not be terminated

invoking powers under Clause IV of the appointment letter.

That he was ceased to be a probationer on 30-3-88. It

being a Sunday, his services were automatically confirmed

on 19-3-88. Workman also desires to refer bipartite

settlement and awards governing services of the banking.

That the award stipulates six months probation period

could be extended if his performance during probation

period is not found satisfactory. Extension of probation

period could be after issuing notice. That Sastri Award

laid down terms of completion of six months probation

period, the services are confirmed.

Workman further submits that his services could

not be terminated in the arbitrary and high handed manner.

Notice for termination was not served on him. He was not

given opportunity showcause against termination. Any

enquiry was not conducted against him. The termination

of his service is in colourable exercise of powers by IInd

party. The dispute was raised before conciliation authority.

IInd party had files reply before conciliation officer. The

allegations were false. It is reiterated that the workman

was terminated without enquiry, without giving

opportunity for defence. His services could not have been

terminated without objective conclusions based on

materials and performance in service. That the order of his

termination caused stigma against him as such of punitive

nature. The termination of his services without conducting

enquiry is illegal. That his service record was unblemished.

On such ground, workman prays for his reinstatement with

back wages.

IInd party filed Written Statement at Page 6/1 to 6/

13. Preliminary objection is raised by IInd party that

Government of India has exceeded it is jurisdiction while

referring dispute to this Tribunal. That Govt. of India did

not take care that the workman had intention to cheat the

Bank producing false caste Certificate claiming that he

belong to ST. that reference is made without applying mind.

IInd party did not dispute that services of workman were

terminated by Regional manager of the Bank vide order

dated 21-3-88. That termination order is legal. Workman

4416

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

was appointed as per order dated 28-8-87 in the Reserved

Quota for ST. as per specific terms in the appointment

order accepted by workman, he was posted at Garhakota

branch of the Bank from 23-9-87. It is submitted that the

probation period of workman ended on 22-3-88. The

termination order was served on the last day of his

probation period. Termination order was issued as per

Clause IV of the appointment letter. It is reiterated that

termination of workman is legal. There is no substance in

contentions of workman. There is no provision for

automatic confirmation of the employee. The confirmation

is subject to Clause-III of appointment letter. Confirmation

is based only on conduct, behavior and performance of

the employee is found satisfactory. That Para 495 of the

Sastri Award doesnot apply. It is nature of recommendation.

Management submits that workman had concealed

material facts and secured job fraudulently claiming that

he belong to ST. workman had also suppressed material

information about his prosecution in criminal case. The

termination order is issued considering the acts committed

by the workman. Such person cannot be continued in

service. There is no need to hold Departmental Enquiry

against probationer. The terms of appointment were

accepted by workman.

In additional pleadings, IInd party submits that

workman was appointed as clerk in the Bank on 28-8-87 .

His appointment was made after selection process

conducted by Banking service recruitment Board against

Reserved SC/ST category. Clause-III of the appointment

letter provides for six months probation period, clause-IV

provides for termination of service giving one months

notice during probation period. The selected candidates

are required to fill prescribed form. Workman had also filled

prescribed form but material information about his criminal

case was suppressed. Complaint was received that

workman was prosecuted for illicit production of liquor.

He was arrested by police, criminal case was pending before

the JMC, Umred, Distt. Nagpur. Complaint was also

received that workman fraudulently claimed he belong to

ST community. The matter was inquired through vigilance

cell and found that workman was prosecuted for

production of illicit liquor. He fraudulently obtained caste

certificate as Halba-ST. therefore the services of workman

were terminated. On enquiry from authorities, information

was received that Halba is not a ST. the order of his

termination is legal.

Ist party workman filed rejoinder at Page 8/1 to 8/4.

Workman has reiterated his contentions in Statement of

claim that termination of his service without notice or

enquiry is illegal. His probation period was completed.

His services could not be terminated under Clause IV of

the appointment order. That caste certificate was issued

by State Umred on 19-8-81. In school leaving certificate,

his caste is shown Halba was accepted to be valid. That

termination of his service for gross misconduct without

enquiry is illegal. On such ground, workman prays for

reinstatement.

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 Union Bank of India in

terminating the services of Shri

Sanjay S/o Shri Yogeshwar Sirsikar

is justified?

(ii) If not, what relief the workman is

As per

entitled to?”

final order.

REASONS

Workman is challenging termination of his service

as per order dated 20-3-88. His material contentions are

denied by the management. Workman filed affidavit of his

evidence reiterating most of his contentions in his

Statement of claim. He has stated that the Caste certificate

was issued by Executive Magistrate, Umred on 19-8-81.

Said authority had also issued Caste Certificate on 21-9-

88. He has produced School Leaving Certificate and

certificate issued by State of Maharashtra dated 31-7-87

providing that Halbas are concerned, the school leaving

certificate should be accepted as valid proof for the

purpose of their caste. He joined service on 23-9-87. His

services were terminated on 20-3-88 in terms of Clause-IV

of the appointment letter. That his service record was

unblemished. He had completed probation period.

Termination of his service without enquiry is illegal. That

he was not served one months notice or paid one months

pay in lieu of notice.

10.

Workman in his cross-examination says that he was

selected by Banking Recruitment Board for post of clerk

cum cashier. He had take charge on 21-9-87 at Garhakota

branch, Distt. Sagar. His services were terminated from 22-

3-88 as per Document D-2 received by him. That Form D-3

was filled by him on 5-9-87 before filling said form he had

read Para A,B of the said document. He affixed his photo

and signed on it. He claims ignorance about complaint

submitted by Shri Vinod Umredkar Document D-4. He

denies that before joining service in Bank, he was carrying

illicit liquor business. He has stated that he doesnot belong

to Halba caste. That while submitting Document D-3

inadvertently he had not written about his prosecution in

criminal case. He claims ignorance about letter issued by

Government Exhibit D-9. He has produced School leaving

certificate Exhibit D-7, caste certificate issued by Executive

Magistrate D-8. I will deal with document produced on

record at later stage.

11.

Management’s witness Shri K.Venkatesh filed

affidavit of his evidence stating about appointment of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4417

workman in Bank. The terms in the appointment letter

provided for six months probation period of his service

could be terminated giving one months notice or pay in

lieu of notice. That the workman doesnot belong to ST

category. Workman submitted undertaking in prescribed

form suppressing material information. He claimed that he

belong to Halba Caste(ST). that workman was prosecuted

for illicit liquor before JMC , Umred, Distt Nagpur. In his

cross-examination, witness says service of workman was

terminated as he had produced false caste certificate. It

falls under misconduct. As per his information certificate

was produced at the time of his appointment. If any infirmity

is found in appointment during probation period, the

services could be terminated giving one months notice.

Workman was in probation period. He was paid one months

salary instead of issuing notice. However no document

about payment of salary is produced. Except caste

certificate, there was no other charge against him.

Management’s witness claims ignorance what was the

probation period of workman.

12.

The evidence of management’s witness clearly

shows that workman was paid one month’s salary instead

of giving one months notice, no enquiry was conducted

against workman. His services were terminated as per

Clause IV of the appointment letter. The appointment letter

Exhibit M-1 provides for termination of service giving one

months notice during probation period. Clause III of

appointment letter provides six months probation .

Evidence of workman is not challenged that he joined

duties on 23-9-87. Prescribed form submitted by workman

is produced at M-2. The Caste of workman is shown Halba.

Undertaking is submitted along with Exhibit M-2. Workman

state his caste as Halba. The complaint received by Bank

is produced at M-3 but statement of complaint was not

recorded, no enquiry was conducted. Letter received from

Director of SC/ST Exhibit M-4 that Koshti community is

not included as ST in State of Maharashtra and w.r.t. Halba,

the Bank authority were requested to contact the Director,

Tribal Research and Training Institute Queens Road, Pune.

The evidence of management’s witness is silent whether

Bank’s authorities had taken any steps to get information

from Director,Tribal Research and Training Institute

Queens Road, Pune. The letter Exhibit M-4 dated 8-9-88

i.e. subsequent to the termination of service of workman

from 22-3-88. The document Exhibit M-6 is termination

letter is not disclosing the reason for termination of his

service for production of bogus caste certificate or his

prosecution in criminal case of illicit liquor business. The

document Exhibit M-7 the order passed by the Committee

for scrutiny and verification of tribe claims, Nagpur is

dated 14-5-01 i.e. subsequent to the termination of services

of workman. Reference No.2 in said order is dated 5-7-96

passed by Hon’ble High Court of Judicature at Mumbai,

bench at Nagpur in W.P.No. 499/84, no evidence is

produced on record who had filed W.P.No. 499/84 but it is

clear from the reference that even before appointment and

termination of the services of workman, said WP was

pending in High Court.

13.

The evidence of management’s witness shows that

vigilance cell had made enquiry and found that workman

was prosecuted in criminal case. He had submitted

fraudulent Caste Certificate claiming to be Halba Caste

(ST),who conducted enquiry from vigilance cell is not

examined as witness. The report submitted by Vigilance

cell is not produced on record. The evidence of

management’s witness K.S.Venkatesh is absolutely silent

about the report of vigilance cell of the Bank. His evidence

is also silent as to who had decided that Caste Certificate

produced by workman was bogus or fraudulent.

Management’s witness himself had not taken such

decision. As per evidence in cross-examination of

management’s witness, services of workman were

terminated for production of bogus caste certificate, there

was no other charge. Workman was not served with any

notice, no chargesheet was issued to him even his

explanation was not called about the caste certificate

submitted by him. The appointment order Exhibit M-1 is

silent that the workman was appointed in reserved

category, only declaration form Exhibit M-2 workman had

shown he belong to ST Halba, no documents are produced

by management that workman was selected by Banking

Selection Board in ST category. Before termination of his

services absolutely there was no evidence that the Caste

Certificate submitted by workman was fraudulent.

Workman has produced School Leaving Certificate, Caste

Certificate issued by Executive Magistrate Umred, circular

issued by Govt. of Maharashtra dated 31-7-87 that in so

far as Halba are concerned, the school leaving certificate

should be accepted as valid proof for the purpose of their

caste. The workman has also produced copy of the order

of discharge passed by JMC Umred in Criminal case. At

the time of termination there was absolutely no evidence

with management that Caste Certificate produced by

workman was fraudulent or invalid. The termination of

workman was not justified in the circumstances.

14.

Management has produced copy of document

Exhibit M-7 Caste Certificate of workman has been

cancelled as per order dated 14-8-01. Workman has not

adduced any evidence that said order is set-aside by the

competent forum. In pursuance of said document as

workman donot belong to ST, the caste Certificate is

cancelled. Said fact cannot be ignored. However for the

reasons discussed above, termination of services of

workman is illegal. I therefore record my finding in Point

No.1 in Negative.

15.

Point No.2- in view of my finding in Point No.1,

termination of workman is illegal. There was no evidence

with the management that Caste Certificate of workman

was invalid or fraudulent when his services were

4418

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

terminated on 22-3-88. Caste certificate of workman is

cancelled on 14-5-01- document Exhibit M-7.

16.

The learned counsel for workman has relied on

“Judgment in W.P.No. 8064/2013 by M.P.High Court.

His Lordship observed that similar claims were

considered by the Court in Case of Prakash Limje

versus State of MP and other W.P.No. 15242/2005

which has been disposed off finally on 9-1-2012.

That the Court had considered the aspect that after

a decision by the Apex Court in the Case of State of

Maharashtra versus Milind and others, the State

Govt. has evolved a new policy on 7-3-2011. Certain

benefits have been extended to those who belong

to Halba/koshti community as are granted to the

members of the ST community as are granted to the

members of the ST community. It is clear from the

above the Halba community is also granted certain

benefits. However judgment in Prakash limje versus

State of Maharashtra is not made available. The

copy of circular dated 7-3-2011 is produced by

workman. Said circular provides-” guidelines issued

on 10-8-2010 relating to Halba community- Caste

certificate issued as ST. Such candidates appointed

prior to 28-11-00 shall not be affected. However the

benefit of reservation shall not be claimed after

28-11-2000.

Thus it is clear from above circular that the persons

belonging to Halba community appointed in ST Reserved

Category prior to 28-11-2000 cannot be denied benefit of

reservation. Above circular clearly protects the claim of

workman that he belong to Halba ST therefore the

termination of the workman is illegal. Workman in his

evidence had denied suggestion that after his termination,

he was carrying liquor business. Workman in his evidence

has stated that he is not employed gainfully. Though the

caste certificate of workman is cancelled as per document

M-7, the GR dated 7-3-2011 issued by Govt. of MP shows

that the appointments prior to 28-11-2000 cannot be

interfered therefore the workman is entitled for

reinstatement in service. Considering the case is pending

since 1989 and evidence of workman is silent how he was

surviving all those long year, it is unfortunate that the

dispute could not be decided all those years. Considering

due to the long pendency, the workman was facing

hardship, reinstatement of workman with 30 % back wages

would be appropriate. Accordingly I record my finding on

Point No.2.

17.

In the result, award is passed as under:-

(1)

Action of the management of Union Bank of India in

terminating the services of Shri Sanjay S/o Shri

Yogeshwar Sirsikar w.e.f. 22-3-88 is illegal.

(2)

IInd party is directed to reinstate workman with

continuity of service with 30 % back wages.

Amount as per above order shall be paid to workman

within six weeks. In case of default, amount shall carry 9 %

interest per annum from the date of award till its realization.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1658-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ

bafM;k 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;&2] /uckn ds iapkV (116@2013) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 izkIr gqvk FkkA

¹la- ,y&12011@03@2013&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1658.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 116/

2013) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court-II, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the management of Bank of

India and their workmen, received by the Central

Government on 30/05/2014.

[No. L-12011/03/2013-IR (B-II)]

RAVI KUMAR, 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 116 OF 2013

PARTIES

: The General Secretary,

Bank of India Employees Union,

C/O Bank of India,frezer Road, Patna

Vs.

Zonal Manager

Bank of India, Zonal Office,

Patna

APPEARANCES :

On behalf of the

: Workman (Himself)

Workman/Union

On behalf of the

: Mr B. B. Saran, Management

Management

Representative

State : Bihar

Industry : Banking

Dated, Dhanbad, the 24th Feb., 2014

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4419

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under

Sec.10(1)(d) of the I.D. Act.,1947 has referred the following

dispute to this Tribunal for adjudication vide their Order

No.L-12011/03/2013-IR(B-II) dated 15.04.2013.

SCHEDULE

“Whether the action of the Management of Bank of

India to propose the punishment of dismissal was

proportionate? What relief the workman was entitled

for?”

Workman D.K.Jaiswal and Mr.B.B.Saran,the

Ld.Advocate for Bank of India are present.Mr.Saran,the

Ld.Advocate for the O.P./Management of Bank of India,

Zonal Office,Chankya Place “R”Block,Patna in presence

of the workman by filling a settlement petition today under

the signatures of Zonal Manager, M.N.A. Ansari, Mr.B.B.

Saran for the O.P./Management as well as under the

signatures of Mr.Ramesh Pd., Gen.Secretary,the Bank of

India employees’ Union, Bihar State and the workman,

has submitted that since the workman as the employee of

the Bank had committed some acts of misconduct during

his posting as C.T.O. as Maner,Branch,for which after due

enquiry following his charge sheet for his misconduct, he

was dismissed from the service; meanwhile the Industrial

dispute through the Union was raised by the workman

which failed in its conciliation proceeding before the

ALC©,Patna,resulting in the reference; but at the

intervention of the Union,the amicable settlement between

both the parties has been made as per the order

dt.08.07.2013 of the Appellate Authority as under :” The

penalty of dismissal from Bank’s service imposed on

Shri D.K. Jaiswal by punishment Order No. ZO/PAT/IR/

VIG-84/628 dated 08.01.2013 is hereby modified to

“Compulsory retirement with superannuation benefits,

i.e., Pension and/or Provident Fund and Gratuity as would

be due otherwise under the Rules and Regulations

prevailing at the relevant time and without disqualification

from future employment” in terms of Clause 6 © of the

Memorandum of Settlement dated 10.04.2002,”

The workman accepted it, voluntarily

In view of the aforesaid settlement as per its terms

and conditions between both the parties, let an Award be

passed to that effect which shall be binding on both the

parties. Thus the Case/Reference is accordingly disposed

of in view of the aforesaid settlement related to the

dismissal of the workman from the Bank Service as per

Punishment Order dt. 08.01.2013 now modified to

“Compulsory retirement with superannuation benefits…

without disqualification from future employment in the

terms of Clause 6 © of the Memorandum of Settlement

dt.10.04.2002”. The present settlement petition will be an

integral part of the Award.

KISHORI RAM, Presiding Officer

SETTLEMENT

To,

The Presiding Officer,

Central Government Industrial Tribunal (NO.2),

Dhanbad

Ref. Case No. 116 of 2013

Between

Shri D.K. Jaiswal,

Represented through General Secretary,

Bank of India employees Union,

And

Zonal Manager,

Bank of India, Zonal Office,

Chankya Place,”R” Block,

Patna

Humble settlement petition filed on behalf of the parties.

Most respectfully shewth

That Shri D.K. Jaiswal was an employee of Bank and

posted as C.T.O. at Maner Branch.During his posting at

Maner Branch of the Bank he was found to have committed

acts of misconduct. Accordingly, disciplinary action for

gross misconduct was initiated against Shri D.K. Jaiswal,

C.T.O., P.F. No. 136183 by issuing Chargesheet bearing

Ref. No. ZO/PAT/IR//VIG-84/590 dated 27.10.2011 under

the cover of Memorandum No. ZO/PAT/IR/VIG-84/595

dated 27.10.2011 and simultaneously enquiry was ordered

for the acts of misconduct committed by him during his

course of duties as CTO at Maner Branch of the Bank.

The E.O. had conducted the enquiry into the Chargesheet

and submitted his report dated 27.03.2012 holding the

charge levelled against him as proved except one

allegation.Thereafter, communication bearing Ref.No.ZO/

PAT/IR/VIG-84/175 dated 25.06.2012 proposing the

punishment of “Dismissal without Notice” in terms of Para

6 (a) of Memorandum of Settlement dated 10.04.2002 to

show cause on the proposed punishment .Shri D.K.Jaiswal

has in the meantime raised an industrial dispute through

his Union. After failure of the conciliation proceedings

before the A.L.C.(C),Patna, the Disciplinary Authority

passed an order of punishment “Dismissal without Notice”

under Clause 6 (a) of the Memorandum of Settlement dated

10.04.2002 for the charge as contained in aforesaid

Chargesheet dated 27.10.2011 found proved in the enquiry

against Shri DK.Jaiswal.

That thereafter as mentioned aforesaid the Union

intervened to bring about a peaceful settlement between

them parties. Accordingly an amicable settlement between

the parties was arrived at before the Appellate Authority,i.e.

Zonal Manager, Bank of India, Patna.

That the Appellate Authority considered his appeal

and accordingly the dismissal from Bank’s service imposed

on Shri D.K. Jaiswal by punishment order dated 08.01.2013

4420

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

was modified to “compulsory retirement with

superannuation benefits i.e. Pension and /or Provident

fund and Gratuity as would be due otherwise under the

Rules and Regulations prevailing at the relevant time and

without disqualification from future employment” in terms

of Clause 6 © of the Memorandum of Settlement dated

10.04.2002.

The copy of order dated 08.07.2013 passed by the

Appellate Authority is annexed herewith.

That both the parties have deliberated over this

litigation and have come to a conclusion not to proceed

further in the matter of the reference before your

honour.Accordingly,both the parties jointly pray before

your honour to pass an order to that effect.

That in the facts and circumstances mentioned above

the Ref.No.116 of 2013 pending before this Hon’ble Court

has become non-existence, and of no use to proceed

further.

It is, therefore, prayed that this Hon’ble Court may

graciously be pleased to pass an Award on the basis of

settlement between the parties.

And for this the parties shall every pray.

Signature of the

Signature of Union

Management

and workman

Sd/-

(M.N.A.Ansari)

1. (Rameshwar Prasad)

Zonal Manager

General Secretary

Bank of India,

Zonal Office, Patna

Employees’ Union,

Bihar State

Sd/-

(B.B.Sharan)

2. (D. K. Jaiswal)

Advocate for

Ex-Staff,

Bank of India

24.2.2014

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1659-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lsaVªy cSad

vkWiQ bafM;k ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;] y[kumQ ds iapkV (lanHkZ la- 12@2007)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&12012@95@2006&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1659.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 12/2007) of

the Cent. Govt. Indus. Tribunal-cum-Labour Court-II,

Lucknow as shown in the Annexure, in the Industrial

Dispute between the management of Central Bank of India,

and their workmen, received by the Central Government

on 30/05/2014.

[No. L-12012/95/2006-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL–CUM-LABOUR COURT, LUCKNOW

PRESENT : Dr. MANJU NIGAM, Presiding Officer

I.D. No. 12/2007

Ref. No. L-12012/95/2006-IR(B-II) dated : 12.02.2007

BETWEEN

Shri R.R. Handa

B-15, Ballabh Nagar Colony

Pilibhit.

AND

The Regional Manager

Central Bank of India

B-88, Civil Lines, Sita Kiran Hotel Building

Bareilly (U.P.) – 244001

AWARD

By order No. L-12012/95/2006-IR(B-II) dated:

12.02.2007 the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by

clause (d) of sub-section (1) and sub-section (2A) of

Section 10 of the Industrial Disputes Act, 1947 (14 of 1947)

referred this industrial dispute between Shri R.R. Handa,

B-15, Ballabh Nagar Colony, Pilibhit and the Regional

Manager, Central Bank of India, B-88, Civil Lines, Sita Kiran

Hotel Building, Bareilly (U.P.) for adjudication.

The reference under adjudication is:

“WHETHER THE ACTION OF THE REGIONAL

MANAGER, CENTRAL BANK OF INDIA,

BAREILLY IN TERMINATING THE SERVICES OF

SHRI R.R. HANDA, DEPOSIT COLLECTOR,

CENTRAL BANK OF INDIA, PILIBHIT (UP), VIDE

THEIR LETTER DATED 12.08.2004 IS LEGAL AND

JUSTIFIED? IF NOT, THE WORKMAN IS

ENTITLED TO WHAT RELIEF?”

The case of the workman, R. R. Handa, in brief, is

that he was appointed, in the Pilibhit branch of the Bank,

as an authorized collection agent (Deposit Collector) by

the Bank vide their letter dated 01.08.1978 and his terms

and conditions of the employment were revised by the

Bank vide letter dated 02.03.2002, in pursuance to the

judgment of the Hon’ble Apex Court held that the

authorized collection agents (Deposit Collectors) were

‘workman’ and accordingly employees of the Bank and

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4421

there was relationship of matter and servant between the

bank and such Deposit Collector. It is alleged by the

workman that the management all of sudden terminated

his services vide their letter dated 12.08.2005, leveling a

concocted and false charge of misconduct; without giving

him any charge sheet, conducting any formal domestic

inquiry or affording him a chance to defend himself. It is

further alleged by the workman that the act of the

management in terminating his services was in utter

violation of the principles of natural justice as he was an

employee of the Bank and his termination could have been

only after following the due procedure i.e. issuance of

charge sheet, holding of an inquiry and giving him a chance

of self defence. Accordingly, the workman has prayed

that his termination be declare illegal and the same be set

aside; and he should be reinstated with continuity in

service and full back wages.

The management of the Central Bank of India has

disputed the claim of the workman by filing its written

statement wherein it has submitted that the applicant

assigned the task of authorized collection agent in

response to a contractual agreement dated 02.08.1978. It

is specifically submitted by the Bank that as per clause 15

of the said agreement, the said agreement may be

terminated without any notice or assigning any reason

thereof by the bank. It is further submitted that the applicant

duly executed and signed the agreement, he was only an

agent and not an employee of the bank, and therefore,

there was no relationship of employer and employee

between the Bank and applicant under dispute. It is also

submitted by the Bank that Hon’ble Apex Court in its order

dated 13.02.2001 has held that ‘the persons who are

engaged on the basis of individual contracts to work on

commission basis cannot be equated with regular

employees doing similar work’, therefore, since the

applicant was engaged on an individual contract vide

agreement dated 02.08.1978 he cannot claim benefit of

being declare as workman. The bank has submitted that it

had every right to terminate the agency of the applicant in

terms of the agreement and accordingly has committed no

wrong. Therefore, the management has prayed that the

claim of the workman is liable to be rejected without any

relief to the applicant concerned.

The workman has filed its rejoinder; wherein he has

reiterated the averments already made in the statement of

claim.

The parties filed documentary evidence in support

of their respective claim. The workman has examined

himself where as the management has not examined any

one in support of their case in spite of ample opportunities

being availed since 27.04.2010. When no one turned up

from the management to adduce the evidence, the case

was fixed for arguments vide order dated 04.08.2010. The

authorized representatives of the parties are absenting

themselves since 08.07.2010 and are not turning up to

forward their arguments, therefore, the case was reserved

for award, keeping in view long pendency of the case and

reluctance of the parties to contest their case.

I have gone through pleadings of parties and

evidence available on record.

The case of the Bank rests on the contention that

the applicant had been assigned the task of collection

agent as per agreement dated 02.08.1978 and his agency

was terminable without any notice or assigning any reason

for the same as per clause 15 of the said agreement, hence,

the applicant was not an employee of the bank. It is also

the case of the management that the applicant is not

workman within the provisions of 2‘s’ of the Act.

Per contra, the workman has come up with the case

that he was appointed as authorized Deposit Collector

vide letter dated 01.08.1978 and his services were further

revised vide letter dated 02.03.2002 in view of judgment of

Hon’ble Supreme Court dated 13.02.2001. It is also the

case of the workman that Hon’ble Apex Court vide in Civil

Appeal No. 3355 of 1998 Indian Banks Association vs.

Workmen of Syndicate Bank & others (2001) 3 SCC 36

declared the authorized collection agent (Deposit

Collectors) as ‘workman’, hence it maintained the

relationship of master and servant.

10.

Having respective pleadings of the parties, it comes

out that the management has taken objection that the

applicant, R.R. Handa is not a workman under Section 2 ‘s’

of the Industrial Disputes Act, 1947; whereas the applicant,

relying on judgment dated 13.02.2001 in Indian Banks

Association vs. Workmen of Syndicate Bank & others. JT

2001 (2) SC 542 has contended that he is a workman with

the provisions of the Section 2 ‘s’ of the Act. The Hon’ble

Apex Court has observed that

“undoubtedly deposit collectors are not regular

employee of the bank but nevertheless are workers

within the meaning of term as defined in the Industrial

Disputes Act, 1947. The commission received by

the deposit collector is nothing else but wage.

Definitely the bank has control over the deposit

collectors in as much as deposit collectors have to

bring the collections and deposit the same in the

banks by the very next day. They have to fill various

forms, accounts register and pass book. They are

therefore, accountable to the Bank and under the

control of Bank. There is a clear relationship of

master and servant between the deposit collector

and the Bank.”

11.

In the present case, the management terminated the

agency of the workman vide their letter dated 12.08.2004

with allegations of misconduct on the part of the workman

on the ground that as per agreement 01.08.1978 it can

4422

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

terminate the agency of workman without assigning any

reason or notice and further since the workman, R.R.

Honda is not a workman; hence, there is no requirement of

holding any inquiry. But, since the applicant was covered

with the definition of ‘workman’ as observed by Hon’ble

Apex Court in Indian Banks Association vs. Workmen of

Syndicate Bank & others. JT 2001 (2) SC 542, it was

incumbent upon the management to observe due

procedure before taking any action against the workman,

R.R. Handa. When the management has alleged the

commission of some misconduct then the explanation of

the workman was required to be called for and after

considering the explanation of the workman, if it was found

necessary then domestic inquiry is to be instituted; and it

is only after holding proper inquiry the punishment was

to be imposed; but the management failed to do so. The

action of the management of the Bank is a sort of

termination simplicitor wherein no opportunity was

afforded to the workman and he was simply terminated by

an order without observing any procedure prescribed for

termination of employees. Thus, the action of the

management of the Bank was an arbitrary one. The

contention of the management that it did not issued any

charge sheet or conducted any formal inquiry for the

reasons that the applicant was not ‘workman’ within the

meaning of the Section 2 ‘s’. In this regard it has relied on

agreement dated 01.08.1978, which provide that the agency

could be terminated without any notice or assigning any

reason for the same; but after pronouncement of judgment

dated 13.02.2001 of Hon’ble Apex Court in Indian Banks

Association vs. Workmen of Syndicate Bank & others;

whereby the deposit collectors were declared to be the

‘workman’, the agreement date 01.08.1978 became

ineffective. Thus, in view of orders of Hon’ble Apex Court

the deposit collectors were the employees of the Bank

and the their services were terminable only after observing

due procedure.

12.

In view of the discussions made above, I am of

considered opinion that that the action of the Central Bank

of India, Bareilly in terminating the services of workman

was illegal and unjustified and accordingly, the workman

is entitled for reinstatement. As regard back wages, it is

admitted case of the parties that the workman was allotted

agency and he was paid commission on the basis of his

collection. Since there was no collection during the period

he was out of the service, therefore, I am of the opinion

that he is not entitled for the back wages. However, he

shall be entitled for continuity etc. in terms of relevant

rules and agreement.

13.

Award as above.

LUCKNOW

15th April, 2014

Dr. MANJU NIGAM, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1660-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wdks 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;] /uckn ds iapkV (lanHkZ la- 15@2010) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@94@2009&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O. 1660.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 15/2010)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court-I,

Dhanbad as shown in the Annexure, in the Industrial Dispute

between the management of UCO Bank, and their workmen,

received by the Central Government on 30/05/2014.

[No. L-12012/94/2009-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD

IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)

OF I.D.ACT, 1947.

Ref. No. 15 of 2010

Employers in relation to the management of

UCO Bank, Jorapokhar , Dhanbad

AND

Their workmen

Present : SRI RANJAN KUMAR SARAN,

Presiding officer

Appearances :

For the Employers

: Sri D.K.Verma, Advocate

For the workman

: Sri S.N.Goswami , Advocate

State : Jharkhand

Industry : Banking

Dated 9/4 /2014

AWARD

By Order No.L-12012/94/2009-IR (B-II), dated

08/02/2010, 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:

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4423

SCHEDULE

“Whether the action of the management of UCO

bank Jorapokhar Branch, P.O. Patherdih, Dist.

Dhanbad in discontinuing the service of Sri Hiralal

@ Hari Sah from 13.11.2003 without any notice or

charge of misconduct was justified ? what relief the

workman will be entitled to?”

The case is received from the Ministry of Labour on

25.02.2010. After notice both parties appeared , the workman

files their written statement on 15.03.2010. Thereafter the

management files their written statement-cum-rejoinder on

12.05.2010. One witnesses on behalf of the Management

is examined but two witnesses examined by the workman.

The short point is involved in this case is whether

the workman to be taken in bank service. The admitted

fact of this case is that the workman was working in the

bank as peon from 16.05.1999 to 30.11.2003. It is started by

the management that workman was working purely

temporary basis.

The workman filed documents of payment, bank

pass book and I.D.Card of bank ( photocopy). The

management admitted that the workman was rendering

service. But terminating the workman without notice is

completely illegal. Though the management witness in

his examination in chief has stated that the workman did

not work in the bank continuously for period of 240 days.

Rather in cross examination of MW-1 has stated that the

workman was working in the bank from 1981 to 1999.

The management admitted in his written statement

that the workman was working in bank from 1999 to 2003.

Therefore the workman was working continuously for

more than 240 days in a calendar year.

This being the situation the workman be reinstated

in the post of peon with immediate effect atleast within

30 days from the date of publication of the award in the

Gazette. If the award is not implemented by the bank, then

the bank is to pay the workman 30% of back wages w.e.f

16.05.1999.

This is my award.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1661-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ

bafM;k ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;&1] /uckn ds iapkV (lanHkZ la- 204@1999)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&12013@109@1998&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1661.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 204/

1999) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court-II, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the management of Bank of

India, and their workmen, received by the Central

Government on 30/05/2014.

[No. L-12013/109/1998-IR (B-II)]

RAVI KUMAR, 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. 204 OF 1999

PARTIES

: The Organizing Secretary,

Bank of India Employees Union

(Bihar State) C/O Bank of India,

Fraser Road, Patna.

Zonal Manager,

Bank of India, Bihar (South Zone),

Ranchi

Ministry’s Order No. L-12013/109/98-IR

(B-II) dated 14.05.1999.

