2759 GI/2014
(5225)
dk£ed] yksd f'kdk;r rFkk isa'ku ea=kky;
(dk£ed vkSj izf'k{k.k foHkkx)
ubZ fnYyh] 11 tqykbZ] 2014
dk-vk- 1996-—dsanzh; ljdkj] fnYyh fo'ks"k iqfyl LFkkiu
vf/fu;e] 1946 (1946 dk vf/fu;e la- 25) dh /kjk 6 ds
lkFk ifBr /kjk (5) dh mi&/kjk (1) }kjk çnÙk 'kfDr;ksa dk
iz;ksx djrs gq, mÙkj çns'k jkT; ljdkj ds x`g (iqfyl) vuqHkkx&3]
y[kuÅ dh lgefr ls fnukad 12 flrEcj] 2013 dh vf/lwpuk
la- 3291(1)@ih@VI&ih&3& 2013&15(20)ih@2013 }kjk 'k'kkad
;kno dh e`R;q ds laca/ esa iqfyl LVs'ku lsDVj&24] uks,Mk] ftyk
xkSre cq¼ uxj] mÙkj çns'k esa Hkkjrh; n.M lafgrk] 1860 (1860
dk vf/fu;e la- 45) dh /kjk 120&ch] 201 ,oa 302 ds varxZr
ntZ vijk/ la- 171@2013 vkSj mlls lacaf/r iz;klksa] nq"izsj.k]
"kM+;U=kksa dk vUos"k.k djus ds fy, fnYyh fo'ks"k iqfyl LFkkiu dh
'kfDr;ksa ,oa U;k;kf/dkj dk foLrkj laiw.kZ mÙkj çns'k jkT; ij
djrh gSA
¹iQk- la- 228@73@2013&,ohMh&IIº
jktho tSu] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC
GRIEVANCES AND PENSIONS
(Department of Personnel and Training)
New Delhi, the 11th July, 2014
S.O. 1996.—In exercise of the powers conferred by
sub-section (1) of Section 5 read with section 6 of the
Delhi Special Police Establishment Act, 1946 (Act No. 25
of 1946), the Central Government with the consent of the
State Government of Uttar Pradesh, Home (Police) Section-
3, Lucknow vide Notification No. 3291(1)P/VI-P-3-2013-
15(20)P/2013 dated 12th September, 2013, hereby extends
powers and Jurisdiction of the members of the Delhi Special
Police Establishment to the whole of the State of Uttar
Pradesh for investigation of Case Crime No. 171/2013
under sections 120-B, 201 and 302 of the Indian Penal Code,
1860 (Act No. 45 of 1860) registered at Police Station Sector-
24 Noida, District Gautam Buddha Nagar, Uttar Pradesh
reating to death of Shashank Yadav and attempts abetments
and conspiracies in relation to the above mentioned case.
[F. No. 228/73/2013-AVD-II]
RAJIV JAIN, Under Secy.
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 29]
ubZ fnYyh] tqykbZ 13—tqykbZ 19] 2014] 'kfuokj@vk"kk<+ 22—vk"kk<+ 28] 1936
No. 29]
NEW DELHI, JULY 13—JULY 19, 2014, SATURDAY/ASADHA 22—ASADHA 28, 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
5226
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
varfj{k foHkkx
csaxywj] 1 tqykbZ] 2014
dk-vk- 1997-—dsanzh; ljdkj] jktHkk"kk (la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx] fu;e] 1976 ds fu;e 10 ds mifu;e
(4) ds vuqlj.k esa ,rn~}kjk vUrfj{k foHkkx ds fuEufyf[kr
dk;kZy;] ftlds 80 izfr'kr ls vf/d deZpkfj;ksa us fgUnh dk
dk;Zlk/d Kku izkIr dj fy;k gS] dks vf/lwfpr djrh gSaA
fo|qr izdkf'kdh ra=k iz;ksx'kkyk
igyk LVst] igyk ØkWl
ih.;k vkS|ksfxd ,LVsV
csaxywj&560058
¹la- 8@1@10@2011&¯gº
,u- iV~VkfHk jkeu] voj lfpo
DEPARTMENT OF SPACE
Bangalore, the 1st July, 2014
S.O. 1997.—In pursuance of sub-rule (4) of the
Rule 10 of the Official Language (use for official purpose of
the Union) Rule, 1976, the Central Government, hereby
notifies the following Office of the Department of Space,
whereof more than 80 percent staff have acquired the
working knowledge of Hindi.
Laboratory for Electro-Optics Systems (LEOS)
1st Stage, 1st Cross,
Peeniya Industrial Estate
Bangalore-560058
[No. 8/1/10/2011-H]
N. PATTABHI RAMAN, Under Secy.
miHkksDrk ekeys] [kk| ,oa lkoZtfud forj.k ea=kky;
(miHkksDrk ekeys foHkkx)
(Hkkjrh; ekud C;wjks)
ubZ fnYyh] 8 tqykbZ] 2014
dk-vk- 1998-—Hkkjrh; ekud C;wjks (çek.ku) fofu;e] 1988 ds fofu;e 4 ds mifu;e (5) ds vuqlj.k esa
Hkkjrh; ekud C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftuds fooj.k uhps vuqlwph esa fn, x, gSa] dks ykbZlsal iznku fd, x, gSa %&&
Ø- ykblsal
Lohd`r djus
ykblsal/kkjh dk uke ,oa irk
Hkkjrh; ekud dk
Hkk ek
Hkkx
vuq o"kZ
la- la[;k
dh frfFk o"kZ
'kh"kZd
la[;k
ekg
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
1- 2890574
03 twu] 2014
eSllZ lkseukFk bUthfu;fjax
fueTtuh; iEi lsV dh
8034
0
0
2002
losZ ua- 18@1 ih&2
fof'kf"V
IykWV ua- 22]
ijhu QuhZpj ds ihNs
jkes'oj bUMLVªh;y ,fj;k]
xksaMy jksM+] okoMh]
jktdksV] xqtjkr&360004
2- 2890675
03 twu] 2014
eSllZ ,fDVo iksyhelZ
flapkbZ miLdj&fLaizdyj
14151
2
0
2008
izkbZosV fyfeVsM
ikbi&fof'k"V Hkkx 2 lgt
IykWV ua- 327]
la;ksth ikyh,fFkyhu ikbi
th- vkbZ- Mh-lh- II]
rFkk fQfVaxl
lkcyiqj] ftyk tqukx<+]
xqtjkr&362001
3- 2891879
16 twu] 2014
eSllZ QscVsd dscYl
dkWlfyaDM ikWfyFkhu ls jsf/kr 7098
1
0
1988
izkbZosV fyfeVsM
FkeksZ IykfLVd ds [kksy p<h
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ds dscy Hkkx 1] 1100oks- Vd
26] 27] losZ ua- &39@3]
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uojax bUMLVªh;y ,LVsV]
¹Hkkx II—[k.M 3(ii)º
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5227
gksVsy fØ"uk ikdZ ds ihNs]
okoMh] ftyk jktdksV]
xqtjkr&360004
4- 2891980
17 twu] 2014
eSllZ j?kqohj dscy
1100 oksYV rd dh
694
0
0
1990
t; bUM- ikdZ 'ksM ua- 2]
dk;Zdkjh oksYVrk ds fy,
lR;ukjk;u os fczt ds ihNs]
ihohlh jksf/kr dscy vkbZ,l
xksaMy jksM] okokMh]
jktdksV] xqtjkr&360004
5- 2892174
20 twu] 2014
eSllZ futkuUn ikbZIl o
rIr vkSj vrIr is; ty
15778
0
0
2007
fQfVaXl izkbZosV fyfeVsM]
forj.k O;oLFkk ds fy,
losZ ua- 28@29
Dyksjhuhd`r ikWyhfouk;y
IykWV uEcj 72] 73] 74] 1]
DyksjkbM ¼lhihohlh½ ikbi
2] 29] 30] f'koe bUMLVªh;y
,fj;k] vkse dkfLVax ds ikl]
QkYdku iEIl izk- fy- ds ihNs
xksaMy jksM] okoMh]
ftyk jktdksV]
xqtjkr&360005
6- 2893075
26 twu] 2014
eSllZ ftUny 'kkW fyfeVsM
LiSjy oSfYMM ikbZi &
5504
0
0
1997
xkWo lke?kks?kk]
fof'k"V
ekaMoh ijkxiqj jksM]
rkyqdk eqUnzk ftyk dPN]
xqtjkr&370415
¹la- dsUnzh; izek.ku foHkkx@13%11º
la- prqosZnh] oSKkfud ^,iQ* ,oa çeq[k
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARDS)
New Delhi, the 8th July, 2014
S.O.
1998.—In pursuance of sub-regulation (5) of Regulation 4 of the Bureau of Indian Standards (Certificate)
Regulation 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given
below in the following schedule:—
SCHEDULE
Sl.
Licence
Grant
Name and address of the
Title of the
IS No.
Part. Sec. Year
No. No.
Date
party
Standard
(1) (2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
1.
2890574
03/06/2014
M/s. SOMNATH
Sumersible Pumpsets-
8034
0
0
2002
ENGINEERING
Specification
Survey No. 18/1, P-2,
Plot No. 22, B/h Pain Furniture,
Rameshwar Industrial Area,
Gondal Road, Vavadi,
Rajkot, Gujrat-360004
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
5228
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
2.
2890675
03/06/2014
M/s. ACTIVE POLYMERS
Irrigation Equipment-
14151
0
0
2008
PVT. LTD. Plot No. 327,
Sprinkler Pipes-Quick
G.I.D.C.II, Sabalpur,
Coupled Polyethylene
District : Junagadh,
Pipes
Gujrat-362001
3.
2891879
16/06/2014
M/S. FABTECH CABLES
Crosslinked Polyethylene 7098
0
0
1988
PVT. LTD.
insulated thermoplastic
Plot No. 19, 20, 22, 23, 26 &
sheathed cables: Part 1 for
27, Survey No.-39/3, Navrang working voltage upto and
Industrial Estate,
including 1100 V
Behind Hotel Karishna Park,
Vavadi, District : Rajkot,
Gujrat-360004
4.
2891980
17/06/2014
M/S. RAGHUVIR CABLE
PVC Insulated cables for
694
0
0
1990
Jay Ind park, Shed No. 2,
working voltage upto and
B/H Satyanarayan Weigh
including 1100 V
Bridge, Gondal Road,
Vavdi, Rajkot
Gujrat-360004
5.
2892174
20/06/2014
M/s. NIJANAND PIPES
Chlorinated PVC Pipes
15778
3
0
2007
AND FITTINGS PVT. LTD.
for Portable Hot and
Survey No. 28/29, Plot
Cold Water Distribution
No. 72, 73, 74, 1, 2, 29, 30,
Supplies
Shivam Industrial Area,
Near Om Casting,
Behind Falcon Pumps Pvt.
Ltd., Gondal Road, Vavdi,
District Rajkot,
Gujrat-360005
6.
2893075
26/06/2014
M/S. JINDAL SAW
Specification for Spiral
5504
0
0
1997
LIMITED
welded pipes
Village Samghogha,
Mandvi Paragpur Road,
Taluka Mundra,
District kachchh,
Gujrat-370415
[No. CMD/13:11]
S. CHATURVEDI, Scientist 'F' & Head
ubZ fnYyh] 8 tqykbZ] 2014
dk-vk- 1999-—Hkkjrh; ekud C;wjks (çek.ku) fofu;e] 1988 ds fofu;e 4 ds mifu;e 5 ds vuqlj.k esa
Hkkjrh; ekud C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftuds uhps vuqlwph esa fn, x, gSa] ds ykblsal jí fd, x, gSa %&&
vuqlwph
Ø-
ykblsal
ykblsal/kkjh dk
ykblsal ds varxZr oLrq@çØe lEc)
jn~nhdj.k
la-
la[;k
uke o irk
Hkkjrh; ekud dk 'kh"kZd
frfFk
1-
3736670
eSllZ jks;y csojsthl
iSdstcan is; ty ¼iSdstcan izkd`frd
09 twu] 2014
IykWV ua- 29] okMZ ua- 6]
feujy ty ds vykok½]
baMLVªh;y ,fj;k] xq:}kj
ds ikl xka/kh/kke] ftyk dPN
xqtjkr&370201
¹la- dsUnzh; izek.ku foHkkx@13%11º
l- prqosZnh] oSKkfud ^,iQ* ,oa çeq[k
(1) (2)
(3)
(4)
(5)
(6)
(7)
(8) (9)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5229
New Delhi, the 8th July, 2014
S.O.
1999.—In pursuance of sub-regulation (6) of Regulation 5 of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given
below have been cancelled/suspended with effect from the date indicated against each:—
SCHEDULE
Sl.
Licence No.
Name & Address
Article/ Process with
Date of
No.
CM/L-
of the Licensee
relevant Indian Standards covered
Cancellation
by the licence cancelled/suspension
1.
3736670
ROYAL BEVARAGES,
Packaged Drinking Water
Plot No. 29, Ward-6,
(other than Packaged
09-06-2014
Industrial Area,
Natural Mineral Water) – Specification
Near Gurudwara,
Gandhidham,
District Kachchh,
Gujarat-370201
[No. CMD/13 : 11]
S. CHATURVEDI, Scientist ‘F’ & Head
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 30 ebZ] 2014
dk-vk- 2000.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dfe'uj
E;qfufliy dkjiksjs'ku vkWQ fnYyh ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn
esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 1]
fnYyh ds iapkV ¼lanHkZ la[;k 167/2012½ dks izdkf'kr djrh gS
tks dsUnzh; ljdkj dks 30@05@2014 dks izkIr gqvk FkkA
[la- ,y&42011@66@2012&vkbZvkj¼Mh;w½]
ih- ds- os.kqxksiky] vuqHkkx vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 30th May, 2014
S.O. 2000.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No. 167/
2012) of the Central Government Industrial Tribunal/Labour
Court 1, Delhi now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the The Commissioner, Municipal
Corporation of Delhi, Delhi and their workman, which was
received by the Central Government on 30/05/2014.
[No. L-42011/66/2012-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING OFFICER,
CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,
DELHI
I.D. No. 167/2012
Shri Ishwar Singh
S/o Shri Jai Lal,
Through The General Secretary,
Nagar Nigam Karamchari Sangh,
Delhi Pradesh, P-2/624, Sultanpuri,
Delhi.
...Workman
Versus
The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi-110006.
...Management
AWARD
A chowkidar employed by Municipal Corporation
of Delhi (in short the Corporation) claimed payment of
overtime allowance, since he was made to work beyond
normal duty hours. His claim was not conceded to by the
Corporation. He approached the Nagar Nigam Karamchari
Sangh (Delhi) (in short the union) for redressal of his
grievances. The union served notice on the Corporation
seeking overtime allowance for duties performed in excess
of normal working hours, wages for weekly holidays,
gazetted holidays and casual leaves, which notice was
not responded to. A dispute was raised before the
Conciliation Officer. Since the Corporation contested the
claim, conciliation proceedings ended into a failure. On
consideration of failure report, submitted by the
5230
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Conciliation Officer, the appropriate Government referred
the dispute to this Tribunal for adjudication, vide order
No.L-42011/66/2012-IR(DU) dated 16/21.11.2012, with
following terms:
“Whether the action of the management of
Municipal Corporation of Delhi (MCD) in denying
encashment of wages of weekly holidays,
gazetted holidays and casual leave which are not
availed by the workman, Shri Ishwar Singh, S/o
Shri Jai Lal, ex-Chowkidar as the same are spent
on duty during the period of service rendered by
the workman with the MCD is justified or not? If
not, what relief the workman is entitled to and
form which date?”
2. In the reference order, the appropriate Government
commanded the parties to the dispute to file statement of
claim, complete with relevant documents, list of reliance
and witnesses with this Tribunal within 15 days of receipt
of the reference order and to forward a copy of such
statement of claim to the opposite parties involved in the
dispute. Despite directions, so given, the Chowkidar,
namely, Shri Ishwar Singh opted not to file his claim
statement with the Tribunal.
3. Notice was sent to Shri Ishwar Singh by registered
post on 03.12.2012, calling upon him to file claim statement
before the Tribunal on or before 02.01.2013. This notice
was sent to him through the union, at P-2/624, Sultanpuri,
Delhi, the address provided by the appropriate Government
in order of reference. Neither the claimant nor the union
responded to the notice, so sent.
4. Since none came forward on behalf of the claimant
to file his claim statement, fresh notice was sent to him by
registered post on 02.01.2013 calling upon him to file claim
statement before the Tribunal on 29.01.2013. Notice was
transmitted to the claimant by registered post on 31.01.2013
asking him to file his claim statement on or before
20.02.2013. Lastly, notice dated 22.02.2013 was sent by
registered post commanding the claimant to file his claim
statement before the Tribunal on or before 22.03.2013.
Neither the postal articles, referred above, were received
back nor was it observed by the Tribunal that postal
services remained affected in the period, referred above.
Therefore, every presumption lies in favour of the fact
that the above notices were served upon the claimant.
Despite service of these notices, claimant opted to abstain
away from the proceedings. No claim statement was filed
on his behalf.
5. Since onus of the question referred for
adjudication was there on the Corporation, it was called
upon to file its response to the reference order. Corporation
filed its response, pleading therein that the dispute was
not properly espoused by the union, hence liable to be
rejected. It further asserted that the dispute has been
raised at a belated stage, hence it became stale.
The Appropriate Government cannot refer such a dispute
for adjudication, as it has become stale. The dispute is
liable to be rejected on this count also, claims the
Corporation.
6. The Corporation projects that claimant was
getting overtime allowance @ Rs.625.00 upto a maximum
of 50 hours in a month in accordance with circular dated
15.03.1997. For work performed on Sundays and holidays,
the chowkidars gets compensatory leave in lieu thereof,
hence not entitled to overtime allowance. Chowkidars are
entitled to 15 days casual leave, 3 national holidays and 6
other holidays of their choice in every calendar year. Their
normal duty hours are 10 hours per day and previously
chowkidars were entitled to 24 hours rest (one day) in
fortnight. Now, a chowkidar is getting overtime allowance
for 100 hours per month in accordance with circular dated
09.05.2011. Details of overtime allowance granted to the
claimant from June, 88 to March, 2013 are annexed as
Annexure C with the response. In view of these facts,
claimant is not entitled to any relief, claims the corporation.
7. Arguments were heard at the bar. None came
forward on behalf of the claimant to advance arguments.
Shri Umesh Gupta, authorized representative, assisted by
Ms. Jaishri, School Inspector, raised submissions on behalf
of the Corporation. I have given my careful considerations
to the arguments advanced at the bar and cautiously
perused the record. My findings on issues involved in the
controversy are as follows:
8. At the outset, it has been argued that the dispute
has not acquired status of an industrial dispute since it
has not been validly espoused by the union. For an
answer, definition of the term industrial dispute is to be
construed. For sake of convenience, definition of the term
“industrial dispute”, as defined by section 2(k) of the
Industrial Disputes Act, 1947 (in short the Act).
“(k) “Industrial dispute” means any dispute or
difference between employers and employers, or
between employers and workmen, or between
workmen and workmen, which is connected with
the employment or non-employment or the terms
of employment or with the conditions of labour,
of any person”.
9. The definition of “industrial dispute” referred
above, can be divided into four parts, viz. (i) factum of
dispute, (2) parties to the dispute, viz.(a) employers and
employers, (b) employer and workmen, or (c) workmen
and workmen, (3) subject matter of the dispute, which
should be connected with –(i) employment or non-
employment, or (ii) terms of employment, or (iii) condition
of labour of any person, and (4) it should relate to an
“industry”.
10. The definition of “industrial dispute” is worded
in very wide terms and unless they are narrowed by the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5231
meaning given to word “workman” it would seem to
include all “employers”, all “employments” and all
“workmen”, whatever the nature or scope of the
employment may be. Therefore, except in the case where
there can be a dispute between the employers and
employers and workmen and workmen, one of the parties
to an industrial dispute must be an employee or a class of
employees. The first point, therefore, to be noted, perhaps
self evident, is that the phrase “employer and workmen”,
the plural may include singular on either side or any
permutation of singular or plural, the masculine including
the feminine. In order, therefore, to determine as to whether
a controversy or difference or a dispute is an “an industrial
dispute” or not, it must first be determined whether the
workman concerned or workmen sponsoring his cause
satisfy the conditions of clause (s) of section 2 of the Act.
Here in the case, the Corporation does not dispute that
the claimant is workman within the meaning of clause(s)
of section 2 of the Act.
11.The Apex Court put gloss on the definition of
“industrial dispute” in Dimakuchi Tea Estate [1958 (1) LLJ
500] and ruled that the expression “any person” in clause
(k) of section 2 of the Act must be read subject to such
limitation and qualification as arise from the context, the
two crucial limitations are (i) the dispute must be a real
dispute between the parties to the dispute (as indicated in
the first two parts of the definition clause) so as to be
capable of settlement or adjudication by one party to the
dispute giving necessary relief to other, and (2) the person
regarding whom the dispute is raised must be one for
whose employment, non employment, terms of employment
or conditions of labour, as case may be, the parties dispute
for a direct or substantial interest. Where workman raised
a dispute as against their employment, the person
regarding whose employment, non-employer, terms of
employment or conditions of labour, the dispute is raised
need not be strictly speaking “workman” within the
meaning of the Act, but must be one in whose employment,
non-employer, terms of employment, or conditions of
labour the workmen as a class have a direct or substantial
interest. The observations made by the Apex Court are to
be extracted thus:
“We also agree with the expression “any person”
is not co extensive with any workman, particular
or otherwise, equal with other, that the crucial
test is one of community of interest and the person
regarding whom the dispute is raised must be
one in whose employment, non-employment,
terms of employment, conditions of labour (as
the case may be) the parties to the dispute have
a direct or substantial interest. Whether such
direct or substantial interest has been established
in a particular case will depend on its facts and
circumstances.”
12. In Kyas Construction Company (Pvt.) Ltd. [1958
(2) LLJ 660] the Apex Court ruled that an industrial dispute
need not be a dispute between the employer and his
workman and that the definition of the expression
“industrial dispute” is wide enough to cater a dispute
raised by the employer’s workman with regard to non-
employment of others, who may not be employed as
workman at the relevant time. The Apex Court in Bombay
Union of Journalist [1961 (II) LLJ 436] has observed that
in each case in ascertaining whether an individual dispute
has acquired the character of an industrial dispute, the
test is whether at the date of reference, the dispute was
taken up as submitted by the union of the workmen of the
employer against whom, the dispute is raised by an
individual workman or by an appreciable number of
workmen. In order, therefore, to convert an individual
dispute into an industrial dispute, it has to be established
that it has been taken up by the union of employees of the
establishment or by an appreciable number of the
employees of the establishment. As far as union of the
workmen of establishment itself is concerned, the problem
of espousal by them generally presents little difficulty,
since such workmen who are members of such unions
generally have a continuity of interest with an individual
employee who is one of their fellow workman. But difficulty
arise when the cause of a workman, in a particular
establishment is sponsored by a union which is not of the
workmen of that establishment but is one of which
membership is open to workmen of their establishment as
well as in that industry. In such a case a union which has
only microscopic number of the workmen as its member,
cannot sponsor any dispute arising between the workmen
and the management. A representative character of the
union has to be gathered from the strength of the actual
number of co-workers sponsoring the dispute. The mere
fact that a substantial number of workmen of the
establishment in which the concerned workman was
employee were also members of the union would not
constitute sponsorship. It must be shown that they were
connected together and arrived at an understanding by a
resolution or by other means and collectively submitted
the dispute.
13.The expression “industrial disputes” has been
construed by the Apex Court to include individual
disputes, because of the scheme of the Act. In Raghu
Nath Gopal Patvardhan [1957(1) LLJ 27] the Apex Court
ruled as to what dispute can be called as an industrial
dispute. It was laid thereon that (1) a dispute between the
employer and a single workman cannot be an industrial
dispute, (2) it can not be per-se be an industrial dispute
but may become if it is taken up by a trade union or a
number of workmen. In Dharampal Prem Chand [1965 (1)
LLJ 668] it was commanded by the Apex Court that a
dispute raised by a single workman cannot become an
industrial dispute unless it is supported either by his union
or in the absence of a union by substantial number of
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[PART II—SEC. 3(ii)]
workmen. Same law was laid in the case of Indian Express
Newspaper (Pvt.) Limited [1970 (1) LLJ 132]. However in
Western India Match Company [1970 (II) LLJ 256], the
Apex Court referred the precedent in Drona Kuchi Tea
Estate’s case [1958 (1) LLJ 500] and ruled that a dispute
relating to “any person becomes a dispute where the
person in respect of whom it is raised is one in whose
employment, non employment, terms of employment or
conditions of labour, the parties, dispute for a direct or
substantial interest”.
14. What a substantial or considerable number of
workmen would be in a given case, depend on particular
facts of the case. The fact that an “industrial dispute”, is
supported by other workmen will have to be established
either in the form of a resolution of the union of which
workman may be member or of the workmen themselves
who support the dispute or in any other manner. From the
mere fact that a general union, at whose instance an
“industrial dispute” concerning an individual workman is
referred for adjudication, has on its roll a few of the workmen
of the establishment as its members, it cannot be inferred
that the individual dispute has been converted into an
“industrial dispute”. The Tribunal has therefore, to
consider the question as to how many of the fellow
workman actually espoused the cause of the concerned
workman by participating in the particular resolution of
the Union. In the absence of a such a determination by
the Tribunal, it cannot be said that the individual dispute
acquired the character of an industrial dispute and the
Tribunal will not acquire jurisdiction to adjudicate upon
the dispute. Nevertheless, in order to make a dispute an
industrial dispute, it is not necessary that there should
always be a resolution of substantial or appreciable number
of workmen. What is necessary is that there should be
some express or collective will of a substantial or an
appreciable member of the workmen treating the cause of
the individual workman as their own cause. Law to this
effect was laid in P.Somasundrameran [1970 (1) LLJ 558].
15. It is not necessary that the sponsoring union is
a registered trade union or a recognized trade union. Once
it is shown that a body of substantial number of workmen
either acting through a union or otherwise had sponsored
the workman’s cause, it is sufficient to convert it into an
industrial dispute. In Pardeep Lamp Works [1970 (1) LLJ
507] complaints relating to dispute of ten workmen were
filed before the Conciliation Officer by the individual
workmen themselves. But their case was subsequently
taken up by a new union formed by a large number of co-
workmen, if not a majority of them. Since this union was
not registered or recognized, the workmen elected five
representatives to prosecute the cases of ten dismissed
workmen. Thus cases of the dismissed workmen were
espoused by the new union, yet unregistered and
unrecognized. The Apex Court held that the fact that these
disputes were not taken up by a registered or recognized
union does not mean that they were not “industrial
dispute”.
