izkf/dkj ls izdkf'kr

PUBLISHED BY AUTHORITY

lkIrkfgd

WEEKLY

la- 28]

ubZ fnYyh] tqykbZ 6—tqykbZ 12] 2014] 'kfuokj@vk"kk<+ 15—vk"kk<+ 21] 1936

No. 28]

NEW DELHI, JULY 6—JULY 12, 2014, SATURDAY/ASADHA 15—ASADHA 21, 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)

jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05

REGD. NO. D. L. (N) 04/0007/2003—05

2658 GI/2014

(5025)

foÙk ea=kky;

(jktLo foHkkx)

ubZ fnYyh] 3 tqykbZ] 2014

dk-vk- 1934.—dsUnzh; ljdkj] jktHkk"kk (la?k ds 'kkldh;

iz;kstuksa ds fy, iz;ksx) fu;e] 1976 ds fu;e 10 ds mi&fu;e

(4) ds vuqlj.k esa jktLo foHkkx ds v/hu izorZu funs'kky; ds

nsgjknwu {ks=kh; dk;kZy; dks ftuds 80 izfr'kr ls vf/d deZpkfj;ksa

us fgUnh dk dk;Z lk/d Kku izkIr dj fy;k gS] vf/lwfpr djrh

gSA

[iQk- la- bZ- 11017@1@2012&,Mh (fgUnh&4)]

pUnzHkku ukjukSyh] funs'kd (jktHkk"kk)

MINISTRY OF FINANCE

(Department of Revenue)

New Delhi, the 3rd July, 2014

S.O. 1934.—In pursuance of sub-rule (4) of rule 10

of the Official Languages (Use for Official Purpose of the

Union) Rules, 1976 the Central Government hereby notifies

the Dehradun Regional office of the Directorate of

Enforcement Under the Department of Revenue, where

more than 80% staff have acquired the working knowledge

of Hindi.

[F. No. E. 11017/1/2012-AD(HINDI-4)]

CHANDERBHAN NARNAULI, Director (OL)

5026

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

(foÙkh; lsok,a foHkkx)

ubZ fnYyh] 10 tqykbZ] 2014

dk-vk- 1935.—ljdkjh LFkku (vizkf/d`r vf/Hkksfx;ksa dh csn[kyh) vf/fu;e] 1971 (1971 dk 40) dh /kjk 3 }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk mDr vf/fu;e ds mís'; ds fy, uhps nh xbZ rkfydk ds dkWye 2 esa mfYyf[kr

vfèkdkfj;ksa dks laink vf/dkjh fu;qDr djrh gS vkSj vkxs ;g funs'k nsrh gS fd mDr vf/dkjh uhps nh xbZ rkfydk ds dkWye 3 esa ;Fkk

fufnZ"V {ks=kksa ds varxZr vkus okys ljdkjh ifjljksa ds laca/ esa vius vf/dkj {ks=k dh LFkkuh; lhekvksa esa Hkhrj mDr vf/fu;e }kjk ;k blds

rgr laink vf/dkjh dks iznÙk 'kfDr;ksa dk iz;ksx djsaxs rFkk lkSais x, drZO;ksa dk ikyu djsaxsA

Ø- la- inuke rFkk irk

ljdkjh ifjljksa dh Js.kh rFkk vf/dkj dh LFkkuh; lhek

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] xqokgkVh

vle] ef.kiqj] es?kky;] v:.kkpy izns'k] f=kiqjk] fetksje rFkk

jhtu] ;qukbVsM cSad fcfYaMx] f}rh; ry] gse c:vk jksM]

ukxkyS.M jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks fd ;qukbVsM cSad

ikucktkj] xqokgkVh&781001

vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa vFkok mlds vk/kj ij

rFkk mlds iz'kklfud fu;a=k.k esa gksa

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] iVuk

fcgkj jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks fd ;qukbVsM cSad

jhtu] vHk; Hkou] f}rh; ry] izsQtj jksM] iVuk&800001

vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa vFkok mlds vk/kj ij

rFkk mlds iz'kklfud fu;a=k.k esa gksa

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] >kj[kaM

>kj[kaM jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks fd ;qukbVsM cSad

jhtu] ih ih daikmaM] lywtk fcfYaMx] r`rh; ry] esu

vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa vFkok mlds vk/kj ij

jksM] iks- ckW- la- 172] jkaph&834001

rFkk mlds iz'kklfud fu;a=k.k esa gksa

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] Hkqous'oj

vksfM'kk jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks fd ;qukbVsM cSad

jhtu] ,&88] dYiuk ,fj;k] Hkqous'oj&751014] vksfM'kk

vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa vFkok mlds vk/kj ij

rFkk mlds iz'kklfud fu;a=k.k esa gksa

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] jk;iqj

Nrhlx<+ vkSj eè; izns'k jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks

jhtu] thr VkWoj] jktdqekj dkWyst ds lkeus] th- bZ- jksM]

fd ;qukbVsM cSad vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa

jk;iqj] Nrhlx<+&492001

vFkok mlds vk/kj ij rFkk mlds iz'kklfud fu;a=k.k esa gksa

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] y[kuÅ

mÙkj izns'k rFkk mÙkjk[k.M jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks

jhtu] 4&,] gchcqYykg ,LVsV] gtjrxat] y[kuÅ&226001

fd ;qukbVsM cSad vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa

vFkok mlds vk/kj ij rFkk mlds iz'kklfud fu;a=k.k esa gks

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] Nrhlx<+

iatkc] gfj;k.kk] fgekpy izns'k] tEew vkSj d'ehj rFkk p.Mhx<+

jhtu] ,llhvks@32&33&34] lsDVj&17lh] paMhx<+&160017

jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks fd ;qukbVsM cSad vkWiQ

bafM;k ds gksa vFkok yht ij fy, x, gksa vFkok mlds vk/kj ij rFkk

mlds iz'kklfud fu;a=k.k esa gksa

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] nf{k.kh

rfeyukMq] dsjy vkSj ikafMpsjh jkT; ds lHkh ftyksa esa vofLFkr ifjlj

jhtu] 184@192] Jh nqxkZ VkWolZ] jked`".k eB jksM]

tks fd ;qukbVsM cSad vkWiQ bafM;k ds gksa vFkok yht ij fy, x,

eaMkosyh] psUubZ&600028] rfeyukMq

gksa vFkok mlds vk/kj ij rFkk mlds iz'kklfud fu;a=k.k esa gksa

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] caxykSj

dukZVd vkSj vka/z izns'k jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks fd

jhtu] 40] dSEisxkSM+k jksM] caxykSj&560009

;qukbVsM cSad vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa vFkok

mlds vk/kj ij rFkk mlds iz'kklfud fu;a=k.k esa gksa

10-

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] eqEcbZ

egkjk"Vª] xqtjkr] nknj vkSj uxj gosyh rFkk xksok jkT; ds lHkh ftyksa

jhtu] 25] lj fiQjkst 'kkg esgrk jksM] iQksVZ] prqFkZ ry]

esa vofLFkr ifjlj tks fd ;qukbVsM cSad vkWiQ bafM;k ds gksa vFkok

eqEcbZ&400001

yht ij fy, x, gksa vFkok mlds vk/kj ij rFkk mlds iz'kklfud

fu;a=k.k esa gksa

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5027

11-

eq[; {ks=kh; izca/d] ;qukbVsM cSad vkWiQ bafM;k] fnYyh

fnYyh vkSj jktLFkku jkT; ds lHkh ftyksa esa vofLFkr ifjlj tks fd

jhtu] 90@9] CykWd&ih] dukWV ldZl]

;qukbVsM cSad vkWiQ bafM;k ds gksa vFkok yht ij fy, x, gksa vFkok

ubZ fnYyh&110001

mlds vk/kj ij rFkk mlds iz'kklfud fu;a=k.k esa gksa

12-

lgk;d egkizca/d] ifjlj foHkkx] ;qukbVsM cSad vkWiQ

if'pe caxky] flfDde rFkk vaMeku vkSj fudksckj jkT; ds lHkh

bafM;k] iz/ku dk;kZy;] ukSoka ry] 11] gsear clq ljuh]

ftyksa esa vofLFkr ifjlj tks fd ;qukbVsM cSad vkWiQ bafM;k ds gksa

dksydkrk&700001

vFkok yht ij fy, x, gksa vFkok mlds vk/kj ij rFkk mlds

iz'kklfud fu;a=k.k esa gksa

¹iQk- la- 4@1@2012&chvks,]

,e- ,e- nkSyk] voj lfpo

(Department of Financial Services)

New Delhi, the 10th July, 2014

S.O. 1935.—In exercise of the powers conferred by section 3 of Public Premises (Eviction of Unauthorized Occupants)

Act, 1971 (40 of 1971), the Central Government hereby appoints the Officers mentioned in column No. (2) of the Table below

to be Estate Officers for the purpose of the said Act and further direct that the said officer shall exercise the powers

conferred and the duties imposed on an Estate Officer by or under the said Act within the local limits of his jurisdiction in

respect of the public premises falling under area as specified in column No. 3 of the Table below:—

Sl. No. Designation and Address

Categories of public premises and local limits of jurisdiction.

Chief Regional Manager, United Bank of India

Premises belonging to, or taken on lease by or on behalf of &

Guwahati Region, United Bank Building 2nd floor,

under the administrative control of United Bank of India and

Hem Barua Road. Panbazar, Guwahati-781001

situated in all districts of the State of Assam, Manipur,

Meghalaya, Arunachal Pradesh, Tripura, Mizoram and

Nagaland.

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Patna Region Abhay Bhawan, 2nd Floor,

under the administrative control of United Bank of India and

Frazer Road, Patna-800001

situated in all districts of the State of Bihar.

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of

Jharkhand Region Pee Pee Compound, Saluja

& under the administrative control of United Bank of India

Building, 3rd Floor, Main Road. Post Box No.:

and situated in all districts of the State of Jharkhand.

172, Rachi-834001

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Bhubaneswar Region A-88, kalpana Area,

under the administrative control of United Bank of India and

Bhubaneswar-751014, Odisha

situated in all districts of the State of Chatisgarh & Madhya

Predesh.

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Raipur Region Jeet Tower, opp Rajkumar College,

under the administrative control of United Bank of India and

G. E. Road, Raipur. Chattishgarh-492001

situated in all districts of the State of Chatisgarh and Madhya

Predesh.

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Lucknow Region 4-A Habibullah Estate

under the administrative control of United Bank of India and

situated in all districts of the State of Uttar Pradesh &

Uttarakhand.

5028

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Chandigarh Region SCO/32-33-34, Sector-17C.

under the administrative control of United Bank of India and

Chandigarh-160017

situated in all districts of the State of Punjab, Haryana,

Himachal Pradesh, Jammu & Kashmir and Chandigarh.

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Southern Region 184/192 Sree Durga Towers.

under the administrative control of United Bank of India and

Ramkirshna Math Raod. Mandaveli,

situated in all districts of the State of Tamil Nadu, Kerala &

Chennai-600028, Tamil Nadu.

Pondicherry

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Bangalore Region, 40, Kempegowda Road,

under the administrative control of United Bank of India and

Bangalore-560009

situated in all districts of the State of Karnataka & Andhra

Pradesh.

10.

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

Mumbai Region 25, Sir Pheroz Shah Mehta Road,

under the administrative control of United Bank of India and

Fort, 4th Floor, Mumbai-400001

situated in all districts of the State of Maharashtra, Gujarat,

Dadra & NH and Goa.

11.

Chief Regional Manager, United Bank of India,

Premises belonging to, or taken on lease by or on behalf of &

New Delhi Region 90/9, Block-P Cannought

under the administrative control of United Bank of India and

Circus, New Delhi-110001

situated in all districts of the State of Delhi & Rajasthan.

12.

Assistant General Manager, Premises Department,

Premises belonging to, or taken on lease by or on behalf of &

United Bank of India, Head Office 9th Floor,

under the administrative control of United Bank of India and

11, Hemanta Basu Sarani, Kolkata-700001

situated in all districts of the State of West Bengal, Sikkim and

Andaman & Nicobar.

[F. No. 4/1/2012-BOA]

M. M. DAWLA, Under Secy.

Je vkSj jkstxkj ea=kky;

ubZ fnYyh] 4 tqykbZ] 2014

dk-vk- 1936.—jk"Vªifr] Jh iznhi dqekj] dks

13-06-2014 (vijkÉ) ls dsUnzh; ljdkj vkS|ksfxd

U;k;kèkhdj.k&lg& Je&U;k;ky;] Hkqous'oj] ds ihBklhu vfèkdkjh

ds :i esa 02-10-2018 rd vFkok vxys vkns'kksa rd] tks Hkh igys

gks] fu;qDr djrs gSaA

[la- ,- 11016@02@2013&lh,y,l&II]

,l- ds- flag] voj lfpo

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 4th July, 2014

S.O. 1936.—The President is pleased to appoint

Shri Pradeep Kumar as Presiding Officer of the Central

Government Industrial Tribunal-cum-Labour Court,

Bhubaneswar w.e.f. 13.06.2014 (A.N.) for a period up to

02.10.2018 or until further orders, whichever is earlier.

[No. A. 11016/02/2013-CLS-II]

S. K. SINGH, Under Secy.

ubZ fnYyh] 3 tqykbZ 2014

dk-vk- 1937-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

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

vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky;] p.Mhx<+ ds iapkV (lanHkZ la[;k 90@2013)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 04@06@2014 dks izkIr

gqvk Fkk A

[la- ,y&12011@34@2013&vkbZvkj (ch&I)]

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 3rd July, 2014

S.O. 1937.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 90/2013)

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

I, 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

04/06/2014.

[No. L-12011/34/2013 - IR(B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5029

ANNEXURE

BEFORE SHRI SURENDRA PRAKASH SINGH,

PRESIDING OFFICER, CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,

CHANDIGARH

Case No. ID 90 of 2013

Reference No. L-12011/34/2013-IR(B-I) dated 1.08.2013

Shri B.S. Rathi

C/O The President,

SC/ST Employees Welfare Association,

Chandigarh Circle, C/o House No. 3086/2,

Sector-44-D,

Chandigarh.

...Workman

Versus

1. The Deputy General Manager,

State Bank of India,

Zonal Office Haryana,

Sector-5, Panchkula ( HR)

...Respondent

Appearances :

For the Workman:

None.

For the Management:

Sh. S.K. Gupta.

AWARD

Passed On:-4.6.2014

Government of India Ministry of Labour vide

notification No.L-12011/34/2013-IR(B-I)dated 1.08.2013 has

referred the following dispute to this Tribunal for

adjudication:

Term of Reference :

“Whether the action of the management in awarding

punishment in the lower stage of pay by two stages

to Shri B.S.Rathi, Assistant is just, fair and legal? If

not, what relief to the concerned employee is entitled

to and from which date?”

2. Case called repeatedly. None appeared on behalf

of the workman despite appearance on behalf of the

workman in the past. No claim statement has been filed

although the case was received in this Tribunal in August

2013. For Management Sh. S.K. Gupta is present. It appears

that the workman is not interested to pursue with the

present reference. The same is returned to the Central Govt.

for want of prosecution. Central Govt. be informed. Soft as

well as hard copy be sent to the Central Govt. for publication.

Chandigarh

04.06.2014

S. P. SINGH, Presiding Officer

ubZ fnYyh] 3 tqykbZ 2014

dk-vk- 1938-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

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

vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky;] p.Mhx<+ ds iapkV (lanHkZ la[;k

86@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 11@06@2014

dks izkIr gqvk Fkk A

[la- ,y&12011@33@2013&vkbZvkj (ch&I)]

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 3rd July, 2014

S.O. 1938.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 86/2013)

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

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

11/06/2014.

[No. L-12011/33/2013-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE SHRI SURENDRA PRAKASH SINGH,

PRESIDING OFFICER, CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,

CHANDIGARH

Case No. ID 86 of 2013

Reference No. L-12011/33/2013-IR(B-I) dated 22.7.2013

Shri B.S.Rathi

C/O The President,

SC/ST Employees Welfare Association,

Chandigarh Circle, C/o House No. 3086/2,

Sector-44-D,

Chandigarh.

...Workman

Versus

1. The Deputy General Manager,

State Bank of India,

Zonal Office Haryana, Sector-5,

Panchkula ( HR).

...Respondent

Appearances :

For the Workman

None

For the Management

Sh. S.K. Gupta.

AWARD

Passed On : 4.6.2014

Government of India Ministry of Labour vide

notification No.L-12011/33/2013-IR(B-I)dated 22.7.2013 has

referred the following dispute to this Tribunal for

adjudication:

Term of Reference :

“Whether the action of the management in

awarding punishment of bringing down in the

5030

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

scale of pay by one stage for one year without

cumulative effect to Shri B.S.Rathi, Assistant is

just, fair and legal? To what relief the concerned

employee is entitled and from which date?”

2. Case called repeatedly. None appeared on behalf

of the workman despite appearance on behalf of the

workman in the past. No claim statement has been filed

although the case was received in this Tribunal in August

2013. For Management Sh. S.K. Gupta is present. It appears

that the workman is not interested to pursue with the

present reference. The same is returned to the Central Govt.

for want of prosecution. Central Govt. be informed. Soft

as well as hard copy be sent to the Central Govt. for

publication.

Chandigarh

04.06.2014

S. P. SINGH, Presiding Officer

ubZ fnYyh] 3 tqykbZ 2014

dk-vk- 1939-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

ifV;kyk ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky;] t;iqj ds iapkV (lanHkZ la[;k 7@2011)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 03@06@2014 izkIr

gqvk Fkk 1

[la- ,y&12012@59@2010&vkbZvkj (ch&I)]

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 3rd July, 2014

S.O. 1939.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 7/2011)

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

as shown in the Annexure, in the industrial dispute between

the management of State Bank of Patiala, and their workmen,

received by the Central Government on 03/06/2014.

[No. L-12012/59/2010-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, JAIPUR

BHARAT PANDEY, Presiding Officer

I.D. 7/2011

Reference No.L-12012/59/2010-IR(B-I)) dated: 8.4.2011

Shri Shashi Bhushan

S/o Shri Labchand Arora

Ward No.2, Near Shivalaya Mandir

Mandi Goluwala, Pilibanga,

District Hanumangarh.

V/s.

Branch Manager,

State Bank of Patiala

Goluwala Tehsil, Pilibanga,

Hanumangarh.

General Manager,

State Bank of Patiala,

Patiala (Punjab).

Present:

For the Applicant

Ex-party

For the Non-applicants :

Sh. R.K.Jain & Sh. Amitava

Mozumdar, Advocates

AWARD

Dated : 29.4.2014

1. The Central Government in exercise of the powers

conferred under clause (d) of sub-section 1 & 2(A) of

Section 10 of the Industrial Disputes Act 1947 has referred

the following Industrial dispute to this tribunal for

adjudication:-

“ Whether the action of the management of State

Bank of Patiala, Hanumangarh in terminating the

services of Shri Shashi Bhushan, Sweeper w.e.f.

16.1.2009 is legal & justified? To what relief the

workman is entitled?”

2. According to statement of claim the applicant was

appointed on 25.12.2007 as daily wage IVth class employee

with opposite party Branch Manager, State Bank of Patiala

& worked freely & uninterruptedly till 16.1.2009. He was

removed from the service by oral order dated 16.1.2009. It

has been further alleged that neither any reason was shown

for his removal nor notice was given to him & he was also

not given advance pay as compensation in lieu of notice,

thus, his removal was in violation of section 25-F of

Industrial Disputes Act, 1947 whereas he has worked

continuously for more than 240 days in a calendar year.

3. It has been further alleged that he was working on

a permanent post which is still vacant & after his removal

opposite party has appointed a new workman in place of

applicant & thus applicant was deprived of opportunity,

thus there has been violation of principle of ‘last come

first go’ as provided under section 25-G of Industrial

Disputes Act, 1947.

4. It has been further alleged that during period of

service the applicant worked under the opposite party with

utmost honesty, dedication & devotion to duty & never

provided any opportunity of complaint & there was no

complaint against the applicant. The applicant has also

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alleged that for the promotion of the branch with his efforts

Five Hundred saving accounts, fifty current accounts, fifty

group insurance policies & 20 K.C.C. accounts were opened

in the bank beside F.D. of thirty laks were made & three car

loan , four house loan & S.B.I. life insurance policies of

Rs.15 laks were issued by the bank. The applicant has

alleged in para 6 of the statement of claim that during period

of service of the applicant between 20.12.2007 & 16.12.2009

a visit was made by A.G.M. who commented on the work of

the applicant & assured him to appoint him. It has been

further alleged that in Goluwala branch of the bank for

appointment of part time employee names were called by

the bank from Hanumangarh District employment office &

name of the applicant was existing in the list sent by

employment office to the branch & applicant was also

interviewed for the appointment. The applicant was assured

that according to his experience & hard work opportunity

will be provided to him but someone else was appointed

on canvassing having no experience. When applicant

pointed out to the injustice done to him he was assured to

be considered for Srikaranpur branch of the bank. After

laps of few months again application were called for

appointment of part time employee in Srikaranpur branch.

Applicant also deposited his form & appeared for interview

but again appointment was given to somebody else.

5. It has been further alleged that applicant was

shocked with above appearances & looking into the fact

that there is no likelihood of justice being done to him from

the side of the bank he presented an application before

Regional Labour Commissioner (Central), Jaipur. The

opposite party was called twice for conciliation at Jaipur &

on two different occasions at Bikaner. The applicant had

authorised the Labour Commissioner to take decision in

his matter but there were no change in the attitude of the

Branch Manager concerned. After removal from the service

the applicant continued to request orally & in writing but

the opposite party kept on drifting the matter ahead. On

30.11.2009 the applicant had sent a registered notice to the

employer opposite party which remain unserved.

6. About the nature of the work the applicant has

said that he was performing the job of a IVth class employee

beside other work, e.g. cleaning of counter & chairs after

opening of the bank & supplying of bank records to the

employees of the bank as demanded by them time to time

etc. It has been further alleged that the applicant is jobless

since his removal & all the documents pertaining to the

case including reference has been attached as enclosure

to the statement of claim. The applicant has prayed that his

removal from the service be declared illegal to have him

reappointed with back wages & consequential benefits

with continuity of service.

7. Opposite party has filed reply to the statement of

claim on 29.8.12 which is in two parts. Part II contains para-

wise reply of statement of claim & part I provides preliminary

objection against the claim. Para-wise reply says that

workman has submitted wrong facts. Further it has been

alleged the applicant Shri Shashi Bhushan was engaged

for the first time w.e.f. 13.2.2008 & not from 27.12.2007 hence,

statement of applicant about appointment on 27.12.2007 is

wrong. It has been said that before the Conciliation Officer

Sh. Shashi Bhushan has himself stated that the branch of

the bank was opened only on 9.1.2008. It has also been

said that the workman did not turn up for the duty in the

bank after 27.11.2008 & did not perform any work thereafter

hence, his statement is wrong that he worked continuously

without any break upto 16.1.2009. It has also been admitted

& alleged that the workman has worked only from 13.2.2008

to 27.11.2008 & that too not continuously but intermittently

& as such he has not completed 240 days work as alleged

hence, provision of section 25-F of Industrial Disputes

Act, 1947 has no application in the case.

8. It has also been alleged that there has been no

violation of provision of ‘last come first go’ as alleged by

the applicant. It is also wrong that applicant was working

on a permanent post as alleged by him in the statement of

claim. It is also been said that it is important to point out

that in para 1 of the statement of claim applicant himself

had said that he was daily wage employee of IVth class.

9. It has been further contended in reply that as

section 25-F of Industrial Disputes Act, 1947 is not attracted

in the present case hence, the question of preparation of

seniority list does not arise. It has also been said the

applicant has worked only from 13.2.2008 to 27.11.2008 not

continuously but intermittently which can be proved from

the record of the bank & he has never worked from 25.12.2007

to 16.12.2009. It has been completely denied by the bank

that the applicant has performed any work for the bank like

opening of account etc. as alleged in para 6 of the statement

of claim.

10. The bank has admitted about interviews

conducted on two occasions as alleged in statement of

claim & in the matter of appointment it has been further

alleged by the bank in para 6 part II that opportunities of

interviews provided to the applicant proves that bank had

provided opportunity to the applicant to participate in the

process of appointment & the selection process was never

challenged by the applicant hence, he cannot raise any

dispute against his non-selection after interview. About

the nature of work which applicant has alleged to be

performed by him during his continuance of service, it has

been alleged by the opposite party that burden of prove

lies on the applicant. It has been further alleged that

applicant is not entitled to any relief as claimed by him.

11. In preliminary objection which forms part I of the

reply to statement of claim it has been alleged that the

dispute raised by the applicant is not within the scope of

‘Industrial Dispute’ as defined in Section 2-K of the

Industrial Disputes Act, 1947 because there was no

5032

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

existence of relationship of employer & employee between

the bank & the workman at any point of time. Sh. Shashi

Bhushan was never engaged by the bank in conformity to

the policy of recruitment in the bank as such whatever

work was performed by him cannot lend status of workman

to Sh. Shashi Bhushan. The Hon’ble Supreme Court in

catena of cases has laid down that any appointment given

not in accordance to the rule & regulation of such

appointment is itself vague & persons so appointed has

no right to put any grievance relating to work done by him.

Sh. Shashi Bhushan has worked only on daily wage & he

has been paid at the rate of Rs. 50 per day which was

accepted by him without any protest & reservation.

Facts of the case as per W.S.

12. According to the written statement of the bank

Sh. Shashi Bhushan was engaged for sweeping the

premises of the bank w.e.f. 13.2.2008 & he was paid by the

bank through voucher for the work done by him & the

payments made to him was never objected & accepted

without any protest. It has been further alleged that he

never worked continuously upto 27.11.2008 which can be

established by record of the bank.

13. Because of electricity problem the management

of the bank invited quotation for hiring a generator & the

exercise for the same was undertaken by bank in the month

of January, 2008. Certain persons submitted their

quotations. Sh. Shashi Bhushan also submitted his

quotation which was lowest & hence, he was awarded the

contract for operating the generator & he was paid Rs.

6600 monthly for the same. Sh. Shashi Bhushan was

responsible for operation & upkeep of the generator

including oil, diesel, etc. in lieu of Rs.6600/- except the TDS

which was deducted from the payment made to him & such

payments were regularly by cheque credited to its saving

bank accounts. Sh. Shashi Bhushan continued to operate

the said generator at the branch upto date.

14. It has been further alleged that during the period

when Sh. Shashi Bhushan was engaged for doing the work

of sweeping he also participated in the interview for the

post of sweeper. The list was obtained from District

Employment Exchange Hanumangarh in which name of

Sh. Shashi Bhushan was also forwarded to the bank along

with other candidates. All such candidates whose names

were forwarded by employment exchange were called to

participate in the interview, however, Sh. Shashi Bhushan

was not selected. The interview was conducted for branch

of the bank situated at Goluwala. It has been further alleged

that Sh. Shashi Bhushan has also participated in another

interview held at the bank’s branch at Karanpur.

15. Sh. Shashi Bhushan stopped performing the work

w.e.f. 27.11.2008 for the reason best known to him &

thereafter did not come to bank for the work. From above

fact it is clearly established that Sh. Shashi Bhushan cannot

raise any dispute much less any industrial dispute including

the branch at Goluwala.

Para wise reply of statement of claim.

16. In para wise answer to the statement of claim

para 1 of the statement of claim has been said to be wrong

& it has been further alleged that Sh. Shashi Bhushan was

engaged with the bank for the first time w.e.f. 13.2.2008 &

not from 27.12.2007 which itself is proved to be wrong

because in para 2 of the purported dispute referred to

Assistant Labour Commissioner cum Conciliation Officer

(Central), Jaipur he has stated that branch of the bank was

opened on 9.1.2008. Sh. Shashi Bhushan did not come to

bank after 27.11.2008 & did not perform any work thereafter

for the reason best known to him as such the contention of

the workman that he continue to work without any break

upto 16.1.2009 is wrong & denied by the bank. The workman

worked only for the period 13.2.2008 to 27.11.2008 & that to

intermittently & continuously hence he did not complete

240 days of the work as alleged by him, therefore, provision

of Section 25-F of Industrial Disputes Act is not attracted

in the present case.

17. It has also been said that principle of “ last come

first go” has not been violated by the bank & it is wrong to

say that Sh. Shashi Bhushan was working on a permanent

post as alleged in statement of claim because he himself

has contended in para 1 of statement of claim that he was a

daily wage employee. Since, Section 25-F of the Industrial

Disputes Act, 1947 is not attracted in the present case the

question of preparing of seniority list does not arise. Sh.

Shashi Bhushan has worked intermittently between

13.2.2008 to 27.11.2008 & not from 26.12.2007 to 16.12.2009

as alleged by him para 6 of statement of claim & this fact

can be proved from the record available with the bank. It

has been further alleged that statement made in para 6 of

statement of claim about work done by applicant is not

accepted by the bank & the onus is on the workman to

prove the same. The various opportunities to appear in the

interview as alleged in the statement of claim proves that

bank has provided fair opportunity by interviewing the

workman along with other applicants but he could not be

selected & selection proves has never been challenged by

the applicant as such he cannot raise any dispute or

complaint against his none selection. Statement made in

para 9 & 10 of the claim has been denied & said that applicant

is not entitled to any relief as claimed & the same may be

dismissed with cost.

18. After filing of written statement by opposite party

on 29.8.2012 next date was fixed on 12.11.2012 for rejoinder

& filing of documents by workman. On 12.11.2012 workman

was absent hence, 23.1.2013 was fixed for the same

proceeding. On 23.1.2013 case was adjourned on request

of workman & 9.4.2013 was next date fixed for rejoinder &

document to be filed by workman. On 9.4.2013 & further

dates fixed on 8.7.2013, 20.11.2013, 20.1.2014, 15.4.2014 &

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5033

23.4.2014 the workman remained absent & rejoinder &

documents were not filed by him. On 9.4.2013 my learned

predecessor passed an order to proceed ex-parte against

the applicant workman & 8.7.2013 was date fixed for filing

document by opposite party. Opposite party was present

on 9.4.2013. On 8.7.2013 no document was filed by opposite

party & learned presiding was on leave hence, 9.9.2013

was next date fixed & further on 9.9.2013, 20.11.2013 was

next date fixed. On 9.9.2013 the court was vacant due to

retirement of learned Presiding Officer in July, 2013. On

20.11.2013 next date 20.1.2014 was fixed for evidence to be

adduced by the opposite party. On 20.1.2014 case was

adjourned on the request of opposite party for evidence

on 15.4.2014. On 15.4.2014 learned counsel for opposite

party stated that no evidence has been adduced on behalf

of applicant to prove the case of statement of claim which

is responsibility of the workman hence, in such circumstance

& in absence of evidence from the workman opposite party

is not inclined to adduce any evidence. In above

circumstance opportunity to opposite party for adducing

evidence was closed & case was fixed for argument on

23.4.2014.

19. On 23.4.2014 learned counsel for opposite party

was present. None was present for & on behalf of workman.

Ex-parte argument of the learned counsel of the opposite

party was heard.

20. It has been argued by learned counsel for the

opposite party that applicant workman has not appeared

in the witness box & adduced any oral evidence in support

of his statement of claim hence, no relief can be granted in

favour of applicant & the statement of claim is fit to be

dismissed with cost in the above circumstance.

21. Initial burden was on the applicant workman to

establish that his services were terminated by the non-

applicant w.e.f. 16.1.2009 illegally without giving one

month’s notice or pay in lieu of notice. The claim of the

workman has been denied by the non-applicant. The

workman has not adduced any oral evidence to substantiate

his case set forth in the claim statement.

22. In above facts & circumstances, it appears that

the applicant workman is not interested to contest the case

further. Therefore, “No Claim Award” is passed in this

matter. The reference under adjudication is answered

accordingly.

23. Award as above.

BHARAT PANDEY, Presiding Officer

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New Delhi, the 3rd July, 2014

S.O.

1940.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 75/2006) of

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

as shown in the Annexure, in the industrial dispute between

the management of Contractor IR CTCL and Western

Railway, and their workmen, received by the Central

Government on 03/06/2014.

[No. L-41012/126/2005 - IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, JAIPUR

BHARAT PANDEY, Presiding Officer

I.D. 75/2006

Reference No. L-41012/126/2005-IR(B-I) dated : 26.6.2006

Shri Kamlesh Singh

S/o Shri Shiv Dayal

J.S. 21, C, Loco Colony,

Jaipur.

V/s.

H.D. & Sons Co.

Through Shri Hakim Chand,

35/11/13A, Parijat Sadan,

Room No.105, 1^st floor, Bhugwat

Cross Lane, Girgav, Mumbai-3,

Mumbai.

M/s. Aahar Caterers

Through Shri Hakim Chand,

35/11/13A, Parijat Sadan,

Room No.105, 1^st floor, Bhugwat

Cross Lane, Girgav, Mumbai-3,

Mumbai.

M/s. Good Food & Company

Through Shri Hakim Chand,

35/11/13A, Parijat Sadan,

Room No.105, 1^st floor, Bhugwat

Cross Lane, Girgav, Mumbai-3,

Mumbai.

5034

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

Indian Railway Catering & Tourism

Corporation Ltd., 9^th Floor,

Bank of Baroda Building,

Sansad Marg, New Delhi-16,

New Delhi.

The General Manager

Western Railway,

Church Gate, Mumbai.

Present:

For the applicant

Ex-parte.

For the non-applicants

Sh. Hawa Singh, Adv.

No. 1 to 3

For the non-applicant No. 4 :

Sh. G.C. Garg, Adv.

For the non-applicant No. 5 :

Sh. Sitaram Samota, Adv.

AWARD

Dated: 30.4.2014

1. The Central Government in exercise of the powers

conferred under clause (d) of Sub-section 1 & 2(A) of

Section 10 of the Industrial Disputes Act 1947 has referred

the following Industrial Dispute to this tribunal for

adjudication:-

“Whether the termination of services of Shri Kamlesh

Singh, vendor by verbal order in August, 2003 by

Shri Hakim Chand, sub contractor of Indian Railway

Catering and Tourism Corp. Ltd., New Delhi working

in Western Railway, Mumbai is legal and Justified?

If not, what relief the claimant is entitled to and from

which date?”

2. According to statement of claim opposite parties

1 to 3 are three different companies under common

proprietorship of Sh. Hakim Chand. Opposite parties No.4

& 5 have been providing business contract to opposite

party No.1 to 3 all over India for management of pantry

cars, in running trains for providing food, breakfast, tea

etc. to passengers.

3. Opposite party No.1 to 3 the employers had

provided employment to the applicant in December, 1998

on train in route from Jaipur to Chennai in pantry car & the

employer got the applicant medically examined before

placing him under employment. Certificate of medical

examination A-1 is attached to statement of claim. The

applicant was paid monthly remuneration beside 12%

commission against the sale of goods by the applicant.

Being satisfied with services of the applicant employers 1

to 3 promoted the applicant to the rank of Inspector.