APPEARANCES :

On behalf of the Workman/Union : Mr. D. Mukherjee

Ld. Advocate

On behalf of the Management

: Mr. S.K. Chamaria,

Ld. Advocate

State : Jharkhand

Industry : Banking

Dated, Dhanbad, the 18th 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-12013/

109/98-IR(B-II) dated 14.05.1999.

SCHEDULE

“Whether the denial of promotion to Sri Binod Kumar

Saran by the Management of Bank of India to the

Cadre of General Banking Officer Cadre J.M. Scale-I

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

the workman is entitled to?”

4424

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

On receipt of the Order No. L-12013/109/98-IR (B-II)

dated 14.05.1999 of the above mentioned reference from

the Government of India, Ministry of Labour, New Delhi

for adjudication of the dispute, the Reference Case No.

204 of 1999 was registered on 10th June, 1999 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 both their

Lawyers appeared in, and contested the case.

The case of the Bank of India Employees Union for

workman Binod Kumar Saran is that he has been working

as a permanent employee of the Bank of India in Clerical

Grade since long. At the notice dt.18.2.1993 in pursuance

of the settlement dt.5.5.1980 between the Management

and the Federation of Bank of India Staff Union, he with

similar others submitted his application for promotion to

the General Banking Officer Cadre, J.M. Scale, and also

appeared at the trade test on 23.5.93.Though he passed

the CAIIB-Part I examination as per the marksheet supplied

to him as per the Management’s letter dt.01.12.93, the

Management did not consider it despite the mandatory

upon it as per the terms of the settlement, he had submitted

the marksheet before the date of interview. He had also

represented to the Competent Authority about the wrong

computation of marks under the Head Education

Qualifications, but the anit-labour management

unconsidered and illegally derived it arbitrarily. He was

not called for interview due to the illegal miscomputation

of his marks. In pursuance of the notice dt.18.2.93; the

other persons were promoted w.e.f. 15.12.93, whereas the

workman was also entitled to the promotion to the General

Banking Officer Cadre J.M. Scale-I with all arrears of wages

and other consequential benefits.

Further alleged by the Union Representative for the

workman that again as per the notice dt.12.12.1994 of the

Management in pursuance of the settlement dt. 5.5.89, he

had applied for his promotion to the post, qualified for the

trade test on 5.2.1995 after his appearance thereat, and

appeared for interview on 2.4.1995. Though he was entitled

for marks (11) eleven instead of eight (8) of for passing

CAIIB Part-I, the anti-labour Management wrongly

computed his marks as per its statement dt. 24.2.1996 of

the marks under the head of educational qualification. In

order to victimize him the Management had wrongly

tabulated his marks in the Trade Test which ought to have

been 32.5 in place of 32, otherwise, he would have been

promoted to the post of Junior Management Grade Scale-I

w.e.f. 26.6.1995. In spite of his satisfactory reply, the

Management motivatedly constituted a Departmental

Enquiry to harass him mentally. After due enquiry, the

Enquiry Officer in his report had clearly indicated the

workman to have got 32 instead of 32.5 marks due to its

wrongly Tabulation, and accordingly exonerated him from

all charges. Lastly, the Industrial Dispute raised by the

union before the A.L.C.(C), Ranchi due to failure of the

conciliation proceeding despite the Management’s

acceptance of the monetary benefits being received by

him for completion of CAIIB Part Examination on

14.11.1992, resulted in the reference for adjudication. The

action of the Management was vindictive, discriminatory,

anti-labour and illegal. So the promotion of the workman

to the cadre of General Banking Officer, J.M. Scale w.e.f.

15.12.1993 /26.6.1995 with seniority, all arrear of wages

and consequential benefits have been urged for him.

Denying specifically all the allegations of the O.P./

Managment, the Union Representative in the rejoinder

his alleged that the workman had timely submitted his

application with marksheet in support of his passing in

the CAIIB Part- I examination; moreover no alleged cut off

mark was ever declared by the Management; and that the

finding of the Enquiry Officer in his enquiry report about

the marks 77.5, i.e.,78 secured by the workman if added for

his success in the said examination was also unconsidered

by the Management. The workman had submitted before

the Management with retrospective effect as the only

ground for denial of his promotion for non passing of the

said examination.

Whereas the case of the O.P./Management with

categorical denials is that the present reference is

unmaintainable as vague in the terms of Law and facts. It

is also belated for 3 years, and barred under the principles

of Estoppel and waiver. The claim of the workman for

promotion on the ground of marks in unentertainable in

view of the specific conditions under clause 16 (d) of the

Memorandum of Settlement dt.5.5.1989 as also in view of

the mark sheets vide letter dt.1.12.1993 and 24.2.1996.

Workman Binod Kumar Saran is a permanent employee of

the Bank, and is presently working as Steno Typist (Hindi)

in Clerical Grade at its Zonal Office, Ranchi. Factually the

Management as per its notice dt.18.2.1993 had invited

promotion from Clerical Grade to General Banking Officers

Cadre Junior Management Grade Scale-I. According to

the stipulation under item 5 (i) “Educational Qualification

of the prescribed From, it specified the assessment of the

qualification marks based on marksheet and Certificate for

each of Degree, Diploma etc., and the candidate was

required to attach the certified copies of all the qualification

for verification and evaluation of mark secured under the

heading, failing which, marks would not be allotted. The

maximum marks 28 and 18 as appointed for service

particulars and educational qualification respectively. The

total marks were required to be mentioned by the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4425

candidates himself on the basis of the guidelines subject

to verification by the Competent Authority on the basis of

documents etc. required to be enclosed along with the

application. The workman had applied for the promotion

in the prescribed form, but without submitting the

Certificate for passing CAIIB Part-I Examination along with

the application form; as such no mark was allotted to him

on that count. The last date for submission of the

application in prescribed form was 31.3.1993. The process

of selection was completed by October, 1993, and the 15th

December, 1993 was for the promotion of successful

candidates. Since the workman had not submitted the

Certificate in support of passing the CAIIB Part-I, its marks

were unallotted to him, and his secured marks 62

(i.e. Service 24, Educational qualification 08 and Trade

Test 30) was below the cut off mark 63 for General Category

to which he belonged, he did not qualify for interview, he

was not interviewed, so he was not promoted w.e.f.

15.12.1993.

Further alleged by the O.P./Management is that

having realized about his being disqualified for the

previous promotion, the workman did not raise any dispute

for it, and subsequently participated in the next promotion

process as per the notice dt.12.12.1994 in the year 1994

wherein he again disqualified for the same reasons:

unsubmitting of his Certificate for passing CAIIB Part -I

amounting to non-allotment of the marks for the

educational qualification, and his secured only 77 (32, 26,

08 and 11 marks for his Trade Test, Service, educational

qualification and interview respectively marks was below

the cut off 78. The marks secured by the workman were

rounded of on total, but not on the individual paper i.e.,

objective and descriptive. The same procedure was

followed for all the candidates appearing in the

examination. Thus, the workman was not promoted. The

23rd June,1995 was the last date for submission of the

application, and the Final result was declared on 26.6.1995.

The letter dt. 29.8.1995 of the workman written to the

Secretary, the Indian Institute of Bankers clearly manifests

the circumstance of his not getting his Original

Memorandum (Certificate prior to the said date due to

postal defects or other reason, as his having no Certificate

time, so he could not file it at the relevant time; rather on

the Certified Copy of his certificate for passing CAIIB –

Part-I having been submitted by the workman on aforesaid

29.08.1995; he was given his monetary benefits as

additional increment retrospectively from the date of

passing the CAIIB –I on 14.11.1992 as per the Banking

rules. But he raised not any such dispute about his non-

promotion to the Officers Cadre for the aforesaid reasons

to his knowledge. Besides, the promotion process from

Clerical Grade to General Banking Officers Cadre, J.M.

Grade Scale-I is periodically conducted and has already

been done after the year 1994 on more than one occasion,

he has not participated for his known reasons. He is at

liberty to participate in the promotion process whenever

conducted by the Management. Thus, the action of the

Management in not promoting the workman to the Cadre

of General Banking Officers J.M. Scale-I is justified, proper

and legal. The workman is not entitled to any relief.

In its rejoinder, the O.P./Management has

categorically denied the allegations of the workman as

false, baseless and imaginary, stating that the charge sheet

and enquiry relate to the matter of using unfair means in

the written examination. It has not been considered in

regard to the matter of promotion to the workman.

FINDING WITH REASONS

In the instant reference case, WW-1 Binod Kumar

Saran, the workman himself for the Union concerned, MW-1

Ramakant Mishra, the Dy. Zonal Manager and MW-2

Supriya Kant Chaudhary, the Officer Bank of India, Chas

(Bokaro) for the O.P./Management have been respectively

examined.

Mr. D. Mukherjee, Learned Counsel for the Union/

workman has argued that workman Binod Kumar Saran

(WWI) was the clerk of the Bank of India since his

appointment on 10.02.1981, and was posted at D.M. Office,

Ranchi; as per the Circular of the Management in the year

1993 for promotion of internal staff to the post of Officer

in J.M. Scale-I, he applied in and appeared in the

examination therefor, but the nonaddition of the three

marks for Certificate of Indian Institute of Bankers (Part 1)

in the marksheet resulted in his total marks lesser than

others, depriving him of the promotion in the Office Grade

J.M. Scale; likewise in the year 1994 at another Circular for

the same purpose, the Management omitted to add 3 marks

in his marksheet (Ext.W. 2) after his application and

interview for it, so he was not considered by the

Management for his promotion in the J.M. Grade Scale,

though he had passed the CAIIB Examination in the year

1993/1992 (the I.I.B.’s letter dt.1.4.1998- Ext.W.4 and 7

respectively), and again, he got deprived of his said

promotion, for which he submitted his representation, but

it was rejected by the Management (Ext. W. 8); and lastly

he raised the Industrial Dispute in the year 1998 for the

claim of his said promotion in the year 1993 and 1995 (The

copies of his prescribed applications –Ext.W. 9 and 10

respectively). The emphatic contention of Mr. Mukherjee

is that the admission of both the witnesses of the

Management (MWs 1 & 2) that the workman had passed

CAIIB-I in the year 1992; Mr. Saran (the workman) has

been paid additional increment for passing CAIIB-I w.e.f.

14.12.1992, so the point for adjudication narrows to the

consideration if he passed the said CAIIB-1 examination

before 1993 and 1995, as such in view of the aforesaid

facts, evidence and documents, the workman is legally

entitled for the promotion to the Cadre of the General Bank

Officer J.M. Scale-I from 1993 with all arrear of wages and

attendant benefits.

4426

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Whereas in response to it, Mr. S.K. Chameria, Learned

Advocate for the O.P./Management has contended that in

view of the facts evidence and documents as brought by

both the parties on the case record, it stands crystal clear

as established by both the Management witness MW-1

Ramakant Mishra, and MW-2 Supriya Kant Choudhary

that since the workman had not complied with the

submission of his passing Certificate CAIIB-I Part, an

inevitable requisite along, with any of the two prescribed

Applications for the promotion from the Staff to the Bank

Officer Grade in J.M. Scale-I in either of the years 1993 and

1994 respectively, rather he had submitted his aforesaid

Certificate on 29.08.1995 later than the declaration of the

result on 26.06.1995 for even the latter year 1994

Examination, he was not promoted to the said post in lack

of not getting three marks for educational qualification in

any of the said Examination; hence the workman is not

entitled to any relief even in view of the vague terms of the

reference.

10.

On perusal and consideration of the materials

available on the case record, I find that the very admission

of the workman in his cross examination that on both the

occasions, he though submitted his marksheet, could not

do the requisite “certificate of success in CAIIB, as the

same was not received from the Authority as evident

from his document (i.e. I.I.B’s letter dt. 01.04.1998 – Ext.

W. 4). Apparently such acknowledgment of the workman

clearly proves his failure in submitting his requisite

certificate of CAIIB along with the prescribed Form for the

promotion as notified by the Management (Ext.W.1), he

got disqualified for the promotion to the G.B.O. Cadre on

both occasions. It was his own personal fault for it. Getting

an additional increment for the workman since the date of

passing his CAIIB Part-I is quite distinct from the matter

under adjudication. The argument of Mr. Mukherjee

learned Counsel for the Union/workman appears to be not

plausible and persuasive.

In result, it is, in terms of the reference, hereby

ORDERED

That the Award be and the same is passed that

the denial of promotion to Shri Binod Kumar Saran by the

Management of Bank of India to the Cadre of General

Banking Officer Cadre J.M. Scale-I for the year 1993 or

1994 is quite justified, proper and legal. Hence, the workman

is not entitled to any relief.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1662-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos

deZpkjh ;wfu;u 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;] y[kumQ ds iapkV (lanHkZ la-

55@2008) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk FkkA

¹la- ,y&41011@31@2008&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1662.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 55/2008)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Lucknow as shown in the Annexure, in the Industrial

Dispute between the management of Uttar Railway

Karmchari Union and their workmen, received by the

Central Government on30/05/2014.

[No. L-41011/31/2008-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL–CUM-LABOUR COURT LUCKNOW

PRESENT : Dr. MANJU NIGAM, Presiding Officer

I.D. No. 55/2008

Ref. No. L-41011/31/2008-IR( B-II) dated: 11.12.2008

BETWEEN

Mandal Sanghtan Mantri,

Uttar Railway Karmchari Union,

283/63, KH(B), Ghari Kanora,

Premwati Nagar, Lucknow – 16

(Espousing cause of Smt. Tarawati)

AND

Mukhya Karkhana Prabandhak,

Uttar Railway,

Char Bahg, Lucknow.

Varishth Karmik Prabandhak,

Uttar Railway, Char Bahg,

Lucknow.

AWARD

By order No. L-41011/31/2008-IR( B-II) dated:

11.12.2008 the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by

clause (d) of sub section (1) and sub section (2A) of Section

10 of the Industrial Disputes Act, 1947 (14 of 1947) referred

this industrial dispute between Mandal Sanghtan Mantri,

Uttar Railway Karmchari Union, 283/63, KH(B), Ghari

Kanora, Premwati Nagar, Lucknow and the Mukhya

Karkhana Prabandhak, Uttar Railway, Char Bahg, Lucknow

and Varishth Karmik Prabandhak, Uttar Railway, Char Bahg,

Lucknowfor adjudication.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4427

The reference under adjudication is:

“kya uttar railway prabandhan dwara Shrimati

Tarawati patni swa. Shivpal Singh ko railway board

ke dinank 16.7.87 mudrit kramank sa. 9252 ke anusaar

pichali tithi se family pension ka phugtaan na kiya

jana nayayochit evam vaidh hai? Yadi nahi, to

kaamgaar ki patni kis raahat ko pane ka hakdaar hai.”

The case of the workman’s union, in brief, is that the

husband of the workman viz. Shri Shiv Pal Singh expired

on 12.06.1960. The widow of Shiv Pal Singh requested the

opposite party management for grant of family pension in

light of P.S. No. 9252 and 8797; but no heed was paid to

her request. Accordingly, the workman’s union has prayed

that the action of management in not allowing family

pension to Smt. Tarawati be declared illegal and she be

held entitled for family pension in terms of P.S. No. 9252

and 8797, with retrospective effect.

The management of the railways has denied the claim

of the workman’s union by filing its written statement;

wherein it has submitted that the widow of the workman,

Shiv Pal Singh was paid ex-gratia payment of Pension. It

is submitted by the management that the ex-employee,

Shiv Pal Singh was P.F. optee; and accordingly the family

of the deceased is entitled for ex-gratia pension as per

Railway Rules. It is submitted by the management that as

per P.S. No. 8797, the families of only those railway servants

were allowed family pension who retired or died prior to

01.01.1964 and were on pensionable establishment i.e. who

had opted for pension only. Since the husband of Smt.

Tarawati was P.F. optee, therefore, the widow of the

workman, Smt. Tarawati was paid ex-gratia pension only

and she is not entitled for family pension in terms of P.S.

No. 8797. It is also submitted that P.S. No. 9252 does not

change the policy of P.S. No. 8797 and the same is meant

for the internal purposes to regulate the allocation of funds.

Accordingly, the management has prayed that the claim

of the workman’s union be rejected being devoid of merit,

without any relief to the workman concerned.

The workman’s union has filed its rejoinder; wherein

it has not brought any new fact apart from reiterating the

averments already made by it in the statement of claim.

The workman’s union has filed photo copy of

documents in support of its claim; whereas the

management has filed none. The workman’s union has

examined the workman whereas the management filed

evidence of Shri Arun Sharma, Dy. CPO in support of their

respective claim. The workman got herself cross-examined;

whereas the management witness did not turn up for cross-

examination in spite of giving several opportunities; and

the case was fixed for arguments. The parties forwarded

oral arguments in support of their case.

Heard authorized representatives of the parties and

perused entire evidence available on record.

The authorized representative has argued that the

workman is entitled for family pension in terms of P.S. No.

8797 since the husband of the workman died on 12.06.1960

i.e. before 31.12.963. He also contended that the widow of

Shiv Pal Singh also submitted application for the same on

18.09.1987 in prescribed proforma and thereafter on

13.11.1991; but she has not been granted family pension

in terms of instructions contained in Railway Board’s order

vide P.S. No. 8797 & 9252 for which she is entitled.

Per contra, the management’s representative has

contended that the husband of the workman had opted

for P.F. pension and accordingly his widow is entitled for

ex-gratia pension only; and she is being paid accordingly.

It is also contended that the case of the workman is not

covered by the instructions contained in Railway Board’s

order vide P.S. No. 8797 & 9252 since same is for those

railway servants were allowed family pension who retired

or died prior to 01.01.1964 and were on pensionable

establishment i.e. who had opted for pension only. Since

the husband of Smt. Tarawati was P.F. optee, therefore,

the widow of the workman, Smt. Tarawati was paid ex-

gratia pension only and she is not entitled for family

pension in terms of P.S. No. 8797.

10.

I have given my thoughtful consideration to the

rival contentions of the parties and perused the evidence

available on record in light thereof.

11.

The workman, Smt. Tarawati in her evidence has

stated that her husband died during service on 12.06.1960

and after his death she was paid ex-gratia pension. It was

also stated that she applied for family pension in the year

1991. In rebuttal, the management has filed affidavit of

Shri Arun Sharma, Dy. C.P.O.; but he did not turn up for

his cross-examination even ample opportunity was

afforded to him; which led to closing his opportunity for

cross-examination and thereby making his evidence

ineffective.

12.

Admittedly, the husband of the applicant, Tarawati

died on 12.06.1960 who had opted for P.F. and accordingly,

on his death, his widow was paid ex-gratia pension. The

case of the parties rest on the instructions contained in

Railway Board’s order vide P.S. Nos. 8797 & 9252. In this

regard the management has contended that the instructions

contained in P.S. No. 8797 is for those railway servants

were allowed family pension who retired or died prior to

01.01.1964 and were on pensionable establishment i.e. who

had opted for pension only. As regard P.S. No. 9252 the

management’s stand is that it is for regulating the

allocation of funds and has nothing to do with the case of

the workman.

13.

Keeping in view the pleadings of the parties, the

relevant extracts of the instructions contained in Railway

Board’s order vide P.S. Nos. 8797 & 9252 is of worth

material and the same is reproduced hereunder:

4428

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

“P.S. No. 8797.

Sub- Grant of family pension to Families of Railway

employees governed by the pension scheme who

retired or died before 1-1-64 or are otherwise not

covered by the Family Pension Scheme for Railway

employee, 1964. Implementation of the Judgment of

the Supreme Court.

………………………………

Initially, the family Pension Scheme for Railway

employees 1964 was a contributory one and

employees eligible for the benefits of the scheme

were required to contribute two months emoluments

out of the DCRG. However with effect from 22-9.1977,

this pre-condition was done away with.

Sometimes back a section of widows of erstwhile

Rly. Servants who were not covered by the Family

Pension Scheme -1964, had filed writ petitions in the

Supreme Court of India claiming that the benefit of

the family pension scheme, 1964 may also be

extended to them.

During the hearing of these petitions, the

Government made a statement on 15-4-85 before the

Court on their own stating as to what extent the

Govt. would be prepared to accept the claim of the

widows. Keeping in view the statement filed by the

Govt. and clarifications subsequently given to the

Hon’ble Court by the Govt. the Supreme Court of

India delivered its judgment on 30th April, 1985

extending w.e.f. 22-9-77 the benefit of the family

pension scheme 1964 to the families of those Railway

servants who were/are borne on pensionable

establishment and are not presently covered by that

scheme namely the families of those Railway

employees who retired/died before 31-12-1963 and

those who were alive on 31-12-63 but who opted out

of the family pension scheme – 1964.

Consequent upon the above judgment of the

Supreme Court the President has been pleaded to

decide that:-

(a)

The benefit of family pension scheme, 1964

may be extended to all the eligible members of

the family in accordance with the provisions

of this Ministry’s letter No. F(P)63-PNM/40

dated 2-1-1964.

(b)

All the eligible persons, including

dependents, shall be allowed the increased

pension rates as introduced from…………

(c)

The arrears of family pension may be granted

w.e.f. 22-9-77 the date on which contribution

of two month’s emoluments by pensioners

was dispensed with or from a subsequent date

they become eligible for family pension,

whichever is enter. The benefit will also be

available in cases where the death of the

pensioner occurs hereafter.

(d)

Persons who are now to be granted the benefit

of family pension will not be required to

contribute two months emoluments, similarly,

no demand for refund of contribution already

made by pensioners will be entertained by the

Govt. and

(e)

Life time arrears of family pension would also

be payable in respect of widows/eligible

members of the family of the deceased Rly.

Employees who were alive on 22-9-1977 and

who died subsequently to this date, for the

period from 22-9-1977 to the date of death.”

P.S. No. 9252.

“Yah vinishchay kiya gaya hai ki 1.1.84 se purv

sewanivrit hue karmchariyon ke parivaaron ko ya jin

karmchariyon ki miritu 1.1.6 se purv ho gait hi ya jo

1961 ke parivaar pension yojna ke antargat nahi aate

unke parivaaron ke board ke 26.7.85 ke patra sa.

F[E]11185/PN/19 ke madhyam se karyanvit sarvoch

nayayala ke nirnay ke anusaran main parivaar

pension ke bhugtyaan ka lekha samanay pension

aur parivaar pension ke bhugaatn se bhinn rakha jai

aur ise kisi nae lekha u-shirsh ke antargat darj kiya

jana chahiy.

Tadanusaar, uparukt aadeson ke antargat sarvoch

nayayala ke nirnay ke kaaran diye gaye parivaar

penion ke bakaya raashi, rajasv saar L main laghu

shirsh 400 parivaar penion ke antargat naye up-

shirsh 420 main darj ki jaani chahiye”

From bare reading of the above two circulars/PS it is

crystal clear that the P.S. 8797 pertains to the extension of

benefits of the family pension scheme 1964 to the families

of those Railway servants who were/are borne on

pensionable establishment and are not presently covered

by that scheme namely the families of those Railway

employees who retired/died before 31-12-1963 and those

who were alive on 31-12-63 but who opted out of the family

pension scheme – 1964. The PS No. 9252 was regarding

regulating the funds for payment of family pension to the

beneficiaries of PS No. 8797.

14.

It is admitted case of the parties that the husband of

the applicant Tarawati viz. Shiv Pal Singh died on

12.06.1960 who had opted for P.F., consequently, on his

death, his widow, Smt. Tarawati was paid ex-gratia pension

instead of pension. Later on issuance of PS No. 8797, in

pursuance to the Hon’ble Supreme Court’s judgment in

Smt. Poonamal & others vs UoI & others (1985) 3 SCC 345,

those railway employees who retired/died before

31.12.1963 and opted out of family pension, were also

granted benefits of family pension scheme -1964. Hence,

the PS No. 8797 squarely covers the cause of the applicant

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4429

as her husband Shiv Pal Singh died before 31.12.1963 and

had opted out of the family pension scheme, 1964; and

accordingly, Tarawati becomes entitled for pension as per

provisions contained in the PS No. 8797.

15.

Therefore, in view of discussions made hereinabove,

I am of the considered opinion that the denial of family

pension to Smt. Tarawati w/o Late Shiv Pal Singh is illegal

and unjustified; and accordingly, the workman’s widow is

entitled for family pension under Rules w.e.f. 13.06.1960.

The applicant shall be entitled for arrears of family pension

deducting ex-gratia pension within six weeks of the

publication of this award, failing which she shall also be

entitled for simple interest @ 6% per annum. The reference

under adjudication is answered accordingly.

16.

Award as above.

LUCKNOW.

26th March, 2014.

Dr. MANJU NIGAM, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1663-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wdks 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; tcyiqj ds iapkV (lanHkZ la- 6@2004) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@207@2013&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1663.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 6/2004)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the Industrial Dispute

between the management of UCO Bank and their workmen,

received by the Central Government on 30/05/2014.

[No. L-12012/207/2013-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/6/2004

PRESIDING OFFICER : SHRI R. B. PATLE

Shri Rajendra Prasad,

S/o Laxman Prasad,

Dongarpura, Near Railway Line,

Shinde ke Chhawni, Lashkar,

Gwalior

.....Workman

Versus

Divisional Manager,

UCO Bank, Zone-II,

M.P. Nagar,

Bhopal (MP)

.....Management

AWARD

Passed on this 21st day of February 2014

As per letter dated 9-2-2004 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-12012/

207/2003-IR(B-II). The dispute under reference relates to:

“Whether the action of the management of Divisional

Manager, UCO Bank in terminating the services of

Shri Rajendra Prasad S/o Laxman Prasad w.e.f. 7-5-

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

entitled for?”

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim

at Page 2/1 to 2/5. Case of Ist party workman is that he was

engaged as peon in New Market, Lashkar, Gwalior of UCO

Bank on 1-9-86. He was paid wages Rs. 89/- per day, bonus

was paid to him. Weekly holidays were also given to him.

He was honestly working in the Bank. His services were

terminated from 7-5-97. Ist party workman was

continuously working for 11 years in IInd party No.3.

during each of the year, he had completed more than 240

days continuous service. After termination of his service

he is unemployed. While terminating his services,

principles of last come first go was not followed. IInd

party after terminating his services have engaged other

persons as peon. They are still working in the Bank.

Workman further submits that no chargesheet was

issued to him, enquiry is not conducted against him, he

has not been paid retrenchment compensation, permission

of Government is not obtained for his retrenchment. His

services are terminated without issuing notice. He was

not paid notice pay. Workman submits that termination of

his service is illegal. Notice was issued through his

Advocate on 4-6-97 to IInd party no. 3. The notice was

received on 7-5-97 but the workman was not allowed to

work in the Bank. He filed proceeding before ALC and

dispute is referred. On such ground, workman is praying

for his reinstatement with consequential benefits.

IInd party filed Written Statement at Page 6/1 to 6/4.

IInd party raised preliminary objection that the statement

of claim filed by workman shows that the workman was

engaged on daily wage basis dehors the recruitment rules

as subordinate staff. That the workman is not covered

under Section 2(S) of I.D.Act. no case is made out of

retrenchment under Section 2(oo) of I.D.Act. Relationship

of employer employee never existed between parties.

4430

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Section 25-F of I.D.Act is not applicable. There is no

cause of action for non-engagement of workman from

7-5-97. IInd party further submits that since Ist party

workman was engaged on 1-5-86 and completed more than

240 days duties in subordinate cadre for 3 years, his name

was forwarded to office, Calcutta in terms of settlement

dated 12-10-89 with the Union. The name of Ist party

workman was forwarded for empanelment and absorption

against regular post on availability of vacancy but the

Head office after consideration and screening of such

casual daily wager like the claimant found him to be

ineligible since he was underage of only 17 years on the

date of his first engagement i.e. 1-5-86. IInd party denied

all material averments of workman that the engagement of

workman was sporadic to meet extra emergent work from

time to time. There was no compulsion to attend duty as

peon. IInd party further submits that after his dis-

engagement from 7-5-97, there was no necessity to re-

engage him for want of extra emergent work in the Bank.

The non-engagement of workman cannot be said as

dismissal from service amounting to retrenchment. That

workman had not worked for 240 days at a stage in any 12

calendar months. The case of Ist party workman doesnot

constitute industrial dispute. He was never appointed

against vacant post of peon in Bank. Workman was

engaged from time to time to meet the urgent nature of

work. The claim of workman is not tenable. All other

adverse contentions of workman are denied. IInd party

prayed 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 Negative

ment of Divisional Manager, UCO

Bank in terminating the services of

Shri Rajendra Prasad S/o Laxman

Prasad w.e.f. 7-5-97 is justified?

(ii) If not, what relief the workman is

As per

entitled to?”

final order.

REASONS

Ist party workman is challenging termination of his

service for violation of Section 25-F of I.D.Act. IInd party

has raised objection that the workman was not appointed

against vacant post. He was engaged sporadically for

emergent work. The discontinuation of workman doesnot

constituted retrenchment under Section 2(oo) of I.D.Act.

The workman had not completed 240 days continuous

service in any of the 12 calendar months. Workman filed

affidavit of his evidence covering his contentions that he

was appointed on 1-5-86 on vacant post of peon and

continue to work on said post without break till his oral

discontinuation from 7-5-97. That he was not given order

in writing. He was not given opportunity of hearing to

submit explanation for termination of his service. He had

worked for more than 240 days every year. His services

are terminated in violation of Section 25-F of I.D.Act. His

juniors Harish and Ashok who were appointed in 1987-88

are retained in service in violation of Section 25(G) of

I.D.Act. That termination of his service is illegal. Legal

notice sent by him was not complied. In his cross-

examination workman says he was appointed in 1986. His

date of birth is 3-4-69. The post was not regularized. He

did not receive appointment letter. He has no document

about payment of Rs. 89/- per day or payment of bonus.

That certificate was issued by Manager about completing

more than 240 days, its copy is produced on record. There

is no specific denial that workman had not completed 240

days continuous service in any of the calendar year rather

the IInd party in his Written Statement- Para-2 has clearly

admitted that since initial engagement of workman on 1-5-

86 he had completed 240 days or more duties in

subordinate cadre within period of 3 years. His name was

forwarded to the Head Office for absorption.

The evidence of management’s witness Shri Satish

Kant Jain is on the point that there was no vacancy of

peon, there was no notification of any vacancy in the

Bank, Naya Bazar Branch, Lashkar Gwalior. Bank did not

asked workman to submit written application with

particulars of age, educational qualification etc. the name

of workman was forwarded to Head Office in terms of

settlement dated 10-10-89 with 3 Union for empanelment

and subsequent absorption against regular post on

available vacancies. Head Office found workman ineligible

as he was underage not attaining minimum 18 years in

date of Ist appointment. That the record being old, the

bank is not in possession of original record regarding

contingency expenditure vouchers. The witness states

that workman never appointed as an employee nor he was

continuously working for more than 240 days in a calendar

year. Management’s witness in his cross-examination says

from July 87 to March 90, he was working in Gwalior

branch from 1990 to 1997 he was working in Nayabazar

branch. Workman Rajendra during 1987 to March 1990 he

was working as casual labour. During that period he was

working as Branch Manager, wages were paid by voucher.

He admits that name of casual labour used to be mentioned

in the voucher, signature of labour to whom wages were

paid used to be obtained in voucher. Entry of mount paid

under voucher was maintained in the cash book. The

documents were not found from payment voucher and

cash book it can be ascertain how many days workman

worked in the Bank. Except voucher, no other record is

maintained abut casual workers. That he has stated in his

affidavit that workman has completed 240 days working in

any calendar year. He has seen those records, vouchers,

correspondence during 1987 to 1990 , 1990 to 1997. There

is correspondence that workman had not worked for 240

days. The correspondence was seen by witness in

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4431

Regional office. However the witness was unable to tell

who had written said letter. Those documents are not

produced by IInd party. That some letter was written by

workman in 1988 claiming that he had worked for more

than 240 days. If evidence of workman and management’s

witness is carefully appreciated, in the evidence of

management’s witness, he admits that workman was

working as casual labour during 1987 to March, 1990 while

he was working as Branch Manager. Evidence of

management’s witness in para-8 doesnot whisper that the

workman was not continuously working. He documents

rendered by witness for affidavit are not produced on

record. Any correspondence is not produced on record.