16. It is not expedient that same union should remain
incharge of that dispute till its adjudication. The dispute
may be espoused by the workmen of an establishment,
through a particular union for making such a dispute an
“industrial dispute”, while the workman may be
represented before the Tribunal for the purpose of section
36 of the Act by a member of executive or office bearer of
altogether another union. The crux of the matter is that the
dispute should be a dispute between the employer and
his workmen. It is not necessary that the dispute must be
espoused or conducted only by a registered trade union.
Even if a trade union ceases to be registered trade union
during the continuance of the adjudication proceedings
that would not affect the maintainability of the order of
reference. Law to this effect was laid by the High Court of
Orissa in Gammon India Limited [1974 (II) LLJ 34]. For
ascertaining as to whether an individual dispute has
acquired character of an individual dispute, the test is
whether on the date of the reference the dispute was taken
up as supported by the union of the workmen of the
employer against whom the dispute is raised by the
individual workman or by an appreciable number of the
workman. In other words, the validity of the reference of
an industrial dispute must be judged on the facts as they
stood on the date of the reference and not necessarily on
the date when the cause occurs. Reference can be made to
a precedent in Western India Match Co.Ltd. [1970 (II) LLJ
256].
17. Here in the case, not even an iota of facts are
brought over the record to the effect that the union took
up the cause of the claimant as their own. It is also not
shown that the members of the union had shown their
collective will in favour of the cause of the claimant. Thus
it is evident that there is a complete vacuum of facts to the
effect that the union espoused the cause of the claimant.
Resultantly there is no material to conclude to the effect
that the dispute acquired status of an industrial dispute.
The reference is liable to be answered against the claimant
on that score.
18. Next count of attack made by the Corporation
that the dispute was raised by the claimant after 13 years,
which frustrates the relief in his favour. Section 10 (1) of
the Act does not prescribe any period of limitation for
making reference of the dispute for adjudication. The
words ‘at any time’ used in sub-section (1) of section 10 of
Act does not admit of any limitation in making an order of
reference. Law of limitation, which might bar any Civil
Court from giving remedy in respect of lawful rights, cannot
be applied by Industrial Tribunals. However, policy of
industrial adjudication is that stale claim should not be
generally encouraged or allowed unless there is
satisfactory explanation for delay. In Shalimar Works Ltd.
[1959 (2) LLJ 26], the Apex Court pointed out that though
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5233
there is no limitation prescribed in making reference of the
dispute to Industrial Tribunal, even so, it is only reasonable
that disputes should be referred as soon as possible after
having arisen and on failure of conciliation proceedings.
In Western India Match Company (1970 (2) LLJ 256) the
Apex Court observed that in exercising its discretion,
Government will take into account time which has lapsed
between its earlier decision and the date when it decides
to consider it in the interest of justice and industrial peace
to make the reference for adjudication. Same view was
taken in Mahabir Jute Mills Ltd. (1975 (2) LLJ 326). In
Gurmail Singh (2000 (1) LLJ 1080) Industrial Adjudicator
dismissed the reference on the ground that there was delay
of 8 years in raising the dispute, which delay was condoned
by the Apex Court and it was ordered that the workman
would not be entitled to any back wages for the period of
8 years but would be entitled to 50% of wages from the
date it raised the dispute till the date of his reinstatement.
In Prahalad Singh (2000 (2) LLJ 1653), the Apex Court
approved the award of the Tribunal in not granting any
relief to the workman who preferred the claim after a period
of 13 years without any reasonable or justifiable grounds.
In Nedungadi Bank Ltd. (2002 (2) SCC 4) a lapse of seven
years in raising the dispute was held to be a factor to
refuse the relief. The Apex Court ruled that the appropriate
Government has to exercise its powers of referring the
dispute in a reasonable manner. Delay of seven years made
the Court to conclude that there was no dispute existing
or apprehended when decision was taken to refer it for
adjudication. Same view was taken in Haryana State Co-
operative Land Development Bank (2005 (5) S.C.C. 91).
From above decisions, it can be said that the law relating
to delay in raising or reference of dispute is bereft of any
principles, which can be easily comprehended by the
litigants.
19. Claimant raised the dispute in respect of overtime
allowance paid to him with effect from 01.01.1997. Thus, it
is emerging over the record that the claimant had raised
the dispute after a long gap of 13 years. No explanation is
offered for this inordinate delay. It appears that there was
no industrial dispute in existence or could be even said to
have been apprehended in the year 2012, when the
appropriate Government applied its mind to the facts of
the present controversy.
20. Corporation contests the dispute on the count
that no notice of demand was served on it prior to raising
a dispute before the Conciliation Officer. These facts also
remained uncontroverted. The object of the Act is to
protect workman against victimization by the employer
and ensure termination of industrial dispute in a peaceful
manner. The Act, however, does not provide for any set of
social and economic principles for adjustment of conflicting
interests. Such norms have been evolved and devised by
industrial adjudication, keeping in view the social and
economic conditions, the needs of the workmen, the
requirement of the industry, social justice, relative interests
of the parties and common good. These norms have given
rights to the industrial employees what may be called
industrial rights, as such rights may not be available at
common law. Disputes as to the conditions of employment
can be resolved by resorting to a technique known as
collective bargaining. This tool is resorted to between an
employer or group of employers and a bonafide labour
union. Policy behind this is to protect workmen as a class
against unfair labour practices. What imparts to the dispute
of a workman the character of an “industrial dispute” is
that it affects the right of the workmen as a class.
21. An industrial dispute comes into existence when
the employer and the workman are at variance and the
dispute/difference is connected with the employment or
non-employment, terms of employment or with conditions
of labour. In other words, dispute or difference arises when
a demand is made by the workman on the employer and it
is rejected by him and vice versa. In Sindhu Resettlement
Corporation Ltd.(1968(1) LLJ 834), the Apex Court has held
that mere demand, asking the appropriate Government to
refer a dispute for adjudication, without being raised by
the workmen with their employer, regarding such demand,
cannot become an industrial dispute. Hence, an industrial
dispute cannot be said to exist until and unless a demand
is made by the workman or workmen on the employer and
it has been rejected by him. In Fedders Lloyd Corporation
Pvt. Ltd.(1970 Lab.I.C.421), High Court of Delhi went a
step ahead and held that “... demand by the workman must
be raised first on the management and rejected by it, before
an industrial dispute can be said to arise and exist and that
the making of such a demand to the Conciliation Officer
and its communication by him to the management, who
rejected the demand, is not sufficient to constitute an
industrial dispute.”
22. The above decision was followed by Orissa High
Court in Orissa Industries Pvt. Ltd. (1976 Lab.I.C. 285) and
Himachal Pradesh High Court in Village Paper Pvt. Ltd.(1993
Lab.I.C. 99). However, the Apex Court in Bombay Union of
Journalists (1961 (2) LLJ 436) had ruled that an industrial
dispute must be in existence or apprehended on the date
of reference. If, therefore, a demand has been made by the
workman and it has been rejected by the employer before
the date of reference, whether direct or through the
Conciliation Officer, it would constitute an industrial
dispute. In Shambhunath Goyal (1978(1) LLJ 484), the
Apex Court appreciated facts that the workman had not
made a formal demand for his reinstatement in service.
However, he had contested his dismissal before the
Enquiry Officer and claimed reinstatement. Against the
findings of the Enquiry Officer, he preferred an appeal to
the Appellate Authority, claiming reinstatement on the
ground that his dismissal was bad in law. Then again, he
claimed reinstatement before the Conciliation Officer in
the course of conciliation proceedings, which was
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
contested by the employer. Appreciating all these facts,
the Apex court inferred that there was impeccable evidence
that the workman had persistently demanded
reinstatement, rejection of which brought an industrial
dispute into existence.
23. In New Delhi Tailor Mazdoor Union (1979(39)
FLT 195), High Court of Delhi noted that Shambunath
Goyal had not overruled Sindhu Resettlement Pvt. Ltd.
But it had distinguished it on facts. It was also pointed
out that decision of three Judges bench in Sindhu
Resettlement Pvt. Ltd. could not have been overruled by
two Judge bench in Shambunath Goyal. The High Court
concluded that decision in Sindhu Resettlement Pvt. Ltd.,
in case of any conflict between the two decisions, must
prevail. The High Court held that making of the demand
by the workman on the management was sine qua non for
giving rise to an industrial dispute.
24. The High Court of Madras in Management of
Needle Industries (1986(1) LLJ 405) has held that dispute
or difference between management and the workman,
automatically arises when the workman is dismissed from
service. His dismissal per se creates a dispute or difference
between the management and the workman. The Court
further observed that “it is nowhere stipulated in the Act,
particular in section 2(k), that existence of the dispute as
such is not enough but then there should be a demand by
the workman on the management to give rise to an
industrial dispute”. However, this decision appears to be
inconsistent with the ratio of decision in Bombay Union
of Journalists(supra) and Sindhu Resettlement (supra). No
doubt, for existence of an industrial dispute, there should
be a demand by the workman and refusal to grant it by the
management. However, a demand should be raised, cannot
be a legal notion of fixity and rigidity. Grievances of the
workman and demand for its redressal must be
communicated to the management. Means and mechanism
of the communication adopted are not matters of much
significance, so long as demand is that of the workman
and it reaches the management. Reference can be made to
the precedent in Ram Krishna Mills Coimbatore Ltd. (1984
(2) LLJ 259).
25. The Act nowhere contemplates that the industrial
dispute can come into existence in any particular, specific
or prescribed manner nor there is any particular or
prescribed manner in which refusal should be
communicated. For an industrial dispute to come into
existence, written claim is not sine qua non. To read into
the definition, requirement of written demand for bringing
an industrial dispute into existence would tantamount to
rewriting the section, announced the Apex Court in
Shambunath Goyal(supra). In other words, oral demand
and its rejection will as much bring into existence an
industrial dispute, as written one. If facts and
circumstances of the case show that the workman had
been making a demand, which the management had been
refusing to grant, it can be said that there was an industrial
dispute between the parties.
26. Since the claimant had not come forward to
project that demand notice was served on the corporation,
under these circumstances, stand taken by the Corporation
is to be believed. Corporation projects that no notice of
demand was served on it, before industrial dispute was
raised before the Conciliation Officer. Thus, it is emerging
over the record that it has not been established that
demand was raised on the corporation, which was rejected
by it and as such, dispute has not acquired status of an
industrial dispute.
27. Turning to facts presented by the Corporation,
it emerges that the Corporation takes 10 hours duty from
Chowkidars. Keeping in view the nature of duties
performed, the Corporation was paying intermittent
allowance to Chowkidars for performing more than
10 hours duty. Allowance was paid @ Rs.130.00 per month
for performance of duty upto 12 hours, Rs.180.00 per month
for duties performed for more than 12 hours but upto
16 hours and Rs.190.00 per month for performing duties
more than 16 hours a day. Workers union agitated the
issue and demanded overtime allowance in lieu of
intermittent allowance. On the basis of the resolution, the
Corporation, vide its decision dated 15.03.1997 decided to
pay overtime allowance to the maximum limit of 50 hours.
The said allowance was paid @Rs.625.00 per month.
Workers union further demanded enhancement of maxima
limit of overtime allowance and in consideration of the
said demand, the Corporation started paying overtime
allowance with a cap of 100 hours a month. Now, the
Corporation is paying overtime allowance to Chowkidars at
Rs.1250.00, in pursuance of Office Order dated 09.05.2011.
28. Annexure C, when scanned, highlights that from
January 98 till March 2011, overtime allowance was paid
to the claimant @ Rs.625.00 per month. From April 2011 till
March 2013, overtime allowance has been paid to the
claimant @ 1250.00 per month. Therefore, it is emerging
over the record that overtime allowance is being paid to
the claimant in accordance with the circulars, issued by
the Corporation from time to time.
29. In view of the above reasons, it is evident that
the action of the Corporation in paying overtime allowance
to the claimant @ Rs.625.00 per month till March 2011 and
thereafter Rs.1250.00 till date is in accordance with the
circulars issued from time to time. Claimant is not entitled
to overtime allowance more than the amount referred
above. Resultantly, action of the Corporation is found to
be justified. No relief is available to the claimant. An award
is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 20.12.2013
DR. R.K.YADAV, Presiding Officer
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5235
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New Delhi, the 3rd July, 2014
S.O.
2001.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 25/
2012) of the Central Government Industrial Tribunal/Labour
Court Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Director, Directorate of Rice
Research, Hyderabad and their workman, which was
received by the Central Government on 26/06/2014.
[No. L-42011/203/2011-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present :
Smt. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 18th day of March, 2014
INDUSTRIAL DISPUTE No. 25/2012
Between:
Sri R. Yellaiah & 6 others,
H.No.1-9-87/1,
Rajendra Nagar,
Hyderabad
... Petitioner
AND
The Director,
Directorate of Rice Research,
Post: Rajendranagar,
Hyderabad – 500 030
... Respondent
APPEARANCES:
For the Petitioner
: M/s. A. Sarojana & K. Vasudeva
Reddy, Advocates
For the Respondent : Smt. C. Vani Reddy, Advocate
AWARD
The Government of India, Ministry of Labour by its
order No. L-42011/203/2011-IR(DU) dated 27.2.2012 referred
the following dispute under section 10(1)(d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of Directorate of Rice Research and their
workman. The reference is,
SCHEDULE
“Whether the action of the management of
Director, Directorate of Rice Research, Hyderabad
in not giving the permanent status of employees
with all consequential benefits to Shri R. Yellaiah
& 6 others(list enclosed), Temporary Status
casual labours, is legal and justified? What relief
the workmen are entitled to?”
The reference is numbered in this Tribunal as I. D.
No.25/2012 and notices were issued to the parties
concerned.
2. Case stands posted for filing of Claim Statement
and documents by Petitioner.
3. At this stage, Petitioner called absent. No
representation. Though notice has been issued and served
on the Petitioner time and again, Petitioner is not taking
interest in the proceedings and making no claim before the
court. In the circumstances, taking that there is no claim to
be made by the Petitioner, ‘Nil’ Award is passed.
Award is passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 18th
day of March, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
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5236
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
New Delhi, the 7th July, 2014
S.O. 2002.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 84/2011)
of the Central Government Industrial Tribunal/Labour
Court Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Ministry of Human Resources
Development & Others and their workman, which was
received by the Central Government on 01/07/2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Monday, the 23rd June, 2014
PRESENT : K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 84/2011
(In the matter of the dispute for adjudication under clause
(d) of sub-section (1) and sub-section 2(A) of Section 10
of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of National Institute of Technical
Teachers Training and Research Centre (NITTT&RC) and
their workman).
BETWEEN :
Sri D. Shankarlal
: 1st Party/Petitioner
AND
1. Union of India
Ministry of Human
: 2nd Party/1st Respondent
Resources Development
New Delhi
2. The Chairman,
: 2nd Party/2nd Respondent
Board of Directors,
NITTT&RE, Taramani,
Chennai
3. The Director
: 2nd Party/3rd Respondent
NITTT&RC, Taramani,
Chennai
4. The Administrative
: 2nd Party/4th Respondent
Officer NITTT&RC,
Taramani, Chennai
AWARD
APPEARANCE :
For the 1st Party/
: M/s P. Muthukumarasamy,
Petitioner
Advocates
For the 2nd Party/
: Set Ex-parte
1st Respondent
For the 2nd Party/2nd
: M/s Sai Raaj Associates,
Respondent
Advocates
For the 2nd Party/3rd
: M/s Sai Raaj Associates,
Respondent
Advocates
For the 2nd Party/4th :
M/s Sai Raaj Associates,
Respondent
Advocates
This is an Industrial Dispute taken for adjudication
on the file under Sub-Section 2A of Section-10 of the
Industrial Disputes Act, 1947 (as amended by Act-24 of
2010 w.e.f. 15.09.2010).
2. The averments filed by the petitioner in the Claim
Statement in brief are these:
The petitioner is a B.Com Degree Holder and has
completed his Diploma in Refrigeration and Air-
Conditioning Course. The National Institute of Technical
Teachers Training and Research Centre, Chennai
represented by Respondents 2 to 4 trains Technical
Teachers all over India. The Institute had 85 Air-
Conditioners in the year 2003 in which year the petitioner
was appointed as NMR Worker. The petitioner was
maintaining the Air-Conditioners of the Institute after his
appointment. Earlier the work was done on contract basis.
The petitioner who had joined the Institute on 10.07.2003
had continued his work in the Institute till date. Now there
are around 200 Air-Conditioners in the Institute. After
appointment of the Third Respondent, he was not
renewing the work of the petitioner in spite of the proposal
of the Junior Engineer. It is learnt by the petitioner that the
Third Respondent is trying to engage private agency on
contract basis to maintain the Air-Conditioners. The
petitioner, after his appointment in the year 2003 was
working even on Saturdays and Sundays and was called
for different programs and events. His engagement was
continuously renewed for every 90 days. He had been
working for around 250 days annually. The petitioner was
not allowed to continue in his job after 13.08.2010. The
petitioner was under the legitimate expectation that he
would be permanently appointed in the Institute since he
has been continuously working for more than 7 years.
The petitioner had sent a representation requesting to
appoint him permanently and to renew his appointment.
He had also filed a petition before the Central
Administrative Tribunal, Chennai. Since it was suggested
that this Tribunal is the proper forum the petitioner has
withdrawn the petition before the Central Administrative
Tribunal. Several other workers including Nagappan who
were appointed as NMRs in the Institute were given
permanent appointment subsequently. The petitioner was
discriminated by refusing to give permanent appointment
to him. An order may be passed directing the Third
Respondent to reinstate the petitioner in service and
regularize his appointment.
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3. The Respondents have filed Counter Statement
contending as follows:
The averments and allegations made by the
petitioner in his Claim Statement are denied and he is put
to strict proof of the contents of the same. The dispute is
not maintainable before this Tribunal since the appropriate
Government for the Institute would be only the State
Government and not the Central Government. The National
Institute of Technical Teachers and Research Centre is a
Society registered under the Societies Registration Act. It
has been imparting technical education and training to
Engineering and Polytechnic Teachers and undertaking
research in relation to engineering education. It is an
Autonomous Body and employs persons on the basis of
recruitment and service rules framed by the Institute. Any
vacancies are filled in by calling for suitable candidates
by placing advertisements and after interview. When there
is temporary need for engagement of a person he is engaged
on ad-hoc basis for certain fixed period as NMR worker.
He would be told that the service would come to an end
after completion of the period. The allegation that the Third
and Fourth Respondents have refused to extend the
service of the petitioner is not correct. The petitioner used
to be engaged only for a specified period. When there
was a review in respect of the petitioner’s request for
extension of his engagement on NMR basis it was decided
to entrust the civil and electrical works of the Institute on
contractual basis to empanelled Contractors so as to
improve the efficiency. Since there was no sanctioned
post it was decided not to extend the services of the
petitioner. It is incorrect to state that the petitioner was
engaged continuously for 250 days in a year. He used to
be appointed for a period of 90 days and completion of the
period the service of the petitioner will become
automatically terminated. Each engagement was a fresh
engagement and the petitioner cannot claim to have worked
continuously in the Institute. As the service of the
petitioner stood terminated automatically on completion
of the period of engagement there was no question of
conducting any domestic enquiry. The case of the
petitioner that he had worked in the Institute continuously
from 2003 including on Saturdays and Sundays and he
was maintaining the Air-Conditioners economically and
efficiently is not correct. Being an autonomous institute
funded by the Ministry of Human Resources, the Institute
is bound by the rules and regulations of recruitment.
Nagappan referred to in the Claim Statement of the
petitioner was appointed as Technician Grade-III by
following due process of recruitment procedure. The
petitioner is not entitled to any relief.
4. The evidence in the case consists of the oral
evidence of WWs 1 to 3 and MW1 and also documents
marked as Exts.W1 to Ext.W47 and Ext.M1 and Ext.M2.
5. The points for consideration are:
(i) Whether the petitioner is entitled to the relief
of reinstatement in the service of the National
Institute of Technical Teachers Training and
Research Centre?
(ii) Whether the petitioner is entitled to
regularization in service?
(iii) If not what if any is the relief to which the
petitioner is entitled?
The Points
6. The petitioner who is a B.Com. Degree Holder
and is a Diploma Holder in Refrigeration and Air-
Conditioning Course has claimed that he was appointed
in the NITTE & RC in the year 2003 on Non-Muster Roll
basis, that his engagement was renewed every 90 days,
that he had worked around 250 days every year and has
continued to work so until 13.08.2010 from which date he
was denied work without any Show Cause Notice without
assigning any reason and without any enquiry. He has
claimed that denial of work to him is illegal and that he is
entitled to reinstatement and also for regularization in the
permanent post. According to him he was working as AC
Mechanic and was maintaining all the Air-Conditioning
machines of the Institution during the period. According
to Respondents 2 to 4 having been engaged on Non-
Muster Roll basis the petitioner is not entitled to
reinstatement or any other benefits not to state anything
about regularization. According to the Respondents 2 to
4, for effective management of Air-Conditioners they have
given the work to empanelled Contractors.
7. Though a preliminary objection is seen raised by
Respondents 2 to 4 in their Counter Statement that the
appropriate Government in respect of the institute in
question is the State Government and not the Central
Government and therefore the dispute is not maintainable
before this forum, this plea has been subsequently given
up by them.
8. In the Counter Statement, there is no specific
denial of the case that the petitioner had worked in the
Institute in question for some time. However, it is not
specifically admitted for which period the petitioner had
been working. The claim of the petitioner that he had been
working for more than 240 days is denied in the Counter
Statement. What is stated is that even according to the
petitioner his engagement was for a specified period
consequent to which the engagement would become
automatically terminated on the expiry of the period. As
seen from the Counter Statement during July 2010 the
Respondents had decided to entrust various works
through empanelled Contractors and the petitioner was
also given an opportunity to empanel as a Contractor in
the institute but he had not used the opportunity.
5238
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
9. The evidence and documents available would
clearly show that the petitioner had been working in the
Institute and doing the work of maintaining the Air-
Conditioners of the Institute for quite a long time. It is also
clear from the documents produced that he is a B.Com.
Degree Holder and is having Diploma in Refrigeration and
Air-Conditioning Course. Ext.W1 is the certificate of
Diploma and Ext.W2 is his Degree Certificate. That the
petitioner is having this qualification is not challenged by
the Respondents also.
10. The petitioner has stated in his affidavit of
examination that he has worked continuously for more
than 240 days since the year 2003 for 7 years. He has
produced copy of the proceedings of several engagements
as NMR in the Institute starting from 10.07.2003. He has
stated that because of his long engagement he could not
have been thrown out from the Institute without any Show
Cause Notice and without any enquiry.
11. Apart from Ext.W3 showing engagement from
10.07.2003, Ext.W6 to Ext.W9, Ext.W10 to Ext.W20,
Ext.W24, Ext.W26 to Ext.W35, Ext.W37 and Ext.W38 are
all proceedings of engagement as NMR. However, in none
of these documents the name of the petitioner is referred
to as a person to be appointed. All these proceedings are
issued by the Principal stating that sanction is accorded
for engagement of one person on NMR basis as AC
Technician. Even though the petitioner is not named as
the person appointed on the basis of these proceedings
and he had not produced any order engaging him as AC
technician based on the proceedings, it is very much clear
that he himself was the person continuing as AC Technician
on the basis of the different proceedings of the Principal.
Ext.W9 is the copy of the submission given to the by the
petitioner to the Director of the Institute claiming
Rs. 1,050 towards arrears of wages for 150 days starting
from 01.04.2004 to 31.10.2004. There is another such claim
marked as Ext.W21 for Rs. 2,280 for 228 days starting
from 01.04.2007 to 31.12.2007. Ext.W44 is the calculation
sheet for the claim of arrears for different periods starting
from July 2003 and ending in September 2005. The
authenticity of these claims are not disputed by the
Respondents.
12. Apart from the above documents there is the
evidence given by none other than two teachers of the
Institute examined as WW2 and WW3 with supporting
documents. WW2 is the Assistant Professor in the
Electrical Engineering Department of the Institute. She
has stated that during 2007-2009 she was in-charge of
A/C maintenance of the Institute. She has further deposed
that during this period the petitioner was working under
her. A junior engineer who was under her control was the
one who was maintaining the Attendance Register in
respect of the petitioner. Ext.W46 is the copy of the
Attendance Register produced on behalf of the petitioner.
WW2 has stated that pages 86 to 126 in this contain her
attestation. In certain sheets she has endorsed that the
petitioner had been working on Saturdays and Sundays
also. This evidence of WW2 is not challenged in Cross-
Examination. WW3 is the Head of the Department of
Electrical and Electronics in the department. This witness
has stated that the petitioner was working in the Institute
from 2003 till his termination. He has deposed that the
petitioner was in charge of A/C maintenance and was
regularly coming to the Institute and was working even
on certain Saturdays and Sundays. In Ext.W46, pages 129
to 142 and 143 to 146 are attested by him. Ext.W23 is the
Experience Certificate issued by WW2. Ext.W25 is the
copy of the submission to the Director given by WW2 to
extend the NMR engagement for maintenance of AC units.
Though the name of the person then working as AC
Mechanic is not given it is clear that the person referred is
the petitioner himself since he was the one who was
working in the capacity throughout.
13. Ext.W46 and the proceedings of the engagement
would show that during the period from July 2003 to June
2010 the petitioner had worked more than 240 days in each
year. It is true that the engagement was either for 90 days
or for 60 days but it is very much clear that the engagement
was extended again and again till June 2010. Thus,
whatever is the nature of the engagement of the petitioner,
whether as casual or temporary or on daily wage basis, he
was working in the Institute throughout as AC Mechanic
and he was being paid by the Institute during the period
from July 2003 to June 2010. So definitely the petitioner is
a workman as defined in Section-2(s) of the ID Act.
14. It is clear from the contentions raised by
Respondents 2 to 4 that no notice of termination was given
to the petitioner. He was not given any benefits under
Section-25(f) of ID Act also. The claim of the petitioner is
that he having been terminated without any Show Cause
Notice, he is entitled to be reinstated in service. The case
that is put forth by the Respondents is that the
Institute has decided to give the work to empanelled
Contractors and accordingly, the work has been given to
them. It is apparent from this contentions of the
Respondents itself that the Institute has not been thinking
of permanently employing a person in the post in which
the petitioner was working. It is clear from the evidence of
WW2 and WW3 and also MW1 that the petitioner was
working in a sanctioned post itself. WW2 has deposed
that there is a permanent post of AC Mechanic in the
Institute. She has stated that earlier one Rajkumar was
working in the post. MW1 who is the Superintendent of
the Institute has stated that this Rajkumar was maintaining
Air-Condition machines prior to 2003 but he was dismissed
from service. It is also clear from the evidence that in
2008 an attempt has been made to fill up the post by the
recruitment procedure of the Institute. Ext.W45 is the
advertisement calling for application to the post. It is
admitted by MW1 also that application was called for.