4. In para 3 of statement of claim the applicant has

alleged that based on his hard work & good behaviour

employers opposite party 1 to 3 had engaged the applicant

on monthly pay of Rs. 3000 beside 3% commission of

entire sale made by applicant. It has been further alleged

that during his entire period of service there was no

occasion to the employers to be dissatisfied with the

services of rendered by the applicant & time to time his

services were commended by opposite party & he was

never served with charge sheet of any kind under standing

orders. The applicant has worked for a period of 4 years 8

months when suddenly in the month of June, 2003 without

serving any notice applicant was removed from the job by

oral order. Applicant tried to know the reason for removal

from the service by the employer time & again but no

satisfactory answer was provided. Thereafter applicant

presented an industrial dispute u/s 2-A for conciliation

before the state government whereupon he learned that

the dispute for conciliation should have been presented

before the Central Government. Applicant moved

application for conciliation before Assistant Labour

Commissioner (Central)/ Labour Conciliation Officer, Jaipur

which is annexure A-2 attached to statement of claim. On

failure of conciliation proceedings matter was referred by

Regional Labour Commissioner (Central), Jaipur on

1.7.2005 which is Annexure A-3 to the statement of claim.

Thereafter the dispute as mentioned above was referred

by Ministry of Labour for adjudication before this

Tribunal.

5. It has been further alleged in para 7 of statement

of claim that despite period of service for four years &

four months rendered by the applicant he was neither given

any notice before removal by oral order nor was given any

compensation in violation of section 25-F, 25-G & 25-H of

Industrial Disputes Act, 1947. It has been further alleged

that u/s. 25-F notice & payment of compensation is

necessary which has not been done by the employer & he

has been removed from the employment despite the fact

that persons junior to him are still working & there was no

seniority list published by the employer thus, there has

been open violation of provisions of Industrial Disputes

Act, 1947. In above fact & circumstances, the applicant

has prayed that he be reinstated with pay, allowances,

commission & other benefits from the date he has been

removed in June, 2003 & his removal be declared illegal &

be cancelled.

6. According to reply of statement of claim filed by

opposite party 2 & 3 preliminary objections have been

raised before submitting para-wise reply of statement of

claim. According to para wise reply to statement of claim,

statement made in para 1, 2 to 4 & 7 have been specifically

denied. Regarding para 6 it has been alleged that the

statement made in para 6 is a matter of record & needs no

answer. Against para 5 it has been said that there was no

privity of contract between petitioner & answering

respondents.

7. It has been further alleged that statement of para 1

is denied that respondent No.1 to 3 are under

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5035

proprietorship of one person & managing the maintenance

of pantry car & catering to passengers throughout India.

It has also been alleged that as per information available

there are 31 licensee managing on board catering to the

passenger in 264 pantry cars in railway in addition to the

departmental catering. The maintenance of pantry cars

were also done by concerned railway department & not

by the answering respondents.

8. The petitioner was never the employee of the

answering respondents from Dec., 1998 to June, 2003 &

for the sake of brevity submissions made in preliminary

objections may kindly be read as reply to the claim of para

2 to 4 of statement of claim. It has been further alleged that

there is no violation of any provision of Industrial Disputes

Act, 1947 & the petitioner may be directed to file the better

particulars relating to averments made in the statement of

claim. It has been further submitted that respondents

reserve right to file detailed reply after filing of better

document by the petitioner & also after the decision of

preliminary submission made by respondents about

territorial jurisdiction of this court to entertain the present

dispute. At last it has been submitted that for the reasons

given in answer to the statement of claim the claim of the

petitioner is liable to be dismissed being devoid of merit.

9. In preliminary objection to the statement of claim

it has been said that pantry car in a running train is not an

‘industry’ & the alleged dispute is not an ‘industrial

dispute’ hence, the statement of claim may be dismissed

on this count alone. Reference has been made to P.R.

Catering V/s. State of Bihar & anothers. 2002 (1) LLJ 227

wherein it has been held that a pantry car in a running

train is not an ‘establishment’. The alleged ruling is

annexed as R-1 to W.S. It has been further alleged that the

firms Aahar Caterers & Good Food & Company have been

dissolved in the year 2005.

10. It has been further alleged that the name of the

firm Sh. Hakmi Chand is “M/s. Hakmi Chand D & Sons”

which is a proprietorship firm & not a company as alleged

in the statement of claim. The letter head with the name &

style, “H.D. & Sons Company” may be a different company.

The answering respondent “ M/s. Hakmi Chand D & Sons”

has no relation with “H.D. & Sons Company” & has no

knowledge about “H.D. & Sons Company”. In case the

petitioner falsely wants to implicate M/s. Hakmi Chand D

& Sons as respondent No.1 by this letter head the

petitioner is liable for prosecution for an offense of forgery

as this document is a forged computer generated letter

head. It is also required to be noticed that by doing that

the petitioner is also misleading the court. It has been

further alleged that the claimant has not approached the

court with clean hand & has suppressed vital & material

facts.

11. It has been further alleged that claimant has not

specified the period of working with the parties against

whom he seeks relief which is important in the light of

labour acts which require that details & evidences of

working against the parties to the alleged period of dispute.

The applicant has also not specified the period with

reference to claims against the answering respondents,

hence the claim petition against the respondents is liable

to be rejected. Petitioner was never an employee of either

“M/s. Hakmi Chand D & Sons” or “M/s. Aahar Caterers”

or “Good Food & Co.”.

12. The answering respondents have further

questioned the jurisdiction to entertain the statement of

claim on the ground that cause of action has not arisen at

Jaipur hence, this court has no territorial jurisdiction to

entertain the claim of the applicant as none of the

respondents work for gain at Jaipur & none of them reside

within the territorial limit of this court. It has also been

alleged that there is no privity of contract between applicant

& answering respondents either at Jaipur or any place in

India. It has also been alleged that the petitioner has given

his residential address in Railway Colony though he is

neither a railway employee nor a dependent of railway

employee, thus by giving the address in railway colony

he is trying to manipulate the matter of territorial jurisdiction

at Jaipur.

13. It has also been alleged that Regional Labour

Commissioner (Central) had directed the applicant to

produce additional better documentary evidence e.g. copy

of attendance register or other medical certificates but

applicant had failed to provide the detail of his working

during the alleged period with all the alleged three

companies. Applicant has submitted the illegible copy of

medical examination dated 19.12.2001 giving name of the

licensee “ Good Food & Co.” & one illegible format of

“HD & Sons Co.” letter head with date 13/8 without

mentioning the year. It has been further alleged that there

is contradiction between the statement recorded before

the R.L.C.(C ) Jaipur & the fact mentioned by the applicant

in the complaint before the R.L.C.(C), Jaipur hence,

applicant may be directed to file better document and

better particulars of his working with above named three

companies as alleged in the statement of complaint by the

applicant during the period Dec, 1998 to June, 2003. The

medical fitness examination has been issued only for a

period of one year hence, applicant may be directed to file

fitness certificate for remaining alleged working period as

no employee of railway or private licensee is allowed to

cater or work in any pantry car unless he has a valid fitness

certificate issued by a railway doctor. The medical

certificate filed by the applicant is having overwriting with

date deleted & overwritten & there is no mention made by

the doctor whether the applicant is fit or unfit for the

employment. It has been further alleged that medical

certificate filed by the applicant is not genuine & answering

respondents shall place their submissions at the time of

argument in this matter.

5036

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

14. It has been specifically denied that respondents

1 to 3 are under the sole proprietorship of one person &

manage the maintenance & catering in the pantry car

throughout India.

15. Reply to statement of claim filed by opposite

party no.4 I.R.C.T.C has alleged that opposite party no.4

is a corporation of Government of India who issues licenses

for pantry cars in running Indian railway trains & opposite

party no.1 to 3 were licensed to manage catering & pantry

cars in the trains in North India. For running the above

business of management of pantry cars & catering services

to the passengers opposite party no.1 to 3 were required

to employee the workers & decide their working days/

working hours & pay. The job of opposite party no.4 is

only to issue the license. It has been further alleged that

applicant Sh. Kamlesh Singh was appointed in Dec, 1998

in the pantry car of the train between Jaipur – Chennai &

entire exercise regarding appointment was carried out by

opposite party no.1 to 3 & they are the employer of the

applicant & opposite party no.4 has not appointed the

applicant hence, there is no relation of employer &

employee between opposite party no.4 & applicant. The

opposite party no.4 also has no control over the applicant

& has no relation with the applicant. The claim filed against

the opposite party no.4 is baseless & prime-facia fit to be

dismissed in absence of employer-employee relationship.

16. In the para wise reply to the statement of claim

para 2, 3 & 4, 5, 6, 7 of statement of claim has been denied.

Against para 1 it has been admitted that opposite party

no. 4 has been providing commercial contract by issuing

license to opposite party no.1 to 3 for management of

pantry car in the railway trains in North India for providing

food, refreshment, tea etc. to passengers time to time. It

has been further alleged that entire management of the

pantry car including appointment of workers for pantry

car, their pay, working day & working hours is the sole

function of opposite party no.1 to 3.

17. It has been further alleged that opposite party

no. 4 is unaware of appointment given to applicant in Dec,

1998 on Chennai- Jaipur bound trains by opposite party

no.1 to 3 & opposite party no.4 has no relation or

connection with such appointment. It has been alleged in

para 2 of the parawise reply that applicant was paid beside

pay 12% commission on the sale carried out by him & he

was also promoted by opposite party no.1 to 3. Against

reply to para 3 it has been alleged that opposite party no.4

is unaware about the fact that applicant was paid a monthly

pay of Rs. 3000 & 3% commission on entire sale because

opposite party no.4 is not concerned with pay &

employment of the applicant.

18. Removal of applicant from employment by

opposite party no.1 to 3 has been admitted in the month of

June, 2003. It has also been admitted that applicant had

raised an industrial dispute u/s 2-A of the Industrial

Disputes Act before the State Government which was

rejected for want of jurisdiction whereupon the dispute

was raised before the Labour Conciliation Officer/ Assistant

Labour Commissioner (Central), Jaipur who submitted his

report on 1^st July, 2005 to Regional Labour Commissioner

(Central), Jaipur. It has been said that nothing in connection

with removal of the applicant from the job was done by

opposite party no. 4 hence, it was not the concern of the

opposite party no. 4 to give notice or compensation to the

applicant in absence of employer-employee relationship,

thus applicant is not entitled to any relief from opposite

party no.4 & opposite party No. 4 has been impleaded as

unnecessary party to the case & case against the opposite

party no. 4 is fit to be dismissed.

19. In reply to the statement of claim by opposite

party no. 5 it has been alleged in preliminary objection

that applicant was never in employment of opposite party

no. 5 & has no relation with applicant. The department of

Railway gets the work done through contractor hence,

applicant is not entitled to any relief from opposite party

no. 5. It has also been said that applicant has not sought

any relief against opposite party no.5 hence, answering

respondent is unnecessary party.

20. In parawise reply to statement of claim, statement

in para 1& 6 has been admitted. It has been alleged about

para 2, 3, 4, 5 that statements in these paras are not

connected with opposite party no. 5 hence, there is no

need to reply. Para 7 of the statement of claim has been

specifically denied & have been said to be wrong. It has

been further said that applicant has not been in employment

of opposite party no. 5 & he has sought no claim from the

department of opposite party no. 5. It has been prayed

that claim may be dismissed with cost against the opposite

party no.5, the answering respondent.

21. On 15.4.2010 applicant has filed the rejoinder

wherein statements made in the statement of claim has

been reiterated. On point of jurisdiction which has been

raised as preliminary objection by opposite parties it has

been said that Tribunal has jurisdiction to entertain the

statement of claim.

22. During hearing of the case on 30.12.2013 when

application of opposite parties were fixed for hearing

applicant was absent, learned counsel for opposite parties

were present, it was found on 30.12.2013 that applicant

was continuously absent on passed dates 13.3.2013,

15.5.2013, 12.8.2013 & 23.10.2013. In above circumstance,

order was passed on 30.12.2013 to proceed ex-parte against

the applicant & case was fixed on 25.3.2014 for evidence

of opposite party & disposal of application of opposite

parties. On 25.3.2014 again applicant was absent, learned

counsel for opposite party no.1 to 3 & 4 were present who

stated that they do not intend to lead any evidence from

the side of opposite parties as no evidence has been

adduced by applicant. In above circumstance opportunity

¹Hkkx II—[k.M 3(ii)º

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5037

of evidence for opposite party was closed & case was

fixed on 23.4.2014 for ex-parte arguments.

23. Heard the argument of learned counsel for

opposite party no.1 to 3, 4 & 5 & perused the file.

24. It has been argued by learned counsel for

opposite party no. 1 to 3 that applicant has not proved the

content of his statement of claim hence no relief can be

granted to the applicant against opposite parties. Learned

counsels for opposite party no.4 & 5 have argued that

applicant has wrongly impleaded the opposite parties 4 &

5 as they have no role in appointment or removal of the

applicant hence they are unnecessary parties to the case

which is fit to be dismissed against them.

25. From perusal of the file it appears that applicant

has not been taking part in the proceeding since 13.3.2013

& he had been continuously absent. Since 11.10.2012 there

has been only once presence of applicant on 20.12.2012.

From reference it appears that applicant is said to have

been removed from alleged service in the month of August,

2003 whereas in statement of claim it has been said that he

was removed in the month of June, 2003. Subsequently

for amending the time mentioned in the statement of claim

from June, 2003 to August, 2003 amendment applications

have been moved by applicant on 15.6.2010 & 16.11.2010

which has been allowed by my learned predecessor on

15.12.2011 & case has been fixed on 15.2.2012 for cross-

examination of the applicant but neither amendment has

been incorporated in the statement of claim nor applicant

has appeared on 15.2.2012 for his cross examination. This

further indicates that even prior to his continuous absence

applicant had been reluctant to take due interest & step to

advance the further proceeding of the case.

26. Initial burden was on the applicant workman to

establish by cogent evidence that his services were

terminated by the non-applicant in the month of August,

2003 illegally without giving one month’s notice or pay in

lieu of notice. The claim of the workman had been denied

by the answering concerned non-applicants. The workman

has failed to adduce any oral evidence to substantiate his

case set forth in the statement of claim.

27. In above facts & circumstances, it appears that

the applicant workman is not interested to contest the

case further. Therefore, “No Claim Award” is passed in

this matter. The reference under adjudication is answered

accordingly.

28. Award as above.

BHARAT PANDEY, Presiding Officer

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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,u- ,iQ- jsyos

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New Delhi, the 3rd July, 2014

S.O. 1941.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No.

06/2010) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Guwahati as shown in the Annexure, in the

industrial dispute between the management of N. F. Railway,

and their workmen, received by the Central Government on

11/06/2014.

[No. L-41011/100/2009-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

IN THE CENTRAL GOVT. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT,

GUWAHATI, ASSAM

Present :

Sri L. C. Dey, M.A., LL.B., Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

In the matter of an Industrial Dispute between:

The Management of N. F. Railway, Maligaon, Guwahati.

Versus

Their Workman Sri Subodh Saha, Rep. by the General

Secretary, Rail Mazdoor Union, Guwahati.

Ref. Case No. 06 of 2010

Appearances:

For the Management :

Mr. S. N. Choudhury,

Advocate

For the Workman:

Mrs. M. Bora, Advocate

Mr. N.K. Haloi, Advocate

Date of Award : 29.05.2014.

AWARD

1. In exercise of powers conferred by Clause (d) of

Sub-Section (1) & (2A) of Section 10 of the Industrial

Dispute Act, 1947 the Ministry of Labour & Employment,

Government of India, has referred this Industrial Dispute

raised by the workman Subodh Saha against the

Management of N.F.Railway, vide Order No. L-41011/100/

2009-IR(B-I); Dated: 03/05/2010 for adjudication. The

Schedule of the Reference is as follows:

5038

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

SCHEDULE

“Whether the demand of Rail Mazdoor Union for

fixation of seniority of Shri Subodh Saha in the cadre

of Open Line Organization from the date of his

screening in construction organization is legal and

justified? If yes, what relief the workman is entitled

to?”

2. On receipt of the order of Reference this Reference

Case has been registered and notices were served upon

both the parties who appeared and contested the

proceeding by filing their claim statement/written statement

and adducing evidence along with documents.

3. The fact of the case of the workman, in nutshell,

is that the workman Subodh Saha was employed by the

management of N.F.Railway as Khalasi Helper in the

establishment of Senior Divisional Electrical Engineer,

Guwahati/ North East Frontiner Railway ( in short Sr.DEE/

GHY/N.F.Rly) and was posted under Sr. Section Engineer,

Electrical at Pandu Power House of N.F.Railway. The

workman was under administrative control of the Assistant

Divisional Electrical Engineer, Maligaon, ( in short ADEEN/

MLG) of the Electrical Department headed by its Principal

Officer, known as Chief Electrical Engineer, N.F.Railway

with its Head Quarter at Maligaon. The Divisional

Railway Manager at Lumding Division of N.F.Railway is

the Divisional Head controlling the electrical Department

at Divisional level and the seniority of the workman is

looked after by the Office of the Assistant Personal Officer,

Guwahati, N.F. Railway in the personal matter. Initially the

workman was engaged in railway service in Construction

Wing as a casual labourer on 14.12.84 at Silchar and after

obtaining the requisite qualification he was given the

temporary status of service in the same construction wing

in 1985; and he was screened for permanent service on

1.4.88 against the 60% construction reserved post as per

the Rules under Deputy Chief Electrical Engineer

(construction), Maligaon ( in short Dy.CEE/Con./MLG)

vide Office order No. E/227/CON/Elect dated 15.5.96. The

workman was absorbed in Railway service as a regular

employee and posted in the permanent post of Khalasi

Helper on 1.4.1988 and rendered continuous service in the

construction organization and was promoted to the post

of Lineman which was a grade-III post and continued in

that Organisation up to 1997. As per the letter issued by

the Railway Ministry/Railway Board from time to time

regarding staffing in construction organization by creation

of the construction reserved post for posting in

construction wing in Indian Railway as a matter of policy,

and the N.F.Railway vide its letter No. Misc.1378/No.E/1/

19(C) dated 14.7.1988 circulated the Ministry / Board’s

letter to meet the man power requirement in construction

organization in N.F.Railway. The construction reserved

post being the permanent post given to the appointees

including workman, carried the surety of services on

permanent footing but their services in the construction

organization was as per requirement of work available in

the organization in the particular field which is in the case

of the workman is electrical work of Construction

Organisation. In implementing the policy of shedding extra

work force the management sent in lots workmen occupying

the post of construction reserved to the Open Line Wing

of the N.F.Railway under the official authority. The present

workman belong to such a lot was directed to report to the

DEE, GHY of the Open Line Wing in terms of Dy.CEE./

Construction/MLG letter No.E/227/CON/Elect (Screening)

dated 03.10.1997. Accordingly the workman resumed his

work as Khalasi in the scale of Rs. 2550 Rs. 3200 on

22.10.1997 under DEE/GHY. The workman having been

already appointed in a permanent post on a lien in

substantive capacity in the permanent cadre of N.F.Railway

and on his transfer to Open Line he was entitled to seniority

on the basis of his lien. Further the workman was absorbed

in regular post of Khalasi he was placed in Group D post

of the 60% non-gazetted regular posts earmarked for

Construction Organisation and as the workman was

eligible for lien in a substantive post where it is maintained

in its seniority is fixed with reference to the date of his

absorption irrespective where his services were utilized in

the regular capacity; and as such, on his placement in the

seniority unit under Sr. DEE/GHY/N.F. Railway his seniority

is to be fixed in terms of the maintenance of his slot

according as the lien he hold in the substantive post of

N.F. Railway of his relative inter-se seniority. The

occupation of post of Khalasi amongst 60% non-gazetted

regular post earmarked for the Construction Reserved Post

as a whole. But it was not done and the workman was

placed in the establishment of Sr.DEE/GHY/N.F.Railway

far below the occupants in the posts of Khalasi in the pay

scale of Rs. 2550 to Rs. 3200 in the said establishment who

have been were his juniors in respect of his date of

absorption in the 60% non-gazetted regular posts

earmarked for the construction reserved post. In the

provisional seniority list of Khalasi published under letter

No.E/255/I/Pt.III dated 12.03.1999 by APO/GHY. The name

of the workman is placed under serial No.32 which was

later corrected and he was placed above Sri Uttam

Bhattacharjee, his fellow appointee against 60% non-

gazetted regular posts earmarked for the Construction

Organisation and hence, the workman was treated junior

to his erstwhile juniors.

The date of appointment to the substantive post in

permanent cadre is the universal criteria for deciding the

placement of an employee holding a civil post in the

gradation list kept for the category of service he belongs

to. The workman being a senior to the existing staff under

the establishment of DEE/GHY who only by virtue of

different placement of Railway either in the Open Line or

in the Construction Organisation at various times, was

absorbed in the establishment of DEE/GHY by picking up

¹Hkkx II—[k.M 3(ii)º

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5039

for absorption against 60% non-gazetted regular post

earmarked for construction organization. As such, those

staff existing in the establishment of DEE/GHY prior to

22.10.1997 which is the date of reporting of the workman

in the same establishment were treated senior although

the date of appointment i.e. the date of screening of the

workman, to the substantive post in permanent cadre by

way of absorption of the workman in the Construction

Organisation on 1.4.88 was far anterior to the date of

appointment of those seniors. Thus the administration

has mistaken in assigning the seniority of the workman

below the latter appointees reckoning his permanent

service in the establishment of DEE/GHY from the date of

his reporting on 22.10.1997. Further the workman did not

leave the Construction Organisation and joined the Open

Line Organisation of the same zonal Railways at his own

but under official direction. In Rule 312 of Indian Railway

Establishment Manual Volume I of 1989 Edition it is

provided that the seniority of staff transferred at their

own request from one cadre/division to another cadre/

division on the same Railway should be treated below

that of the existing, confirmed, temporary and officiating

railway servants in the relevant grade in the new

establishment irrespective of the date of confirmation or

length of officiating temporary service of the transferred

railway servants. But the workman never requested to be

sent to the Open Line Organisation from Construction

Organisation nor the Management floated any option for

the same situation as that of the workman for joining the

establishment of DEE/GHY or for that matter any other

Open Line establishment. Due to the aforesaid Act of

the management by confining the prospect of career

advancement and monitory benefits that would have come

to the workman had he been assigned the correct seniority

as to his junior, has infringed upon the workman’s right

guaranteed under Article 14,16, 21 of the Constitution of

India. The workman suffered irreparable loss for his

stagnation in grade of Khalasi (helper) while his junior are

gaining benefits of higher pay and perks offered through

the 6^th Central Pay Commission and he can never overtake

them if he is not given the boost of his correct seniority

over his juniors.

Under the above premises the workman prayed for

passing necessary award granting the workman his lien

and seniority from 1.4.1984 with direction to implement

the award with retrospective effect along with

consequential benefits of promotion/financial up-

gradation/promotion under policy of cadre restructuring

at par with his juniors, correct all the seniority list where

the workman has been given wrong seniority position and

for maintaining correct seniority list and/or pass such or

other order or orders deemed fit and proper.

The workman by filing Addl. Claim Statement denied

the contention made by the management in their W.S. The

workman mentioned that the seniority of the workman got

transferred and the same was maintained in the Open

Line itself; that the workman’s line is maintained by the

APO, Guwahati; that the workman was work charged and

not permanent in the Construction Organisation; that the

irregularities in the seniority of all the employees serving

in that establishment was corrected later on; that the

screening was done much earlier than that of the workman;

and that the seniority was given to the workman from the

date of his screening making him senior to those whose

screening was done later in the Unit they worked, before

the workman arrived there. On transfer from the

Construction Organisation.

4. The Management, on the other hand, submitted

that the post of Open Line is a Revenue Post, on the other

hand, the posts attached to Construction Organisation

are worked charged post, which is a decided fact of

N.F.Railway based on circumstances of the urgent occasion

and need based, though both are under the same umbrella

of Railway Organisation. All the incumbents working in

the Construction Organisation under the work charged

based having lien in the Open Line is maintained their

seniority of staff comprising both Open Line and

Construction Organisation, and their status in

Construction Organisation while any selection is

processed in Open Line both staff of the Open Line and

Construction Organisations are called for as per seniority.

On the other hand, no normal selection procedure is done

at Construction Organisation in the exceptional

circumstances which is time based and need based only;

and some adhoc promotion are made amongst the

Construction staff itself only and there is no claim of adhoc

promotion of open line staff in construction organization.

However, while regular selection is made in the Open line

staff of construction line are being called as per seniority

and as a matter of right, and the organizational structure

of work force in N.F. Railway of the time under question

do have substantial distinction between open line and

the construction organization staff as far as establishment

procedure is concerned. These two are in certain cases on

establishment matters are not to be treated as on the same

air-tightened line. It is also mentioned that the workman

Sri Subodh Saha was transferred to open line providing

certain provisions exclusively admissible to open line staff

only and his seniority got transferred and subsequently

the same is maintained in the open line itself only. There

are certain laid down principle and guidelines for dealing

with the labour disputes and to follow by the government

organization like Railway as in the case; and the guidelines

of labour dispute are to be placed before forum available

between Railway administration and the recognized Union.

But in the instant case the representation is made by the

Rail Mazdoor Union which is not recognized by the Railway

Administration and the workman has never brought his

case through the recognized Union as per the guidelines.

The workman representative i.e. Rail Mazdoor Union,

5040

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

Pandu is an un-recognized which has no negotiating power

with the management and as such, the Rail Mazdoor

Union is misrepresentative of the workman in the present

reference and as such, the issue of the workman can not

be termed as an Industrial Dispute or as labour problem.

The management challenging the averments of the

Union mentioned in their claim statements, stated inter-

alia, that the workman was appointed as casual labourer

and on being screened he was posted in construction

organization and his seniority along with similarly situated

persons of Construction Organisation whose lien are

maintained at APO, Guwahati; and the open line cadre and

construction cadre are distinctly separate establishment

and the seniority of the workman in construction

organization may differ in the open line. The

management added that due to wrong fixation of seniority

the workman was deprived of his promotional benefits

under the restructuring of cadre; there is no incumbent

junior to the workman had been promoted by the

administration in the organization. It is further mentioned

that the seniority is to be reckoned from the date of the

screening of workman and no junior to the workman

was promoted earlier and the seniority of the workman

has been fixed correctly and maintained in the open line,

and the process of Modified Assured Career Progression

as admissible to the workman has already been issued.

Therefore the management prayed to decide the issue

against the workman and to dismiss the reference with

cost.

The Management, however, filing their additional

written statement stated that such staff absorbed in the

Railways after screening will not be allowed the benefit of

their service vis-à-vis other open line staff but inter-se

seniority will be maintained in absorbing department

whatsoever of the date of their physical absorption; and

that the seniority of the workman Subodh Saha along with

other similarly in the construction organization whose lien

are maintained at APO, Guwahati.

5. The Union, in order to prove their case examined

two witnesses namely the General Secretary of Rail

Mazdoor Union, N.F. Railway, Maligaon as W.W.1 and the

workman Sri Subodh Saha as workman witness No. 2, while

the Management examined Sri Kabi Ram Boro, Divisional

personnel Manager, Guwahati as MW.1. Both the parties

submitted their written argument also they have placed

their oral argument. Let us discuss the evidence of the

witnesses for both the sides first.

6. According to the W.W.1, Sri Mridul Kr. Das, the

General Secretary, Rail Mazdoor Union, Pandu, Guwahati,

the workman Subodh Saha was an employee of the

establishment of Senior Dvisional Electrical Engineer,

Guwahati and was appointed as a casual labourer on

15.3.85 in Construction Organisation of N.F. Railway. The

workman was screened for permanent service on 1.4.88

against 60% construction reserved post under the Chief

Electrical Engineer, Construction, Maligaon vide Railway

Memo No. 52/96 dated 15.5.96 marked as Exhibit-1 and

hence, the absorption of the workman in permanent post

is evident from the Exhibit-1. Thereafter the workman was

promoted to the grade-III post of Lineman while in the

service of the construction organization vide Office Order

No.7/88 dated 28.9.88 marked as Exhibit-2. Subsequently

as per the need of the Railway management to shed extra

workforce under not required for the work in the

construction organization he has been sent to open line

vide Railway letter No. E/255/CON/SENIORITY/CL/PT-VII

(Elect.) dated 1.10.97 issued by the Dy. Chief Personnel

Officer (Construction) for General Manager, Construction

and accordingly the workman was spared from the

construction organization on 20.10.97 vide letter No. EL/

CON/LMG/ESTT/2 dated 20.10.1997 vide Exhibit-4. The

workman continued his service in the construction

organization upto 1947 and during that period the seniority

of the workman was not disclosed by the management in

his substantive post of Khalasi amongst those appointed

in that Grade in the open line organization but the workman

had an inherent right to lien in the open line organization

in suitable unit with effect from the date of his permanent

absorption in the post of 60% construction reserved as

the construction reserved posts are permanent post which

is evident from the letter dated 14.7.88 marked as Exhibit-3.

The W.W.1 also examined that the Railway Board’s letter

No. E(NG)II/84/PO/SE/30 dated 21.6.1988 included “it is,

however reiterated, that Construction Reserve is to be

created only for Posts chargeable for General Charges”.

That these posts of which one was occupied by the

workman were on General Charges as all permanent

appointments are not work charged. As the workman was

sent to establishment of Senior Divisional Electrical

Engineer, Guwahati from construction organization, his

seniority in this establishment in his group-D grade would

be according to his lien in the open line reckoning from

the date of his permanent absorption on 1.4.88 but the

workman has not been assigned the correct seniority in

the establishment of Senior Divisional Engineer, Guwahati

in Group-D grade of Khalasi. But he was given a slot in the

gradation list far below the staff appointed much later

than him. The witness concerned has cited example of a

workman Sri Gopal Sarkar who was appointed on 11.4.1997

was given the 3^rd slot in the gradation list whereas the

workman absorbed on 1.4.88 were given as 3^rd slot and in

support of his contention the W.W.1 has produced a

seniority list of Khalasi (P) in the scale of Rs. 2550 to 3200

as on 1.4.98 as per the seniority list enclosed with Exhibit-3.

As such, due to wrong assignment of the seniority to the

workman in the establishment of Senior Divisional

Engineer, Guwahati his juniors reckoning from the date of

his absorption in the permanent post were appointed in

the permanent post later on him but placed in the gradation

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5041

list above the workman as a result his juniors were promoted

which is clear from the statements marked as Exhibit-6.

The WW.1 in support of his statement cited the

provision of Rule 12 of Railway Establishment Manual

Volume-I, 1989 Edition and submitted that the action of

the management in transferring the workman from

construction organization to the open line with seniority

below the incumbents in the grade of Khalasi Helper in

the seniority list under Sr. DEE, Guwahati at his place of

posting is without any legal basis and in violation of the

standing rules.

In his cross-examination the W.W.1 mentioned

that the Railway Organisation being a vast one and for

smooth functioning the Railway Establishment has been

divided into two Branches namely open line and

construction organization and there are two GMs for

both the Open Line and Construction Organization. He

denied the suggestion that the respective General Manager

control the administration in their branches and the

seniority of the staff is maintained separately. He

categorically stated that the General Manager, open line

maintains the seniority of the staff as a whole. He denied

the suggestion that the seniority may differ from open line

and construction but the irregularity in seniority in the

construction was corrected by the authority lateron ; and

the date of seniority is maintained from the date of

screening.

The workman witness No. 2 Mr. Subodh Saha,

the claimant himself stated that on his request to arrange

for redressal of his grievances regarding fixation of

seniority in the cadre of open line organization from the

date of screening in the construction organization, the

Rail Mazdoor Union, N.F. Railway, Pandu, raised this

dispute. He was appointed as casual labourer on 15.3.85

in the construction organization of N.F. Railway and he

was screened for permanent service on 1.4.88 against 60%

construction reserved post under Divisional Chief

Electrical Engineer, Construction, Maligaon vide their letter

marked as Exhibit-1. The workman was promoted to

Grade-III post Lineman while his service in construction

organization vide Exhibit-2; and he continued in the

construction organization upto 1997 but during that period

the Railway Administration never disclosed his seniority

position in the substantive post of Khalasi among those

appointed in that grade in the open line organization. The

W.W.2 further mentioned that due to requirement of the

railway the Management to shed extra workforce not

required for the work in the construction organization the

worker had been sent to open line in batches. Accordingly

the workman was spared from construction organization

on 20.10.97 vide Exhibit-4. The workman claimed that he

is a permanent Railway workman from the date of his

absorption against 60% construction reserved post and

hence, he had acquired a right to lien in the open line

organization in suitable unit with effect from the date of

his permanent absorption in the construction organization.

He also mentioned that the construction reserved post

are permanent reserved post and he took the support of

his contention by dint of the letter marked as Exhibit-3. He

also mentioned that the Railway Boards letter No.E(NG)II/

84/PO/SE/30; dated 21.6.88 which provided as “It is,

however reiterated, that Construction Reserve is to be

created only for Posts chargeable to General Charges;

these posts of which one was occupied by the workman

were on General Charge as all permanent appointments

are not work charged as all fortuitous appointments are”.

Hence, the claimant contended that he is entitled for a lien

in the open line with effect from 1.4.88 i.e. from his

absorption as a regular employee in the construction

organization, and his date of appointment in the

substantive post is permanent cadre which is universal

cadre for deciding his seniority in the gradation list

maintained in the open line for the grade of Khalasi Helper.

The workman was sent to the establishment of Senior

Divisional Electrical Engineer, Guwahati from the

Construction organization in Group-D grade and as such,

his seniority of this establishment would be according to

his lien in the open line reckoning from the date of his

appointment i.e. on 1.4.88. But it was not done by the

management assigning him the correct seniority in the

establishment of SDE, Guwahati in his Group-D grade of

Khalasi he was given a slot in the gradation list of Khalasi

(P) far below the staff appointed much later than him. He

cited an example of Sri Gopal Sarkar who was appointed

on 11.4.1997 was given 3^rd slot in the gradation list whereas

the workman absorbed on 1.4.88 was given the 30^th position

vide the provisional seniority list of Khalasi (P) grade

enclosed with the letter proved as Exhibit-3. He further

contended that due to wrong assignment of seniority in

the establishment of SDE, Guwahati his juniors reckoning

from the date of his absorption in permanent post who

were appointed in permanent post later than him, placed

in the gradation list above him and they could utilize the

opportunity of their seniority in getting promotion

including the promotion through restructuring of cadre

before the workman as a result, he had been deprived of

getting promotion and other benefits. The workman in

order to justify his contention cited the provision of Rule

12 of Railway Establishment Manual, Volume-I, 89. Hence,

the workman prayed for relief for grant of his lien and

seniority from 1.4.88.

During his cross-examination the W.W.2, stated that

initially he was appointed as casual labourer and thereafter

he was screened and was engaged as Lineman; and that

their seniority is being maintained by APO, Guwahati,

NF.Railway. He also mentioned that there are two

organization in N.F. Railway i.e. open line and construction

organization and at the time of his engagement he was

aware that his engagement was a work charged worker

which is created as per requirement of the Management

5042

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

for a particular period. He also said that he did not know

the seniority in construction department may not be

maintained in the open line. He further stated that the

workman namely K.K. Kakoti, Naba Kumar Gogoi, and

Dilip Kr. Roy were engaged in construction department

on 1.1.84, 3.8.89 and 3.8.89 respectively and they were

made senior to him after their engagement in Open Line

but he did not know if the seniority is maintained in the

Open Line from the date of screening. He added that so far

he knew that none of the workers belong to construction

department superseeded him. He also did not know

whether the process of Modified Assured Career

Progression Policy is admissible in respect of fixation of

seniority of the workman.