Though management’s witness has stated that the

name of Ist party workman was forwarded to Head Office

Calcutta in terms of settlement dated 12-10-89, even that

settlement is not produced on record. The evidence of

management’s witness is not disclosing as to what were

the conditions for regularization/ absorption as per

settlement dated 12-10-89. That Head Office had found

that the workman was underage on the date of his initial

engagement. The copy of proposal sent to the Head Office

and decision taken by Head office are not produced by

the management. Annexure R-I produced by IInd party

shows that workman was engaged in the bank on 1-1-86.

His date of birth was 3-4-69. If calculations are accepted,

the age of Ist party workman on date of his initial

appointment was 16 year 7 months and 10 days. The

workman was continuously working from 1987 to 1990 as

per evidence of management’s witness. If the workman

was underage at the time of his initial engagement, he

continued to work with the management and attained

majority after passage of time. The evidence is not adduced

on record about his working days when his proposal was

submitted to Head office for absorption/regularization,

what were the minimum working days required as per

settlement dated 12-10-89. All those documents are

expected in custody of management of IInd party. Those

documents are not produced nor evidence about what

were the working days of other junior employee who were

regularized. The documents are not produced .

The pleadings in Written statement and evidence of

management’s witness clearly shows that though name of

workman was forwarded to Head office for absorption/

regularization subject to availability of vacancies in terms

of settlement dated 12-10-89, the management tried to show

different picture that the workman was casually employed

and he is not covered under Section 2(s) of I.D.Act, denial

of benefit of settlement dated 12-10-89 and what were the

reasons for not regularizing the workman despite of the

proposal sent to the Head office. The evidence is not

adduced on above point. From evidence of management’s

witness, it appears that workman was considered eligible

for absorption and proposal was forwarded to Head Office

but the benefit of settlement dated 12-10-89 is denied to

him for the reasons given that the workman was underage.

The management has not produced as to what was the

age of workman as per the documents available with it. On

what date the workman attained majority, what were the

minimum working days required for benefit of settlement

dated 12-10-89. Withholding evidence on above points,

the management had denied benefit of settlement dated

12-10-89 to the workman and discontinued his services.

10.

Parties were given time for amicable settlement but

settlement could not be arrived between parties. learned

counsel for IInd party Mr. Bhattacharjee emphasized that

the workman had not completed 240 days continuous

service. Workman is not entitled to any relief.

11.

Learned counsel relies on ratio held in-

“Case of Himanshu Kumar Vidyarthi and others

versus State of Bihar and others reported in 1997-

Supreme Court Cases (L&S) 1079. Their Lordship

dealing with disengagement on completion of work

of casual labour held valid because daily wagers

were not appointed according to rules to any post,

they were appointed according to need of the work.”

The ratio cannot be applied to present case as there

is satisfactory evidence that workman was continuously

working from 1987 to 1997 and proposal was forwarded to

Head office for regularization of the workman. The facts of

the case are not comparable. For the same reasons, ratio

held in case of Karur Vysya Bank employees Union versus

Presiding Officer, CGIT, Bangalore and another in 1988-

LAB.I.C.1746 cannot be applied to the case at hand.

In case of Range Forest Officer versus S.T.Hadimani

reported in 2002 Supreme Court Cases (L&S) 367, their

Lordship held that completion of requisite length of

continuous service- ownus lieis on the workman that he

had worked for 240 days.

The ratio in above case supports the claim of

workman as the evidence on record shows that workman

was continuously working. The management’s witness

has admitted the workman was working with him from 1987

to 1990.

“In case of Surendranagar District Panchayat versus

Dahyabhai Amarsingh reported in 2006 Supreme

Court Cases (L&S) 38, their Lordship of the Apex

Court dealing with Section 25-F, 25-B, 2(oo) (s) and

held facts that must be proved by workman to claim

protection under Section 25-F are that their existed

relationship of employer employee, (ii) he is a

workman under Section 2(s), (iii) establishment in

which he is employed is an industry within the

meaning of the Act and (iv) he has put in not less

than one year of continuous service as defined in

Section 25-B of I.D. Act, these conditions are

cumulative. If anyone is missing then Section 25-F

will not be attracted.”

4432

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

In present case, there is no dispute that the IInd

party Bank is an industry. Workman was engaged as casual

labour is covered under Section 2(s) of I.D.Act. The ratio

held in above cited case doesnot support the argument

advanced by the learned counsel for IInd party. All the

conditions are fulfilled in the present case. The evidence

of management’s witness is not clear for which specific

work the workman was engaged and the said work was

completed. Therefore Section 2(oo) (bb) cannot be

attracted. The discontinuation of workman from work by

the Bank squarely covered under Section 2(oo) of I.D.Act.

Discontinuation of work amount to retrenchment.

Workman was not served with notice, he was not paid

retrenchment compensation, he is denied benefit of

agreement dated 12-10-89 for absorption on the ground

that he was underage. The documents are not produced.

Therefore action of the management cannot be said legal.

For above reasons, I record my finding in Point No.1 in

Negative.

12.

Point No.2- In view of my finding in Point No.1 ,

termination of service of workman is illegal, question arises

whether the workman is entitled for reinstatement with

back wages. Learned counsel for IInd party relies on ratio

held in Case of Secretary State of Karnataka and others

versus Umadevi and others reported in 2006 Supreme

Court Cases (L&S) 753. The ratio held in above cited case

cannot be applied to present case as the IInd party Bank

had forwarded proposal for regularization of the workman

to Head office. The head office did not approve the

proposal that the workman was underage. Settlement dated

12-10-89 is not produced, minimum days required for

absorption is not shown, how many days workman was

working after he attained majority etc. is not produced.

For with holding said evidence, the workman cannot be

denied benefit of agreement dated 12-10-89 with the Union.

The evidence of workman shows that he was unemployed

after termination of his service is not challenged in his

cross-examination. Despite of it, question remains how

workman is surviving all those years without source of

income is not seen form his evidence. For above reasons,

reinstatement of workman with 50 % back wages would be

justified instead of the alternate relief for compensation.

Accordingly I record my finding in Point No.2.

13.

In the result, award is passed as under :-

(1)

The action of the management of Divisional Manager,

UCO Bank in terminating the services of Shri

Rajendra Prasad S/o Laxman Prasad w.e.f. 7-5-9 is

illegal.

(2)

IInd party is directed to reinstate workman with

50% back wages.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1664-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wdks 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; tcyiqj ds iapkV (lanHkZ la- 105@1999) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12012@146@1998&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1664.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 105/

1999) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the Industrial Dispute

between the management of UCO Bank, and their workmen,

received by the Central Government on 30/05/2014.

[No. L-12012/146/1998-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/105/99

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Sunil Kumar Jakwalia,

S/o Ramachandra Jakwalia,

R/o Vill Jagothi, Tehsil Mahidpur,

Ujjain

.....Workman

Versus

The Asstt. General Manager,

UCO Bank, Zonal Office,

E-5, Arera Colony,

Bhopal (MP)

.....Management

AWARD

Passed on this 3rd day of March, 2014

As per letter dated 25-2-99/ 8-3-99 by the Government

of India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-12012/

146/98/IR(B-II). The dispute under reference relates to:

“Whether the action of the management of

Managing Director, UCO Bank in terminating the

services of Shri Sunil Kumar Jakwalia S/o

Ramchandra Jakwalia w.e.f. 12-5-97 is justified? If

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

After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of

claim at Pages 3 to 9. Case of Ist party workman is that he

was working with IInd party Bank during 1-3-89 to 5-5-89,

1-1-90 to 12-6-97 on vacant post of peon. His performance

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4433

was satisfactory. His services were illegally terminated.

That IInd party for not giving him opportunity to work

after termination of his service thereby violated section

25-H of I.D.Act. on such ground, workman prayed for his

reinstatement with consequential benefits.

IInd party filed Written Statement at Pages 79 to 83.

IInd party denied that workman was appointed against

vacant post from 1-3-89. It is denied that his performance

was satisfactory. IInd party also denied that workman was

working continuously till 12-5-97 and his services are

illegally retrenched. The contentions of workman that he

was working from 1-1-90 to 12-5-97 is denied. It is submitted

that workman was engaged purely on temporary basis ,

his employment was of casual nature. As per exigency, his

engagement was de hors recruitment rules. Workman

doesnot possess qualification for empanelment. Workman

was not terminated in violation of I.D.Act. all material

contentions of workman are denied as incorrect. It is denied

that services of workman were terminated with mala fide

intention of the management. It is denied that workman

was disengaged in violation of Articles 14, 16 of the

constitution. In additional submissions, IInd party submits

that due to low profitability and manpower deployment in

the Bank being optimal, the Govt. of India, Finance

Department and Reserve Bank of India have imposed a

complete ban on further recruitment of staff . The Bank

was forced to take policy decision to curtail staff/post.

Other panel casual workers waiting for their regularization

could not be regularized. The persons enrolling their names

in Employment Exchange are waiting in queue could not

get employment. On such grounds, IInd party prays for

rejection of claim.

Workman filed rejoinder at Pages 97 to 99 reiterating

his contentions in Statement of Claim that he was

continuously working with IInd party from 1-1-90 to

12-5-97.

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 Managing Director, UCO

Bank in terminating the services

of Shri Sunil Kumar Jakwalia S/o

Ramchandra Jakwalia w.e.f.

12-5-97 is justified?

(ii) If not, what relief the workman is

As per

entitled to?”

final orders.

REASONS

Workman is challenging termination of his service/

retrenchment for violation of provisions of I.D.Act. that

he was working as peon in the Bank from 1-3-89 to 6-7-89,

1-1-90 to 12-5-97. In Para-3 of the Written Statement, above

contentions are denied by the IInd party. Workman filed

affidavit of evidence stating that he was working in Bank

as peon during above said period. In his cross-examination

there is no specific denial that workman was not working

from 1-1-90 to 12-5-97. In his cross-examination workman

says he had worked for 85 days from 1-3-89 to 7-6-89 and

252 days from 1-1-90 to 5-3-91. That the post was not

advertised. He had not submitted written application. He

was appointed orally all 3 times. His name was not

sponsored to the workman that he had not completed 240

days continuous service during any of the years. Workman

has stated in Paras 4 & 5 of his affidavit of evidence that

he was continuously working for more than 240 days is

not shattered in his cross-examination. Witness Ramesh

Shinde supported evidence of workman, he was working

in Bank during the year 1993 to 2001. Workman was also

working during said period. He had completed 240 days

working. In his cross-examination said witness says that

he was acquainted with workman from 1993 as he was

working as clerk in UCO Bank. Workman was working

since prior to him in said branch. He claims ignorance

whether appointment letter was issued to workman. There

was no attendance register in the Bank. , service sheet

was not maintained. Workman was working under Branch

Manager. He has taken VRS in 2001. Witness was unable

to tell for how many year the workman was working . he

said that workman was working for 9-10 years as told to

him by workman. Evidence of this witness that he was

also working in the bank and as such was co-employee.

He had seen workman working in the Bank while he was in

employment. Therefore the evidence of witness No.2

cannot be rejected outright. Witness No.3 D.L.Singhai also

corroborated evidence of workman that he was working in

branch of Bank from 1-1-90 to 13-6-92. In his cross-

examination he says that he was working in said branch

from 1-1-90 to 13-6-92. Workman was in employment since

prior to him, appointment letter was not given to workman.

When information about workman was asked form him

after verifying from record, he had furnished information.

He claims ignorance whether workman was terminated

issuing order in writing.

As against evidence of witness Nos. 1 to 3,

management witness Sharma tried to support the

contentions of IInd party that workman was engaged

temporarily on casual basis as per exigencies. His

employment was de hors the recruitment rules. His initial

engagement from 1-3-89 , at that time he was of 16 years 5

months and not fulfilling the qualifications. IInd party has

not produced document about date of birth of workman.

Said point is raised only in evidence of the witness. Written

Statement of IInd party is silent on the point.

Management’s witness in his cross-examination says he

is working in Sarvana Maharaja branch from July, 2011.

Record w.r.t. working of peon remains in office. He claims

ignorance about permanent peon working in January, 1990.

4434

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

He claims ignorance whether kalidas was transferred.

Management’s witness has no personal knowledge about

working in the branch during 1990 to 1997. As the witness

was unable to tell who were working during the said period,

the evidence of workman and the corroborated witness

Nos. 2, 3 having personal knowledge whether evidence of

the management’s witness is not based on personal

information, he has deposed as per record. The documents

are not produced by the management about working of

the employee during 1989 to 1997 in the Bank.

Learned counsel for IInd party submits whether

workman completed 240 days service or not , burden lies

on workman. On said point learned counsel for IInd party

Ashok Shrivastava relies in case of Director, Fisheries

Terminal Department versus Bhikubhai Meghajibhai

Chavda repoted in 2010(2) MPLJ-30. Their Lordship dealing

with the point held burden of proof is on the employer to

prove that he has not completed 240 days service in the

requisite period to constitute continued service. The daily

wage workman deposed that he had worked for more than

240 days during the period. In present case, workman and

his witnesses have deposited that workman had

completed 240 days service during each year during 1990

to 1997. Burden of proof shifted on employer to prove that

workman had not completed 240 days service. Said burden

is not discharged by IInd party as no documents are

produced.

Learned counsel for IInd party Shri Bhattacharjee

relies on ratio held in

“Case of employer in relation to the management of

G.C of BCCL versus workmen represented by Bihar

colliery Kamgar Union reported in 2003 Supreme

Court Cases (L&S) 30. Ratio held in case by their

Lordship relates to regularization of employee,

disability of being underage at the time of

appointment held doesnot stand subsequently

removed. Hence regularization based on such

appointment cannot be upheld.”The ratio cannot

be applied to present case as no point about date of

birth at the time of appointment of workman is raised

in Written Statement, no certificate about date of

birth of workman is produced. Ratio cannot be

applied to case at hand.

In case of Union of India and others versus

Bishamber Dutt reported in 1997 Supreme Court Cases

(L&S) 478 ratio held by their Lordship that appointment

on regular basis after selection according to rules, held a

condition precedent. In present case, the terms of reference

relates to legality of termination of service and not

regularization of workman in service therefore ratio in the

case cannot be applied beneficially.

In case of Pankaj Gupta and others versus State of

Jammu and Kashmir reported in 2004(9) SRJ 103. Their

Lordship held no person illegally appointed or appointed

without following procedure prescribed under law should

not be continued in service. The terms of reference is not

for regularization of service of workman therefore ratio

cannot be applied beneficially to the present case.

In case of Karur Vysya Bank Employees Union

Bangalore versus Central Govt. Industrial Tribunal

Bangalore in 1988 LAB.I.C.1746, his Lordship of Karnataka

High Court held the services of persons utilized

intermittently to do certain work which arose only on certain

occasions- employment is of casual nature and not

connected with work of Bank. Workman was working in

the Bank from 19-8-89 to 12-5-97. The management has

not adduced evidence what kind of work he was doing all

those period therefore ratio cannot be applied to present

case.

In case of Surendranagar District Panchayat versus

Dahyabhai Amarsingh reported in 2006-Supreme Court

Cases (L&S) 38, their Lordship held that necessary

conditions to prove for invoking Section 25-F of I.D.Act

that workman worked with the employer for 240 days etc.

The evidence discussed above is cogent that

workman was continuously working with IInd party for

more than 240 days. The evidence of management’s

witness is silent about issuing termination notice or

payment of retrenchment compensation to the workman

therefore it is clear that the termination of the services of

workman is in violation of section 25-F of I.D.Act.

Therefore I record my finding in Point No.1 in Negative.

Point No. 2- In view of my finding in Point No.1,

question arises whether workman is entitled for

reinstatement with back wages? Learned counsel for IInd

party submits that workman was not appointed following

recruitment rules. He was engaged on casual basis as per

exigencies. Workman is not entitled for reinstatement. On

the point, learned counsel for Ist party Mr. Srivastava

relies on ratio held in

“Case of Munshi Singh versus Nagar Panchayat,

Joura reported in 2009(4) MPLJ-57. Full bench

decision , their Lordship held normal rule is that

once it is found that the termination order is violative

of Section 25-F then the said order is ab-initio void

and the employee is entitled to reinstatement with

full back wages. However the Court can refuse to

grant relief of reinstatement for which will depend

on the facts and circumstances of each case. There

is no hard and fast rule that the Court should grant

the relief of reinstatement with full back wages in

each and every case.”

In case of Executive Engineer K.P.C.Vidar and

another versus Zulfegar Ali reported in 2012-LAB-I.C.1987.

His Lordship of Karnataka High Court bench cited bunch

of laws, writ Petitions, in Para-24 of the judgment, his

Lordship held when retrenchment is made in violation of

Section 25 whether the reinstatement is a rule or the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4435

payment of compensation is a rule perhaps has become a

vexed question. The earliest decisions of the Supreme

Court lays down that non-compliance of section 25(F)

makes the retrenchment void and nullity. Therefore

normally reinstatement should be the relief to be granted.

However the Supreme Court in incharge Officer and

another versus Shanker Shetty refers to catena of

decisions of the Supreme Court on the point and has laid

down the law that case of non-compliance of Section 25-F

normally should result in only payment of compensation.

It is also further held by Supreme Court in Telecom Officer’s

case that the compensation to be payable to a workman

should be in accordance with provisions of Section 25(F)

and grant of any higher compensation than what is

prescribed under Section 25(F) would be bad in law. While

concluding in Para 25 of the judgment, their Lordship held

in the context of peculiair facts which are similar to the

facts stated in the Devendra singh’s case, it is just and

necessary that the order of reinstatement granted by the

Labour court is sound and proper. In cases where

compensation is granted in view of reinstatement, the same

is to be set aside and reinstatement to be ordered with

continuity of service. It is however made clear that the

workman should be reinstated only as daily wagers without

back wages till the date of award and should be paid full

wages from the date of publication of the award till

reinstatement.”

In present case, facts are little different. The

workman was not engaged following recruitment process,

his name was not sponsored through Employment

Exchange. His engagement is dehors recruitment rules

therefore reinstatement of workman would not be proper.

In my considered view, reasonable compensation would

be appropriate. Considering the length of service rendered

by workman,. Compensation Rs. 1,50,000/- would be

reasonable. Accordingly I record my finding on Point No.2.

10.

In the result, award is passed as under:-

(1)

Action of the management of Managing Director,

UCO Bank in terminating the services of Shri Sunil

Kumar Jakwalia S/o Ramchandra Jakwalia w.e.f.

12-5-97 is not legal and proper.

(2)

IInd party is directed to pay compensation Rs.

1,50,000/- to the workman within 30 days from the

date of order.

Amount as per above order shall be paid to workman

within 30 days. In case of default, amount shall carry 9 %

interest per annum from the date of award till its realization.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1665-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ

egkjk"Vªk ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (17@2009) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&12011@10@2009&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

New Delhi, the 30th May, 2014

S.O. 1665.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 17/2009)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court

Nagpur as shown in the Annexure, in the Industrial Dispute

between the management of Bank of Maharashtra and

their workmen, received by the Central Government on

30/05/2014.

[No. L-12011/10/2009-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/17/2009

Date: 17.02.2014.

Party No. 1 : The Chairman & Managing Director

Bank of Maharashtra,

Central Office, Lokmangal,

Shivaji Nagar, Pune(MS).

Versus

Party No. 2 : The General Secretary,

Union of Maharashtra Bank Employees,

542, Congress Nagar, Nagpur (MS)

AWARD

(Dated: 17th February, 2014)

In exercise of the powers conferred by clause (d) of

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

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of Bank of Maharashtra and the son of their

workman, late Bhagirathibai Bawanthade, for adjudication,

as per letter No.L-12011/10/2009-IR (B-II) dated 27.04.2009,

with the following schedule:-

“Whether the action of the management of Bank of

Maharashtra for not considering the application of

Shri Pankaj Somaji Baanthade, S/O Late Bhagirathibai

Bawanthade, part time sub ordinate employee for

providing employment on compassionate grounds

is justified, legal and proper? What relief the

concerned applicant is entitled to?”

On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

4436

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

statement and accordingly, the union, “Union of

Maharashtra Bank Employees ( “the union” in short) filed

the statement of claim on behalf of Shri Pankaj Somaji

Bawanthade ( “ the applicant” in short) and the

management of Bank of Maharashtra (“Party No. 1” in

short) filed their written statement.

The case of the applicant as presented by the union

in the statement of claim is that the party No.1 is a

Nationalised Bank and is a State within the meaning of

Article 12 of the Constitution of India and is an industry

and it (union) is a registered trade union and the applicant

is the son of late Bhagirathi Bai Bawanthade, a permanent

part-time sub ordinate staff working at Gondia branch of

party No.1 and mother of the applicant, Smt. Bawanthade

died in harness on 05.12.2000, after prolonged illness and

till the date of her death, she had already put in 28 years of

service with the Bank and late Bhagirathi Bai was a widow

and she had no issue of her own, so, after the death of her

husband, she adopted the applicant as her son on

21.08.1993, as per the adoption deed and the applicant is

the adopted son of the deceased workman and the name

of the applicant was entered as the nominee of late

Bhagirathi Bai in the Bank’s record, for pension, provident

fund and gratuity etc. and after the death of Bhagirathi Bai

on 05.12.2000, the head office of the Bank took more than

four years to settle the claim of death benefits and in the

year 2004 only, Bank finally effected payment on the above

counts to the applicant and subsequently, family pension

was also released in favour of the applicant and the

applicant is the only dependant member of the family of

the deceased employee, as per the definition of “family”

used by the Bank for all purposes.

The further case of the applicant as presented by

the union is that party No.1 formulated a scheme for

appointment of dependants of the employees, who die in

harness and the said scheme was circulated by the party

No.1 vide circular dated 27.02.1997 and the said scheme

was in force till 31.07.2004 and after 31.07.2004, the party

No.1 made certain changes in the scheme and on the date

of death of the mother of the applicant, the scheme for

appointment on compassionate ground was very much in

force and was applicable to the case of the applicant and

the applicant on 02.06.2001 and subsequently on

01.08.2001 applied to the party No.1 for consideration of

his application for the post of clerk, having the required

qualification and other norms for the said post and the

applicant submitted his applications at Gondia branch of

the Bank, where his mother was working and on 01.11.2003,

the applicant again made an application in the specific

proforma and his application was duly forwarded by the

Branch Manager, Gondia to Regional Head of the Bank for

doing the needful, but party No.1 surprisingly vide its

communication dated 16.05.2006 intimated the applicant

that his claim for appointment in the Bank was rejected

and such rejection was on incorrect and flimsy grounds

that the application was received by the Bank after

completion of one year of the death of the concerned

employee and the reasoning given in the said letter was

factually incorrect and not germane and as the Scheme in

question is for giving social justice, the claim of the

applicant ought not have been rejected for the reason

stated for it and rejection of the claim of the applicant was

due to hostile discrimination adopted by the party No.1

and was in total violation of the policy framed by the party

No.1 itself.

The Union has prayed for a direction to party No.1

to consider the application of the applicant and to give

him appointment as a clerk on compassionate ground.

The party No.1 in the written statement has admitted

almost all the pleadings made in the statement of claim.

The specific pleading of the party No.1 is that according

to the scheme, the application for compassionate

appointment was required to be submitted by the applicant

within the stipulated period of 12 months from the date of

death of the deceased employee, but the applicant for the

first time submitted the application on 01.11.2003 for

consideration, which was almost after 3 years from the

date of death of his mother, Bhagirathi Bai and in view of

the inordinate delay in submission of the application, it

conveyed its inability to provide employment on

compassionate ground to the applicant, vide its letter

dated 16.05.2006 and it is well settled by the Hon’ble Apex

Court that appointment on compassionate ground cannot

be claimed as a matter of right and as the applicant did not

follow the prescribed norms, his application was rejected

and the applicant is not entitled to any relief.

Besides placing reliance on documentary evidence,

both the parties have led evidence in support of their

respective claim.

The union has examined two witnesses including

the applicant to prove the case.

In his examination- in –chief, which is on affidavit,

the applicant has reiterated the facts as mentioned in the

statement of claim. However, the workman in his cross

examination, the applicant has stated that his mother died

on 05.12.2000 and at that time, his age was 18 years and he

cannot say the date on which, he filed the application for

compassionate appointment and Ext. W-V is the copy of

the application filed by him on 23.12.2004 and in Ext. W-V,

he had mentioned that he had filed the application for

compassionate appointment on 01.11.2003 and in Ext. W-

V, he had not mentioned anything about filing of any

application for compassionate appointment prior to

01.11.2003.

The other witness for the union is Shri Ramprasad

Gupta, the deputy General Secretary of the union. This

witness has also reiterated the facts mentioned in the

statement of claim, in his examination- in-chief on affidavit.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4437

In his cross examination, this witness has stated

that as per the scheme for compassionate appointment,

Ext. W-I, it is necessary for the applicant to file the

application for compassionate appointment within one

year from the date of death of the employee and in Ext. W-

I, special provision has been given for compassionate

appointment. This witness has also admitted that Ext W-V

is the application submitted by the applicant on 23.12.2004

for compassionate appointment and in Ext. W-V, the

workman has mentioned that his mother died on 05.12.2000.

This witness has denied the suggestion given in the cross-

examination that the Bank had sent the prescribed form

for compassionate appointment to the applicant vide letter

No. 511 dated 03.07.2001.

The party No.1 has examined one Mahindra Kumar

Kabra, the Chief Manager of the Bank as the only witness.

The examination-in-chief of this witness on affidavit is in

the same line of the stand taken by the party No.1 in the

written statement.

In his cross-examination, the witness for the party

no.1 has stated that in paragraph 6 of Ext. M-I, it has been

mentioned by the Bank that “Regional Office, Nagpur

supplied the Bank set of application from in prescribed

format vide its letter no. AX7/NR/2001/ST/511 dated

03.07.2001 and advised the Branch Manager, Gondia

branch to get the same filled in by the applicant and

resubmit the same in the prescribed format” and he cannot

say if the instructions given vide letter No.511 dated

03.07.2001 as mentioned above was complied with by

Gondia Branch or not and no document has been filed by

the management to show as to what step was taken by the

Gondia Branch on that letter.

At the time of argument, it was submitted by the

learned advocate for the applicant that though there is no

dispute that employment on compassionate ground cannot

be claimed as a matter of right, still then, the party no.1

formulated the scheme for appointment of dependents of

the employees, who die in harness and the scheme is for

giving social justice and the applicant comes from very

poor and socially backward family and he is eligible and

entitled for such employment and it is clear from the

materials on record that the applicant submitted the

application for compassionate appointment within the

stipulated time and as such, rejection of his application

without consideration on the ground that the application

was submitted after the prescribed time is patently wrong,

illegal unjustified, improper and without any basis and as

such, the applicant is entitled for consideration of his

application for compassionate appointment and for his

appointment as a clerk on compassionate ground.

Per contra, it was submitted by the learned advocate

for the party no.1 that party no.1 formulated the scheme

for providing compassionate appointment to dependents

of the employees, who die in harness and amongst various

conditions, one condition for such appointment is that,

“the application should be received by the bank within

one year from the date of death of an employee” and in

this case, the applicant did not submit the application

within the stipulated period of 12 months from the date of

death of the employee, deceased Bhargirathi Bai, his

adoptee mother, who died on 05.12.2000 and the applicant

was supplied with a set of blank application form in the

prescribed format by the Bank vide letter dated 03.07.2001

and he was advised to resubmit the same after duly filled

in and the applicant failed to submit the said application

form in prescribed format till 01.11.2003 and after a lapse of

about three years, on 01.11.2003, the applicant submitted

the application in the prescribed format, seeking

compassionate appointment and the applicant himself has

admitted the said fact vide his letter dated 23.12.2004 and

the contention of the applicant that he had submitted his

application for appointment on 02.06.2001 and 01.08.2001

is misconceived and as the application for compassionate

appointment in the prescribed format was filed by the

applicant after the prescribed limit, his application was

not considered by party no.1 rightly and there is no

illegality in the action of party no.1 and the applicant is

not entitled to any relief.

It was also submitted by the learned advocate for

the party no.1 that the Hon’ble Apex Court and various

Hon’ble High Courts in number of decisions have held

that compassionate appointment cannot be claimed as a

matter of right.

In support of such contention, the learned advocate

for the party no.1 placed reliance on the decisions reported

in 2011 (1) LLN 540 (M. Pathak Vs. State of UP), 2009 (3)

LLN-715 (M.Khan Vs. Eastern Coal Fields Ltd.), 2009 (1)

LLN-611 (S.Kumar Vs. U.O.I), 2009 (3) LLN-235 (M.Raju

Vs. U.O.I), 2009 (3) LLN – 81 (SC) (S.K. Dube Vs. State of

UP) and 2007 (115) FLR-307 (Virendra Singh Vs. M.C.

Delhi).

At the outset, it is to be mentioned that it is well

settled by the Hon’ble Apex Court in a string of decisions

that “Appointment on compassionate grounds is not a

source of recruitment. On the other hand it is an exception

to the general rule that recruitment to public services

should be on the basis of merit, by an open invitation

providing equal opportunity to all eligible persons to

participate in the selection process. The dependents of

employees, who die in harness, do not have any special

claim or right to employment, except by way of the

concession that may be extended by the employer under

the rules or by a separate scheme, to enable the family of

the deceased to get over the sudden financial crisis. The

claim for compassionate appointment is therefore traceable

only to the scheme framed by the employer for such

employment and there is no right whatsoever outside such

scheme.”

4438

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

However, it is necessary to mention here that in the

case at hand, the issue for consideration is as to whether

the non-consideration of the application submitted by the

applicant for compassionate appointment on the ground

of submission of the same beyond the period prescribed

for the same. It is not a case of rejection of the application

of the applicant after consideration of the same on merit

and denial of compassionate appointment. Hence, the

issue involved is to be considered and decided on the

materials on record.

10.

After perusal of the pleadings of the parties and the

evidence on record and taking into consideration the

submission made, it is found that almost all the facts are

admitted in this case by the parties. The only dispute is

regarding the date on which the application for

compassionate appointment was filed by the applicant.

According to the applicant, he submitted the application

in time and he submitted his first application on 02.06.2001

and he also submitted further applications on 01.11.2003.

On the other hand, it is the case of party no.1 that the

applicant filed the application for compassionate

appointment on 01.11.2003, which was about three years

after the death of the concerned employee, though as per

the scheme such application was required to be filed within

one year to the death of the employee, so, the said

application was not considered by it.

It is to be mentioned here that the six documents

filed by the applicant were admitted into evidence on behalf

of the applicant without formal proof and marked as Ext.

W-I to W-VI, on admission of the documents by party

no.1. Likewise, the five documents filed by party no.1

were admitted into evidence on behalf of the party no.1

without formal proof and marked as Exts. M-1 to M-V, on

admission of the documents by the applicant.

11.

Ext. W-I shows that it is the copy of the scheme

made by the party no.1 for appointment on compassionate

grounds. According to the said scheme, the application

for compassionate appointment has to be made within

one year of the death of the concerned employee.

However, it is to be mentioned here that in the entire

scheme, nothing has been mentioned that the application

for compassionate appointment has to be made in the

prescribe format. The format of application was also not

prescribed alongwith the scheme. No document has also

been filed by party no.1 to show that by any circular or

order of the competent authority, it was directed to submit

the application in the prescribed format only.

11.

Ext. W-II is the copy of the application submitted by

the applicant for compassionate appointment on 02.06.2001

alongwith the required documents. As already stated, the

document, Ext. W-II has been admitted into evidence on

the admission of party no.1. Ext. W-II clearly shows that

the same was filed by the applicant within one year of the

death of his mother, Bhagairathi bai.

Ext. W-IV shows that the same is the copy of the

letter addressed by the Chief Manager of the Bank to the

Branch Manager, Gondia Branch on 03.07.2001. In Ext. W-

IV, it has been mentioned that, “REG: Request for

employment on compassionate ground. PTS: Late

Bhagirathi S. Bawantade.

This refers to the captioned papers submitted by

you in respect of Pankaj S. Bawanthade seeking

employment on compassionate grounds in place of his

late mother Bhagirathi bai S. Bawanthade, PTS.

We find from the same that the application is not

submitted in the prescribed format. We are enclosing

herewith the blank set of such forms. The applications be

re-submitted in the prescribed format. The papers are

therefore returned herewith.”

The said documents clearly show that the applicant

had submitted the application for employment on

compassionate ground within the prescribed time limit.