According to the petitioner he was the only applicant to
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5239
the post but yet he was not selected for the post. There is
of course the evidence given by the petitioner only
regarding this. It is not known under what circumstances
his application was not considered or he was not selected
for the post. In any case it is apparent that the Institute
has invited applications for the post of AC Mechanic.
Ext.W47 is the recruitment service rules of the Institute
showing that Technician Grade-III also is one of the post.
As seen from Ext.W45 the application called for was for
the post of Tech Grade-III (AC Mechanic). All this make it
clear that there is a sanctioned post of AC Mechanic under
Technician Grade-III and someone had permanently
worked in the post earlier. The practice of the Institute
seemed to be to accommodate persons requiring technical
knowledge under Technician Grade-II. It is in this manner
the petitioner who is a Diploma Holder in Refrigeration
and Air-Conditioning was engaged for the maintenance
of Air-Conditioners in the Institute.
15. The Institute having so far not resorted to a
normal recruitment procedure to fill up the post, the
petitioner who is the workman who had worked in the
Institute for more than 240 days each year during the
period from July 2004 to July 2010 will be entitled to be
reinstated in service. Of course there is the contention of
the Respondents that an empanelled Contractor has been
engaged for this purpose. This is not an engagement as
per the procedure prescribed in Ext.W47. When the
Institute has decided to engage somebody for AC
maintenance again after termination of the petitioner, in
the normal course he was entitled to be engaged under
Section-25(H) of the Act. It is a baffling question why the
Institute has decided to engage a contractual agency for
the purpose. It is stated by WW2 in Ext.W25 is taken
into account the Institute must now be paying exorbitant
amount for the maintenance of the Air-Conditioners in the
Institute. In Ext.W25, WW2 has stated that if the annual
maintenance is given to external agencies, the approximate
cost of this will work to Rs. 10,00,000 per year
@ Rs. 5,000 per Air-Conditioning Unit. She has pointed
out that if an Electrical Assistant is hired he need be paid
@ Rs. 224 per day and his annual wage would work out to
Rs. 72,000 only. This was in the year 2008. The amount
payable to external agency in 2010 must have been far
higher than this. Yet the Respondents has resorted to
outsourcing of the work rather than filling the post by
normal recruitment procedure or allowing the petitioner to
continue the work until the post is filled up as per the
Recruitment Rules. The Institute and thereby the common
people must be losing lakhs of rupees on this account
alone. It would be far better if the post if filled up
permanently for the purpose of maintenance of the
Air-Conditioners in the Institute. Until then it is only
proper that the petitioner is allowed to continue the
work.
16. The petitioner has been claiming the relief of
not only reinstatement but also regularization in the post.
This is not a relief that could be granted to the petitioner.
The counsel for the Respondents has referred to the
decision of the Apex Court in SECRETARY, STAT OF
KARNATAKA AND OTHERS VS. UMA DEVI AND
OTHERS reported in AIR 2006 SCC 1806 in this respect.
The Apex Court has observed while considering the claim
of regularization by a group of persons who were appointed
on ad-hoc basis that it is not as if the person who accepts
an engagement either temporary or casual in nature is not
aware of the nature of his employment, that he accepts the
employment with eyes open and it would not be
appropriate to jettison the constitutional scheme of
appointment and to take the view that a person who has
temporarily or casually got employed should be directed
to be continued permanently. By doing so, it will be creating
another mode of public appointment which is not
permissible, it was stated. The Apex Court has further held
that when a person enters a temporary employment or
gets engagement as a Contractual or casual worker and
the engagement is not based on proper selection as
recognized by the relevant rules or procedure he is aware
of the consequences of the appointment being temporary,
casual or contractual in nature and such a person
cannot invoke the theory of legitimate expectation for being
confirmed in the post when an appointment to the post
could be made only by following proper procedure for
selection.
17. There is no case for the petitioner that he was
selected by proper procedure. It is admitted by him itself
that the Respondents have made an endeavour to fill up
the post in the normal procedure in 2008 by calling
applications for the post. The appointment of the petitioner
was always for a limited period though his term was
extended again and again. Only because of such extension
he could not have expected that he will be made permanent
in the post. The Respondents do not seem to have given
room for any such expectation to him. So the claim of the
petitioner for regularization in the post is only to be
rejected. If reinstated the petitioner will work in the
Institute in the same manner as he worked earlier. He will
not be entitled to any benefits due to a permanent
employee. If the Respondents are not inclined to reinstate
the petitioner in service they are at liberty to pay him
compensation which is fixed as Rs. 2,00,000.
18. In view of my discussion above, Respondents 2
to 4 are directed to reinstate the petitioner in service within
a month. In the alternative they are at liberty to pay him
compensation of Rs. 2,00,000 within a month. In default of
the payment of amount, it will carry interest @ 9% per
annum from the date of the award.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 23rd June, 2014).
K.P. PRASANNA KUMARI, Presiding Officer
5240
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Witnesses Examined:
For the 1st Party/
: WW1, Sri D. Shankarlal
Petitioner
WW2, Ms. G.A. Rathy
WW3, Sri S. Dhanasekaran
For the 2nd Party/
: MW1, Sri K. Sekar
Management
Documents Marked :
On the petitioner’s side
Ex. No.
Date
Description
Ex.W1
26.09.2008
Copy of the Diploma Certificate
Ex.W2
18.02.2000
Copy of the Degree Certificate
Ex.W3
10.07.2003
Copy of the proceedings of
engagement as NMR
Ex.W4
16.07.2003
Experience Certificate issued by
Cold Spot
Ex.W5
11.10.2003
Letter to prove for work in Saturday
and Sundays
Ex.W6
01.12.2003
Copy of the proceedings of
engagement as NMR
Ex.W7
15.03.2004
Copy of the proceedings of
engagement as NMR
Ex.W8
30.06.2004
Copy of the proceedings of
engagement as NMR
Ex.W9
08.11.2004
Arrears claimed from 1/4 to
31.10.2004 by the petitioner
Ex.W10 09.11.2004
Copy of the proceedings of
engagement as NMR
Ex.W11 10.03.2005
Copy of the proceedings of
engagement as NMR
Ex.W12 04.07.2005
Copy of the proceedings of
engagement as NMR
Ex.W13 07.11.2005
Copy of the proceedings of
engagement as NMR
Ex.W14 13.02.2006
Copy of the proceedings of
engagement as NMR
Ex.W15 26.05.2006
Copy of the proceedings of
engagement as NMR
Ex.W16 12.10.2006
Copy of the proceedings of
engagement as NMR
Ex.W17 08.02.2007
Copy of the proceedings of
engagement as NMR
Ex.W18 05.05.2007
Copy of the proceedings of
engagement as NMR
Ex.W19 20.08.2007
Copy of the proceedings of
engagement as NMR
Ex.W20 17.12.2007
Copy of the proceedings of
engagement as NMR
Ex.W21 10.01.2008
Arrears claimed from 1/4/2007 to
12/2000 by the petitioner
Ex.W22 10.03.2008
Experience certificate issued by the
Respondent
Ex.W23 19.03.2008
Experience certificate issued by the
Respondent
Ex.W24 03.04.2008
Experience certificate issued by the
Respondent
Ex.W25 27.06.2008
Recommendation to extend the
contract by the department head
Ex.W26 17.07.2008
Copy of the proceedings of
engagement as NMR
Ex.W27 10.10.2008
Copy of the proceedings of
engagement as NMR
Ex.W28 05.11.2008
Copy of the proceedings of
engagement as NMR
Ex.W29 19.01.2009
Copy of the proceedings of
engagement as NMR
Ex.W30 23.03.2009
Copy of the proceedings of
engagement as NMR
Ex.W31 11.05.2009
Copy of the proceedings of
engagement as NMR
Ex.W32 16.06.2009
Copy of the proceedings of
engagement as NMR
Ex.W33 03.07.2009
Copy of the proceedings of
engagement as NMR
Ex.W34 02.09.2009
Copy of the proceedings of
engagement as NMR
Ex.W35 09.11.2009
Copy of the proceedings of
engagement as NMR
Ex.W36 03.12.2009
Recommendation of the HOD for
extending contract
Ex.W37 17.12.2009
Copy of the proceedings of
engagement as NMR
Ex.W38 24.03.2009
Copy of the proceedings of
engagement as NMR
Ex.W39 19.08.2010
Copy of the representation by the
petitioner with proof of service
Ex.W40 08.10.2011
Copy of the petition before the
Assistant Labour Commissioner
Ex.W41 11.03.2011
Copy of the counter filed by the
Respondent
Ex.W42 28.03.2011
Copy of the reply filed by the
petitioner
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5241
Ex.W43 23.08.2011
Copy of the failure report
Ex.W44 -
Calculation sheet for the claim of
arrears demand by the petitioner
from the Respondent
Ex.W45 -
Advertisement 1/2008 call for
application to the post of AC
Mechanic
issued
by
the
Respondent’s institution
Ex.W46 01.08.2009
Copy Attendance Register
(Series) to 30.07.2010
Ex.W47 -
Technical Teachers Training
Institute (Southern Region)
Recruitment and Service Rules
On the Management’s side
Ex. No.
Date
Description
Ex.M1
-
Sanctioned strength and number of
vacant posts as on 31.03.2013 –
Teaching and Non-Teaching Posts
(Group A, B, C & D) as on 30.06.2013
Ex.M2
-
Technical Teachers Training
Institute Recruitment and Service
Rules.
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New Delhi, the 7th July, 2014
S.O. 2003.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D No. 148/
2006) of the Central Government Industrial Tribunal/Labour
Court, Hyderabad as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of SCCL and their workmen, which was
received by the Central Government on 07/07/2014.
[No. L-22013/1/2014-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT: SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 28th day of May, 2014
INDUSTRIAL DISPUTE L.C. No. 148/2006
Between:
Sri Mittapalli Kumara Swamy,
S/o Raya Bose,
C/o Smt. A. Sarojana, Advocate,
Flat No. G7, Ground Floor,
Rajeshwari Gayatri Sadan,
Opp: Badruka Jr. College for Girls,
Kachiguda, Hyderabad
... Petitioner
AND
1. The General Manager,
M/s. Singareni Collieries Company Limited,
Mandamarri Area,
Mandamarri, Adilabad District.
2. The Superintendent of Mines,
M/s. Singareni Collieries Company Limited,
SMG-3 Incline, Mandamarri Area,
Mandamarri, Adilabad District
... Respondents
APPEARANCES:
For the Petitioner
: M/s. A. Sarojana & K. Vasudeva
Reddy, Advocates
For the Respondent : M/s. P.A.V.V.S. Sarma & Vijaya
Laxmi Panguluri, Advocates
AWARD
This is a petition filed by Sri Mittapalli Kumara
Swamy the workman invoking Sec.2A(2) of the Industrial
Disputes Act, 1947 seeking for declaring the impugned
office proceeding No.P/MM/7/2/98/697 dated 4.3.1998
issued by the 1st Respondent as illegal and arbitrary, and
to set aside the same consequently directing the
Respondents to reinstate the Petitioner into service duly
granting all attendant benefits such as continuity of service
back wages, etc.
2. The averments made in the petition in brief are
as follows :
Petitioner was appointed as badli filler on 22.6.1990
and further he was promoted as coal filler on 21.12.1995.
From the date of appointment Petitioner was regular to his
duties till the year 1996. During which time Petitioner
suffered with illness and other family problems. While so,
5242
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
chargesheet dated 24.5.1997 was issued alleging that
Petitioner could work only for 35 days during the year
1996 and that it amounts to misconduct under company’s
Standing Orders No. 25.25. Thereafter a formal enquiry
was conducted wherein Petitioner was not given any valid
opportunity. The enquiry was a mere formality and the
Enquiry Officer submitted his report, basing on which the
impugned proceeding was issued dismissing the Petitioner
from service with effect from 6.3.1998 vide office order
dated 4.3.1998. The procedure of the enquiry was not
explained to the Petitioner though Petitioner is an illiterate.
Thus, Petitioner could not participate in the enquiry
effectively. The enquiry was conducted in the language
not known to the Petitioner which caused prejudice to the
Petitioner. None of the documents relied upon by the
Enquiry Officer was furnished to the Petitioner. The
Enquiry Officer has not followed the basic principles of
law, leave about the principles of natural justice. During
the enquiry Petitioner categorically pleaded that his
inability to perform the duties for not more than 35 musters
during 1996, was only on account of his illhealth and other
family problems. But, the same were not considered by
the Enquiry Officer while holding the charges as proved.
While issuing the impugned order the Disciplinary
Authority also did not consider the submissions made by
the Petitioner. Exclusively relied upon the findings of the
Enquiry Officer the impugned order was passed in a cryptic
manner. Petitioner is the only earning member of his family.
As a result of the impugned order he and his family
members are deprived of livelihood. Petitioner is not
employed elsewhere after the date of impugned order.
Hence, the petition.
3. Respondent filed his counter with the averments
in brief as follows :
Sec. 2A(2) of the Industrial Disputes Act, 1947 is
not applicable to the Petitioner since appropriate
government is central government but not state
government. The habitual unauthorised absenteeism need
not be condoned as per the mandate of the Hon’ble the
Apex Court. During the calendar year 2004 Petitioner put
only 81 musters as such the chargesheet was issued under
Standing No. 25.25 which reads, “Habitual late attendance
or habitual absence from duty without sufficient cause”.
Petitioner acknowledged the receipt of the chargesheet
but did not submit written explanation to the chargesheet.
Since the Petitioner was not attending to duties the
chargesheet cum enquiry notice was published in Telugu
daily Andhra Jyothi dated 20.11.1997 advising the
Petitioner to attend for an enquiry on 28.11.1997. There
after the enquiry was conducted. Petitioner fully
participated in the enquiry. He was given fair and full
opportunity during the enquiry. Before commencing the
enquiry the Enquiry Officer explained the procedure of
the enquiry in Telugu to the Petitioner. Petitioner did not
opt to have defence assistant. The said proceedings were
conducted in Telugu and were explained to the Petitioner
in Telugu, the language to which Petitioner is acquainted.
He voluntarily admitted the charges levelled against him
and pleaded guilty of misconduct. Petitioner did not
preferred to cross examine the Management witnesses.
He did not submit any documents in support of his
statement, except one unfit certificate and one fit certificate.
Basing on the evidence made available the Enquiry Officer
found the Petitioner guilty of the charges levelled against
him. The Respondent got a well established chain of
hospitals in all its areas to cater to the health requirements
of its employees. Further, Respondent company has rules
and regulations to refer the cases of complicated diseases
to the hospitals like Osmania General Hospital, Gandhi
Medical Hospital and Nizam’s Institute of Medical
Sciences. Petitioner is fully aware of the same but he has
not availed the facilities. His attendance particulars from
1995 to 1997 are as under:
Year
Musters
1995
112
1996
035
1997
016
The explanation given by the Petitioner for the show
cause notice against the enquiry proceedings and enquiry
report also was found not satisfactory. The contention of
the Petitioner that the enquiry was conducted as a formality
and with predetermined notion and that the contentions
of the Petitioner were not considered by the Enquiry Officer
and Disciplinary Authority are all incorrect. Petitioner did
not produce any documents to substantiate the alleged
illness of his sister. The punishment imposed is not
disproportionate to the charges levelled. Due to the
absenteeism the production results will be adversely
affected. Hence, the Respondent company is compelled
to take severe action against the unauthorised absentees
like the Petitioner. Petition is liable to be dismissed.
5. Petitioner further filed rejoinder with the
averments as under :
During the year 1996, Petitioner’s uncle was murdered
in Beemaram Village of Jaipur Mandal, Adilabad District
by the Naxalites. Due this incident, his wife has fallen sick
and on account of her ill-health, Petitioner faced several
health and family problems. He became a patient of Blood
Pressure. He has taken treatment some time in the
company’s hospital and also outside hospitals. He has
submitted medical certificates during enquiry proceedings,
but those have been ignored by the Enquiry Officer on
the ground that, those were not handed over to the Pay
Sheet Clerk. Hence, Petitioner prays for setting aside the
impugned order of dismissal.
6. Learned counsel for the Petitioner filed a memo
stating that Petitioner is not disputing with the validity of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5243
the domestic enquiry conducted in this case. There on by
virtue of order dated 13.04.2009 this court held that the
domestic enquiry conducted in this case is valid.
7. Heard the arguments of either party under Sec.11A
of the Industrial Disputes Act, 1947. Written arguments
are also filed for the Petitioner and the same are received
and considered.
8. The points arise for determination are :
I. Whether the impugned order No. P/MM/7/2/98/
697 dated 4.3.1998 is liable to be set aside? If so,
on what grounds?
II. To what relief the Petitioner is entitled for?
9. Point No. I :
It is an admitted fact that the Petitioner has been
absent from duty unauthorisedly during the
chargesheeted period. This can be said so since
admittedly, he failed to take any kind of leave or permission,
while remaining absenting from duty. Standing Orders
25.25 of the Respondent company provides that: “habitual
late attendance or habitual absence from duty without
sufficient cause” amounts to misconduct. Therefore, mere
absence from duty by itself does not become misconduct.
It must be without sufficient cause. Therefore, now it is
to be verified whether there is any sufficient cause for the
absence of the Petitioner from duty. It is his consistent
plea that due to his sickness he could not attend to the
duties.
10. As can be gathered from the material on record,
during the course of enquiry and to substantiate his
contentions regarding his sickness, the Petitioner has
produced fit and unfit certificates issued by the
Respondent company’s hospital. With this regard the
only question put to him during his cross examination on
behalf of the Management is that he did not hand over the
said certificates to his pay sheet clerk. That means,
Management is not disputing with the correctness of these
certificates and the sickness pleaded by the Petitioner.
Thus, it can clearly be seen that there is sufficient cause
for the Petitioner to remain absent from duty i.e., his
sickness.
11. Apart from his sickness Petitioner is pleading
that there were other sufficient causes for his remaining
absent from duty like, his wife falling sick owing to the
murder of his uncle by the Naxalites. This is the plea taken
up by the Petitioner in his rejoinder. Though, such a new
plea has been taken up in the rejoinder filed by the
Petitioner in the year 2011, Respondent has not chosen to
file any additional counter disputing with the averments
therein. That means, they are not actually disputing with
the said averments. This is also one circumstance to be
take a note of.
12. It is not the contention of the Respondent that
Petitioner has been a habitual offender of misconduct of
this nature and that there were any previous occasions of
imposing punishment against him. This is the first and
only instance of misconduct which gave raise to cause of
action to award punishment to the Petitioner. But, for the
very first event of this nature, the gravest possible
punishment available in the Standing Orders i.e., dismissal
from service has been awarded to the Petitioner by the
Disciplinary Authority. In the impugned order it is stated
that the past record of the Petitioner was gone through by
the Disciplinary Authority and that there are no
extenuating circumstances to take a lenient view in the
matter. The past conduct which becomes relevant while
awarding punishment is the previous proven misconduct
but not the allegations which were merely made without
giving any opportunity to the workman to explain. In the
present case as already discussed above, there is no
previous proven misconduct. In the given circumstances
the Disciplinary Authority taking such alleged past record
into consideration while awarding punishment is not at all
reasonable.
13. In view of the fore gone discussion it can safely
be held that the very finding of the Enquiry Officer that
Petitioner is guilty of misconduct under Standing Orders
25.25 itself is not acceptable and further it is to be said that
the punishment awarded is grossly disproportionate to
the proven misconduct. Thus, the impugned order No.P/
MM/7/2/98/697 dated 4.3.1998 is liable to be set aside.
This point is answered accordingly.
14. Point No. II :
No doubt, as per the finding given in Point No.I, the
impugned order No. P/MM/7/2/98/697 dated 4.3.1998
whereunder Petitioner has been dismissed from service is
liable to be set aside. But the fact remains that Petitioner
remained absent from duty though got sufficient reason
for doing so but, there is lapse on his part since he failed
to inform his superiors regarding his inability to attend to
the duties at any point of time before or during the period
of his absence from duty.
15. It is an unauthorised absenteeism since he has
not taken any permission/ leave from his higher-ups while
remaining absent from duty. Thus, Petitioner is to be
awarded with appropriate punishment. But as already
discussed above while deciding Point No.I, awarding
punishment of dismissal from service for the very first
event of misconduct is not reasonable. Hence, withholding
of one annual grade increment without cumulative effect
is reasonable punishment to be awarded to the Petitioner.
16. In view of the fore gone discussion, Petitioner is
to be reinstated into service consequent to the declaration
that the impugned order No. P/MM/7/2/98/697 dated
4.3.1998 as illegal and arbitrary and setting aside the same.
5244
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Instead Petitioner shall be awarded with the punishment
of stoppage of one annual grade increment without
cumulative effect. He is entitled for 50% of back wages
only as he is found to be liable for punishment, though it
is the lesser punishment than the one imposed to him by
virtue of impugned order. He is entitled for all other
attendant benefits.
This point is answered accordingly.
Result :
In the result, petition is allowed. The impugned
order No. P/MM/7/2/98/697 dated 4.3.1998 is hereby
declared as illegal and arbitrary and is hereby set aside.
The Petitioner shall be reinstated into service as badli
filler forthwith, with effect from 6.3.1998. He shall be
awarded with the punishment of stoppage of one annual
grade increment without cumulative effect. He is entitled
for 50% of back wages only, but he is entitled for all other
attendant benefits.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 28th
day of May, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 7 tqykbZ] 2014
dk-vk- 2004.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l- lh- lh-
,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k
131/2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
07@07@2014 dks izkIr gqvk FkkA
[la- ,y&22013@1@2014&vkbZvkj ¼lh&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O. 2004.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D No. 131/
2005) of the Central Government Industrial Tribunal/Labour
Court Hyderabad as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of SCCL and their workmen, which was
received by the Central Government on 07/07/2014.
[No. L-22013/1/2014-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
PRESENT: - SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 1st day of May, 2014
INDUSTRIAL DISPUTE L.C.No. 131/2005
Between:
Smt. Peram Tirupathi,
S/o Yellaiah,
C/o Smt. A. Sarojana, Advocate,
Flat No. G7, Ground Floor,
Rajeshwari Gayatri Sadan,
Opp: Badruka Jr. College for Girls,
Kachiguda, Hyderabad
... Petitioner
AND
1. The General Manager,
M/s. Singareni Collieries Company Limited,
Srirampur Area,
Srirampur, Adilabad District.
2. The Superintendent of Mines,
M/s. Singareni Collieries Company Limited,
RK NT Incline,Srirampur Area,
Srirampur, Adilabad District
... Respondents
APPEARANCES:
For the Petitioner
: M/s. A. Sarojana & K. Vasudeva
Reddy, Advocates
For the Respondent : M/s. P.A.V.V.S. Sarma & Vijaya
Laxmi Panguluri, Advocates
AWARD
This is a petition filed by Sri Peram Tirupathi the
workman invoking Sec. 2A(2) of the Industrial Disputes
Act, 1947 seeking for declaring the impugned office
proceeding No.SRP/PER/13.008/6164 dated 27.10.2005
issued by the 1st Respondent as illegal and arbitrary, and
to set aside the same consequently directing the
Respondents to reinstate the Petitioner into service duly
granting all attendant benefits such as continuity of service
back wages, etc.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5245
2. The averments made in the petition in brief are
as follows :
Petitioner was appointed as badli filler in the year
1988 and was confirmed as coal filler in 1990. He was
converted as multi skilled group workman in the year 1996
and later on he was promoted as coal cutter in the year
2002. During the year 2003 it was found that Petitioner’s
sister was suffering with cancer. As there was no other
family member to attend her Petitioner was constrained to
accompany her wherever and whenever required for her
treatment. Due to the same he could not be regular to his
duties. The said fact was brought to the notice of the
Respondent authorities by the Petitioner. Despite,
chargesheet dated 24.2.2005 was issued alleging that
Petitioner remained habitually absent from duty during
the year 2004 and that it amounts to misconduct under
company’s Standing Orders No. 25.25. Thereafter a formal
enquiry was conducted wherein Petitioner was not given
any valid opportunity. The enquiry was a mere formality
and the Enquiry Officer submitted his report, basing on
which the impugned proceeding was issued dismissing
the Petitioner from service with effect from 1.11.2005. The
procedure of the enquiry was not explained to the
Petitioner though Petitioner is an illiterate. Thus, Petitioner
could not participate in the enquiry effectively. The
enquiry was conducted in the language not known to the
Petitioner which caused prejudice to the Petitioner. None
of the documents relied upon by the Enquiry Officer was
furnished to the Petitioner. The Enquiry Officer has not
followed the basic principles of law, leave about the
principles of natural justice. During the enquiry Petitioner
explained the reason why he could not attend to his duties
and also produced the medical prescriptions and other
documents which clearly establish the factum of his sister
under going treatment for cancer. But, the same were not
considered by the Enquiry Officer while holding the
charges as proved. While issuing the impugned order
the Disciplinary Authority also did not consider the
submissions made by the Petitioner. Exclusively relied
upon the findings of the Enquiry Officer the impugned
order was passed in a cryptic manner. While so, the
Disciplinary Authority relied upon the past conduct of
the Petitioner, though the said past conduct is not part of
chargesheet and he is estopped from considering the said
past conduct while considering the report of the Enquiry
Officer. Even otherwise, there were no adverse remarks
against the Petitioner during his past service. Therefore,
conclusion of the Disciplinary Authority that there were
not extenuating circumstances to take a lenient view is
wholly untenable. Petitioner is the only earning member
of his family. As a result of the impugned order he and his
family members are deprived of livelihood. Petitioner is
not employed elsewhere after the date of impugned order.
Hence, the petition.
3. Respondent filed his counter with the averments
in brief as follows :
Sec.2A(2) of the Industrial Disputes Act, 1947 is not
applicable to the Petitioner since appropriate government
is central government but not state government. The
habitual unauthorised absenteeism need not be condoned
as per the mandate of the Hon’ble the Apex Court. During
the calendar year 2004 Petitioner put only 81 musters as
such the chargesheet was issued under Standing No. 25.25
which reads, “Habitual late attendance or habitual absence
from duty without sufficient cause”. “Petitioner gave his
explanation dated 7.3.2005 which was found not
satisfactory. There after the enquiry was ordered.
Petitioner fully participated in the enquiry. He was given
free fair and full opportunity during the enquiry. Before
commencing the enquiry the Enquiry Officer explained the
procedure of the enquiry in Telugu to the Petitioner.
Petitioner did not opt to have defence assistant. He
expressed no objection for recording the proceedings of
the enquiry in English. The said proceedings were
conducted in Telugu and were explained to the Petitioner
in Telugu, the language to which Petitioner is acquainted.
He voluntarily admitted the charges levelled against him
and pleaded guilty of misconduct. Petitioner did not
preferred to cross examine the Management witnesses.