7. The Management Witness No. 1 (M.W.1), Sri

Kabi Ram Boro, the Divisional Personal Officer, N.F.

Railway, Maligaon, in his evidence stated that the post of

Open Line is a revenue post, while the posts attached to

Construction Organization are work charged post; the

seniority of and all the incumbents working in the

Construction Organization under the work charge posts

having lien in the Open Line is maintained comprising the

staff of both Open Line and Construction Organization.

He added that while any selection is processed in Open

Line, the staff of Open Line and Construction Organization

are called for as per seniority and in case of regular selection

made in the Open Line. The staff of Construction

Organization are being called for according to seniority.

The M.W.1 further mentioned that the workman was

transferred to Open Line providing him certain provisions

exclusively admissible to the Open Line staff only and his

seniority got transferred and subsequently the same is

maintained in the Open Line. The workman was appointed

as Casual Labourer and on being screened, he was posted

under Construction Organization: and the seniority of the

workman similarly situated persons of Construction

Organization is maintained by the A.P.O. Guwahati. The

M.W.1 contended that it is not correct that due to wrong

fixation of seniority the workman deprived of promotion

benefit under the restructuring of cadre; and that no

incumbent junior to him have been promoted by the

administration in organization. Rather the seniority of the

workman reckoned from the screening and as such, he

has been awarded seniority from the date of his screening.

It is also mentioned by the M.W.1 that the staff absorbed

in Railway after screening will not be allowed the benefits

of their service vis-à-vis other Open Line staff, but inter-

se seniority would be maintained in absorbing department

irrespective of their date of physical absorption.

During his cross-examination the M.W.1 said that

absorption in permanent post means absorption against

revenue post and not in any work charged or temporary

post; and once a Railway employee posted in Open Line

he acquires a right of lien which carry with him in the even

on his transfer to any other organization. He admitted the

fact that the workman was permanently absorbed against

sixty percent construction reserved permanent post with

effect from 01.04.1988 in the Construction Organization

vide Exhibit No. 1 which was issued on the strength of

Railway Board’s circular letter dated: 21.06.1988 marked as

Exhibit No. 3. He again mentioned that the provisions for

lien has been in chapter 26 in Rule 239 of Indian Railway

Establishment Code, Volume I, Fifth Edition 1985 vide

Exhibit No. A(1). It is further stated that in case of transfer

from one organization to another on administrative

ground, the lien once acquired will not be disturbed or

changed; and the workman was given protection in

respect of his lien as per Rule 311 of Indian Railway

Establishment Manual, Volume I, 1989 marked as Exhibit

No. B. Wherein the Exhibit No. B(1) is the relevant Rule. It

is stated by the M.W.1 that the workman was transferred

on administrative ground from Construction Organization

to Open Line, but he did not know if any combined seniority

list of the workman was prepared during the relevant

period. He also admitted that the workman is entitled to

get seniority with effect from the date of screening i.e.

01.04.1988.

8. Both the parties have submitted their respective

written arguments. They have also made oral arguments.

On perusal of the evidence adduced by both the

sides along with the documents relied upon by them it is

fund that the workman was engaged on 14.12.2014 as

Casual Labourer in Construction Organisation, N.F.

Railway and he was screened on 01.04.1988 for permanent

posts against sixty percent permanent Non-Gazetted

construction reserved posts; and on 20.10.1997 he was

spared from the Construction Organization vide the letter

marked as Exhibit-4; and on 22.10.1997 the workman

resumed his duty in Open Line as Khalashi under DEE,

Guwahati are admitted facts. The crux of the dispute is

whether the inter-se seniority of the workman was

maintained in the Open Line with effect from the date of

his permanent absorption on 01.04.1988 in the Construction

Organisation as claimed by the Union.

During argument Mrs. M. Borah, Learned Advocate

for the Union submitted that in Railway substantive

appointment is regulated by provisions of Indian Railway

Establishment Code, Volume I, wherein Rule 238 provides

that (a) two or more Railway servant can not be appointed

to the same permanent post at the same time, (b) a Railway

servant can not be appointed substantively to a post on

which another Railway servant holds a lien. Rule 239

defines the word lien “unless in any case it be otherwise

provided in these Rules a Railway servant on substantive

appointment to any permanent post acquires a lien on

that post and ceases to hold any lien provisionally acquired

on any other post. Mrs. Borah, Learned Advocate, also

submitted that the Construction Organisation does not

maintain a cadre of permanent staff of the rank of Khalasi

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5043

and substantive absorption or appointment can not be

given in Open Line as permanent cadre is maintained only

there; and all promotions to substantive grades are in Open

Line. The Rule is that a person may be allowed or taken to

work for the Construction Organisation but his lien would

remain in the Open Line where his substantive

appointment was given. Whenever any junior is promoted

or considered for promotion in the Open Line where his

lien is the senior person, even if he is working in the

Construction irrespective of whether in the Open Line he

was first engaged as Casual Labour, Ad-hoc appointee or

regular appointee would e given the same opportunity for

promotion/consideration for promotion in the Open Line

or in case he continued in the Construction Organisation

he would enjoy all the benefits of promotion there as his

junior might enjoy in the Open Line. As such if the

workman’s seniority is fixed with effect from 01.04.1988 i.e

the date of absorption in regular post on screening, his

seniority will entitle him due benefits of seniority slot in

the Gradation List of Khalashi (P) in Open Line and the

Gradation List of Khalashi (P) marked as Exhibit-6 which

has not been controverted by the Management and the

said Gradation List in Open Line is the supporting

document for deciding the Reference in favour of the

workman. Mrs. Borah added that the Management never

disclosed the seniority of the workman in his substantive

post of Khalashi among these appointed in the grade in

the Open Line before his joining the Open Line on transfer

in the interest of the Management; and that the

Management in clear violation of the rights of the workman

as well as against the principle of natural justice the

workman was transferred to and given a lower seniority

position. Learned Advocate for the Union again submitted

that the Management failed to publish combined seniority

list of the incumbents available in the SDEE, Guwahati

after inclusion of the workman brought on transfer on

administrative reasons from construction to Open Line.

Learned Advocate for the Union in support of her

contention relied upon the decision of the Hon’ble Supreme

Court in Inderpal Yadav and Others etc. –vrs- Union of

India and Others etc. in Writ Petitions No. 147, 320-369,

454, 4335-4434 of 1983.

Mrs. Borah, Learned Advocate for the workman cited

the example of discrimination as well as violation of the

Railway guidelines and the Rules framed from time to time

regarding preparation of seniority list of the Group-D

employee in Open Line. She referred the provisional

seniority list of Khalashi (P) as on 01.04.1998 prepared by

A.P.O, Guwahati vide Exhibit-3 (in four pages) showing

the statement enclosed with the Exhibit-3, wherein one Sri

Gopal Sarkar who was appointed on 18.09.1997 and his

screening i.e absorption in permanent post was on

11.04.1997; was placed at the sl. no. 3 while the workman

Subodh Saha was screened for permanent absorption on

14.12.1984 and his date of joining under Open Line was

22.10.1997 has been shown at sl. no. 32 of the aforesaid

seniority list. Since the seniority of the workman is to be

fixed on lien from the date of his screening and the same

should be maintained on his transfer on administrative

ground from Construction Organisation to Open Line,

the Management after transferring the workman from

construction to Open Line with seniority of the workman

below the incumbents in the grade of Khalashi already in

the seniority unit under Sr. DEE, Guwahati at his place of

posting is without any legal basis and in violation of the

standing Rules. In order to justify the aforesaid argument

Learned Advocate for the Union referred the provisions

of Railway Board’s circular No. E(NG)/II/2012/PO/

GENL/01; dated: 10.05.2002.

Mr. S.N. Chowdhury, Learned Advocate for the

Management vehemently objected to the submission of

the Learned Advocate for the Union and submitted that

the workman was promoted as Lineman-III on Ad-hoc

basis in Construction Organisation and had been

transferred to Electrical Department, Guwahati as Khalashi

helper on 22.10.1987, and his lien was not fixed in Electrical

Department, Guwahati and hence the seniority of the

workman was fixed from the date of joining at Guwahati on

transfer. Mr. Chowdhury also pointed out that a seniority

list was prepared vide letter no. 255/1/Part.III; dated:

12.03.1999, (Exhibit-3) and the staff were requested to

submit representation within thirty days but no

representation was submitted by the worker and hence

the seniority list was finalised; and at this belated stage a

settled issue can not be reopened to review; and as such

the claim of the workman is not legal and genuine one, for

which the workman is not entitled to any relief in this

Reference.

9. From the evidence of both the sides it is found

that the workman was screened for permanent absorption

on 01.04.1988 against sixty percent construction reserved

post under CEE, Construction, Maligaon (vide Exhibit-1).

The M.W.1 Sri Kabi Ram Boro, the Divisional Personnel

Officer, N.F. Railway, Maligaon, categorically mentioned

that the seniority of all the incumbents working in

Construction Organisation under the work charged post

having lien in the Open Line is maintained comprising the

staff of both the Open Line and Construction Organisation;

and that the seniority of the workman was reckoned from

the date of screening and as such, the workman has been

awarded seniority from the date of his screening. He also

admitted that the workman was permanently absorbed

against sixty percent construction reserved permanent

post with effect from 01.04.1988 and that in case of transfer

from on one organization to another on administrative

ground, and the lien once acquired will not be disturbed

or changed as per Rule 311 of Indian Railway Establishment

Manual, Volume-I , 1989 marked as Exhibit B and as such

the workman is entitled to get seniority with effect from

01.04.1988 thus it is found well established that the

5044

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

seniority of the workman is required to be maintained with

effect from the date of his permanent absorption i.e

01.04.1988 against the sixty percent reserved quota in the

Construction Organisation.

Mr. S.N. Choudhury in his argument clearly

mentioned that the seniority list was published vide

management letter no. 255/1/PT.III; dated: 12.03.1999 with

direction to submit objection, if any, within thirty days,

but the workman did not make any representation against

the said seniority list and there is no chance of any remedy

after lapse of stipulated period. The M.W.1 in his cross-

examination categorically mentioned that the workman

was transferred from Construction Organisation and he

was given protection in respect of his lien, but he could

not say if any combined seniority list of the workman was

prepared during the relevant period. The Union also

pleaded that the management although mentioned that

the seniority of the workman has been maintained with

effect from 01.04.1988 which is the date of permanent

absorption but, actually it was not done. The Union also

categorically mentioned that no combined seniority list of

the workers belonging to both the Construction

Organisation and Open Line with effect from the date of

screening was prepared. The Union cited certain instances

of the irregularities done by the management in fixing the

seniority vide the seniority list of Khalashi in the scale of

Rs. 2,550 to 23,200 as on 01.04.1988 issued by the

management on 12.03.1999 proved (vide Exhibit-3, page 4

and 5); and the provisional seniority list of Khalashi helper

in scale of Rupees 2,650 to 4,000 as on 01.04.2000 issued by

the A.P.O, N.F. Railway, Guwahati under Memo No. E/255/

1/Guwahati (P)-1055; dated: 08.08.2000 vide Exhibit-6.

Lien as described in Rule 239 of Indian Railway

Establishment cadre, Volume.I (1985) that unless in any

case it be otherwise provided in these Rules a Railway

servant on substantive appointment to any permanent

post acquires a lien on that post and ceases to hold any

lien provisionally acquired on any other posts. In Indian

Railway Establishment Manual Volume.I (1989) Clause 311

and 312 it has been clearly mentioned that the seniority of

the Railway servant on transfer from one cadre to another

in the interest of administration is regulated by the date of

promotion/date of appointment to the grade as the case

may be; while the seniority of Railway servants on

transferred at their own request from one Railway to

another should be allotted below that of the existing

confirmed, temporary and officiating Railway servants in

the relevant grade in the promotion group in the new

establishment irrespective of the date of confirmation or

length of officiating or temporary service of the transterred

Railway servants. The Railway Board have reviewed the

matter regarding seniority and promotion of the Railway

servant who were permanently absorbed against the

construction reserved quota and circulated by Railways

vide their no. E(NG)-II/2002/P.O/Gnl./1; dated: 10.05.2002

in terms of the instructions contained in Board’s letter no.

E(NG)-III/69/CD/42; dated: 24.12.1973, wherein it was

observed as under:

“The Board have reviewed the matter and come

to the conclusion that with the above developments having

taken place the concept of construction reserve has

already lost its utility and therefore, should no longer be

used for any purpose whatsoever, if any staff happen to

continue in the construction/projects without a position/

lien in the Open Line in the appropriate category, immediate

action should be taken to provide him the same to that

there is no difficulty at the time of his repatriation from the

construction/project when the need arises and he does

not suffer in the matter of seniority and promotion.

In this connection I am inclined to rely upon the

decision of the Hon’ble Supreme Court held in Writ

Petitions no. 147, 322-69, 454, 4335-4434/83 etc. wherein it

was observed as:

“To avoid violation of Art. 14, the scientific and

equitable way if implementing the scheme is for the

Railway administration to prepare, a list of project casual

labour with reference to each division of each railway and

then start absorbing these with the longest service. If in

the process any adjustments are necessary the same must

be done. In giving this direction, we are considerably

influenced by the statutory recognition of a principle well

known in industrial jurisprudence that the men with longest

service shall have priority over these who have joined

later on. In other words, the principle of last come first go

or to revere it first come last go as enunciated in Sec. 25G

of the Industrial Disputes Act, 1947 has been accepted.

We direct accordingly.”

On scrutiny of the document marked as Exhibit-1 it

appears that the workman Subodh Saha on being screened

by the screening committee and approved by competent

authority was absorbed against permanent post of sixty

percent construction reserve with effect from 01.04.1988.

From the list of provisional seniority of Khalashi (P) as on

01.04.1998 issued vide Memo no. 255/J/Pt.III; dated:

12.03.1999 issued by A.P.O, Guwahati (vide page no. 4 and

5 of Exhibit-3), the workman Gopal Sarkar who was

appointed on 11.04.1997/18.09.1997 has been shown sl.

no. 3 while the workman Subodh Saha who was appointed

temporarily on 14.12.1984 and was permanently absorbed

with effect from 01.04.1984 and has been transferred to

Open Line on 22.10.1997 has been shown at sl. no. 32 of

the aforementioned seniority list wherein there appears

discrepancies/anomalies in the seniority list in respect of

date of engagement and absorption against permanent

posts. The provisional seniority list of Khalashi (helper)

as on 01.04.2000 prepared by the A.P.O vide no. E/255/1/

Ghy(P)-1055; dated: 08.08.2000 marked as Exhibit-6 shows

that the workman Sarvanath Deka at sl. no. 32 was

appointed on 23.12.1988 and promoted on 01.03.1993 as

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5045

Khalashi (helper ) and the incumbent against Sl. no. 168

Sri Gopal Sarkar in the said seniority list (Exhibit-6) who

was appointed on 11.04.1997/18.09.1997 was promoted

as Khalashi (helper) on 24.03.2000. Although the

management in their written statement and the evidence

of M.W.1 mentioned that the seniority of the workman

Subodh Saha was maintained with effect from the date of

his permanent absorption i.e. 01.04.1988 they have not

been able to establish their plea as there is nothing on

record to show that the combined seniority list in respect

o the posts of Khalashi was prepared by them. Even the

M.W.1 being the Divisional Personnel Officer, N.F. Railway

could not specifically state if any combined seniority list

of the workman concerned was prepared. In para 12 of

master circular no. E(NG).II/83/CL/SC/9; dated: 07.05.1983

and in para 2511 (a) of IREM it runs as:

“Seniority:

Service prior to absorption in the regular cadre will

not count for seniority, which will be determined on the

basis of regular appointment after due screening/selection

vis-à-vis other regular Railway servants, subject to the

provision that if the seniority of certain individual Railway

servants has already been determined in any other manner

pursuant to judicial decision or otherwise, the same share

not be altered.”

Thus it is crystal clear that the Management have

not been able to shift their burden to prove that

amalgamated list of seniority of the workmen belonging to

the post of Khalashi of both the Construction Organisation

and Open Line was prepared by the management. Under

the above circumstances is can safely be held that the

seniority of the workman Subodh Saha was not maintained

by the Management on his transfer from Construction

Organisation to Open Line as per the guidelines issued by

the Indian Railway from time to time as well as the Railway

establishment manual.

10. In view of my foregoing discussion and the

findings arrived at as above it can safely be opined that

the seniority of the workman Subodh Saha in the cadre of

Open Line Organisation from the date of screening in

Construction Organisation has not been maintained by

the Railway as per the guidelines issue by the Railway

Board from time to time, and the provisions of Railway

Establishment Manual and Indian Railway Establishment

Code as mentioned above. Accordingly it is held that the

demand of the Rail Mazdoor Union for fixation of seniority

of Sri Subodh Saha in the cadre of Open Line Organisation

from the date of his screening (i.e. on 01.04.1988) in

construction organization is legal and justified; and the

workman Subodh Saha is entitled to his seniority in the

Open Line Organisation with effect from 01.04.1988. The

Management of N.F. Railway is to prepare an amalgamated

list of workers in the cadre of Khalashi taking into

consideration the date of screening of the workman Subodh

Saha on 01.04.1988 in Construction Organisation, and also

to provide the consequential benefit/benefits to the

workman.

11. In the result this Reference is decided in

affirmative in favour of the Union.

Given under my hand and seal of this Court on this

29^th day of May, 2014.

Send the Award to Government immediately as per

procedure.

L. C. DEY, Presiding Officer

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New Delhi, the 3rd July, 2014

S.O.

1942.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 05/2010)

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

Guwahati as shown in the Annexure, in the industrial

dispute between the management of N. F. Railway, and

their workmen, received by the Central Government on

27/06/2014.

[No. L-41011/99/2009 - IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, GUWAHATI,

ASSAM

Present :

Sri L. C. Dey, M.A., LL.B., Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

In the matter of an Industrial Dispute between:

The Management of N. F. Railway, Maligaon, Guwahati.

Versus

Their Workman Sri Uttam Bhattacharjee, Rep. by the

General Secretary, Rail Mazdoor Union, Guwahati.

Ref. Case No. 05 of 2010

5046

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

Appearances:

For the Management :

Mr. K. C. Sharma,

Advocate

For the Workman :

Mrs. M. Bora, Advocate

Date of Award : 16.06.2014

AWARD

1. In exercise of powers conferred by Clause (d) of

Sub-Section (1) & (2A) of Section 10 of the Industrial

Dispute Act, 1947 the Ministry of Labour & Employment,

Government of India, has referred this Industrial Dispute

raised by the workman Uttam Bhattacharjee, represented

by the Rail Mazdoor Union against the Management of

N.F.Railway, vide Order No. L-41011/99/2009-IR(B-I);

Dated: 03/05/2010 for adjudication. The Schedule of the

Reference is as follows:

SCHEDULE

“Whether the demand of Rail Mazdoor Union for

fixation of seniority of Shri Uttam Bhattacharjee in

the cadre of Open Line Organization from the date

of his screening in construction organization is legal

and justified? If yes, what relief the workman is

entitled to?"

1. On receipt of the order of Reference this Reference

Case has been registered and notices were served upon

both the parties who appeared and contested the

proceeding by filing their claim statement/written statement

and adducing evidence along with documents.

The fact of the case of the workman Uttam

Bhattacharjee, in nutshell, is that the workman was engaged

by the management of N.F.Railway as Khalasi Helper in

the establishment of Senior Divisional Electrical Engineer,

Guwahati, North East Frontiner Railway ( in short Sr.DEE,

GHY, N.F.Rly) and was posted under Sr. Section Engineer,

Electrical at Pandu Power House of N.F.Railway. The

workman was under administrative control of the Assistant

Divisional Electrical Engineer, Maligaon, ( in short ADEEN,

MLG) of the Electrical Department headed by its Principal

Officer, designated as Chief Electrical Engineer,

N.F.Railway with its Head Quarter at Maligaon. The

Divisional Railway Manager at Lumdirtg Division of

N.F.Railway is the Divisional Head controlling the electrical

Department at Divisional level and the seniority of the

workman is looked after by the Office of the Assistant

Personal Officer, Guwahati, N.F. Railway in the personal

matter. Initially the workman was engaged in railway service

in Construction Wing as a casual labourer on 15.03.85 and

after obtaining the requisite qualification he was given

the temporary status of service in the same construction

wing in 1985; and he was screened for permanent service

on 1.4.88 against the 60% construction reserved post as

per the Rules under Deputy Chief Electrical Engineer

(construction), Maligaon ( in short Dy.C.E, CON, MLG)

vide Office order No. E/227/CON/Elect dated 15.5.96. The

workman was absorbed in Railway service as a regular

employee and posted in the permanent post of Khalasi

Helper on 1.4.1988 and rendered continuous service in the

construction organization and was promoted to the post

of Lineman which was a grade-III post and continued in

that Organisation up to 1997. As per the letter issued by

the Railway Ministry/Railway Board from time to time

regarding staffing in construction organization by creation

of the construction reserved post for posting in

construction wing in Indian Railway as a matter of policy,

and the N.F.Railway vide its letter No. Misc.1378/No.E/1/

19(C) dated 14.7.1988 circulated the Ministry / Board’s

letter to meet the man power requirement in construction

organization in N.F.Railway. The construction reserved

post being the permanent post given to the appointees

including workman, carried the surety of services on

permanent footing but their services in the construction

organization was as per requirement of work available in

the organization in the particular field which is in the case

of the workman is electrical work of Construction

Organisation.

The Union mentioned that in implementing the policy

of shedding extra work force not required in the

Construction Organisation the management sent in lots

workmen occupying the post of construction reserved to

the Open Line Wing of the N.F. Railway under the official

authority. The present workman belong to such a lot was

directed to report to the DEE, GHY of the Open Line Wing

in terms of Dy.CEE./Construction/MLG letter No.E/ 227/

CON/ Elect (Screening) dated 03.10.1997. Accordingly the

workman resumed his work as Khalasi in the scale of

Rs. 2550 to Rs.3200 on 22.10.1997 under DEE/GHY. The

workman having been already appointed in a permanent

post on a lien in substantive capacity in the permanent

cadre of N.F.Railway and on his transfer to Open Line he

was entitled to seniority on the basis of his lien. Further

the workman was absorbed in regular post of Khalasi he

was placed in Group D post of the 60% non-gazetted regular

posts earmarked for Construction Organisation and as the

workman was eligible for lien in a substantive post wherein

his seniority is fixed with reference to the date of his

absorption irrespective of where his services were utilized

in the regular capacity; and as such, on his placement in

the seniority unit under Sr. DEE/GHY/ N. F. Railway his

seniority is to be fixed in terms of the maintenance of his

slot according as the lien he hold in the substantive post

of N.F.Railway and of his relative inter-se seniority. The

occupation of post of Khalasi amongst 60% non-gazetted

regular post earmarked for the Construction Reserved Post

as a whole. But it was not done and the workman was

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5047

placed in the establishment of Sr.DEE/GHY/N.F.Railway

far below the occupants in the posts of Khalasi in the pay

scale of Rs. 2550 to Rs.3200 in the said establishment who

had been his juniors in respect of his date of absorption in

the 60% non-gazetted regular posts earmarked for the

construction reserved post. In the provisional seniority

list of Khalasi published under letter No. E/255/I/Pt.III dated

12.03.1999 by APO/GHY. Wherein the name of the workman

is placed under serial no.30 which was later corrected and

he was placed below Sri Subodh Saha, his fellow appointee

against 60% non-gazetted regular posts earmarked for the

Construction Organisation and hence, the workman was

treated junior to his erstwhile juniors. The workman

represented to the Authorities for correction of his seniority

which yielded no result. Hence the workman being

represented by the Rail Mazdoor Union raised this

Industrial Dispute.

The date of appointment to the substantive post in

permanent cadre is the universal criteria for deciding the

placement of an employee holding a civil post in the

gradation list kept for the category of service he belongs

to. The workman being a senior to the existing staff under

the establishment of DEE/GHY who only by virtue of

different placement of Railway either in the Open Line or

in the Construction Organisation at various times, was

absorbed in the establishment of DEE/GHY by picking up

for absorption against 60% non-gazetted regular post

earmarked for construction organization. As such, the staff

those existing in the establishment of DEE/GHY prior to

22.10.1997 which is the date of reporting of the workman

in the same establishment were treated senior although

the date of appointment i.e. the date of screening of the

workman, to the substantive post in permanent cadre by

way of absorption of the workman in the Construction

Organisation on 1.4.88 was far anterior to the date of

appointment of those seniors. Thus the administration

has mistaken in assigning the seniority of the workman

below the later appointees reckoning his permanent service

in the establishment of DEE/ GHY from the date of his

reporting on 22.10.1997. Further the workman did not leave

the Construction Organisation and joined the Open Line

Organisation of the same zonal Railways at his own but

under official direction. In Rule 312 of Indian Railway

Establishment Manual Volume I of 1989 Edition it is

provided that the seniority of staff transferred at their

own request from one cadre/division to another cadre/

division on the same Railway should be treated below

that of the existing, confirmed, temporary and officiating

railway servants in the relevant grade in the new

establishment irrespective of the date of confirmation or

length of officiating and temporary service of the

transferred railway servants. But the workman never

requested to be sent to the Open Line Organisation from

Construction Organisation nor the Management floated

any option for the same situation as that of the workman

for joining the establishment of DEE/GHY or for that matter

any other Open Line establishment. Due to the aforesaid

Act of the management by confining the prospect of career

advancement and monitory benefits that would have come

to the workman had he been assigned the correct seniority

as to his junior, has infringed upon the workman’s right

guaranteed under Article 14, 16, 21 of the Constitution of

India. The workman suffered irreparable loss for his

stagnation in grade of Khalasi (helper) while his junior are

gaining benefits of higher pay and perks offered through

the 6th Central Pay Commission and he can never overtake

them if he is not given the boost of his correct seniority

over his juniors.

Under the above premises the workman prayed for

passing necessary award granting the workman his lien

and seniority from 1.4.1988 with direction to implement

the award with retrospective effect i.e from the permanent

absorption in the post of Khalashi Helper on 01.04.1988

against 60% non-gazatted regular post of construction

reserve earmarked for the Construction Organisation after

he was released from this post in the Construction

Organisation w.e.f. 03.10.1997 in terms of DCEE, (CON,

Maligaon’s) letter no. E/ 227/CON/Elect (Screening); dated:

03.07.1997 along with consequential benefits of promotion/

financial up-gradation/promotion under policy of cadre

restructuring at par with his juniors, correct all the seniority

list where the workman has been given wrong seniority

position and for maintaining correct seniority list and/ or

pass such or other order or orders deem fit and proper.

4. The Management, on the other hand, alleging

that the reference is not maintainable in law as well as in

fact and is liable to be dismissed, submitted that the post

of Open Line is a Revenue Post, while the posts attached

to Construction Organisation are work charged post, which

is a decided fact in N.F.Railway based on circumstances

of the urgent occasion and need based, though both are

under the same umbrella of Railway Organisation. The

seniority of all the incumbents working in the Construction

Organisation under the work charged based having lien in

the Open Line is maintained comprising both Open Line

and Construction Organisation, and their status in

Construction Organisation while any selection is

processed in Open Line both staff of the Open Line and

Construction Organisations are called for as per seniority.

The management mentioned that no normal selection

procedure is done at Construction Organisation in the

exceptional circumstances which is time based and need

based only; some adhoc promotion are made amongst the

Construction staff itself only and there is no claim of adhoc

promotion of open line staff in construction organization.

However, while regular selection is made in the Open line

staff of construction line are being called as per seniority

and as a matter of right, and the organizational structure

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of work force in N.F. Railway the time under question do

have substantial distinction between open line and the

construction organization staff as far as establishment

procedure is concerned. These two are in certain cases on

establishment matters are not to be treated as on the same

air-tightened line. It is also mentioned that the workman

Sri Uttam Bhattacharjee was transferred to open line

providing certain provisions exclusively admissible to

open line staff only and his seniority got transferred and

subsequently the same is maintained in the open line itself.

The management denying the contents of the

claim statement of the union as mentioned in para 7, 8 and

10 submitted that there are certain laid down principle and

guidelines for dealing with the labour disputes and to

follow by the Government organization like Railway as in

the case; and the guidelines of labour dispute are to be

placed before forum available between Railway

administration and the recognized Union. But in the instant

case the representation is made by the Rail Mazdoor Union

which is not recognized by the Railway Administration

and the workman has never brought his case through the

recognized Union as per the guidelines.

The management challenging the averments of

the Union mentioned para 13, 14, 15 and 16 of their claim

statements, stated inter-alia, that the seniority of the

workman along with similarly situated persons of

Construction Organisation whose lien are maintained. It

is further mentioned that there is no scope for promotion

of the juniors to the workman superseding him at any

point of time and that in this connection A.C.P as admissible

has already been issued vide No. E/GHY/110/MACP/(P-

PNO/MLG); dated: 25.08.2010.

The Union, in order to prove their case,

examined two witnesses namely the General Secretary

of Rail Mazdoor Union, N.F.Railway, Maligaon as

W.W.1 and the workman Sri Uttam Bhattacharjee as

workman witness No.2. While the Management

examined Sri Anil Kumar Sarma, Office

Superintendent, N.F. Railway, Office of the Assistant

Personnel Officer, Guwahati as MW.1. Both the

parties were allowed chances to argue their respective

cases and the union submitted their argument in

writing while the management failed to argue in spite

of getting sufficient opportunity. Let us discuss the

evidence of the witnesses for both the sides.

According to the W.W. 1, Sri Mridul Kr. Das, the

General Secretary, Rail Mazdoor Union, Pandu, Guwahati,

the workman Uttam Bhattacharjee was an employee of the

establishment of Senior Dvisional Electrical Engineer,

Guwahati was appointed as a casual labourer on 15.3.85 in

Construction Organisation of N.F.Railway. The workman

was screened for permanent service on 1.4.88 against 60%

construction reserved post under the Chief Electrical

Engineer, Construction, Maligaon vide Railway Memo

No. 52/96 dated 15.5.96 marked as Exhibit-1 and hence, the

absorption of the workman in permanent post is evident

from the Exhibit-1. Thereafter the workman was promoted

to the grade-III post of Lineman while in the service of the

construction organization. Subsequently as per the need

of the Railway management to shed extra workforce not

required for the work in the construction organization he

has been sent to Open Line and accordingly the workman

was spared from the construction organization on 20.10.97

vide letter No.EL/CON/LMG/ ESTT/ 2 dated 20.10.1997

vide Exhibit-2. Therefore the workman was permanent

Railway employee from the date of his absorption from

60% reserved posts and he had an inherent right to lien in

the Open Line Organisation which is evident from letter

No. Misc. 1378/No.E/ 7/19(C ); dated: 14.07.1988 marked

as exhibit-3. The workman continued his service in the

construction organization. Thereafter the workman was

sent to the establishment of Sr.DEE, Guwahati from

Construction Organisation. Hence his seniority in this

establishment in his Group-D grade would be according

to the lien in the Open Line reckoning from the date of his

appointment i.e. 01.04.1988. But it was not done by the

management. Instead of assigning the workman the correct

seniority in the establishment of Sr.DE, Guwahati in his

Group-D grade of Khalashi and the workman was given a

slot in the gradation list of Khalashi (P) for below the staff

appointed much later than the workman.

The W.W.1 also mentioned that one Sri Gopal Sarkar

who was appointed on 11.04.1997who was given the third

slot in the gradation list (marked as Exhibit-4). The W.W.1

further stated that the seniority of the workman is to be

fixed on lien from the date of his screening and it is to be

maintained on his transfer on administrative ground from

Construction Organisation to the Electrical Establishment

of Sr.DEE, Guwahati in Open Line. In support of his

contention the W.W. 1 referred the provisional seniority

list of Khalashi (P) as on 01.04.1998 vide Exhibit-4. The

W.W. 1 also relied upon the Rule 12 of Railway

Establishment Manual Volume I of 1989 edition. In course

of his cross-examination the W.W.1 stated that the workman

is a member of their union but he did not submit any

document in this regard. He confirmed that the workman

was engaged as casual worker on 15.03.1985 under

construction and in 1988 the workman was screened and

his appointment was made permanent under N.F. Railway

Organisation against 60% of the reserved vacancy under

Construction Organisation. He also added that at the time

of appointment of workman as permanent. Some other

workers who joined prior to and after the joining of Uttam

Bhattacharjee when made permanent. He mentioned that

the Exhibit-1 is a list prepared for the purpose of making

the appointment of the workman permanent, but it is not

the basic seniority list. He again stated that the workman

was taken the Open Line but his seniority was not

maintained in the Open Line at that time. He also said that

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5049

he have not specifically mentioned that which of the

workman superseded Uttam Bhattachatjee. However he

the W.W.1 denied the suggestion that no workman junior

to Uttam Bhattacharjee was superseded for which he could

not mention the name of any workman who superseded

Uttaam Bhattacharjee. He mentioned that he could not

say if the management determined the date of joining on

01.04.1988 same for all the workmen, and if the management

maintained the seniority on the basis of the age senior of

the workman accepting common date of joining in the same

category.

The workman witness No.2 Mr. Uttam Bhattacharjee,

the claimant himself stated that on his request to arrange

for redressal of his grievances regarding fixation of

seniority in the cadre of open line organization from the

date of screening in the construction organization, the

Rail Mazdoor Union, N.F.Railway, Pandu, raised this

dispute. He was an employee of Sr. DEE, Guwahati and he

was screened for permanent service on 1.4.88 against 60%

construction reserved post under Divisional Chief

Electrical Engineer, Construction, Maligaon vide their letter

marked as Exhibit-1. The workman was promoted to Grade-

III post Lineman while his service in construction

organization; and he continued in the construction

organization upto 1997. He also mentioned that had been

sent to Open Line and was spared from construction

organization on 20.10.97 vide Exhibit-2. The workman

claimed that he is a permanent Railway workman from the

date of his absorption against 60% construction reserved

post and hence, he had acquired a right to lien in the open

line organization in suitable unit with effect from the date

of his permanent absorption in the construction

organization. He again stated that the construction

reserved post are permanent reserved post and he took

the support of his contention by dint of the letter marked

as Exhibit-3. He also mentioned that the Railway Boards

letter No.E(NG)II/84/PO/SE/ 30; dated 21.6.88 which

provided as “It is, however reiterated, that Construction

Reserve is to be created only for Posts chargeable to

General Charges; these posts of which one was occupied

by the workman were on General Charge as all permanent

appointments are not work charged as all fortuitous

appointments are”. Hence, the claimant contended that

he is entitled for a lien in the Open Line with effect from

1.4.88 i.e. from his absorption as a regular employee in the

construction organization, and his date of appointment in

the substantive post is permanent cadre which is universal

criteria for deciding his seniority in the gradation list

maintained in the open line for the grade of Khalasi Helper.