However, the Chief Manager wanted the application in a

particular format and asked the Branch manager of Gondia

branch to fill up the same and to re-submit the same. There

is nothing on record to show that the prescribed set of

form was sent to the applicant vide letter dated 03.07.2001

as claimed by party no.1. There is also nothing on record

to show as to when action was taken by the Branch

Manager, Gondia branch on the letter dated 03.07.2001.

It is clear from the evidence on record that the

applicant had submitted the application for compassionate

appointment within the prescribed time limit as given in

the scheme for employment on compassionate ground.

So, the action of party no.1 in not considering the

application of the applicant was unjust and improper.

Hence, it is ordered:-

ORDER

The action of the management of Bank of

Maharashtra for not considering the application of Shri

Pankaj Somaji Baanthade, S/O Late Bhagirathibai

Bawanthade, part time sub ordinate employee for

providing employment on compassionate grounds is

unjustified, illegal and improper. The party No.1 is directed

to consider the application submitted by the applicant,

Shri Pankaj Somaji Bawanthade for employment on

compassionate grounds in accordance with the provisions

of the relevant Scheme on merit.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1666-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ

cjksnk 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 (5@2000) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 izkIr gqvk FkkA

¹la- ,y&12012@21@1999&vkbZvkj (ch&II)º

jfo oqQekj] vuqHkkx vf/dkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4439

New Delhi, the 30th May, 2014

S.O.

1666.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 5/2000)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court

Jabalpur as shown in the Annexure, in the Industrial Dispute

between the management of Bank of Baroda and their

workmen, received by the Central Government on

30/05/2014.

[No. L-12012/21/99-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/5/2000

PRESIDING OFFICER : SHRI R.B.PATLE

General Secretary,

Dainik Vetan Bhogi Bank Karmchari Sangathan,

Hardev Niwas, 9,

Sanver Road, Ujjain

.....Workman/Union

Versus

Managing Director,

Bank of Baroda,

Head Office, Mandwi

Gujrat, Baroda

.....Management

AWARD

Passed on this 12th day of February 2014

As per letter dated 23-12-99 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-12012/

21//99/IR(B-II). The dispute under reference relates to:

“ Whether the action of the management of Bank of

Baroda in denying regularization and terminating

the services of Shri Bhagirath Verma w.e.f. 7-12-97 is

legal and justified? If not, what relief the concerned

workman is entitled for?”

After receiving reference, notices were issued to

the parties. Ist party workman filed Statement of claim at

Page 3/1 to 3/4. Case of Ist party workman is that he was

working as peon with IInd party Bank from 30-4-91. He

was doing work of cleaning, dusting. His service record

was excellent. He was working under different Branch

Managers. He was paid wages obtaining signature on

vouchers. Though he was working in the branch, his

signatures were obtained in different names on vouchers,.

That he completed 240 days continuous service. His

services were terminated without notice from 7-12-97. He

was paid retrenchment compensation. Other persons were

engaged. He was not given opportunity to work. His

services are terminated in violation of Section 25-F of

I.D.Act. Workman prays for his reinstatement with back

wages.

IInd party filed Written Statement at Page 12/1 to

12/10. Preliminary objection is raised that General Secretary

of Dainik Vetan Bhogi Bank Karamchari Sangathan is not

competent to represent workman. Said Union is not

existing. The employees of the IInd party Bank are not its

members. The Managing Director has not terminated

services of the Ist party workman. He is not necessary

party to the dispute. That Ist party workman was not

appointed by the Bank. There was no question of his

termination. That Ist party workman is not covered under

Section 2(s) of I.D.Act. He was not appointed following

the recruitment rules. Workman casually engaged is not

covered under Section 25(B) of I.D.Act. that workman was

not engaged through Employment Exchange. He had

completed 240 days continuous service. His services were

temporarily engaged as per exigencies. He is not entitled

for reinstatement. IInd party denies violation of Section

25-F of I.D.Act. It is prayed that claim of Ist party workman

be rejected.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the

In Affirmative

management of Bank of

Baroda in denying regul-

arization and terminating

the services of Shri Bhagirath

Verma w.e.f. 7-12-97 is justified?

(ii) If not, what relief the workman

Workman is not

is entitled to?”

entitled to relief

prayed.

REASONS

Though termination of Ist party workman is

challenged for violation of Section 25-F, G, H of I.D.Act,

workman claims that he was working as peon from 30-4-91

to 7-12-97. He completed 240 days continuous service every

year. His services were terminated without issuing notice,

no retrenchment compensation was paid to him. Workman

filed affidavit of his evidence covering most of above

contentions. However the workman failed to make available

for his cross-examination. The evidence of workman is

closed on 19-4-2001. Workman has not made available for

his cross-examination. His evidence cannot be accepted.

Management has also not adduced evidence,. Thus both

parties have not participated in reference proceeding

effectively. Workman has failed to substantiate his

contentions that he was continuously working during the

relevant period. Violation of Section 25-F of I.D.Act is not

4440

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

supported by legal evidence. Therefore I record my finding

in Point No.1 in Affirmative.

In the result, award is passed as under:-

(1)

Action of the management of Bank of Baroda in

denying regularization and terminating the services

of Shri Bhagirath Verma w.e.f. 7-12-97 is legal.

(2)

Workman is not entitled to relief prayed.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1667-—vkS|ksfxd fookn vf/fu;e] (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 40@2000) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&22012@361@1999&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1667.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 40/2000)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the industrial dispute

between the management of SECL and their workmen,

received by the Central Government on 30/05/2014.

[No. L-22012/361/1999-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/40/2000

PRESIDING OFFICER : SHRI R.B.PATLE

Sheo Prasad Kewat,

Ex-General Mazdoor,

Vill Bakoh, PO O.P.M,

Amlai, Distt. Shahdol

.....Workman

Versus

Sub Area Manager,

Dhanpuri U.G.Mine of SECL,

PO Dhanpuri,

Distt. Shahdol (MP)

.....Management

AWARD

Passed on this 15th day of May 2014

As per letter dated 31-1-00 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-22012/

361/99/IR(CM-II). The dispute under reference relates to:

“Whether the action of the Sub Area Manager,

Dhanpuri U.G.Mine of SECL, PO Dhanpuri Distt.

Shahdol (MP) in terminating/dismissing the services

of Shri Sheo Prasad Kewat S/o Shri Ramcharan

Kewat, Ex-General Mazdoor of Dhanuri U.G.Mines

w.e.f. 16-4-92 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 failed to submit statement

of claim. He is proceeded exparte on 6-8-2010.

IInd party filed Written Statement. It is submitted by

IInd party that workman Sheo Prasad Kewat was appointed

as General Mazdoor on 27-11-84. He was posted at

Dhanpuri Underground mine. He was absent from duty

from 21-10-91 to 24-11-92 without permission. The

attendance of workman was 115 days in 1989, 111 days in

1990, 75 days in 1991. Chargesheet was isused to workman

on 25-2-92. Reply given by workman was found

unsatisfactory. Shri S.P.Jaiswal was appointed as Enquiry

Officer. Mr. B.K.Bartharey, Sr. Under Manager was

appointed as Management Representative. Enquiry was

fixed on various dates. Workman remained absent. Enquiry

was proceeded exparte. Management produced witness

of Shri Awadh Prasad Sharma, Attendance clerk, Dhanpuri

mine. His evidence was on the point that workman did not

attend duties from 21-10-91 till 13-3-92. Form B register

was produced for the period 1989 to 1992. Workman had

tendered apology in earlier chargesheet issued to him.

that workman was habitual absentee. The charges were

proved. Enquiry Officer submitted his report. The

Disciplinary Authority agreed with findings of Enquiry

Officer. Showcause notice was issued to the workman.

Punishment of dismissal was imposed on workman on

18-4-92. Punishment is legal.

Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:-

(i)

Whether the action of the Sub

In Affirmative

Area Manager, Dhanpuri U.G.

Mine of SECL, PO Dhanpuri

Distt. Shahdol (MP) in ter-

minating/dismissing the ser-

vices of Shri Sheo Prasad Kewat

S/o Shri Ramcharan Kewat,

Ex-General Mazdoor of Dhanpuri

U.G.Mines w.e.f. 16-4-92 is legal

and justified?

(ii) If not, what relief the workman

Workman is not

is entitled to?”

entitled to relief

as prayed.

REASONS

The terms of reference relates to legality of dismissal

of workman for charges of habitual absenteeism. Workman

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4441

failed to file Statement of Claim. IInd party has pleaded

that chargesheet was issued to workman and after findings

of Enquiry Officer, punishment of dismissal was imposed

on workman for habitual absence. Management filed

affidavit of Shri S.K.Banerjee, Dy.General Manager,

Sohagpur Area supporting contentions raised in the

Written Statement filed by management. His evidence

remained unchallenged. The copies of the chargesheet

and record of enquiry are produced. I donot find reason

to disbelieve evidence of management’s witnesses. As

workman has failed to file statement of claim or lead any

evidence, I record my finding in Point No.1 in Affirmative.

In the result, award is passed as under:-

(1)

The action of the Sub Area Manager, Dhanpuri

U.G.Mine of SECL, PO Dhanpuri Distt. Shahdol (MP)

in terminating/dismissing the services of Shri Sheo

Prasad Kewat S/o Shri Ramcharan Kewat, Ex-General

Mazdoor of Dhanuri U.G.Mines w.e.f. 16-4-92 is

proper.

(2)

Workman is not entitled to any relief as prayed.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1668-—vkS|ksfxd fookn vf/fu;e] (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 30@94) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&22012@436@,iQ@1993&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1668.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 30/94)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the industrial dispute

between the management of FCI and their workmen,

received by the Central Government on 30/05/2014.

[No. L-22012/436/F/1993-IR (C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/30/94

PRESIDING OFFICER : SHRI R.B. PATLE

Secretary,

FCI Employees Association,

Branch Bilaspur (MP)

.....Workman/Union

Versus

Sr. Regional Manager,

Food Corporation of India,

Chetak Building,

Habibganj, Bhopal

.....Management

AWARD

Passed on this 22nd day of April, 2014

As per letter dated 25-3-94 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D.Act, 1947 as per Notification No.L-22012/

436/F/93-IR(C-II). The dispute under reference relates to:

“Whether the action of the management of Food

Corporation of India, Bhopal, in not giving

promotion to Shri M.K.Tandon, Asstt. Gr. II

(Ministerial) to Asstt. Gr.I w.e.f. 18-12-88 when his

juniors S/Shri S.M.Gaekwad, B.C.Kureshia,

S.K.Kaushal and S.N.Khare were promoted is

justified? If not, to what relief Shri M.K.Tandon is

entitled to?”

After receiving reference, notices were issued to

the parties. Ist party Employees Association submitted

statement of claim at page 2/1 to 2/20. Case of Union is

that Shri Madhup Kumar Tandon was initially appointed

as an Assistant in establishment of Food Corporation of

India on 16-7-69 as Grde III (Ministerial) that in 1972, certain

officials were substantively appointed as godown cadre

as clerk had applied for their re-designation and re-

appointment against vacant post of Asstt. Grade III. It

was within the authority of the corporation to accept such

options for transfer from one cadre to another cadre, the

options given by the employees Shri S.M.Gaekwad,

S.C.Kureshia, S.K.Kaushal. S.N.Khare was accepted. It is

submitted that those officials were working in godown

cadre were re-designated/ reappointed for all practical

purposes in the ministerial cadre against post of A.G.III

(Ministerial). That those employees were re-designated in

ministerial cadre subject to terms and conditions mentioned

in the order. It is clear from conditions in the order that

they will have no lien on their post of godown clerk, they

will be ranked below Asstt. Gr.III in the ministerial cadre,

the option exercised by them for re-designation as Asstt.

Grade III/Typist in the ministerial cadre are final and they

will not be allowed to withdrawn their options. As such

those employees were not entitled to claim seniority.That

sub Regulation 7 of Regulation 16 of FCI provide the

principle for reckoning relevant seniority of an employee

transferred from one unit to another, stipulates and

contemplates in clear and unambiguous terms that an

employee transferred form one unit of seniority to another

4442

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

will be ranked as junior most in the particular category on

the date he joins the new unit.FCI was fully award of above

provision. Only because of this reason, the terms and

conditions were imposed in the order. The applicant further

submits that the transfer of official from godown cadre to

ministerial cadre was not at all considered in terms of

Regulation 16(7). That the applicant employee was senior

to those employees. He was promoted to next higher grade

in 1976. Above said employees being junior to the

applicant were promoted to Grade-II in 1979. It is reiterated

that above said employees were transferred from godown

to ministerial cadre where they were junior most. The

Seniority list circulated on 6-5-87 shows inter seniority of

A.G.II . The applicant was placed at Sl. No. 223. At instance

of Union dispute was referred by Central Govt. R/4/83 was

decided in this Tribunal though question of Regulation

16.7 was raised or considered, the award was passed in

favour of the Union. Seniority form date of appointment

of those employee was allowed. It is further submitted

that the seniority list was published on 27-5-88. Name of

applicant was at Sl. No. 225-B. the names of those above

said employees were at Sl. No. 303-A to 303-E respectively.

That above said employees were promoted as Asstt. Grade

II in December 1988. Employee was not promoted though

he was senior to above said employees, he was superseded

outlooking his seniority. The applicant had submitted

various representations. His representations were not sent

to Zonal Manager but Senior Regional Manager himself

decided the petition by sending a reply not accepting claim

of the applicant. Union on such grounds, prays that award

be passed in favour of the Union and application be

considered for giving promotion from the date of promotion

of above said employees junior to him with consequential

benefits.

IInd party filed Written Statement at Page 6/1 to 6/5.

Claim of Union is opposed. The contents of Para 1 to 4 of

statement of claim are not disputed. IInd party denies that

at the time of exercising option to change of cadre at the

time were followed and any irregularities were not

committed in making appointment. All the 4 officials were

initially appointed at AG.III(D) and then transferred to

Ministerial cadre is not correct. That Shri A.M.Gaikwad

was appointed on 21-11-68, B.C.Kudesia on 23-11-68, Shri

S.N.Khare on 17-12-68 and shri S.K.Kaushal on 28-1-69

without assigning any specific cadre. Their services were

subsequently regularized as per order dated 29-4-70.

Subsequently they were transferred to Ministerial cadre

w.e.f. 25-1-1972 after exercising transfer to that cadre. They

were shown junior to Shri M.K.Tandon in the seniority

list. Their services were taken from date of transfer in the

Ministerial cadre on the basis of regularization on post of

A.G.III(D). That Shri Tandon was shown senior taking into

his initial date of appointment 1-7-69. That this Tribunal

had passed award on 6-1-86 in R/4/83. His seniority and

other benefits in respect of 491 employees were decided

in favour of the Association. Said award mentions that

parties are employee in relation to management of FCI and

list of 515 employees includes name of applicant at Sl. No.

203. The award finally concluded that the management of

FCI giving seniority to the workman mentioned in the

annexures from actual date of appointment and not from

the date shown against their name. It is submitted that the

award was challenged by FCI in High Court, W.P.No. 1445/

86, the award was confirmed. FCI also challenged judgment

in W.P by Hon’ble High Court. Award was confirmed by

the Hon’ble Supreme Court. It is reiterated that seniority

was given to above said employee by issuing

corrigendum. Those employees are senior to the applicant

therefore applicant is not senior. He is not illegally

superseded. On such contentions, 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 mana- In Affirmative

gement of Food Corporation of

India, Bhopal, in not giving

ipromotin to Shri M.K.Tandon,

Asstt. Gr.II (Ministerial) to

Asstt. Gr.I w.e.f. 18-12-88 when

his juniors S/Shri S.M.Gaekwad,

B.C.Kureshia, S.K.Kaushal and

S.N.Khare were promoted is

justified?

(ii) If not, what relief the workman is Relief prayed by

entitled to?”

Union is rejected.

REASONS

Both parties have not adduced oral evidence.

Documents are produced. It appears that the parties are

not in dispute about the documents produced on record.

Union has produced documents. Copy of award in R/4/83

Annexure P-4 holds the field. The award is passed in favour

of the Association. Para-20 of the award is Presiding

Observed for the reasons discussed above, I hold that the

action of the management of FCI of India, MP, Bhopal in

giving seniority to the workers whose names are

mentioned in the Annexure from the duties shown against

them and not from the actual of appointment is not justified.

Therefore they are entitled to the seniority form the actual

date of their initial appointments. The reference is

accordingly answered. In view of above award, the

employees were given seniority from the date of initial

appointment and not from the date shown against their

names. The award is binding on all employees. The

contentions of IInd party that award has been confirmed

by the Hon’ble High Court and Supreme Court is not

disputed by filing rejoinder by Ist party union. When award

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4443

passed in R/4/83 has received finality, it is binding on the

management. Above said employee who were given

promotions of Asstt. Grade-I in the year 1988 on the basis

of initial appointment 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)

The action of the management of Food Corporation

of India, Bhopal, in not giving ipromotin to Shri

M.K.Tandon, Asstt. Gr.II (Ministerial) to Asstt. Gr.I

w.e.f. 18-12-88 when his juniors S/Shri S.M.Gaekwad,

B.C.Kureshia, S.K.Kaushal and S.N.Khare were

promoted is proper.

(2)

Ist party Union is not entitled to relief prayed by it.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1669-—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 264@99) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&22012@495@1998&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1669.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 264/

99) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the industrial dispute

between the management of SECL and their workmen,

received by the Central Government on 30/05/2014.

[No. L-22012/495/1998-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/264/99

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Bhondol, S/o Shri Chaitu,

1/10, Chatterjee Side,

PO Godripara,

Distt. Surguja (MP)

.....Workman

Versus

Sub Area Manager,

Kurasia Group of SECL,

PO Kurasia Collieiry,

Distt. Surguja

.....Management

AWARD

Passed on this 15th day of May, 2014

As per letter dated 26-28/7/99 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/

495/98/IR(CM-II). The dispute under reference relates to:

“Whether the action of the Sub Area Manager, Kursia

of SECL, Chirimiri Area, Distt. Surguja (MP) in

dismissing Shri Bhondol S/o Chaitu, workman

Kurasia colliery w.e.f. 13-8-92 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 submitted statement of claim at

Page 2/1 to 2/2. Case of workman is that chargesheet was

issued to him by IInd party. That any proceeding before

ALC, Shahdol management had submitted reply. The order

of dismissal from service was issued instead of continuing

workman in service. That the workman had submitted

medical certificate about his illness dated 13-10-92, 29-8-92.

Management considered those documents were forged

and not accepted. The order of dismissal was not accepted

on 20-3-92. It is submitted that workman was not given

any intimation, no opportunity of hearing was given to

him. The record about intimations given to workman could

be verified by the Tribunal. That workman is not allowed

to join duties. On such ground, workman is praying for

appropriate directions to the management.

IInd party filed Written Statement at Page 7/1 to 7/5.

Relief prayed by workman is opposed. IInd party submits

that reference is extremely belated. Service of workman

was terminated from 13-8-92. Dispute is raised in 1998.

Such belated reference is not tenable. IInd party further

submits that workman was regular absentee. He remained

absent from duty without intimation or sanctioned leave.

He was employed as General Mazdoor. The details of his

working days are shown in 1988- nil, 1989-164 days, 1990-

110 days, 1991 & 1992- nil. Charge sheet was issued to

workman on 21-3-92 as per clause 26.30 of standing order

pertaining to misconduct. No reply was received from

workman. Management decided to conduct Departmental

Enquiry. Shri G.P.Tiwari was appointed as Enquiry officer.

Shri Raghav Singh was appointed as Management

Representative. Enquiry was fixed on 1-4-92. Memorandum

was issued to workman. Workman remained absent. Further

memorandum was issued to him. Enquiry was fixed on

7-4-92 & 22-4-92. Again enquiry was fixed on 26-5-92. On

same date workman submitted application admitting the

charges leveled against him and he may be permitted to

resume his duties. Workman had given statement before

Enquiry officer admitting the charges. As such charges

against workman are proved. After report submitted by

Enquiry Officer, competent authority was satisfied that

enquiry was conducted as per rules following principles

4444

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

of natural justice. Workman was granted opportunity for

his defence. The charges were proved against workman.

Competent Authority decided to terminate his service. The

services were terminated vide order dated 13-8-92. IInd

party further pleaded if Tribunal finds enquiry vitiated,

management be permitted to prove misconduct before

Tribunal. IInd party has reiterated that charge sheet for

unauthorised absence was issued to workman and after

enquiry, the charges were found proved. The termination

of Ist party workman for habitual absence is proper. IInd

party prayed 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 Sub

In Affirmative

Area Manager, Kursia of SECL,

Chirimiri Area, Distt. Surguja

(MP) in dismissing Shri Bhondol

S/o Chaitu, workman Kurasia

Colliery w.e.f. 13-8-92 is legal

and justified?

(ii) If not, what relief the workman

Relief prayed is

is entitled to?”

rejected.

REASONS

Before dealing with evidence, I mention that the

enquiry conducted against workman was found proper

and legal as per order dated 22-3-13. Therefore contentions

of workman that he was not given opportunity for his

defence and needs no consideration. Workman as well as

management did not adduce any evidence on other issues

as to (1) whether charges are proved from evidence in

Enquiry Proceedings, (2) Whether punishment of dismissal

is proper & (3) to what relief workman is entitled? The

documents of enquiry proceedings are produced by IInd

party management. Exhibit W-1 is copy of report submitted

by Conciliation Officer to the Government, Exhibit W-2 is

reply submitted before ALC, Shahdol. Said documents

finds reference that in application dated 26-7-94 workman

had stated that he is not able to work. In Application dated

28-12-93 stated that he is not able to work. That he had

authorized his brother on the ground that he is not able to

defend the case due to ill health. Exhibit W-3 is charge

sheet issued to workman as per standing order Clause

26.30 related to absence from duty without sanctioned

leave or sufficient cause beyond sanctioned leave. Exhibit

W-4 is finding of Enquiry Officer that charges were proved.

W-5 is that Enquiry Officer has explained charges and

workman denied charges against him. Exhibit W-6 is copy

of findings recorded by the Enquiry Officer. Exhibit W-8 is

notice issued by ALC, Shahdol. Exhibit W-9 is reply

submitted before ALC. W-10 is notice given by ALC to

IInd party. Exhibit W-13 is application submitted by

workman to ALC claiming employment regarding payment

of wages. W-15 is order of dismissal, W-17 is copy of

order of reference. All those documents are not related to

the charges alleged against workman. The application

dated 26-5-92 submitted by workman clearly spells that he

had committed mistake, he had committed mistake he had

admitted charge and beg to be excused. Enquiry officer

recorded statement of workman. Workman stated that his

wife was seriously ill therefore he could not give intimation

about his absence. He assured management not to repeat

such misconduct in future. Copies of the attendance

remained absent in the reference proceeding. Absolutely

no evidence is adduced by workman. Considering above

aspects, I donot find reason to interfere with findings of

Enquiry Officer about the punishment of dismissal

imposed against him. For above reasons, I record my

finding in Point No.1 in Affirmative.

In the result, award is passed as under:-

(1)

The action of the Sub Area Manager, Kursia of SECL,

Chirimiri Area, Distt. Surguja (MP) in dismissing Shri

Bhondol S/o Chaitu, workman Kurasia colliery w.e.f.

13-8-92 is proper and legal.

(2)

Workman is not entitled to relief prayed by him.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1670-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;w-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 61@99) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&22012@44@1998&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1670.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 61/99)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the industrial dispute

between the management of WCL and their workmen,

received by the Central Government on 30/05/2014.

[No. L-22012/44/1998-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

No. CGIT/LC/R/61/99

PRESIDING OFFICER : SHRI R.B. PATLE

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4445

General Secretary,

Pench Kanhan Khadan Karmchari Sangh,

Post Damua,

Distt. Chhindwara (MP)

.....Workman/Union

Versus

General Manager,

Pench Area,

Western Coalfields Area,

Post Parasia,

Distt. Chhindwara (MP)

.....Management

AWARD

Passed on this 15th day of April, 2014

As per letter dated 22-1-98 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section -10 of I.D. Act, 1947 as per Notification No. L-22012/

44/98/IR(CM-II). The dispute under reference relates to:

“Whether the action of the management of Western

Coalfields Ltd. Pench Area, Distt. Chhindwara in not

providing dependent employment to Smt. Ramkali

Bai, wife of late Mehtab S/o Lalchand within two

months of death of Shri Mehtab is legal and

justified? If not, to what relief is she entitled?”

After receiving reference, notices were issued to

the parties. Statement of claim is submitted by General

Secretary of the Ist party Union. Case of Union is that

NCWA signed time to time are binding on parties. NCWA-

II Clause 9 provides employment to the dependents of

the deceased employee who dies during service period,

his dependents to be considered for employment should

be physically fit and suitable for employment and aged

not more than 35 years are eligible for compassionate

employment.

That Shri MehtabS/o Lalchand was appointed in

WCL on 18-8-72. He was subsequently promoted as

Security Guard in Bhamauri Colliery of WCL in Pench Area,

he suddenly died on 15-5-79 leaving his widow, 2

daughters and one son and mother as his dependents. As

per Bipartite Agreement, one dependent of the deceased

was entitled for employment as per NCWA-II implemented

from January 1979. Management denied appointment to

the dependent even denied payment of gratuity amount

and PF Amount to the widow of deceased. Ist party Union

has referred to ratio held in various cases. It is submitted

that the widow of deceased is entitled for appointment as

per the bipartite agreement and prays for suitable order.

IInd party filed Written Statement at Page 7/1 to 7/8.

IInd party submits that dispute raised by General Secretary

of Union is not tenable. Deceased was not member of said

Union. The services of deceased Mehtab were

automatically terminated w.e.f. 17-8-79 for unauthorized

absence. Therefore the reference is not tenable at instance

of Union. The dispute is raised after 20 years. Lapse of

20 years is not tenable.

IInd party submits that Late Mehtab was working

as watchman at Bhamori colliery of Pench Area. He was

appointed w.e.f. 18-8-1972. He was habitual absentee. The

service conditions of employees are covered by NCWA

and standing orders. Mehtab was continuously absent

from 1-2-1979. His where abouts were not known to the

management. He was absent unauthorisely without

intimation. Several letters were issued to him for resuming

duties. However Mehtab did not turnup for duty form

16-8-79. As per clause-19 of certified standing orders

applicable to IInd party, services of Shri Mehtab were

terminated. Management had written letter dated 13-6-97

to Post Master for issuing certificate with regard to the

service of letters. The postal department had informed by

letter that the relevant letters were served on the workman.

It is reiterated for unauthorized absence of Shri Mehtab

whose services were terminated from 17-8-79. Union is

claiming appointment on compassionate ground

contending that Mehtab died on 15-5-79. The dispute is

raised belatedly after 20 years. It is reiterated that the

employment on compassionate ground is not tenable.

Said benefit is allowed purely on humanitarian

consideration with object to provide livelihood to family

members of the deceased. The dispute raised after 20 years

shows that after death of workman, the family or his

dependents are not in crisis.

IInd party submits that as per the statement of claim,

the age of Ramkali Bai is shown 20 years. She was not

born at the time of death of Mehta, she cannot be said

dependent of Mehtab. All other material contentions of

Union are denied. The ratio held in the judgments referred

in Statement of Claim is relevant. On such grounds, IInd

party prays for rejection of claim.

Ist party Union submitted rejoinder after Written

Statement filed by the management. That after Mehtab

died on 15-5-79, amount of gratuity was paid on 19-6-93

after period of 18 years. That amount of CMPF contribution

was not is paid to the widow of the workman till date of

filing rejoinder. It is further submitted that the workman

was not served with any chargesheet or notice, he was

dismissed without notice after his death. It is reiterated

that he accepted methods of filling permanent vacancies

by the company including operating provisions of NCWA-

III. The employment to dependents, reference is required

to be given. On such contentions, Ist party workman prays

for appointment of widow of the deceased 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 mana-

In Negative

gement of Western Coalfields Ltd.

Pench Area, Distt. Chhindwara in

not providing dependent employ-

ment to Smt. Ramkali Bai, wife of

4446

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

late Mehtab S/o Lalchand within

two months of death of Shri

Mehtab is legal and justified?

(ii) If not, what relief the workman

As per

is entitled to?”

final order.

REASONS

Present reference relates to employment of widow

of deceased employ Mehtab. As per provisions of NCWA-

II, parties are in dispute that services of employees of IInd

party are covered by NCWA. IInd party is claiming that

services of Mehtab were terminated from 17-8-79 as per

Clause 19 of the Bipartite Agreement. Ist party submits

that workman died on 15-5-79. Affidavit of evidence is

filed by Shri Ramkali Bai widow of deceased Mehtab. She

has stated that Mehtab died on 15-5-79 while working as

Security Guard. At the time of death of her husband, she

was of 21 years of age. That her daughter Samiya bai, son

Sunil Kumar were dependent as left by her husband. IInd

party is not given any notice about termination of service

of Mehtab. In her cross-examination, Ramkali Bai says her

husband died about 20 years before the dispute was raised.

She claims ignorance about the period of working of her

husband. That her husband was terminated after his death.

He denied suggestion by management that her husband

was terminated much before his death, impliedly death of

workman Mehtab is not disputed. After death of her

husband, she did not receive amount of gratuity or PF.

That her husband has no other wife. Her name was

recorded as wife in the colliery records.

10.

Management’s witness Dinesh Kumar in his affidavit

of evidence has stated that Mehtab was appointed on

18-8-72 at Bhamori Colliery. He was absent from duty from

1-2-1979 unauthorisely without intimation. His services

were terminated on 16-8-79. Though management’s witness

has referred Annexure M-1 to M-5, and other papers, any

of those documents are not proved from evidence of

management’s witness. The witness of the management

in Para-8 states as service of Mehtab were terminated, his

widow is not entitled to compassionate appointment. In

his cross-examination, management’s witness says no

notice was issued to the Ist party workman for absence

prior to February 1979. He denies that intimation about

death of her husband was given in writing in July 1979.

As Exhibit M-5 was not given by Ramkali, Gratuity amount

was paid in 1993 to her as per order of ALC. He claims

ignorance about provisions of NCWA. That husband of

Ramkali was served with notice before termination of

service but no enquiry was conducted against him.

11.

Evidence of Ramkali bai and management’s

witnesses are carefully considered. The services of Mehtab

husband of Ramkali Bai was terminated from 15-5-79. The

termination order is not proved by management’s witness.

The prior communication is also not proved by the

management’s witness. The termination of service after

death of Mehtab cannot be said legal. Death is an act of

God. The employment had come to an end by death of

Mehtab. Prior to termination of Mehtab, as he died on

15-5-79 leaving wife, two daughters and one son as his

dependent. Copy of NCWA-II clause 9 is produced by

IInd party. Clause 9.5(iv) provides-

The dependants to be considered for employment

should be physically fit and suitable for employment and

aged not more than 35 years provided that the age limit in

case of employment of female spouse would be 45 years

as given in Clause 9.5.0. In so far as male spouse is

concerned, there would be no age limit regarding provision

of employment.

12.

At the time of argument, the provisions about

employment on compassionate ground provided under

NCWA-II Clause 9 was not in dispute. Learned Counsel

for IInd party Mr. Sharad Punj has pointed out my attention

to the affidavit of Smt. Ramkali Bai. Her age is shown 70

years on date of filing affidavit i.e. 24-4-2011. Thus she is

not eligible for her appointment on compassionate ground.

In her affidavit, Ramkali Bai has also claimed suitable

compensation. Clause 9.5.0(ii) provides-

“In case of death/total permanent disablement due

to causes other than mine accident and medical

unfitness under clause 9.4.0 if the female dependant

is below the age of 45 years she will have the option

either to accept the monetary compensation of

Rs.2000 per month or employment.”

In present case at the time of death of Mehtab,

Ramkali was of 21 years age . However the dispute is

referred after about 20 years. At the time of reference, the

age of Ramkali Bai was more than 35-40 years and therefore

she is not entitled for employment on compassionate

ground. However as per clause 9.5.0 (ii), she is entitled to

compensation Rs. 2000 per month.

13.

Learned Counsel for Ist party Mr. Praveen Yadav

submits that above said allowance under Clause 9.5.0(ii)

be allowed from death of Mehtab i.e. from 15-5-79. However

legal position is shattered that the award can be get

effective from the date of order of reference or date of

award subject to the satisfaction of the Tribunal.