He did not submit any documents in support of his
statement, that he was absent due to ill-health. Basing on
the evidence made available the Enquiry Officer found the
Petitioner guilty of the charges levelled against him. The
Respondent got a well established chain of hospitals in all
its areas to cater to the health requirements of its
employees. Further, Respondent company has rules and
regulations to refer the cases of complicated diseases to
the hospitals like Osmania General Hospital, Gandhi
Medical Hospital and Nizam’s Institute of Medical
Sciences. Petitioner is fully aware of the same but he has
not availed the facilities. Petitioner was also counselled in
May, 2005 as there was no improvement in his performance
Respondent was constrained to dismiss him from service.
His attendance particulars from the year 2000 are as under:
Year
Musters
2000
105
2001
206
2002
165
2003
198
2004(Chargesheeted year)
081
The explanation given by the Petitioner for the show
cause notice against the enquiry proceedings and enquiry
report also was found not satisfactory. The contention of
the Petitioner that the enquiry was conducted as a formality
and with predetermined nature and that the contentions
of the Petitioner were not considered by the Enquiry Officer
5246
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
and Disciplinary Authority are all incorrect. Petitioner did
not produce any documents to substantiate the alleged
illness of his sister. The punishment imposed is not
disproportionate to the charges levelled. Due to the
absenteeism the production results will be adversely
affected. Hence, the Respondent company is compelled
to take severe action against the unauthorised absentees
like the Petitioner. Petition is liable to be dismissed.
4. Learned counsel for the Petitioner filed a memo
stating that Petitioner is not disputing with the validity of
the domestic enquiry conducted in this case. There on by
virtue of order dated 11.11.2008 this court held that the
domestic enquiry conducted in this case is valid.
5. Heard the arguments of either party under
Sec.11A of the Industrial Disputes Act, 1947. Written
arguments are also filed for the Petitioner and the same are
received and considered.
6. The points arise for determination are:
I. Whether the impugned order No. SRP/PER/
13.008/6164 dated 27.10.2005 is liable to be set
aside? If so, on what grounds?
II. To what relief the Petitioner is entitled for?
7. Point No. I :
It is an admitted fact that Petitioner who has been
working as coal cutter as on 24.2.2005 was issued with
the chargesheet of the even date from the Respondent
where under he has been charged with the misconduct
owing to unauthorised absenteeism from duties during
the year 2004. It is an undisputed fact that during the year
2004 Petitioner put in only 81 musters and he did not secure
any permission /grant of leave from duty from concerned
authorities while remaining absent from duty on the other
days during this year.
8. But, it is his contention that there is sufficient
cause for his absenteeism though, he unauthorizedly
absented himself from duty. The said cause being given
by him is that he was constrained to attend to his sister
who was suffering from cancer.
9. No doubt, Standing Orders 25.25 of the
Respondent company makes the, “habitual late attendance
or habitual absence from duty without sufficient cause”,
as misconduct.
10. Now, it is to be verified whether the finding of
the Enquiry Officer that the Petitioner was guilty of
misconduct due to his unauthorised absence from duty is
correct and whether the punishment awarded by the
Disciplinary Authority for this alleged misconduct is
proportionate and justified.
11.If Petitioner remained absent from duties owing
to his sister’s fatal illness, i.e., cancer, it can not be said
that there is no reasonable cause for his absenteeism. But,
as can be gathered from the enquiry proceedings, it is the
explanation given by the Petitioner that due to his mother’s
sickness he could not attend to his duties. But, in the
present petition, Petitioner claimed that owing to the fatal
sickness of his sister i.e., cancer and as he was attending
to her, he could not attend to his duties. Further, Petitioner
claimed that during the course of enquiry he submitted
the medical prescriptions pertaining to his sister before
the Enquiry Officer but the same were not considered.
This is not a correct statement. During the departmental
enquiry he never pleaded that his sister suffered cancer
and owing to the same he could attend to his duties.
12. In the given circumstances, the enquiry report
can not be find fault with. The enquiry proceedings clearly
reveal that due opportunity has been given to the
Petitioner and the principles of natural justice were
followed during the enquiry. Thus, the contentions put
forth by the Petitioner regarding the enquiry and the
findings of the Enquiry Officer can not be accepted.
13.As far as the punishment imposed by the
Disciplinary Authority against the Petitioner is concerned,
as rightly pointed out for the Petitioner, the past conduct
of the Petitioner which is not mentioned anywhere in the
chargesheet ought not to have been considered by the
Disciplinary Authority while imposing punishment to the
Petitioner. Further more, it is not the case of the
Respondents that for any of the past conduct of the
Petitioner there has been any adverse remark/punishment.
Thus, it is to be held that considering such past conduct
without giving any opportunity to the Petitioner to explain
about the same is certainly unwarranted.
14. Further more, as can be seen form the record this
is the first event of misconduct for which Petitioner faced
enquiry and was found guilty and for this first event of
misconduct itself, the gravest punishment provided for in
the standing orders i.e., dismissal from service has been
imposed. This is a capital punishment which ought not to
have been imposed so lightly.
15.In the given circumstances it can safely be held
that the impugned order is liable to be set aside declaring
it as illegal and arbitrary.
This point is answered accordingly.
16. Point No. II :
No doubt, as per the finding given in Point No. I, the
impugned order whereunder Petitioner has been dismissed
from service is liable to be set aside. But the fact remains
that Petitioner remained absent from duty and is unable to
give the accurate reason why he could not attend to the
duty. It can be said so since, during the enquiry Petitioner
pleaded that his mother was sick whereas in the present
petition he changed his version and claimed that due to
his sister suffering from cancer he could not attend to his
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5247
duties. This, inconsistent version makes his contentions
unbelievable. It is an unauthorised absenteeism since he
has not taken any permission/leave from his higher-ups
while remaining absent from duty. Thus, Petitioner is to
be awarded with appropriate punishment. But as already
discussed above while deciding Point No. I, awarding
punishment of dismissal from service for the very first
event of misconduct is not reasonable. Hence, withholding
of two annual increments without cumulative effect is
reasonable punishment to be awarded to Petitioner. In
case of his continuing to be guilty of the misconduct of
habitual unauthorised from duties the Management may
take the extreme step of ‘removing from service’, but not
now.
17. In view of the fore gone discussion, Petitioner
is to be reinstated into service consequent to the
declaration that the impugned order No. SRP/PER/13.008/
6164 dated 27.10.2005 as illegal and arbitrary and setting
aside the same. Instead Petitioner shall be awarded with
the punishment of stoppage of two annual increments
without cumulative effect. He is not entitled for any back
wages as he is found to be liable for punishment, though
it is the lesser punishment than the one imposed to him by
virtue of impugned order. He is entitled for all other
attendant benefits.
This point is answered accordingly.
Result:
In the result, petition is allowed. The impugned
order SRP/PER/13.008/6164 dated 27.10.2005 is hereby
declared as illegal and arbitrary and is set aside. The
Petitioner shall be reinstated into service as coal cutter
forthwith, with effect from 1.11.2005. He shall be awarded
with the punishment of stoppage of two annual increments
without cumulative effect. He is not entitled for any back
wages, but he is entitled for all other attendant benefits.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 1st day
of May, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 7 tqykbZ] 2014
dk-vk- 2005.—vkS|ksfxd fookn vf/kfu;e 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-
lh- lh- ,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] xksnkojh[kUuh ds iapkV
¼lanHkZ la[;k 26/2013½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 07@07@2014 dks izkIr gqvk FkkA
[la- ,y&22013@1@2014&vkbZvkj¼lh&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O.
2005.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No. 26/2013)
of the Central Government Industrial Tribunal-cum-Labour
Court, Godavarikhani now as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of the SCCL and their workmen, which
was received by the Central Government on 07/07/2014.
[No. L-22013/1/2014-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.
DISTRICT & SESSIONS COURT, GODAVARIKHANI
PRESENT:
Sri G. V. KRISHNAIAH,
Chairman-cum-Presiding Officer
Monday, the 9th day of June, 2014
INDUSTRIAL DISPUTE No. 26 OF 2013
Between :
N. Shiva Shankar, S/o. Satyanarayana,
Age 35 years, Occ: Badli Filler,
R/o. Ellandu, Dist. Khammam
...Petitioner
And
1.
The General Manager,
SCCL, Srirampur Area,
Adilabad District.
2.
The Managing Director, (Administration),
SCCL, Kothagudem, Dist.Khammam
...Respondents
This Industrial Dispute petition coming on before
me for final hearing in the presence of Sri S. Bhagavantha
Rao, Advocate, for the petitioner and Sri D. Krishna Murthy,
5248
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Advocate, for the respondents, and the matter having
stood over before me for consideration till this date, the
Court passed the following:-
AWARD
This petition is filed U/Sec.2-A(2) of the Industrial
Disputes Act, 1947 to set aside the dismissal order of the
petitioner dt. 31-03-2007 and direct the respondents
company to reinstate the petitioner into service with
continuity of service and other attendant benefits including
full back wages.
2. The averments of the petition in brief are that the
father of petitioner was an employee of respondents
company and after putting 17 years of service, his father
died on 5-5-1998 and the mother of petitioner was provided
MMC by keeping the name in live roaster till the petitioner
gets employment. After attaining the majority by the
petitioner, the respondents company stopped MMC to
his mother and provided employment to the petitioner on
21-3-2004 at Chennur in Adilabad District and the
appointment is purely temporary with a lot of conditions
and subject to availability of work, even though the
petitioner discharged his duties to the fullest satisfaction
of superiors upto removal from service.
3. The petitioner was issued a charge sheet in the
year 2006 U/Sec. 25:25 and 25:31 of standing orders of the
company and terminated from service through proc., dt.
31-3-2007 by R-1. The petitioner was sick and mentally
disturbed due to his personal problems. The petitioner
participated in the enquiry, but he was not permitted to
cross examine the management witness. The respondent
adopted unfair labour practice and victimized the petitioner.
Hence, he prays for reinstatement into service with
continuity of service, other attendant benefits and with
full back wages.
4. The respondents filed counter denying the
averments of the petition. The petitioner was appointed
as Badli Filler on 22-3-2003 on compassionate grounds.
He being a chronic absentee had put in only (60) muster
during the year 2005. As such, he was issued charge
sheet dt.15-4-2006. He was issued charge sheet earlier in
the year 2005 for putting less musters in the year 2004.
Taking a lenient view, he was imposed punishment of
suspension for 10 days from 30-10-2006 to 8-11-2006 and
advised to improve his attendance. But the petitioner did
not improve his attendance and therefore once again
charge sheet was issued in the year 2006. The petitioner
fully participated in the enquiry proceedings on 25-4-2006.
He stated that due to ill-health, he could not attend duties
and remained absent. He voluntarily accepted the charges
leveled against him by affixing his signatures. Enquiry
was conducted duly following the principles of natural
justice. The petitioner did not submit any representation
to the show cause notice. The respondent put the
petitioner on observation for two months to put in atleast
20 musters per month. But the petitioner failed to put in
the required 20 musters per month inspite of his
undertaking dt.9-12-2006. Therefore the respondent was
constrained to dismiss the petitioner from service by order
dt.31-3-2007, w.e.f., 1-4-2007.
5. Since the petitioner did not put in 100 musters in
any year since his appointment, his case does not fall
under the ambit of settlement dt.9-8-2011. Hence, his case
was not reviewed. Therefore, the petition may be
dismissed without granting any relief to the petitioner.
6. Heard both sides. Perused the material papers on
record.
7. On behalf of the respondents, Ex.M-1 to Ex.M-12
are marked. No documents are marked on behalf of the
petitioner.
8. On 10-03-2014, the counsel for the petitioner filed
a Memo U/Sec.11-A of I.D., Act, stating that the petitioner
is not disputing the validity of domestic enquiry. As such,
arguments of both sides were heard on merits.
9.
The consideration of respective contentions
of the parties the following points require to be
determined:-
1. “Whether this Tribunal has got jurisdiction?”
2. “Whether the punishment of dismissal of the
petitioner is Justified and proportionate?”
10.
POINT NO. : 1
As per the Judgment of the Hon’ble High Court
reported in 1997 (III) LLJ (Supp.) 11 between U. Chinnappa
And Cotton Corporation of India, this Court has got
jurisdiction to entertain the dispute raised by the petitioner.
Hence, the point is accordingly answered in favour of the
petitioner.
11.
POINT NO. : 2
The petitioner did not give any reply to the charges
levelled against him. As per the charge sheet marked as
Ex.M-1, he was absent for 31 days in January, 2005, 22
days in February, 2005, 18 days in March, 2005, 28 days in
April, 2005, 23 days in May, 2005, 29 days in June, 2005.
He was absent for total 282 days during the year 2005. As
per the enquiry statement of the petitioner at page No. 5,
the petitioner was suffering from hepatitis C and took
treatment at Khammam from 20-5-2005 to 23-7-2005 and
also taken unani treatment privately. He produced the
medical certificate issued by Dr. Gorkey, Khammam for the
above period. He further stated that due to ill health, he
could not attend to his duties and requested the
respondent to excuse him.
12. In a decision reported in DIVISION BENCH
JUDGMENT OF GUJARATH HIGH COURT REPORTED
IN 1982 LAB.IC.1031 BETWEEN: R.M., PARMAR VRS.,
GUJARATH ELECTRICITY BOARD, the following guide
lines were laid down in the matter of inflicting punishment
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5249
of discharge and dismissal:-
1.
In a disciplinary proceeding for an alleged fault
of an employee, punishment is imposed not in
order to seek retribution or to give vent to
feelings of wrath.
2.
The main purpose of a punishment is to
correct the fault of the employee concerned
by making him more alert in the future and to
hold out of warning to the other employees to
be careful in the discharge of their duties so
that they do not expose themselves to similar
punishment. And the approach to be made is
the approach parents make towards an erring
or misguided child.
3.
It is not expedient in the interest of the
administration to visit every employee against
whom a fault is established with the penalty
of dismissal and to get rid of him. It would be
counter-productive to do so for it would be
futile to expect to recruit employees who are
so perfect that they would never commit any
fault.
4.
In order not to attract the charge of
arbitrariness it has to be ensured that the
penalty imposed is commensurate with the
magnitude of the fault. Surely one cannot
rationally or justly impose the same penalty
for giving a slap as one would impose for
homicide.
5.
When different categories of penalties can be
imposed in respect of the alleged fault, one of
which is dismissal from service, the
disciplinary authority perforce is required to
consult himself for selecting the most
appropriate penalty from out of the range of
penalty available that can be imposed, having
regard to the nature, content and gravity of
the default. Unless the disciplinary authority
reaches the conclusion that having regard to
the nature, content and magnitude of the fault
committed by the employee concerned, it
would be absolutely unsafe to retain him in
service, the maximum penalty of dismissal
cannot be imposed. If a lesser penalty can be
imposed without seriously jeopardizing the
interest of the employees the disciplinary
authority cannot impose the maximum penalty
of dismissal from service. He is bound to ask
the inner voice and rational faculty why a
lesser penalty cannot be imposed.
6.
It cannot be over looked that by and large it is
because the maximum penalty is imposed and
total ruination stares one in the eyes that the
employee concerned is obliged to approach
the court and avail the costly time-consuming
machinery to challenge in desperation the
order passed by the disciplinary authority. If
a lesser penalty was imposed, he might not
have been obliged to take recourse to costly
legal proceedings which result in loss of public
time and also result in considerable hardship
and misery to the employee concerned.
7.
When the disciplinary proceedings end in
favour of the employee, the employer has
often to pay back wages say for about 5 years
without being able to take work from the
employee concerned. On the other hand, the
employee concerned would have had to suffer
economic misery and mental torture for all
these years. Even the misery of being obliged
to remain idle without work would constitute
an unbearable burden. And when the curtain
drops every one is left with a bitter taste in the
mouth. All because the extreme penalty of
dismissal or removal is imposed instead of a
lighter one.
8.
Every harsh order of removal from service
creates bitterness and arouses feeling of
antagonism in the collective mind of the
workers and gives raise to a feeling of class
conflict. It does more harm than good to the
employer as also to the society.
9.
Taking of a petty article by a worker in a
moment of weakness when he yields to a
temptation does not call for an extreme penalty
of dismissal from service. More particularly,
when he does not hold a sensitive post of
trust (pilferage by a cashier or by a store
keeper from the stores in his charge, for
instances, may be viewed with seriousness).
A worker brought up and living in an
atmosphere of poverty and want when faced
with temptation, ought not to, but may yield
to it in a moment of weakness. It cannot be
approved, but it can certainly be understood
particularly in an age when even the rich
commit economic offences to get richer and
do so by and large with impunity (and even
tax evasion or possession of black money is
not considered to be dishonorable by and
large). A penalty of removal from service is
therefore not called for when a poor worker
yields to a momentary temptation and commits
an offence which often passed under the name
of kleptomania when committed by the rich.
13. Under these circumstances considering the fact
that the petitioner produced medical certificate for the
period from 20-05-2005 to 23-7-2005 before the enquiry
5250
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
officer, I hold that there is justifiable cause for the petitioner
to remain absent from duty during the above two months
period. Since the petitioner was given compassionate
appointment in place of his father and since he worked in
the company for the short period of nearly 3 years only, I
hold that dismissal of the petitioner from service is not
justified and disproportionate. I further hold that denial
of entire back wages and entire service of the petitioner
will be sufficient punishment and ordering for his
reinstatement as “Afresh Badli Filler”, would meet the ends
of justice.
14. In the result, the order of dismissal dt.31-03-2007
marked as Ex.M-10 is set aside and the respondents are
directed to reinstate the petitioner into service as “Afresh
Badli Filler” and he shall be subjected to medical test for
the post. The petitioner is not entitled to any back wages,
continuity of service and any other attendant benefits.
Typed to my dictation, corrected and pronounced
by me in the open court on this the 9th day of June, 2014.
G. V. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman:-
For Management:-
-Nil-
-Nil-
EXHIBITS
For workman:-
-Nil-
For Management:-
Ex.M-1
Dt. 15-04-2006
Charge sheet
Ex.M-2
Dt. 25-04-2006
Enquiry findings
Ex.M-3
Dt. —
Enquiry report
Ex.M-4
Dt. 22-05-2006
Counseling notice with the
endorsement of the petitioner.
Ex.M-5
Dt. 24-05-2006
Undertaking letter given by the
petitioner assuring to put
minimum 20 musters per month.
Ex.M-6
Dt. 06-09-2006
Undertaking given by the
petitioner during counseling.
Ex.M-7
Dt. 05-09-2006
Show cause notice
19-10-2006
Ex.M-8
Dt. 02-12-2006
Letter issued to petitioner by the
respondent
for
improve
attendance.
Ex.M-9
Dt. 09-12-2006
Reply submitted by the
petitioner giving assurance to
improve attendance.
Ex.M-10 Dt. 31-03-2007
Dismissal order, x.copy
Ex.M-11 Dt. 16-04-2007
Copy of mercy appeal of
petitioner.
Ex.M-12 Dt. 20-12-2007
Letter of respondent confirming
dismissal order.
ubZ fnYyh] 7 tqykbZ] 2014
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[la- ,y&22013@1@2014&vkbZvkj¼lh&II½]
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New Delhi, the 7th July, 2014
S.O.
2006.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award of the Central
Government Industrial Tribunal-cum-Labour Court,
Hyderabad (I.D. No. 117/2005) as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of SCCL and their workman, which
was received by the Central Government on 07/07/2014.
[No. L-22013/1/2014-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
PRESENT: - SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 15th day of May, 2014
INDUSTRIAL DISPUTE L.C.No. 117/2005
Between :
Sri S. Surendra Paul, S/o Hukumchand,
R/o C/o Smt. A.Sarojana, Advocate,
Flat No.G-7, Rajeshwari Gayatri Sadan,
Opp: Badruka Girls Jr.College,
Kachiguda, Hyderabad
...Petitioner
AND
1. The Director, (PA & W),
M/s Singareni Collieries Company Ltd.,
Kothagudem, Khammam Dist.,
2. The General Manager,
Singareni Collieries Company Ltd.,
Ramagundam Area –III,
Godavarikhani.
Karimnagar Dist.
...Respondents
APPEARANCE:
For the Petitioner
: M/s. A. Sarojana & K. Vasudeva
Reddy, Advocates
For the Respondent : M/s. P.A.V.V.S. Sarma & Vijaya
Laxmi Panguluri, Advocates
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5251
AWARD
This is a petition filed by Sri S. Surender Paul, the
workman invoking section 2 A( 2 ) of I. D. Act, 1947, seeking
for declaring the impugned office order dated 10-04-2005
issued by the 2nd Respondent, and which upheld by the 1st
Respondent by virtue the appellate order dated 20-08-2005
as illegal and arbitrary and to set a side the same
consequently directing the respondent to reinstate him in
to service duly granting all consequential benefits such
as continuity of service, back wages and other attendant
benefits.
2. The Averments made in this petition in brief are
as follows :
The petitioner was appointed as Operator Trainee,
Category –V, in the Respondent Company w.e.f. 15-5-1990
and was posted as Operator Grade – III in Excavation and
subsequently promoted as EP Operator Exc. Cat.”B” w.e.f.
1-3-1997 considering his hard work and sincerity. While
so a charge sheet dated 2-3-2004 was issued alleging
misconduct of absent from duty without prior notice or
permission sanctioned and an enquiry was conducted
against standards procedures and the principles of natural
justice. The allegations that the petitioner has been absent
from duty with intermittently between January, 2003 and
February, 2004. They failed to take note of the fact that
during this period petitioner was under depression due to
family problems and further he was serving the institution
sincerely, faithfully and diligently. During the enquiry the
procedure of enquiry was not explained to the petitioner.
He was not given opportunity to produce his witnesses.
The proceedings of enquiry was not conducted in the
language known to the petitioner and the same was not
explained to him in the language known to him either. The
enquiry was conducted in the predetermined manner.
Irrelevant evidence was relied upon. Neither the findings
of the Enquiry Officer nor the impugned order does not
contain any reasons much less valid. The enquiry officer
grossly erred in holding the charges as proved, disciplinary
authority merely accepted the said findings without
considering the submission of the petitioner and passed
the impugned order. Even the appellate authority passed
the orders rejecting the appeal preferred by the petitioner
against the impugned order, in a routine and mechanical
manner petitioner sole breadwinner of his family. As a
result of his dismissal from service the hole family lost
their lively hood. Assuming without admitting that the
enquiry conducted is correct and proper the punishment
of dismissal from service is too harsh and excessive and
disproportionate in nature. Therefore the petitioner craves
indulgence of the court to modify the punishment imposed
to any lesser penalty so as to survive himself and to look
after his family. Hence, this petition.
3. Respondents filed their counter with the
averments in brief as follows :
The petitioner straight-away approached this
Tribunal invoking section 2 A(2) of I.D. Act, 1947 though
the state amendments is not applicable to the dispute
where appropriate Government is Central Government.
Thus this petition is not maintainable. The contention of
the Petitioner that due to depression he was absent
intermittently between January, 2003 and February, 2004
is not correct. He was habitually absent from duty. He
put in 230 musters in the year 1999, 132 musters in 2000,
100 musters in 2001, 102 musters in 2002, 62 musters in
2003, 51 musters in 2004 and NIL musters up to 12-4-2005.
Thus his actual musters were very low. The contention of
the petitioner that the enquiry was conducted in
predetermine manner without giving any opportunity to
him and with out explaining the procedure of enquiry are
all incorrect. The procedure of enquiry was duly explained
to him at every stage of enquiry in Telugu. Full and fair
opportunity to produce his witnesses as well as
documentary evidence was given to the petitioner, but he
failed to avail of the same. He stated that he got no
documents. He admitted that he absented from duty. The
enquiry officer considered the evidence adduced on record
and gave his reasoned report. Petitioner never raised any
doubts regarding the documents produced for the
management and did not cross-examine the management
witnesses. The disciplinary authority as well as appellate
authority considered the matter in detail including the past
record of the petitioner while arriving at their respective
decision. The production result of the respondent
company depending upon the overall attendance and
performance of all their employees including workmen.
The unauthorized absence creates sudden void, which at
time is very difficult to fill up and the planned schedule
get suddenly disturbed without prior notice causing much
inconvenience and hardship to the respondent company.
Hence, respondent company is compelled to take severe
action against the unauthorized absentees. The petition
is liable to be dismissed.
4. A memo has been filed for the petitioner reporting
that petitioner does not challenge the validity of domestic
enquiry. In the light of the said memo this court held that
the domestic enquiry conducted in this case is valid, by
virtue of the order dated 23.3.2009.
5. Heard the arguments of either party u/s 11 (A) of
the ID Act, 1947.
6. The points that arise for determination are :
I. Whether the impugned order of the 2nd
Respondent dated 10.4.2005 which was confirmed
by the 1st respondent in the appellate order dated
20-08-2005 is liable to be set a side ? If so, on
what grounds.?
II. To what relief petitioner is entitled to ?
5252
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
7. Point No.1: It is an admitted fact that the
petitioner remained absent from duty during the years
January 2003 and February, 2004 as mentioned in the charge
sheet which has been raised against him invoking
standing orders 25.25 and 25.31. It is also an undisputed
fact that the petitioner has not got sanctioned any kind of
leave for this absented period. But, it is his claim that
there is sufficient cause for him to be absent from duty
and inspite of his explaining the same and deposing of the
same the enquiry officer and the disciplinary authority
failed to consider it.
8. It is not the contention of the petitioner that he
gave any explanation to the charge sheet, though it was
called for. So there was no possibility for the disciplinary
authority to know whether there was any reasonable cause
for the absence of the petitioner, before ordering the
domestic enquiry. For the first time, while making his
statement before the enquiry officer during the domestic
enquiry, the petitioner stated that due to tension and family
burden and also health problems of motions and also
since his father who was working at area hospital and who
opted for voluntarily retirement expired but none of his
brothers have since been provided employment in the
company which are all added to his tension, petitioner
could not concentrate on duty and have been frequently
absent from duty.
9. The above referred statement of the petitioner
has been accepted by the management, since the
presenting officer who represented the management during
the domestic enquiry has not subjected the petitioner to
any cross examination. But, in the enquiry report no
reference at all has been made to the various reasons for
his absence given by the petitioner in his statement made
during the enquiry. Since the petitioner has given some
reasons they ought to have been considered by the
enquiry officer and for the reasons given they ought to
have been either accepted or rejected. Especially when
the management accepted the truth of the said reasons
by not subjecting the petitioner to any cross examination,
totally ignoring the same on the part of enquiry officer
while deciding the guilt or other wise of the petitioner for
the charges, is certainly un warranted.
10. As can be gathered from the impugned order of
the 2nd respondent / disciplinary authority, the disciplinary
authority also failed to consider the pleas of the petitioner
in any manner. Same is the case with the Appellate
authority.