The workman was sent to the establishment of Senior

Divisional Electrical Engineer, Guwahati from the

Construction organization in Group-D grade and as such,

his seniority of this establishment would be according to

his lien in the open line reckoning from the date of his

appointment i.e. on 1.4.88. But it was not done by the

management assigning him the correct seniority in the

establishment of SDE, Guwahati in his Group-D grade of

Khalasi he was given a slot in the gradation list of Khalasi

(P) far below the staff appointed much later than him. He

cited an example of Sri Gopal Sarkar who was appointed

on 11.4.1997 was given higher place in the gradation list

whereas the workman absorbed on 1.4.88 was given the

30th position vide the provisional seniority list of

Khalasi(P) grade proved as Exhibit-4. He further contended

that due to wrong assignment of seniority in the

establishment of SDE, Guwahati his juniors reckoning from

the date of his absorption in permanent post who were

appointed in permanent post later than him, placed in the

gradation list above him and they could utilize the

opportunity of their seniority in getting promotion

including the promotion through restructuring of cadre

before the workman. As a result, he had been deprived of

getting promotion and other benefits. The workman in

order to justify his contention cited the provision of Rule

311 and 312 of Railway Establishment Manual, Volume-I,

1989 proved as Exhibit-5. Hence, the workman prayed for

relief for grant of his lien and seniority from 1.4.88.

The W.W.2 categorically mentioned that due to

wrong assignment of his seniority in the establishment of

Senior DE, Guwahati his juniors reckoning from the date

of his absorption in permanent post who were appointed

in the permanent posts later that him were pleased in the

gradation list above the workman and they could utilize

the opportunity of their seniority in getting promotion

etc. The workman in support of his plea relied upon the

statement of provisional seniority list of Khalashi (helper)

as on 01.04.2000 (marked as Exhibit-6). Wherein the name

of the workman has not been included. Thereby the juniors

to the workman have been promoted to the post of Khalashi

Helper in suppression of his dues which has been shown

in the statement. Hence the workman prayed for relief of

grant of lien and seniority w.e.f. 01.04.1984 to the workman

and other consequential benefits.

During his cross-examination the W.W.2, stated that

initially he was not a member of the union and in the year

1999 after discovery of non-inclusion of his name in the

seniority list (Exhibit-6) he became the member of Rail

Mazdoor Union. He also said that he complained before

his office about making Sri Gopal Sarkar senior to him. The

workman added that there are names of some other men

who superseded him appeared in Exhibit-4. He also said

that he has not mentioned in his evidence in a affidavit

specifically which of the workman superseded him.

The Management Witness No. 1 (M.W.1), Sri

Anil Kumar Sarma, Office Superintendent in the Office of

the Assistant Personnel Officer, N.F. Railway, Guwahati

who is acquainted with the facts and circumstances of the

case, stated that the workman Uttam Bhattacharjee was

engaged as casual labourer under Construction

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[PART II—SEC. 3(ii)]

Organisation w.e.f. 15.03.1985 and was screened on

01.04.1988 for appointment against permanent post of 60%

construction reserved vacancy, and that the workman was

spared from Construction Organisation, Lumding on

20.10.1997 for joining in the Open Line. He mentioned the

workman joined in Open Line on 22.10.1997 and as per

Rules and procedure adopted by Railway, after sparing of

a workman from Construction Organisation he loses his

seniority attained in Construction Organisation where the

employees are engaged on time base need, based project

works and on completion of the project subject to

completion of 360 days as he was given temporary status

the staff is released for Open Line on being spared from

construction. He further mentioned that both the

Construction Organisation and Open Line are under

control and supervision of one General Manager each,

and the seniority of the workman is counted from the date

of his joining in the Open Line and not from the date of his

screening in Construction Organisation as such the

workman is not entitled to seniority from the date of his

screening in Construction Organisation. However, he is

entitled to all other incidental financial benefits including

pensionery benefit w.e.f. the date of his screening.

Accordingly the workman was granted one A.C.P on

completion of 12 years from the date of his screening. The

M.W.1 contended that the workman joining in the Open

line do not suffer any financial loss nor he was superseded

by any othr workman who joined in the Open Line after

his joining either directly or from Construction

Organisation. As such the workman is not entitled to the

seniority as prayed for.

During his cross-examination the M.W.1 stated that

in the letter marked as Exhibit-3 it is mentioned that the

increase in the construction reserved posts from 40% to

60% will be applicable only for his staff chargeable to the

general charges and that the workman was not granted

lien from the date of his screening; but he could not say if

the workman was entitled to lien at the relevant time.

However, the M.W.1 admitted that as per Rule 239 of Indian

Railway Establishment Code, Volume I Fifth Edition, 1985

the workman was entitled to lien w.e.f. the date of his

screening in Construction Organisation, but there is

nothing on record to show that the workman was allowed

lien from the date of his screening he also said that as per

Railway Board’s Circular No. E(NG)-II/2002/PO/GENL/1;

dated: 10.05.2002 the workman became entitled to get his

lien in the Construction Organisation w.e.f 01.01.1989 but

the workman was not granted lien. He also said that under

what circumstances the lien was not granted to the

workman he could not say. He again mentioned that the

seniority is counted in Railway from the date of joining

against the permanent post. The M.W.1 also admitted the

fact that the workman Bishu Ranjan Biswas has been

shown senior to the workman Uttam Bhattacharjee in the

statement marked as Exhibit-6 while the workman Uttam

Bhattacharjee joined the Construction Organisation and

screened on 01.04.1988 vide Exhibit-4. He further

mentioned that as Bishu Ranjan Biswas joined in Open

Line earlier to the date of joining of Uttam Bhattacharjee in

Open Line for which Bishu Ranjan Biswas has been shown

senior to Uttam Bhattacharjee. However, the management

M.W.1 denied the suggestion that due to non

implementation of Rule 311 of IREM, Volume I (Exhibit-B-

I) in the case of the workman Uttam Bhattacharjee who

was deprived of getting his seniority from the date of

joining in Open Line for which the workman has been

made junior to others who joined after him.

8. The Union have submitted their written arguments,

while the management in spite of getting sufficient time

and opportunity failed to argue their case.

On perusal of the evidence adduced by both the

sides along with the documents relied upon by them it is

fund that the workman was engaged on 15.03.1985 as

Casual Labourer in Construction Organisation, N.F.

Railway and he was screened on 01.04.1988 for permanent

posts against sixty percent permanent Non-Gazetted

construction reserved posts; and on 20.10.1997 he was

spared from the Construction Organization vide the letter

marked as Exhibit-4; and on 22.10.1997 the workman

resumed his duty in Open Line as Khalashi under DEE,

Guwahati:- are admitted facts. The crux of the dispute is

whether the workman is entitled to inter-se seniority in the

Open Line with effect from the date of his permanent

absorption on 01.04.1988 in the Construction Organisation

as.

During argument Mrs. M. Borah, Learned Advocate

for the Union submitted that the workman Uttam

Bhattacharjee was permanently absorbed against 60%

reserved quota of construction and hence the workman

hold permanent post in Railway w.e.f 01.04.1988 against a

regular post as a substantive appointee, which is well

established in this reference. In Railway substantive

appointment is regulated by provisions of Indian Railway

Establishment Code, Volume I, wherein Rule 238 provides

that (a) two or more Railway servant can not be appointed

to the same permanent post at the same time, (b) a Railway

servant can not be appointed substantively to a post on

which another Railway servant holds a lien. Rule 239

defines the word lien “unless in any case it be otherwise

provided in these Rules a Railway servant on substantive

appointment to any permanent post acquires a lien on

that post and ceases to hold any lien provisionally acquired

on any other post. Mrs. Borah, Learned Advocate, also

submitted that the Construction Organisation does not

maintain a cadre of permanent staff of the rank of Khalasi

and substantive absorption or appointment can not be

given in Open Line as permanent cadre is maintained only

there; and all promotions to substantive grades are in Open

Line. The Rule is that a person may be allowed or taken to

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5051

work for the Construction Organisation but his lien would

remain in the Open Line where his substantive

appointment was given. Whenever any junior is promoted

or considered for promotion in the Open Line where his

lien is, the senior person, even if he is working in the

Construction irrespective of whether in the Open Line he

was first engaged as Casual Labour, Ad-hoc appointee or

regular appointee would be given the same opportunity

for promotion/ consideration for promotion in the Open

Line, or in case he continued in the Construction

Organisation he would enjoy all the benefits of promotion

there as his junior might enjoy in the Open Line. As such

if the workman’s seniority is fixed with effect from

01.04.1988 i.e the date of absorption in regular post on

screening, his seniority will entitle him due benefits of

seniority slot in the Gradation List of Khalashi (P) in Open

Line. Mrs. Bora, Learned Advocate pointed out that the

Gradation List of Khalashi (P) marked as Exhibit-6 which

has not been controverted by the Management and the

said Gradation List in Open Line is the supporting

document for deciding the Reference in favour of the

workman. Mrs. Borah added that the Management never

disclosed the seniority of the workman in his substantive

post of Khalashi among these appointed in the grade in

the Open Line before his joining the Open Line on transfer

in the interest of the Management; and that the

Management in clear violation of the rights of the workman

as well as against the principle of natural justice transferred

workman to Open Line and given a lower seniority position.

Learned Advocate for the Union again submitted that the

Management failed to publish combined seniority list of

the incumbents available in the Sr. DEE, Guwahati after

inclusion of the workman brought on transfer on

administrative reasons from construction to Open Line.

Learned Advocate for the Union in support of her

contention relied upon the decision of the Hon’ble Supreme

Court in Inderpal Yadav and Others etc. -vrs- Union of

India and Others etc. in Writ Petitions No. 147, 320-369,

454, 4335-4434 of 1983.

In order to justify the claim of the workman, Mrs.

Borah, Learned Advocate for the workman cited the

example of discrimination as well as violation of the Railway

guidelines and the Rules framed from time to time regarding

preparation of seniority list of the Group-D employee in

Open Line. She referred the provisional seniority list of

Khalashi (P) as on 01.04.1998 prepared by A.P.O, Guwahati

vide Exhibit-4, wherein one Sri Gopal Sarkar who was

appointed on 18.09.1997 and his screening i.e absorption

in permanent post was on 11.04.1997; was placed at the sl.

no. 3 while the workman Uttam Bhattacharjee was

screened for permanent absorption on 01.04.1988 and his

date of joining under Open Line was 22.10.1997 has been

shown at sl. no.30 of the aforesaid seniority list. Since the

seniority of the workman is to be fixed on lien from the

date of his screening and the same should be maintained

on his transfer on administrative ground from Construction

Organisation to Open Line, the Management after

transferring the workman from construction to Open Line

with seniority of the workman below the incumbents in

the grade of Khalashi already in the seniority list under Sr.

DEE, Guwahati at his place of posting is without any legal

basis and in violation of the Railway Manual, orders of

the Railway Board and the Rules. Learned Advocate for

the Union referred the provisions of Railway Board’s

circular no. E(NG)/II/2002/PO/GENL/01; dated: 10.05.2002.

9. From the evidence of both the sides it is found

that the workman was screened for permanent absorption

on 01.04.1988 against sixty percent construction reserved

post under CEE, Construction, Maligaon (vide Exhibit-1).

According to the M.W.1 Sri Anil Kumar Sarma, Office

Superintendent, Office of the Assistant Personnel Officer

said that the workman was engaged as casual labourer

under Construction Organisation on 15.03.1985 and he

was given temporary status on 10.03.1984. Subsequently

the workman was screened on 01.04.1988 for appointment

against permanent post of 60% construction reserved

vacancy; and that the workman joined the Open Line on

22.10.1997. He also mentioned that the workman was spared

from Construction Organisation, Lumding on 20.10.1997

and as per the Rules and procedure adopted by Railway a

workman after sparing from Construction Organisation he

loses his seniority attained in construction, and there is

no promotion avenue and increment benefit for the

workman in Construction Organisation and the seniority

of the workman is counted from the date of his joining in

the Open Line. While in his cross-examination the M.W.1

narrated a different version that he could not say if the

workman was entitled to lien at the relevant time, while he

admitted that as per Rule 329 of Indian Railway

Establishment Code Volume-I 1985 edition the workman

was entitled to lien w.e.f. the date of his screening in

Construction Organisation but there is nothing on record

to show that the workman was allowed lien from the date

of his screening; and according to Railway Board Circular

No. E(NG)-II/ 2002/P0/ GENL/1; dated: 10.05.2002 the

workman is entitled to get his lien in the construction line

w.e.f. 01.01.1989 but the workman was not granted lien.

The M.W.1 has also admitted the contents of the

documents marked as Exhibit- 1, Exhibit-3, Exhibit-4 and

Exhibit-5 along with the provisions of Rule 311 of Indian

Railway Establishment Manual Volume I, 1989 marked as

Exhibit-B. Thus the evidence of the M.W.1 is found

contradictory rather he admitted the plea of the union that

the workman is entitled to lien in Construction

Organisation from the dae of his screening against 60%

reserved quota. Further the union categorically mentioned

that no combined seniority list of the workers belonging

to both the Construction Organistion and Open Line w.e.f

the date of screening was prepared by the management.

The irregularities done by the management in fixing the

5052

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

seniority vide seniority list of Khalashi in the scale of Rs.

2,650/- to Rs. 4,000/- as on 01.04.2000 marked as Exhibit-6

wherein the name of the workman has not been included.

There is nothing on record to show that the workman was

transferred to Open Line at his instance. Thus it is found

well established that the workman is entitled to get

seniority with effect from 01.04.1988 his seniority was

required to be maintained with effect from the date of his

permanent absorption i.e 01.04.1988 against the sixty

percent reserved quota in the Construction Organisation.

Lien as described in Rule 239 of Indian Railway

Establishment cadre, Volume.I (1985) that unless in any

case it be otherwise provided in these Rules a Railway

servant on substantive appointment to any permanent

post acquires a lien on that post and ceases to hold any

lien provisionally acquired on any other posts. In Indian

Railway Establishment Manual Volume.I (1989) Clause 311

and 312 it has been clearly mentioned that the seniority of

the Railway servant on transfer from one cadre to another

in the interest of administration is regulated by the date of

promotion/ date of appointment to the grade as the case

may be; while the seniority of Railway servants on transfer

at their own request from one Railway to another should

be allotted below that of the existing confirmed, temporary

and officiating Railway servants in the relevant grade in

the promotion group in the new establishment irrespective

of the date of confirmation or length of officiating or

temporary service of the transferred Railway servants. The

Railway Board have reviewed the matter regarding

seniority and promotion of the Railway servant who were

permanently absorbed against the construction reserved

quota and circulated by Railways vide their no. E(NG)- II/

2002/ P.0/ GENL/1; dated: 10.05.2002 in terms of the

instructions contained in Board’s letter no. E(NG)-III/69/

CD/42; dated: 24.12.1973, wherein it was observed as

under:

“The Board have reviewed the matter and come to

the conclusion that with the above developments having

taken place the concept of construction reserve has

already lost its utility and therefore, should no longer be

used for any purpose whatsoever, if any staff happen to

continue in the construction/projects without a position/

lien in the Open Line in the appropriate category, immediate

action should be taken to provide him the same to that

there is no difficulty at the time of his repatriation from the

construction/project when the need arises and he does

not suffer in the matter of seniority and promotion.”

In this connection I am inclined to rely upon the

decision of the Hon’ble Supreme Court held in Writ

Petitions no. 147, 322-69, 454, 4335-4434/83 etc submitted

by the Learned Representative of the union, wherein it

was observed as:

“To avoid violation of Art. 14, the scientific and

equitable way if implementing the scheme is for the

Railway administration to prepare, a list of project casual

labour with reference to each division of each railway and

then start absorbing these with the longest service. If in

the process any adjustments are necessary the same must

be done. In giving this direction, we are considerably

influenced by the statutory recognition of a principle well

known in industrial jurisprudence that the men with longest

service shall have priority over these who have joined

later on. In other words, the principle of last come first go

or to revere it first come last go as enunciated in Sec. 25G

of the Industrial Disputes Act, 1947 has been accepted.

We direct accordingly.”

On scrutiny of the document marked as Exhibit-1 it

appears that the workman Uttam Bhattacharjee on being

screened by the screening committee and approved by

competent authority was absorbed against permanent post

of sixty percent construction reserve with effect from

01.04.1988. From the list of provisional seniority of Khalashi

(P) as on 01.04.1998 issued vide Memo no. 255/J/Pt.III;

dated: 12.03.1999 issued by A.P.0, Guwahati (Exhibit-4),

shows that the workman Gopal Sarkar who was appointed

on 11.04.1997/18.09.1997 has been shown sl. no. 3 while

the workman Uttam Bhattacharjee who was appointed

temporarily on 14.12.1984 and was permanently absorbed

with effect from 01.04.1988 and has been transferred to

Open Line on 22.10.1997, has been shown at sl. no. 30 of

the aforementioned eniority list wherein there appears

discrepancies/anomalies in the seniority list in respect of

date of engagement and absorption against permanent

posts. The provisional seniority list of Khalashi (helper)

as on 01.04.2000 prepared by the A.P.O. vide no. E/255/1/

Ghy(P)-1055; dated: 08.08.2000 marked as Exhibit-6 shows

that the workman Sarvanath Deka at sl. no. 32 was

appointed on 23.12.1988 and promoted on 01.03.1993 as

Khalashi (helper) ) wherein the name of the workman Uttam

Bhattacharjee was not included. Although the management

in their written statement as well as the evidence of M.W.1

mentioned that the seniority of the workman Uttam

Bhattacharjee was maintained with effect from the date of

his permanent absorption i.e 01.04.1988 they have not been

able to establish their plea as there is nothing on record to

show that the combined seniority list in respect of the

posts of Khalashi was prepared by them. Even the M.W.1

being the Office Superintendent, Office of the Assistant

Personnel Officer, N.F. Railway could not specifically state

if any combined seniority list of theworkman concerned

was prepared. In para 12 of master circular no. E(NG),II/83/

CL/SC/9; dated: 07.05.1983 and in para 2511 (a) of IREM it

is stated as:

“Seniority:

Service prior to absorption in the regular cadre will

not count for seniority, which will be determined on the

basis of regular appointment after due screening/selection

vis-a-vis other regular Railway servants, subject to the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5053

provision that if the seniority of certain individual Railway

servants has already been determined in any other manner

pursuant to judicial decision or otherwise, the same shall

not be altered.”

Thus it is crystal clear that the Management have

not been able to shift their burden to prove that the

amalgamated list of seniority of the workmen belonging to

the post of Khalashi of both the Construction Organisation

and Open Line was prepared by the management. Under

the above circumstances it is found well established that

the seniority of the workman Uttam Bhattacharjee was not

maintained by the Management on his transfer from

Construction Organisation to Open Line as per the

guidelines issued by the Indian Railway from time to time

as well as the Railway Establishment Manual as mentioned

above.

10. In view of my foregoing discussion and the

findings arrived at as above it can safely be opined that

the seniority of the workman Uttam Bhattacharjee in the

cadre of Khalashi in the Open Line Organisation from the

date of screening in Construction Organisation has not

been maintained by the Railway as per the guidelines issue

by the Railway Board from time to time, and the provisions

of Railway Establishment Manual and Indian Railway

Establishment Code as mentioned above. Accordingly it

is held that the demand of the Rail Mazdoor Union for

fixation of seniority of the workman Sri Uttam Bhattacharjee

in the cadre of Open Line Organisation from the date of

his screening (i.e on 01.04.1988) in construction

organization is legal and justified; and the workman Uttam

Bhattacharjee a is entitled to his inter-se seniority in the

Open Line Organisation with effect from 01.04.1988. The

Management of N.F. Railway is to prepare an amalgamated

seniority list of workers in the cadre of Khalashi in the

light of the guidelines of Railways Board, Indian Railway

Establishment Manual and the Indian Railway Code for

the Accounts Department taking into consideration the

date of screening of the workman on 01.04.1988 in

Construction Organisation, and also to provide the

consequential benefit/benefits to the workman.

11. In the result this Reference is decided in

affirmative in favour of the Union.

Given under my hand and seal of this Court on this

16th day of June, 2014.

Send the Award to Government immediately as per

procedure.

L. C. DEY, Presiding Officer

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New Delhi, the 3rd July, 2014

S.O.

1943.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 50/2005) of

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

Court, Bangalore 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 11/06/2014.

[No. L-12012/86/2005 - IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIUBNAL-CUM-LABOUR COURT

BANGALORE

Dated : 2^nd June 2014

Present : Shri S N NAVALGUND, Presiding Officer

C R No. 50/2005

I Party

II Party

Shri Kannaiah,

The General Manager (IR),

S/o late Ayya Swamy,

State Bank of India,

No. 1, 1^st Floor,

Local Head Office,

B R Colony, Vidyanagar

St. Marks Road,

Corss, Bettahalasur Post,

Church Street,

BANGALORE.

BANGALORE – 560 001.

Appearances:

I Party

: Shri B D Kuttappa, Advocate

II Party

Shri A G Shivananda, Advocate

AWARD

1. The Central Government vide order No. L-12012/

86/2005-IR(B-I) dated 16.11.2005 in exercise of the power

conferred by clause (d) of sub-section (1) and sub-section

(2A) of Section 10 of the Industrial Disputes Act, 1947 (14

of 1947) made this reference for adjudication with the

following schedule:

SCHEDULE

“Whether the management of State Bank of India is

justified by dismissing Shri Kannaiah, Clerk-cum-

typist from the services of the Bank with effect from

5054

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

2.6.2004? If not, what relief he is entitled to and from

which date?”

2. On receipt of the reference while registering it in

C R 50/2005 when the notices were issued to both the

sides, they entered their appearance through their

respective advocates and claim statement of the I Party

came to be filed on 31.05.2006 and counter statement of

the II party on 18.08.2006.

3. After completion of the pleadings having regard

to certain allegations made in the claim statement which

were denied in the counter statement my learned

predecessor while raising a Preliminary Issue as to

“Whether the Domestic Enquiry held against the I

Party by II Party is Fair and proper”

after receiving the evidence of the Enquiry Officer

and exhibiting charge sheet dated 06.02.2002 issued to the

I Party; proceedings of the enquiry; written brief submitted

by the Presenting Officer; written brief submitted by the

Defence Representative and finding of the Enquiry Officer

as Ex M-1 to Ex M-5 and the evidence of the I Party as

WW 1 and hearing the arguments addressed by the learned

advocates for both sides by order dated 04.11.2011 since

the Preliminary Issue was held in the Negative i.e., the

Domestic Enquiry held against the I Party by the II Party

being not fair and proper an opportunity was given to the

II Party to lead evidence to substantiate the charges

levelled against the I party.

4. The learned advocate appearing for II Party while

examining Sh. H Ranganath, Chief Manager, as MW 1 (M)

got exhibited Photostat copies of loan application

submitted by the I Party to the Sahakarnagar Co-operative

Bank dated 06.11.1999; promissory note executed by the I

party with two witnesses dated 14.11.1999; personal loan

agreement executed by the I party towards Sahakara

Nagara Credit Co-operative Society Limited dated

14.11.1999; undertaking letter given by the I party to the

Bharat Co-operative Bank Limited dated 08.11.1999; letter

of Bharat Co-operative Bank Limited sanctioning of loan

dated 08.11.1999; irrevocable letter given by the I party

dated 14.11.1999; letter alleged to have been issued by the

SBI, ADB Branch, Doddaballapur dated 21.10.2000 which

is said to be forged one; salary slip alleged to have been

issued by the bank dated 24.10.2000 which is also said to

be forged one; SBI cheques bearing no. 422457 and 422458

of Rs. 10,645.00 and Rs. 15,000.00 dated 19.06.2001 and

05.12.2001 respectively issued by the I party; a note given

by Deputy Manager Accounts to Branch manager dated

16.07.2001; letter addressed by the Assistant General

Manager, Zonal Office, Bangalore to the Branch manager

dated 16.07.2001; Two Letters of AGM to the Branch

manager dated 16.08.2001 and 22.11.2001; Two letter of

AGM addressed to I Party dated 21.08.2001 and 10.02.2002

to regularize the account; letter of Bharat Co-operative

Bank to Manager, SBI, Doddaballapur Branch dated

13.06.2001 requesting for recovery of loan instalment; Reply

of Branch Manager, SBI to Bharat Co-operative Bank dated

20.06.2001; four letters correspondence addressed by the

Branch Manager to the AGM with regards to the illegality

committed by the I party dated 20.06.2001, 04.07.2001,

17.07.2001 and 31.12.2001 as Ex M-1 (m) to Ex M-15(m) and

Sh. Lakshman Rao as MW 2 (M) got exhibited Photostat

copies of the sanctioned letter No. PER2445 dated

27.08.1991 conveying the sanction of housing loan by

SBI, Zonal Office, Bangalore to Kolar Branch; copy of

Sale Deed dated 23.12.1987 in respect of site purchased

by I party; Encumbrance Certificate dated 23.12.1987

pertaining to the said site purchased by the I party;

application for Second housing loan dated 05.07.1996 of I

party; letter of I party dated 20.07.1996 seeking release of

Rs. 90,000 from Housing Loan; sanction letter No. PER2946

dated 18.07.1996 conveying the sanction of Rs. 90,000 by

Zonal Office, Bangalore; third additional housing loan

application form of I party dated 03.01.2000; sanction letter

No. PERHR870/6 dated 29.02.2000 conveying of sanction

of additional housing loan of Rs. 1,50,000.00; letter of I

party dated 28.08.1991 requesting for release of Rs.

50,000.00; letter of I party dated 20.07.1996 for release of

Rs. 90,000.00; sanction of additional housing loan of Rs.

90,000 by Zonal Office, Bangalore vide letter PER 2946

dated 18.07.1996; letter of I party dated 30.03.2000 seeking

release of Rs. 1,35,000.00 from the additional loan

sanctioned on which there is noting of Branch Manager

directing to release Rs. 35,000.00 and balance of Rs.

1,00,000.00 after inspection; Draft in favour of I party for

Rs. 35,000.00 dated 30.03.2000; Draft in favour of I party

for Rs. 90,000.00 dated 20.07.1996 by crediting to his

account; Extract of House Tax Assessment made by CMC,

Malur dated 24.06.2002; Agreement of Sale between I party

and Saira Bi entered on 20.03.1996; letter addressed by

MW 2 to AGM, Region-II, Zonal Office, Bangalore bearing

No. AGM2/13/59 dated 27.04.2000; letter addressed by the

Branch Manager, Kolar Branch to AGM2/22 dated

12.04.2000 conveying release of Rs. 35,000.00 to the I Party;

note put up by MW 2 dated 04.04.2000 to the controller/

AGM-2 and the Branch Manager detailing the fact revealed

in the inspection; Inspection Report dated 04.04.2000

conducted by MW 2 ; EC dated 24.06.2002 issued by Sub-

Registrar, Malur; EC dated 18.06.2002 issued by Sub-

Registrar, Malur; certified copy of the sale deed executed

by I Party on 24.05.1997 in favour of Saira Bi; term loan

agreement executed by I party dated 28.08.1991; letter of

authority from I party for deduction of installment from

salary dated 28.08.1991; letter by nominee of the I party to

the Trustees of SBI dated 28.08.1991; confirmation of

equitable mortgage dated 28.11.1991; Memorandum of

Term Loan agreement for housing loan granted to staff

under commercial rate of interest executed by I party on

20.07.1996; Memorandum of Term Loan for additional

housing loan dated 30.03.2000 executed by I party; extract

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5055

of term loan ledger relating to house loan advance to I

Party; extract of additional housing loan account for

Rs. 90,000.00 No. HL3/29; extract of Additional Housing

loan Account No. 01517/012812/00 dated 30.03.2000 as Ex.

M-16(m) to Ex M-39(m). Interalia, the learned advocate

appearing for I party examined him as WW 1 (M). After

close of evidence of both sides when the matter was posted

for arguments the learned advocate appearing for I party

filed his written arguments, whereas, the learned advocate

appearing for the II party addressed his oral arguments.

5. Since the charges levelled against the I Party were

that he while working at Doddaballapur Branch of the II

Party availed at its Kolar Branch a Housing Loan of

Rs. 1,50,000.00 on 28.08.1991 and secured that loan by

depositing the title deeds of site on 18.11.1991 and later

behind the back of the bank entered into an agreement

with Smt. Sabira Bi on 20.03.1996 to sell that mortgage

property and further concealing the same applying for a

second housing loan for construction on the same

property on 20.07.1996 and getting it sanctioned behind

the back of the bank he sold the mortgaged property on

24.05.1997 to Smt. Sabira Bi and again concealing the same

misrepresenting the facts he got sanctioned third loan for

construction of second floor to the tune of Rs. 1,50,000.00

on 30.03.2000 and availed part of it to the tune of

Rs. 35,000.00 and secondly without obtaining

administrative clearance he availed a loan from Bharat Co-

operative Bank Limited, New Town, Yelahanka Branch,

Bangalore by submitting a forged letter dated 31.10.2000

purportedly issued by its Doddaballapur Branch

undertaking to remit Rs. 2,000.00 out of his salary towards

its repayment and also submitted to that bank forged salary

slip dated 24.10.2000 for obtaining that loan and thirdly he

became a defaulter with SBI Card to the extent of Rs.

21408.24 paise as per communication of that bank and

lastly he issued cheques bearing Nos. 422457, 422458 for

Rs. 10,645.00 dated 19.06.2001 and Rs. 15,000.00 dated

05.12.2001 respectively in favour of Saharakarnagar Credit

Co-operative Society Limited, Bangalore towards credit

facilities availed by him without obtaining Administrative

clearance and he had unauthorisedly branded the

Doddaballapur ADB branch Rubber Stamp on those cheque

leaves which were issued infact by Hoskote ADB Branch

and thereby committed major misconduct as per para 521

of Sastry Award read in conjunction with Para 18.28 of

Desai Award and VI Bipartite Agreement and as it is not in

dispute in other words admitted by I Party that being a

native of Malur in Kolar District in the year 1987 he

purchased a site bearing Katha No.3130/32 measuring 30 x

30 ft. copy of sale deed of which is produced at Ex M-17

and while serving at Chennai he applied for housing loan

for construction of house on this site and got sanctioned

loan of Rs. 1,50,000.00 on 27.08.1991 on condition to

execute the equitable mortgage on the site purchased by

him and after sanction of the loan he deposited the Original

Sale Deed of that site along with extract of assessment

house on the ground floor as per the sanctioned plan and

in the year 1996 he applied for additional loan of

Rs. 1,50,000.00 for construction of the first floor and on

that application the bank sanctioned Rs. 90,000.00 and he

constructed the first floor and again in the year 2000 he

applied for further additional loan of Rs. 1,50,000.00 and

the bank sanctioned the same and he got released

Rs. 35,000.00 as well as availing loan with Bharat Co-

operative Bank Limited, New Town Yelahanka Branch,

Bangalore on 08.11.2000. The points that arises for my

consideration are :

Point No. 1 : Whether II Party proves the I Party

who had availed housing loan for construction of house

on the site purchased by him at Malur in Kolar District

bearing No. 3130/32 measuring 40 x 30 ft. by deposit of

title deeds behind the back of the bank he entered into an

agreement to sell the said property in favour of Smt. Sabira

Bi on 20.03.1996 and also sold it in her favour through sale

deed dated 24.05.1997 and thereby committed a major

misconduct?

Point No. 2 : Whether II party proves that I Party

had availed loan from the Bharat Co-operative Bank

Limited, New Town Yelahanka Branch, Bangalore on

08.11.2000 without obtaining administrative clearance

furnishing forged letter to that bank dated 31.10.2000

purportedly issued by its Doddaballapur Branch

undertaking to remit Rs. 2,000.00 out of his salary towards

its repayment and forged salary slip dated 24.10.2000 and

thereby committed a major misconduct?

Point No. 3 : Whether II Party proves I Party having

issued two cheques bearing No. 422457 and 422458 which

were infact issued by Hoskote ADB Branch unauthorisedly

branding them with rubber stamp of Doddaballapur ADB

Branch on 19.06.2001 and 05.12.2001 respectively in favour

of Sahakarnagar Credit Co-operative Society Limited,

Bangalore towards credit facilities availed by him without

obtaining administrative clearance and thereby committed

a major misconduct?

Point No. 4 : Whether II party proves that I Party

having become defaulter with SBI Cards to the extent of

Rs. 21,408.24 paise and thereby committed a major

misconduct?

Point No. 5 : What Order/Award ?

6. Point No. 1 : As already adverted to by me above

there being no dispute the I Party while working at

Doddaballapur Branch of the II Party availed at its Kolar

Branch a housing loan of Rs. 1,50,000.00 on 28.08.1991

5056

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

and secured that loan by depositing the title deed of the

site on 18.11.1991 as well as availing of second housing

loan of Rs. 90,000.00 for construction of the first floor of

the same property on 20.07.1996 and also getting

sanctioned third loan of Rs. 1,50,000.00 on 30.03.2000 and

availing part of it of Rs. 35,000.00 as well as executing sale

deed in favour of Smt. Sabira Bi in the year 1996 the copy

of which is produced at Ex M-36(m) and he has come out

with version in the cross-examination that the title deeds

of which he has mortgaged to secure the loan and the

property that he has sold to Smt. Sabira Bi are two different

sites that he had purchased in C Srinivasa Layout of Malur

now it has to be seen whether those two properties are

different properties as contended by him. It is admitted

by I Party that exhibit Ex M-17(m) is the copy of the sale

deed which was deposited by him by way of deposit of

title deeds and Ex M-36(m) being the copy of the sale deed

executed by him in favour of Smt. Sabira Bi dated

24.05.1997, these two documents throw light as to whether

the property secured by way of depositing title deeds to

secure the housing loan and the property that he sold to

Smt. Sabira Bi are different or one and the same. As per

Ex M-17(m) the copy of the sale deed in favour of the I

party i.e. deposited as title deed with the bank to secure

the housing loan is Municipal Katha No. 3130/32

measuring 40 x 30 East – West, 30 ft. North – south bounded

by East Road, by West Site No. 21, by North Road and, by

South Site No. 33, whereas, as per the description of

property in Ex M-36 (m) sale deed executed by I Party in

favour of Smt. Sabira Bi dated 24.05.1997 it is also Municipal

Katha No. 3130/32, New Katha No. 3194/3000 measuring

40 x 30 East – West, 30 ft. North – south bounded by East

Road, by West Site No. 21 by North Road and, by South

Site No. 33. The only difference of the property description

that we can find from Ex M-17(m) and Ex M-36(m) is that in

the Ex M-17(m) the description of the constructed portion

on the site that appears in Ex M-36 (m) is absent and in

Ex M-36(m) in addition to the Municipal Katha No. 3130/

32 that is appearing in Ex M-17(m) the New Number given

by the Municipality is also described. Therefore, the

version of the I Party that they are two distinct and

different properties is far from truth. If at all the I Party as

he has come out in his cross-examination had purchased

two sites in C Srinivasa Layout both measuring 40 x 30 ft.

bearing No. 3130/32 and 3100/92 he ought to have

produced the copy of the sale deed relating to property

bearing No. 3100/92 and demonstrate that that property

has been sold by him to Smt. Sabira Bi and not site No.