Considering the present reference is made by Central Govt.

as per order dated 22-1-98, in my considered view, the

allowance under Clause 9.5.0 (ii) Rs. 2000 per month can

be allowed accordingly. For above reasons, I record my

finding in Point No.1 in Negative, Point No.2 Ramkali Bai

widow of deceased Mehtab be paid allowance Rs. 2000 as

per clause 9.5.0(ii) of NCWA.

14.

In the result, award is passed as under:-

(1) The action of the management of Western Coalfields

Ltd. Pench Area, Distt. Chhindwara in not providing

dependent employment to Smt. Ramkali Bai, wife

of late Mehtab S/o Lalchand is illegal.

(2) IInd party is directed to pay allowance Rs. 2000

per month to Shri Ramkali Bai from 22-1-1998 till

her death.

R. B. PATLE, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4447

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1671-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-lh-lh-,y- ds

izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je

U;k;ky;] gSnjkckn ds iapkV (lanHkZ la[;k 34@2013) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 izkIr gqvk FkkA

¹la- ,y&22012@246@2012&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1671.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 34/2013)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Hyderabad as shown in the Annexure, in the Industrial

Dispute between the management of Singareni Collieries

Co. Limited and their workmen, received by the Central

Government on 30/5/2014.

[No. L-22012/246/2012-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : Smt. M. Vijaya Lakshmi, Presiding Officer

Dated the 1st day of January, 2014

INDUSTRIAL DISPUTE No. I.D. 34/2013

Between :

The President,

(Sri Bhandari Satyanarayana)

Telangana Trade Union Council,

H. No.-5-295, Indra Nagar,

Opp. Bus Stand, Mancherial – 504208,

Adilabad Dist.

….Petitioner

AND

The General Manager,

M/s. Singareni Collieries Company Limited,

Mandamarri Division,

Mandamarri – 504 231,

Adilabad

….Respondent

Appearances:

For the Petitioner

: NIL

For the Respondent :

M/s P.A.V.V.S. Sarma & Vijaya

Lakshmi Panguluri, Advocates

AWARD

The Government of India, Ministry of Labour by its

order No. L-22012/246/2012-IR(CM-II) dated 19.2.2013

referred the following dispute between the management

of M/s. Singareni Collieries Company Ltd., and their

workman under section 10(1)(d) of the I.D. Act, 1947 for

adjudication to this Tribunal. The reference is,

SCHEDULE

“Whether the action of the management of General

Manager of M/s. Singareni Collieries Company Ltd.,

Mandamarri Area, Mandamarri, Adilabad District in

terminating the services of Sri Md. Sayyed, Ex-Coal Filler,

KK-5 Inc., SCCL, Mandamarri Area with effect from

28.12.1999 is justified or not? If not, to what relief the

applicant is entitled for?”

The reference is numbered in this Tribunal as I.D.

No. 34/2013 and notices were issued to the parties.

The case stands posted for filing of claim statement

and documents.

Petitioner called absent and there is no

representation. Inspite of giving notice time and again

Petitioner is not appearing and taking interest in the

proceedings. In the circumstances, taking that Petitioner

got no claim to be made, ‘Nil’ award is passed.

Award passed accordingly. Transmit.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

Witnesses examined for the

the Petitioner

the Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1672-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-lh-lh-,y- ds

izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je

U;k;ky;] gSnjkckn ds iapkV (lanHkZ la- 27@2012) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 izkIr gqvk FkkA

¹la- ,y&22012@199@2011&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O. 1672.—In pursuance of Section 17 of the

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

4448

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Government hereby publishes the Award (Ref. No. 27/2012)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Hyderabad as shown in the Annexure, in the Industrial

Dispute between the management of M/s. Singareni

Collieries Co. Limited and their workmen, received by the

Central Government on 30/5/2014.

[No. L-22012/199/2011-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : Smt. M. Vijaya Lakshmi, Presiding Officer

Dated the 29th day of January, 2014

INDUSTRIAL DISPUTE NO. I.D. 27/2012

Between :

The Branch Secretary,

(Sri N. Kistaiah),

Singareni Collieries Workers Union(AITUC),

Mandamarri Branch, Mandamarri,

Adilabad District

...Petitioner

AND

The General Manager,

M/s. Singareni Collieries Company Limited,

Mandamarri Division, Mandamarri,

Adilabad Dist-504231.

...Respondent

Appearances:

For the Petitioner

: NIL

For the Respondent : Representative

AWARD

The Government of India, Ministry of Labour by its

order No. L-22012/199/2011-IR(CM-II) dated 14.2.2012

referred the following dispute between the management

of M/s. Singareni Collieries Company Ltd., and their

workman under section 10(1)(d) of the I.D. Act, 1947 for

adjudication to this Tribunal. The reference is,

SCHEDULE

“Whether the action the management of M/s.

Singareni Collieries Company Ltd., Mandamarri

Division, Adilabad Dist., in fixation of basic wages

of Coal Fillers confirming them as Coal Cutters,

Trammers and Support men based on their wages

earned as General Mazdoor in respect of Shri

Manthena Bhoomaiah and 16 others (List enclosed)

w.e.f. 1.9.2006 is justified? To what relief the

workmen are entitled to?”

The reference is numbered in this Tribunal as I.D.

No. 27/2012 and notices were issued to the parties.

The case stands posted for filing of claim statement

and documents.

Petitioner called absent. Claim statement not filed

and there is no representation. Inspite of giving fair

opportunity time and again, Petitioner is not taking any

interest in the proceedings. In the circumstances, taking

that Petitioner got no claim to be made, ‘Nil’ award is

passed.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant, corrected by me on this the 29th day

of January, 2014.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

Witnesses examined for the

the Petitioner

Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1673-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,-,l-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- 130@2005) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr gqvk FkkA

¹la- ,y&42012@41@2005&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1673.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 130/

2005) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the Industrial Dispute

between the management of Archaeological Survey of

India and their workmen, received by the Central

Government on 30/5/2014.

[No. L-42012/41/2005-IR (CM-II)]

B. M. PATNAIK, Desk Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4449

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/130/05

PRESIDING OFFICER : SHRI R.B.PATLE

Shri Dorilal Yadav,

Vill Taalpura,

Tehsil Buani,

Distt. Sehore (MP)

...Workman

Versus

Superintendent Archaeologist,

Archaeological Survey of India,

G.T.B. Complex, T.T. Nagar,

Bhopal (MP)

...Management

AWARD

Passed on this 28th day of April, 2014

As per letter dated 6-12-2005 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-42012/

41/2005-IR(CM-II). The dispute under reference relates to:

“Whether the action of Superintending

Archaeologist, Archaeological Survey of India,

Bhopal in terminating the services of Shri Dorilal

Yadav w.e.f. 23-1-97 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 submitted statement of claim

at Pages 5/1 to 5/4. Case of Ist party is that he was initially

appointed on temporary basis as Monument Attendant

of Central Circle, Bhopal on 20-4-76. He performed his duties

to the satisfaction of his superiors. As per letter dated

26-8-85, workman was directed to approach CSG-II Bhopal

for regularization of his services. Then immediately he

had met said authority at Bhopal requesting regularization

of his services as he had worked more than 240 days. At

the time of his meeting, the authority was directed to put

his signature on certain papers written in English.

Workman was not able to read the contents as he is

educated only upto 7th class from Hindi Medium School.

Workman further submits that CSG-II Bhopal did

not regularize his services after he reached CSG-II Bhopal

office for regularization. It is alleged that authority had

demanded some gratification from him and one Ram

Kishan but they could not fulfill his demand. Consequently

they were not regularized. Workman was disengaged from

temporary service. He further submits that he continuously

worked from 24-4-76 to 23-1-97. Instead of regularizing his

services, he was terminated on 23-1-97. Termination of his

service amounts to illegal retrenchment for violation of

Section 25-F of I.D. Act, workman prays for his

reinstatement with back wages. Workman further submits

that employees junior to him are still working with IInd

party. IInd party had violated Section 25-G of I.D.Act. On

such grounds, he prays for reinstatement.

Despite of repeated notices, IInd party did not cause

appearance. Ex parte order was passed against IInd party

on 22-6-2011.

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 Superin-

In Affirmative

tending Archaeologist, Archaeo-

logical Survey of India, Bhopal

in terminating the services of

Shri Dorilal Yadav w.e.f. 23-1-97

is legal and justified?

(ii) If not, what relief the workman is As per final

entitled to?”

order.

REASONS

Though workman is challenging termination of his

service for violation of Section 25-F, G of I.D.Act, IInd

party proceeds ex parte. Workman has not participated in

reference proceedings. He has failed to adduce evidence

in support of his claim. The evidence of workman was

closed on 25-4-2013. Management also did not participate

in reference proceeding for failure to adduce evidence in

support of his claim by workman, his contentions cannot

be accepted therefore, I record my finding in Point No.1 in

Affirmative.

In the result, award is passed as under:-

(1)

The action of Superintending Archaeologist,

Archaeological Survey of India, Bhopal in

terminating the services of Shri Dorilal Yadav w.e.f.

23-1-97 is legal and proper.

(2)

Workman is not entitled to relief prayed by him.

R. B. PATLE, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1674-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-ih-MCY;w-Mh-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k

75@2004) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

izkIr gqvk FkkA

¹la- ,y&42012@87@2003&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

4450

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 30th May, 2014

S.O.

1674.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 75/2004)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court

No. 2, Chandigarh as shown in the Annexure, in the

Industrial Dispute between the management of Central

Public Works Department and their workmen, received by

the Central Government on 30/5/2014.

[No. L-42012/87/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No.75/2004

Registered on 17.3.2005

The Zonal Secretary,

All India CPWD (MRM)

Karamchari Sanghathan (Regd.)

CPWD Store Building Sector 7B,

Chandigarh.

Sh. Chotar Singh,

Son of late Sh. Kishan Singh,

Office of the Executive Engineer,

Central Electrical Division,

Sub-Division No.4, CPWD,

Chandigarh Kendriya Sadan,

3rd Floor, Sector 9A, Chandigarh,

C/O All India CPWD (MRM)

Karamchari Sangathan (Regd.) through

Zonal Secretary, CPWD Store Building,

Sector 7B, Chandigarh.

...Petitioner

Versus

The Executive Engineer,

Central Public Works Department,

Chandigarh Central Electrical Division,

Kendriya Sadan, Sector 9A,

Chandigarh.

...Respondents

Appearances :

For the Workman

: Sh. S.D. Sharma Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on-15.5.2014

Central Government vide Notification No. L-42012/

87/2003 IR(CM-II)) Dated 25.2.2005, by exercising its

powers under Section 10 Sub-section (1) Clause (d) and

Sub-section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial Dispute for adjudication to this Tribunal:-

“Whether the action of the management of CPWD,

Chandigarh in not regularizing the services of Sh.

Chotar Singh, Electrical Khalasi w.e.f. 5.7.95 is legal

and justified? If not, to what relief the concerned

workman is entitled?”

Notice was given to the parties and in pursuance

thereof the claimant submitted statement of claim pleading

that claimant No.2 (hereinafter called the workman) was

employed by the management as Khalasi through a

contractor w.e.f. 5.7.1995 to 7.3.2004 for attending the work

of perennial in nature of management. He worked under

the complete control of the management with devotion

and sincerity. That the Ministry of Labour vide

Notification No. 690 dated 31.7.2002 under Section 10(1)

of the Contract Labour (Regulation and Abolition), Act,

1970 abolished the contract system regarding various jobs

on contract basis. That there was direct relationship of

employer and employee between the workman and the

management and the arrangement of engaging him through

the contractor was designed to deprive him of the benefits

and protection provided under labour laws. That he has

been discharging the same functions as are discharged

by the regular employees but was denied equal pay for

equal work. That his services were abruptly terminated

on 1.4.2004 without payment of any compensation and

the persons junior to him were retained in service. That he

has completed more than 240 days of service in a given

year. He has prayed that the act of the management in not

regularizing his services against available sanctioned post

of Khalasi is unjust and unfair and he is entitled to be

regularized as Khalasi and he is entitled to equal pay for

equal work.

Respondent management filed written statement

denying the relationship and pleaded that workman was

never engaged by the management and he was not paid

anything by it. It entered into a contract with the contractor

and the contractor may have deployed the persons for the

performance of the job as per conditions of the contract.

The department cannot verify whether the workman was

actually engaged by the contractor. Management paid

the amount under the agreement to the contractor who in

turn paid the wages to the persons engaged by him. It is

specifically denied that the workman was employed as a

Khalasi. Since the workman was not engaged by the

respondent/management, there is no relationship of master

and servant between the parties. That the contract entered

into between the respondent management and the

contractor is not a sham transaction.

In the rejoinder the workman reiterated his case as

set out in the claim petition and further pleaded that he is

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4451

under the control, supervision and authority of the

respondent/management.

In support of his case, the workman has examined

Chaman Lal, A.E., Rajinder Singh and himself appeared in

the witness box.

Chotar Singh workman filed his affidavit reiterating

the case as set out in the statement of claim and further

placed on record photocopy of the attendance register

mark WW3/1 to mark WW3/17.

Chaman Lal A.E who is from the management has

deposed that department do not maintain any service

record of the labour as the work is done by the contractor.

That the workers report for work to the Junior Engineer.

However he has identified his initials on the entries in the

attendance register from April 1997 to August 1997 mark

as WW1/3 to WW1/17.

Rajinder Singh has filed his affidavit deposing that

workman was working in the Electrical Sub Division, Sector

33, Chandigarh and his services were terminated on

31.3.2004.

On the other hand the management has examined

Sh. Rajesh Kumar Gupta who filed his affidavit reiterating

the case of the respondent/management as set out in the

written statement.

I have heard Sh. S.D. Sharma, counsel for the

workman and Sh. Anish Babbar, counsel for the

management.

It may be added that the according to the workman,

his services were terminated on 1.4.2004. Though he has

pleaded that he was not paid any retrenchment

compensation, and the persons junior to him were retained

in service; but he did not seek any relief regarding

reinstatement in service nor the terms of reference contain

such a relief.

Therefore the fact whether the services of the

workman were terminated and that too without payment

of compensation and the persons junior to him were

retained in service are not to be considered.

The only contention raised by the learned counsel

for the workman is that workman was working under the

direct control of the management and his job is of perennial

in nature and since he worked for quite a long period, he

was an employee of the respondent/management and the

contract entered into between the contractor and the

management was a sham transaction; and his services are

to be regularized.

In support of his contentions he has carried me

through the CPWD Contract Labour Regulations, and

Contract Labour (Regulation and Abolition) Act, 1970 as

well through the statement of Chaman Lal, AE, where

he admitted his initials on the attendance register mark

WW3/1 to mark WW3/17.

In Ram Singh and Others Vs. Union Territory

Chandigarh and Others reported in (2004) 1 SCC it was

observed by Hon’ble Apex Court in paras 15 and 16 of the

judgment as follows :

(15)

In determining the relationship of employer and

employee no doubt control is one of the important tests

but is not to be taken as the sole test. In determining the

relationship of employer and employee, all other relevant

facts and circumstances are required to be considered

including the terms and conditions of the contract. It is

necessary to take a multiple pragmatic approach weighing

up all the factors for and against an employment instead

of going by the sole test of control. An integrated approach

is needed. Integration test is one of the relevant tests. It

is applied by examining whether the persons was fully

integrated into the employer’s concern or remained apart

from and independent of it. The other factors which may

be relevant are who has the power to select and dismiss,

to pay remuneration, deduct insurance contributions,

organize the work, supply tools and materials and what

are the mutual obligations between them.

(16)

Normally, the relationship of employer and employee

does not exist between an employer and a contractor and

the servant of an independent contractor. Where, however

an employer retains or assumes control over the means

and method by which the work of a contractor is to be

done, it may be said that the relationship between employer

and employee exists between him and the servants of such

a contractor. In such a situation the mere fact of formal

employment by an independent contractor will not relieve

the master of liability where the servant is in fact, in his

employment. In that event it may be held that an

independent contractor is created or is operating as a

subterfuge and the employee will be regarded as the servant

of the principal employer. Whether a particular relationship

between employer and employee is genuine or a

camouflage through the mode of a contractor, is essentially

a question of fact to be determined on the basis of the

features of the relationship, the written terms of

employment, if any, and the actual nature of the

employment. The actual nature of relationship concerning

a particular employment being essentially a question of

fact it has to be raised and proved before an industrial

adjudicator.

Thus the workman has to prove that he used to

receive remuneration from the respondent/management

who has the power to select and dismiss him to establish

relationship of employer and employee between the parties.

If Chaman Lal, A.E. admits his initials on the attendance

over the workman and there is nothing on the file to

suggest that it was the management who had the power to

select and dismiss the workman and he used to receive

remuneration from the management and there was any

mutual obligations and in the absence of the said facts, it

4452

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

cannot be said that there was direct relationship of

employer and employee between the workman and the

management. If the workman worked for quite some time

with the management the same again do not prove the

relationship of master and servant between the parties.

Even if it is taken that there is relationship of employer

and employee, the workman is not entitled to regularization

of services. In the latest pronouncement Secretary, State

of Karnataka Vs. Uma Devi reported in A.I.R. 2006 SC 1806,

the Hon’ble Apex Court observed that employees who

were not appointed by observing the regular procedure

and rules are not entitled to regularization of their services.

The Hon’ble Apex Court observed in para 1 of the judgment

as follows:-

Public employment in a sovereign socialist secular

democratic republic, has to be as set down by the

Constitution and the laws made thereunder. Our

constitutional Scheme envisages employment by the

Government and its instrumentalities on the basis of a

procedure established in that behalf. Equality of

opportunity is the hallmark, and the Constitution has

provided also for affirmative action to ensure that unequals

are not treated equals. Thus, any public employment has

to be in terms of the Constitutional Scheme.

It was further observed in para 5 of the judgment as

follow :—

The power of a state as an employer is more limited

than that of a private employer inasmuch as it is subjected

to constitutional limitations and cannot be exercised

arbitrarily. Article 309 of the Constitution gives the

Government the power to frame rules for the purpose of

laying down the conditions of service and recruitment of

persons to be appointed to public services and posts in

connection with the affairs of the Union or any of the

States. The article contemplates the drawing up of a

procedure and rules to regulate the service conditions of

appointees appointed to public posts. It is well

acknowledged that because of this, the entire process of

recruitment and for services of controlled by detailed

procedures which specify the necessary qualifications,

the mode of appointment etc. If rules have been made

under Article 309 of the Constitution, then the Government

can make appointments only in accordance with the rules.

The Hon’ble Apex Court further observed in para 34

of the judgment as follows:-

Thus, it is clear that adherence to the rule of equality

in public employment is a basic feature of our Constitution

and since the rule of law is the core of our constitution, a

court would certainly be disabled from passing an order

upholding a violation of Article 14 or in ordering the

overlooking of the need to comply with the requirements

of Article 14 read with Article 16 of the Constitution.

Therefore, consistent with the scheme for public

employment, this court while laying down the law, has

necessarily to hold that unless the appointment is in terms

of the relevant rules and after a proper competition among

qualified persons, the same would not confer any right on

the appointee. If it is a contractual appointment,

appointment comes to an end at the end of the contract, if

it were an engagement of appointment on daily wages or

casual basis; the same would come to an end when it is

discontinued. Similarly, a temporary employee could not

claim to be made permanent on the expiry of his term of

appointment. It has also to be clarified that merely because

a temporary employee or a casual wage worker is continued

for a time beyond the term of his appointment, he would

not be entitled to be absorbed in regular service or made

permanent, merely on the strength of such continuance, if

the original appointment was not made by following a due

process of selection as envisaged by the relevant rules. It

is not open to the court to prevent regular recruitment at

the instance of temporary employees whose period

employment has come to an end or of ad hoc employee

who by the very nature of their appointment, do not acquire

any right. High Courts acting under Article 226 of the

Constitution of India, should not ordinarily issue directions

for absorption, regularization, or permanent continuance

unless the recruitment itself was made regularly and in

terms of the Constitutional Scheme. Merely because an

employee had continued under cover of an order of court,

which we have described as litigious employment in the

earlier part of the judgment, he would not be entitled to

any right to be absorbed or made permanent in the service.

In fact, in such cases the High court may not be justified

in issuing interim directions, since, after all, if ultimately

the employee approaching it is found entitled to relief, it

may be possible for it to mould the relief in such a manner

that ultimately no prejudice will be caused to him, whereas

an interim direction to continue his employment would

hold up the regular procedure for selection or impose on

the state the burden of paying an employee who is really

not required. The courts must be careful in ensuring that

they do not interfere unduly with the economic arrangement

of its affairs by the state or its instrumentalities or lend

themselves the instruments to facilitate the bypassing of

the constitutional and statutory mandate.

Thus, an employee who is not appointed as per terms

of the relevant rules and regulations, his services cannot

be regularized. Since it is the case of the workman himself

that he was employed through a contractor and not as per

any rules and regulations of the department, the

department was not required to regularize his services and

it cannot be held that he is entitled to regularization of his

services as claimed by him.

Thus, it is not proved that there was a relationship

of employer and employee between the workman and the

respondent management and he is not entitled to

regularization of the services and accordingly the reference

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4453

is answered against the workman. Let hard and soft copy

of the award be sent to the Central Government for further

necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1675-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-ih-MCY;w-Mh-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k

72@2004) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk FkkA

¹la- ,y&42012@96@2003&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1675.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 72/2004)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.

2, Chandigarh as shown in the Annexure, in the industrial

dispute between the management of Central Public works

Department and their workmen, received by the Central

Government on 30/05/2014.

[No. L-42012/96/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH.

Present : SRI KEWAL KRISHAN, Presiding Officer.

Case No. I.D. No. 72/2004

Registered on 17.3.2005

The Zonal Secretary,

All India CPWD (MRM)

Karamchari Sangathan (Regd.)

CPWD Store Building Sector 7B,

Chandigarh

Sh. Hardeep Singh,

S/o Sh. Rattan Singh,

Wireman, Office of the Executive Engineer,

Chandigarh Central Electrical Division,

Sub-Division No.5, CPWD,

Kendriya Sadan, Sector 9A,

Chandigarh, C/o All India CPWD (MRM)

Karamchari Sangathan (Regd.)

through: Zonal Secretary,

CPWD Store Building,

Sector 7B, Chandigarh.

.....Petitioner

Versus

The Executive Engineer,

Central Public Works Department,

Chandigarh Central Electrical Division,

Kendriya Sadan, Sector 9A,

Chandigarh.

.....Respondents

APPEARANCES

For the Workman

: Sh. S.D. Sharma, Adv.

For the Management

: Sh. Anish Babbar, Adv.

AWARD

Passed on 15.5.2014

Central Government vide Notification No. L-42012/

96/2003 IR(CM-II)) Dated 25.2.2005, by exercising its

powers under Section 10 Sub-section (1) Clause (d) and

Sub-section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of CPWD,

Chandigarh in not regularizing the services of

Sh. Hardeep Singh, Wireman w.e.f. 28.12.98 is legal

and justified? If not, to what relief the concerned

workman is entitled?”

In response to the notice the Claimant No.2

(hereinafter called workman) appeared and submitted

statement of claim pleading that he was employed by the

respondent management on a Contract Labour System as

Wireman through the contractor w.e.f. 28.2.1998 for

attending the work of perennial nature of the management.

He worked with a great devotion and there was no

complaint against him. He worked under the direct control,

direction and authority of the management.

It is further pleaded that the contract entered into

by the respondent management and the contractor is a

sham transaction and there is a direct relationship of

principal employer and employee between the respondent

management and the workman. That the Ministry of

Labour vide Notification No.690 dated 31.7.2002 under

Section 10(1) of the Contract Labour (Regulation and

Abolition) Act, 1970 abolished employment of Wireman,

Khalasi etc. on contract basis. That vacant sanctioned

posts are available with the respondent management.

Regular employees are discharging the same and similar

functions as are being discharged by the workman. Thus

the workman is entitled to equal pay and allowances as

being given to regular employees and since he is a direct

employee of the management, he is entitled for the

regularization of services from the date of his initial

appointment. It is also pleaded that he has completed

more than 240 days in each year.

Respondent management filed written statement

denying the relationship and pleaded that workman was

never engaged by the management and he was not paid

4454

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

anything by it. It entered into a contract with the

contractor and the contractor may have deployed the

persons for the performance of the job as per conditions

of the contract. The department cannot verify whether

the workman was actually engaged by the contractor.

Management paid the amount under the agreement to the

contractor who in turn paid the wages to the persons

engaged by him. It is specifically denied that the workman

was employed as a wireman. Since the workman was not

engaged by the respondent management, there is no

relationship of master and servant between the parties.

That the contract entered into between the respondent

management and the contractor is not a sham transaction.

In the rejoinder the workman reiterated his case as

set out in the claim petition and further pleaded that he is

under the control, supervision and authority of the

respondent management.

Parties were afforded opportunity to lead evidence.

In support of his case the workman examined S.K.

Verma, Raj Kumar and Hardeep Singh workman himself

appeared in the witness box.

Hardeep Singh filed his affidavit reiterating the case

as set out in the claim petition.

Raj Kumar has deposed in his affidavit that he is

posted as a Chowkidar. That Hardeep Singh was

employed on contract Labour System as Wireman by the

respondent department. Sh. S.K. Verma, Junior Engineer

has deposed that some of the CPWD buildings are

maintained by the respondent department. That the

workman is a contract labourer and was working under

him. He reports for duty to his contractor and he (the

witness) check his working. He has further identified his

signature on the application Exhibit WW2/1 and duty chart

Exhibit WW2/2. He also identified his signatures at several

places in the logbook for the year 2002 to 2004.

On the other hand the management examined

Sh. Rajesh Gupta, XEN,who filed his affidavit reiterating

the stand as taken by the respondent management in its

written statement.

I have heard Sh. S.D. Sharma, counsel for the

workman and Sh. Anish Babbar counsel for the

management and have gone through the written arguments

submitted on behalf of the workman also.

The learned counsel for the workman carried me

through the CPWD Contract Labour Regulations; and

Contract Labour (Regulation and Abolition) Act, 1970 and

further carried me through the various definitions

regarding‘workman’, ‘contract labour’, ‘principal

employer’ etc. and submitted that the workman who is

allegedly hired through the contractor as a Wireman is

actually an employee of the respondent management and

he works under its control and supervision and the contract

agreement is a sham transaction. He has further submitted

that this Court can go through the facts to lift the veil and

to find whether the contract is genuine and if the same is

not found to be genuine, then it is to be presumed that

workman is an employee of the respondent management.

The learned counsel further carried me through the

documents Exhibit MW2/1 and the duty Chart Exhibit

WW2/2 and through the logbook as well as through the

statement of Sh. S.K. Verma, Junior Engineer who admits

his signature on the said documents, to contend that the

workman has actually worked under the control and

supervision of the officer of the respondent management

and it is proved that he is an employee of the respondent

management and his services are to be regularized. The

learned counsel also relied on authorities –

2007 (3) SCT 51: Zonal Manager, Food Corporation

of India Vs. The workmen.

(2004) 1 SCC 127: Ram Singh Vs. Union Territory,

Chandigarh.

(2003) 6 SCC 528: Bharat Heavy Electricals Ltd. Vs.

State of UP.

(2001) 7 SCC: Steel Authority of India Ltd. & others

Vs. National Union Waterfront Workers.

CWP No.8741 of 1998 of decided on 26.5.2000 by

Delhi High Court.

The proposition of law, as laid down in the said

authorities, is that if contract is found to be camouflage,

the contract labour is to be treated as employees of the

principal employer. In Steel Authority of India Ltd. and

others Vs. National Waterfront Workers reported in (2001)

7 SCC, it was observed by the Hon’ble Apex Court in para

71 of the judgment as follows:-

By definition the term “contract labour” is a species

of workman. A workman shall be so deemed when he is

hired in or in connection with the work of an establishment

by or through a contractor, with or without the knowledge

of the principal employer. A workman may be hired: (1) in

an establishment by the principal employer; or (2) in

connection with the work of an establishment by the

principal employer through a contractor or by a contractor

with or without the knowledge of the principal employer.

Where a workman is hired in or in connection with the

work of an establishment by the principal employer through

a contractor, he merely acts as an agent so there will be

master and servant relationship between the principal

employer and the workman. But where a workman is hired

in or in connection with the work of an establishment by a

contractor, either because he has undertaken to produce a

given result for the establishment or because he supplies

workmen for any work of the establishment, question might

arise whether the contractor is a mere camouflage as in

Hussainbhai case and in Indian Petrochemicals Corpn.

Case etc.; if the answer is in the affirmative, the workman

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4455

will be in fact an employee of the principal employer; but if

the answer is in the negative, the workman will be a contract

labour.

It was further observed in para 125(5) and Para 125(6)

of the judgment as follows:-

(5)

On issuance of prohibition notification under Section

10(1) of the CLRA Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the industrial adjudicator will

have to consider the question whether the contractor

has been interposed either on the ground of having

undertaken to produce any given result for the

establishment under a genuine contract or is a mere

ruse/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers

of the benefit there under. If the contract is found to

be not genuine but a mere camouflage, the so called

contract labour will have to be treated as employees

of the principal employer who shall be directed to

regularize the services of the contract labour in the

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 any establishment and

where in such process, operation or 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

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.

Thus it was held by the Hon’ble Apex Court that if

the workman is hired by the principal employer through

the contractor then there is a relationship of master and

servant between the principal employer and the workman,

and if the workman is hired by the contractor then the

Court is to see whether the contract is genuine one. If the

contract is not genuine and is a mere camouflage, the

contract labour is to be treated as employee of the principal

employer whose services are to be regularized subject to

the conditions as stated in para 125(6) of the judgment

and reproduced above.

It may be added that conduct of the respondent

management is not fair in the present case. It has totally

denied that the workman worked for it in its written

statement and simply pleaded that contractor may have

engaged him. But Sh. S.K. Verma, an officer of the

department, when examined by the workman admitted his

signatures on the application dated 6.2.2003 whereby, the

request of the workman for change of duty was accepted.

He also admitted his signatures on the duty chart Exhibit

WW2/2 whereby the duty performed by the workman was

noted. Again he admitted his signatures in the logbook

produced on the file in which the presence of the workman

has been specifically marked being on duty and this

logbook relates to the year 2002 to 2004. In view of this

statement of Sh. S.K. Verma and these documents, it was

not fair on the part of the management to deny whether

the workman was actually working for it or not.

Now the question to be seen is whether the workman

is actually an employee of the contractor or of the

respondent management and whether the said documents

are sufficient to hold that there is a relationship of employer

and employee between the workman and the respondent

management. The workman himself has pleaded that he

was employed on contract labour system as Wireman but

alleged that he was employed through the contractor w.e.f.

28.2.1998. Thus he admits that he work as a contract

labourer. It is the workman who has come to the court

with specific assertions that he is actually an employee of

the respondent management and not of the contractor,

and therefore, it was for him to prove the said fact.

It is not pleaded that his services were hired by the

management itself. Therefore the statement of the workman

during cross-examination that he was engaged by the

department through a JE is of no avail to him. He has

further deposed that it was the contractor who was making

payment of wages to the workman. In Ram Singh and

others Vs. Union Territory Chandigarh and others reported

in (2004) 1 SCC it was observed by Hon’ble Apex Court in

para 15 and 16 of the judgment as follows :

(15)

In determining the relationship of employer and

employee no doubt control is one of the important

tests but is not to be taken as the sole test. In

determining the relationship of employer and

employee, all other relevant facts and circumstances

are required to be considered including the terms

and conditions of the contract. It is necessary to

take a multiple pragmatic approach weighing up all

the factors for and against an employment instead

of going by the sole test of control. An integrated

approach is needed. Integration test is one of the

relevant tests. It is applied by examining whether

the persons was fully integrated into the employer’s

concern or remained apart from and independent of

it. The other factors which may be relevant are who

has the power to select and dismiss, to pay

remuneration, deduct insurance contributions,

4456

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

organize the work, supply tools and materials and

what are the mutual obligations between them.

(16)

Normally, the relationship of employer and employee

does not exist between an employer and a contractor

and the servant of an independent contractor.