11. When the management has chosen not to
dispute with the correctness of contentions of the
petitioner regarding the cause for his absenteeism, by not
subjecting the petitioner to cross-examination during the
domestic enquiry, his contentions shall be given
appropriate weight while arriving at conclusions in this
case.
12. Just because there are tensions in the family and
there are minor health problems like motions petitioner
ought not to have been so irregular to duties as he has
been in this case. But considering the fact that he and his
family underwent great shock and pain due to the demise
of his father which appears to have lead to financial
constraints also since there was no compassionate
appointment to any of the his brothers from the respondent
company though his father died while in harness, it cannot
be said that there is no reason at all for the absence of the
petitioner from duty.
13. In the given circumstances petitioner is liable to
be awarded with punishment for the unauthorized
absenteeism but considering all the circumstance stated
above one can clearly see that awarding of the gravest
punishment awarded for in the standing orders i.e.,
dismissal from service is not just and reasonable. This
can be said so since it is not the contention of the
respondent that there was any prior occasion of
conducting any domestic enquiry against the petitioner
and awarding of any kind of punishment to him. This is
the first and only enquiry conducted against him charge
sheeting him. In this first and only enquiry itself the gravest
punishment of dismissal from service which can be termed
as capital punishment has been awarded. It cannot be
considered as just and reasonable and therefore it is to be
set a side and is to be interfered with.
This point is answered accordingly.
14. Point No. II : In view of the Finding given in
point No.1 the impugned order of the 2nd respondent dated
10-4-2005 which has been confirmed by the Appellate order
dated 20-08-2005 given by the 1st respondent is liable to be
set a side. Consequently petitioner to be reinstated into
service. The gravest punishment awarded vide the
impugned order is found to be unreasonable but
considering the circumstances of the case and the nature
of reasons given by the petitioner for his absence, to
discourage him to repeat such conduct in future and to
promote regularity in attending the duties on his part,
alternative punishment is to be awarded. In the
circumstance of the case withholding of two annual grade
increments without cumulative effect is the just and
reasonable punishment to be awarded. The petitioner
otherwise is entitled for continuity of service back wages
and all other attendant benefits.
This point is answered accordingly.
RESULT:
In the result the petition is allowed. The impugned
order of the 2nd respondent dated 10-04-2005 which has
been confirmed by the 1st Respondent in the appellate
order dated 20-08-2005 where under the petitioner has
been dismissed from service, is hereby set a side. The
petitioner shall be reinstated into service forthwith. He is
entitled for continuity of service from 10-04-2005, as
alternative petitioner is awarded with the punishment of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5253
withholding of two Annual Grade Increments without
cumulative effect. The petitioner is entitled for back wages
and all other attendant benefits.
Award is passed accordingly. Transmit.
Typed to my dictation by L.D.C-cum-Typist and
correct by me on this the 15th day of May, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 7 tqykbZ] 2014
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ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
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[la- ,y&22013@1@2014&vkbZvkj¼lh&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O.
2007.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 120/
2006) of the Central Government Industrial Tribunal-cum-
Labour Court, Hyderabad as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of SCCL and their workman, which
was received by the Central Government on 07/07/2014.
[No. L-22013/1/2014-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT: - SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 26th day of May, 2014
INDUSTRIAL DISPUTE L.C. No. 120/2006
Between :
Sri Seelam Saraiah,
S/o Venkataiah,
C/o Smt. A. Sarojana, Advocate,
Flat No. G-7, Ground Floor,
Rajeshwari Gayatri Sadan,
Opp : Badruka Jr. College for Girls,
Kachiguda, Hyderabad.
...Petitioner
AND
1. The General Manager,
M/s. Singareni Collieries Company Limited,
Mandamarri Area, Post : Kayankhani,
Adilabad District.
2. The Dy. Chief Mining Engineer,
M/s. Singareni Collieries Company Limited,
KK-1 Incline, Mandamarri Area,
Post : Kalyankhani, Adilabad District.
...Respondents
APPEARANCES:
For the Petitioner
: M/s. A. Sarojana & K. Vasudeva
Reddy, Advocates
For the Respondent : M/s. P.A.V.V.S. Sarma & Vijaya
Laxmi Panguluri, Advocates
AWARD
This is a petition filed by Sri Seelam Saraiah the
workman invoking Sec.2A(2) of the Industrial Disputes
Act, 1947 seeking for declaring the impugned office
proceeding No.P/MM/7/2/01/4279 dated 14.9.2001 issued
by the 1st Respondent as illegal and arbitrary, and to set
aside the same consequently directing the Respondents
to reinstate the Petitioner into service duly granting all
attendant benefits such as continuity of service back
wages, etc.
2. The averments made in the petition in brief are
as follows :
Petitioner was appointed as badli filler in the year
1986. Charge sheet dated 13.2.2001 was issued alleging
that Petitioner frequently remained absent from duty during
the year 2000 and that it amounts to misconduct under
company’s Standing Orders No.25.25. Petitioner
submitted his explanation on 16.2.2001, explaining the
reasons for his inability to be regular for his duties during
the year 2000. Without considering the same, an enquiry
was conducted wherein Petitioner was not given any valid
opportunity. Basing on which the impugned proceeding
was issued dismissing the Petitioner from service with
effect from 26.9.2001 vide office order dated 14.9.2001. The
procedure of the enquiry was not explained to the
Petitioner though Petitioner is an illiterate. Thus, Petitioner
could not participate in the enquiry effectively. The
enquiry was conducted in the language not known to the
Petitioner which caused prejudice to the Petitioner. None
of the documents relied upon by the Enquiry Officer was
furnished to the Petitioner. The Enquiry Officer has not
followed the basic principles of law, leave about the
principles of natural justice. During the enquiry Petitioner
explained that due to his ill-health and other family
problems, he could not attend to his duties. But, the same
5254
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
were not considered by the Enquiry Officer while holding
the charges as proved. While issuing the impugned
order the Disciplinary Authority also did not consider the
submissions made by the Petitioner. Exclusively relied
upon the findings of the Enquiry Officer the impugned
order was passed in a cryptic manner. Petitioner is the
only earning member of his family. As a result of the
impugned order he and his family members are deprived
of livelihood. Petitioner is not employed elsewhere after
the date of impugned order. Hence, the petition.
3. Respondent filed his counter with the averments
in brief as follows :
Sec.2A(2) of the Industrial Disputes Act, 1947 is not
applicable to the Petitioner since appropriate government
is central government but not state government. The
habitual unauthorised absenteeism need not be condoned
as per the mandate of the Hon’ble the Apex Court. During
the calendar year 2004 Petitioner put only 81 musters as
such the charge sheet was issued under Standing No.
25.25 which reads, “Habitual late attendance or habitual
absence from duty without sufficient cause”. Petitioner
gave his explanation dated 16.2.2001 which was found not
satisfactory.
His attendance particulars till the year 2000 are as
under:
Year
Musters
1995
046
1996
100
1997
138
1998
139
1999
148
2000
082
2001 (up to August)
059
Thereafter the enquiry was ordered. Petitioner fully
participated in the enquiry. He was given free fair and full
opportunity during the enquiry. Before commencing the
enquiry the Enquiry Officer explained the procedure of
the enquiry in Telugu to the Petitioner. Petitioner did not
opt to have defence assistant. He expressed no objection
for recording the proceedings of the enquiry in English.
The said proceedings were conducted in Telugu and were
explained to the Petitioner in Telugu, the language to which
Petitioner is acquainted. He voluntarily admitted the
charges levelled against him and pleaded guilty of
misconduct. Petitioner did not preferred to cross examine
the Management witnesses. He did not submit any
documents in support of his statement, that he was absent
due to ill-health. Basing on the evidence made available
the Enquiry Officer found the Petitioner guilty of the
charges levelled against him. The Respondent got a well
established chain of hospitals in all its areas to cater to the
health requirements of its employees. Further, Respondent
company has rules and regulations to refer the cases of
complicated diseases to the hospitals like Osmania General
Hospital, Gandhi Medical Hospital and Nizam’s Institute
of Medical Sciences. Petitioner is fully aware of the same
but he has not availed the facilities. The explanation given
by the Petitioner for the show-cause notice against the
enquiry proceedings and enquiry report also was found
not satisfactory. The contention of the Petitioner that the
enquiry was conducted as a formality and with
predetermined nature and that the contentions of the
Petitioner were not considered by the Enquiry Officer and
Disciplinary Authority are all incorrect. Petitioner did not
produce any documents to substantiate his alleged ill-
health. The punishment imposed is not disproportionate
to the charges levelled. Due to the absenteeism the
production results will be adversely affected. Hence, the
Respondent company is compelled to take severe action
against the unauthorised absentees like the Petitioner.
Petition is liable to be dismissed.
4. Learned counsel for the Petitioner filed a memo
stating that Petitioner is not disputing with the validity of
the domestic enquiry conducted in this case. There on by
virtue of order dated 17.2.2009 this court held that the
domestic enquiry conducted in this case is valid.
5. Heard the arguments of either party under Sec.11A
of the Industrial Disputes Act, 1947. Written arguments
are also filed for the Petitioner and the same are received
and considered.
6. The points arise for determination are :
I. Whether the impugned order No. P/MM/7/2/01/
4279 dated 14.9.2001 is liable to be set aside? If
so, on what grounds?
II. To what relief the Petitioner is entitled for?
7. Point No. I :
It is an admitted fact that the Petitioner has been
absent from duty unauthorizedly during the charge
sheeted period. This can be said so since admittedly, he
failed to take any kind of leave or permission, while
remaining absent from duty. Standing Orders 25.25 of the
Respondent company provides that: “habitual late
attendance or habitual absence from duty without sufficient
cause” amounts to misconduct. Therefore, mere absent
from duty by itself does not become misconduct. It must
be without sufficient cause. Therefore, now it is to be
verified whether there is any sufficient cause for the
absence of the Petitioner from duty. It is his consistent
plea that due to his sickness and also family problems he
could not attend to the duties. He stated while making his
statement during the Departmental enquiry that for his
undiagnosed sickness which was causing giddiness and
other problems to him he took treatment from the
Respondent company’s hospitals and also from other
hospitals. No doubt, he did not produce any medical
record but, Respondent could not deny the truth of the
contention of the Petitioner that he took treatment from
company’s hospitals. Apart from it, the Petitioner
elaborated the family problems due to which he could not
¹Hkkx II—[k.M 3(ii)º
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5255
attend to his duties, by stating that his mother expired in
the year 2000 and as he got family burdens like performing
his sister’s marriage which he performed in April, 2000,
due to which he could not attend to the duty during the
charge sheeted period. As can be gathered from the cross
examination to which he has been subjected to for the
Management, the Management is not denying the truth of
these contentions. In the given circumstances it can not
be said that there is no sufficient cause for the absence of
the Petitioner from duty. The only lapse on his part is not
reporting sick and not informing his superiors before
remaining absent from duty.
8. But, as can be gathered from the material on
record, Petitioner has put in long service of 11 years in the
Respondent organization and only due to the above
referred causes he became irregular during the charge
sheeted period. Further more, he consistently pleaded
with the Disciplinary Authority as well as during the
enquiry that he realized his mistakes and that he would be
regular to duties hitherto.
9. It is not the contention of the Respondent that
Petitioner has been a habitual offender of misconduct of
this nature and that there were any previous occasions of
imposing punishment against him. This is the first and
only instance of misconduct which gave raise to cause of
action to conduct enquiry and award punishment to the
Petitioner. But, for the very first event of this nature, the
gravest possible punishment available in the Standing
Orders i.e., dismissal from service has been awarded to
the Petitioner by the Disciplinary Authority.
10. It is the contention of the Management that the
musters put in by the Petitioner during the previous years
to the charge sheeted period have been taken note off while
awarding punishment. This is not proper and reasonable.
The past conduct which becomes relevant while awarding
punishment is the previous proven misconduct but not the
allegations which were merely made without giving any
opportunity to the workman to explain. In the present case
as already discussed above, there is no proven misconduct.
The allegation regarding putting in less musters during the
period prior to the charge sheeted period is in the status of
mere allegation only for the reason that Petitioner has not
been informed of the exception taken by the Management
regarding the said conduct and his explanation has not
been called for, to know whether he is actually accepting
the truth of the said allegation. In the given circumstances
the Disciplinary Authority taking such alleged previous
conduct into consideration while awarding punishment is
not at all reasonable.
11.In view of the fore gone discussion it can safely
be held that the very finding of the Enquiry Officer that
Petitioner is guilty of misconduct under sto 25.25 itself is
not acceptable and further it is to be said that the
punishment awarded is grossly disproportionate to the
proven misconduct. Thus, the impugned order No.P/
MM/7/2/01/4279 dated 14.9.2001 is liable to be set aside.
This point is answered accordingly.
12. Point No. II :
No doubt, as per the finding given in Point No.I, the
impugned order whereunder Petitioner has been dismissed
from service is liable to be set aside. But the fact remains
that Petitioner remained absent from duty though got
sufficient reason for doing so but, there is lapse on his
part since he failed to inform his superiors at any point of
time before or during the period of his absence from duty.
13.It is an unauthorised absenteeism since he has
not taken any permission/ leave from his higher-ups while
remaining absent from duty. Thus, Petitioner is to be
awarded with appropriate punishment for such lapse only.
But as already discussed above while deciding Point No.I,
awarding punishment of dismissal from service for the
very first event of misconduct which not even completely
proved, is not reasonable. Hence, withholding of one
annual grade increment without cumulative effect is
reasonable punishment to be awarded to the Petitioner.
14.In view of the fore gone discussion, Petitioner is
to be reinstated into service consequent to the declaration
that the impugned order No.P/MM/7/2/01/4279 dated
14.9.2001 as illegal and arbitrary and setting aside the same.
Instead Petitioner shall be awarded with the punishment
of stoppage of one annual grade increment without
cumulative effect. He is entitled for 50% of back wages
only as he is found to be liable for punishment, though it
is the lesser punishment than the one imposed to him by
virtue of impugned order. He is entitled for all other
attendant benefits.
This point is answered accordingly.
Result :
In the result, petition is allowed. The impugned
order No.P/MM/7/2/01/4279 dated 14.9.2001 is hereby
declared as illegal and arbitrary and is hereby set aside.
The Petitioner shall be reinstated into service as badli
filler forthwith, with effect from 26.9.2001. Heshall be
awarded with the punishment of stoppage of one annual
increment without cumulative effect. He is entitled for
50% of back wages only, but he is entitled for all other
attendant benefits.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 26th
day of May, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
5256
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 7 tqykbZ] 2014
dk-vk- 2008.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l- lh- lh-
,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ
la[;k 111/2006½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
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[la- ,y&22013@1@2014&vkbZvkj¼lh&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O.
2008.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 111/
2006) of the Central Government Industrial Tribunal-cum-
Labour Court, Hyderbad as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the SCCL and their workman, which
was received by the Central Government on 07/07/2014.
[No. L-22013/1/2014-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
PRESENT : SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 13th day of May, 2014
INDUSTRIAL DISPUTE L.C.No. 111/2006
Between:
Sri S. Rajendra Prasad,
S/o Rayamallu,
R/o C/o Smt. A. Sarojana,
Advocate, Flat No. G7,
Rajeshwari Gayatri Sadan,
Opp: Badruka Girls Jr. College,
Kachiguda, Hyderabad
...Petitioner
AND
1. The General Manager,
M/s. Singareni Collieries Company Limited,
Srirampur (P) Area, Srirampur, Adilabad Dist.,
Kothagudem, Khammam, Dis.,
2. The Colliery Manager/SOM,
RK-7, Incline, Singareni Collieries
Company Limited,
Srirampur, Adilabad
...Respondents
APPEARANCES:
For the Petitioner
: M/s. A. Sarojana & K. Vasudeva
Reddy, Advocates
For the Respondent : Sri M. V. Hanumanth Rao,
Advocates
AWARD
This is a petition filed by Sri S. Rajendra Prasad, the
workman invoking section 2 A (2) of I. D. Act, 1947, seeking
for declaring the impugned office order dated 25-12-2001
issued by the 1st Respondent as illegal and arbitrary and
to set a side the same consequently directing the
respondent to reinstate him in to service duly granting all
consequential benefits such as continuity of service, back
wages and other attendant benefits.
2. The Averments made in this petition in brief are
as follows :
The petitioner was appointed as Badli filler on 31-3-
1999 and since then he has been working at R.K. 7 incline
while so the charge sheet dated 29-5-2001 was issued
alleging that the petitioner was absent from duty without
sanction of leave or sufficient cause from 25-2-2000 to
28-5-2001. As such it amounts to misconduct under
company standing order No. 21.31. The petitioner has
submitted his explanation on 27-6-2001. Without
considering the merits of the submission made by the
petitioner enquiry was conducted. During the enquiry
proper opportunity was not given to the petitioner.
Procedure of the enquiry was not explained to the
petitioner. He was not offered the assistance of any
defence assistance. The enquiry officer grossly erred in
holding the charges as proved in his enquiry report. The
said findings are not supported by any reasons much less
valid. 1st Respondent/ Disciplinary Authority failed to
apply his mind independently and failed to consider the
submission made by the petitioner arrived at wrong
conclusion and passed the inclined order dismissing the
petitioner from service. The conduct of the enquiry and
the action of the disciplinary authority indicate that they
proceeded with predetermined manner to punish the
petitioner. The documents relied upon by the Enquiry
Officer were neither shown to the petitioner not supplied
to him. He was not asked to produce his witnesses. The
evidence of the petitioner remained unrebutted. Despite
neither Enquiry Officer not the disciplinary authority
considered his submission. The impugned order also does
not indicate any reasons for the findings much less valid.
Even other wise punishment of dismissal from service is
too harsh, excessive and disproportionate to the charges
alleged. Petitioner is to look after his aged mother,
unemployed elder brother and two unmarried sisters and
he is only breadwinner of the family. Due to his dismissal
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5257
from service the entire family became destitute. Petitioner
remained unemployed all along from 25-12-2001. Hence,
the petitioner craves the indulgence of the court to modify
his punishment to any of lesser penalty so as to survive
himself and took after his family. Hence, this petition.
3. Respondents filed their counter with the
averments in brief as follows :
The petitioner straight-away approached this
Tribunal invoking section 2 A (2) of I.D. Act, 1947 though
the state amendments is not applicable to the dispute
where appropriate Govt. is Central Government. Thus this
petition is not maintainable. Since the petitioner was
absent from duty without sanction of leave or sufficient
cause from 25-2-2000 to 28-5-2001 charge sheet was issued
against him. He gave his explanation, which was not
satisfactory. Hence, departmental enquiry was ordered
and the same was conducted incompliance of principals
of natural justice. The petitioner was participated in this
enquiry fully. As the charges have been proved,
inconsideration the enquiry findings as well as the
submission made by the petitioner, the disciplinary
authority has passed the impugned order which is just
and reasonable. The petitioner was given due opportunity
during the enquiry. He informed that he would not avail
the services of any defence assistance. The procedure of
the enquiry was duly explained in Telugu. Though
opportunity was given to him, he did not produce any
witnesses on behalf. All the enquiry proceedings was
explained to the petitioner in Telugu Language and after
fully under standing the same he put his Thumb mark.
The contention of the petitioner was that the proceedings
of the enquiry officer as well as the disciplinary authority
were conducted in predetermined notion is incorrect. The
petitioner pleaded that on account of sickness he could
not be regular to his services and that the evidence
remained unrebutted is all incorrect. During the year 1999
his attendance was 59 days and in the year 2000 it was 6
days and up to May 2001 it was NIL. The same resulted
into taking disciplinary action against him. Such an
unauthorized absence creates sudden void which at time
is very difficult to fill up and the planned schedules get
suddenly disturbed causing much inconvenience and loss
to the company. Hence, respondent company is compelled
to take server action against the authorized absentees.
The petition is liable to be dismissed.
4. Learned Counsel for the petitioner filed a memo
stating that petitioner does not challenge the validity of
domestic enquiry and that the case will decided on the
basis of material available on record. In view of this memo,
this court held that the Domestic Enquiry conducted in
this case as valid by virtue of order dated 12-2-2001.
5. Heard the arguments of either parties u/s 11(A)
of I.D. Act, 1947.
6. The points that arise for determination are :
I. Whether the impugned order of the 1st
Respondent dated 25.12.2001 is liable to be set a
side ? If so, on what grounds.?
II. To what relief petitioner is entitled to ?
7. Point No. 1 : It is an admitted fact that the
petitioner remained absent from duty from 25-2-2000 to
28-5-2001 for the period for which the charge sheet has
been raised against him invoking standing order 21.31. It
is also an undisputed fact that the petitioner has not got
sanctioned any kind of leave for this absented period.
But, it is his claim that there is sufficient cause for him to
be absent from duty and inspite of his explaining the same
and deposing of the same the enquiry officer and the
disciplinary authority failed to consider it.
8. As can be seen from the material on record, it is
the contention of the petitioner that due to severe Knee
joint pains he was unable to walk and was admitted Govt.
Community Hospital, Peddapally for treatment and for this
reason he could not attend to his duty and also he was
unable report sick either. He also claimed that he is sole
breadwinner of the family and begged for giving another
opportunity promising that he would be regular for duty.
During the enquiry proceedings he made a statement before
the enquiry also to the same effect. As can be gathered
from the cross examination to which petitioner was
subjected to by the presenting officer who conducted
the case on behalf of the management during the enquiry,
the management has not actually disputed with the truth
of the contentions of petitioner regarding his sickness.
They are aggrieved for the reasons that petitioner remained
absent from duty for long period without duly sanctioned
leave, only. Thus it is very much clear that the management
also is not disputing with the fact that there is sufficient
cause for the petitioner being absent from duty during the
period complained of in the charge sheet.
9. In view of the foregone discussion one can
reasonably understand that the conduct of the petitioner
does not fall under the category of misconduct mentioned
in the standing orders as there is sufficient cause for the
prolonged absence of the petitioner from duty. But of
course, petitioner is at fault for some how or other not
conveying to the management regarding his inability to
attend to his duties at the relevant time.
10.But, the 1st respondent has chosen to award the
gravest punishment provided for in the standing orders,
i.e., dismissal from service. It is not justified for the reason
that as already held above there is sufficient cause for the
petitioner being absent from duty during the charge
sheeted period and the said cause is not in dispute. If at
all the petitioner would have been punished, it must have
been for his not reporting to the management regarding
his inability to attend to his duties only but, not for the
5258
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
absenteeism itself. For such conduct the appropriate
punishment would be either censure or with holding an
Annual Grade Increment. But unfortunately without
considering all these aspects petitioner has been dismissed
from service by virtue of the impugned order. Thus it is
liable to be set a side.
This point answered accordingly.
11. Point No. II : In view of the finding given Point
No.1 the impugned order of the 1st Respondent dated
25-12-2001 where under the petitioner has been dismissed
from service is liable to set a side. Consequently he is to
be directed to be reinstated into service forthwith.
12. Considering the fact that unreasonably Petitioner
is made to suffer unemployment all these years there is no
need for awarding any lesser punishment either for the
lapse of not reporting to authority regarding his inability
to attend to duty at the relevant time, either. In this regard
the ailment of the Petitioner which is not in dispute is also
being taken note of.
13. Petitioner is entitled for continuity of service
from 25-12-2001, back wages and all other attendant
benefits also.
This point is answered accordingly.
RESULT :
In the result the petition is allowed. The impugned
order of the 1st respondent dated 25-12-2001, where under
the petitioner has been dismissed from service, is hereby
set a side. The petitioner shall be reinstated into service
forthwith. He is entitled for continuity of service from
25-12-2001, back wages and all other attendant benefits.
Award is passed accordingly. Transmit.
Typed to my dictation by the L.D.C-cum-Typist and
corrected by me on this the 13th day of May, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 7 tqykbZ] 2014
dk-vk- 2009.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l- lh- lh-
,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 48/
2006½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 07@07@2014
dks izkIr gqvk FkkA
[la- ,y&22013@1@2014&vkbZvkj¼lh&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O. 2009.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award of the Central
Government Industrial Tribunal-cum-Labour Court,
Hyderabad (Ref. No. 48/2006) as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of the SCCL and their workmen, which
was received by the Central Government on 07/07/2014.
[No. L-22013/1/2014-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
PRESENT: - SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated this the 13th day of May, 2014
INDUSTRIAL DISPUTE L.C. No. 48/2006
Between:
Sri Kota Ravi, S/o Mallaiah,
R/o C/o Smt. A.Sarojana, Advocate,
Flat No.G-7, Rajeshwari Gayatri Sadan,
Opp : Badruka Girls Jr. College,
Kachiguda, Hyderabad
...Petitioner
AND
1. The General Manager,
M/s Singareni Collieries Company Ltd.,
Mandamarri, Adilabad Dist.,
2. The Colliery Manager, KK-5A Incline,
Singareni Collieries Company Ltd.,
Mandamarri, Adilabad Dist.
...Respondents
APPEARANCES:
For the Petitioner
: M/s. A. Sarojana & K. Vasudeva
Reddy, Advocates
For the Respondent : M/s. P.A.V.V.S. Sarma & Vijaya
Laxmi Panguluri, Advocates
AWARD
This is a petition filed by Sri Kota Ravi the workman
Invoking section 2 A( 2 ) of I. D. Act, 1947, seeking for
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5259
declaring the impugned office order dated 05-11-1998
issued by the 1st Respondent as illegal and arbitrary and
to set a side the same consequently directing the
respondent to reinstate him in to service duly granting all
consequential benefits such as continuity of service, back
wages and other attendant benefits.
2. The Averments made in this petition in brief are
as follows :
The petitioner was appointed as Badli filler on
8-2-1996 by way of dependent employment. Charge sheet
dated 30-5-1998 was issued alleging unauthorized
absenteeism without any sufficient cause during the year
1997. Petitioner submitted his explanation on 24-7-1998
pleading that as he has been suffering with abdomen tuber
culosis, he was under going treatment and submitted
medical certificate also. But without considering the same
and with predetermined notion a departmental enquiry was
conducted. During the said enquiry no opportunity much
less valid was given to the petitioner. He was not explained
the procedure of the enquiry. The assistance of defence
assistant was not offered to him. He was not given
opportunity to produce his witnesses. Petitioner was not
given opportunity to cross examine the management
witnesses. The enquiry proceedings was not conducted
in the language known to the petitioner and the same were
not explained in the language known to him. Though the
enquiry officer framed the issue whether the charge alleged
against the petitioner with regard to the absenteeism
without sufficient case is proper or not, the said issue was
not considered properly and objectively. The medical
Certificate submitted by the petitioner was not doubted
but, the enquiry office has not considered it objectively.