3130/32 that is mortgaged by him to secure the housing

loan availed by him by mortgaging title deed in favour of

the Bank. Therefore, the version of the bank the property

that is mortgaged by way of deposit of title deeds in its

favour to secure the housing loan as well as the property

sold by I Party to Smt. Sabira Bi through Sale Deed dated

24.05.1997 are one and the same and his version that they

are two different properties is far from truth. Therefore,

without any hesitation I have arrived at conclusion of

answering Point No. 1 in the Affirmative.

7. Point No. 2 : As already adverted to by me above

the I party has not disputed and specifically admitted in

his cross-examination that on 08.11.1999 he had taken loan

of Rs. 50,000.00 from Bharat Co-operative Bank, Jayanagar

Branch, Bangalore and that Ex M-4, Ex M-5 and Ex M-6

which are the undertaking letter given by the IP arty to the

Bharat Co-operative Bank Limited dated 08.11.1999, letter

of Bharat Co-operative Bank Limited sanctioning of loan

dated 08.11.1999, irrevocable letter given by the I party

dated 14.11.1999 relating to that loan. Therefore the I party

availing a loan of Rs. 50,000.00 from Bharat Co-operative

Bank, Jayanagar Branch is proved. But the management/

II Party failed to place on record any material that its

employees while availing loan from other financial

institutions has to take administrative clearance from the

management as well as letter given to that bank purportedly

issued by its Doddaballapur Branch undertaking to remit

Rs. 2,000.00 towards its repayment and salary slip dated

24.10.2000 which are at Ex M-7(m) and Ex M-8(m) being

forged except the bald statement in the affidavit of MW 1

(M). Under the circumstances, I arrived at conclusion of

answering this point in the Negative.

8. Point No. 3 : As already adverted to by me above

the I party who has unequivocally admitted having availed

loan of Rs. 50,000.00 from Sahakarnagar Credit Co-operative

Society Limited in the year 1996 while he was working at

Hoskote Branch and had given two cheques one of

Rs. 10,645.00 and another for Rs. 15,000.00 dated 19.06.2001

and 05.12.2001 respectively and they came to be

dishonoured the copies of those two cheques are

produced at Ex M-9(m) series. According to the II Party

those two cheques came to be dishonoured on the

endorsement by the Doddaballapur Branch that those two

cheques were not pertaining to their branch in respect of

which they rely upon the endorsement of the Bank which

is part of Ex M-9 (m) series wherein at Sl. No. 16 there is

writing by hand “Cheque series does not pertain to our

Branch”. Ofcourse on the top of the Cheques below

printed portion State Bank of India separately in Hindi

and English Language there is a Rubber Stamp Affixation

reading as ‘Doddaballapur ADB Code – 5313’ but there is

no indication on these two cheques they being issued by

Hoskote Branch nor any evidence is placed on record the

same being issued by Hoskote Branch and the seal

Doddaballapur ADB Code – 5313 being manipulated by

the I Party. Under these circumstances, I arrive at

conclusion of answering this point in Negative.

9. Point No. 4 : The I Party having emphatically

denied in the year 2000 he taking SBI Credit Card and

drawing Rs. 21,408.00 from the said credit card and failing

to re-credit the same and also expressed his ignorance in

that relation Doddaballapur Branch of the II party having

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5057

received a letter, the heavy burden was on the second

party management to establish this allegation. In this

connection the II Party has produced documents at Ex M-

11 (m) and Ex M-12(m) series which comprises of letter of

the Assistant General Manager to the Chief/Branch

Manager, Doddaballapur to instruct I Party to regularise

his SBI Credit Card account dated 16.08.2001; letter

addressed by the Assistant General Manager to the

Branch Manager, SBI Doddaballapur Branch dated

22.12.2001 to ensure that the employee/I Party regularise

his SBI Credit Card Account; copy of letter purported to

have been addressed to the I Party by Branch Manager

dated 21.08.2001 instructing to regularize his SBI credit

card account; copy of another letter purported to have

been addressed to the I Party by Branch Manager dated

10.12.2001 informing that they are examining the possibility

of recovering the amount from the salary and allowances

payable to him. But there is no evidence placed to satisfy

the court/tribunal that these letters were served on the I

Party or any concrete evidence I Party having taking SBI

Credit Card or having become defaulter from any of the

Branches of SBI which purported to have issued him card.

Under the circumstances, I arrive at conclusion of

answering this point in Negative.

10. Point No. 5 : In view of my finding on Point No.

1, 2, 3 and 4 only charge No. 1 stand proved which is

described as (a) in the charge sheet but Charge No. 2, 3

and 4 which are described as (b), (c) and (d) in the charge

sheet are not proved. Since it is proved the I Party who

was an employee of the II Party availed at its Kolar Branch

a Housing loan of Rs. 1,50,000 on 28.08.1991 and secured

that loan by depositing the title deed of the site purchased

by him bearing Malur Municipal Khata No. 3130/32 on

18.11.1991 and later behind the back of the bank entered

into an agreement with Smt. Sabira Bi on 20.03.1996 to sell

that mortgaged property and further concealing the same

applied for a second housing loan of Rs. 90,000.00 for

construction on the same property on 20.07.1996 and after

executing a sale deed in respect of that property infavour

of Smt. Sabira Bi on 24.05.1997 he got sanctioned third

loan for construction of the second floor to the tune of

Rs. 1,50,000.00 on 30.03.2000 and got released part of it to

the tune Rs. 35,000.00 and thereby cheated the employer/

II Party which amounts to a major misconduct the

punishment of Dismissal from Service imposed by the

Disciplinary Authority cannot be said to be

disproportionate. In the result, I pass the following

ORDER

The reference is rejected holding that the action of

management of State Bank of India is justified in dismissing

Shri Kannaiah, Clerk-cum-typist from the services of the

Bank w.e.f. 02.06.2004 and that he is not entitle for any

relief. However, it is made clear that the II Party bank is

not entitle to recover the money paid to him by way of

Interim Relief by virtue of the Order of this tribunal dated

06.07.2012.

(Typed by U D C to my dictation, corrected and

signed by me on 2^nd June, 2014)

S. N. NAVALGUND, Presiding Officer

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New Delhi, the 3rd July, 2014

S.O.

1944.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 30/2009)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court-2, Delhi

as shown in the Annexure, in the industrial dispute between

the management of State Bank of India, and their workmen,

received by the Central Government on 12/06/2014.

[No. L-12011/28/2008 - IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

KARKARDOOMA, DELHI-110 032

Present:- Shri Harbansh Kumar Saxena

ID No. 30/09

Sh. Darshan Lal Kothari

Versus

State Bank of India

AWARD

The Central Government in the Ministry of Labour

vide notification No L-12011/28/2008-IR (B-I) dated

21.04.2009 referred the following industrial Dispute to this

tribunal for adjudication :-

“Whether the action of the State Bank of India in

disengaging Sri Darshan Lal Kothari from services

w.e.f. 17.06.2006 without any notice and

compensation under section 25 F, 25 G & 25 H of the

ID Act, 1947, is legal and justified? To what relief the

person concerned is entitled?”

5058

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

On 28.04.2009 reference was received in this tribunal.

Which was register as I.D No. 30/09 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 filed claim

statement on 12.05.2009. Wherein he stated as follows:-

That he was employed on 03.01.95 to work in a staff

canteen run by coordination committee work of messenger/

water boy was subsequently taken by management from

workman temporarily.

Workman worked in 1995 for 270 days, in 1996 for

230 days in 2001 for 42 days and in 2002 for 60 days total

work done by workman for 610 days.

Through Bank Branch Raipur Dehradun letter 22/

429 dated 30.07.1997 was sent with reference to letter dated

31.07.1997 by assistant manager State Bank of India

Dehradun in which name of Sh. Darshan Lal Kothari was

recommended as he worked for 563 days.

Name of Sh. Darshan Lal Kothari was sent

mentioning him as temporary employee in letter dated 29/

1/2003 sent by Branch Manager to Assistant General

Manager SBI, Dehradun.

In writ-petition 1242 / (S/S) of 2004 bank admitted

that Sh. Darshan Lal Kothari work as messenger/water

boy .

Sh. Darshan Lal Kothari continuously worked in

Bank and in each year he worked for more than 240 days.

Defendant bank follows service conditions which

are based on Bipartite agreements entered into between

parties.

Bipartite agreements dated 27.10.1988 and 09.01.1991

for regularization of temporary employee are applicable

according to which class C temporary employees. On the

basis of which workman is entitled but higher Bank

authorities paid no attention for regularization of workman.

Workman is entitled for regular appointment. Hence

entitled for pay and allowances.

Bank has regularized Junior employees to workman

which is against Bipartite agreement and scheme as well

as Labour laws.

That workman Sh. Darshan Lal Kothari messenger /

water boy has been terminated on 17.06.2006 without prior

information and notice. Which is improper and illegal and

in violation of provision of Section 25F, G and H of ID Act,

1947.

On the basis of aforesaid contents workman prayed

that workman Sh. Darshan Lal Kothari be reinstated and

regularized on the basis of bipartite agreement and bank

scheme after setting aside termination order dated

17.06.2006 he be paid amount which are payable to

workman of his category alongwith compensation and

expenses of the case.

Against claim statement management filed following

written statement:-

Preliminary Submissions

I. That the present Industrial Dispute is not

maintainable as there is no master and servant

relationship between the parties. At the very outset

it is submitted that Sh. Darshan Lal Kothari was

never appointed in the Bank as per rule. The brief

facts are that Sh. Darshan Lal Kothari was engaged

by the Canteen run by Co-ordination Committee at

the Raipur Branch, Dehradun and had worked on

temporary basis with the said Staff Canteen. The

Staff Canteen are run by local implementation

committees and there was no relationship between

the claimant and the Bank and hence no dispute

under section 2(k) of the Industrial Dispute Act,

1947 could arise for adjudication before this

Hon’ble Tribunal. The claimant had also been

engaged on occasional basis with breaks at the

Raipur Branch, Dehradun as a temporary

messenger during the period 1994 to 1997 on daily

wage basis.

II. That the Bank submits that the claimant has not

made the Staff Canteen as a party to the present

dispute and as such the present reference many

be rejected on the grounds of mis-joinder and non-

joinder of necessary and proper parties.

III. That the present dispute raised by the claimant

has not been properly espoused in terms of the

provisions of the Industrial Disputes Act, 1947. It

is stated that it has not been mentioned as to when

the last meeting of the Union was held and at what

meeting it was decided by the majority of Union

members as to espouse the claimant Sh. Darshan

Lal Kothari.

IV. That it has been held by the Hon’ble Supreme Court

in State Bank of India Vs. State Bank of India

Canteen Employees Union (Bengal Circle) reported

in (2000) 5 SCC 531:

“We , therefore, hold that employees of the canteens

which are run at various branches by the Local

Implementation Committees as per the welfare

scheme framed by SBI would not become employees

of the Bank as the bank is not having any statutory

or contractual obligation of obligation arising under

the award to run such canteens.”

Admittedly claimant in the present case was engaged

“in the staff canteen run by Coordination Committee”. It

is submitted that as a matter of feet neither the Sastry

Award nor the hand book on staff welfare activities provide

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5059

that it would be obligatory on the SBI to provide canteen

facilities to its employees.

V. CASE OF THE CLAIMANT DO NOT FALLS IN

THE PARAMETERS LAID DOWN BY THE SUPREME

COURT:

It is relevant to consider that in the instant case:

(i)

There is no obligation, statutory or otherwise , to

run the canteens by the banks.

(ii)

The Bank is not employing the canteen workers,

(iii)

The Bank is not supervising or controlling the

work or the details regarding the canteen or its

employees engaged by the Staff Committee,

(iv)

The Bank is not taking any disciplinary action or

directing any canteen employee to do a particular

work or for that purpose no scheme is laid down

by the Bank.

(v)

Most important aspect is “the recruitment” by

the Bank is to be made as per the statutory rules

framed by it after giving proper advertisement,

inviting application, clearing written test and/or

interview. As against this, for appointing a canteen

employee there are no rules framed by the Bank.

The claimant was engaged by Staff Committee on

the basis of the requirement of the work. The concept of

regularization therefore cannot be stretched against the

Bank. Employees of Staff Committee are not employees of

the Bank as there is no statutory or contractual obligation

or obligation under Sastry award to run a canteen.

It has been held by the Hon’ble Supreme Court in

State of Karnataka & ors. Vs. KGSD Canteen Employees

Welfare Association & ors. Reported in 2006(1) SCALE

85:

“the state intended to run the canteen departmentally

through a committee, but according to the state, the

committee has a distinct and different existence or different

entity than the Government.

In the present case the Staff Committee/LIC is

separate and distinct from the Bank.

VI. DAILY WAGER NOT ENTITLED TO

REGULARISATION:

Due to exigencies of circumstances and on account

of urgent needs in the branches, the Bank used to take

work from temporary employees, from time to time , as and

when need arose , on daily wage basis.

In Mahendra L.Jain & Ors. Case reported in (2005)

1SCC 639 it has been categorically held:

“The question, therefore, which arises for

consideration is as to whether they could lay a valid

claim for regularization of their services. The answer

thereto must be rendered in negative. Regularization

cannot be claimed as a matter of right…….. All

actions of the state must conform to the

constitutional requirements . A daily-wager in

absence of a statutory provision in this behalf would

not be entitled to regularization.”

It is humbly submitted that the Bank is obliged to

make appointments only in fulfillments of its constitutional

obligation as laid down in Articles 14, 15 and 16 of the

Constitution of India. As per the constitutional scheme ,

all eligible persons similarly situated must be given

opportunity to apply for the receive considerations for

appointments.

VII. That the Bank further submits that there is not

obligation , statutory of otherwise to the run the canteen

by the Bank. The Bank is not employing the Canteen

workers, the bank is neither supervising nor controlling

the work or the details regarding the canteen or its

employees engaged by the staff committee. That the Bank

is not taking any disciplinary action or directing any canteen

employee to do a particular work. The recruitment by the

Bank is to be made as per the statutory rules framed by it

after giving proper advertisement, inviting application,

clearing the written test and/or interview.

That as against this for appointment of a canteen

employee there are no rules framed by the Bank.

VIII. SETTLEMENTS:

The Respondent Bank is a statutory Corporation

incorporated and constituted under the State

Bank of India Act 1955. It carried on interalia the

business of Banking. Due to exigencies of

circumstances and on account of urgent needs

in the branches, the Respondent Bank used to

appoint temporary employees in subordinate

cadre.

The all India State Bank of India Staff Federation

espoused the cause of temporary employees who

have put in less than 240 days of temporary

service in the bank and requested the Bank to

give a chance for absorption and temporary

appointment to such temporary employees.

On 17.11.87 a settlement was arrived at between

the All India SBI Staff Federation and the

Respondent Bank, wherein it was agreed that

those temporary employees who have worked

for less than 240 days would be given a chance

for permanent absorption in the bank in case they

have put in temporary service in bank during the

period 01.07.75 to 31.12.87 . Clause 7 of the said

settlement provided for preparing the panel of

selected candidates of scale wages to be wait

listed in the order of their respective

categorization, (viz, A, B, C) and length of

aggregate temporary service put in the Bank

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THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

during the above referred period and the panels

and the panels shall be valid up to December,

1991. In terms of the settlement, such temporary

employees will be given a chance for being

considered for permanent employment in the

Bank’s service against the vacancies likely to

arise in 1987 to 1991.

On 16.07.88 a second settlement was arrived at,

wherein modifications in the 1^st Settlement were

made thereby, qualifying service in cl. 7 was

extended upto 31.07.87 and the period in cl. 1 was

modified as 1992 instead of 1991.

On 27.10.88, a third settlement was arrived at

between the All India SBI Staff Federation the

respondent bank, wherein, a chance for being

considered for permanent appointment to those

of the persons who were engaged at branches/

offices on casual basis against leave/casual

vacancies of messengers, cash collies, water boys

and sweepers etc. were to be considered for

permanent appointment against the vacancies

likely to rise from 1988 to 1992.

That on 9.01.91 a 4^th settlement was arrived at

whereby validity of panels extended upto 1994.

It was further agreed that validity of panel of

temporary employees shall lapse on 31.12.94. The

settlement further stipulated that “the remaining

candidates will have to claim whatsoever for being

considered for permanent appointment in the

Bank.”

In the year 1995, A strike notice was given by All

India Staff Federation over a charter of demands

raising inter-alia the issue of “Non-

implementation of bipartite settlements in respect

of absorption of temporary employees.” That on

9.06.95, minutes of conciliation proceedings were

recorded before the Regional Labour

Commissioner, Hyderabad wherein it was

mutually agreed that actual number of vacancies

as on 31.12.94 should be identified and that for

filing up such vacancies the panels should be

kept alive upto 31st March, 1997.

In terms of the aforesaid Conciliation

proceedings, a 5^th Settlement was arrived at on

30.07.96 between the All India SBI Staff Federation

and the respondent bank incorporating the terms

and conditions agreed to between the parties

before the RLC , Hyderabad. It was further agreed

that the modalities for filing up of vacancies would

be decided on circle to circle basis depending

upon the local requirement, in consultation with

the Federations affiliate by Circle Management.

Before expiry of the panel as on 31.03.97 the

respondent Bank filled up all the vacancies

identified upto 31.12.94 in terms of the Settlement

dated 30.07.96. Thereafter the panel had lapsed.

Copies of the Settlements are annexed hereto

and marked as Annexure R-I (colly).

10.

It is humbly submitted that the settlements were

effected to balance the expectation of temporary

employees to be absorbed in permanent service

as against he constitutional rights of all eligible

persons, to be considered for employment every

time vacancy arises. Thus, the rights of the existing

temporary employees were crystallized in the

settlements – there is no question therefore of

any legitimate expectation or estoppel for neither

of these can be superior to or improve upon

contractual rights specially those arising out of

an industrial settlement.

11.

That the temporary employees who were not

appointed pursuant to the aforesaid settlements,

filed number of writ petitions challenging the

lapsing of the said settlements in the High Court

of Judicature Andhra Pradesh at Hyderabad and

in the High Court of Orissa at Cuttack.

By its order dated 5.5.98, the Hon’ble Division

Bench of the A.P.High Court dismissed the said

wri petitions by holding inter-alia as under:

“…we hold that writ is not maintainable and

respondents /petitioners have to seek relief for their

grievances in the appropriate forum under the

provisions of the ID. Act and not by invoking the

writ jurisdiction under Article 226 of the Constitution

of India.”

The aforesaid judgment of the A.P. High Court

was challenged in the Hon’ble Supreme Court

being SLP (c ) No. 11886-888/98 . By its order

dated 10.08.98 the Hon’ble Supreme Court was

pleased to dismiss the said SLP thereby

confirming the aforesaid judgment of the A.P. High

Court.

By its judgment dated 15.05.98, the Orissa High

Court was pleased to dismiss similar writ petitions

filed by temporary employees by holding.

“Irresistible conclusion, therefore is that after

31.03.97 the panel ceased to be operative…. there is

no dispute about correctness of the minutes

recorded. The decision was taken administratively

and on the basis of the settlement arrived at. The

currency of the arrangement made on the basis of

the impugned decisions/settlements has come to an

end on 31.03.97.”

Being aggrieved by the aforesaid judgment of

the Orissa High Court the temporary employees

filed SLP (C) No. 9429/99 before the Hon’ble

Supreme Court. By its order, the Hon’ble Supreme

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5061

Court was pleased to dismiss the said SLP thereby

confirming the order passed by the Orissa High

Court.

That without prejudice to the above the parawise

reply of the claim statement is a under.

1. That the contents of Para-1 of the claim statement

as stated are denied for want of knowledge. It is denied for

want of knowledge whether the Union is registered or

whether the Union has espoused the cause of the claimant.

2. That the contents of Para-2 of the claim statement

in so far as they relate to matter of records are not disputed.

It is a matter of record and has been admitted by the claimant

itself that he was engaged by the SBI Staff Canteen. It is

stated that the Canteens are run by Local Implementation

Committees and are a sort of a welfare measure for the

employees of the bank is not a service condition for the

employees. It is wrong and denied for want of knowledge

as to whether the claimant was engaged w.e.f 03.01.1995.

3. That the contents of Para-3 as stated are wrong

and denied. It is submitted that the recruitment in the

management bank is through the recruitment procedure

and guidelines. The same provides for selection and

interview besides certain minimum qualifications to be

possessed by the person so recruited . It is submitted that

the claimant was never appointed on regular basis with

the management bank. The claimant had worked on

occasional basis with breaks, as and when need arose at

the Raipur Branch as temporary messenger during the

period 1994 to 1997 on daily wage basis, at a mutually

agreed rate.

4. That the contents of Para-4 as stated are wrong

and vehemently denied. It is wrong and dnied that the

claimant has worked for the bank for 610 days alleged. It is

submitted that the claimant was only engaged by the Staff

Committee and was paid for the engagement by such

committee. There exists/existed and no employer-employee

relationship between the parties and hence the present

reference may be rejected as such.

5. That the contents of Para -5 as stated are wrong

and vehemently denied. It is wrong and denied that the

claimant had worked for 418 days with the bank as alleged.

The claimant had worked on occasional basis at the Raipur

Branch during the period 1994 to 1997 as temporary

messenger on daily wage basis.

6. That the contents of Para -6 are wrong and denied.

The letters dated 21.07.1997 and 30.07.1997 as mentioned

in the paragraph will not create any right in favour of the

claimant. It is submitted that the union namely All India

State Bank of India Staff Federation espoused the cause

of the temporary employees who have put in less than 240

days of temporary service in the Bank and requested the

Bank to give a chance for absorption and temporary

appointment to such employees. That on 17.11.1987 as

settlement was arrived at between the All India SBI Staff

Federation and the respondent Bank wherein it was agreed

that those temporary employees who have worked for less

than 240 days would be given a chance for permanent

absorption in the bank in case they have put in temporary

service in the Bank during the period 01.07.1975 to

31.12.1987 . Clause 7 of the said settlement provided for

preparing the panel of selected candidates of scale wages

to be wait listed in the order of their respective categorization

and length of aggregate temporary service put in the Bank

during the above referred period and the panels shall be

valid up to December, 1991. In terms of the settlements ,

such temporary employees will be given a chance for being

considered for permanent employment in the Bank’s service

against the vacancies likely to arise in 1987 to 1991 . That

on 16.07.1988 a second settlement was arrived at wherein

medications in the 1^st settlement were made thereby,

qualification service in clause 7 was extended upto

31.07.1988 instead of 31.12.1987 and the period in clause I

was modified as 1992 instead of 1991. That on 27.10.1988 a

third settlement was arrived at between the All India SBI

Staff Federation and respondent Bank, Wherein a chance

for being considered for permanent appointment to those

of the persons who were engaged at Branches /offices on

casual basis against leave/casual vacancies of

messengers, cash coolies, water boys and sweepers etc.

were to be considered for permanent appointment against

the vacancies likely to arise from 1988 to 1992. That on

09.01.1991 a 4^th settlement was arrived at whereby validity

of panels was extended up to 1994 . It was further agreed

that validity of panel of temporary employees shall lapse

on 31.12.1994. The settlement further stipulated that the

remaining candidates will have no claim whatsoever for

being considered for permanent appointment in the Bank.

That a 5^th Settlement was arrived at on 30.07.96 between

the All India SBI Staff Federation and the respondent bank

incorporating the terms that actual number of vacancies

as on 31.12.94 should be identified and that for filing up

such vacancies the panels should be kept alive up to

31.03.1997. It was further agreed that the modalities for

filing up of vacancies would be decided on circle to circle

basis depending upon the local requirement, in consultant

with the Federations affiliate by Circle Management. That

before the expiry of the panel as on 31.03.1997 the

respondent bank filled up all the vacancies identified upto

31.12.1994 in terms of the settlement dated 30.07.96 .

Thereafter the panel had lapsed.

7. That the contents of para -7 as stated are wrong

and denied. The letter referred to in this paragraph would

not create any right in favour of the claimant. No

appointment could be made dehors the constitutional

rights hence, the claimant could not claim an indefeasible

right to employment.

8. That the contents of Para -8 insofar as they relate

to matter of records are not disputed. It is pointed out that

the Writ-Petition filed before the Hon’ble High Court,

Uttranchal being matter of record is not disputed. The

5062

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

claimant was engaged as a Messenger/Water Boy on

occasional basis with breaks as temporary messenger on

daily wage basis.

9. That the contents of Para-9 as stated are wrong

and denied. It is wrong and denied that the claimant had

worked for 240 days continuously in each calendar year

as alleged.

10. That the contents of Para -10 in so far as they

relate to matter of records. The Bipartite Settlement signed

at the Industry Level being matter of record are not

disputed. The bank had also entered into various

settlements as referred to above with the union. That as

per the said settlement had lapsed in the year 1997.

11. That the contents of Para -11 insofar as they

relate to the provisions of the settlement dated 27.08.1988

and 09.01.1991 being matter of record are not disputed,

however it is pointed out that the claimant is not entitled

to the benefits, however of such settlement in view of the

fact that the panel had elapsed on 31.03.1997. His claim

petition is liable to be rejected.

12. That the contents of Para -13 as stated are wrong

and denied. The averments have been made without any

name/factual basis.

13. That the contents of P-13 as stated are wrong

and denied. It is wrong and denied that the claimant is

entitled to regularization of absorption as prayed for.

14. That the contents of Para-14 as stated are wrong

and denied. It is wrong and denied that the claimant has

worked regularly with the management bank of action of

the management is unjust or amounts to unfair labour

practice.

15. That the contents of para -15 are wrong and

denied. It is wrong and denied that the service of the

claimant was terminated by the Management w.e.f

17.06.2006. It is pointed out that since the claimant was

not a regular employee of the management bank, no

question of termination of service could arise. There has

been no violation of provisions of Industrial Dispute Act,

1947 or Section 25 F, G and H as alleged.

16. That whatsoever has not been specifically

admitted by the opposite party Bank is the preceding paras

in reply of this claim petition be deemed to be not admitted

and denied.

PRAYER

It is, therefore, most respectfully prayed that the

present reference in totality of facts and circumstances of

case as well as on law and facts answered in favour of the

management bank and it be held that the claimant is not

entitled to any relief and claim petition under reply may be

ordered to be rejected with heavy cost.

Against written statement workman on 25.09.2009

filed rejoinder through which he reaffirmed the contents

of the claim statement.

On the basis of aforesaid contents he prayed, he be

reinstated with full back wages.

My Ld. Predecessor proceeded on the basis of

questions of determination mentioned in schedule of

reference. Hence not framed any issues.

On 16.08.2010 workman filed his affidavit in his

evidence in support of his case mentioned in Claim

statement.

His affidavit was tendered on 10.01.2011. He was

cross-examined on same day.

His examination in chief and cross-examination is as

follows:-

I tender in evidence my affidavit by way of

examination in chief. It is signed by me at points A and B.

The same is Ex. WW1/A. It be read as part of my statement

in this case.

XXXX By Sh. Rajat Arora, A/R for the Management.

For the first time I was engaged by the management

bank on 01.01.1995. I was disengaged from service by the

bank on 17.06.2006.

Q. For how many days did you work with the

management bank from 18.06.2005 to 17.06.2006 ?

Ans. I worked only for 60 days during the period.

I am not in possession of any appointment letter

showing my employment with the management bank on

01.01.95. No appointment letter was given to me by the

bank. The bank never advertised for any job for which I

was engaged . I was engaged for doing work in the canteen

but I was actually doing the job like a peon in the bank. It

is wrong to suggest that the chart prepared by me is wrong

and is only self serving and I never worked during the

number of days mentioned in my affidavit in any year. I

am not in possession of any document given to me by the

management bank during my entire engagement which I

claim that I had served the bank. I used to be paid by the

bank through vouchers. Regular employees were paid in

different manner than me. It is wrong to suggest that I was

engaged only on need based and I was paid for during the

days I was engaged by the bank and I have no case now

against the bank.

In support of its case management filed affidavit of

Srikrishan Sharma, Deputy Manager, State Bank of India,

Raipur, Dehradun, Uttranchal, on 25.08.2011 is as follow:-

That the deponent is working as Deputy Manager

with the management bank and as such is well

conversant with facts and circumstances of the

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present case and is hence competent to depose

to this affidavit.

II.

The deponent submits that there exits/exited no

employer-employee relationship between the

claimant Sh. Darshan Lal Kothari and the

answering management. The deponent states

that the claimant was engaged by the Staff

Canteen run by Co-ordination Committee at the

Raipur Branch and had worked on temporary

basis with the said Staff Canteen. The deponent

submits that the staff Canteen are run by local

implementation committees and there was no

relationship between the claimant and the

management. The claimant had also been engaged

on occasional basis with breaks at the Raipur

Branch of the Bank as a temporary messenger

during the period 1994 to 1997 on daily wage

basis.

III.

That the deponent further states that there is no

obligation, statutory or otherwise to the run the

canteens by the Bank. The Bank is not employing

the canteen workers, the bank is neither

supervising nor controlling the work or the details

regarding the Canteen or its employees engaged

by the staff committee. That the Bank is not taking

any disciplinary action or directing any canteen

employee to do a particular work. The recruitment

by the Bank is to be made as per the statutory

rules framed by it after giving proper

advertisement, inviting application, clearing the

written test and /or interview. That as against

this for appointment of a canteen employee there

are no rules framed by the Bank.

IV.

That the deponent states that the Bank is obliged

to make appointments only in fulfillment of its

constitutional obligations as laid down in Articles

14, 15 16 of the Constitution of India. As per the

constitutional scheme, all eligible persons

similarly situated must be given opportunity to

apply for and receive considerations for

appointments.

The deponent states that the Canteens are run

by Local Implementation Committees and are a

sort of a welfare for the employees of the bank.

That providing of Canteen Facilities to the

employees of the bank is not a service condition

for the employees. The claimant had worked on

occasional basis with breaks at the Raipur Branch

of the Bank as a temporary messenger on daily

wage basis.

VI.

The deponent states that the recruitment in the

management bank is through the recruitment

procedure and guidelines. The same provides for

selection and interview besides certain minimum

qualifications to be possessed by the person so

recruited. The claimant was never appointed on

regular basis with the management bank.

VII.

That the deponent states that the claimant was

only engaged by the Staff Canteen Committee

and was paid for the engagement by such

committee. The claimant had worked on

occasional basis at the Raipur Branch during the

period 1994 to 1997 as temporary messenger on

daily wage basis.

VIII.

That the deponent states that the union namely

All India State Bank of India Staff Federation

espoused the cause of the temporary employees

who have put in less than 240 days of temporary

service in the Bank and requested the Bank to

give a chance for absorption and temporary

appointment to such temporary employees. That

on 17.11.1987 a settlement was arrived at between

the All India SBI Staff Federation and the

respondent Bank wherein it was agreed that those

temporary employees who have worked for less

than 240 days would be given a chance for

permanent absorption in the bank in case they

have put in temporary service in the Bank during

the period 01.07.1975 to 31.12.1987. Clause 7 of

the said settlement provided for preparing the

panel of selected candidate of scale wages to be

wait listed in the order of their respective

categorization and length of aggregate temporary

service put in the Bank during the above referred

period and the panels shall be valid up to

December, 1991 . In terms of the settlement , such

temporary employees will be given a chance for

being considered for permanent employment in

the Bank’s service against the vacancies likely

to arise in 1987 to 1991. That on 16.07.1998 a

second settlement was arrived at wherein

modifications in the 1^st settlement were made

thereby, qualifying service in clause 7 was

extended upto 31.07.1988 instead of 31.12.1987

and the period in clause 1 was modified as 1992

instead of 1991. That on 27.10.1988 a third

settlement was arrived at between the All India

SBI Staff Federation and the respondent Bank,

wherein a chance for being considered for

permanent appointment to those of the persons

who were engaged at branches/officer on casual

basis against leave/casual vacancies of

messengers, cash coolies , water boys and

sweepers etc. were to be considered for

permanent appointment against the vacancies

likely to arise from 1988 to 1998 . That on

09.01.1991 a 4^th settlement was arrived at whereby

validity of panels was extended upto 1994. It was

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[PART II—SEC. 3(ii)]

further agreed that validity of panel of temporary

employees shall lapse on 31.12.1994. The

settlement further stipulated that the remaining

candidates will have no claim whatsoever for

being considered for permanent appointment in

the Bank. That a 5^th Settlement was arrived at on

30.07.96 between the All India SBI Staff Federation

and the respondent bank incorporating the terms

that actual number of vacancies as on 31.12.94

should be identified and that for filing up such

vacancies the panels should be kept alive upto

31.03.1997. It was further agreed that the

modalities for filing up of vacancies would be

decided on circle to circle basis depending upon

the local requirement, in consultation with the

Federation affiliate by Circle Management. That

before the expiry of the panel as on 31.03.1997

the respondent bank filled up all the vacancies

identified upto 31.12.1994 in terms of the

settlement dated 30.07.94 in terms of the

settlement dated 30.07.96. Thereafter the panel

had lapsed. The copies of the settlement are

annexed to this affidavit and may be read as part

of this affidavit and be Exhibited as MW 1/1 to

MW 1/5.

IX.

That the deponent states that the claimant had

not worked for 240 days continuously in each

calendar year and thus is not entitled to any relief.

Affidavit tendered on 10.12.12. MW1 Sh. Krishan

Sharma was cross-examined by Ld. A/R for workman.

His examination-in-chief and cross-examination is

as follows:-

I tender in evidence my affidavit which is Ex. MW1/

A. It bears my signatures my point A & B . I also rely on

documents Ex. MW1/1 to MW 1/5.

XXXXX by Sh. Ajay Gupta, A/R for the workman.

It is correct that Sh. Darshan Lal Kothari had worked

during my tenure. It is correct that Ex. MW1/W1 to W4

are the documents of the bank which I admit.

It is correct that claimant Sh. Darshan Lal Kothari

had worked for 270 days in the year 1995 and 230 days in

the year 1996.

It is correct that I have knowledge that the name of

the workman was also recommended for considered of

temporary messenger.

It is incorrect to suggest that the claimant

Sh. Darshan Lal Kothari worked continuously from 3 Jan.,

1995 to 17 June, 2006.

It is correct that no notice or compensation was

paid to the claimant before his disengagement . Since vol.

He was not the employee of the bank.

It is wrong to suggest forcibly giving back break to

the claimant in order to deprive him of his chance to get

regularized.

I was working at the Raipur branch from 30^th June,

2010 to 9^th June 2012.

It is incorrect to suggest I have wrongly mentioned

that the claimant was working as a canteen boy in my

affidavit.

It is incorrect to suggest that my affidavit is incorrect

and false.

Ld. A/R’s for the parties orally argued. Workman

also filed written arguments on 01.10.2013 which is

introduced on record.

Ld. A/R for the workman stressed that workman

worked for about 12 years as messenger/water boy. Thus

workman work more than 240 days but his services were

terminated on 17.06.2006 without prior notice. Hence there

is violation of provision of Section 25 F ID Act, 1947 etc.