Where, however an employer retains or assumes

control over the means and method by which the

work of a contractor is to be done, it may be said

that the relationship between employer and

employee exists between him and the servants of

such a contractor. In such a situation the mere fact

of formal employment by an independent contractor

will not relieve the master of liability where the

servant is in fact, in his employment. In that event it

may be held that an independent contractor is

created or is operating as a subterfuge and the

employee will be regarded as the servant of the

principal employer. Whether a particular relationship

between employer and employee is genuine or a

camouflage through the mode of a contractor, is

essentially a question of fact to be determined on

the basis of the features of the relationship, the

written terms of employment, if any, and the actual

nature of the employment. The actual nature of

relationship concerning a particular employment

being essentially a question of fact it has to be raised

and proved before an industrial adjudicator.

Thus the workman has to prove that he used to

receive remuneration from the respondent management

who has the power to select and dismiss him to establish

relationship of employer and employee between the parties.

No doubt the statement of Sh. S.K. Verma coupled with

the documents discussed above, it is proved that the

workman has been working under the control of the

respondent management. But it is not proved on the file

that management had the power to select and dismiss him

and the workman used to receive remuneration from it or

the management was responsible for deducting

compulsory contributions and there were any mutual

obligations; and in the absence of said factors, it cannot

be said that there is a direct relationship of an employer

and employee between the workman and the management;

and the contract is not a sham transaction.

The argument that workman has been working with

the management since 1998 and is still in its employment;

and the same is sufficient to prove that there is a

relationship of master and servant between the parties, is

of no help to the workman. If the workman has been working

for a sufficient long period under the contractor for the

management, the same do not prove that he is an employee

of the respondent management.

Even if it is taken that there is a relationship of

employer and employee, the workman is not entitled to

regularization of his services. In the latest pronouncement

Secretary, State of Karnataka Vs. Uma Devi reported in

A.I.R. 2006 S.C. 1806, the Hon’ble Apex Court observed

that employees who were not appointed by observing the

regular procedure and rules are not entitled to regularization

of their services. The Hon’ble Apex Court observed in

para 1 of the judgment as follows:-

Public employment in a sovereign socialist secular

democratic republic, has to be as set down by the

Constitution and the laws made thereunder. Our

constitutional scheme envisages employment by the

government and its instrumentalities on the basis of

a procedure established in that behalf. Equality of

opportunity is the hallmark, and the Constitution

has provided also for affirmative action to ensure

that unequals are not treated equals. Thus, any

public employment has to be in terms of the

constitutional scheme.

It was further observed in para 5 of the judgment as

follow:—

The power of a state as an employer is more limited

than that of a private employer inasmuch as it is

subjected to constitutional limitations and cannot

be exercised arbitrarily. Article 309 of the

Constitution gives the Government the power to

frame rules for the purpose of laying down the

conditions of service and recruitment of persons to

be appointed to public services and posts in

connection with the affairs of the Union or any of

the States. The article contemplates the drawing up

of a procedure and rules to regulate the service

conditions of appointees appointed to public posts.

It is well acknowledged that because of this, the

entire process of recruitment and for services of

controlled by detailed procedures which specify the

necessary qualifications, the mode of appointment

etc. If rules have been made under Article 309 of the

Constitution, then the Government can make

appointments only in accordance with the rules.

The Hon’ble Apex Court further observed in para 34

of the judgment as follows:-

Thus, it is clear that adherence to the rule of equality

in public employment is a basic feature of our

constitution and since the rule of law is the core of

our constitution, a court would certainly be disabled

from passing an order upholding a violation of Article

14 or in ordering the overlooking of the need to

comply with the requirements of Article 14 read with

Article 16 of the constitution. Therefore, consistent

with the scheme for public employment, this court

while laying down the law, has necessarily to hold

that unless the appointment is in terms of the relevant

rules and after a proper competition among qualified

persons, the same would not confer any right on the

appointee. If it is a contractual appointment,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4457

appointment comes to an end at the end of the

contract, if it were an engagement of appointment

on daily wages or casual basis; the same would come

to an end when it is discontinued. Similarly, a

temporary employee could not claim to be made

permanent on the expiry of his term of appointment.

It has also to be clarified that merely because a

temporary employee or a casual wage worker is

continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed

in regular service or made permanent, merely on the

strength of such continuance, if the original

appointment was not made by following a due

process of selection as envisaged by the relevant

rules. It is not open to the court to prevent regular

recruitment at the instance of temporary employees

whose period employment has come to an end or of

ad hoc employee who by the very nature of their

appointment, do not acquire any right. High Courts

acting under article 226 of the constitution of India,

should not ordinarily issue directions for absorption,

regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of

the constitutional scheme. Merely because an

employee had continued under cover of an order of

court, which we have described as litigious

employment in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or

made permanent in the service. In fact, in such cases

the High Court may not be justified in issuing interim

directions, since, after all, if ultimately the employee

approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner

that ultimately no prejudice will be caused to him,

whereas an interim direction to continue his

employment would hold up the regular procedure

for selection or impose on the state the burden of

paying an employee who is really not required. The

courts must be careful in ensuring that they do not

interfere unduly with the economic arrangement of

its affairs by the state or its instrumentalities or lend

themselves the instruments to facilitate the

bypassing of the constitutional and statutory

mandate.

Thus, an employee who is not appointed as per terms

of the relevant rules and regulations, his services cannot

be regularized. Since it is the case of the workman himself

that he was employed on contract labour system and not

as per any rules and regulations of the department, his

services cannot be ordered to be regularized.

In view of this proposition of this law, the failure of

the management to produce the contractor and some

record as summoned by the workman, is of no help to him.

Thus, it is not proved that there is a relationship of

employer and employee between the workman and the

respondent management and he is not entitled to

regularization of the services and accordingly the reference

is answered against the workman. Let hard and soft copy

of the award be sent to the Central Government for further

necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1676-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-ih-MCY;w-Mh-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k

73@2004) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk FkkA

¹la- ,y&42012@93@2003&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1676.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 73/2004)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.

2, Chandigarh as shown in the Annexure, in the industrial

dispute between the management of Central Public Works

Department and their workmen, received by the Central

Government on 30/05/2014.

[No. L-42012/93/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : Sri KEWAL KRISHAN, Presiding Officer

Case No. I.D. No.73/2004

Registered on 17.3.2005

The Zonal Secretary,

All India CPWD (MRM)

Karamchari Sangathan (Regd.)

CPWD Store Building, Sector 7B,

Chandigarh

Sh. Nagender Prasad Rai,

S/o Sh. Som Nath Rai, Khalasi, Office of the

Executive Engineer,

Central Electrical Division,

Sub-Division No.5, CPWD,

Chandigarh Kendriya Sadan,

3^rd Floor, Sector 9A, Chandigarh

4458

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

C/o All India CPWD (MRM)

Karamchari Sangathan (Regd.)

through Zonal Secretary,

CPWD Store Building, Sector 7B,

Chandigarh

.....Petitioner

Versus

The Executive Engineer,

Central Public Works Department,

Chandigarh Central Electrical Division,

Kendriya Sadan, Sector 9A,

Chandigarh

.....Respondents

APPEARANCES :

For the Workman

: Sh. S.D. Sharma Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on-15.5.2014

Central Government vide Notification No. L-42012/

93/2003 IR(CM-II)) Dated 25.2.2005, by exercising its

powers under Section 10 Sub-section (1) Clause (d) and

Sub-section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of CPWD,

Chandigarh in not regularizing the services of

Sh. Naginder Parsad Rai, Electrical Khalasi, w.e.f.

11.10.2000 is legal and justified? If not, to what relief

the concerned workman is entitled?”

In response to the notice, the claimants submitted

statement of claim and pleaded that claimant No.1 is the

workman Union and claimant No.2 (hereinafter called the

workman) is its member. That the workman was employed

as Khalasi through contractor w.e.f. 11.10.2000. It is

pleaded that though he was engaged through a contractor

but he discharged his functions under the complete control

of the management and the contract was entered into just

to deprive him all the benefits of labour laws and the

contract is a sham transaction. That there is a direct

relationship of principal employer and employee between

the management and the workman and he is entitled to

regularization of his services but his services were abruptly

terminated on 1.4.2004 without any notice, payment of

compensation etc. and the persons junior to him were

retained in service. That the Ministry of Labour vide

Notification No. 690 dated 31.7.2002 abolished the

employment of Khalasi etc. on contract in view of Section

10(1) of the Contract Labour (Regulation and Abolition)

Act, 1970. It is further pleaded that he discharged the

same functions as are being discharged by the regular

employees and he is entitled to more pay on the principle

of equal pay for equal work.

The workman has prayed that the act of the

management in not regularizing his services is unjust and

illegal and he is entitled to regularization of his service

against the sanctioned vacant post of Khalasi and with

more pay on the principle of ‘equal pay for equal work’.

Respondent management filed written statement

denying the relationship and pleaded that workman was

never engaged by the management and he was not paid

anything by it. It entered into a contract with the contractor

and the contractor may have deployed the persons for the

performance of the job as per conditions of the contract.

The department cannot verify whether the workman was

actually engaged by the contractor. Management paid

the amount under the agreement to the contractor who in

turn paid the wages to the persons engaged by him. It is

specifically denied that the workman was employed as a

khalasi. Since the workman was not engaged by the

respondent management, there is no relationship of master

and servant between the parties. That the contract entered

into between the respondent management and the

contractor is not a sham transaction.

Parties led their evidence.

In support of his case the workman appeared in the

witness box and examined Inderdev Tiwari and S.K. Verma.

Workman filed his affidavit reiterating the case as

set out in the claim petition.

Inder Dev Tiwari has deposed that workman was

working with the respondent department and his services

were terminated on 1.4.2004.

S.K. Verma, a Junior Engineer of the respondent

department has stated that workman was working with

the contractor. A photocopy of register was shown to him

but he did not identify his signature thereon.

On the other hand the management examined

Sh. R.K. Gupta who filed his affidavit reiterating the case

of the respondent management as set out in the written

statement.

I have heard Sh. S.D. Sharma, counsel for the

workman and Sh. Anish Babbar, counsel for the

management and have gone through the file carefully.

It was argued by the learned counsel for the workman

that the workman worked under the direct control and

supervision of the officers of the respondent management

and the contract entered into between the management

and contractor is a sham transaction and since there was

a direct relationship of principal employer and employee

between the parties, the services of the workman are to be

regularized and the act of the management in not

regularizing his services is illegal.

I have considered the contention of the learned

counsel.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4459

The workman himself has pleaded that he was

employed through contractor and nothing has come on

the file that the said contract is a sham transaction as it is

not proved on the file that workman used to receive

remuneration from the management who had the power to

select and dismiss him or there were any mutual

obligations. Even if it is taken that he worked under the

control and supervision of the management, the said sole

fact is not sufficient to hold that he was an employee of

the management.

Even if it is taken that there was a relationship of

principal employer and employee between the parties, the

workman is not entitled to regularization of his services.

In the latest pronouncement Secretary, State of Karnataka

Vs. Uma Devi reported in A.I.R. 2006 S.C. 1806, the Hon’ble

Apex Court observed that employees who were not

appointed by observing the regular procedure and rules

are not entitled to regularization of their services. The

Hon’ble Apex Court observed in para 1 of the judgment as

follows:-

Public employment in a sovereign socialist secular

democratic republic, has to be as set down by the

Constitution and the laws made thereunder. Our

constitutional scheme envisages employment by the

government and its instrumentalities on the basis of

a procedure established in that behalf. Equality of

opportunity is the hallmark, and the Constitution

has provided also for affirmative action to ensure

that unequals are not treated equals. Thus, any

public employment has to be in terms of the

constitutional scheme.

It was further observed in para 5 of the judgment as

follow:-

The power of a state as an employer is more limited

than that of a private employer inasmuch as it is

subjected to constitutional limitations and cannot

be exercised arbitrarily. Article 309 of the

Constitution gives the Government the power to

frame rules for the purpose of laying down the

conditions of service and recruitment of persons to

be appointed to public services and posts in

connection with the affairs of the Union or any of

the States. The article contemplates the drawing up

of a procedure and rules to regulate the service

conditions of appointees appointed to public posts.

It is well acknowledged that because of this, the

entire process of recruitment and for services of

controlled by detailed procedures which specify the

necessary qualifications, the mode of appointment

etc. If rules have been made under Article 309 of the

Constitution, then the Government can make

appointments only in accordance with the rules.

The Hon’ble Apex Court further observed in para 34

of the judgment as follows:-

Thus, it is clear that adherence to the rule of equality

in public employment is a basic feature of our

constitution and since the rule of law is the core of

our constitution, a court would certainly be disabled

from passing an order upholding a violation of Article

14 or in ordering the overlooking of the need to

comply with the requirements of Article 14 read with

Article 16 of the constitution. Therefore, consistent

with the scheme for public employment, this court

while laying down the law, has necessarily to hold

that unless the appointment is in terms of the relevant

rules and after a proper competition among qualified

persons, the same would not confer any right on the

appointee. If it is a contractual appointment,

appointment comes to an end at the end of the

contract, if it were an engagement of appointment

on daily wages or casual basis; the same would come

to an end when it is discontinued. Similarly, a

temporary employee could not claim to be made

permanent on the expiry of his term of appointment.

It has also to be clarified that merely because a

temporary employee or a casual wage worker is

continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed

in regular service or made permanent, merely on the

strength of such continuance, if the original

appointment was not made by following a due

process of selection as envisaged by the relevant

rules. It is not open to the court to prevent regular

recruitment at the instance of temporary employees

whose period employment has come to an end or of

ad hoc employee who by the very nature of their

appointment, do not acquire any right. High Courts

acting under article 226 of the constitution of India,

should not ordinarily issue directions for absorption,

regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of

the constitutional scheme. Merely because an

employee had continued under cover of an order of

court, which we have described as litigious

employment in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or

made permanent in the service. In fact, in such cases

the High court may not be justified in issuing interim

directions, since, after all, if ultimately the employee

approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner

that ultimately no prejudice will be caused to him,

whereas an interim direction to continue his

employment would hold up the regular procedure

for selection or impose on the state the burden of

paying an employee who is really not required. The

courts must be careful in ensuring that they do not

interfere unduly with the economic arrangement of

its affairs by the state or its instrumentalities or lend

4460

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

themselves the instruments to facilitate the

bypassing of the constitutional and statutory

mandate.

Thus, an employee who is not appointed as per terms

of the relevant rules and regulations, his services cannot

be regularized. Since it is the case of the workman himself

that he was employed through a contractor and not as per

any rules and regulations of the department, the

department was not required to regularize his services and

it cannot be held that he is entitled to regularization of his

services as claimed by him.

Thus, it is not proved that there was a relationship

of employer and employee between the workman and the

respondent management and he is not entitled to

regularization of the services and accordingly the reference

is answered against the workman. Let hard and soft copy

of the award be sent to the Central Government for further

necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1677-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-ih-MCY;w-Mh-

izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je

U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k 816@2005) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&42012@39@2003&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1677.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 816/

2005) of the Cent. Govt. Indus. Tribunal-cum-Labour Court

No. 2, Chandigarh as shown in the Annexure, in the

industrial dispute between the management of Central

Public Works Department and their workmen, received by

the Central Government on 30/05/2014.

[No. L-42012/39/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH.

Present : SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No. 816/2005

Registered on 7.9.2005

The Zonal Secretary,

All India CPWD (MRM)

Karamchari Sanghathan (Regd.)

CPWD Store Building Sector 7B,

Chandigarh.

Sh. Manjit Singh,

S/o Sh. Gurdev Singh,

Khalasi, represented by All India,

CPWD (MRM)

Karamchari Sangathan

.....Petitioner

Versus

The Executive Engineer,

Central Public Works Department,

Chandigarh Central Electrical Division,

Kendriya Sadan, Sector 9A,

Chandigarh.

.....Respondents

APPEARANCES

For the workman

: Sh. S.D. Sharma Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on-15.5.2014

Central Government vide Notification No. L-42012/

39/2003-IR(CM-II) Dated 21.7.2003, by exercising its powers

under Section 10 Sub Section (1) Clause (d) and Sub

Section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of CPWD

for not regularizing the services of Sh. Manjit Singh

Electrical Khalasi even consequent upon abolition

of Contract Labour system as per Government of

India, Ministry of Labour’s notification dated

31.7.2002 is legal and justified? If not, to what relief

the concerned workman is entitled to and from which

date?”

In response to the notice, the claimants submitted

statement of claim pleading that claimant No.1 is a workman

Union and claimant No. 2 (hereinafter called the workman)

is its member. That the workman was employed by the

management as Khalasi through a contractor with effect

from 17.9.1999. That the work is being supervised by the

officials of the management. That the contractor entered

into between the management and the contractor which is

a sham transaction in order to deprive him of the benefits

of the labour laws.

It is further pleaded that the Government vide

Notification dated 31.7.2002 abolished the employment of

contract labour issued under the Contract Labour

(Regulation and Abolition), Act 1970. That he discharged

the same functions as are being discharged by the regular

employees but was not paid the wages as given to the

regular employees. Since he is a direct employee of the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4461

management, his services were to be regularized with the

management. He has made the prayer that non-

regularization of his service against the available

sanctioned vacant post of Khalasi by the management

from the date of his initial appointment i.e. 17.9.1999 is

unjust and illegal and he is entitled to be regularized against

the sanctioned post and he is entitled to same pay on the

principle of equal pay for equal work.

Respondent management filed written statement

denying the relationship and pleaded that workman was

never engaged by the management and he was not paid

anything by it. It entered into a contract with the contractor

and the contractor may have deployed the persons for the

performance of the job as per conditions of the contract.

The department cannot verify whether the workman was

actually engaged by the contractor. Management paid

the amount under the agreement to the contractor who in

turn paid the wages to the persons engaged by him. It is

specifically denied that the workman was employed as a

khalasi. Since the workman was not engaged by the

respondent management, there is no relationship of master

and servant between the parties. That the contract entered

into between the respondent management and the

contractor is not a sham transaction.

Parties led their evidence.

In support of his case the workman appeared in the

witness box and examined Mohinder Pal and L.D. Gera.

Workman filed his affidavit reiterating the case as

set out in the claim statement.

Mohinder Pal has stated that he is an employee of

the respondent management and the workman worked

there as a Khalasi.

Sh. L. D. Gera has deposed that workman had worked

under him and he identified his initials at certain pages on

the Inquiry Officer’s register.

On the other hand the department examined Sh. R.K.

Gupta who filed his affidavit reiterating the case as set out

in the written statement.

I have heard Sh. S.D. Sharma, counsel for the

workman and Sh. Anish Babbar, counsel for the

management and have gone through the file carefully.

The only contention raised by the learned counsel

at the time of arguments is that workman is actually an

employee of the respondent management and the contract

system is a camouflage to avoid the implications of the

labour laws and since the workman is an employee of the

management, his services were to be regularized.

In support of his contention he has carried me

through the statements of the witnesses and particularly

of the L.D. Gera who is a Junior Engineer in the department

and has stated that workman worked under him and submit

that the management has the overall supervision and

control over the workman and thus there is a relationship

of principal employer and employee between the parties.

I have considered the contention of the learned

counsel.

The statement of L.D. Gera do prove that workman

worked under him and he was supervising his work but

this sole fact is not sufficient to come to the conclusion

that workman is an employee of the respondent

management. It is the case of the workman himself that he

was engaged through a contractor and there is nothing

on the file to suggest that the said contract is a sham

transaction. It is not proved on the file that workman was

receiving remunerations from the respondent management

who has the power to select and dismiss him, and there

were mutual obligations and in the absence of the said

facts it cannot be said that he is an employee of the

management and the contract entered into between the

management and the contractor is a sham transaction.

If for the sake of arguments, it is taken that there is

a direct relationship of principal employer and employee

between the parties, whether the workman is entitled to

regularization of his services.

In the latest pronouncement Secretary, State of

Karnataka Vs. Uma Devi reported in A.I.R. 2006 S.C. 1806,

the Hon’ble Apex Court observed that employees who

were not appointed by observing the regular procedure

and rules are not entitled to regularization of their services.

The Hon’ble Apex Court observed in para 1 of the judgment

as follows :—

Public employment in a sovereign socialist secular

democratic republic, has to be as set down by the

Constitution and the laws made thereunder. Our

constitutional scheme envisages employment by the

government and its instrumentalities on the basis of

a procedure established in that behalf. Equality of

opportunity is the hallmark, and the Constitution

has provided also for affirmative action to ensure

that unequals are not treated equals. Thus, any

public employment has to be in terms of the

constitutional scheme.

It was further observed in para 5 of the judgment as

follow :—

The power of a state as an employer is more limited

than that of a private employer inasmuch as it is

subjected to constitutional limitations and cannot

be exercised arbitrarily. Article 309 of the

Constitution gives the Government the power to

frame rules for the purpose of laying down the

conditions of service and recruitment of persons to

be appointed to public services and posts in

connection with the affairs of the Union or any of

the States. The article contemplates the drawing up

4462

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

of a procedure and rules to regulate the service

conditions of appointees appointed to public posts.

It is well acknowledged that because of this, the

entire process of recruitment and for services of

controlled by detailed procedures which specify the

necessary qualifications, the mode of appointment

etc. If rules have been made under Article 309 of the

Constitution, then the Government can make

appointments only in accordance with the rules.

The Hon’ble Apex Court further observed in para 34

of the judgment as follows:-

Thus, it is clear that adherence to the rule of equality

in public employment is a basic feature of our

constitution and since the rule of law is the core of

our constitution, a court would certainly be disabled

from passing an order upholding a violation of Article

14 or in ordering the overlooking of the need to

comply with the requirements of Article 14 read with

Article 16 of the constitution. Therefore, consistent

with the scheme for public employment, this court

while laying down the law, has necessarily to hold

that unless the appointment is in terms of the relevant

rules and after a proper competition among qualified

persons, the same would not confer any right on the

appointee. If it is a contractual appointment,

appointment comes to an end at the end of the

contract, if it were an engagement of appointment

on daily wages or casual basis; the same would come

to an end when it is discontinued. Similarly, a

temporary employee could not claim to be made

permanent on the expiry of his term of appointment.

It has also to be clarified that merely because a

temporary employee or a casual wage worker is

continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed

in regular service or made permanent, merely on the

strength of such continuance, if the original

appointment was not made by following a due

process of selection as envisaged by the relevant

rules. It is not open to the court to prevent regular

recruitment at the instance of temporary employees

whose period employment has come to an end or of

ad hoc employee who by the very nature of their

appointment, do not acquire any right. High Courts

acting under article 226 of the constitution of India,

should not ordinarily issue directions for absorption,

regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of

the constitutional scheme. Merely because an

employee had continued under cover of an order of

court, which we have described as litigious

employment in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or

made permanent in the service. In fact, in such cases

the High court may not be justified in issuing interim

directions, since, after all, if ultimately the employee

approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner

that ultimately no prejudice will be caused to him,

whereas an interim direction to continue his

employment would hold up the regular procedure

for selection or impose on the state the burden of

paying an employee who is really not required. The

courts must be careful in ensuring that they do not

interfere unduly with the economic arrangement of

its affairs by the state or its instrumentalities or lend

themselves the instruments to facilitate the

bypassing of the constitutional and statutory

mandate.

Thus, an employee who is not appointed as per terms

of the relevant rules and regulations, his services cannot

be regularized. Since it is the case of the workman himself

that he was employed through a contractor and not as per

any rules and regulations of the department, the

department was not required to regularize his services and

it cannot be held that he is entitled to regularization of his

services as claimed by him.

Thus, it is not proved that there was a relationship

of employer and employee between the workman and the

respondent management and he is not entitled to

regularization of the services and accordingly the reference

is answered against the workman. Let hard and soft copy

of the award be sent to the Central Government for further

necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1678-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ih-th-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; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k 997@2005) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&42012@181@2003&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1678.—In pursuance of Section 17 of the

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

Government hereby publishes the Award Ref. 997/2005 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 2,

Chandigarh as shown in the Annexure, in the industrial

dispute between the management of PGIMER, Sector-12

and their workmen, received by the Central Government

on 30/05/2014.

[No. L-42012/181/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4463

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No.997/2005

Registered on 16.9.2005

Sh. Yash Pal Sharma,

S/o Sh. Ramesh Kumar Sharma,

H. No. 1067, Sector 28-B,

Chandigarh.

.....Petitioner

Versus

The Director,

PGI, Chandigarh

.....Respondents

APPEARANCES

For the workman

: Sh. N.K. Nagar Adv.

For the Management

: Sh. N.K. Zakhmi Adv.

AWARD

Passed on-7.5.2014

Central Government vide Notification No. L-42012/

181/2003-IR(CM-II)) Dated 19.7.2004, 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 PGI,

Chandigarh in terminating the services of Sh. Yash

Pal Sharma, Data Entry Operator, Grade-A, w.e.f.

15.1.2002 is legal and justified? If not, to what relief

the workman is entitled?”

The facts, in brief, are that respondent management

sent requisition to Employment Exchange to send the

names of eligible candidates for appointment to the post

of Data Entry Operator Grade A in the year 1999. The

name of the workman was sponsored along with other

candidates. He appeared in the computer test and qualified

the same. He also appeared for the interview on 27.4.1999

before a duly constituted Selection Committee. The

Committee prepared a penal of selected candidates and

his name was shown at Serial No.4. The first three

candidates were given appointment on regular basis. But

the workman was appointed as Data Entry Operator Grade

A on ad hoc basis for a period of 89 days vide order dated

20.7.2000 (Exhibit WW1/4). The term of appointment was

extended from time to time vide order dated 17.11.2000

(Exhibit WW1/6), 31.1.2010 (Exhibit WW1/7); 5.5.2001

(Exhibit WW1/8); 13.8.2001 (Exhibit WW1/9); 15.9.2001

(Exhibit WW1/10). Management appointed Sh. Omkar

Singh on 15.1.2002 and terminated his services. Now

according to the workman, since he completed more than

240 days of service without any break, his services were

not liable to be terminated without complying with the

provisions of Section 25F of the Act. Therefore termination

order is not sustainable. It is further pleaded that three

candidates were given appointment letter on regular basis

in pursuance of the interview held on 21.4.1999 and there

was no reason to put the workman in the waiting list and

to employ him on ad hoc basis. That the workman is

entitled to be reinstated in service with all the benefits.

According to the management the workman was

appointed only on ad hoc basis for 89 days or till such

time the regular selection was made whichever was earlier

and since a regular employee was appointed on 15.1.2002,

his services were rightly terminated. It is further pleaded

that five posts of Data Entry Operator Grade A was notified

on 25.11.2000 and the workman appeared in the test but

could not qualify the same and therefore he is not liable to

be appointed on regular basis. That the management

ordered to pay him retrenchment compensation and sent

the letter through registered cover which was received

with the report ‘refused’. That the management has

complied with the provisions of Section 25F of the Act.

Parties led their evidence.

Workman appeared in the witness box and filed his

affidavit reiterating the case as set out in the claim petition.

On the other hand management examined Pradeep

Bhutani who filed his affidavit reiterating the case of the

respondent management.

I have heard Sh. N.K. Nagar, counsel for the workman

and Sh. N.K. Zakhmi, counsel for the management.

It was argued by the learned counsel for the workman

that the workman continuously worked from 17.11.2000 to

15.1.2002 i.e. for more than 240 days and his services could

not have been terminated without payment of

retrenchment compensation as required under Section 25F

of the Act and being so, the termination of the workman is

illegal. He further argued that workman was selected by

duly constituted Committee after test and there was no

question of giving him appointment on ad hoc basis and

therefore his appointment on ad hoc basis is also illegal.

On the other hand learned counsel for the

management contended that while passing the order of

termination, it was ordered to pay him retrenchment

compensation and a notice was sent to him through

registered cover to collect the same from the office but

registered letter was received back undelivered and being

so, there was sufficient compliance of the provisions of

Section 25F of the Act. He has further contended that

since the service of the workman was on contractual basis

which automatically came to an end on the expiry of the

contract and the termination of his service do not amount

to ‘retrenchment’.

4464

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

I have considered the respective contentions of the

learned counsels.

It is not denied that the workman appeared in a test

for the post of Data Entry Operator Grade A in the year

1999 and after qualifying the test, he was interviewed by a

duly constituted committee. But he was placed in the

waiting list at serial No.4 and was given appointment only

on ad hoc basis vide letter dated 20.7.2000 (Exhibit WW1/

4). The question whether the action of the management in

appointing him on ad hoc basis was legal or not, is not to

be gone into by this Court, and it is to see only whether

the termination of his services were legal and justified.

Vide letter dated 20.7.2000 (Exhibit WW1/4) the workman

was appointed for a period of 89 days only or till such time

the regular selection is made whichever was earlier; and

the ad hoc appointment was extended vide letter dated

17.11.2000 (Exhibit WW1/6) up to 31.12.2000 on the existing

terms and conditions. Similarly an order dated 13.1.2001

(Exhibit WW1/7) and 5.5.2001 (Exhibit WW1/8), 13.8.2001

(Exhibit WW1/9) and 15.9.2001 (Exhibit WW1/10) were

passed.

In the last letter dated 15.9.2001 the term was

extended up to 30.11.2001 or till such time regular candidate

was appointed. A bare perusal of the said letters make it

quite clear that the workman was appointed for a fixed

term and with a few stipulation that if any regular selection

was made then also his services were to be terminated.

Respondent management terminated the services

of the workman vide order dated 15.5.2002 (Exhibit R11)

vide which the order issued vide endorsement No.F-552-

E-II-PGI 2002 was superseded but the said order has not

been placed on the record by both the parties. The said

order dated 15.5.2002 (Exhibit R11) read as follow:-

In supersession to this office order issued under

Endst No. F-552 EII(I)-PGI-2002, the services of Sh. Yash

Pal Sharma, Data Entry Operator Grade-A (Ad Hoc) are

hereby extended upto 15.5.2002. He will be paid salary

upto 15.5.2002 and thereafter the ad hoc appointment shall

come to an end automatically.

Sh. Yash Pal Sharma shall be paid one month’s salary

in lieu of short notice of termination of appointment as

well as retrenchment compensation equivalent to one

month’s gross salary, which he shall collect from the cashier

of the institute. On termination of adhoc appointment

Sh. Yash Pal Sharma shall stand relieved w.e.f. 15.5.2002

(A/E).

Perusal of the said letter shows that on the one hand

the services of Sh. Yash Pal Sharma (Ad Hoc) were

extended and at the same time it was ordered that his

services would come to an end. The said letter further

prove that an order was passed for one month salary in

lieu of short notice as well as retrenchment compensation

with the direction to the workman to collect the same from

the cashier.

Section 2(oo) defines ‘retrenchment’ and it read as

follow:-

[(oo) “Retrenchment” means the termination by the

employer of the service of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include–

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age of

superannuation if the contract of employment

between the employer and the workman concerned

contains a stipulation in that behalf; or

[(bb) termination of the service of the workman as a result

of the non-renewal of the contract of employment

between the employer and the workman concerned

on its expiry or of such contract being terminated

under a stipulation in that behalf contained therein;

(c)

termination of the service of a workman on the

ground of continued ill-health;]

Thus the termination of the services of the workman

as result of non-renewal of the contract on its expiry or of

such contract being terminated under a stipulation in that

behalf, do not amount to ‘retrenchment’. In the

appointment letters, as mentioned above, he was

appointed for a fixed term with a further stipulation that if

any regular selection was made then, his services would

come to an end. It is not disputed that the respondent

management again advertised 5 posts of Data Entry

Operator in December 2000 and the workman also applied

for the said posts, but he could not qualify the test. As a

result of this selection 5 persons were selected and

Sh. Omkar Singh was posted at the place where the present

workman was working as clear from the copy of the order

Exhibit W11. Thus a person appointed on regular basis

joined on the post and in view of the stipulation contained

in his appointment letters, he was to be relieved from his

duties. Thus his appointment was upto 15.5.2002 and the

same came to an end on the expiry of the said date as well

a new incumbent joined in his place. Since his services

were terminated as per stipulation in the letters vide which

he was appointed, the same do not amount to

‘retrenchment’.

Here, it was submitted by the learned counsel for

the management that retrenchment compensation was

ordered to be paid to the workman vide letter dated

15.5.2002 and even registered notice was sent to him and

as such the condition prescribed in Section 25F of the Act

for retrenchment compensation has been complied with.