As a result of improper conduct of enquiry petitioner was
put to grave prejudice. The disciplinary authority also
has not; considered the submissions made by the
petitioner while arriving at the conclusion. He failed to
apply his mind independently while issuing the impugned
order of dismissal of the petitioner from service. Since
he was dismissed from service, petitioner suffered many
hardships. Due to financial stringencies. Petitioner could
not approach the Tribunal immediately. He is sole
breadwinner of the family and the entire family is suffering
due to petitioner loosing his job. Even other wise
punishment of dismissal from service is too harsh,
excessive and disproportionate to the charges alleged.
Petitioner is to look after his aged mother, unemployed
elder brother and two unmarried sisters and he is only
breadwinner of the family. Due to his dismissal from service
the entire family became destitute. Petitioner remained
unemployed since his dismissal. Hence, the petitioner
craves the indulgence of the court to modify his punishment
to any of lesser penalty so as to survive himself and took
after his family. Hence, the petition.
3. Respondents filed their counter with the
averments in brief as follows :
The petitioner straight-away approached this
Tribunal invoking section 2 A(2) of I.D. Act, 1947 though
the state amendments is not applicable to the dispute
where appropriate Govt. is Central Government. Thus this
petition is not maintainable. Petitioner has put in only 3
musters during the year 1997. Thus charge sheet was
issued on 30-5-1998 under standing order No. 25.25 which
reads as:-
“25.25”:- Habitual late attendance or habitual
absence from duty without sufficient cause”.
As a responsible employee petitioner ought to have
informed to the unit authority / area authority about his ill
health and its seriousness and also his constraints in
attending to duty and obtain permission to under take
treatment in private hospital or other wise he should report
sick in colliery hospital for under going treatment. He
should kept sanctioned loss of pay leave instead of
remaining absent duty on his own. But on receipt of charge
sheet he gave written explanation stating that he suffered
from Tuber Culosis abdomen from February to 15th
December, 1997 enclosing medical certificate. Except that
certificate no other evidence is produced regarding the
aliment. Respondent Company operating his own
Dispensary Area Hospital and main Hospital for extending
medical aid to its employees and their dependents. If case
demands Respondent company refer the patient to Super
specialty Hospital, Hyderabad for better treatment. There
is no need for petitioner under go treatment elsewhere.
Respondent Company cannot entertain the medical
certificate like the one produced by the petitioner. The
enquiry was conducted in fair manner giving every
opportunity to the petitioner to conduct his defence. The
principals of natural justice were complied with. Petitioner
participated in the proceedings fully. Petitioner was given
opportunity cross examine the management witness. But
he did not avail the same. The proceedings were very
much recorded in his presence and satisfied with same he
put his signature. At every point of time the enquiry officer
explained the contents of the enquiry proceedings to the
petitioner in Telugu. He admitted his misconduct and
pleaded guilty while giving his deposition. He never raised
any objection on the conduct of the enquiry either at the
time of enquiry or when the enquiry report and proceedings
were supplied to him. He made his representation dtd: 20-
10-98 but, he did not raise any objection either on the
enquiry proceedings or on the enquiry findings. After
lapse of 7 years from the date of dismissal he is making
baseless allegations. His attendance during the years
1996, 1997 and 1998 was very poor. Considering the same
the impugned order was passed. The respondents not
aware of the financial stringencies and hardship of the
petitioner. He is to substantiate the same. The contentions
of the petitioner is that the enquiry officer as well as the
5260
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
disciplinary authority have conducted the respective
proceedings in pre determined notion is far from truth.
Unauthorized absenteeism creates sudden void which at
time is very difficult to fill up and the planned schedules
get suddenly disturbed causing much inconvenience and
loss to the company. Hence, respondent company is
compelled to take server action against the authorized
absentees. The petition is liable to be dismissed.
4. Petitioner filed a memo stating that he is
conceding to the legality and validity of domestic enquiry
conducted in this case. Basing on the said memo this
court held that domestic enquiry conducted in this case
as valid by virtue of order dated 26.6.2009.
5. Heard the arguments of either party under
Sec.11A of the Industrial Disputes Act, 1947.
6. The points that arise for determination are :
I. Whether the impugned order of the 1st
Respondent dated 5-11-1998 is liable to be set a
side ? If so, on what grounds.?
II. To what relief petitioner is entitled to ?
7. Point No. I : It is an admitted fact that the
petitioner remained absent from duty during the year 1997
for the period for which the charges sheet has been raised
against him invoking standing orders 25.25. It is also an
undisputed fact that the petitioner has not got sanctioned
any kind of leave for this absented period. But, it is his
claim that there is sufficient cause for him to be absent
from duty and inspite of his explaining the same and
deposing of the same the enquiry officer and the
disciplinary authority failed to consider it.
8. It is the contention of the petitioner that he was
suffering from Tuber Culosis abdomen and was under
going treatment and thus he was unable to attend to his
duty during the year 1997. It is an admitted fact that he
produced a medial certificate also to substantiate his
contention. Even during the enquiry he made a consistent
statement regarding his sick ness. He gave an explanation
for not taking treatment from company’s Hospital stating
that his village is far away from Company’s Hospital and
there fore he took treatment from Dr. V.Vasudev Rao of
Karimnagar. Though petitioner was cross examined at
length for management, not even a suggestion is given to
him doubting the truth of his contentions regarding his
sick ness. The same would naturally give raise to an
understanding that the management accepted his
contentions with this regard.
9. No doubt, time and again petitioner was asked
during enquiry whether he was pleading guilty or not and
he answered that he was pleading guilty. But over all
impression, the material on record gives is, that the plea
of guilt made by the petitioner is a qualified plea only
because all along he has been explaining the reason for
his absence as his sick ness i.e, Tuber Culosis abdomen.
His plea of guilt there fore can be taken as limited to his
unauthorized absence from duty and that he never admitted
that his absence was not without sufficient cause.
10. When it is the contention of the petitioner that
he suffered with Tuber Culosis Abdomen and has taken
prolonged treatment for the said disease, if the respondent
company is interested in culling out the truth nothing
prevents them to refer the petitioner to any of the medical
experts who are working for them in their various hospitals,
but they have not done so. Petitioner is a poor workman.
He cannot produce the medical doctor who treated him
before the enquiry officer by meeting the required
expenses. But, the management who is supposed to be
responsible towards their employees must take all steps
possible to arrive at the truth in the interest of justice to
the said employee as well as the Respondent organization.
11. In view of the foregone discussion one can
reasonably understand that the conduct of the petitioner
does not fall under the category of misconduct mentioned
in the standing order 25.25 as there is sufficient cause for
the prolonged absence of the petitioner from duty. But of
course, petitioner is at fault for some how or other not
conveying to the management regarding his inability to
attend to his duties at the relevant time which certainly
resulted into inconvenience to the Respondent
Management.
12. But, the 1st respondent has chosen to award the
gravest punishment provided for in the standing orders,
i.e., dismissal from service. It is not justified for the reason
that as already held above there is sufficient cause for the
petitioner being absent from duty during the charge
sheeted period and the said cause is not in dispute. If at
all the petitioner would have been punished it must have
been for his not reporting to the management regarding
his inability to attend to his duties only but, not for the
absenteeism itself. For such conduct the appropriate
punishment would be either censure or with- holding of
Annual Grade Increment. But unfortunately without
considering all these aspects petitioner has been dismissed
from service by virtue of the impugned order. Thus it is
liable to be set a side.
This point answered accordingly.
13. Point No. II : In view of the finding given Point
No.1 the impugned order of the 1st Respondent dated
5-11-1998 where under the petitioner has been dismissed
from service is liable to set a side. Consequently he is to
be directed to be reinstated into service forthwith.
14. Considering the fact that most unreasonably
Petitioner is made to suffer unemployment all these years
there is no need for awarding any lesser punishment either
for the lapse of not reporting to authority regarding his
inability to attend to duty at the relevant time, either. In
this context the serious ailment suffered by the Petitioner
at the relevant time is also to be considered.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5261
15.Petitioner is entitled for continuity of service from
5-11-1998, back wages and all other attendant benefits
also.
This point is answered accordingly.
RESULT :
In the result the petition is allowed. The impugned
order of the 1st respondent dated 5-11-1998 where under
the petitioner has been dismissed from service, is hereby
set a side. The petitioner shall be reinstated into service
forthwith. He is entitled for continuity of service from 5-
11-1998, back wages and all other attendant benefits.
Award is passed accordingly. Transmit.
Typed to my dictation by L.D.C-cum-Typist and
corrected by me on this the 13th day of May, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 7 tqykbZ] 2014
dk-vk- 2010.—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-
lh- lh- ,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ
la[;k 73/2013½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
07@07@2014 dks izkIr gqvk FkkA
[la- ,y&22012@76@2013&vkbZvkj¼lh,e&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O.
2010.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 73/2013)
of the Central Government Industrial Tribunal/Labour
Court, Hyderbad now as shown in the Annexure in the
Industrial Dispute between the management of the M/s.
Singareni Colleries Co. Ltd., and their workmen, which
was received by the Central Government on 07/07/2014.
[No. L-22012/76/2013-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
PRESENT: - SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 2nd day of June, 2014
INDUSTRIAL DISPUTE I. D. No. 73/2013
Between:
The President,
(Sri Bandari Satyanarayana)
Telangana Trade Union Council,
H.No.-5-295, Indra Nagar,
Opp. Bus Stand, Mancherial,
Adilabad Dist. – 504208
...Petitioner
AND
1. The General Manager,
M/s. Singareni Collieries Company Limited,
Bellampalli Area, Goleti Township(P.O.)
Adilabad Dist.-504292
...Respondent
APPEARANCES:
For the Petitioner
: NIL
For the Respondent : M/s. P.A.V.V.S. Sarma &
V.S.V.S.R.S. Prasad, Advocates
AWARD
The Government of India, Ministry of Labour by its
order No. L-22012/76/2013-IR(CM-II) dated 8.7.2013
referred the following dispute between the management
of M/s. Singareni Collieries Company Ltd., and their
workman under section 10(1)(d) of the I.D. Act, 1947 for
adjudication to this Tribunal. The reference is,
SCHEDULE
“Whether the action the management of General
Manager of M/s. Singareni Collieries Company Ltd.,
Bellampalli Area, Goleti Township(P.O.), Adilabad
Distt., in terminating the services of Sri Erla Saraiah,
Ex-Coal Filler, Goleti-1 Inc., SCCo Ltd., Bellampalli
Area with effect from 1.6.2002 is justified or not? If
not, to what relief the applicant is entitled for?”
The reference is numbered in this Tribunal as I.D. No. 73/
2013 and notices were issued to the parties.
2. The case stands posted for appearance of the
Petitioner, filing of claim statement and documents by the
Petitioner.
3. Petitioner called absent and there is no
representation. Inspite of serving notice twice, Petitioner
is not appearing and taking interest in the proceedings. In
the circumstances, taking that there is no claim to be made
by the Petitioner, ‘Nil’ award is passed.
Award passed accordingly. Transmit.
5262
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant, corrected by me on this the 2nd day of
June, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 7 tqykbZ] 2014
dk-vk- 2011.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l- lh- lh-
,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 63/
2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 07@07@2014
dks izkIr gqvk FkkA
[la- ,y&22012@118@2012&vkbZvkj¼lh,e&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O. 2011.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 63/2012)
of the Central Government Industrial Tribunal/Labour
Court, Hyderbad now as shown in the Annexure in the
Industrial Dispute between the management of the
M/s. Singareni Colleries Co. Ltd., and their workmen, which
was received by the Central Government on 07/07/2014.
[No. L-22012/118/2012-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
PRESENT: - SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 16th day of May, 2014
INDUSTRIAL DISPUTE No. 63/2012
Between :
The Vice-President(Sri Bandari Lingaiah),
Singareni Collieries Employees Union(CITU),
Qtr.No.T-39, SMG X Road,
Somagundem, (Via Bellampally)
Adilabad Distt. – 504251
...Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Ltd.,
Bellampalli Area, Goleti Township,
Adilabad District – 504 292
...Respondent
APPEARANCES :
For the Petitioner
: None
For the Respondent : Representative
AWARD
The Government of India, Ministry of Labour by its
order No. L-22012/118/2012-IR(CM-II) dated 3.10.2012
referred the following dispute under section 10(1)(d) of
the I.D. Act, 1947 for adjudication to this Tribunal between
the management of M/s. Singareni Collieries Company
Ltd., and their workman. The reference is,
SCHEDULE
“Whether the action of the Chief General
Manager, M/s. Singareni Collieries Company Ltd.,
Bellampally area, Goleti Township, Adilabad Dist.,
in terminating the services of Sri Dasari Banaiah,
Ex-Coal Filler, Goleti-1 Inc., w.e.f. 21.5.2007 is
justified or not? To what relief the applicant is
entitled for?”
The reference is numbered in this Tribunal as I.D. No. 63/
2012 and notices were issued to the parties concerned.
2. The case stands posted for filing of claim
statement and documents by the Petitioner.
3. At this stage, Petitioner called absent.
No representation. Inspite of issuance of two notices,
both of which returned served, Petitioner is not present.
Thus, taking that Petitioner got no claim to be made and
that he is not interested in the proceeding, ‘Nil’ award is
passed.
Award is passed accordingly. Transmit.
Typed to my dictation by Lower Division Clerk
and corrected by me on this the 16th day of May, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 7 tqykbZ] 2014
dk-vk- 2012.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,Q- lh- vkbZ-
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5263
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 20/
2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 07@07@2014
dks izkIr gqvk FkkA
[la- ,y&22012@361@2003&vkbZvkj¼lh,e&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 7th July, 2014
S.O. 2012.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 20/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Hyderabad as shown in the Annexure, in the
industrial dispute between the management of Food
Corporation of India,, and their workmen, received by the
Central Government on 07/07/2014.
[No. L-22012/361/2003-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
Present
:
SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 29th day of April, 2014
INDUSTRIAL DISPUTE No. 20/2005
Between:
Joint Secretary,
Food Corporation of India Workers Union,
58/1, Diamond Harbour Road,
Kolkata – 700023
...Petitioner Union
AND
1. The District Manager,
Food Corporation of India,
District Office, 47-11-7, II Floor,
Dwarakanagar,
Visakhapatnam -530016.
2. The Senior Regional Manager,
Food Corporation of India,
Regional Office, Haca Bhavan,
Hyderabad – 500 004
...Respondents
APPEARANCES :
For the Petitioner
: Sri Chandana Suryanarayana,
Advocate
For the Respondent
: M/s. B.G. Ravindra Reddy,
Advocates
AWARD
The Government of India, Ministry of Labour by its
Order No. L-22012/361/2003-IR(CM-II) dated 4.10.2004 the
Government of India, Ministry of Labour and Employment,
made a reference requiring this Tribunal to adjudicate the
dispute,
“Whether the contract between FCI Contract
Cooperative Society, Bobbili and FCI Management
was sham and whether the demand of FCI workers
union for reinstatement/regularization of 72 workers
(who were terminated with effect from 27.10.2002) in
the establishment of FCI is legal and justified? If
yes, to what relief the workmen are entitled?”
On receiving the said reference this Tribunal issued
notices and secured the presence of both the workers
union/Petitioner and the Management/Respondent. Sri
Chandana Suryanarayana appeared on behalf of the
Petitioner union and M/s. B.G. Ravindra Reddy, Advocates
appeared on behalf of the Respondent Management with
the leave of the Tribunal.
2. The Petitioner Union has filed claim statement
with the averments in brief as follows :
Petitioner union is the only union and representative
organization of the workers of FCI through out India. Food
Corporation of India was constituted by an Act of
Parliament (Act 37 of 1964) with the object and purpose of
procuring food grains, storing and distribute the same in
different parts of India including the State of Andhra
Pradesh. Direct payment system was introduced in respect
of the workers of different depots of Food Corporation of
India in the year 1997 vide circular dated 5.11.1997. Earlier
the handling work at the godowns at various depots of
the said corporation was done through private contractors.
There was discontentment among the labour force working
under the private contractors and they demanded for
abolition of contract labour system. This lead to the
departmentalisation of the labour force consisting of
handling Mazdoors, Sardars, Munshis/Mandals Ancillary
mazdoors and hamalis at some of the depots of the
corporation. This departmentalisation commenced in the
year 1970 and it was introduced gradually in stages and
has been extended to major ports and depots in port towns
as well as the other regions including Andhra Pradesh
region. Corporation is having handling labour under
cooperative societies called labour contract cooperative
societies in various depots of Andhra Pradesh. Such
societies are formed by workers themselves. There will be
no outsider. President and Secretary of the said society
also will be the workmen. Respondent corporation
introduced Direct payment system in respect of mazdoors,
hamalis worked under labour contract cooperative
societies of Charlapalli, Sanathnagar, Davaleswaram,
Samarlakota, Pennada, Gimmikunta, Nidadavolu,
5264
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Tadepalligudem, Aakiveedu, Hanuman Junction,
Gudiwada, Aluru, Khammam, Sattenapalli, Timancherla,
Nallagunda, Chittor, Visakhapatnam, Amadalavalasa and
Ongolu etc.. in Andhra Pradesh. Petitioner society is
having 72 workers as members. The said union is under
number 591 Food Storage Depot, Bobbili and it is of the
same status of the depots mentioned above, which come
under Visakhapatnam district. These 72 workers used to
carry on the work at FSD, Bobbili including the hired
godowns like J.K.J.R., A.M.C., since more than 30 years.
They used to carry on the work most obediently and
sincerely and eaking out their livelihood. The job
description of DPS workers working by forming labour
cooperative society, Bobbili godowns and railway siding
are same. They are all doing the job of unloading of food
grains from the wagons, trollys, carts and stock them in
godown, unloading to wagons and loading into trucks,
lorries when required, re-stocking food grains in godowns,
loading stock in transport vehicles, unloading the wagons
and stocking in the shed platform or ground. Making
delivery to recipients duly loading and stocking in their
trucks, making weighment, physical verification and
standardisation, filling gunnies with food grains to the
prescribed weight and stick and stock/load and make
delivery and salvage the damaged food grains and such
duties. While so in the year 1990 all the 72 workers whose
list is annexed with the petition formed labour contract
society, Bobbili under advice from Food Corporation of
India and got it registered duly with the Dy. Registrar of
Cooperative Society, Parvathipuram. Food Corporation
of India recognised the same. They elected body of the
society within the workmen and the works were carried by
the said society at food storage depot and other hired
godowns of Food Corporation of India at Bobbili. From
time to time Food Corporation of India extended contract
works to the society. All the 72 workers under the society
got health approval to carry on the works and they were
working since more than 30 years and since 1990 by
forming the society. Without any interruption. So it is
clear that the contract between Food Corporation of India
and society is nothing but a sham contract and the workers
of the society are workers of the Food Corporation of
India. All these workers who are carrying on the works
of Food Corporation of India since 30 years are entitled
for introduction of direct payment system on par wit the
other societies. They are all entitled for regularization of
services. Originally Food Corporation of India obtained
lease for a period of 99 years in respect of godowns from
the railways. Thus, the said godowns became the
permanent godowns of Food Corporation of India. Food
Corporation of India is the absolute owner of the godowns
of food storage depot, Bobbili. So they need not shift the
work to any other godowns. While the godowns near
railways siding at Bobbili are existing under the lease for a
period of 99 years which is not yet completed. Since
decades the workers of the union have been demanding
for introduction of direct payment system. However, to
their surprise and dismay the Management of Food
Corporation of India suddenly stopped the work at food
storage depot, Bobbili in September, 2002. The workers
sent a representation for continuation of their work and
FSD, Bobbili for which there is no action from FCI authority.
However, they opened a new godown at Antipeta village
in Sitanagaram Mandal, which is within 10 KMs radius
from FSD, Bobbili. No prior notice was given to the workers
of the Petitioner union. Thus, there is violation of the
provisions of Industrial Disputes Act, 1947. Respondent
high handedly engaged new labourers at Antipeta.
The work was shifted to Antipeta godown. The workers
of the Petitioner union agitated for their reinstatement and
for continuation of their services either at FSD Bobbili or
at Antipeta. The workers of any of the closed godowns
all over India, have been accommodated in other depots
by way of transfer, but no action has been taken in respect
of the 72 workers of the Petitioner union so far and they
are all suffering starvation and hunger as they become
jobless. The conciliations held to settle the dispute
amicably were in vain. Hence, the reference is made.
The Respondent Management is to be directed to
introduce direct payment system and its benefits in respect
of the workers who are working for last 30 years and by
forming an Food Corporation of India labour co-operative
society for last 20 years at FSD, Bobbili and who are 72 in
number, for reinstatement of their services at FSD Bobbili
or any other godown of Food Corporation of India with
full back wages.
3. Respondent corporation filed his counter with
the averments in brief as follows :
For the purpose of storage of food grains
Respondent corporation used to acquire open storage
units and air strips during the peak procurement season.
In this process the District Manager, Food Corporation of
India, Srikakulam had acquired storage capacity of 2000
Mts spreading over an area of 30000 sft, from South
Eastern Railway, Bobbili, on lease. Handling and transport
work in the said depot was awarded to private contractors
on open tender basis every two years. Contractor used
to bring his own labourers for doing the work. The said
system was discontinued from 1989/1990 as per the policy
decision of the Food Corporation of India. Thereafter the
handling and transport works were awarded to the labour
contract cooperative society, Bobbili. Direct payment
system was not introduced in Bobbili depot and it is not
one of such depots notified for introduction of such
system. Therefore, there can not be any comparison
between depots notified for such system and Bobbili
depot. The allegation that the 72 workmen were working
for the past 30 years is not correct. The storage capacity
of Bobbili is to handed over back to the railways as per
their demand letter dated 28.2.2002 and 18.9.2002.
Incidentally the contract was given for a period 2 years
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5265
i.e., from 28.7.2000 to 27.7.2002. After expiry of the said
period contract was extended for further period of 3 months
i.e., upto 27.10.2002. The premises was accordingly being
handed over back to railways. Thus, the operations were
totally closed at Bobbili depot as per headquarters
instructions. The corporation has introduced a scheme to
take over private godowns, through APSWC under 7 years
guarantee scheme. As per the said scheme, maintenance
of stocks, handling and transport operations etc. will be
the responsibilities of APSWC for storage and H & T
works the Food Corporation of India will pay to APSWC.
APSWC offered storage accommodation at APSWC
Jiyyannavalasa, Antipeta along with other investor
godowns at KL Puram and other places. As a result there
was no requirement for the services of the labour contract
cooperative society. The persons referred to in the dispute
were never employed by the Respondent at any point of
time in any capacity directly. There is no relationship of
employer and employee between the Respondents and
the said persons. Thus, they can no not demand for
reinstatement into service. Their demand for direct
payment system is also baseless. There was no
appointment of these persons hence, there is no
termination of services either. The labour society was the
contractor during the relevant point of time. Demand of
the union either for reinstatement or for regularization does
not arise. A suit filed by the society for its continuance
and for damages for discontinuance was already dismissed
and the matter became final. The claim of the Petitioner is
liable to be dismissed.
4. To substantiate the contentions of the Petitioner,
WW1 to WW3 were examined and Ex.W1 to W 12 were
marked. On behalf of the Respondent Management MW1
was examined and Ex.M1 to M25 were marked.
5. Heard the arguments of either party. Written
arguments also filed by either party and the same are
received and considered.
6. The points arise for determination are :
I.
Whether the contract between the Petitioner
union and the Respondent were sham?
II.
Whether the 72 workmen who are members of
the Petitioner union are entitled for
reinstatement/ regularization with effect from
27.10.2002 the date on which they were
terminated?
III. To what relief the workmen are entitled for?
7. Point No. I :
As can be gathered from the material on record, by
taking the land belonging to South Central Railway on
permanent lease, the Respondent corporation has
established their godown at Bobbili for the purpose of
storage, preservation, handling and transportation etc.,
of the food grains. Originally all the works of the godown
were being entrusted to private contractors. The various
workmen who are all members of the Petitioner union and
who are 72 in number were working under private
contractor for this godown. Due to the policy of the
Management of the Food Corporation of India the private
contract system has been abolished in the year 1990 and
all the workers who have been working for the godown
but under private contractor until then, have been asked
to formulate a society for them and accordingly Petitioner’s
society have been formulated by the workers and the said
workers continued to work for the said godown. All these
workers were subjected to the required medical tests and
medical fitness certificates were issued by the Medical
Officer of the Food Corporation of India i.e., the
Management herein, as can be gathered from the evidence
of MW1. Further, the evidence on record clearly discloses
that there is employees portion as well as the employers
portion of the provident fund subscriptions in respect of
all these workmen are being made by these workmen and
the Respondent Management. This fact also can be culled
out from the evidence of MW1 apart from the evidence
adduced on record for the Petitioner.
8. No doubt, no direct payment of wages system
was in vogue in respect of the Bobbili godown of the
Respondent. As can be gathered from the record after
such system has been introduced in various other
godowns of the Respondent, the Petitioner union
requested the Management to extend the said benefit to
the workers of the Bobbili godown also but in vain. It is
the constant demand of the workmen to extend such benefit
to them. While MW1 was in cross examination, he stated
that the direct payment system to workers pertaining to
various cooperative societies has been introduced in
Andhra Pradesh and that the nature of work undertaken
by the workers of Bobbili depot and that pertaining to
other depots in which Direct Payment System was
introduced is one and the same. Thus, it is clear that for
various other workers who have formed as cooperative
societies and were working for various other Food
Corporation of India godowns in the state of Andhra
Pradesh the direct payment system has been introduced
but as far as the members of Petitioner union are concerned,
it was not done. No reason could be given by the
Respondent for not extending the said benefit to the
Petitioner union.
9. But in any view of the matter what one can
understand from all the above discussed evidence is that,
the contract said to have been in existence between the
Petitioner union and the Respondent Management is not
a genuine contract and that it is only sham and nominal
contract brought into existence after private contract
system was abolished.
5266
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
10. For years together, the workmen were engaged
by the Respondent for the godown work paying wages to
them through their union but contributing the employer’s
portion of provident fund and also verifying the medical
fitness of all the workmen through their medical officer.
This conduct on their part clearly makes out that for all
purposes all these workmen are being treated as direct
employees of the Respondent Management only. They
merely formed as an union that too at the advice of the
Management only to facilitate the Management and thus
the contract said to have been formulated between the
Petitioner union and the Respondent is certainly sham
and nominal contract and for all purposes it is to be taken
that the 72 members of the Petitioner union are only the
employees of the Respondent Management and therefore,
the relationship existing between them is that of employee
and employer respectively.
This point is answered accordingly.