Hence he is entitled for reinstatement with full back wages

etc.

While on the otherhand Ld. A/R for the management

replied that workman has not work for 240 day in a year

when his services were terminated on 17.06.2006 . He only

worked for 60 day prior to 17.06.2006 . Hence he is entitled

to no relief.

In the light of contentions and counter contentions

of Ld. A/R’s of parties I perused the pleadings of claim

statement , written statement and rejoinder , written

arguments of workman as well as evidence of the parties,

principle laid down in the cited rulings and settled law of

Hon’ble Supreme Court as well as of Hon’ble High court

of Uttrakhand at Nainital on the point when workman is

required to work for 240 days in a calendar year.

It is relevant to mention here that my Ld. Predecessor

in ID No. 220/1998 Babu Singh V/s ONGC and other passed

award on 09.04.2008. Through which he dismissed the claim

statement and hold that workman is not entitled to any

relief because he has not filed any document to show that

he has worked for 240 days prior to termination of his

services. Workman filed writ petition No. 1878 of 2008

(M/S) in the Hon’ble High Court of Uttrakhand at Nainital

which was allowed on 03.04.2014 by his Lord Ship of

Hon’ble of High Court of Uttrakhand at Nainital and award

passed by my Ld. Predecessor has been quashed. Matter

has been remanded back for decision afresh. Parties were

directed to appear on 26.05.2014 before this Tribunal.

While deciding the aforesaid writ-petition his

lordship held that the settled position of law is that

workman is not required to work for 240 days in each and

every calendar year nor it is required that he should have

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5065

worked for 240 days in a year when his services are

terminated. Rather, settled position of law is that workman

should have work continuously for 240 days in any

calendar year.

It is also relevant to mention here that workman in

the instant case produce all possible evidence to show

that he continuously work for 240 days in a calendar

year,1995. On the basis of which Branch Manager of

concerned branch of SBI wrote letter to higher authorities

for regularization of workman.

In addition to it management has not produce muster

roll etc. to rebut the evidence of the workman that he has

worked 240 days continuously in a calendar year , 1995

etc.

Hence following principle of Hon’ble Supreme Court

laid down in case of H.D Singh V/s RBI (1985) 4 S.C.C. 201

shall be applicable:-

“Employer’s failure to produce the attendance

number of days he had actually worked , will lead to

an inference of the correctness of the workman’s

claim.”

As well as settled law as reaffirmed by his lordship

of Hon’ble High Court of Uttrakhand at Nainital shall apply

in the instant case because there is unrebbuted evidence

of workman.

In addition to it aggrieved party of the instant case

can seek remedy of writ-petition from Hon ‘ble High Court

of Uttrakhand at Nainital. Hence principle laid down are

reaffirmed by Hon’ble High Court of Uttrakhand at Nainital

shall be binding on this tribunal.

On the basis of aforesaid discussion I am of

considered view that reference is liable to be decided in

favour of workman and against management. Which is

accordingly decided.

Workman in instant case rendered service as a casual

worker as Messenger/water boy for more than 240 days to

management. So, he is entitled for reinstatement with

regularization of his services. Management is directed to

reinstate workman Sh. Darshan Lal Kothari and regularized

him as messenger/ water boy after expiry of period of

limitation of available remedy against award but workman

is not entitled for back wages as he has neither pleaded in

his claim statement nor proved that he remained

unemployed since his termination on 17.06.2006 upto the

date of Award. This will meet the ends of justice.

Award is accordingly passed.

Dated:-04.06.2014

HARBANSH KUMAR SAXENA, Presiding Officer

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New Delhi, the 3rd July, 2014

S.O. 1945.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 45/2002) of

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

Bangalore as shown in the Annexure, in the industrial

dispute between the management of Konkan Railway

Corporation Ltd and their workmen, received by the Central

Government on 11/06/2014.

[No. L-41012/85/2002 - IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIUBNAL-CUM-LABOUR COURT,

BANGALORE-560022

Dated : 3^rd June 2014

Present : Shri S. N. NAVALGUND, Presiding Officer

C R No. 45/2002

I Party

II Party

Shri Rama Poojary,

The Regional Railway Manager,

S/o late Sri Marappa

Konkan Railway

Poojary, Kullanja House, Corporation Limited,

Madanthyar Post,

Regional Office,

Belthangady Taluk,

Near Railway Station, Shirwad,

Dakshina Kannada

Karwar – 581 306.

Karnataka.

Appearances:

I Party

Shri N. J. Baliga, Advocate

II Party

Shri P. P. Hegde, Advocate

AWARD

1. The Central Government vide order No. L-41012/

85/2002-IR(B-I) dated 19.08.2002 in exercise of the power

conferred by clause (d) of sub-section (1) and sub-section

(2A) of Section 10 of the Industrial Disputes Act, 1947 (14

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[PART II—SEC. 3(ii)]

of 1947) made this reference for adjudication with the

following schedule:

SCHEDULE

“Whether the action of the management of Konkan

Railway Corporation Ltd., Karwar in awarding major

punishment of dismissal from service to Sri Rama

Poojary, ex-welder for his unauthorised absence from

duty is justified? If not, what relief the said workman

is entitled?”

2. On receipt of the reference while registering it in

C R 45/2002 when the notices were issued to both the

sides, they entered their appearance through their

respective advocates and I Party claim statement came to

be filed on 25.11.2002 and the counter statement of the II

Party on 04.10.2004.

3. After completion of the pleadings my learned

predecessor having regard to the certain allegations made

in the claim statement that the enquiry conducted was an

eye wash without following the procedure while framing a

Preliminary Issue as to

“Whether the Domestic Enquiry held against the I

Party by II Party is Fair and proper?”

receiving the evidence adduced by both the sides

by order dated 31.03.2008 held the Domestic Enquiry was

fair and proper, the learned advocates appearing for both

the sides filed their written arguments on merits.

4. Brief facts leading to the Domestic Enquiry and

the Award may be stated as under :

5. The I Party who was appointed by the II party

organisation on 02.04.1994 which is working on the basis

of concept of build, operate and transfer policy when it

came to its notice, he who had remained unauthorised

absence since May 1997 and inadvertently the salary for

the period from may 1997 to February 1998 was credited to

his SB Account with SBI, Canacona Branch, on 19.03.1998

he was issued with notice to remit the money inadvertently

remitted immediately and to explain as to why Disciplinary

action should not be taken against him within one week

and as it was not responded by him after issuing several

warning letters to the address furnished by him as there

was no response finally issued him notice dated 01.02.2000

calling upon him to report within 10 days from the date of

notice since to that also there was no response he was

issued with charge sheet as under :

“Charge Sheet

The undersigned proposed to hold an Enquiry

against Shri Rama Poojary under Rule 10 of the Konkan

Railway Servants. The substance of the imputations of

misconduct or misbehaviour in respect of which the

Enquiry is proposed to be held is set out in the enclosed

statement of Article of charge Annexure I). A statement of

imputations of misconduct or misbehaviour in support of

each article of charge is enclosed (Annexure – II). A list of

documents by which and a list of witnesses by whom, the

Articles of charge are proposed to be sustained are also

enclosed (Annexure III & IV). Further copies of documents

mentioned in the list of documents as per Annexure III are

enclosed.

Shri Rama Poojary is hereby informed that if he so

desires he can inspect and take extracts from the

documents mentioned in the enclosed list of documents

(Annexure III) at any time during office hours within ten

days of receipt of this Memorandum. For this purpose he

should contact _________ immediately, on receipt of this

Memorandum.

Shri Rama Poojary is further informed that he may if

he so desires take the assistance of a Konkan Railway

Servants an Official of a KRCL Railway Trade Union (Who

satisfies the requirements of the rule 10(6) of the Konkan

Railway servants for inspecting the documents and

assisting him in presenting his case before the Enquiry

Authority in the event of an oral Enquiry being held. For

this purpose he should nominee one or more persons in

order of preference. Before nominating the assisting

Railway Servant or Konkan Railway Trade Union Officials

Shri Rama Poojary should obtain an undertaking from the

nominees that he (they) is (Are) willing to assist him during

the disciplinary proceedings. The undertaking should also

contain the particulars of other case (s) if any, in which the

nominee had already undertaken to assist and the

undertaking should be furnished to the undersigned

alongwith the nomination.

Shri Rama Poojary is hereby directed to submit the

undersigned a written statement of his defence within ten

days of receipt of this Memorandum, if he does not required

to inspect any documents for the preparation of his defence,

and, within ten days after completion of inspection of

documents if he desires to inspect documents and also:

(a)

to state whether he wishes to be heard in

person and

(b)

to furnish the names and addressee of the

witnesses, if any, whom he wishes to call in

support of his defence.

Shri Rama Poojary is informed that an enquiry will

be held only in respect of these articles of charge as are

not admitted. He should therefore, specifically admit or

deny each article of charge.

Shri Rama Poojary is further informed that if he does

not submit his written statement of defence within the

period specified in para 4 or does not appear in person

before the enquiring authority or otherwise fails or refuses

to comply with the provisions of Rule 10 of the KRCL

Servants D & A Rules or the orders/directions issued in

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5067

pursuance of the said Rule, the enquiring authority may

hold the enquiry exparte.

The Attention of Shri Rama Poojary is invited to

Rule 20 of the KRCL Servants (Conduct) Rules, under

which no KRCL servant shall bring or attempt to bring

any political or other influence to bear upon any superior

authority to further his interests in respect of matters

pertaining to his service under the Government. If any

representation is received on his behalf from another

person in respect of any matter dealt within these

proceedings it will be presumed that Shri Rama Poojary is

aware of such a representation and that it has been made

at his instance and action will be taken against him for

violation of Rule 20 of the KRCL Service (Conduct) Rule.

The receipt of this Memorandum may be

acknowledged.

Sd/-

GOPAL RAJU, SEN/G/KRCL/MAO”

6. The I party on receipt of the said charge sheet

gave his reply to the effect that on receipt of a telegram

message and telephone call by his parents on 10.04.1997

he left to his home on the same day and during journey he

had symptoms of illness and by the time he became normal

his father became bed ridden and expired in the month of

January 1998 as he was the only person to look after his

parents he had to observe religious functions and as his

aged mother also fell sick by shock only about four months

back he was able to contact his colleagues and at last

when he contacted corporate office at Mumbai being

informed no steps have been taken so far for his continued

absence, his absence being neither wilful nor deliberate

he be given opportunity to convince the authority

regarding absence and also to conduct enquiry in his

presence permitting him to rejoin the work. On receipt of

this reply the second party initiated the Domestic Enquiry

by appointing Sh. N F Shaikh, Section Engineer (Works),

Karwar as Enquiry Officer. Then the Enquiry Officer

securing the presence of the I Party observing the

formalities of preliminary hearing while recording the

answers of the CSE/I Party since he admitted having

remained absent from 10.04.1997 and he failed to produce

any evidence having applied for leave or taking permission

to proceed to his native place closing the enquiry submitted

his enquiry finding holding the charge as proved. Then

the Disciplinary Authority while forwarding the copy of

the enquiry report to the I Party affording him an

opportunity of hearing imposed the impugned punishment

by order dated 16.04.2001. Then the appeal preferred by

the I party to the Chief Engineer after giving an opportunity

of hearing came to be dismissed by order dated 10.09.2001

the I Party approached the ALC(C), Mangalore through

his representation dated 08.04.2002 and as he submitted

failure report dated 12.06.2002 the government made this

reference for adjudication.

7. The I Party in his claim statement challenges the

finding of the Enquiry Officer stating that he had explained

his absence from 10.04.1997 by producing the Medical

Certificate issued by the Doctor who treated him and that

he had visited his native place on 10.04.1997 informing the

higher officials by submitting the leave letter for grant of

leave for two days on the ground that his father was ill

and as simultaneously he also fell ill and was suffering

from fever from 10.04.1997 he was under treatment for fever

till 03.05.1997 and from 04.05.1997 to 03.05.2000 he was

under treatment for Rabbis Dog bite and same being not

taken into account by the Enquiry Officer his finding is

perverse and consequently the punishment imposed by

the Disciplinary Authority relying on such enquiry finding

is not sustainable.

8. In view of the facts narrated by me above since

the Domestic Enquiry conducted by the II Party against

the I Party is held fair and proper the points that now

arises for my consideration are :

Point No. 1 : Whether finding of the Enquiry Officer

charge being proved is perverse necessitating the

interference of this tribunal?

Point No. 2 : If not, whether the punishment imposed

is disproportionate to the proved misconduct?

Point No. 3 : What Order/Award?

9. On appreciation of the evidence brought on

record by both the sides in the Domestic Enquiry the

pleadings made in this reference with the arguments put

forward by the learned advocates appearing for both sides,

my finding on Point No.1 and 2 are in the Negative and 3 is

as per final order for the following reasons :

REASONS

10.There is no dispute the I Party having remained

absent from duty from 10.04.1997 and inspite of it his salary

being credited to his SB Account till the month of February

1998 and he having not reported there after inspite of issue

of several warnings and ultimately to the charge sheet

issued to him he gave his reply dated 03.05.2000 wherein

he states that in view of telegram message and telephone

call on 10.04.1997 he left to his native place without

whispering that he left applying for two days leave as

alleged in the claim statement which appears to be an

afterthought and not supported by any evidence. In the

Domestic Enquiry the I Party without examining any

witnesses on his behalf just contended by producing two

medical certificates one issued by an LAMS doctor of

Madanthyar village and another issued by Medical officer,

Primary health centre, Punjalkatte dated 03.05.1997 the

death certificate of his father and few receipts regarding

purchase of medicines. When admittedly the I Party

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[PART II—SEC. 3(ii)]

remained absent from 10.04.1997 and failed to produce

any evidence having left to his native place on that day

giving a two days leave letter as alleged in the claim

statement which appears to be an afterthought his

absence from 10.04.1997 till he was issued with charge

sheet dated 12.04.2000 it is nothing but an unauthorised

absence on mere production of medical certificates without

examining the doctors to testify the genuineness of the

certificates it is not possible to accept that he was not in a

position to resume his duties or even to send a leave letter

through post or someone. As per the medical certificate

issued by the Medical officer, Primary Health Centre,

Punjalkatte dated 03.05.1997 it is certified that I Party was

under his treatment for Enteric Fever as out patient from

10.04.1997 to 03.05.1997 and that he was fit to resume his

duties, whereas, according to the certificate issued by Dr.

M C R Sampigethaya, a LAMS doctor of Madanthyar

issued on 03.05.2000 it is certified that I Party had a mad

dog bite on his left leg as such he was under his treatment

from 04.05.1997 to 03.05.2000. The certificate of Dr. M C R

Sampigethaya that I party was under his treatment for dog

bite from 04.05.1997 to 03.05.2000 without producing any

evidence in its support on his bald certificate it is hard to

accept the certificate the I Party was being under his

treatment from 04.05.1997 to 03.05.2000 almost for a period

of three years for a dog bite. Since as already adverted to

by me above the I party without applying for leave remained

absent from 10.04.1997 till 12.04.2000 the date on which he

was issued with a charge sheet almost for a period of 3

years, it may be said that he had practically abandoned

the job . Therefore, I find no reason to term the finding of

the Enquiry Officer as perverse. Accordingly, I arrive at

conclusion of answer this Point in the Negative.

11. Point No. 2 : Since the I Party remained

unauthorised absent from 10.04.1997 and did not care even

to send a leave letter and withdrawn inadvertently credited

salary till February 1998 and inspite of warning letters

issued to him did not respond until he was issued with

charge sheet dated 12.04.2000 for almost a period of three

long years which in my opinion appears to be abandonment

of job, a major misconduct for which the punishment of

dismissal imposed by the Disciplinary Authority affirmed

by the Appellate Authority cannot be termed as

disproportionate. Accordingly, I also arrive at conclusion

the punishment of dismissal imposed by the Disciplinary

Authority is not disproportionate to the proved

misconduct against the I party. Accordingly, this point is

answered in the Negative.

12. Point No. 3 : In view of my finding on Point No.

1 and 2 the action of the management of Konkan Railway

Corporation Limited in awarding major punishment of

dismissal from service has to be held as justified and I

Party is not entitle for any relief. In the result, I pass the

following

ORDER

The reference is rejected holding that the action of

the management of Konkan Railway Corporation Limited

in awarding major punishment of dismissal from service to

Sri Rama Poojary, Ex-welder for his unauthorised absence

from duty is held as justified and I Party is not entitle for

any relief.

(Typed by U D C to my dictation, corrected and

signed by me on 3^rd June, 2014).

S. N. NAVALGUND, Presiding Officer

ubZ fnYyh] 3 tqykbZ 2014

dk-vk- 1946-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

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

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U;k;ky;] y[kuÅ ds iapkV (lanHkZ la[;k 109@2002) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06@06@2014 dks izkIr gqvk Fkk A

[la- ,y&41012@184@2001&vkbZvkj (ch&I)]

lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 3rd July, 2014

S.O.

1946.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 109/2002)

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

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

dispute between the management of Northern Railway, and

their workmen, received by the Central Government on

06/06/2014.

[No. L-41012/184/2001 - IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL –CUM- LABOUR COURT

LUCKNOW

Present :

Dr. MANJU NIGAM, Presiding Officer

I.D. No. 109/2002

Ref. No. L-41012/184/2001-IR(B-I) dated: 30.05.2002

BETWEEN

Shri Ram Babu

S/o Sh. Badri Prasad

650, Kund Patha,

Nandpurva Jhansi (U.P.) – 284 001.

AND

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5069

The Divisional Commercial Manager (Catering)

Central Railway

Jhansi – 284 001.

AWARD

1. By order No. L-41012/184/2001-IR(B-I) dated:

30.05.2002 the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by

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

10 of the Industrial Disputes Act, 1947 (14 of 1947) referred

this industrial dispute between Shri Ram Babu S/o

Sh. Badri Prasad, 650, Kund Pada, Nand Purva, Distt. –

Jhansi (U.P.) and the Divisional Commercial Manager

(Catering), Central Railway, Jhansi for adjudication to this

CGIT-cum-Labour Court, Lucknow.

2. The reference under adjudication is:

“KYA MANDAL VANIJYA PRABANDHAK

(KHAN-PAAN) MADHYA RAILWAY, JHANSI

DWARA KARMKAAR SHRI RAM BABU ATMAJ

SHRI BADRI PRASAD KO DINANK 30.9.1994 SE

SEWA SE NISHKAASIT KARNA NAYAYOCHIT

HAI? YADI NAHI TO SAMBANDHIT KIS

ANUTOSH KA HAQDAAR HAI?”

3. The case of the workman, Ram Babu, in brief, is

that he was engaged as daily rated casual labour w.e.f.

10.08.88 to discharge multi functional duties, including

cooking, packing of food, cleaning of vassals and service

of meals to passengers of trains including Shatabdi

Express. The appointment was regular for performing

regular and perennial work and for made for indefinite

period till the attaining the age of superannuation. The

workman was given Monthly Rated Casual Labour (MRCL)

status after having completed 120 days continuously at

base kitchen w.e.f. 28.12.1992. It is submitted that the

workman continued to work as such for approximately

more than four years when all of sudden his services have

terminated w.e.f. 30.09.1994 after serving a notice under

Section 25 F of the I.D. Act, 1947. The management by the

means of said notice retrenched the services of the

workman after paying compensation of Rs. 6216. It has

been alleged by the workman that while terminating/

retrenching the services of the management of the railway

did not observed rule of last come first go, as there are

several persons who were similarly situated and appointed

with the workman viz. Phool Singh, Jamil Siddiqui, Ambika

Prasad are still working as Khalasi at Jhansi Karkhana. It

has also been alleged that the workman as engaged at

catering unit, Jhansi (Base Kitchen) and the number of

workman of Catering Unit, Jhansi (Base Kitchen) is more

than 100, hence while terminating the services of the

workmen, the condition contemplated under Section 25 N

of the I.D. Act has not been followed. Accordingly, the

workman has prayed that his termination/retrenchment

w.e.f. 30.09.1994 be set aside with consequential benefits,

including full back wages.

4. The management of the central railway has field

its written statement; whereby has admitted the

engagement of the workman as a daily rated casual labour

along with other w.e.f. 10.07.1988 due to exigencies of

service on introduction of ‘Shatabdi Express Train’ for the

purpose of preparing and delivering food article and

providing associated services to the passengers of

Shatabdi Express. It is also admitted that the workman

was given temporary status on 28.12.1992. It is submitted

by the management that the workman was based at Catering

Unit, Jhansi; but he was working exclusively for providing

an associated services to the ‘Shatabdi Express Train’. It

is further submitted that at no point of time the strength of

the catering unit, Jhansi, even after including the catering

staff of ‘Shatabdi Express, never had 100 or more, thus,

the provisions of Section 25 N is not applicable in respect

of the workman concerned. And accordingly, the

termination of the workman under Section 25 F of the I.D.

Act was just and legal. The management has denied this

allegation of the workman that any of the juniors to the

workman have been retained in service; and has submitted

that all the similarly engaged, specifically for Shatabdi

Express train were retrenched simultaneously under

Section 25 F of the Act vide order dated 30.09.1994 after

complying with the necessary formalities as required under

Section 25 F of the Act. Accordingly, the management has

prayed that the claim of the workman be rejected being

devoid of any merit.

5. the workman has filed its rejoined reiterating the

averments already made in the statement of claim.

6. The parties have filed documentary evidence in

support their claim. The workman has examined himself

whereas the management has examined Shri P.K. Pandey,

DCM, Central Railway, Jhansi. The parties availed

opportunity to cross-examining the witnesses of each other

apart from putting oral submissions.

7. I have given my thoughtful consideration to the

rival contentions of the rival parties and perused entire

evidence in light thereof.

8. The authorized representative of the workman has

contended that the action of the management in

terminating the services of the workman under provisions

of Section 25 F of the I.D. Act, 1947 is malicious and

camouflage. He has also contended that the action of the

management amounts to non-compliance of Section 25 N.

The representative of the workman has argued that on

acquiring temporary status, the workman derived status

of temporary servant and was governed by the Railway

Servants (Disciplinary & Appeal) Rules, hence, his

termination without adhering to the said rules and principle

of natural justice is illegal.

5070

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

The workman has filed list of employees at Catering

Unit Jhansi for the year 1994 showing 142 employees at

work in the said year to substantiate that Catering Unit

Jhansi was an ‘Industrial Undertaking’ under Section 25 K

and he was entitled to protection and benefit under section

25 N. A copy of letter dated 28.12.92 is filed to show

temporary status being granted to him and 20 other casual

labours. Temporary status was granted to the workman

w.e.f. 28.12.1992. The above letter dated 28.12.92 further

mentions approval of the Sr. Divisional Commercial

Manager, Jhansi, in granting the temporary status. Copy

of notice under Section 25 F of the Act, terminating his

services is also filed. Medical certificate is also filed to

show his health in full conformity with the requirements

of the services in catering unit. The workman has also

filed a copy of letter of the Chief Catering Inspector dated

12/14.7.94 in respect of proposal discharging of 21 Monthly

Rated Casual Labours including the workman.

9. The management’s authorized representative has

pleaded that Railway Board imposed complete ban on the

engagement of fresh causal labour after the year 1980,

without prior personal approval of the General Manager

of the Zonal Railways. The workman together with others

casual labours were engaged by the competent authority,

without prior personal approval of the General Manager

and so, it is contended that engagements were void-ab-

initio, being against the rule and instructions of the Railway

Board. It is also submitted that on process of streamlining

man power under the Man Power Planning’, the workman

& twenty others were found surplus being in excess of

requirement and so, were retrenched with legal

compensation etc. under the provisions of Section 25 F of

the I.D. Act, 1947.

The management has filed a copy of chart indicating

total strength (designation wise) of the catering unit,

Jhansi including Shatabdi Express, a copy of the FA &

CAO letter dated 2.7.93, a copy of CPO (HQ) letter dated

19.8.93, a copy of letter dated 8.7.94 of Sr. Divisional

Accounts Officer, Central Railway, Jhansi. A copy of official

notice dated 28.9.94 regarding disengagement of the

services of the workman and others, a copy of letter dated

28.09.94 by the DRM regarding his disengagement and of

others.

10. Admittedly, the workman was engaged as daily

rated casual labour w.e.f. 10.07.1988 and was granted

Monthly Rated Casual Labour (MRCL) status after having

completed 120 days continuously at base kitchen w.e.f.

28.12.1992 and his services have been terminated w.e.f.

30.09.1994 after complying with the provisions of Section

25 F of the Industrial Disputes Act, 1947 i.e. payment of

retrenchment compensation of Rs. 6216. Aggrieved from

termination of services the workman preferred an Original

Application before the Central Administrative Tribunal,

which was not entertained for the want of jurisdiction.

Thereafter, the writ petition before Hon’ble High Court,

Allahabd, which directed the workman to raise an industrial

dispute before appropriate Government and consequently

the present industrial dispute was raised.

11. Coming to the submission by the authorized

representative of the workman that the Section 25 F was

applied maliciously and this provision was used as

camouflage. The factum of appointment, acquiring of

temporary status and termination with notice under Section

25 F required to be analyzed. The workman and others

were engaged in Catering Unit of Jhansi to strengthen the

working of the said unit. No separate establishment or

unit was formed to cater requirements of the Shatabdi

Express. The letter of the Chief Catering Inspectors

mentions that newly appointed casual worker/cleaners

were retained in the unit and instead 14 of the senior were

assigned work of Shatabdi Express. This fact remains

uncontroverted. This further corroborate the plea of the

workman that he and others were the employees of the

catering unit Jhansi and not of any separate unit in the

name of Shatabdi Express unit; as pleaded by the

management. In fact, the base kitchen was common. The

workman and others were engaged on selection due to

increased load of work. Their engagement was made by

the competent authority. The management has not

disputed legality of the appointment, grant of temporary

status to them except stating non-obtaining of approval

of the General Manager and justified the retrenchment of

the workman on plea of surplusage of staff.

12. Here it is necessary to refer the few lines of the

notice of retrenchment dated 30.09.94; wherein it is

specifically mentioned as under:

“aapki sewaon ki aavakshyata nahi hone ke karan

aapki sewaon ko etaddwara tatkaal prabhav se

samapt ki jaati hai ………………….”

The natural meaning of the above expression is that

there were surplus staff and the services of the workman

and others were not needed. To substantiate the above

fact, the management has annexed a chart indicating total

strength (designation wise) at Catering Unit, Jhansi

including Shatabdi Express. This chart has been classified

in two parts; first part showing present total strength and

the second part showing total strength at the time of

retrenchment i.e. on 30.09.94. A glance over this chart

indicates present total strength 98, including 44 bearers

and 18 cleaners. On the date of retrenchment i.e. 30.9.94,

the strength at Catering Unit, Jhansi was 63 including 24

bearers and 10 cleaners. This chart falsifies the fact stated

in the notice or retrenchment dated 30.09.94. The strength

since increased by (98-63) = 35 at present. The number of

bearers and cleaners also increased. The shrinkage of

staff on man power planning is obviously an afterthought

and false, particularly, when the present strength increased

by more than 33% i.e. by 35, in comparison to the year of

the retrenchment. Even if the explanation has been given

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5071

as how the workman and other were in excess when the

strength in 1994 was much less than the present strength.

The plea that the workman and other retrenched workmen

were surplus, apparently, is contrary to the facts. The

management’s witness Shri P.K. Pandey admitted staff

strength to be 142 in his cross examination. There is no

material to infer that the workman and other retrenched

workmen were surplus, to warrant action under Section

25 F. The basis of notice under Section 25 F is, thus,

rendered non-est, making the use of this section malicious

exercise of power. This fact is also falsified by the letter of

the Chief Catering Inspector, Central Railway, Jhansi dated

20.07.94, in reference to the letter No. C/192/CL/117 DC

dated 12/14.07.94. This letter very specifically states that

58 posts of MRCL were sanctioned, as against only 42

MRCL were working and there existed shortage of 16

MRCL. This fact has not been controverted in the written

statement or in the oral statement of the Divisional

commercial Manger (C). Thus, it is, fully proved that

dispensation of the services of the workman, on ground

of non availability of work was totally unjustified and

Section 25 F was used as device to get rid of the workman

and others. The management deliberately concealed letter

No. C/192/CL/117 DC dated 12/14.07.94, in reply to which

the Chief Catering Inspector had clarified the position and

required services of the workman and 20 others, whose

retrenchment were under consideration.

13. The management has taken plea that the

engagement of the workman and others was without prior

personal approval of the General Manager and so, the

very appointments were illegal. Any copy of circular

banning the recruitment has not been filed. However,

assuming the ban on fresh engagement after 1980 the

engagements, if not fraudulent may be said irregular and

not illegal. This circular was administrative in nature and

issued as guidelines to rationalize and regulate fresh

engagements. Fresh engagements were not banned but

regulated by a clog of approval of the General Manager.

This condition, in fresh engagement did not render the

appointment of the workman, illegal, against the sanctioned

strength. The so called guidelines permitted engagement

of the casual labour subject to the approval of the General

Manager. This administrative measure was to prevent

abuse of engaging casual labours. This must be borne in

mind that casual engagement connotes engagement

without post. In the present case, the engagements was

against the posts. In any event, at the time of retrenchment,

the status of the workman did not remain casual on

acquiring temporary status as there existed sanctioned

post as stated by the Chief Catering Inspector in his letter.

Such administrative instructions cannot take away legal

status of the workman engaged by the competent

authority. The workman and others were not apprised

that they were being engaged against the instructions of

the Railway Board. They were selected by the competent

authority by adopting the due process. The taking of

approval was the duty of the authorities and not of the

workman. The workman cannot be punished if the

approval was not sought. There is no material to show

that approval was sought and rejected. There is also, no

material that the concerned officers involved in

engagement of the workman and others were penalized by

the Railway Management for having acted against the

instructions of the Railway Board. The fact, is otherwise.

Management’s documents show that FA&CO Office,

Bombay, by letter No. AC/958/E&G/CORES/II dated

02.07.93 questioned engagement of 21 MRCL at Jhansi

catering unit. Para 1 of this letter mentions letter

No. E(NG)II-CL/43 dated 07.06.84 circulated under office

letter No. HPV/22513/R dated 09.08.84, ‘no fresh, shall be

engaged as casual labour, without prior approval of the

General Manager, some guidelines have been issued to all

DRM by your office vide letter quoted above. These

irregular (not illegal) appointments of 21 MRCLs were also

questioned by the Chief Personnel Officer of the Central

Railway by letter dated 19.08.93. Again Sr. DAO JHS vide

letter dated 08.07.94 mentioned about irregular

appointment. In concluding para of this letter ‘discharge

notice’ to such appointees (MRCL) was desired.

Management has filed office note dated 28.09.94. Mr. R.N.

Srivastava, DCM (Catering) Jhansi submitted his note to

ADRM/Sr. DPO/Sr. DCM for dispensing services of 21

MRCL by issuing notice. On this note endorsements of

the above authorities are given. It was decided to

discharge them on the plea of there being no work and

this note was approved. It appears that in view of this

decision on office note, the series of the workman and 20

others were dispensed with taking assistance of Section

25 F though the fact considered were different i.e. irregular

appointment without approval. It has already been

observed that the Chief Catering Inspector justified their

retention on plea of availability of work. The chart of

strength also justify this inference. It appears that the

senior authorities, to save their skin adopted this device

of dispensing services of the workman and 20 others. The

workman and similarly placed were made to pay for sin of

authorities after wasting six years of their prime age. As

observed earlier, the workman had not obtained

engagement by fraud. He was selected and engaged and

further provided temporary status. All employees with

temporary status are governed by the Railway Servants

(Discipline & Appeal) Rules. He was no longer casual

worker but worker with temporary status, to be treated as

temporary Railway Servant. If the Railway treated their

services irregular he should have been given opportunity

to explain his position. The workman was not given any

opportunity to justify his engagement after acquiring

temporary status. This approach was against the rule of

natural justice. Even on assuming his appointment no

regular, his termination should have been preceded by a

show cause notice.

5072

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

14. Now it has to be considered as to whether Section

25 F applied at all in case of the workman? The workman

claims that his retrenchment could be made under Section

25 N of the I.D. Act, 1947. The management in reply has

contended that the management is not an ‘Industrial

Establishment’ within the meaning of 25 L (a)(i) of the I.D.

Act, 1947, as it is not Factory under sub-section (m) of

Section 2 of the Factories Act. Section 2(m) Factories Act,

reads as follow:

(m)

“factory” means any premises including the

precincts thereof

(i)

Whereon then or more workers are working,

or were working on any day of the preceding

twelve months, and in any part of which a

manufacturing process is being carried on with

the aid of power, or is ordinarily so carried on,

(ii)

Whereon twenty or more workers are working

or were working on any day of preceding

twelve months, and in any part of which a

manufacturing process is being carried on

without the aid of power, or is ordinarily so

carried on.

But does not include a mine subject to the operation

of (the Mines Act, 1952 (35 of 1952) or (a mobile unit

belonging to the armed forces of the Union, railway

running shed or hostel, restaurant or eating palace).

(Explanation I – For computing the number of workers

for the purposes of this clause all the workers in (different

groups and relays) in a day shall be taken into account)

(Explanation II – For the purposes of this clause,

the mere than an Electronic Data Processing Unit or a

Computer Unit is installed in any premises or part thereof,

shall not be construed to make it a factory if no

manufacturing process is being carried on n such premises

or part thereof)

15. Taking advantage of the exception clause, it is

submitted by the management that catering unit, in railway

is not an ‘industrial establishment’. The exception clause

mention ‘railway running shed or a hotel, a restaurant or

eating place. The catering department comprising with

several working units in Central Railway is to be taken as

a single establishment, for computing number of employees

to be more than 100. In any event, the workman has filed

list of staff at catering unit Jhansi for the year 1994 which

shows the number of staff being 142. This fact is not

contorverted by evidence. The management witness,

Shri P.K. Pandey who appeared for cross examination,

admitted that number of working staff is 142. This

admission settled the controversy of number game, to

bring the provision of chapter V-B in operation.

16. The factor is as to whether the activities in

catering establishment in Central Railway, particularly, the

working catering unit, Jhansi, may be taken as

‘manufacturing and so may be said a factory under Section

2 (m) of the Factory Act, 1948. The definition of ‘factory’,

reproduced above, excludes railway running shed or a

hotel, a restaurant or eating place. Undeniably, the catering

unit Jhansi is not a running shed or hotel. It is also not a

restaurant in true sense. It prepares meal for the

passengers in train or otherwise and serve in trains,

platform and occasionally, in room marked for at on the

platform. There is a common base kitchen to cater needs

of the passengers, not only of Shatabdi Express but of

other trains also. Evidently, catering unit Jhansi is not

covered by the exclusion clause of ‘factory’ as defined

under Section 2(m) of the Factory Act, 1948.

17. Preparation of food items in base kitchen and

other related activities as packaging supply in train or

platform etc. are run on commercial basis. The character

of such activities in base kitchen is nothing but of

manufacturing. These activities in manufacturing food

etc. in base kitchen are systematic and not casual.