This contention is devoid of any force. A perusal of the

said order dated 15.5.2002 as reproduced above shows

that his services were terminated with the direction to the

workman to collect the compensation from the cashier. It

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4465

is a settled law that the compliance of Section 25-F(a) and

(b) is a condition precedent for retrenchment and in the

present case, the only order was passed to pay him the

compensation but the same was not paid and it cannot be

said that the provisions of Section 25F has been complied

with. In this respect reliance may be placed on Roop Narain

Shukla Vs. Presiding Officer, Industrial Tribunal, Faridabad

wherein it was observed in para 8 of the judgment as

follows:-

Thus, it would clearly appear that mere intimation to

the workman that he should collect his dues from

the office of any working day is not enough

compliance with the provisions of Section 25-F(a)

and (b) of the Industrial Disputes Act. In this case,

I, therefore, hold that there was no compliance of

25-F of the Industrial Disputes Act.

Therefore, in the present case where only intimation

was sent to the workman to collect his dues is not

compliance of the provisions of the said Section. However

in the present case, the termination of the services of the

workman do not amount to retrenchment, as discussed

above; and therefore, compensation was not liable to be

paid.

In result, it is held, that termination of the services

of the workman is legal 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 ebZ] 2014

dk-vk- 1679-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-ih-MCY;w-Mh-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k

818@2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk FkkA

¹la- ,y&42012@305@2003&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1679.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 818/

2005) of the Cent. Govt. Indus. Tribunal-cum-Labour Court

No. 2, Chandigarh as shown in the Annexure, in the

industrial dispute between the management of Central

Public Works Department and their workmen, received by

the Central Government on 30/05/2014.

[No. L-42012/305/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No.818/2005

Registered on 8.9.2005

The Zonal Secretary,

All India CPWD (MRM)

Karamchari Sanghathan (Regd)

CPWD Store Building Sector 7B,

Chandigarh.

Sh. Parveen Kumar,

S/o Sh. Chandrika Prasad Rai,

Khalasi, C/o All India, CPWD (MRM)

Karamchari Sangathan (Regd.),

through: Zonal Secretary,

CPWD Store Building, Sector 7B,

Chandigarh

.....Petitioner

Versus

The Executive Engineer,

Central Public Works Department,

Chandigarh Central Electrical Division,

Kendriya Sadan, Sector 9A,

Chandigarh

.....Respondents

APPEARANCES

For the workman

: Sh. S.D. Sharma Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on : 15-5-2014

Central Government vide Notification No. L-42012/

305/2003-IR(CM-II) Dated 23.8.2004, 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 contract between the management of

CPWD and their contract is sham and the demand

of All India CPWD (MRM) Karamchari Sangathan

for regularization of the services of Sh. Praveen

Kumar in the organization of CPWD is legal and

justified? If yes, to what relief they are entitled?”

In response to the notice the claimants submitted

statement of claim that claimant No.1 is a workman Union

and claimant No.2 is its member. That claimant No.2

(hereinafter called the workman) was employed on contract

labour system as Khalasi at Enquiry Office of CFSL

Building, Sector 36, Chandigarh through M/s. Care

Enterprises, Shop No.358, Industrial Area, Phase I,

4466

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Chandigarh w.e.f. 27.7.2002 by the management for

attending the work which was perennial in nature and is

still continuing at the said job. He worked under the direct

control and supervision of the management. That the

Ministry of Labour vide Notification No.690 dated

31.7.2002 abolished the employment of wireman, Khalasi

etc. on contract in view of Section 10(1) of the Contract

Labour (Regulation and Abolition) Act, 1970. That the

contract system entered into between the management

and the contractor is a sham transaction and there is a

direct relationship of principal employer and employee

between the management and the workman. That there

are vacant sanctioned posts for regularization of the

services of the workman.

It is further pleaded that workman is entitled to equal

pay for equal work and he was not paid wages as given to

regular employees discharging the same duties. That he

has completed more than 240 days in a year.

It is further pleaded that the regularization of his

services against sanctioned post of Khalasi is unjust,

unfair and illegal and he is entitled to regularization of his

services as Khalasi.

Respondent management filed written statement

denying the relationship and pleaded that workman was

never engaged by the management and he was not paid

anything by it. It entered into a contract with the contractor

and the contractor may have deployed the persons for the

performance of the job as per conditions of the contract.

The department cannot verify whether the workman was

actually engaged by the contractor. Management paid

the amount under the agreement to the contractor who in

turn paid the wages to the persons engaged by him. It is

specifically denied that the workman was employed as a

khalasi. Since the workman was not engaged by the

respondent management, there is no relationship of master

and servant between the parties. That the contract entered

into between the respondent management and the

contractor is not a sham transaction.

In the rejoinder the workman reiterated his case as

set out in the claim petition and further pleaded that he is

under the control, supervision and authority of the

respondent management.

Parties led their evidence.

The workman examined Sh. L.D. Gera, Bunny Singh

and himself appeared in the witness box.

Workman filed his affidavit reiterating the case as

set out in the claim petition.

He has placed on record photocopy of the logbook

Mark WW1/2 to Mark WW1/28.

Sh. L.D. Gera is a Junior Engineer of the respondent

management and identified his signature on certain pages

of the said logbook and further deposed that workman

worked under him and was engaged by the contractor.

Bunny Singh filed his affidavit deposing that

workman worked as Khalasi with the respondent

management.

On the other hand the management has examined

Sh. R.K. Gupta, XEN who filed his affidavit reiterating the

case of the management as set out in the written statement.

I have heard Sh. S.D. Sharma, counsel for the

workman and Sh. Anish Babbar, counsel for the

management and have gone through the file carefully.

The only contention raised by the learned counsel

at the time of arguments is that workman is actually an

employee of the respondent management and the contract

system is a camouflage to avoid the implications of the

labour laws and since the workman is an employee of the

management, his services are to be regularized.

The first question to be seen is whether the workman

is a direct employee of the management? The workman

himself has pleaded that he was employed on contract

labour system and as such he cannot claim himself to be

an employee of the management. There is nothing on the

file to suggest that the contract entered into between the

management and the contractor was a sham transaction.

In Ram Singh and others Vs. Union Territory

Chandigarh and others reported in (2004) 1 SCC it was

observed by Hon’ble Apex Court in para 15 and 16 of the

judgment as follows

(15) In determining the relationship of employer and

employee no doubt control is one of the important

tests but is not to be taken as the sole test. In

determining the relationship of employer and

employee, all other relevant facts and circumstances

are required to be considered including the terms

and conditions of the contract. It is necessary to

take a multiple pragmatic approach weighing up all

the factors for and against an employment instead

of going by the sole test of control. An integrated

approach is needed. Integration test is one of the

relevant tests. It is applied by examining whether

the persons was fully integrated into the employer’s

concern or remained apart from and independent of

it. The other factors which may be relevant are who

has the power to select and dismiss, to pay

remuneration, deduct insurance contributions,

organize the work, supply tools and materials and

what are the mutual obligations between them.

(16) Normally, the relationship of employer and

employee does not exist between an employer and a

contractor and the servant of an independent

contractor. Where, however an employer retains or

assumes control over the means and method by

which the work of a contractor is to be done, it may

be said that the relationship between employer and

employee exists between him and the servants of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4467

such a contractor. In such a situation the mere fact

of formal employment by an independent contractor

will not relieve the master of liability where the

servant is in fact, in his employment. In that event it

may be held that an independent contractor is

created or is operating as a subterfuge and the

employee will be regarded as the servant of the

principal employer. Whether a particular relationship

between employer and employee is genuine or a

camouflage through the mode of a contractor, is

essentially a question of fact to be determined on

the basis of the features of the relationship, the

written terms of employment, if any, and the actual

nature of the employment. The actual nature of

relationship concerning a particular employment

being essentially a question of fact it has to be raised

and proved before an industrial adjudicator.

Thus, the workman has to prove that he used to

receive remuneration from the respondent management

who has the power to select and dismiss him and there

were any mutual obligations and these facts are not proved

on the file and it cannot be said that contract is a sham

transaction. If he worked under the supervision of the

management as deposed by L.D. Gera, that fact is not

sufficient to hold that he was an employee of the

management.

The second question is that even if there was a

relationship of employer and employee between the

management and workman, whether workman is entitled

to regularization of his services.

In the latest pronouncement Secretary, State of

Karnataka Vs. Uma Devi reported in A.I.R. 2006 S.C. 1806,

the Hon’ble Apex Court observed that employees who

were not appointed by observing the regular procedure

and rules are not entitled to regularization of their services.

The Hon’ble Apex Court observed in para 1 of the judgment

as follows:-

Public employment in a sovereign socialist secular

democratic republic, has to be as set down by the

Constitution and the laws made thereunder. Our

constitutional scheme envisages employment by the

Government and its instrumentalities on the basis of a

procedure established in that behalf. Equality of

opportunity is the hallmark, and the Constitution has

provided also for affirmative action to ensure that unequals

are not treated equals. Thus, any public employment has

to be in terms of the constitutional scheme.

It was further observed in para 5 of the judgment as

follow:-

The power of a state as an employer is more limited

than that of a private employer inasmuch as it is

subjected to constitutional limitations and cannot

be exercised arbitrarily. Article 309 of the Constitution

gives the Government the power to frame rules for

the purpose of laying down the conditions of service

and recruitment of persons to be appointed to public

services and posts in connection with the affairs of

the Union or any of the States. The article

contemplates the drawing up of a procedure and

rules to regulate the service conditions of appointees

appointed to public posts. It is well acknowledged

that because of this, the entire process of recruitment

and for services of controlled by detailed procedures

which specify the necessary qualifications, the mode

of appointment etc. If rules have been made under

Article 309 of the Constitution, then the Government

can make appointments only in accordance with the

rules.

The Hon’ble Apex Court further observed in para 34

of the judgment as follows:-

Thus, it is clear that adherence to the rule of equality

in public employment is a basic feature of our

constitution and since the rule of law is the core of

our constitution, a court would certainly be disabled

from passing an order upholding a violation of Article

14 or in ordering the overlooking of the need to

comply with the requirements of Article 14 read with

Article 16 of the constitution. Therefore, consistent

with the scheme for public employment, this court

while laying down the law, has necessarily to hold

that unless the appointment is in terms of the relevant

rules and after a proper competition among qualified

persons, the same would not confer any right on the

appointee. If it is a contractual appointment,

appointment comes to an end at the end of the

contract, if it were an engagement of appointment

on daily wages or casual basis; the same would come

to an end when it is discontinued. Similarly, a

temporary employee could not claim to be made

permanent on the expiry of his term of appointment.

It has also to be clarified that merely because a

temporary employee or a casual wage worker is

continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed

in regular service or made permanent, merely on the

strength of such continuance, if the original

appointment was not made by following a due

process of selection as envisaged by the relevant

rules. It is not open to the court to prevent regular

recruitment at the instance of temporary employees

whose period employment has come to an end or of

ad hoc employee who by the very nature of their

appointment, do not acquire any right. High Courts

acting under article 226 of the constitution of India,

should not ordinarily issue directions for absorption,

regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of

the constitutional scheme. Merely because an

4468

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

employee had continued under cover of an order of

court, which we have described as litigious

employment in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or

made permanent in the service. In fact, in such cases

the High Court may not be justified in issuing interim

directions, since, after all, if ultimately the employee

approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner

that ultimately no prejudice will be caused to him,

whereas an interim direction to continue his

employment would hold up the regular procedure

for selection or impose on the state the burden of

paying an employee who is really not required. The

courts must be careful in ensuring that they do not

interfere unduly with the economic arrangement of

its affairs by the state or its instrumentalities or lend

themselves the instruments to facilitate the

bypassing of the constitutional and statutory

mandate.

Thus, an employee who is not appointed as per terms

of the relevant rules and regulations, his services cannot

be regularized. Since it is the case of the workman himself

that he was employed through a contractor and not as per

any rules and regulations of the department, the

department was not required to regularize his services and

it cannot be held that he is entitled to regularization of his

services as claimed by him.

Thus, it is not proved that there was a relationship

of employer and employee between the workman and the

respondent management and he is not entitled to

regularization of the services and accordingly the reference

is answered against the workman. Let hard and soft copy

of the award be sent to the Central Government for further

necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1680-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-ih-MCY;w-Mh-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k

70@2004) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk FkkA

¹la- ,y&42012@86@2003&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1680.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 70/2004)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 2,

Chandigarh as shown in the Annexure, in the industrial

dispute between the management of Central Public Works

Department and their workmen, received by the Central

Government on 30/05/2014.

[No. L-42012/86/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

Present : SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No. 70/2004

Registered on 17.3.2005

The Zonal Secretary,

All India CPWD (MRM)

Karamchari Sanghathan (Regd)

CPWD Store Building Sector 7B,

Chandigarh

Sh. Kala Singh,

S/o Sh. Hakam Singh,

office of the Executive Engineer,

Central Electrical Division, CPWD,

Chandigarh Kendriya Sadan,

3rd Floor, Sector 9A,

Chandigarh C/o All India CPWD (MRM)

Karamchari Sangathan (Regd)

through Zonal Secretary,

CPWD Store Building,

Sector 7B, Chandigarh

.....Petitioner

Versus

The Executive Engineer,

Central Public Works Department,

Chandigarh Central Electrical Division,

Kendriya Sadan,

Sector 9A, Chandigarh

.....Respondent

APPEARANCES :

For the workman

: Sh. S.D. Sharma Adv.

For the Management

: Sh. Anish Babbar Adv.

AWARD

Passed on-15.5.2014

Central Government vide Notification No. L-42012/

86/2003 IR(CM-II)) Dated 25.2.2005, by exercising its

powers under Section 10 Sub-section (1) Clause (d) and

Sub-section (2-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘Act’) has referred the following

Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of CPWD,

Chandigarh in not regularizing the services of

Sh. Kala Singh, Electrical Khalasi, w.e.f. 3.2.98 is legal

and justified? If not, to what relief the concerned

workman is entitled?”

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4469

In response to the notice, the claimants submitted

statement of claim and pleaded that claimant No.1 is the

workmen Union and claimant No.2 (hereinafter called the

workman) is its member. That the workman was employed

as Khalasi through contractor w.e.f. 3.2.1998. It is pleaded

that though he was engaged through a contractor but he

discharged his functions under the complete control of

the management and the contract was entered into just to

deprive him the benefits of labour laws and the contract is

a sham transaction. That there is a direct relationship of

principal employer and employee between the management

and the workman and he is entitled to regularization of his

services. That the Ministry of Labour vide Notification

No.690 dated 31.7.2002 abolished the employment of

Khalasi etc. on contract in view of Section 10(1) of the

Contract Labour (Regulation and Abolition) Act, 1970. It

is further pleaded that he discharged the same functions

as are being discharged by the regular employees and he

is entitled to more pay on the principle of equal pay for

equal work.

The workman has prayed that the act of the

management in not regularizing his services is unjust and

illegal and he is entitled to regularization of his service

against the sanctioned vacant post of Khalasi and with

more pay on the principle of ‘equal pay for equal work’.

Respondent management filed written statement

denying the relationship and pleaded that workman was

never engaged by the management and he was not paid

anything by it. It entered into a contract with the contractor

and the contractor may have deployed the persons for the

performance of the job as per conditions of the contract.

The department cannot verify whether the workman was

actually engaged by the contractor. Management paid

the amount under the agreement to the contractor who in

turn paid the wages to the persons engaged by him. It is

specifically denied that the workman was employed as a

khalasi. Since the workman was not engaged by the

respondent management, there is no relationship of master

and servant between the parties. That the contract entered

into between the respondent management and the

contractor is not a sham transaction.

Parties led their evidence.

In support of his case the workman appeared in the

witness box and examined Subhash Chander.

Workman has filed his affidavit reiterating the case

as set out in the claim petition.

Subhash Chander has stated that workman has been

working with the respondent management w.e.f. 3.2.1998.

On the other hand the management examined

Sh. R.K. Gupta who filed his affidavit reiterating the case

of the respondent management as set out in the written

statement.

I have heard Sh. S.D. Sharma, counsel for the

workman and Sh. Anish Babbar, counsel for the

management and have gone through the file carefully.

It was contended by the learned counsel for the

workman that the workman work under the control and

supervision of the officers of the department and there is

a direct relationship of principal employer and employee

between the parties and the contract entered into to

engage the workman is a sham transaction and the

workman is entitled to regularization of his services.

I have considered the contention of the learned

counsel.

If it is taken that the workman work under the control

and supervision of the officers of the respondent

department, this sole fact is not sufficient to prove that

there is a relationship of principal employer and employee

between the parties. Nothing has come on the file that

respondent management paid remunerations to the

workman and has the power to select and dismiss him. No

mutual obligations are proved on the file and in the

circumstances it cannot be said that there was any

relationship of principal employer and employee between

the parties.

The Hon’ble Supreme Court in its latest

pronouncement in Secretary, State of Karnataka Vs. Uma

Devi reported in A.I.R. 2006 S.C. 1806, observed that

employees who were not appointed by observing the

regular procedure and rules are not entitled to regularization

of their services. The Hon’ble Apex Court observed in

para 1 of the judgment as follows:-

Public employment in a sovereign socialist secular

democratic republic, has to be as set down by the

Constitution and the laws made thereunder. Our

constitutional scheme envisages employment by the

Government and its instrumentalities on the basis

of a procedure established in that behalf. Equality

of opportunity is the hallmark, and the Constitution

has provided also for affirmative action to ensure

that unequals are not treated equals. Thus, any

public employment has to be in terms of the

constitutional scheme.

It was further observed in para 5 of the judgment as

follow:-

The power of a state as an employer is more limited

than that of a private employer inasmuch as it is

subjected to constitutional limitations and cannot

be exercised arbitrarily. Article 309 of the

Constitution gives the Government the power to

frame rules for the purpose of laying down the

conditions of service and recruitment of persons to

be appointed to public services and posts in

connection with the affairs of the Union or any of

the States. The article contemplates the drawing up

of a procedure and rules to regulate the service

4470

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

conditions of appointees appointed to public posts.

It is well acknowledged that because of this, the

entire process of recruitment and for services of

controlled by detailed procedures which specify the

necessary qualifications, the mode of appointment

etc. If rules have been made under Article 309 of the

Constitution, then the Government can make

appointments only in accordance with the rules.

The Hon’ble Apex Court further observed in para 34

of the judgment as follows:-

Thus, it is clear that adherence to the rule of equality

in public employment is a basic feature of our

constitution and since the rule of law is the core of

our constitution, a court would certainly be disabled

from passing an order upholding a violation of Article

14 or in ordering the overlooking of the need to

comply with the requirements of Article 14 read with

Article 16 of the constitution. Therefore, consistent

with the scheme for public employment, this court

while laying down the law, has necessarily to hold

that unless the appointment is in terms of the relevant

rules and after a proper competition among qualified

persons, the same would not confer any right on the

appointee. If it is a contractual appointment,

appointment comes to an end at the end of the

contract, if it were an engagement of appointment

on daily wages or casual basis; the same would come

to an end when it is discontinued. Similarly, a

temporary employee could not claim to be made

permanent on the expiry of his term of appointment.

It has also to be clarified that merely because a

temporary employee or a casual wage worker is

continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed

in regular service or made permanent, merely on the

strength of such continuance, if the original

appointment was not made by following a due

process of selection as envisaged by the relevant

rules. It is not open to the court to prevent regular

recruitment at the instance of temporary employees

whose period employment has come to an end or of

ad hoc employee who by the very nature of their

appointment, do not acquire any right. High Courts

acting under article 226 of the constitution of India,

should not ordinarily issue directions for absorption,

regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of

the constitutional scheme. Merely because an

employee had continued under cover of an order of

court, which we have described as litigious

employment in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or

made permanent in the service. In fact, in such cases

the High Court may not be justified in issuing interim

directions, since, after all, if ultimately the employee

approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner

that ultimately no prejudice will be caused to him,

whereas an interim direction to continue his

employment would hold up the regular procedure

for selection or impose on the state the burden of

paying an employee who is really not required. The

courts must be careful in ensuring that they do not

interfere unduly with the economic arrangement of

its affairs by the state or its instrumentalities or lend

themselves the instruments to facilitate the

bypassing of the constitutional and statutory

mandate.

Thus, an employee who is not appointed as per terms

of the relevant rules and regulations, his services cannot

be regularized. Since it is the case of the workman himself

that he was employed through a contractor and not as per

any rules and regulations of the department, the

department was not required to regularize his services and

it cannot be held that he is entitled to regularization of his

services as claimed by him.

Thus, it is not proved that there was a relationship

of employer and employee between the workman and the

respondent management and he is not entitled to

regularization of the services and accordingly the reference

is answered against the workman. Let hard and soft copy

of the award be sent to the Central Government for further

necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1681-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-lh-lh-,y-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa vkS|ksfxd vfèkdj.k@Je

U;k;ky;] xksnkojh[kUuh ds iapkV (lanHkZ la[;k 38@2011) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1681.—In pursuance of Section 17 of the

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

Government hereby publishes the award of the

Indus.Tribunal-cum-Labour Court, Godavarikhani (IT/ID/

38/2011) as shown in the Annexure in the Industrial Dispute

between the employers in relation to the management of

SCCL and their workmen, which was received by the

Central Government on 30.05.2014.

[No. L-22013/1/2014-IR (C-II)]

B. M. PATNAIK, Desk Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4471

ANNEXURE

BEFORE THE CHAIRMAN, INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.

DISTRICT & SESSIONS COURT,

GODAVARIKHANI

Present : SRI G. V. KRISHNAIAH, Chairman-cum-

Presiding Officer, Godavarikhani

Tuesday, the 15th Day of April, 2014.

Industrial Dispute No. 38 of 2011.

Between :

Jangapalli Ravinder,

S/o. Ankus, Age: 36 years,

Occ : Ex-Badili Filler, E.C. No. 2902169,

IK-1 Incline, Srirampur Area, H.No.6-5-487,

Power House Colony,

Godavarikhani

.....Petitioner

And

Director (PA & W),

Corporate Office,

SCCL, Kothagudem,

District : Khammam

.....Respondent.

This Industrial Dispute petition coming on before

me for final hearing in the presence of Sri G. Ramesh,

Advocate, for the petitioner and Sri D.Krishnamurthy,

Advocate, for the respondent, and the matter having stood

over before me for consideration till this date, the Court

passed the following :—

AWARD

This petition under Sec.2 – A(2) of I.D. Act is filed

challenging the dismissal of the petitioner on the ground

of habitual absence.

The allegations in the petition are as follows:-

Petitioner served in the respondent company from

1997 to 2002. His attendance is as follows:

1997

99 musters

1998

132 musters

1999

102 musters

2000

110 musters

2001

172 musters

2002

103 musters

In the year 2002, petitioner suffered from Enteric

Fever and Hepatitis and took treatment in Raginedu

Government Hospital from 28.11.2002 to 05.04.2003. He

was advised rest subsequently also. Petitioner came to

know that he was dismissed from service vide order dated

01.06.2004. The punishment given to the petitioner is harsh

and unjustified. Therefore, the petitioner may be reinstated

into service as Badili Filler with continuity of service,

consequential attendant benefits and full back wages.

Respondent filed counter stating that since the year

2000 petitioner has not been attending his duties as Badili

Filler. The following is the attendance of the petitioner

from the year 2000 to 2004.

2000

110 musters

2001

190 musters

2002

111 musters

2003

45 musters (upto October, 2003)

2004

Nil

On this ground petitioner was dismissed from service

after conducting departmental enquiry. Petitioner received

some of the terminal benefits and an amount of Rs.5,573/-

is due from the petitioner towards repayment of Festival

Advance, Strike Advance, IA recovery and interest of

RBPS 2% for pension. It is also contended that the

petitioner did not take treatment from any of the Company

Hospitals at Ramagundam, Ramakrishnapur, Bellampalli

and Kothagudem. Since respondent is a Government

Company and mining industry being a central subject.

Industrial Tribunal cum Labour Court, Hyderabad alone

is having jurisdiction.

During the course of enquiry, memo under Sec.11-A

of I.D. Act is filed by the petitioner that he is not

questioning the procedure in the enquiry. Ex.W-1 to W-8

and Ex.M-1 to M-10 are marked.

Now the point for consideration is:

“Whether the order of dismissal of the petitioner is

justified?”

Most of the facts are admitted i.e., petitioner’s

appointment as Badili Filler, number of days he worked,

enquiry being conducted against the petitioner and order

of dismissal. In fact as per Ex.M-6, petitioner under took

at least 20 musters per month. Petitioner failed to put in

the requisite musters. Ultimately enquiry was conducted

on 04.10.2003 at 09.00 am.

The explanation of the petitioner i.e., suffered from

ill health was not made out in the enquiry and now such

an explanation cannot be considered at this stage.

Admittedly, petitioner did not take treatment in any of the

hospitals maintained by the respondent company.

Therefore, it has to be taken that petitioner was habitually

absent from duties. Now the question of punishment has

to be examined. The misconduct alleged against the

petitioner does not involve moral turpitude. Therefore,

the punishment of dismissal from service is not justified.

In a decision reported in DIVISION BENCH JUDGMENT

OF GUJARATH HIGH COURT REPORTED IN 1982

LAB.IC.1031 BETWEEN: R.M., PARMAR VRS.,

GUJARATH ELECTRICITY BOARD, Justice Thakkar as

4472

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

he then was pointed out the following impracticalities

inherent in the order of the dismissal.

Guidelines laid down in the mater of inflicting

punishment of discharge and dismissal:-

In a disciplinary proceeding for an alleged fault of

an employee, punishment is imposed not in order to

seek retribution or to give vent to feelings of wrath.

The main purpose of a punishment is to correct the

fault of the employee concerned by making him more

alert in the future and to hold out of warning to the

other employees to be careful in the discharge of

their duties so that they do not expose themselves

to similar punishment. And the approach to be made

is the approach parents make towards an erring or

misguided child.

It is not expedient in the interest of the administration

to visit every employee against whom a fault is

established with the penalty of dismissal and to get

rid of him. It would be counter-productive to do so

for it would be futile to expect to recruit employees

who are so perfect that they would never commit

any fault.

In order not to attract the charge of arbitrariness it

has to be ensured that the penalty imposed is

commensurate with the magnitude of the fault. Surely

one cannot rationally or justly impose the same

penalty for giving a slap as one would impose for

homicide.

When different categories of penalties can be

imposed in respect of the alleged fault, one of which

is dismissal from service, the disciplinary authority

perforce is required to consult himself for selecting

the most appropriate penalty from out of the range

of penalty available that can be imposed, having

regard to the nature, content and gravity of the

default. Unless the disciplinary authority reaches

the conclusion that having regard to the nature,

content and magnitude of the fault committed by

the employee concerned, it would be absolutely

unsafe to retain him in service, the maximum penalty

of dismissal cannot be imposed. If a lesser penalty

can be imposed without seriously jeopardizing the

interest of the employees the disciplinary authority

cannot impose the maximum penalty of dismissal

from service. He is bound to ask the inner voice and

rational faculty why a lesser penalty cannot be

imposed.

It cannot be over looked that by and large it is

because the maximum penalty is imposed and total

ruination stares one in the eyes that the employee

concerned is obliged to approach the court and avail

the costly time-consuming machinery to challenge

in desperation the order passed by the disciplinary

authority. If a lesser penalty was imposed, he might

not have been obliged to take recourse to costly

legal proceedings which result in loss of public time

and also result in considerable hardship and misery

to the employee concerned.

When the disciplinary proceedings end in favour of

the employee, the employer has often to pay back

wages say for about 5 years without being able to

take work from the employee concerned. On the

other hand, the employee concerned would have

had to suffer economic misery and mental torture

for all these years. Even the misery of being obliged

to remain idle without work would constitute an

unbearable burden. And when the curtain drops

every one is left with a bitter taste in the mouth. All

because the extreme penalty of dismissal or removal

is imposed instead of a lighter one.

Every harsh order of removal from service creates

bitterness and arouses feeling of antagonism in the

collective mind of the workers and gives raise to a

feeling of class conflict. It does more harm than

good to the employer as also to the society.

Taking of a petty article by a worker in a moment of

weakness when he yields to a temptation does not

call for an extreme penalty of dismissal from service.

More particularly, when he does not hold a sensitive

post of trust (pilferage by a cashier or by a store

keeper from the stores in his charge, for instances,

may be viewed with seriousness). A worker brought

up and living in an atmosphere of poverty and want

when faced with temptation, ought not to, but may

yield to it in a moment of weakness. It cannot be

approved, but it can certainly be understood

particularly in an age when even the rich commit

economic offences to get richer and do so by and

large with impunity (and even tax evasion or

possession of black money is not considered to be

dishonorable by and large). A penalty of removal

from service is therefore not called for when a poor

worker yields to a momentary temptation and

commits an offence which often passed under the

name of kleptomania when committed by the rich.

10.

In the result, the order of dismissal dated 22.05.2004

marked as Ext.M-10 is set aside and the respondents’

company is hereby directed to reinstate the petitioner

into service as “Afresh Badili Filler” and he shall be

subjected to medical test for the post. The petitioner

is not entitled to any back wages, continuity of

service and any other attendant benefits.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 15th day of April, 2014.

G. V. KRISHNAIAH, Chairman-cum-Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4473

Appendix of Evidence

Witnesses Examined

For workman

For Management

-Nil-

E X H I B I T S

For workman :—

Ex.W-1

Dt. 25-01-1997

Office order (appointment

order as Badli Filler), x.copy.

Ex.W-2

Dt. 02-05-2003

Charge sheet. X.copy

Ex.W-3

Dt. 05-04-2003

Medical certificate. X. copy

Ex.W-4

Dt. 22-05-2004

Dismissal order along with

05-06-2004

office orders, x.copy.

Ex.W-5

Dt. 13-04-2011

Demand notice

Ex.W-6

Dt. 13-04-2011

Postal receipt.

Ex.W-7

Dt. 12-04-2005

Interview call letter

Ex.W-7

Dt. 08-04-2011

Un-delivered

postal

returned cover with Ack.,

For Management :—

Ex.M-1

Dt. 02-05-2003

Charge sheet. X.copy

Ex.M-2

Dt. 03-05-2003

Ack., to Charge sheet.

X.copy

Ex.M-3

Dt. 04/5-08-2003 Enquiry notice, x.copy

Ex.M-4

Dt. 27-08-2003

Enquiry notice, o/copy

Ex.M-5

Dt. 24-09-2003

Enquiry notice published in

Andhra

Jyothi

Daily

Newspaper. X.copy.

Ex.M-6

Dt. 29-09-2003

Undertaking given by the

petitioner

during

the

counseling

Ex.M-7

Dt. 04-10-2003

Enquiry proceedings

Ex.M-8

Dt. 15-10-2003

Enquiry report

Ex.M-9

Dt. 27-10-2003

Show cause notice

Ex.M-10 Dt. 00-04-2004

Office order (dismissal

22-05-2004

order).

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1682-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-lh-lh-,y-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky;] xksnkojh[kUuh ds iapkV (lanHkZ la[;k

24@2012) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk FkkA

¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1682.—In pursuance of Section 17 of the

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

Government hereby publishes the award of the

Indus.Tribunal-cum-Labour Court, Godavarikhani (IT/ID/

24/2012) as shown in the Annexure in the Industrial Dispute

between the employers in relation to the management of

SCCL and their workmen, which was received by the

Central Government on 30.05.2014.

[No. L-22013/1/2014-IR (C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CHAIRMAN, INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.

DISTRICT & SESSIONS COURT,

GODAVARIKHANI

Present :

SRI G.V. KRISHNAIAH, Chairman-cum-

Presiding Officer

Monday, the 7th Day of April, 2014

Industrial Dispute No. 24 of 2012

Between:-

Lingampalli Ravi Kumar,

S/o.Venkati, Ex-Coal Filler,

E.C. No. 2373352,

Aged about 35 years,

Qr. No. ND-799, Nagarjuna Colony,

Ramakrishnapur, Adilabad District

.....Petitioner

And

The Dy. General Manager,

I K-1A Incline, S.C.Co. Ltd.,

Mandamarri Area, District: Adilabad.

The General Manager,

Mandamarri Area, S.C.Co. Ltd.,

District: Adilabad.

The Chairman & Managing Director,

S.C.Co. Ltd., P. O : Kothagudem,

District : Khammam (A.P.)

.....Respondents

This Industrial Dispute petition coming on before

me for final hearing in the presence of Sri K. Sudhakar

Reddy, Advocate, for the petitioner and Sri D.