11. Point No. II :
The evidence on record discloses that all of a sudden
Respondent closed Bobbili depot in the month of
September, 2002 opening another depot within 10KM
radius from the Bobbili depot i.e., at Antipeta. The services
of 72 workmen who are now before this Tribunal through
the Petitioner union were not engaged in the said new
depot though they were continuously working for Bobbili
depot since long time. They were not issued with any
notice. They were not paid any compensation or notice
pay. These are all admitted facts. While discussing Point
No.I above, it was found that the relationship of employer
and employee is in existence between the Management
and the 72 members of the Petitioner union whose names
are enumerated in the reference. In the given
circumstances, sudden closure of the Bobbili depot by
the Respondent Management thereby depriving the work
to all these workmen amounts to retrenchment. But,
admittedly none of the mandatory pre-requisites for
retrenching the workmen have been complied with by the
Respondent Management. This is certainly a grave lapse
on the part of the Respondent Management. This conduct
warrants immediate reinstatement of all the workmen into
service with effect form the date of such illegal
retrenchment with all attendant benefits, as per the well
established principles of law governing this area.
12. As can be seen from the material on record, for
same type of work done by the workmen of other depots
direct payment system has been introduced by the
Respondent and thereby regularising their services in
Respondent’s employment but, such benefit has been
denied to the workmen herein. As already discussed
above, for this discrimination no reason could be assigned
for the Respondent. Certainly this lapse also is to be
cured.
13. As can be gathered from the various documents
produced before the court, the Management has
contemplated reopening of the Bobbili depot and re-
entrustment of the work to the workmen herein and for
this purpose the Management called for some
undertakings from the workmen. Ex. W7 is one such letter
addressed by the Area Manager, Food Corporation of
India, to the organising Secretary of the Petitioner union.
In this letter Petitioner union was asked to give some
undertakings as a pre-requisite for reopening of the
godown at Bobbili. Ex.W8 is one another such letter.
Ex.W9 is the reply given by WW2 to the Management
expressing their readiness to give such undertakings.
As can be gathered from Ex.W10 to W12, the Management
agreed to reopen the godown immediately and start the
work with all the old workers. The civil engineering
department of the Respondent Management has made
estimates for repairing the godown for the purpose of
reopening. Considering all these circumstances it is just
and reasonable to direct the Respondent corporation to
take all further steps to reopen the said godown forth with
and provide work to the 72 workmen herein. Even
otherwise all these 72 workmen are to be directed to be
provided with work by directing the Respondent to
reinstate them into service. Their services also shall be
regularised by introducing direct payment system to them
on par with the workers of the various other godowns of
the Respondent corporation in the state of Andhra
Pradesh.
This point is answered accordingly.
14. Point No. III :
In view of the finding given in Point No.II all the 72
workmen who are members of the Petitioner union shall
be reinstated into the services of the Respondent with
effect from September, 2002. They all shall be extended
with the benefit of Direct payment system. They are
entitled for all attendant benefits including 50% of the
back wages. They are entitled for such back wages for the
reason that though discussions were held and decision
was arrived at for reopening of the godown and for
providing employment to all the se workmen by way of
reinstatement, as can be gathered from ex.W7 to W11, the
Respondent failed to do so, so far. The various
representations of the Petitioner union clearly indicate
that the workmen were pleading for the work all along but
in vain. Thus, they are entitled for back wages of atleast
50%.
This point is answered accordingly.
Result :
The reference is answered as follows:
The contract between the Petitioner union and the
Respondent Management is hereby declared as sham and
nominal. The demand of the Petitioner union i.e., F.C.I.
Workers union for reinstatement/regularization of the 72
workmen who are all terminated with effect from 27.10.2002
in the establishment of the Food Corporation of India i.e.,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5267
the Respondent Management is legal and justified. The
Respondent Management shall reinstate all these 72
workmen into service forthwith, with effect from the date
of closure of the Bobbili Food Corporation of India godown
i.e., 27.10.2002. They all shall be extended with the benefit
of direct payment system. They are entitled for 50% of
back wages and also all other attendant benefits.
Award passed accordingly. Transmit.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
WW1: Sri Kalim Ahmad
MW1: Smt. K.
Leelavathamma
WW2: Sri Yandava Anand
WW3: Sri Ganta Ramakrishna Naidu
Documents marked for the Petitioner
Ex.W1:
List of workers of FCI Labour Contract Co-
operative Soceity Ltd., Bobbili
Ex.W2:
Office copy of medical approval of 72 workers
of F.C.I. L.C.C. Ltd.
Ex.W3:
Society’s Final Audit Report for 2000-2001
Ex.W4:
EPF account slips of all Petitioners pertains
to 2001-2002
Ex.W5:
Photostat copy of bunch of identity cards of
workers in F.C.I. FSD, Bobbili depot.
Ex.W6:
Office copy of written statement filed by
Management in O.S.No.185/2001 before
Hon’ble Principle Junior Civil Judge, Bobbili
Ex.W7:
Photostat copy of lr.No.E.25/1/2001-Stg.Vol.II
dt. 20.1.2009
Ex.W8:
Photostat copy of lr.No.E.25/1/2001-Stg.Vol.II
dt. 6.8.2009
Ex.W9:
Photostat copy of lr. to Management by the
F.C.I. Labour Contract Co.operative Society
Ltd. dt. 19.10.2009
Ex.W10:
Photostat copy of lr. No.EC/WAT/EO/WAT/
03/2010/FCI /VBI/05 dt.11.5.2005
Ex.W11:
Photostat copy of minutes of meeting held
with Union at Regional Office, Hyderabad
dt. 2.6.2011
Ex.W12:
Photostat copy of lr.No.S&C.15(3)/2001-02-
Cont – vol.II dt. 4.4.2013
Documents marked for the Respondent
Ex.M1:
Photostat copy of Decree in O.S. No.185/2001
dt. 3.8.2004
Ex.M2:
Photostat copy of judgement in O.S. No.185/
2001 dt. 3.8.2004
Ex.M3:
Photostat copy of legal notice dt. 22.1.2001
Ex.M4:
Photostat copy of reply notice
Ex.M5:
Photostat copy of Proof affidavit filed in O.S.
No. 185/01
Ex.M6:
Photostat copy of letter to Regional Manager,
FCI dt. 3.12.2002
Ex.M7:
Photostat copy of order in WPMP No.26390/
2002 dt. 25.10.2002
Ex.M8:
Photostat copy of petition in WP No.21087/
2002 dt. 23.10.2002
Ex.M9:
Photostat copy of order in WPMP Nos. 3484
& 3485/03 and WPMP No.26390/2002 in
WPNo.21087 dt. 28.4.2003
Ex.M10:
Photostat copy of lr. issued to APSWC
dt.16.11.2002
Ex.M11:
Photostat copy of lr. issued to FCI Regional
office dt. 22.7.2002
Ex.M12:
Photostat copy of lr. issued to zonal office dt.
7.9.2002
Ex.M13:
Photostat copy of lr. from FSD, Bobbili to DM,
FCI dt.19.9.2002
Ex.M14:
Photostat copy of lr. issued by SER dt.
18.9.2002
Ex.M15:
Photostat copy of lr. issued by District
Collector dt. 23.10.2004
Ex.M16:
Photostat copy of representation to CM by
the Petitioner dt. 16.10.2004
Ex.M17:
Photostat copy of failure report by the ALC
(C) dt.10.10.2003
Ex.M18:
Photostat copy of agreement of contract dt.
27.2.2002
Ex.M19:
Photostat copy of lr. from FCI Delhi to Chennai
dt. 22.4.2003
Ex.M20:
Photostat copy of lr. to ALC(C), Visakhapatnam
dt. 18.9.2003
Ex.M21:
Photostat copy of conciliation proceedings
dt.18.8.2003
Ex.M22:
Photostat copy of lr. from Regional Office dt.
15.9.2003
Ex.M23:
Photostat copy of lr. to Regional Office dt.
8.8.2003
Ex.M24:
Photostat copy of lr. to ALC© dt.8.8.2003
Ex.M25:
Photostat copy of committee report dt.
12.4.2012
5268
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
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New Delhi, the 7th July, 2014
S.O. 2013.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 66/
2012) of the Central Government Industrial Tribunal-cum-
Labour Court, Hyderabad now as shown in the Annexure
in the Industrial Dispute between the management of the
M/s. Singareni Collieries Co. Ltd., and their workman,
received by the Central Government on 07/07/2014.
[No. L-22012/59/2012-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT: - SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 23rd day of June, 2014
INDUSTRIAL DISPUTE No. 66/2012
Between:
The General Secretary,
(Shri Revelli Ragam),
Singareni Coal Mines Labour Union(INTUC),
INTUC Bhawan, Godavarikhani,
Karimnagar Distt.-505209.
….Petitioner
AND
The Chief General Manager,
M/s. Singareni Collieries Company Ltd.,
Ramagundam-I Area, Godavarikhani,
Karimnagar District.-505209.
….Respondent
APPEARANCES :
For the Petitioner
: None
For the Respondent
: None
AWARD
The Government of India, Ministry of Labour by its
order No. L-22012/59/2012-IR(C-II) dated 25.9.2012
referred the following dispute under section 10(1)(d) of
the I.D. Act, 1947 for adjudication to this Tribunal between
the management of M/s. Singareni Collieries Company
Ltd., and their workman. The reference is
SCHEDULE
“Whether the action of the Chief General Manager,
M/s. Singareni Collieries Company Ltd.,
Ramagundam-I Area in not promoting Sri Akula
Rajam, Pump Operator, w.e.f. 29.1.1981 in comparison
with his Junior Sri Pacha Vara Prasada Rao, Pump
Operator is justified or not? To what relief the
applicant is entitled for?”
The reference is numbered in this Tribunal as I.D.
No. 66/2012 and notices were issued to the parties
concerned.
2. Case stands posted for filing of Claim Statement
and documents by Petitioner.
3. At this stage, Petitioner called absent. No
representation. Claim statement not filed. Sri K. Vasudeva
Reddy, Advocate, who filed vakalat for the Petitioner has
given up the vakalat already. In spite of granting time for
filing claim statement again and again and giving fair
opportunity, Petitioner is not taking any interest in the
proceedings and he has not made any claim. In the
circumstances, taking that there is no claim to be made for
the Petitioner, ‘Nil’ Award is passed.
Award is passed accordingly. Transmit.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
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5269
New Delhi, the 7th July, 2014
S.O. 2014.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 20/2007)
of the Central Government Industrial Tribunal-cum-Labour
Court, NAGPUR now as shown in the Annexure in the
Industrial Dispute between the management of the WCL,
and their workman, received by the Central Government
on 07/07/2014.
[No. L-22012/301/2006-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/20/2007, Date: 09.06.2014
Party No 1 : The Chief General Manager,
WCL, Pench Area, PO. Parasia,
Chhindwara. MP
Versus
Party No. 2: The Genral Secretary,
R.K.K.M.S. (INTUC),
PO. Chandametta,
Distt. Chhindwara. MP
AWARD
(Dated: 9th June, 2014)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of WCL and their workman, Shri Rampati
Yadav, for adjudication, as per letter No.L-22012/301/2006-
IR (CM-II) dated 16.04.2007, with the following Schedule:-
“Whether the action of the management of WCL in
dismissing Shri Rampati Yadav from services w.e.f
29.07.2003 is legal and justified? If not, to what relief
the workman is entitled?
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the union, “R.K.K.M.S.
(INTUC)”, (“the union” in short) filed the statement of
claim on behalf of the workman, Shri Rampati Yadav, (“the
workman” in short) and the management of WCL, (“party
No.1” in short) filed the written statement.
The case of the workman as presented by the union
in the statement of claim is that the workman was working
as a Fitter helper in Shivpuri OCM of party No.1 and he
was a permanent employee of party No.1 and the workman
was the branch president of the union of Shivpuri OCM
and there was a dispute about the rights and privileges of
the employees, between the union and the management
and there was heated exchange of words between the
workman, he being the branch President of the union of
Shivpuri OCM and the Manger of the Mine on 13.09.2001
and the management with a view to take rebuttal action
against the workman, issued a charge sheet dated
13/16.05.2002 under clause 26.1 of the certified standing
order and the workman replied to the charge sheet on
24.05.2002 and a departmental enquiry was constituted by
order dated 12.06.2002 by the Superintendent of Mines/
Manager, Shivpuri OCM, appointing Shri H.K. Singh,
Deputy Chief Personnel Manager/Incharge Area Pension
Cell, G.M. Office, Parasia, as the Enquiry officer and the
enquiry officer conducted the departmental enquiry and
submitted his report to the Sub-Area Manager, Shivpuri
OCM and a second show-cause notice was issued to the
workman by the Sub-Area Manager on 09.07.2003,
enclosing only pages 5 and 6 of the report of the enquiry
officer and the workman replied to the second show-cause
notice on 23.07.2006 and the Sub-Area Manager/Agent
Shivpuri OCM by order dated 29.07.2003 passed the order
of dismissal of the workman from services and the workman
preferred an appeal before the Chief General Manager, WCL
Pench Area through the Sub-Area Manager, but the appeal
was not disposed of in spite of repeated request of the
workman and so also of the union.
The further case of the workman as presented by
the union is that there was a bipartite meeting on 16.01.2004
between its representative and the management of Pench
Area on the charter of demand submitted by it dated
23.12.2003 and the matter of reinstatement of the workman
was discussed as item No.24 and it was decided that on
receipt of the appeal from it (union), necessary
investigation/enquiry would be conducted in the matter.
It is further pleaded by the union on behalf of the
workman that the charge sheet dated 18.05.2002 was vague
and unspecific and although the workman was charged
under clause 26.01 of the certified standing order on the
allegation of committing theft with the property of the
employer i.e. theft of coal on 18.03.2002, 25.03.202,
02.04.2002, 23.04.2002 and 29.04.2002 at 2.00 PM, 4.30 PM,
2.00 PM, 12.30 PM and 01.15 PM respectively, engaging
about 20 to 25 persons in illegal coal mining of Haranbhata
abandoned coal mine, the quantity and value of the alleged
stolen coal from such illegal mining was not mentioned in
the same and the copy of the complaint received by the
Suptd. of Mine/Manager, Shivpuri OCM was neither
enclosed with the charge sheet nor supplied to the workman
and as such, the charge sheet submitted against the
workman suffered from serious infirmities and was invalid
and Shri H.K. Singh, the enquiry officer was a senior officer
to that of the disciplinary authority, the Suptd. of Mines/
Manager and a junior officer cannot appoint a senior officer
as the enquiry officer and therefore, the appointment of
the Enquiry Officer was illegal and not maintainable in the
5270
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
eyes of law and the enquiry officer did not explain the
procedure of the departmental enquiry to the workman,
while holding the initial sitting of the enquiry and therefore
the workman was denied the principles of natural justice,
by the enquiry officer and the enquiry officer even in his
findings did not indicate the quantity and value of the
alleged stolen coal by the workman and therefore, the
findings of the enquiry officer were without application
of mind and the enquiry officer instead of submitting the
enquiry report to the Suptd. of Mines/Manager of Shivpuri
OCM as per the direction of the order of appointment of
the enquiry officer dated 12.06.2002, submitted the report
along with the proceedings of the departmental enquiry
to the Sub-Area Manager, Shivpuri Sub-Area, without
mentioning any reason for submission of the same to the
Sub-Area Manager and the Sub-Area Manager, Shivpuri
OCM issued the order of dismissal of the workman from
services on 29.07.2003 after obtaining the approval of the
Chief General Manager of Pench Area and as per clause
2.1 of the certified standing order and the notifications,
when the charge sheeting authority is the Manager of the
Mine, then the dismissal approving authority is the Sub-
Area Manager and the Chief General Manager is the
appellate authority and as the General Manager, the
notified appellate authority under the certified standing
order accorded approval of the punishment of dismissal
passed against the workman, the workman was deprived
of the right of appeal and as such, the dismissal of the
workman from services w.e.f. 29.07.2009 is illegal and as
per clause 28.1 of the standing order, it is mandatory to
consider the past service record of an employee before
passing of the order of punishment and the past service
record of the workman was clean and unblemished and
the same was not considered by the party No.1, before
imposing of the punishment of dismissal from services
against the workman and the punishment is harsh and
totally disproportionate.
The union has prayed to declare the order of
punishment to be illegal and to set aside and quash the
same and to direct the party No.1 to reinstate the workman
with continuity, full back wages and all consequential
benefits.
3. It is necessary to mention here that the party
No.1 made appearance in the reference through its
representative and received the copies of the statement of
claim and documents on 02.12.2011 and the reference was
adjourned to 09.02.2012 for filing of written statement and
documents by party No.1. As the party No.1 on 09.02.2012
neither appeared nor filed any written statement, order
was passed to proceed with the case without written
statement and the preliminary issue, “whether the
departmental enquiry held against the workman is valid,
proper and in accordance with the principles of natural
justice?” was framed and the petitioner was directed to
lead evidence on the validity of the departmental enquiry,
subsequent to 09.02.2012, the petitioner also remained
absent and no evidence was adduced by him, so the case
was fixed to 01.10.2012 for hearing of argument on the
validity of the departmental enquiry. On 01.10.2012, the
management representative appeared again and filed two
applications, one to recall the order dated 09.02.2012 and
to allow the management to file the written statement and
after hearing both the parties, the applications were
allowed, subject to payment of cost of Rs. 500/- (Rupees
five hundred) to the petitioner and the case was posted to
11.10.2012 for payment of cost and for further orders.
Thereafter, the case was adjourned to 11.10.2012,
11.12.2012, 05.02.2013 and 06.03.2013 for payment of cost
and for further orders. As cost of Rs. 500 was not paid to
the petitioner on 06.03.2013 and nobody appeared on
behalf of the management, the case was fixed to 18.4.2013
for hearing of argument on the validity of the departmental
enquiry. On 18.04.2013, management remained absent,
whereas, the union representative filed the evidence of
the workman on affidavit in regard to the validity of the
departmental enquiry and an application to take the
affidavit on record, with copies of the affidavit and
application for the management, so the case was posted
to 18.06.2013 for filing of say by the management to the
application and hearing of the said application. On
18.06.2013, as management remained absent and as no
say was filed and no step of any kind was taken, the
application filed by the union representative to take the
affidavit of the workman on record was allowed and the
affidavit of the workman was taken on record and the case
was fixed to 27.06.2013 for the cross-examination of the
workman. On 27.06.2013 also, management remained
absent, so, order of “No cross” of the workman was passed
and evidence on the validity of the departmental enquiry
from the side of the petitioner was closed and the case
was posted to 02.08.2013 for adducing evidence from the
side of the management. On 02.08.2013, management
remained absent. No evidence was also produced by the
management on 02.08.2013. So, evidence from the side of
the management was closed and the case was posted to
17.09.2013 for hearing of argument on the validity of the
departmental enquiry. On 17.09.2013, management
remained absent, so, order was passed to proceed ex parte
against the management and argument was heard from the
side of the union and after closure of the argument, the
case was fixed to 17.10.2013 for orders on the validity of
the departmental enquiry.
4. The issue of the validity of the departmental
enquiry was taken up for consideration as a preliminary
issue, as punishment of dismissal from services was
imposed against the workman after conduction of the
departmental enquiry and by order dated 03.12.2013, the
departmental enquiry conducted against the workman was
held to be legal, proper and in accordance with the principles
of natural justice.
¹Hkkx II—[k.M 3(ii)º
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5271
5. It is necessary to mention here that in this case,
the party no1 neither took any part nor made any argument.
6. In the written notes of argument, it was submitted
by the union representative that in this case, party No.1
has not contested the case and party No.1 was allowed to
file the written statement, subject to payment of a cost of
Rs. 500/- to the workman, but as the cost of R.500/- was
not paid, the order allowing to file written statement was
withdrawn. It was further submitted that the charge levelled
against the workman was vague and unspecific as the
quantity and value of the coal alleged to be mined illegally
by the workman were not mentioned in the same and the
departmental enquiry, the Enquiry Officer did not try to
ascertain the same and in the Enquiry report also, the
Enquiry Officer did not mention such fact and as such, the
findings of the Enquiry Officer are perverse and none of
the Witnesses examined in the enquiry had stated about
the presence of the workman, when the alleged coal mining
was being carried out on different dates and in absence of
such specific statement, the finding of the Enquiry Officer
are perverse and can be held to be not based on the
proceedings of the departmental enquiry and there was
delay in submission of the charge sheet and the Enquiry
Officer also did not analyze the evidence of the workman
given in his defence and no reason was given as to why
the evidence of the workman should be disbelieved and
therefore, the finding of the Enquiry Officer that the charge
against the workman was proved is perverse . It was further
submitted that it is clear from the evidence on record that
the workman was victimized due to his union activities
and the workman was charge sheeted by the colliery
Manager, Shivpuri Open Cast mine and the Enquiry Officer
was also appointed by him, but the order of dismissal was
signed and issued by the Sub Area manager, Shivpuri Area,
which shows that to victimize the workman, the dismissal
order was passed by the Sub Area Manager. It was further
submitted that along with the second show cause notice,
only the last page of the enquiry report submitted by the
Enquiry Officer was supplied to the workman and had the
workman been supplied with the full text of the report
together with the findings of the Enquiry Officer, the
workman would have been in a position to analyze the
report and to submit a proper reply, but such an
opportunity was denied to the workman and as 15 days
time was given by the party No.1 to submit the reply, the
workman was compelled to file his reply to the second
show cause notice and there by the workman was denied
the principles of natural justice and the action of the party
no.1 is illegal and the long past service record of the
workman was clean and unblemished and the workman
was also acquitted in the criminal case instituted against
him on the allegation of illegal mining of coal and the clean
and unblemished past service record of the workman was
not taken in to consideration at the time of imposition of
the punishment, though it was required to be consider the
same as per clause 28.1 of the Certified standing Order
and as such the punishment of dismissal of the workman
from services is shockingly disproportionate and
unwarranted and as the date of the superannuation of the
workman was 31.07.2013, his reinstatement in service is
not possible and as such he is entitled for full back wages
and all consequential monetary benefits.
In support of the submissions, the Union
representative placed reliance on the decisions reported
in 2006 LAB I C-4111(J.Ravikumar Vs. The Chief General
Manager),AIR 1997SC-3387(Union of India Vs.G.
Ganayutham), AIR 1963SC-1723(State of Andhra pradesh
Vs. S. Shree Rama Rao), AIR 1978 SC-1277(Nanda Kishore
Prasad Vs. The State of Bihar) and AIR 1999 SC-
677(Kuldeep Singh Vs. Commissioner of Police)
7. It is clear from the principles enunciated by the
Hon’ble Apex Court in the decisions cited by the union
representative as mentioned above that:
“The disciplinary proceedings before a domestic
Tribunal are of quasi-judicial character and therefore, it is
necessary that the Tribunal should arrive at its conclusions
on the basis of some evidence, that is to say, such evidence
which and that too, with some degree of definiteness,
points to the guilt of the delinquent and does not leave
the mater in a suspicious state as mere suspicion can not
take the place of proof even in domestic enquiries. If,
therefore, there is no evidence to sustain the charges
framed against the delinquent, he cannot be held to be
guilty as in that event, the findings recorded by the Enquiry
Officer would be perverse.
The findings recorded in a domestic inquiry can be
characterized as perverse if it is shown that such a finding
is not supported by any evidence on record or is not based
on the evidence adduced by the parties or no reasonable
person could have come to those findings on the basis of
that evidence.
Where the findings of the misconduct are based on
no legal evidence and the conclusion is one which no
reasonable man could come, the findings can be rejected
as perverse.
Where a quasi-judicial tribunal records findings
based on no legal evidence and the findings are his mere
ipse dixit or based on conjectures and surmises, the enquiry
suffers from the additional infirmity of non application of
mind and stands vitiated.
Normally the High Court and This Court would not
interfere with the findings of fact recorded at the domestic
enquiry but if the finding of “guilt” is based on no
evidence, it would be a perverse finding and would be
amenable to judicial scrutiny.”
In the light of the above position, now it is
necessary to find out as to whether there is any ground to
5272
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
hold the findings of the enquiry Officer to be perverse and
to interfere with the punishment imposed against the
workman.
8. So far the contentions raised by the Union
representative regarding the vagueness and non-
specification of the charge sheet and that the order of
punishment was approved by the Appellate Authority, as
a result of which, the workman lost the scope of appeal
have already been considered at the time of deciding the
preliminary issue of fairness or other wise of the
departmental inquiry, so, there is no scope for
consideration of the same again.
9. On perusal of the record, it is found that this is
not a case of no evidence. It is also found that the
departmental charge sheet was not issued on the basis of
the criminal case instituted against the workman. As the
enquiry was independent of the criminal proceedings, the
acquittal of the workman in the criminal case is of no help
to his case.The findings of the Enquiry Officer are based
on the evidence on record of the departmental enquiry.
The findings of the Enquiry Officer are also not as such,
which cannot be arrived at by a reasonable man on such
evidence. The Enquiry Officer has analyzed the evidence
adduced by the parties in a rational manner and has also
assigned reasons in support of the findings.
It is also well settled by the Hon’ble Apex Court in
a number of decisions that:-
“A disciplinary proceeding is not a criminal trial.
The Standard of proof required is that of preponderance
of probability and not proof beyond reasonable doubt.
xxx xxx xxx xxx
Where there are some relevant materials
which the authority has accepted and which
materials may reasonably support the conclusion
that the officer is guilty, it is not the function of
the High Court exercising its jurisdiction under
Article 226 to review the materials. If the enquiry
has been properly held, the question of adequacy
or reliability of evidence cannot be canvassed
before the High Court.”
xxx xxx xxx xxx
The jurisdiction of the Tribunal to interfere with the
disciplinary matters for punishment cannot be equated
with an appellate jurisdiction. The Tribunal cannot interfere
with the findings of the enquiry officer or competent
authority where they are not arbitrary or utterly perverse.
It is appropriate to remember that the power to impose
penalty on a delinquent officer is conferred on the
competent authority either by an act of Legislature or rules
made under the proviso of Article 309 or the Constitution.
If there has been an enquiry consistent with the rules and
in accordance with the principles of natural justice, what
punishment would meet the ends of justice is a matter
exclusively within the jurisdiction of the competent
authority. If the penalty can be lawfully imposed and is
imposed on the proved misconduct, the Tribunal has no
power to substitute its own discretion for that of the
authority.”
From the material on record, the discussions made
above and judging the case with the touch stone of the
principles as mentioned above and as enunciated by the
Hon’ble Apex Court in the decisions cited by the Union
representative, it cannot be said that the findings of the
Enquiry Officer are perverse.
10. It was submitted on behalf of the workman that
along with the second show cause notice, the copy of the
entire report submitted by the Enquiry Officer was not
given and only the last page of the said report was given.
However, on perusal of the copy of the show cause notice
filed by the workman, it is found that in the said notice
itself, it has been clearly mentioned that the copy of the
enquiry report was sent with the same. The workman did
not raise any grievance either in the reply submitted by
him to the show cause or separately regarding non receipt
of the copy of the entire report of the enquiry officer. It
appears from the record that such a plea has been taken in
the statement of claim as an afterthought and therefore
the same cannot be accepted.