18. Hence, in view of the discussions made

hereinabove, it can be safely said that the provisions of

Section 25 N of the Industrial Disputes Act, 1947 was not

applied since the permission required by clause (b) of

Section 25 N of the Act has not been complied with as the

prior permission of the appropriate Government has not

been taken. There is no document on record to show that

application was moved by the employer, seeking

permission of the appropriate Government; and permission

was granted by the said Government. Thus, the workman

was entitled to be dealt with the provisions under Section

25 N and not under Section 25 F of the Industrial Disputes

Act, 1947. Hence, the retrenchment order under Section

25 F was illegal.

19. Thus, from the facts and circumstances of the

case, I am of considered opinion that the action of the

management of the Divisional Commercial Manager

(Catering), Central Railway, Jhansi in terminating the

services of the workman under Section 25 F of the

Industrial Disputes Act, 1947 was neither legal nor justified;

and accordingly, I come to the conclusion that the workman

is entitled for reinstatement will full back wages and other

consequential benefits, assuming that there existed no

termination at any point of time within six weeks from the

date of publication of this award in the gazette, failing he

shall also be entitled for simple interest @ 6% per annum

on arrears. The reference is answered accordingly.

20. Award as above.

LUCKNOW.

04^th June, 2014.

Dr. MANJU NIGAM, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

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5073

ubZ fnYyh] 4 tqykbZ] 2014

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

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

egkjk"Vª ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

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vf/dj.k@Je U;k;ky; eqacbZ ds iapkV (lanHkZ la[;k 92@2005)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 04@07@2014 dks izkIr

gqvk Fkk A

[la- ,y&12012@42@2005&vkbZvkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 4th July, 2014

S.O.

1947.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 92/2005)

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

Court, Mumbai 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

04/07/2014.

[No. L-12012/42/2005 - 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-2/92 of 2005

EMPLOYERS IN RELATION TO THE

MANAGEMENT OF BANK OF MAHARASHTRA

The Dy. General Manager

Bank of Maharashtra

Regional Office

Mahabank Bhavan

B-37, Wagle Industrial Estate

Thane-400 604.

AND

THEIR WORKMEN.

Shri S.J. Kamdi

C/o. Sukarya Jaru Kamdi

At Gothengnar

Taluka Shahpur

P.O. Khutghar

Distt. Thane.

APPEARANCES:

FOR THE EMPLOYER

Mr. M.B. Anchan, Advocate.

FOR THE WORKMAN

Mr. V. J. Amberkar, Advocate.

Mumbai, dated the 26^th May, 2014.

AWARD PART-II

The Government of India, Ministry of Labour &

Employment by its Order No.L-12012/42/2005-IR (B-II),

dated 18.07.2005 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 action of the management of Bank of

Maharashtra, Thane Region in discharging the services

of Shri S.J. Kamdi, Ex-Sub-Staff, Shahapur Branch, Bank

of Maharashtra vide order dated 16/11/1995 is just, proper

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

entitled to?”

2. The services of the workman herein were

terminated by the management as he was found guilty for

fraudulently withdrawing amount from the Account of a

customer of the Bank from time to time. He had withdrawn

total amount of Rs.13,700/- on seven occasions from

29/07/1991 to 03/11/1992. It is alleged that the account

holder Shri B.N. Jogale made an oral complaint to the

Branch Manager. On his complaint the management

initiated inquiry against the workman. The workman in

four instalments deposited Rs.15,055/- from 05/07/1993 to

16/08/1993 in the account of Shri Jogale. The charge-sheet

was served on the workman. He submitted his reply

thereto. The management examined their witnesses before

the Inquiry Officer and in presence of the workman. The

workman had appointed defence representative of his

choice. He cross examined all the management witnesses.

The workman also examined himself on oath. He also

examined the account holder Mr. Jogale who deposed in

his favour and contended that he is neighbour of the

workman and whenever he was in need of money, he used

to give withdrawal slip to the workman and workman used

to withdraw the amount at his instance. He also stated

that he handed over amount to the workman to deposit

the same in his account.

3. In this respect while passing Part-I award, my Ld.

Predecessor has observed that there is no written

complaint of the affected account holder. There was also

no police complaint filed against the workman. Furthermore

my Ld. Predecessor was also influenced that the account

holder has supported the defence of the workman that

workman had withdrawn and deposited the amount at his

instance. My Ld. Predecessor has arrived at the conclusion

that there is no evidence on record to show that the

workman is guilty of the alleged misconduct of fraudulently

withdrawing the amount from the account of Shri B.N.

Jogale by forging his signature. Therefore my Ld.

Predecessor held that, though the inquiry was fair and

proper, however the findings of the Inquiry Officer are

5074

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

perverse and in the final order he has directed the first

party to justify the punishment of termination.

4. In this respect I would like to point out that when

findings of the I.O. were found perverse, that means the

charges levelled against the workman were not proved. In

this backdrop question of justifying the punishment of

termination does not arise. After the said order the first

party has examined a witness Mr. D.V. Sonje at Ex-34. The

first party has tried to prove the letter of the workman dt.

08/06/1993 in which he has confessed to have withdrawn

the amount from the account of Mr. B.N.Jogale.

5. In this respect I would like to point out that once

issue is decided by my Ld. Predecessor and he declared

that findings are perverse, this Tribunal cannot change

the said verdict after adducing additional evidence as this

Tribunal is not examining part-I award and findings therein

which is the power of higher or Appellate Court. In the

circumstances the argument advanced on behalf of the

management is devoid of merit that there was confession

of the workman. It was also submitted that the handwriting

expert has proved that the signatures of the account holder

Mr. Jogale were forged. The Ld. adv. for the first party

submitted the fact is not disputed that these withdrawal

slips were presented by the workman and amount was

withdrawn by him. According to the ld. adv. for the first

party all these circumstances suffice the purpose to hold

the workman guilty for the misconduct as such evidence

is sufficient in departmental inquiry.

6. The ld. adv. for the first party submitted that the

standard of proof in departmental inquiry is not as high as

in criminal cases wherein the guilt has to be proved beyond

reasonable doubts. In departmental inquiry preponderance

of probability suffices the purpose. All these arguments

though is quite convincing, I am not sitting as an Appellate

Court to change the findings in part-I award recorded by

my Ld. Predecessor. Therefore the findings recorded by

my Ld. Predecessor that the findings of the IO are perverse

need no interference. In the circumstances as findings by

which workman was held guilty for misconduct are held

perverse, there is no alternative but to set aside the

punishment of termination of services of the workman.

The arguments advanced on behalf of the first party and

the evidence led by them at the most can be used for the

purpose of considering the point of back-wages.

7. In the light of the facts and circumstances

discussed herein above, I am of the opinion that though

the workman can be reinstated in service he is not entitled

to any back-wages. Thus I proceed to pass the following

order:

ORDER

(i)

The punishment of discharge from the

services awarded by the management is

hereby set aside.

(ii)

The management is directed to reinstate the

workman without back-wages with continuity

of service.

Date: 26.05.2014

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 4 tqykbZ] 2014

dk-vk- 1948-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eqacbZ iksVZ VªLV

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

vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky;] eqacbZ ds iapkV (lanHkZ la[;k 29@2005)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 04@07@2014 izkIr

gqvk Fkk 1

[la- ,y&31011@15@2008&vkbZvkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 4th July, 2014

S.O.

1948.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 29/2005) of

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

Mumbai as shown in the Annexure, in the industrial dispute

between the management of Mumbai Port Trust, and their

workmen, received by the Central Government on

04/07/2014.

[No. L-31011/15/2008 - 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-2/29 of 2009

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF MUMBAI PORT TRUST

The Chairman

Mumbai Port Trust

Port Bhavan, S.V. Marg

Ballard Estate

Mumbai-400 001.

AND

THEIR WORKMEN.

The General Secretary

Mb.P.T. Dock & General Employees Union

Port Trust Kamgar Sadan

Nawab Tank Road

Mazgaon Mumbai-400 010.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5075

APPEARANCES:

FOR THE EMPLOYER :

Mr. M.B. Anchan, Advocate

FOR THE WORKMAN :

Mr. J.H. Sawant, Advocate

Mumbai, dated the 5^th May, 2014.

AWARD PART-I

The Government of India, Ministry of Labour &

Employment by its Order No.L-31011/15/2008-IR (B-II),

dated 11.02.2009 in exercise of the powers conferred by

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

Section 10 of the Industrial Disputes Act, 1947 have referred

the following industrial dispute to this Tribunal for

adjudication:

“Whether the action of the management of Mumbai

Port Trust by imposing the punishment of

compulsory retirement of Shri Abdul R. Shaikh is

justified? What relief the concerned workman is

entitled to?”

2. 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-6.

According to him he was working with the first party

since 1982 as Mazdoor and he is permanent workman. He

was in need of money for some domestic work. Therefore

one Shri Vilas Pawar posing himself as an agent of the

Bank promised the second party that second party would

be granted loan from Dena Bank. The second party relied

upon him and signed the papers given by Shri Vilas Pawar.

Subsequently it was revealed that Shri Vilas Pawar

fabricated the documents and had taken disadvantage of

ignorance and need of money of the second party. Because

of fraudulent act of Shri Vilas Pawar, second party did not

get any loan from the Bank. Instead of that the first party

initiated disciplinary action against the second party on

the basis of charge sheet dt. 03/01/2003 for the alleged

violation of Regulation 1976. The second party denied

the charges. The first party initiated inquiry against the

workman in violation of Principles of Natural Justice. The

inquiry Officer did not consider the evidence of the second

party and the material placed on record. The findings of

the IO are perverse. The IO was bias. They ignored to

consider the fact that some other workmen were also

deceived by such agents and they are retained in the

service. No loss has been caused to first party. The second

party has become victim of anti-social elements and

deserves leniency. On the basis of perverse findings of

the IO the first party imposed upon the second party the

punishment of compulsory retirement w.e.f. 09/09/2004.

The said punishment of compulsory retirement is grossly

disproportionate to the gravity of the alleged misconduct.

The second party has been subjected to injustice and lost

his employment. Therefore he raised industrial dispute.

As conciliation failed, on the report of ALC (C), Ministry

of Labour & Employment has sent the reference to this

Tribunal. The workman therefore prays that the inquiry

be declared unfair and improper and the findings of the IO

be declared perverse. He also prays that the punishment

of compulsory retirement be quashed and the first party

be directed to reinstate him with full back wages and

consequential benefits.

3. The first party resisted the statement of claim

vide its written statement at Ex-7. According to them, they

have received a report from FA & CAO, Mumbai Port Trust

that workman Shri Abdul Rehman Ibrahim had applied for

personal loan of Rs.1,00,000/- from Dena Bank, Fort Branch

by submitting false and fabricated documents. Therefore

the workman was placed under suspension w.e.f. 20/08/

2002 for committing misconduct and violating Regulations

3 (IA) (i) (iv) and (xiii) of the MbPT Employees (Conduct)

Regulations, 1976. Thereafter he was served with

chargesheet dt. 03/01/2003. The workman submitted his

explanation and denied the charges. Since his explanation

was not satisfactory, departmental inquiry was initiated

against him. Shir A. R. Rane, Retired Administrative Officer

was appointed as Inquiry Officer and Shri V.V. Prabhu, Sr.

Ex-Engineer was appointed as Presenting Officer. The

inquiry was conducted by the IO in accordance with the

Principles of Natural Justice. Fair and full opportunity

was given to the workman to defend himself. An office

bearer of union was his defence representative. The

workman filed his reply to the charge-sheet. Copies of all

the prosecution documents were given to the workman.

They examined two witnesses. His defence representative

cross examined them. The workman examined himself on

oath. He was cross examined by the Presenting Officer.

The workman had also submitted his written brief. Fair

and proper opportunity was given to the workman to

defend himself. After considering the documentary and

oral evidence on record, the I.O. recorded his findings.

They are based on oral and documentary evidence on

record. The inquiry was fair and proper and findings of

the I.O. are not perverse.

4. After receipt of the report of the Inquiry Officer

the disciplinary authority issued show cause notice to

the workman and he was given personal hearing.

Thereafter the order of compulsory retirement was passed.

The said action of the first party is legal and justified. The

Appellate Authority and Reviewing Authority also upheld

the action of the first party as legal and justified. Before

imposing punishment the first party also examined past

record of the workman and found that he had produced

School Leaving Certificate of another person fraudulently

by inserting his own name therein. He was involved in a

theft case at Sewri Warehouse. He was found guilty of

availing loan from several co-op credit societies without

obtaining prior permission of the office. He had availed

loan of Rs.50,000/- from Bombay Mercantile Bank by

submitting manipulated documents and forging signatures

of the MbPT Officers. In respect of the first case he was

5076

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

awarded penalty of dismissal. Subsequently penalty was

modified by the Chairman to reduction of pay by two stages

for the period of two years with prejudice. In second case

major penalty of reduction of pay by three stages for a

period of two years with prejudice was awarded. In case

no. 3 & 4 no action was taken as disciplinary action in

similar fraud case of Dena Bank was in progress. As the

inquiry was fair and proper, findings of the I.O. are not

perverse and looking into the previous conduct and the

penalties imposed on the workman, the disciplinary

authority has imposed the punishment of compulsory

retirement which is proportionate to the misconduct.

Therefore they pray that the reference be dismissed with

cost.

5. Following are the issues for my determination. I

record my findings thereon for the reasons to follow:

Sr. No.

Issues

Findings

Whether inquiry is fair and proper?

Yes

Whether the findings of Inquiry

Officer are perverse?

REASONS

Issue No.1:-

6. In the case at hand it is alleged that inquiry

conducted against the workman is not fair and proper.

According to the workman the Inquiry Officer was bias

and he violated the Principles of Natural Justice. In this

respect it was pointed out on behalf of the first party that

the averment in respect of biasness of Inquiry Officer and

violation of Principles of Natural Justice are formal and

vague. There is no specific averment as to how the I.O.

was bias and in what way he violated the Principles of

Natural Justice. In this respect the ld. adv. for the first

party pointed out that after receipt of report of misconduct

the workman was suspended and his explanation was

called for. As his explanation was not satisfactory, charge

was framed and inquiry was initiated against him. The

copy of the charge-sheet was served on the workman. He

submitted his reply thereto. The copies of all the

prosecution documents were given to the workman. The

Presenting Officer examined two witnesses. The defence

representative of the workman who is office bearer of the

union had cross examined both the witnesses. The defence

representative examined the workman before the I.O. The

Presenting Officer cross examined him and after giving

full hearing and opportunity to the workman, I.O. held the

workman guilty and submitted his report to the disciplinary

authority. The Disciplinary Authority sent the copy of

report and issued show cause notice to the workman. After

giving him personal hearing disciplinary authority has

passed the order and imposed the punishment of

compulsory retirement. The ld. adv. for the first party

pointed out that the workman has admitted in his cross

examination at Ex-14 the procedure followed by the inquiry

Officer. He admitted that he received the charge-sheet.

He has given reply thereto. He has admitted that office

bearer of the union was his defence representative. He

has also admitted that his defence representative had cross

examined the witnesses of management. He has also

admitted that his statement was also recorded in the inquiry

proceeding and Presenting officer had cross examined him.

He has also admitted that after concluding the inquiry

opportunity was given to both the parties to file their

written submissions. In the circumstances, the ld. adv.

pointed out that no specific defect in the inquiry was

pointed out on behalf of the second party. Therefore

according to him the inquiry is fair and proper.

7. It is a fact that the second party has not pointed

out any specific instance of violation of Principles of

Natural Justice or biasness of the I.O. However the ld.

adv. for the second party submitted that the I.O. was a

retired Administrative Officer. Therefore he was not

competent to be a I.O. to conduct the inquiry. In support

of his argument the ld. ad. for the second party resorted to

Orissa High Court ruling in Siba Kishor Patnaik V/s. Chief

Engineer Paradip Port Trust (1992 Lab IC 2012). In that

case a retired officer was appointed as I.O. The said order

of appointment was challenged in writ petition saying that

a retired officer is not an authority to be appointed as I.O.

as required under the rules. The Hon’ble High Court

upheld the contention and the appointment of opp no.2

as I.O. was quashed and the Port Trust was set at liberty

to appoint an Inquiry Officer in accordance with the

Regulations. In this respect I would like to point out that,

in that case without submitting to the jurisdiction of the

I.O. his appointment order was challenged before Hon’ble

High Court. In the case at hand though the I.O. was a

retired officer his appointment order was never questioned

or challenged by the second party workman. On the other

hand the second party workman had submitted to the

jurisdiction of the I.O. and defended the charges against

him. After concluding the inquiry, he cannot be allowed

to challenge the jurisdiction of the I.O. saying that he was

not competent to conduct the inquiry. Neither he alleged

any enmity against the I.O. nor assigned any other reason

of his biasness. On the other hand from the above referred

procedure it is clear that the IO has followed the correct

and proper procedure.

8. On the point Apex Court ruling can be resorted

to Sur Enamel and Stamping Works Ltd. V/s. Their

Workmen 1963 II LLJ 367 wherein the Hon’ble Apex Court

laid down the following conditions for fair and proper

domestic inquiry. They are:

(1)

The employee proceeded against has been

informed clearly of the charges leveled against

him.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5077

(2)

The witnesses are examined-ordinarily in the

presence of the employee in respect of the

charges

(3)

The employee is given a fair opportunity to

cross examine witnesses.

(4)

He is given a fair opportunity to examine

witnesses including himself in his defence if

he so wishes on any relevant matter and

(5)

The inquiry officer records his findings with

reasons for the same in his report.

9. I.O. has followed the procedure as per the

guidelines given by the Hon’ble Apex Court. Hence I

hold that the inquiry was fair and proper. Accordingly I

decide this issue no.1 in the affirmative.

Issue no.2:-

10.The ld. adv. for the first party submitted that

findings of the Inquiry Officer, which are based on the

evidence on record and consistent thereto, cannot be

called perverse. In this respect I would also like to point

out that, the Tribunal is not sitting as an appellate court to

scrutinize the findings which are prima facie based on the

evidence on record. On the point Apex Court ruling can

be resorted to in US State Road Transport Corporation &

Ors V/s. Musais Ram & Ors. 1999 (83) FLR 226 (SC) wherein

on the point Hon’ble Court observed that;

“The Court does not sit in appeal over the findings

of the IO. If the findings are based on uncontroverted

material placed before the IO, it cannot be said that

these findings are perverse.”

11. In short the findings of the Inquiry Officer herein

are based on evidence before him. They are not contrary

to the evidence on record and cannot be called perverse.

Thus I hold that the findings of the IO are not perverse.

Accordingly I decide this issue no.2 in the negative and

proceed to pass the following order:

ORDER

(i)

The inquiry is held fair and proper.

(ii)

Findings of the Inquiry Officer are not

perverse.

(iii)

The parties are directed to argue/lead evidence

on the point of quantum of punishment.

Date: 05/05/2014

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 4 tqykbZ] 2014

dk-vk-

1949-—vkS|ksfxd fookn vf/fu;e] 1947

(1947 dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj psUubZ

daVsuj VfeZuy fyfeVsM ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds

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

ljdkj vkS|ksfxd vf/dj.k@Je U;k;ky;] psUubZ ds iapkV (lanHkZ

la[;k 40@2012) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

04@07@2014 dks izkIr gqvk Fkk 1

[la- ,y&31011@03@2012&vkbZvkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 4th July, 2014

S.O.

1949.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 40/2012) of

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

Chennai as shown in the Annexure, in the industrial dispute

between the management of Chennai Container Terminal

Ltd. and their workmen, received by the Central Government

on 04/07/2014.

[No. L-31011/03/2012 - IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Friday, the 20^th June, 2014

Present : K. P. PRASANNA KUMARI, Presiding Officer

Industrial Dispute No. 40/2012

(In the matter of the dispute for adjudication under

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

Section 10 of the Industrial Disputes Act, 1947(14 of 1947),

between the Management of Chennai Container Terminal

Ltd. and their workman)

BETWEEN

The General Secretary

: 1^st Party/Petitioner Union

The Madras Port Trust

Employees Union

SCC Anthony Pillai

Bhawan No. 34 (Old

No. 9), Second Line

Beach Chennai-600001

AND

The General Manager

: 2^nd Party/Respondent

Chennai Container Terminal

Ltd. Chennai Port Trust

Administrative Building

No. 1, Rajaji Salai,

Chennai-600013

5078

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

Appearance:

For the 1^st Party/Petitioner

: M/s K. M. Ramesh,

Union

Advocates

For the 2^nd Party/

: M/s S. Ramasubramaniam

Respondent

& Associates, Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-33011/3/2012-IR(B-II)

dated 09.07.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Chennai

Container Terminal (Pvt.) Ltd. (CCTL (DP World),

Chennai, Chennai Port Trust Administrative

Building, Chennai in not terminating the appointment

of Sri P. Gopi as “Yard Supervisor” and not reverting

him back as Q.C. Operator as requested by him is

legal and justified? What relief the workman is

entitled to?”

2. On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 40/2012 and issued notices to both

sides. Both sides entered appearance through their counsel

and filed their Claim and Counter Statement respectively.

After the counter statement was filed, the petitioner has

filed rejoinder

3. The averments in the Claim Statement filed by

the petitioner in brief are these:

The petitioner is a registered union represented by

its General Secretary. P.Gopi is a member of the Union and

is the workman concerned in this dispute. He had joined

the service of the Respondent as Checker in the year 2000

and was promoted as QC Operator in the year 2005. By

order dated 01.07.2010, the concerned workman was

promoted as Yard Supervisor of Operations Department

in the Management Cadre w.e.f. 01.07.2010. Clause-6 of

the order of promotion states that the concerned workman

shall be on probation for a period of 6 months during

which period himself or the Company may terminate the

appointment by giving 15 days notice without assigning

any reasons. The order of promotion was served on the

concerned workman on 27.07.2010 and he joined the

promoted post on the same date. Since he felt that he is

not fit for the post of Yard Supervisor he met the General

Manager on 02.08.2010 and requested him to revert him

back as QC Operator. The General Manager refused to

receive the letter of request. The concerned workman

then sent a letter by Registered Post on 12.08.2010 seeking

reversion. In the said letter the workman had terminated

his appointment as Yard Supervisor and gave 15 days

notice as stated in Clause-6 of the Appointment order.

However, the Respondent did not respond to this letter.

On the other hand the probationary period of the concerned

workman was extended by 6 months. At the same time the

Respondent had reverted one Bharath who was also

promoted as Yard Supervisor from the post of QC Operator,

on his request. The refusal of the Respondent to accept

the request of the concerned workman to revert him to the

post of QC Operator is arbitrary, illegal and malafide and

also amounts to unfair labour practice and victimization.

The dispute is raised in the above circumstances. An order

may be passed directing the Respondent to revert the

concerned workman to the post of QC Operator.

4. The Respondent has filed Counter Statement

contending as follows:

The dispute is not maintainable as Gopi, the

concerned worker is not a workman as defined under

Section-2(s) of the ID Act. The workman was working as a

Yard Supervisor in the Management Cadre at the time when

the dispute was raised. 35 numbers of direct and

contractual employees are working under him. He is to

personally supervise their work. The concerned employee

who was then QC Operator had submitted his application

to the post of Yard/Vessel Supervisor on the basis of the

notification issued by the Respondent on 15.03.2010. He

had attended the interview alongwith other applicants on

10.05.2010 and on the basis of the result of the interview

he was promoted as Yard Supervisor in the Management

Cadre. He was confirmed to this post on 21.07.2011. His

salary was revised and he was receiving Rs. 23,167/- a

month as salary. On 13.08.2010 the employee had written a

letter requesting to demote him as QC Operator. As there

was no policy to demote the employees the Respondent

refused him to revert him to his previous position. By

order dated 11.07.2011 the employee was transferred to

CFS Supervisory Cadre and is now working as Container

Freight Station Supervisor. The employee has accepted

the promotion and has joined the promotion post.

Though Bharath referred to in the Claim Statement was

given promotion, he did not join as a Yard Supervisor. So

the employee cannot compare himself with Bharath. The

petitioner is not entitled to any relief.

5. In the rejoinder filed by the petitioner, petitioner

has denied the averments in the Counter Statement and

also reiterated the case in the Claim Statement.

6. The evidence in the case consists of oral evidence

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

Ext.W6 and Ext.M1 to Ext.M18.

7. The points for consideration are:

(i)

Whether the action of the Management in

refusing to revert the concerned employee,

Gopi to the post of QC Operator is legal and

justified?

(ii)

What, if any, is the relief to which the

concerned employee is entitled?

¹Hkkx II—[k.M 3(ii)º

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5079

The Points

8. The facts of the case are not much in dispute.

The Petitioner Union had raised the dispute on behalf of

Gopi who had entered the service of the Respondent as a

Checker, promoted as QC Operator and later promoted to

the post of Yard Supervisor in the Management Cadre.

After joining the post of Yard Supervisor and working as

such for some time the concerned employee had felt that

the post in the Management Cadre is not suitable to him.

He wanted to be reverted to the post of QC Operator which

the Management refused. According to the petitioner,

this action of the Respondent is arbitrary and illegal. The

dispute is raised claiming that the concerned employee is

entitled to be reverted back to the post of QC Operator.

9. The Petitioner Union has requested the

Respondent to revert the concerned employee back to the

post of QC Operator by letter dated 12.07.2011 marked as

Ext.W2. Though it is stated in the Claim Statement that on

02.08.2010 itself the concerned employee had requested

the General Manager to revert him back to the post of QC

Operator, apart from the oral version of the concerned

employee, there is no other evidence regarding this. On

13.10.2010 he had written to the Respondent making such

a request. This is produced by the Respondent and is

marked as Ext.M13.

10. It has been pointed on behalf of the Respondent

that it was on the basis of an application given by the

concerned employee that he was considered for the post

of Yard Supervisor and that he was given promotion after

an interview. This fact is admitted by the employee

examined as WW1 also. He has admitted that Ext.M10 is

the application given by him to appoint him to the post of

Yard/Vessel Supervisor. He further stated that he had

applied for the post on his own volition. Ext.M11 is the

copy of the letter calling him for interview for the above

post. The witness had admitted that he has attended the

interview, though he would state that during the interview

he has stated that he does not require the post since the

salary was lesser. If this was the case there was no

necessity for him to attend the interview at all. Again, it

could be seen from the Counter ‘Statement that the salary

to the post of Yard Supervisor was not less than that of

QC Operator.

11. Ext.W1 is the order of promotion served on the

concerned employee. As could be seen from the Claim

Statement it is on the basis of Clause-6 of this order of

promotion that the employee is claiming that he is entitled

to be reverted to the post of QC Operator even as per the

order of promotion. What is stated in the Claim Statement

is that as per Clause-6 of the promotion order, during the

probation period of 6 months the employee or the

Company can terminate the appointment by giving 15 days

notice. However, on going through Clause-6 of Ext.W1 it

could be seen that this is not the case. What is stated in

Para-1 of Clause-6 of Ext.W1 regarding probation and

termination is that the employee will be on probation for a

period of 6 months during which period either the

Company or the employee may terminate the appointment

by giving 15 days notice without assigning any reasons.

What is to be discerned from this is only that either the

employer or the employee can terminate the employment

itself by giving 15 days notice during the 6 months period

of probation. It does not connote the meaning that the

employee is liable to be reverted to his earlier post in case

he gives notice of termination. The result of notice of

termination as per the clause is that the person will cease

to be an employee of the Respondent once the notice of

termination is given.

12. It could be seen from the documents produced

on behalf of the Respondent that it was not for the first

time the concerned employee has been applying for

appointment to the post of Officer. Ext.M8 is the

application given by him for the post on 08.12.2006.

Subsequently on 15.03.2010 an internal vacancy

notification was issued by the Respondent inviting

applications for the post of Yard/Vessel Supervisor, as

seen from Ext.M9. The concerned employee responded to

this notification and submitted the application again on

25.03.2010, as seen from Ext.M10. It was consequently, he

was called for interview as per Ext.M11 and was given the

order of promotion i.e. Ext.W1. Thus it could be seen that

the concerned employee was aspiring for the post for a

long time and it was on repeated effort that he obtained

the post. Ext.W1 shows that the order of promotion dated

01.07.2010 was served on him on 27.07.2010. Even as seen

from the Claim Statement he joined the post on the same

day which would show that he was very much anxious to

work in the promoted post. What exactly is the reason for

the employee to think of going back to the post of QC

Operator in the workman category is not known.

The Management is not willing to revert him back to

the post of QC Operator. It is stated it is not the policy of

the Management to revert a person in the normal course.

Though the example of one Bharath is given as an instance

of reversion, what is seen is that this person has not joined

the promoted post even though he has received the order

of promotion. So there was no question of his reversion

also.

13. The counsel for the petitioner has referred to

two precedents in support of his argument in favour of

reversion of the concerned employee. In the decision in

OM PRAKASH SUD VS. UNION OF INDIA AND

ANOTHER reported in 2003 AIR SC 3833, the concerned

employee had been working as Technical Assistant. On

his attaining the qualification he was offered the post of

Key Board Operator. He accepted the post on the

condition that he should be allowed to revert to his original

post and retire on reaching the age of 60 years and not in

5080

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

the age of 58 years. The Management did not reply to his

conditional acceptance. Order of retirement was served

on him by the Management on his completing the age of

58 years. The Apex Court quashed the order of notice of

retirement holding that the employee was always signing

the register as Technical Assistant and he was paid the

salary of Technical Assistant also even after the offer of

appointment to the post of Key Board Operator, that he

was never treated as Key Board Operator but all along he

had been treated as Technical Assistant. The facts of the

above case are totally different from the facts of the present

case. There the offer of promotion was met by a conditional

acceptance but the promotion was never given effect to

and the person continued to work in his former post in

which he could have worked upto the age of 60 years. So

the above decision is not of any help to the petitioner.

14. Another decision cited by the counsel for the

petitioner is SATISH CHANDRAN VS. GENERAL

MANAGER, UCO BANK AND OTHERS reported in 2008

2 SCC 653. It was a case where the employee who was

working as Clerk was promoted as Assistant Manager and

was posted to a place not to his liking but wanted a

reversion and the same was acceded to by the Management

and he was relieved from the promoted post also.

Subsequently, he made an application to permit him to

withdraw the request for reversion which was not acceded

to by the Management. The High Court had dismissed the

Writ Petition filed by the employee who felt aggrieved.

The facts of the case reveal that as per the Bipartite

Settlement when an employee seeks reversion he can be

allowed in which case he will be entitled to subsequent

promotion only after two years. The request of the

concerned employee for reversion was allowed on the

basis of the Bipartite Settlement and his application to

withdraw the request for reversion also seems to be on

the basis of the Bipartite Settlement. The finding in the

above case also is not of any help to the petitioner, the

facts being not in pari materia to the facts of the present

case.

15. There is no provision which entitles the

concerned employee to revert himself back to the previous

post at his whims and fancy once he is appointed to the

particular post. The terms and conditions of the order of

promotion does not entitle him to have such a choice. In

so far as Management is not willing to accede to his

request in spite of it being to be reverted to a lesser post

the concerned employee has no choice but to continue in

the post if he wants to stick to the service of the

Respondent.

16. Apart from the contention on the merits of the

case, the Respondent has also taken a contention that the

dispute is not maintainable before this Tribunal since the

petitioner was not a workman as defined in Section-2(s) of

the ID Act at the time when the dispute was raised.

According to the counsel for the Respondent, the

concerned employee had already accepted the post of

Yard/Vessel Supervisor in the Management Cadre and

was working in this post at the time when he raised the

dispute. It has being argued by the counsel that the

concerned employee not being a workman, this Tribunal

is not the forum to redress his grievance.

17. The counsel for the petitioner has referred to the

decision in MANAGEMENT OF INDIAN BANK VS.

INDUSTRIAL TRIBUNAL (CENTRAL GOVERNMENT)

MADRAS AND ANOTHER reported in 1977 1 LLJ 343 in

support of his argument that in spite of the circumstances

pointed out by the counsel for the Respondent the matter

would come within the ambit of this Tribunal. The above

was the case where certain Clerical Cadre Staff of Indian

Bank were promoted as Officers but were denied the benefit

of two additional increments which were given to the

Officers who were not promoted from the Clerical Cadre

Staff. A contention of the same kind raised in the present

case that the concerned persons are in the Officer category

and would not come under the category of workman as

defined in Section-2(s) of the ID Act was raised by the

Management. This objection was rejected by the Madras

High Court stating that the expression “any person”

occurring in Clause-(k) of Section-2 of ID Act would show

that he need not be a workman at all. It was found that the

person must be a person in whose conditions of

employment, etc. the workers are directly or substantially

interested. The Hon’ble High Court also observed that

the Union is fighting for their own conditions of service

which they would obtain when they are promoted as

Officers and that the interest which they have in the

determination of the conditions of service of the Officers

is neither remote nor unsubstantial but direct and vital in

view of the fact that a fixed percentage of higher posts has

to go to them. In fact the above dictum laid down also will

not help the petitioner. In the present case the Union is

not fighting for the common cause. It is fighting for the

individual interest of the concerned employee. It does not

matter to the Union or other workers whether the

concerned employee is reverted to his previous position

or retained in the position in which he is only the particular

individual is concerned with it.

18.It is not disputed by the petitioner that the

concerned employee was working in the Management

Cadre at the time when the dispute was raised. In the Claim

Statement itself it is admitted that he was promoted to the

post of Management Cadre and had joined the post and

had worked in the capacity of Yard Supervisor. He is

supervising several employees under him. So it is not by

mere nomenclature that he is put in the Officer cadre. Thus

the concerned employee was not a workman as defined in

Section-2(s) of the ID Act at the time when the dispute

was raised. So the dispute is not maintainable before this

¹Hkkx II—[k.M 3(ii)º

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5081

tribunal also. So for this reason also the reference is to be

answered against the petitioner.

19.In view of my above finding, the reference is

answered against the petitioner. An award is passed

accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 20^th June, 2014).

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1^st Party/Petitioner

WW1, Sri P. Gopi

For the 2^nd Party/Management :

MW1, Sri G. Nagarajan

Documents marked

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

01.07.2010

Copy of order of promotion issued

to P. Gopi

Ex.W2

12.07.2011

Copy of petition from First Party

the

Regional

Labour

Commissioner (Central), Chennai

Ex.W3

21.07.2011

Copy of letter from Second Party

to P. Gopi

Ex.W4

08.08.2011

Copy of remarks/reply filed by the

Second Party before the Regional

Labour Commissioner (Central),

Chennai

Ex.W5

02.09.2011

Copy of rejoinder filed by the First

Party before the Regional Labour

Commissioner (Central), Chennai

Ex.W6

xxxx

Copy of QC Operator Moves for

the month of July 2012

On the Management’s side :

Ex.No.