Krishnamurthy Advocate, for the respondents, and the

matter having stood over before me for consideration till

this date, the Court passed the following:-

AWARD

The petitioner who worked as Coal Filler in the

Singareni Collieries Company Limited seeks his

reinstatement by setting aside the dismissal order dated

16-10-2011 with continuity of service, all other

consequential attendant benefits and full back wages.

4474

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

The allegations in the petition are as follows:-

According to the petitioner, he was appointed as

Badli Coal Filler in the year 2007 under dependent

employment scheme in place of his deceased father. Ever

since the date of his appointment, the petitioner was

discharging his duties to the utmost satisfaction of the

company authorities. He belongs to SC community and

hails from a very poor family. He successfully completed

required musters during the probation period for

confirmation as Coal filler and he attended to his duties

promptly and regularly. He had put in more than the

required physical musters every year from 2007 and 2008

more than 100 physical musters. During the year 2009 and

2010, the petitioner was compelled to look after his mother

who was given prolonged treatment for his illness. The

petitioner put in 58 musters in the year 2009, and 57 musters

in the year 2010 due to his mother’s ill-health and also his

ill-health. As such in the year 2009 & 2010 he could not

attend to his duties regularly as he was forced to stay in

the hospitals for long spells frequently to look after his

mother. The 1st respondent without considering the true

facts and ill-health condition of the petitioner in the year

2011, issued charge sheet under company’s standing order

No. 25.25 alleging that:-

“For your habitual late absence or habitual absence

from duty without sufficient cause during the year 2010".

The respondents failed to give any family counseling

and observation period to the petitioner after the domestic

enquiry conducted on 28-01-2011 which is against to the

circulars and MOS of the company. The 2nd respondent

without considering the genuine ill-health of the petitioner

and his mother, dismissed him from service. The domestic

enquiry was not conducted fairly and properly by the

respondents and the findings of the enquiry officer are

highly perverse, biased and he was dismissed from Service

by order dated 16-10-2011, unjustly. Therefore, he prays

to allow the petition granting full back wages.

R-2 filed counter which was adopted by R-1 and R-

3. The main points raised in the counter are regarding the

lack of jurisdiction of this Tribunal since the respondents

management is a Central Government Company and that

there was poor attendance of the petitioner from 2007 (107)

musters in the year 2008, (101) musters in the year 2009

(58) and in the year 2010, (57) musters and that therefore

charges were framed under Sec. 25(25) of standing orders

of the company:-

“Habitual late attendance or habitual absence from

duty without sufficient cause”.

The petitioner received charge sheet and submitted

his explanation. The petitioner attended the enquiry on

28-01-2011 and admitted the charges levelled against him

in the charge sheet and participated in the enquiry. The

petitioner was called for counseling by the respondents

company on 12-05-2011, but the petitioner failed to attend

the counseling. The respondents company conducted

the enquiry fairly following the principles of natural justice

and after taking the previous record of the petitioner and

his performance during the observation period into

consideration, was constrained to dismiss the petitioner

from service. Therefore, punishment of dismissal was

imposed with effect from 31-10-2011 as per order dated

16-10-2011. Habitual absenteeism adversely impacts the

performance of the company, which is engaged in the

mining activities and therefore, petition may be dismissed.

Heard both sides. The respondents have filed written

arguments also. Though the petitioner contended that

the departmental enquiry was not conducted fairly and

properly, subsequently memo was filed U/Sec. 11-A of

I.D. Act conceding the validity of the departmental enquiry.

As such, it is not in dispute.

The consideration of respective contentions of the

parties the following points required to be determined:-

“Whether this Tribunal has got jurisdiction?”

“Whether the punishment of dismissal of the

petitioner is justified and proportionate?”

POINT No : 1

As per the Judgment of the Hon’ble High Court

reported in 1997 (III) LLJ (Supp.) 11 between U. Chinnappa

And Cotton Corporation of India, this Court has got

jurisdiction to entertain the dispute raised by the petitioner.

Hence, the point is accordingly answered in favour of the

petitioner.

POINT No : 2.

The petitioner gave reply to the charge sheet which

is marked as Ex.M-2. He pleaded that due to ill-health of

his mother and could put in only (57) musters during the

year 2009. As per the enquiry statement of the petitioner

at page No.6 under Ex.M-4, the petitioner reiterated the

same defence. He admitted that from January, 2010 to

December, 2010, he absented to duties for total (290) days.

He did not produce any medical treatment slips/reports

during departmental enquiry.

10. In a decision reported in DIVISION BENCH

JUDGMENT OF GUJARATH HIGH COURT REPORTED

IN 1982 LAB.IC.1031 BETWEEN: R.M., PARMAR VRS.,

GUJARATH ELECTRICITY BOARD, the following

practicalities were pointed out in the matter of inflicting

punishment of discharge and dismissal:-

In a disciplinary proceeding for an alleged fault of

an employee, punishment is imposed not in order to

seek retribution or to give vent to feelings of wrath.

The main purpose of a punishment is to correct the

fault of the employee concerned by making him more

alert in the future and to hold out of warning to the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4475

other employees to be careful in the discharge of

their duties so that they do not expose themselves

to similar punishment. And the approach to be made

is the approach parents make towards an erring or

misguided child.

It is not expedient in the interest of the administration

to visit every employee against whom a fault is

established with the penalty of dismissal and to get

rid of him. It would be counter-productive to do so

for it would be futile to expect to recruit employees

who are so perfect that they would never commit

any fault.

In order not to attract the charge of arbitrariness, it

has to be ensured that the penalty imposed is

commensurate with the magnitude of the fault. Surely

one cannot rationally or justly impose the same

penalty for giving a slap as one would impose for

homicide.

When different categories of penalties can be

imposed in respect of the alleged fault, one of which

is dismissal from service, the disciplinary authority

perforce is required to consult himself for selecting

the most appropriate penalty from out of the range

of penalty available that can be imposed, having

regard to the nature, content and gravity of the

default. Unless the disciplinary authority reaches

the conclusion that having regard to the nature,

content and magnitude of the fault committed by

the employee concerned, it would be absolutely

unsafe to retain him in service, the maximum penalty

of dismissal cannot be imposed. If a lesser penalty

can be imposed without seriously jeopardizing the

interest of the employees the disciplinary authority

cannot impose the maximum penalty of dismissal

from service. He is bound to ask the inner voice and

rational faculty why a lesser penalty cannot be

imposed.

It cannot be over looked that by and large it is

because the maximum penalty is imposed and total

ruination stares one in the eyes that the employee

concerned is obliged to approach the court and avail

the costly time-consuming machinery to challenge

in desperation the order passed by the disciplinary

authority. If a lesser penalty was imposed, he might

not have been obliged to take recourse to costly

legal proceedings which result in loss of public time

and also result in considerable hardship and misery

to the employee concerned.

When the disciplinary proceedings end in favour of

the employee, the employer has often to pay back

wages say for about 5 years without being able to

take work from the employee concerned. On the

other hand, the employee concerned would have

had to suffer economic misery and mental torture

for all these years. Even the misery of being obliged

to remain idle without work would constitute an

unbearable burden. And when the curtain drops

every one is left with a bitter taste in the mouth. All

because the extreme penalty of dismissal or removal

is imposed instead of a lighter one.

Every harsh order of removal from service creates

bitterness and arouses feeling of antagonism in the

collective mind of the workers and gives raise to a

feeling of class conflict. It does more harm than

good to the employer as also to the society.

Taking of a petty article by a worker in a moment of

weakness when he yields to a temptation does not

call for an extreme penalty of dismissal from service.

More particularly, when he does not hold a sensitive

post of trust (pilferage by a cashier or by a store

keeper from the stores in his charge, for instances,

may be viewed with seriousness). A worker brought

up and living in an atmosphere of poverty and want

when faced with temptation, ought not to, but may

yield to it in a moment of weakness. It cannot be

approved, but it can certainly be understood

particularly in an age when even the rich commit

economic offences to get richer and do so by and

large with impunity (and even tax evasion or

possession of black money is not considered to be

dishonorable by and large). A penalty of removal

from service is therefore not called for when a poor

worker yields to a momentary temptation and

commits an offence which often passed under the

name of kleptomania when committed by the rich.

11.

Admittedly the respondent company has not issued

show cause notice, prior to imposing the punishment of

dismissal from service. There is no moral turpitude on the

part of the petitioner. However, he failed to produce any

documentary evidence to substantiate his defence for the

absented period. Under these circumstances, I hold that

dismissal of the petitioner from service is not justified and

disproportionate. I further hold that denial of entire back

wages and continuity of service will be sufficient

punishment to the petitioner; and ordering for his

reinstatement as “Afresh Badli Filler”, would meet the ends

of justice.

12.

In the result, the order of dismissal dt.16-10-2011

marked as Ex.M-10 is set aside and the respondents are

directed to reinstate the petitioner into service as “Afresh

Badli Filler” and he shall be subjected to medical test for

the post. The petitioner is not entitled to any back wages,

continuity of service and any other attendant benefits.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 7th day of April, 2014.

G. V. KRISHNAIAH, Chairman-cum-Presiding Officer

4476

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

Appendix of Evidence

Witnesses Examined

For workman

For Management

-Nil-

EXHIBITS

For workman :—

Ex.W-1

Dt. 16-10-2011

Dismissal order.

Ex.W-2

Dt. 21-07-2011

Letter issued to the petitioner

calling comments on enquiry

report with charge sheet,

x.copy

Ex.W-3

Dt. 01-11-2012

Demand Notice

Ex.W-4

Dt. 03-11-2012

Postal Ack., of respondent

Ex.W-5

Dt. 30-08-2009

Medical certificate issued by

Sri Dr. B. Rajam.

Ex.W-6

Dt. 25-10-2010

Medical certificate issued by

Sri Dr. B. Rajam.

Ex.W-7

Dt. 20-01-2011

Representation of petitioner,

x.copy.

For Management :—

Ex.M-1

Dt. 10-01-2011

Charge sheet.

Ex.M-2

Dt. 20-01-2011

Representation of petitioner.

Ex.M-3

Dt. 24-01-2011

Enquiry memo

Ex.M-4

Dt. 28-01-2011

Enquiry proceedings

Ex.M-5

Dt. —

Enquiry report

Ex.M-6

Dt. 30-05-2011

Counseling letter issued to

petitioner.

Ex.M-7

Dt. 09-06-2011

Acknowledgement

Ex.M-8

Dt. 07-07-2011

Counseling of absenteeism of

petitioner’s observation period

letter.

Ex.M-9

Dt. 21-07-2011

Letter issued to the petitioner

calling comments in E.O.,

report with Ack.,

Ex.M-10 Dt. 16-11-2011

Dismissal order.

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1683-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-lh-lh-,y-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa vkS|ksfxd vfèkdj.k@Je

U;k;ky;] xksnkojh[kUuh ds iapkV (lanHkZ la[;k 36@2008) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014 dks izkIr

gqvk FkkA

¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1683.—In pursuance of Section 17 of the

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

Government hereby publishes the award of the

Indus.Tribunal-cum-Labour Court, Godavarikhani (IT/ID/

36/2008) as shown in the Annexure in the Industrial Dispute

between the employers in relation to the management of

SCCL and their workmen, which was received by the

Central Government on 30.05.2014.

[No. L-22013/1/2014-IR (C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CHAIRMAN, INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.

DISTRICT & SESSIONS COURT,

GODAVARIKHANI.

Present : SRI G. V. KRISHNAIAH, Chairman-cum-

Presiding Officer

Thursday, the 3rd Day of April, 2014.

Industrial Dispute No. 36 of 2008

Between :

Sk. Jaffer, Ex-Coal Filler,

E.C. No. 2892259,

S/o. Tarmiya, Aged about 40 years,

Qr. No. ST 2-370, Bus Stand Colony,

P.O. Godavarikhani,

District : Karimnagar – 505 209

.....Petitioner/Workman.

And

The Supdt. of Mines, S.C.Co. Ltd.,

Chennur – 2 Incline (now closed),

Represented by its Project Officer,

S.C. Co. Ltd., IK & CHR. Mines,

P.O. Srirampur, District: Adilabad.

The Project Officer,

IK & CHR. Mines,

P.O. Srirampur, District : Adilabad.

The Chairman & Managing Director,

S.C.Co. Ltd., P.O: Kothagudem,

District: Khammam (A.P.)

— Respondents/Management.

This Industrial Dispute petition coming on before

me for final hearing in the presence of Sri B.Amarender

Rao, Advocate, for the petitioner and Sri D. Krishnamurthy

Advocate, for the respondents, and the matter having

stood over before me for consideration till this date, the

Court passed the following :—

AWARD

The petitioner who worked as Coal Filler in the

Singareni Collieries Company Limited seeks his

reinstatement by setting aside the dismissal order dated

26.7.2005.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4477

The allegations in the petition are as follows:-

According to the petitioner, he had put in about

(200) musters in the year 2000. He was transferred from IK

1- Incline to Chennur – 2 Incline in June, 2001. The water

and atmosphere of Chennur – 2 Incline did not suit his

health and he suffered frequent fever and joint pains. He

was imparted medical treatment. He put in (91) musters in

2001, (71) musters in 2002 and (88) musters in 2003. He

submitted medical certificates to the respondents’-

company. Due to severe ill-health, he had put-in less

musters, which was not considered by the respondents.

The departmental enquiry was not conducted fairly and

properly and he was dismissed from Service by order dated

26.7.2005, unjustly. Therefore, he prays to allow the petition

granting full back wages.

R-2 filed counter which was adopted by R-1 and

R-3. The main points raised in the counter are regarding

the lack of jurisdiction of this Tribunal since the

respondents management is a Central Government

Company and that there was poor attendance of the

petitioner from 2001 to 2003 i.e., (91) musters in the year

2001, (71) musters in the year 2002 and (88) musters in the

year 2003, and that therefore charges were framed under

Sec. 25(25) of standing orders of the company:-

“Habitual late attendance or habitual absent from

duty without sufficient cause & put in only (33)

musters during the year 2003”.

The petitioner received charge sheet, but failed to

submit explanation and therefore respondent conducted

enquiry on 01.06.2004 with due notice to the petitioner.

The petitioner attended the enquiry and admitted the

charges. He pleaded that he met with accident in December

2002 outside and got fracture to his right hand finger and

absent for duties from 11-12-2002 to 15-2-2003. He

produced fit certificate issued by the company in support

of his above statement. Except this, he did not submit any

documentary evidence for his un-authorised absenteeism

during the whole year 2003. The petitioner was issued

show cause notice dt.30-10-2004 along with the copies of

the enquiry proceedings but the petitioner is not available

in his residential address. Therefore, show cause notice

was published in Andhra Jyothi Telugu News daily paper

dated 22-5-2005 but the petitioner failed to approach the

respondent company. Therefore, punishment of dismissal

was imposed with effect from 01.08.2005 as per order dated

26.07.2005. That habitual absenteeism adversely impacts

the performance of the company, which is engaged in the

mining activities and therefore, petition may be dismissed.

Heard both sides. The respondents have filed written

arguments also. Though the petitioner contended that

the departmental enquiry was not conducted fairly and

properly, subsequently memo was filed U/Sec.11-A of I.D.,

Act conceding the validity of the departmental enquiry.

As such, it is not in dispute.

The consideration of respective contentions of the

parties the following points required to be determined:-

“Whether this Tribunal has got jurisdiction?”

“Whether the punishment of dismissal of the

petitioner is justified and proportionate?”

POINT No : 1

As per the Judgment of the Hon’ble High Court

reported in 1997 (III) LLJ (Supp.) 11 between U. Chinnappa

And Cotton Corporation of India, this Court has got

jurisdiction to entertain the dispute raised by the petitioner.

Hence, the point is accordingly answered in favour of the

petitioner.

POINT NO. 2

The petitioner did not give any reply to the charges

levelled against him. As per the charge sheet marked as

Ex.M-1, he was absent for 11 days in February, 2003, 4

days in March, 2003, 5 days in April, 2003, 2 days in May,

2003 and 2 days in November, 2003. The respondents have

admitted in their counter that the petitioner produced fit

certificate issued by the respondents’ company hospital

for the period from 11-12-2002 to 15-2-2003, stating that he

met with an accident out side and got fractured to his right

hand finger. As per the enquiry statement of the petitioner

at page No.4 under Ex.M-3 and report of the enquiry officer

at page No.2 under Ex.M-4, the above defence of the

petitioner is corroborated. Hence, for this period from

11-12-2002 to 15-2-2003, the petitioner produced evidence

to justify his absence from duties.

9. In a decision reported in DIVISION BENCH

JUDGMENT OF GUJARAT HIGH COURT REPORTED IN

1982 LAB.IC.1031 BETWEEN: R.M., PARMAR VRS.,

GUJARATH ELECTRICITY BOARD, the following guide

lines were laid down in the mater of inflicting punishment

of discharge and dismissal:—

In a disciplinary proceeding for an alleged fault of

an employee, punishment is imposed not in order to

seek retribution or to give vent to feelings of wrath.

The main purpose of a punishment is to correct the

fault of the employee concerned by making him more

alert in the future and to hold out of warning to the

other employees to be careful in the discharge of

their duties so that they do not expose themselves

to similar punishment. And the approach to be made

is the approach parents make towards an erring or

misguided child.

It is not expedient in the interest of the administration

to visit every employee against whom a fault is

established with the penalty of dismissal and to get

rid of him. It would be counter-productive to do so

for it would be futile to expect to recruit employees

who are so perfect that they would never commit

any fault.

4478

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

In order not to attract the charge of arbitrariness it

has to be ensured that the penalty imposed is

commensurate with the magnitude of the fault. Surely

one cannot rationally or justly impose the same

penalty for giving a slap as one would impose for

homicide.

When different categories of penalties can be

imposed in respect of the alleged fault, one of which

is dismissal from service, the disciplinary authority

perforce is required to consult himself for selecting

the most appropriate penalty from out of the range

of penalty available that can be imposed, having

regard to the nature, content and gravity of the

default. Unless the disciplinary authority reaches

the conclusion that having regard to the nature,

content and magnitude of the fault committed by

the employee concerned, it would be absolutely

unsafe to retain him in service, the maximum penalty

of dismissal cannot be imposed. If a lesser penalty

can be imposed without seriously jeopardizing the

interest of the employees the disciplinary authority

cannot impose the maximum penalty of dismissal

from service. He is bound to ask the inner voice and

rational faculty why a lesser penalty cannot be

imposed.

It cannot be over looked that by and large it is

because the maximum penalty is imposed and total

ruination stares one in the eyes that the employee

concerned is obliged to approach the court and avail

the costly time-consuming machinery to challenge

in desperation the order passed by the disciplinary

authority. If a lesser penalty was imposed, he might

not have been obliged to take recourse to costly

legal proceedings which result in loss of public time

and also result in considerable hardship and misery

to the employee concerned.

When the disciplinary proceedings end in favour of

the employee, the employer has often to pay back

wages say for about 5 years without being able to

take work from the employee concerned. On the

other hand, the employee concerned would have

had to suffer economic misery and mental torture

for all these years. Even the misery of being obliged

to remain idle without work would constitute an

unbearable burden. And when the curtain drops

every one is left with a bitter taste in the mouth. All

because the extreme penalty of dismissal or removal

is imposed instead of a lighter one.

Every harsh order of removal from service creates

bitterness and arouses feeling of antagonism in the

collective mind of the workers and gives raise to a

feeling of class conflict. It does more harm than

good to the employer as also to the society.

Taking of a petty article by a worker in a moment of

weakness when he yields to a temptation does not

call for an extreme penalty of dismissal from service.

More particularly, when he does not hold a sensitive

post of trust (pilferage by a cashier or by a store

keeper from the stores in his charge, for instances,

may be viewed with seriousness). A worker brought

up and living in an atmosphere of poverty and want

when faced with temptation, ought not to, but may

yield to it in a moment of weakness. It cannot be

approved, but it can certainly be understood

particularly in an age when even the rich commit

economic offences to get richer and do so by and

large with impunity (and even tax evasion or

possession of black money is not considered to be

dishonorable by and large). A penalty of removal

from service is therefore not called for when a poor

worker yields to a momentary temptation and

commits an offence which often passed under the

name of kleptomania when committed by the rich.

10.

Under these circumstances considering the fact that

the petitioner produced medical certificate for the period

from 11-12-2002 to 15-2-2003 and his performance during

the charge sheeted months of February, 2003 to June, 2003

and November, 2003 during which the number of absented

days is less, I hold that dismissal of the petitioner from

service is not justified and disproportionate. I further

hold that denial of entire back wages and entire service of

the petitioner will be sufficient punishment and ordering

for his reinstatement as “Afresh Badli Filler”, would meet

the ends of justice.

11.

In the result, the order of dismissal dt.26-07-2005

marked as Ex.M-9 is set aside and the respondents are

directed to reinstate the petitioner into service as “Afresh

Badli Filler” and he shall be subjected to medical test for

the post. The petitioner is not entitled to any back wages,

continuity of service and any other attendant benefits.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 3rd day of April, 2014.

G. V. KRISHNAIAH, Chairman-cum-Presiding Officer

Appendix of Evidence

Witnesses Examined

For workman

For Management:-

-Nil-

EXHIBITS

For workman:-

Ex.W-1

Dt. 01-112-2001 Office order (Coal filler

promotion letter)

Ex.W-2

Dt. 226-06-2001 Relieving order

Ex.W-3

Dt. 25-05-2004

Charge sheet.

Ex.W-4

Dt. 26-07-2005

Dismissal order.

Ex.W-5

Dt. 27-07-2007

Demand letter

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4479

Ex.W-6

Dt. 31-07-2007

Postal Ack., card of project

officer of R-2

Ex.W-7

Dt. 30-07-2007

Un-delivered postal returned

cover of R-1 with Ack.,

For Management:-

Ex.M-1

Dt. 25-05-2004

Charge sheet

Ex.M-2

Dt. 31-05-2004

Enquiry notice

Ex.M-3

Dt. 01-06-2004

Enquiry proceedings

Ex.M-4

Dt. 25-09-2004

Enquiry report

Ex.M-5

Dt. 30-10-2004

Show cause notice

Ex.M-6

Dt. 28-02-2005

Un-delivered returned postal

cover with Ack.

Ex.M-7

Dt. 22-05-2005

Show-cause notice published

in Andhra Jyothi Telugu

Daily Newspaper

Ex.M-8

Dt. 26-07-2005

Dismissal order.

ubZ fnYyh] 30 ebZ] 2014

dk-vk- 1684-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-lh-lh-,y-

ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèkdj.k@Je U;k;ky; xksnkojh[kUuh ds iapkV (lanHkZ la[;k

37@2011) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30@5@2014

dks izkIr gqvk Fkk A

¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th May, 2014

S.O.

1684.—In pursuance of Section 17 of the

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

Government hereby publishes the award of the

Indus.Tribunal-cum-Labour Court, Godavarikhani (IT/ID/

37/2011) as shown in the Annexure in the Industrial Dispute

between the employers in relation to the management of

SCCL and their workmen, which was received by the

Central Government on 30.05.2014.

[No. L-22013/1/2014-IR (C-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CHAIRMAN, INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.

DISTRICT & SESSIONS COURT,

GODAVARIKHANI

Present : SRI G.V. KRISHNAIAH, Chariman-cum-

Presiding Officer

Thursday, The 1st Day of May, 2014

Industrial Dispute No. 37 of 2011

Between :—

G. Mukund Reddy S/o. Sai Reddy,

Age 50 years, Occ : Coal Filler,

R/o. Regadi Maddikunta Mandal Odela,

District Karimnagar

.....Petitioner/Workman

A nd

The Chief General Manager,

SC Company Ltd., RG-I,

Godavarikhani, Post : Godavarikhani,

Dist: Adilabad (A.P.)

The Managing Director (Administration),

S.C.Co. Ltd., P.O: Kothagudem,

District : Khammam

(A.P.)

.....Respondents/Management.

This Industrial Dispute petition coming on before

me for final hearing in the presence of Sri S.Bhagavantha

Rao, Advocate, for the petitioner and Sri D . Krishnamurthy,

Advocate, for the respondents, and the matter having

stood over before me for consideration till this date, the

Court passed the following :—

AWARD

This petition is filed by Coal Filler of Singareni

Company Limited challenging his dismissal from service.

The allegations in the petition are as follows:-

It is stated that the petitioner was appointed as an

employee on 21-10-1983 and the petitioner discharged his

duties to the fullest satisfaction of superiors till up to

dismissal from service i.e., on 2-5-2010 which was effected

on 5-5-2010 and he has put in 29 years of qualified length

of service and his services are governed by various

standing orders of company.

Most of his juniors engaged VRS GHS and VRS

Scheme and drawn more than 10 Lakhs as compensation

and the company terminated the services on VRS, GHS

who have put in 23 years of service and the petitioner is

admittedly an employee of 29 years of service for which,

the petitioner rendered all most 27 years as a coal filler.

The petitioner was issued a charge sheet No.RG.I/GDK-6

A/R.08/5136, dt.20-12-2005, while the he was working under

GDK.VI-A Incline with the following charges:-

Theft, fraud or dishonesty in connection with the

employer’s business property.

Any willful and deliberate act which is subversive

of discipline or which may be detrimental to the

interest of company.

Allegation against the petitioner is while the

petitioner was working on 20-12-2005, the petitioner allowed

pilferage of coal through transport contractor by not

ensuring maintenance of proper record of coal issued from

the bunker as it is an offence under standing order. The

4480

THE GAZETTE OF INDIA : JUNE 7, 2014/JYAISTHA 17, 1936

[PART II—SEC. 3(ii)]

petitioner submitted his explanation. He also participated

in enquiry proceedings wherein it is clearly mentioned

that no loss is effected to company and the petitioner also

signed on the enquiry reports which was countersigned

by Routhu Mallaiah and no material is taken into count

and the respondent effected dismissal order dt.5-5-2010.

The respondent adopted unfair labour practice and

victimized the petitioner under the Act.

The respondent never considered the past service

of petitioner of 29 years and the petitioner also preferred

an appeal to Director, PA & W. SC company dt.1-6-2010.

The respondent did not consider his appeal. The

punishment is disproportionate to the alleged misconduct

and therefore petitioner may be reinstated into service

with continuity and other attendant benefits, full back

wages or VRS or VRS GHS by setting aside the termination

order dt. 5-5-2010.

R-1 filed counter adopted by R-2 stating that the

Respondents Company is a Central Government and

therefore this Court has no jurisdiction. The petitioner

was appointed in the respondents’ company on 21-10-1983

as Badli Filler and posted to work at GDK.No.6A Incline.

The management had introduced Voluntary Retirement

Scheme (Golden Shake Hand) during the years from 2000

to 2005 to various categories of employees with certain

conditions. The workmen who are issued charge sheets

under company standing orders and pending enquiries or

punished with proved misconduct are not eligible for the

above scheme.

The petitioner worked as Coal Filler at GDK.6-A

Incline and his services were utilized as Bunker door

Mazdoor/Chainman as and when required. The Vigilance

Department of the respondent company during its

verification on the alleged mis-appropriation/discrepancies

in coal transportation from mines to coal screening plants

during the period from 01-09-2005 to 07-10-2005 detected

certain irregularities at GDK.6A Incline. During the

suspension period, he was paid subsistence allowance as

per the company’s standing orders.

On 7-10-2005 in 2nd shift, while the petitioner was

working as bunker door mazdoor/chainman issued one

trip of coal to lorry No.AP15W 8050 without recording the

same in his records thereby allowed pilferage of coal by

coal transport contractor with malafide intention which is

a misconduct under Clause No.25.1 and 25.23 of company’s

standing orders. Thus the act of the petitioner might cause

loss to the company to a tune of Rs.15,000/- towards cost

of the coal. As such, he was issued charge sheet dt.

20-12-2005. The petitioner received charge sheet and

submitted his explanation. The enquiry officer issued

notice to the petitioner and the petitioner participated in

the enquiry. A fair opportunity was given to the petitioner

and the petitioner participated in the enquiry. The petitioner

after receipt of the dismissal order submitted his appeal

on 1-6-2010 to the appellate authority. The appellate

authority examined the appeal and after examination,

confirmed the dismissal order and the same was

communicated to the petitioner. Therefore, the petition

may be dismissed.

Heard both sides. Perused the material papers on

record.

10.

In the course of hearing petitioner filed memo under

Sec.11-A of I.D Act on 3-3-2014 stating that the petitioner

is admitting the procedure of enquiry conducted by the

respondents and prayed to decide the case on the basis

of the material available on record.

11.

During the course of enquiry, Ex.M-1 to Ex.M-11 are

marked on behalf of the respondents and no documents

are marked on behalf of the petitioner.

12.

For the consideration of respective contentions of

the parties the following points required to be determined:-

“Whether this Tribunal has got jurisdiction?”

“Whether the punishment of dismissal of the

petitioner is justified and proportionate?”

13.

POINT No. 1

As per the Judgment of High Court reported in 1997

(III) LLJ (Supp.) 11 between U. Chinnappa And Cotton

Corporation of India, this Court has got jurisdiction to

entertain the dispute raised by the petitioner.

This point is accordingly answered in favour of the

petitioner.

14.

POINT No. 2

The suspension order is marked as Ex.M-1 and

charge sheet is marked as Ex.M-2. It is alleged that the

petitioner with a malafide intention paved way for pilferage

of one trip of coal worth Rs.15,000/- by the coal transport

contractor, on 7-10-2005. Ex.M-3 is explanation submitted

by the petitioner. The petitioner was deployed as acting

Bunker Chainman as and when his services were required

and originally he is Coal Filler by designation. He is

illiterate. On 7-10-2005 lorry No.AP-15-W-8050 took one

load of coal, the petitioner went to the shift Overman and

reported the same. After a lapse of 2 months, charge sheet

was issued. Enquiry report is marked as Ex.M-4. The

record placed before this court shows that the above one

lorry load coal was dumped at CSP-I of the respondents

and it was not taken outside. This fact is admitted by the

respondents. No theft of coal was committed by the

petitioner, lorry driver or the coal contractor; but it is alleged

that the petitioner issued one trip of coal without recording

the same in the relevant records. Admittedly the petitioner

is a coal filler and is an illiterate.

The petitioner was appointed as badli filler on

21-10-1983 and worked till the date of his dismissal from

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % twu 7] 2014@T;s"B 17] 1936

4481

service w.e.f., 5-5-2010. He has put in a long service of

27 years. The lorry driver was not examined by the

respondents in the enquiry, for the reasons best known to

them. The coal was dumped in the CSP-I coal yard of the

respondents. There was no loss of coal to the respondents

company. No nexus between the lorry driver and petitioner

is alleged.

15.

Under the above peculiar circumstances of the case,

I hold that the extreme punishment of dismissal from service

imposed by the respondents is shockingly

disproportionate and it is liable to be modified as voluntary

retirement of the petitioner w.e.f., 5-5-2010 without the

benefit of dependent employment, instead of dismissal

from service.

16.

In the result, the order of dismissal dated 02-05-2010

marked as Ex.M-9 dismissing the petitioner from service

w.e.f., 5-5-2010 is modified as voluntary retirement of the

petitioner w.e.f., 5-5-2010 without the benefit of dependent

employment, instead of dismissal from service. The

petitioner is not entitled to any back wages. However, the

petitioner shall be paid all consequential benefits of

voluntary retirement from service, except dependent

employment.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 1st day of May, 2014.*

G. V. KRISHNAIAH, Chairman-cum-Presiding Officer

Appendix of Evidence

Witnesses Examined

For workman

For Management

-Nil-

EXHIBITS

For workman:-

-Nil-

For Management:-

Ex.M-1

Dt. 25-11-2005

Suspension letter

Ex.M-2

Dt. 20-12-2005

Charge sheet

Ex.M-3

Dt. 23-12-2005

Reply to charge sheet

Ex.M-4

Dt. 12-02-2008

Enquiry proceedings

Ex.M-5

Dt. —

Enquiry report

Ex.M-6

Dt. 25-06-2009

Show cause notice

Ex.M-7

Dt. 02-07-2009

Ack., to Show cause notice

Ex.M-8

Dt. 08-07-2009

Reply to show cause notice

Ex.M-9

Dt. 29-04-2010/

Office order (dismissal

02-05-2010

order)

Ex.M-10 Dt. 01-06-2010

Appeal submitted to the

Director (PA&W), SCCL,

Kothagudem.

Ex.M-11 Dt. 11-02-2011

Letter issued to the petitioner

Director,

PA&W,

Kothagudem.

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.