Date

Description

Ex.M1

17.10.2001

Appointment letter (Checker)

issued to the Petitioner

Ex.M2

17.04.2002

Confirmation order issued to the

petitioner

Ex.M3

14.07.2004

Application for QC submitted by

the petitioner

Ex.M4

15.11.2005

Promotion order issued to the

petitioner

Ex.M5

09.02.2006

Confirmation of services as QC

Operator

Ex.M6

June 2006

Best QC Operator of the month

Award

Ex.M7

08.12.2006

Application for Officer (Internal)

Ex.M8

17.01.2006

Medical Fitness Certificate

Ex.M9

15.03.2010

Internal Vacancy Notification

Ex.M10

25.03.2010

Application for the post of Yard/

Vessel Supervisor

Ex.M11

10.05.2010

Call letter for interview for position

of yard supervisor

Ex.M12

01.07.2010

Promotion as Yard Supervisor in

management cadre (Officer)

Ex.M13

13.08.2010

Letter addressed to the HR

Manager

Ex.M14

11.07.2011

Transfer Order

Ex.M15

21.07.2011

Confirmation letter as Yard

Supervisor

Ex.M16

25.04.2012

Annual Compensation Revision

Ex.M17

Position description of Yard

Supervisor

Ex.M18

14.11.2013

Personal Performance and

Development Plan (Final Review-

2014).

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New Delhi, the 4th July, 2014

S.O.

1950.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 60/2012)

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

Chennai as shown in the Annexure, in the industrial dispute

between the management of Indian Overseas Bank, and

their workmen, received by the Central Government on

04/07/2014.

[No. L-12012/38/2012 - IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Wednesday, the 18^th June, 2014

Present : K. P. PRASANNA KUMARI, Presiding Officer

5082

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

Industrial Dispute No. 60/2012

(In the matter of the dispute for adjudication under

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

Section 10 of the Industrial Disputes Act, 1947(14 of 1947),

between the Management of Indian Overseas Bank and

their workman).

BETWEEN :

Sri M. Jayabalaganesan

1^st Party/Petitioner

AND

The General Manager

2^nd Party/Respondent

Indian Overseas Bank,

Central Office

662, Anna Salai

Chennai-600002

Appearance:

For the 1^st Party/

M/s Balan Haridas,

Petitioner

R. Kamatchi Sundaresan,

Advocates

For the 2^nd Party/

M/s NGR Prasad, V. Stalin,

Management

Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12012/38/2012-IR (B-II)

dated 29.08.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Overseas Bank in imposing the punishment of

dismissal from service on Sri M. Jayabalaganesan,

Ex-Cashier vide order dated 28.06.2011, is legal and

justified? What relief the workman concerned is

entitled to?”

2. On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 60/2012 and issued notices to both

sides. Both sides entered appearance through their counsel

and filed their claim and counter statement respectively.

After the counter statement was filed, the petitioner filed a

rejoinder.

3. The averments in the Claim Statement filed by

the petitioner in brief are these:

The petitioner had joined the service of the

Respondent Bank as Sub-Staff and was promoted to the

Clerical Cadre subsequently. He has been discharging his

work sincerely and honestly. He has been working at

Panagudi branch of the Respondent Bank from the year

2007. He was working as Cashier during 2010. While

working in the branch the petitioner was placed under

suspension on 29.05.2010. It was alleged by the

Respondent that the petitioner had received an amount of

Rs. 12,000 to be remitted to the account of the Self Help

Group of Roja Mahalir on 27.01.2010, but failed to account

the same in the books of the branch and returned the

amount to the concerned after a complaint was made on

12.02.2010 only. It was further alleged that on 17.02.2010

one Velayudham had remitted Rs. 20,850 into various SB

Accounts, but the petitioner who was dealing with the

same remitted Rs. 50 less in one of the accounts by showing

remittance of Rs. 6,900 instead of Rs. 6,950. The

Respondent issued a Charge Sheet to the petitioner for

the misconducts alleged above, on 24.06.2010. In spite of

explanation by the petitioner, a domestic enquiry was

conducted and the petitioner was found guilty of the

charges by the Enquiry Officer. The petitioner had not

committed the misconducts alleged. On 27.02.2010 one

Bamila had come to the branch to remit Rs. 12,000 to the

loan account of Roja Mahalir Self Help Group. While

handing over the amount she requested to remit the amount

after verifying the loan account number. Because of heavy

rush in the bank the petitioner was not able to verify the

loan account number immediately. He kept the cash in the

drawer and went for lunch. At the time of closing of cash,

he could not verify the cash as there was cash shortage of

Rs. 5,000/-. The petitioner was not able to locate the

shortage and so he closed the cash account by borrowing

from his colleague. In the meanwhile the petitioner forgot

about the amount received from Bamila. On the next day

also he forgot about the same. From 29.10.2010 he was on

leave for 7 days as he was not doing well. After the

petitioner came to know about the complaint given by

Bamila he had remitted the amount. The petitioner had not

misappropriated the amount as alleged by the Respondent.

The mistake of accounting Rs. 50 less from the account of

Velayudham did not come to light as there was no excess

cash on 17.02.2010. The petitioner had not done anything

with malafide intention. There was only one Cashier for

remittance and also payment at Panagudi Branch. In spite

of pressure of work the petitioner had been working

satisfactorily without giving any room for complaint. The

Disciplinary Authority imposed the punishment of

dismissal from service on the petitioner on the basis of the

report of the Enquiry Officer. The appeal filed by him has

been dismissed by the Appellate Authority also. It is in

such circumstance, the dispute has been raised by the

petitioner. An order may be passed holding that the

dismissal of the petitioner from service is illegal, and also

directing the Respondent to reinstate the petitioner in

service with back wages, continuity of service and other

attendant benefits.

4. The Respondent has filed Counter Statement

contending as follows:

While the petitioner was working as Cashier at

Panagudi Branch, on 27.01.2010 one Bamila had remitted

Rs. 12,000/- to the credit of the loan account of Roja

¹Hkkx II—[k.M 3(ii)º

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5083

Mahalir Self Help Group. The amount was received by the

petitioner. But the same was not accounted for in the books

of the branch. When Animator of the SHG came to the

branch after two days she found that the amount of Rs.

12,000 was not credited to the loan account. She contacted

the petitioner and he returned the amount of Rs. 12,000 on

23.02.2010 after Bamila had made a complaint to the branch

on 12.02.2010. On 17.02.2010 Velayudham had remitted Rs.

20,850/- to various SB Accounts. However, the petitioner

accounted only Rs. 6,900 in respect of the SB Account

standing in the name of Rathinam rather than Rs. 6,950 the

amount required to be remitted and made good the balance

amount of Rs. 50. On 22.10.2010 after a complaint was

made by Velayudham. An enquiry was ordered on the

charge sheet that was issued to the petitioner

consequently. The petitioner had participated in the

enquiry. In the enquiry proceedings the petitioner had

admitted the guilt. The petitioner is not entitled to any

relief. There is no necessity to interfere with the finding

given by the Enquiry Officer on the punishment imposed

by the Disciplinary Authority and confirmed by the

Appellate Authority.

5. The petitioner had filed a rejoinder denying the

allegations made in the Counter Statement and repeating

his contentions in the Claim Statement.

6. The evidence in the case consists of the

documents marked as Ext.W1 to Ext.W40 and Ext.M1 to

Ext.M4.

7. The points for consideration are:

(i)

Whether the action of the Respondent in

imposing the punishment of dismissal from

service on the petitioner is legal and justified?

(ii)

If not, what is the relief to which the petitioner

is entitled?

The Points

8. The petitioner had joined the service of the

Respondent Bank as a Sub-Staff and was promoted to

Clerical Cadre in 1990. The incident which resulted in the

dismissal of the petitioner from service occurred in the

year 2010. The Respondent Bank had raised two charges

against the petitioner. One of the charge is that though an

amount of Rs. 12,000 has been handed over to him on

27.1.2010 to be remitted to the credit of the loan account in

the name of a Self Help Group, he failed to account the

same in the books of the branch and returned it only after

the person who entrusted the amount to him had given a

complaint to the branch in writing. The second charge is

that while remitting amount to the credit of a particular

account he remitted Rs. 50 less and made good the amount

only after a complaint was made by the remitter.

9. The petitioner has raised a vague contention in

his Claim Statement that the enquiry was not a fair one for

him. According to him he was not properly represented in

the enquiry proceedings, the person who represented on

his behalf having been not sufficiently experienced to

do the same. However, during the stage of trial there was

no case for the petitioner that the enquiry proceedings

was not conducted in a fair and proper manner. On going

through the enquiry proceedings, it could be seen that

the petitioner had fully participated in the enquiry and

that he had sufficient opportunity to defend his case

properly.

10. Now the question to be considered is whether

the petitioner had committed the misconducts alleged. In

the enquiry proceedings the Management had produced

two witnesses including the Officer who investigated the

case and had produced the relevant documents also.

11. Before going through the evidence let in before

the Enquiry Officer, the very case of the petitioner

regarding the whole incident is to be considered. It could

be seen from the Claim Statement itself that the petitioner

who had been present at the Bank on the day after the

alleged incident had been on leave for the next 7 days. It

is not disputed by him that he had returned the amount of

Rs. 12,000 after a complaint was filed against him and also

made good the shortage of Rs. 50. Ext.W2 is the

representation given by the petitioner to revoke his

suspension. In this representation itself it is admitted by

him that he had received cash of Rs. 12,000 from Bamila.

He has stated in his representation dated 04.06.2010 that

on 27.01.2010 Bamila had been to the branch to remit

Rs. 12,000 to the loan account of Roja Mahalir Self Help

Group and that the amount has been handed over to him.

As seen from the representation, while handing over the

cash to him, Bamila had requested him to credit the amount

after verifying the loan account number. Thus it is very

much clear from Ext.W2, the representation given by the

petitioner himself that he has received Rs. 12,000 from

Smt. Bamila and yet had not credited the amount to the

loan account of Roja Mahalir Self Help Group. Regarding

the short accounting of Rs. 50 in the account of

Velayudham he has stated in his representation that there

was no excess cash on 17.02.2010 and so the mistake did

not come to light. According to him this was due to excess

payment made to someone and he had made good the

amount on 20.02.2010 when he came to know about the

mistake. During the enquiry proceedings also the petitioner

had owned that he had committed the misconducts alleged.

In answer to the Enquiry Officer he has stated that he has

understood the charges read against him. He has then

stated that he is admitting all the charges voluntarily. He

has further stated that he is well aware of the

consequences of such voluntary and unconditional

admission of guilt also. Apart from the evidence let in, it

was on the basis of this admission also the Enquiry Officer

has entered findings against the petitioner.

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THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

12. MW1 who investigated the case has spoken

about the misconducts committed by the petitioner. The

defense representative has cross-examined this witness

in detail. As could be seen the petitioner while questioned

by MW1 also he has stated that he had received the amount

but had failed to remit the amount to the credit of the

concerned loan account.

13. It has been argued by the counsel for the

petitioner that it was not a case of the petitioner acting

dishonestly and against the interest of the bank.

According to the counsel the conduct of the petitioner

would reveal that there was no dishonest intention on his

part. According to him the petitioner had made good the

amounts as and when he realized the mistake and this

itself would show that there was no intention on his part

to cheat the customer or the Bank. According to the counsel

at the most it must have been a case of negligence and not

misappropriation.

14. In fact the circumstances available in this case

would not allow one to accept the above argument on

behalf of the petitioner. It is admitted by the petitioner

himself that he had received the amount of Rs. 12,000 from

the woman agreeing to credit the amount to the loan

account. However, he has failed to do so. His case is that

he has kept the cash in the drawer of the counter which is

normally not in use and he had forgotten about it. But

there is no case for him that he has subsequently

recovered the amount. If that is so, it could not have been

a case of mere negligence on the part of the petitioner. So

far as the short remittance of Rs. 50 is concerned, as seen

from the second charge there was voucher for Rs. 6,950

while only Rs. 6,900 has been remitted. When such

evidence is there, there was every justification for the

Enquiry Officer to enter a finding of guilt on the petitioner.

15.The petitioner was removed from service

consequent to the finding against him. The counsel for

the petitioner has argued that even if the finding is allowed

to stand the punishment imposed on the petitioner is

disproportionate to the guilt itself. According to the

counsel it is a case where this Tribunal can interfere and

impose a lesser punishment on the petitioner.

16.The counsel for the Respondent has referred to

the decision of the Apex Court in JANATA BAZAR Vs.

SECRETARY SAHAKARI NOUKARARA SANGHA

AND OTHERS reported in (2000) 7 SCC 517 where it was

held that Labour Court having found that the workmen

committed breach of trust and misappropriation of funds

entrusted to them, It should not have directed

reinstatement of the workman. The counsel has also

referred to the decision in DIVISIONAL CONTROLLER

KSRTC VS. A.T. MANE reported in 2005 (3) SCC 254 where

the Apex Court has held that while deciding the quantum

of punishment what one should bear in mind is the loss of

confidence and not the amount of money misappropriated.

It was further held that when a person is found guilty of

misappropriation of corporation funds there is nothing

wrong in the corporation losing confidence or faith in such

a person and awarding him punishment of dismissal.

Against this, the counsel for the petitioner has referred to

the decision in ISHWAR CHANDRA JAYASWAL VS.

UNION OF INDIA AND OTHERS reported in 2014 (1)

LLN 286 where the Apex Court has interfered with the

punishment of dismissal from service and imposed the

punishment of Compulsory Retirement. It was a case where

the appellant who was in Railway Service was found guilty

of receiving bribe of meager amount. The Apex Court has

observed that if the conscience of the Court is shocked as

to the severity or inappropriateness of the punishment

imposed there can be a fresh consideration of the matter.

In the above decision the Apex Court has considered the

fact that by the time the charge has been framed against

the delinquent he had already given the best part of his

life to the Indian Railways in which he was employed.

This was also considered by the Apex Court in modifying

and reducing the punishment.

17.The petitioner, as could be seen, had joined the

service of the Respondent in the year 1980. He had worked

as Sub-Staff with the Respondent for 10 long years and

had been promoted to the Clerical Cadre in the year 1990.

As a Clerk also he had worked for 10 long years before the

incident happened. There is no case for the Respondent

that the petitioner had any past record of misconduct. No

monetary loss was caused to the Bank by the incident as

the amount was made good by the petitioner. When these

aspects are taken into account, it could be treated as a

case where the punishment was disproportionate to the

nature of the offence committed. I am inclined to modify

the punishment and convert to one of Compulsory

Retirement from service.

18.Accordingly, the punishment imposed on the

petitioner is modified and is converted to Compulsory

Retirement from service.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 18^th June, 2014).

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1^st Party/Petitioner

None

For the 2^nd Party/Management

None

Documents Marked :

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

29.05.2010

Suspension Order

Ex.W2

04.06.2010

Representation given by the

petitioner

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5085

Ex.W3

24.06.2010

Charge Sheet

Ex.W4

30.06.2010

Revocation of Suspension

Ex.W5

03.07.2010

Order of Posting

Ex.W6

14.08.20910

Letter issued by Disciplinary

Authority regarding appointment

of Presenting Officer

Ex.W7

16.08.2010

Order of Posting

Ex.W8

18.08.2010

Order of Posting

Ex.W9

18.08.2010

Enquiry Notice

Ex.W10

15.09.2010

Enquiry Proceedings

Ex.W11

16.12.2010

Reply given by the petitioner

Ex.W12

17.02.2012

Enquiry Notice

Ex.W13

05.03.2011

Letter given by the petitioner

Ex.W14

18.03.2011

Letter given by the petitioner

Ex.W15

18.03.2011

Enquiry Proceedings

Ex.W16

28.03.2011

Written brief given by the

Presenting Officer

Ex.W17

29.04.2011

Reply given by Defence

Representative

Ex.W18

07.05.2011

Enquiry findings

Ex.W19

15.05.2011

Reply given by the petitioner

Ex.W20

31.05.2011

Personal Hearing Notice

Ex.W21

27.06.2011

Personal Hearing Notice

Ex.W22

28.06.2011

Dismissal Order

Ex.W23

18.07.2011

Appeal filed by the petitioner

Ex.W24

12.09.2011

Appellate Authority Order

Ex.W25

27.01.2012

Petition filed by the petitioner

before ACL

Ex.W26

27.02.2012

Reply filed by Bank before ACL

Ex.W27 Jan/Feb. 2010

Attendance Register

Ex.W28

12.02.2010

Complaint Letter

Ex.W29

26.02.2010

Complaint Withdrawal Letter

Ex.W30 01.06.2009 to

Loan Ledger

22.04.2010

Ex.W31

23.02.2010

Credit Cash Voucher

Ex.W32

17.02.2010

Credit Cash Voucher

Ex.W33

17.02.2010

Credit Cash Voucher

Ex.W34

17.02.2010

Credit Cash Voucher

Ex.W35

17.02.2010

Credit Cash Voucher

Ex.W36

17.02.2010

Credit Cash Voucher

Ex.W37 01.01.2010 to

Statement of SB Account

04.03.2010

Ex.W38

20.01.2010

Credit Cash Voucher

Ex.W39

24.02.2010

Memo

Ex.W40

06.03.2010

Investigation Report

On the Management’s side

Ex.No.

Date

Description

Ex.M1

30.08.2011

Proceedings of the personal

hearing given to the claimant by

the Appellate Authority

Ex.M2

30.08.2011

Submission of the claimant before

the Appellate Authority

Ex.M3

04.03.2010

Statement of the claimant

recorded by the Investigating

Officer during investigation which

is annexures to the Investigation

Report

Ex.M4

Credit Cash Voucher dated

17.02.2010 for Rs. 6,950/- relating

to SB A/c No. 34586 of

M. Rathinam with backside

(Management Exhibit No. 6).

ubZ fnYyh] 4 tqykbZ] 2014

dk-vk- 1951-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

vkWiQ bafM;k ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky;] paMhx<+ ds iapkV (lanHkZ la[;k 93@2013)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 04@07@2014 dks izkIr

gqvk Fkk 1

[la- ,y- 12011@52@2013 vkbZ vkj (ch- II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 4th July, 2014

S.O.

1951.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 93/2013)

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

Court, Chandigarh 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 04/06/2014.

[No. L-12011/52/2013- IR(B-II)]

RAVI KUMAR, Section Officer

5086

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE SHRI SURENDRA PRAKASH SINGH,

PRESIDING OFFICER, CENTRAL GOVT.

INDUSTRIAL TRIBUNAL- CUM-LABOUR

COURT-I, CHANDIGARH

Case No. ID 93 of 2013, Reference No. L-12011/52/2013-

IR(B-II) dated 12.08.2013.

Smt. Aruna Jaggi

C/o The General Secretary,

Central Bank of India,

Employees Union (N.Z.)(Regd),

146, Golden Avenue,Phase-I,

Jalandhar (Punjab)

....Workman

Versus

1. The Zonal Manager,

Central Bank of India,

Zonal Office, Sector-17,

Chandigarh.

2. The General Secetary,

Central Bank of India Employees

Union (N.Z.)(Regd)146,

Golden Avenue, Phase-1,

Jalandhar (Punjab).

....Respondent

Appearances:

For the Workman

None.

For the Management

Shri N.K. Zakhmi, Advocate

Award Passed On:-20.5.2014

Government of India Ministry of Labour vide

Notification No.L-12011/52/2013-IR (B-II) dated 12.08.2013

has referred the following dispute to this Tribunal for

adjudication:

Term of Reference:

“Whether the demand of the General Secretary,

Central Bank of India Employees Union

(N.Z.)(Regd.), 146, Golden Avenue, Phase-I,

Jalandhar (Punjab) against the Zonal Manager,

Central Bank of India, Zonal Office, Sector-17,

Chandigarh for imposing of alleged illegal and severe

punishment of bringing down by two stages in the

scale of pay for a period of three years without

cumulative effect to Smt. Aruna Jaggi, CTO, is just,

valid & legal? What benefit the workman is entitled

for and what directions are necessary in the matter?”

2. Case called repeatedly. None appeared on behalf

of the workman despite registered notice. From the several

dates, none is appearing for the workman nor any claim

statement has been filed. For Management Sh. N.K.

Zakhmi is present. It appears that the workman is not

interested to pursue with the present reference. The same

is returned to the Central Govt. for want of Prosecution.

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

sent to the Central Govt. for publication.

Chandigarh.

20.05.2014

S. P. SINGH, Presiding Officer

ubZ fnYyh] 4 tqykbZ] 2014

dk-vk- 1952-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

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

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

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je

U;k;ky;] ,.kkZdqye ds iapkV (lanHkZ la[;k 16@2010) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 04@07@2014 dks izkIr gqvk Fkk A

[la- ,y&12012@03@2010&vkbZvkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 4th July, 2014

S.O.

1952.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 16/2010) of

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

Erankulam as shown in the Annexure, in the industrial

dispute between the management of Vijaya Bank, and their

workmen, received by the Central Government on

04/06/2014.

[No. L-12012/03/2010-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

ERNAKULAM

Present:

Shri. D. SREEVALLABHAN, B.Sc., LL.B, Presiding Officer

(Friday the 30^th day of May, 2014/9^th Jyaishtha, 1936)

ID 16/2010

Workman

Smt T. Laila Marattumala Roadarikathu

Veedu Karamoodu, Kallayam PO

Thiruvananthapuram Dist.

By M/s. H. B. Shenoy, Associates

Management :

The Regional Manager,

Vijaya Bank, Regional Office,

Jose Annexe, Jose Junction,

M G Road COCHIN – 16

By Adv. Shri R S Kalkura

This case coming up for final hearing on 26.05.2014

and this Tribunal-cum-Labour Court on 30.05.2014 passed

the following:

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5087

AWARD

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

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

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

Government of India/ Ministry of Labour by its Order No.

L-12012/03/2010-IR(B-II) dated 10.03.2010 referred this

industrial dispute for adjudication to this tribunal.

2. The dispute is:

‘Whether the action of the management of Vijaya

Bank in terminating the services of Smt Laila T, Part

time sweeper from the service of the bank

w.e.f.08.04.2009 inspite of the fact that she was

working with their Trivandrum branch and

Vellayambalam branch from 1999 to 2009 is justified?

What relief the workman is entitled to?’

3. The workman after appearance before this

Tribunal filed claim statement alleging that she was

employed as a part-time sweeper in the Pulimoodu branch

of the management bank at Thiruvananthapuram on

28.01.1999 and she was in continuous service there until

her transfer to the Sasthamangalam branch of the

management bank at Thiruvananthapuram on 08.04.2007.

Thereafter she was working there until the termination of

her service on 08.04.2009. She was employed against a

regular and permanent vacancy of part-time sweeper and

had to discharge the duties of a regular and permanent

part-time sweeper with privileges and benefits much lower

than that afforded to a permanent part-time sweeper on

the premise that her service was not regularized. Inspite

of repeated demands made by her she was not regularized

in service and her service was orally terminated by the

manager of the Sasthamangalam branch of the

management bank w.e.f.08.04.2009. She was retrenched

from service without complying with the requirements as

provided under Section 25F of the Industrial Disputes Act,

1947 and in violation of the provisions in paragraphs 522,

523 and 524 of the Shastri Award. Those who were junior

to her were retained in service by the management bank at

the time of retrenchment in violation of Section 25G of the

ID Act as well as paragraph 507 of the Shastri Award.

Fresh hands were employed after her retrenchment in

violation of Section 25H of the ID Act, clause 20.12 of the

1^st Bipartite Settlement dated 19.10.1966 and paragraph 493

of the Shastri Award. Management bank used to employ

sweepers as temporaries against permanent vacancies one

after another and retrenched them to be replaced by new

hands in the same way violating the statutory provisions,

Awards and Bipartite Settlements. It amounts to unfair

labour practice prohibited under Section 25T of the ID Act

and violation of paragraphs 20.7 and 20.8 of the 1^st Bipartite

Settlement and paragraphs 495 and 522 of the Shastri

Award. As per the terms of clause 20.12 of the 1^st Bipartite

Settlement management bank is bound to retain and

absorb the workman in regular service especially when

there is vacancy. Instead of absorbing her in regular

service the management bank had illegally retrenched her

from service. Hence the retrenchment is to be declared

illegal and she is to be reinstated in service with full back

wages, continuity of service and other attendant benefits.

4. Management filed written statement denying the

allegations in the claim statement and contending that the

workman was engaged as a temporary part-time sweeper

in the Trivandrum branch of the management bank on

daily wage basis during the period from 06.08.2003 to

27.12.2007. But she had never worked for a continuous

period of 240 days within 12 calendar months preceding

her disengagement as a temporary part-time sweeper. She

was not engaged through Employment Exchange as

envisaged in the Rules and Guidelines relating to

recruitment and reservation policy issued by the Govt. of

India, but on the basis of the provisions contained in the

Awards and Settlements for engagement of persons on

temporary basis. Such a person does not have any legal

right to be absorbed in permanent service even if she had

worked for more than 240 days. During the period from

06.08.2003 to 27.12.2007 she was intermittently engaged

as a temporary part-time sweeper for daily wages @ ` 50

to ` 75/- in the Trivandrum branch of the management

bank as per the provision contained in paragraph 20.7 of

the 1^st Bipartite Settlement. The management bank is not

having a branch by name Sasthamangalam branch. From

09.04.2007 she was intermittently engaged in the

Vellayambalam branch of the management bank and it was

not based on any transfer order issued to her. There is no

question of issuing transfer order to temporary employees.

The Kochi Regional Office of the management bank vide

letter dated 02.06.2007 permitted the Vellayambalam branch

to outsource the job of housekeeping by availing services

of M/s.Vijaya Hospitality Services @ ` 2,500 per mensem

from 01.06.2007 to 31.03.2008. The said agency deputed

the workman to do the work assigned to that agency. The

agency vide letter dated 30.06.2007 made request to the

branch Manager of the Vellayambalam branch to pay

` 1,800/- to her from their bills and credit the balance in

their account in the Vyttila branch of the management bank

and the same was acceded to by the branch manager. Later

the agency by its letter addressed to the Deputy General

Manager, Regional Office, Vijaya Bank, Kochi informed

that the workman who was engaged by them purely on

contract basis (part-time) for housekeeping work at Vijaya

Bank, Vellayambalam branch was terminated

w.e.f.06.04.2009 since her work was found to be

unsatisfactory. She was engaged by the housekeeping

agency w.e.f.01.06.2007 and was removed by that agency.

Hence there is no retrenchment of her service by the

management bank. Since the removal was by the agency

the provisions of Section 25F of the ID Act are not

applicable against the management bank and there is no

question of violation of Sections 25G and 25H of the ID

5088

THE GAZETTE OF INDIA : JULY 12, 2014/ASADHA 21, 1936

[PART II—SEC. 3(ii)]

Act and the provisions of the Shastri Award or the

Bipartite Settlement. As her engagement was on daily

wage basis she is not entitled for regularisation even if

the temporary engagement is for a period of more than

three months. Such temporary employees can also

compete with other candidates while making selection for

permanent appointment and if other things are being equal

the temporary employees will be given preference. The

temporary employee will not acquire the status and

privileges of permanent workman until and unless such

temporary workman can be selected and appointed as

permanent workman. There is no unfair practice in

engaging workman on temporary basis. The management

has not retrenched the workman and it is the contractor

under whom she was working had removed her from

service. There is no ground to reinstate her in services of

the bank and she is not entitled for back wages, continuity

of service and other attendant benefits as claimed by her.

5. Workman filed replication denying the

contentions in the written statement and reaffirming the

allegations in the claim statement.

6. For the purpose of deciding this reference the

workman was examined as WW1 and Ext.W1 was got

marked from the side of the workman. For the management

two witnesses were examined as MW1 and MW2 and

Exts.M1 to M21 were marked.

7. The points for determination are:-

(i)

Whether the workman was under the direct

employment of the management bank as part-

time sweeper from 28.01.1999 to 08.04.2007 as

alleged in the claim statement?

(ii)

Whether she was engaged in the

Vellayambalam branch of the management

bank on outsource basis from 01.06.2007 to

06.04.2009 as contended in the written

statement?

(iii)

Whether she was terminated from service by

the management bank w.e.f.08.04.2009 and if

so, it is legal and justifiable?

(iv)

Whether the workman is entitled to any relief?

8. Point Nos.i & ii:- These two points can be

considered together in order to avoid repetition and for

convenience. The case put forward by the workman is

that she was continuously engaged as a part-time sweeper

in the Pulimood branch from 28.01.1999 to 08.04.2007 and

in the Sasthamangalam branch from 09.04.2007 until her

termination from service on 08.04.2009. On the other hand

it is contended by the management bank that she was

intermittently engaged in the Trivandrum branch of the

management bank from 06.08.2003 to 27.12.2007 on daily

wage basis and later she was deputed to the Vellayambalam

branch by M/s.Vijaya Hospitality Services engaged by

the management bank on contract basis for the job of

housekeeping and that she was terminated from service

by that agency w.e.f.06.04.2009 since her work was found

to be unsatisfactory.

9. It is to be pointed out that it has come out in

evidence that the Trivandrum branch and the

Vellayambalam branch of the management bank are

referred to as Pulimood branch and Sasthamangalam

branch in the claim statement. It is also to be pointed out

that M/s.Vijay Hospitality Services referred to as Vijaya

Hospitality Services in the written statement was taken

over by M/s.Vinay Housekeeping and Sales Pvt. Ltd. on

01.08.2007 and the same is evidenced by Ext.M13.

10. It is not in dispute that the workman was engaged

as part-time sweeper in the Trivandrum branch of the

management bank but there is no reliable evidence in this

case to prove that she was continuously engaged from

28.01.1999 to 08.04.2007. According to the management

bank she was intermittently engaged in the Trivandrum

branch as part-time sweeper from 06.08.2003 to 27.12.2007.

Exts.M4 series Vouchers, M6 and M7 Registers will go to

show that she was engaged on daily wage basis. Whatever

it be it has not much significance in this case as it is mainly

to be considered whether she was under the direct

employment of the management bank in the Vellayambalam

branch or she was engaged on outsource basis by

M/s. Vijay Hospitality Services during the period preceding

the date of termination. There is ample evidence in this

case to prove that she was engaged by M/s.Vijay

Hospitality Services and subsequently by M/s.Vinay

Housekeeping and Sales Pvt. Ltd. in the Vellayambalam

branch of the management bank. It is the case of the

management bank that the Regional Office, Kochi vide

letter dated 02.06.2007 permitted the Vellayambalam branch

to outsource the job of housekeeping by availing the

service of M/s.Vijay Hospitality Services @ ` 2,500/- per

mensem from 01.06.2007 to 31.03.2008. Ext.M11 is produced

to prove the same. It is a letter addressed to the branch

manager of the Vellayabalam branch by the Chief Manager

of the Regional Office at Kochi of the management bank

permitting the branch Manager to outsource the job of

housekeeping by availing the services of M/s.Vijay

Hospitality Services for providing housekeeping service

@ ` 2,500/- per month from 01.06.2007 to 31.03.2008.

Ext.M12 is a letter dated 30.06.2007 addressed to the

manager of Vellayambalam branch from M/s.Vijay

Hospitality Services with a request to make payment of

` 1,800/- to the workman from their bills and credit the

balance in their account at the Vyttila branch of the

management bank throughout the period of contract. From

Ext.M10, the certified computer statement of the ledger

account in respect of the General Charges for the period

from 30.06.2007 to 30.04.2009, it can be seen that ` 2,500/-

was being debited as cleaning charges from the month of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % tqykbZ 12] 2014@vk"kk<+ 21] 1936

5089

June, 2007 onwards. Ext.M5 series would prove the

payment of housekeeping charges to M/s.Vijay Hospitality

Services and M/s.Vinay Housekeeping and Sales Pvt. Ltd.

The contract for the housekeeping service with M/s.Vinay

Housekeeping and Sales Pvt. Ltd. was renewed for the

period from 01.04.2008 to 31.03.2009 and subsequently for

the period from 01.04.2009 to 31.03.2010 and the same is

proved through Exts.M14 to M18. The Managing Director

of M/s.Vinay Housekeeping and Sales Pvt. Ltd. was

examined as MW2. He has also given evidence to prove

that the workman was engaged by the agency for the

housekeeping job in the Vellayambalam branch of the

management bank. It was deposed by him that Ext.M19

is the copy of the annual return submitted to the Provident

Fund authority and Ext.M20 is the annual return submitted

to the Employees’ State Insurance Corporation from their

agency wherein the workman in this case is listed as an

employee of the agency. It was stated by him that Ext.M21

is the copy of the letter sent to the Deputy General Manager,

Regional Office, Kochi from the agency as to the

termination of the workman w.e.f.06.04.2009. Nothing has

been brought out during his cross examination to

disbelieve his version as to the engagement of the workman

by the agency in the Vellayambalam branch of the

management bank for housekeeping job. Even Ext.W1

Pass Book of the workman as to the Savings Bank account

in the Vellayambalam branch produced in this case will

also prove the case of the management bank that the

workman was engaged by the agency and payments were

made to her as per the request made by the agency. There

is nothing on record to show that the workman was working

in the Vellayambalam branch from 01.06.2007 onwards on

direct employment by the management bank. Management

has succeeded in establishing that the workman was

working in the Vellayambalam branch on deputing her by

the agency engaged for housekeeping service on contract

basis. There is absolutely no reliable evidence in this

case to prove that she was directly engaged by the

management bank during that period. She was working at

that time as the employee of the agency and not as that of

the management bank. Hence it can very well be held that

the workman was working in the Vellayambalam branch of

the management bank from 01.06.2007 onwards as engaged

by M/s Vijay Hospitality Services followed by M/s.Vinay

Housekeeping & Sales Pvt. Ltd. and not under the direct

employment of the management bank.

11. Point No. iii:- Since the workman was found to

be not an employee of the management bank preceding

the date of alleged termination it cannot in any way be

said that her service was illegally terminated by the

management. There is evidence to prove that the cessation

of employment was due to the termination of her service

by M/s.Vinay Housekeeping agency.

12. Point No. iv:- Since it is found that the workman

was not under the direct employment of the management

bank from the month of June, 2007 onwards in its

Vellayambalam branch she is not entitled to any relief.

The award will come into force one month after its

publication in the Official Gazette.

Dictated to the Personal Assistant, transcribed and

typed by her, corrected and passed by me on this the

30^th day of May, 2014.

D. SREEVALLABHAN, Presiding Officer

APPENDIX

Witnesses for the Workman :

WW1

20.03.2013

Smt T. Laila

Witnesses for the Management :

MW1

07.11.2013

Shri Shibu D. S.

MW2

08.01.2014

Shri Ajithkumar A.

Exhibits for the Workman :

Pass Book in respect of Savings

Bank Account No. 207101011001041

in the name of Smt. T. Laila in the

Vellayambalam branch of Vijaya Bank

Exhibits for the Management :

True copy of the General Power of

Attorney executed in favour of Shri

D. S. Shibu on 24.03.2006

True copy of letter No.F.No.1/2/1/77-

IR dated 10.06.1980 issued by the

Govt. of India, Ministry of Finance,

Department of Economic Affairs

(Banking Division)

M2(1)

True copy of guidelines No.F.No.1/

2/1/77/IR dated 30.09.1978 issued by

the Govt. of India, Ministry of

Finance, Department of Economic

Affairs(Banking Division)

M2(2)

True copy of letter No.F.No.1/2/1/77-

IR dated 03.06.1980 issued by the

Deputy Secretary to the Govt. of

India, Ministry of Finance,

Department of Economic Affairs

(Banking Division)

True copy of Chapters XX to XXII

of the 1^st Bipartite Settlement