11. The workman has taken a plea of victimization.
The onus of establishing a plea of victimization is upon
the person pleading it. Since a charge of victimization is a
serious matter reflecting, to a degree, upon the subjective
attitude of the employer evidenced by acts and conducts,
these have to be established by safe and sure evidence.
Mere allegations, vague suggestions and insinuations are
not enough. All particulars of the charge brought out, if
believed, must be weighed by the Tribunal and a
conclusion should be reached on a totality of the evidence
produced. Once, in the opinion of the Tribunal a gross
misconduct is established, as required, on legal evidence
either in a fairly conducted domestic inquiry or before the
tribunal on merits, the plea of victimization will not carry
the case of the workman any further. A proved misconduct
is the antithesis of victimization as understood in industrial
relations. In this case, it is found that commission of serious
misconduct has been proved against the workman in a
fairly conducted departmental enquiry, so there is no
question of any victimization of the workman.
12. So far the proportionality of punishment is
concerned, it is found that commission of grave
misconduct has been proved against the workman in a
properly conducted departmental enquiry. The
punishment of dismissal of the workman from service
cannot be said to be shocking disproportionate to the
serious misconduct proved against him. As such, there is
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5273
no scope to interfere with the punishment imposed against
the workman. Hence, it is ordered:-
ORDER
The action of the management of WCL in dismissing
Shri Rampati Yadav from services w.e.f 29.07.2003 is legal
and justified. The workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 8 tqykbZ] 2014
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¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nqxZ
jktukanxkao xzke cSad izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] ukxiqj ds iapkV
¼lanHkZ la[;k 27/2009½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 04@07@2014 dks izkIr gqvk FkkA
[la- ,y&12012@10@2009&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 8th July, 2014
S.O. 2015.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 27/2009)
of the Central Government Industrial Tribunal/Labour
Court, NAGPUR now as shown in the Annexure in the
Industrial Dispute between the management of the Durg
Rajnandgaon Gramin Bank, and their workman, which was
received by the Central Government on 04/07/2014.
[No. L-12012/10/2009-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/27/2009, Date: 24.06.2014.
Party No.1
: The Chairman,
Durg Rajnandgaon Gramin Bank,
G. E. Road, Rajnandgaon,
Chattisgarh
The Manager,
Durg Rajnandgaon Gramin Bank,
Dhamdha Branch, Distt. Durg,
Chattisgarh.
(“Durg Rajnandgaon Gramin Bank”
was Amalgamated with “Chhattisgarh
Gramin Bank” and “Surguja Kshetriya
Gramin Bank’ and called as
“Chhattisgarh Rajya Gramin Bank” by
the Central Government as per the
official gazette notification dated
02.09.2013.)
Versus
Party No.2
: Shri Sunil Rajput S/o. Shri Durga
Singh At & PO: 1st Battalion, SAP,
Bhilai, Distt. Durgh, Chattisgarh.
AWARD
(Dated: 24th June, 2014)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Durg Rajnandgaon Gramin Bank, G.E. Road
and their workman, Shri Sunil Kumar Rajput, for
adjudication, as per letter No.L-12012/10/2009-IR (B-I)
dated17.08.2009, with the following schedule:-
“Whether the action of the management of Durg
Rajnandgaon Gramin Bank in terminating service of
Shri Sunil Kumar Rajput, Ex-Daily Rated Safai
Karamchari w.e.f. 18.12.2004 is legal and justified? If
not, to what relief Shri Sunil Kumar Rajput is
entitled?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the workman, Shri Sunil
Kumar Rajput , (‘the workman” in short), filed the statement
of claim and the management of Durg Ragnandgaon Gramin
Bank (“Party No. 1” in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that the party No.1 is an industry
within the meaning of section 2(a) of the Act and he was
engaged as daily rated workman to work as messenger-
cum-sweeper on 01.10.1999 by the Branch Manager, SAF
Branch, Bhilai and he worked as such till 18.12.2004, when
he was illegally terminated from service orally, with out
one month’s notice or one month’s wages in lieu of notice
and payment of retrenchment compensation, as required
under the provisions of the Act and he had completed
more than 240 days of work in each and every year and
acquired the status of a permanent employee as per
standing orders and he was entitled for regularization and
at the time of his termination, he was being paid Rs.35/-
per day as his wages and party No.1 did not display any
seniority list and some employees junior to him were
allowed to continue in service and as such, the termination
of his service was in violation of the provisions of sections
25-F and 25-G of the Act and the documents regarding his
engagement are with the party No.1 and his termination
from services was illegal, he is entitled for reinstatement in
service with continuity and full back wages.
5274
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
3. The party No.1 in the written statement has
pleaded inter alia that the workman was never appointed
by its competent authority as such, there was no question
of any termination and there was no relationship of
employer and employee between it and the workman and
as such, no industrial dispute existed and the reference
has been made mechanically without application of mind
and without consideration of the relevant material and the
terms of reference are highly prejudicial to it and the order
of reference is not only illegal and bad in law but also void
ab-initio. It is further pleaded by the party No.1 that
appointment in the Bank is governed by statutory Rules
and Regulations and a person seeking employment in the
Bank has to go through the entire procedure for getting
employment and the engagement of the workman was not
in accordance with the prescribed procedure for
recruitment, so, he has no right to claim employment and
the workman was engaged for less than two hours for
sweeping the Bank premises and filling of drinking water
in absence of the regular sub staff and he was being paid
daily wages as and when he was engaged and neither he
worked with it continuously from 01.10.1999 to 18.12.2004
nor he completed 240 days of work in any year and as
there was no appointment, there was no termination as
alleged and as such, there was no question of issuance of
any notice or payment of one month’s wages in lieu of the
notice or retrenchment compensation and the engagement
of the workman was intermittent as per requirement and
there was no need to maintain any seniority list for the
persons engaged on casual basis and no junior was
retained in service and the provisions of section 25-F and
25-G are not attracted to the case of the workman and the
workman is not entitled to any relief.
4. It is necessary to mention here that during the
pendency of the reference, the “Durg Rajnandgaon Gramin
Bank” was amalgamated with “Chhattisgarh Gramin Bank”
and “Surguja Kshetriya Gramin Bank’ and called as
“Chhattisgarh Rajya Gramin Bank” by the Central
Government as per the official gazette notification dated
02.09.2013.
5. In this case, the workman has claimed that he
worked with the party No.1 continuously from 01.10.1999
to 18.12.2004 and his service was terminated on 18.12.2004
orally and that he had worked for more than 240 days in
every and each year. The claim of the workman has been
denied by the party No.1.
6. It is well settled by the Hon’ble Apex Court in
catena of decisions that the onus lies upon the claimant to
show that he had infact worked for 240 days in the year
preceding his termination.
7. In this case, though the workman was given
number of opportunities to lead evidence in support of
his claim, he remained absent from 23.08.2013 and did not
adduce any evidence. It is also necessary to mention here
that on 23.05.2014, order was passed to proceed ex-parte
against the workman as he remained absent and did not
take part in the hearing of the reference.
8. The evidence of the witness for the party No.1
filed on affidavit remained unchallenged, as none appeared
on behalf of the workman to cross-examine him.
10. It is well settled that whenever a workman
raises a dispute challenging the validity of the termination
of the service it is imperative for him to file written statement
before the Industrial Court setting out grounds on which
the order is challenged and he must also produce evidence
to prove his case. If the party fails to appear or file written
statement or produce evidence, the dispute referred by
the Government cannot be answered in favour of the
workman and the workman would not be entitled to any
relief.
Judging the present case with the touch stone of
the settled principles as mentioned above, it is found that
the workman has not adduced any evidence to prove his
case and as such, he is not entitled to any relief. Hence, it
is ordered:-
ORDER
The action of the management of Durg Rajnandgaon
Gramin Bank(Chhattisgarh Rajya Gramin Bank) in
terminating service of Shri Sunil Kumar Rajput, Ex daily
rated safai karamchari w.e.f. 18.12.2004 is legal and justified?
Shri Sunil Kumar Rajput is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 9 tqykbZ] 2014
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dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj e/; jsyos
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;] y[kuÅ ds iapkV ¼lanHkZ la[;k
106/2002½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
16@06@2014 dks izkIr gqvk FkkA
[la- ,y&41012@185@2001&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 9th July, 2014
S.O. 2016.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 106/
2002) of the Central Government Industrial Tribunal/Labour
Court, Lucknow as shown in the Annexure in the Industrial
Dispute between the management of Central Railway, and
their workmen, received by the Central Government on
16/06/2014.
[No. L-41012/185/2001-IR(B-I)]
SUMATI SAKLANI, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5275
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT:
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 106/2002
Ref. No. L-41012/185/2001-IR(B-I) dated: 30.05.2002
BETWEEN
Shri Rajesh Kumar, S/o Sh. Purshottam Bajpai
C/o Sh. K.G.N. Khare
F-3, Foreman Colony Roadways
Central Office (Rawatpur)
Kanpur (U.P.) – 2.
AND
The Divisional Commercial Manager (Catering)
Central Railway
Jhansi – 284 001.
AWARD
1. By order No. L-41012/185/2001-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 Rajesh Kumar,
S/o Sh. Purshottam Bajpai, C/o Sh. K.G.N. Khare, F-3,
Foreman Colony Roadways, Central Office (Rawatpur),
Kanpur (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 RAJESH KUMAR
ATMAJ SHRI PURSHOTTAM BAJPAI KO
DINANK 01.10.94 SE CHATNI KIYA JANA
NAYAYOCHIT HAI? YADI NAHI, TO
SAMBANDHIT KIS ANUTOSH KA HAQDAAR
HAI?”
3. The case of the workman, Rajesh Kumar, in brief,
is that he was engaged as daily rated casual labour w.e.f.
10.07.88 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. 29.10.89. 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 workman, the
management of the railway did not observed rule of last
come first go, as there are several persons who were juniors
to the workman 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 29.10.89. 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.
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
7. I have given my thoughtful consideration to the
rival contentions of the rival parities 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.
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. 29.10.89. 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 other 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.
29.10.89 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
¹Hkkx II—[k.M 3(ii)º
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5277
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. 30.09.94,
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
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 Manager (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 were
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
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
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.
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, or
(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
¹Hkkx II—[k.M 3(ii)º
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5279
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.
05th June, 2014.
Dr. MANJU NIGAM, Presiding Officer
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New Delhi, the 9th July, 2014
S.O. 2017.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 105/
2002) of the Central Government Industrial Tribunal/Labour
Court, Lucknow now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Central Railway, and their
workmen, which was received by the Central Government
on 16/06/2014.
[No. L-41012/169/2001-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. 105/2002
Ref. No. L-41012/169/2001-IR(B-I) dated: 31.05.2002
BETWEEN
Shri Shamimudin, S/o Late Sh. Najirudin
692/1, Kund Pada, Nand Purva
Distt. – Jhansi (U.P.) – 284001.
AND
The Divisional Commercial Manager (Catering)
Central Railway
Jhansi – 284 001.
AWARD
1. By order No. L-41012/169/2001-IR(B-I) dated:
31.05.2002 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 Shamimudin, S/o Late
Sh. Najirudin, 692/1, 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.
3. The reference under adjudication is:
“KYA MANDAL VANIJYA PRABANDHAK
(KHAN-PAAN) MADHYA RAILWAY, JHANSI
DWARA KARMKAAR SHRI SHAMIMUDDIN
ATMAJ SHRI SW. NAJIRUDDIN 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, Shamim-ud-din, in brief,
is that he was engaged as daily rated casual labour w.e.f.
10.07.88 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 workman, 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.
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
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 parities 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.
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 28.12.1992 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 28.12.1992 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 other 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.
28.12.92 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.
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5281
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. 30.09.94,
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
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 were
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
5282
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
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.
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, or
(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.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5283
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.
04th June, 2014.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 9 tqykbZ] 2014
dk-vk- 2018.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;] y[kuÅ ds iapkV ¼lanHkZ la[;k
124/2001½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
02@07@2014 dks izkIr gqvk FkkA
[la- ,y&41012@42@2001&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 9th July, 2014
S.O. 2018.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 124/
2001) of the Central Government Industrial Tribunal/Labour
Court, Lucknow now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Northern Railway, and their
workman, which was received by the Central Government
on 02/07/2014.
[No. L-41012/42/2001-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. 124/2001
Ref. No. L-41012/42/2001-IR(B-I) dated: 03.08.2001
BETWEEN
Shri Dina Nath Tiwari
Divisional Organization Secretary
Uttar Railway Karmchari Union
Qr. No. 119/74-61, Naseemabad
Kanpur (U.P.) – 208 001
(Espousing cause of Shri Sohan Lal)
AND
The Divisional Railway Manager
Northern Railway Allahabad (U.P.) – 211 006.
AWARD
1. By order No. L-41012/42/2001-IR(B-I) dated:
03.08.2001 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub section (1) and sub section (2A) of Section
5284
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
10 of the Industrial Disputes Act, 1947 (14 of 1947) referred
this industrial dispute between Shri Dina Nath Tiwari,
Divisional Organization Secretary, Uttar Railway Karmchari
Union, Qr. No. 119/74-61, Naseemabad, Kanpur (U.P.) and
the Divisional Railway Manager, Northern Railway
Allahabad (U.P.) for adjudication.
2. The reference under adjudication is:
“WHETHER THE ACTION OF THE
MANAGEMENT OF DIVISIONAL RAILWAY
MANAGEMENT, NORTHERN RAILWAY,
ALLAHABAD IN NOT GIVING THE PAY
SCALE OF RS. 4500-7000 TO SHRI SOHAN LAL
W.E.F. 7-2-1995 (R.P.S.) IS JUSTIFIED? IF NOT,
WHAT RELIEF THE WORKMAN IS
ENTITLED?”
3. It is admitted case of the parties that the workman
Shri Sohan Lal while appointed as Switch Man in the pay
scale of Rs. 1200-2040, was declared unfit for the post vide
medical certificate dated 07.02.1995 and thereafter he was
adjusted against the post of clerk in pay scale of Rs. 950-
1500 vide letter dated 10.10.1995.
4. The workman’s union has alleged that while
adjusting the workman, the railway did not protected his
pay scale and adjusted him against the post of clerk with
pay scale of Rs. 950-1500; whereas he was ought to have
adjusted against the post o Senior Clerk with pay scale of
Rs. 1200-2040. It was further alleged by the workman’s
union that had the railway given him the pay scale of Rs.
1200-2040 then on implementation of Fifth Pay Commission
he might have got pay scale of Rs. 4500-7000. The
workman’s union has submitted that the alleged action of
the management is voilative of the Railway Rules and law
laid down by the Courts; and accordingly, has prayed that
the management be directed to adjust him against pay
scale of Rs. 1200-2040 w.e.f. the date of declaration of his
medically unfit i.e. 07.02.1995 with consequential benefits,
including seniority.
5. The management in its written statement has
denied the allegation of the workman’s union with
submission that the when once the alternative employment
with requisite salary as per law, was accepted by the
workman, then agitating the matter settled long back, is
not proper and justified; and accordingly, has submitted
that the claim of the workman’s union be rejected with any
relief to the workman concerned.
6. The workman’s union has filed its rejoined;
wherein it has stated nothing new apart from repeating
the averments already made in the statement of claim.
7. The parties have adduced documentary evidence
in support of their respective stands. The workman’s union
has examined the workman, Sohan Lal; whereas the
management has examined Shri Amar Singh, DPO to
substantiate their pleadings. The parties availed
opportunity to cross-examine the each other’s witnesses
apart from putting oral as well as written arguments.
7. Heard, representatives of the parties and perused
entire evidence on records.
8. The learned representative on behalf of the
workman has contended that as per Rules, the workman
on being declared unfit was required to adjusted in the
same pay scale; but the management did not observe this
basic principle, which resulted the monetary loss to the
workman.
9. In rebuttal, the authorized representative of the
management has argued that as per approval of the
screening committee, the workman was provided
alternative employment and in accordance with rules and
taking every aspect of mater the salary of the workman
was fixed as per his seniority. Hence, there is no violation
of any of the Rule.
10. I have given my thoughtful consideration to the
rival submission of the authorized representatives of the
parties and perused respective pleadings and scanned
evidence available on record.
11. The workman in his evidence has stated that he
had been adjusted against the post of clerk in the pay
scale of Rs. 950-1500 by the Screening Committee in the
year 95 and since then he is working and getting salary
accordingly. He has also stated that kept on writing the
railway administration regarding his pay scale. The
workman’s union has filed photocopy of representations
of the workman dated 01.11.1995, 30.06.1996, 15.12.1996,
15.07.1997, 03.03.1998, 22.01.99 and 27.07.99; whereby he
has requested the railway management to adjust him
against the post of Senior Clerk w.e.f. 01.10.1995.
12. The management of the northern railway has
submitted that while making adjustment of the workman,
financial aspect of salary, vacant post, educational
qualification, suitability of the post and medical fitness
was taken into consideration as per Railway Norms and
thereafter the workman was adjusted against the post of
the clerk, which was duly accepted by the workman. Hence,
same cannot be disputed later on. The management has
come up with a submission vide application, paper No.
C-34, wherein it has been mentioned that the workman
was called for suitability test for grant of senior clerk pay
scale of Rs. 4500-7000, thrice; but the workman did not
turn up, therefore, he is not entitled for any relief in the
present industrial dispute. In this regard the management
has tried to put evidence to a fact which actually was not
taken into his pleadings. As per procedure an evidence
without pleading is not appreciable, therefore, the
submission of the workman regarding non-turning of the
workman is all in vain. Moreover, the management has
pleaded that the adjustment of the workman against the
post of clerk in pay scale of Rs. 950-1500 was accepted by
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5285
the workman; but there is no iota of evidence to
substantiate this pleading.
Thus, the management of railway has forwarded
evidence to the fact which was not pleaded on one hand
and not forwarded any evidence to the fact, which has
duly been pleaded by it. On the other hand the workman’s
union has proved the fact that workman, if it is taken that
he accepted the adjustment against the post of clerk,
accepted the adjustment given by the management under
protest and kept on representing against it vide his
representations dated 01.11.1995, 30.06.1996, 15.12.1996,
15.07.1997, 03.03.1998, 22.01.99 and 27.07.99. The above
representations of the workman also indicate that having
no alternate than to accept the post offered by the
management, he accepted the same under protest.
13. The rule position regarding absorption of
medically incapacitated staff in alternate employment in
the Railway Establishment Rules, relied on by the
workman’s union is as under:
“1301.
A railway servant who fails in a vision
test or otherwise becomes physically incapable
of performing the duties of the post which he
occupies should not be discharged forthwith but
every endeavor should be made to find alternative
employment for him as expeditiously as possible.
Such employment must be of suitable nature and
on reasonable emoluments having regard to the
emoluments previously drawn by the railway
servant.”
A bare perusal of the above rule position shows
that when the workman was declared medically
unfit for the post he was holding then it was
obligatory on the part of the management of
railway to provide the workman an alternate
employment of suitable nature and on
emoluments, keeping in view the emoluments
drawn by the employee in his previous post.
14. It is settled law that a person when treated
medically unfit for any post during service, then while
adjusting him against another post his last pay drawn has
to be protected; but this norm was overlooked by the
management. Also, the management failed to substantiate
its pleadings that the workman ever accepted the
adjustment or the pay fixation. The workman has relied on
Ram Mehar Singh Vs. Delhi Transport Corporation 2013
(137) FLR 435; wherein Hon’ble Delhi High Court while
taking the case of the petitioner who was declared medically
unfit as per Medical Board for the post of Driver and
accepted the offered post of Store Attended under protest
without prejudice to his rights, held the action of the
respondents to be illegal.
14. Therefore, in view of the facts and circumstances
of the case and law cited hereinabove, I am of opinion that
the action of the management of northern railway in not
adjusting him against the post carrying pay scale of Rs.
120-2040 was illegal and unjustified. Accordingly, I come
to the conclusion that the workman was entitled for
adjustment against the pay scale of Rs. 1200-2040 and on
implementation of Fifth Pay Commission he would be
entitled to the pay scale of Rs. 4500-7000, with
consequential benefits.
15. The reference under adjudication is answered
accordingly.
16. Award as above.
LUCKNOW.
20th June, 2014.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 9 tqykbZ] 2014
dk-vk- 2019.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;] y[kuÅ ds iapkV ¼lanHkZ la[;k
28/2011½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
27@06@2014 dks izkIr gqvk FkkA
[la- ,y&41011@99@2010&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 9th July, 2014
S.O. 2019.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 28/2011)
of the Central Government Industrial Tribunal-cum-Labour
Court, Lucknow now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Northern Railway, and their
workman, which was received by the Central Government
on 27/06/2014.
[No. L-41011/99/2010-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL–
CUM- LABOUR COURT, LUCKNOW
PRESENT :
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 28/2011
Ref. No. L-41011/99/2010-IR(B-I) dated: 11.03.2011
5286
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
BETWEEN
Mandal Sangathan Mantri
Uttar Railways Karmchari Union
283/63, KH, Gadi Kannora (Premwati Nagar)
Manak Nagar, Lucknow – 16
(Espousing cause of Shri Radhey Shayam)
AND
Senior Divisional Railway Manager (Personnel)
Northern Railway
Hazratganj
Lucknow.
AWARD
1. By order No. L-41011/99/2010-IR(B-I) dated:
11.03.2011 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub section (1) and sub section (2A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947) referred
this industrial dispute between Mandal Sangathan Mantri,
Uttar Railways Karmchari Union, 283/63, KH, Gadi Kannora
(Premwati Nagar), Manak Nagar, Lucknow and the Senior
Divisional Railway Manager (Personnel), Northern Railway,
Hazratganj, Lucknow for adjudication.
2. The reference under adjudication is:
“WHETHER THE DEMAND OF UNION
REGARDING PLACING SHRI RADHEY
SHAYAM S/O SHRI RAM SAMUJH, ASSISTANT
LOCO PILOT, LOCO-SHED, LUCKNOW IN THE
PANEL OF THE YEAR 1983-84 ABOVE HIS
JUNIORS, IS LEGAL AND JUSTIFIED? TO
WHAT RELIEF THE WORKMAN IS
ENTITLED?”
3. The union viz. Uttar Railways Karmchari Union
raised the present industrial dispute claiming inclusion in
the panel for the year 1983-84 above his junior fellows.
The management of the railways denied the claim by filing
a detailed written statement, stating therein that it is
provided under Rules that the employee cannot claim the
seniority from the dated of his actual engagement rather
the same shall be reckoned from the date of their regular
appointment. Therefore, it prayed that the claim of the
union is liable to be rejected without any benefit to the
workman concerned.
4. The workman’s union, in its rejoinder, reiterated
its contentions already made in the statement of claim.
The management filed documentary evidence in support
of its pleading and the date was fixed for evidence of the
workman’s union. When the workman’s union failed to
file any evidence in spite of several opportunities being
afforded, the management was called upon to file the
evidence in support of their case. The authorized
representative of the management stated that he has not
to file any evidence. Accordingly, the case was fixed for
arguments.
5. Heard oral arguments of the authorized
representatives of the parties and scanned entire evidence
available on file.
6. Initial burden was on the workman’s union to prove
their pleading with corroborative oral evidence; but it has
utterly failed in doing so. In 2008 (118) FLR 1164 M/s.
Uptron Powertronics Employees’ Union, Ghaziabad
through its Secretary vs. Presiding Officer, Labour Court
(II), Ghaziabad & others, Hon’ble High Court relied upon
the law settled by the Apex Court in 1979 (39) FLR 70 (SC)
Sanker Chakravarti vs. Britannia Biscuit Co. Ltd., 1979 (39)
FLR 70 (SC) V.K. Raj Industries v. Labour Court and others,
1984 (49) FLR 38 Airtech Private Limited v. State of U.P.
and others and 1996 (74) FLR 2004 (Alld.) Meritech India
Ltd. v. State of U.P. and others; wherein it was observed
by the Apex Court:
“that in absence of any evidence led by or on
behalf of the workman the reference is bound to
be answered by the Court against the workman.
In such a situation it is not necessary for the
employers to lead any evidence at all. The
obligation to lead evidence to establish an
allegation made by a party is on the party making
the allegation. The test would be, who would fail
if no evidence is led.”
7. In the present case the workman’s union has not
substantiated its case by way of filing any oral evidence.
Mere pleadings are no substitute for proof. It was
obligatory on the part of workman’s union to come forward
with the case that the workman was deprived of the panel
for year 1983-84, for which he was eligible; but the
workman’s union has failed to forward any evidence in
support of its claim either oral or documentary. As such,
there is no reliable material for recording findings that the
alleged action of the management of Northern Railway in
denying the workman in the panel of the year 1983-84 is
illegal and unjustified.
8. Accordingly, the reference is adjudicated against
the workman’s union; and as such, I come to the
conclusion that the workman, Radhey Shyam is not entitled
to any of the relief claimed.
9. Award as above.
LUCKNOW.
09th June, 2014.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 9 tqykbZ] 2014
dk-vk- 2020.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5287
vf/kdj.k ,oa Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k
48/2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
04@07@2014 dks izkIr gqvk FkkA
[la- ,y&12012@16@2012&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 9th July, 2014
S.O.
2020.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 48/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court, Hyderabad as shown in the Annexure in the
Industrial Dispute between the management of the State
Bank of India and their workmen, received by the Central
Government on 04/07/2014.
[No. L-12012/16/2012-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AT HYDERABAD
PRESENT : SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 26th day of June, 2014
INDUSTRIAL DISPUTE No. I.D. 48/2012
Between:
Sri V. Joseph Babu,
R/o H.No.5-24/26/2,
Pedesanipet, Itanagar,
Tenali, Guntur District.
….Petitioner
AND
1. The Branch Manager,
State Bank of India,
BRP Branch, Governorpet,
Vijayawada – 002.
2. The Asst. General Manager,
State Bank of India,
Zonal Office, Admn. Unit,
Suryaraopet,
Vijayawada.
….Respondents
APPEARANCES:
For the Petitioner
: Party in person
For the Respondent
: Sri B.S. Prasad, Advocate
AWARD
The Government of India, Ministry of Labour by its
order No. L-12012/16/2012-IR(B-I) dated 27.7.2012 referred
the following dispute between the management of State
Bank of India and their workman under section 10(1)(d) of
the I.D. Act, 1947 for adjudication to this Tribunal. The
reference is,
SCHEDULE
“Whether the action the management of State
Bank of India, Vijayawada in terminating the
services of Sri V. Joseph Babu, w.e.f. 11.11.2008 is
legal and justified? To what relief the workman
is entitled?”
The reference is numbered in this Tribunal as I.D. No. 48/
2012 and notices were issued to the parties.
2. The case stands posted for filing of claim
statement and documents by Petitioner.
3. At this stage, Petitioner called absent. Claim
statement not filed and there is no representation. Inspite
of giving fair opportunity Petitioner is not taking interest
in the proceedings. He has not made any claim. In the
circumstances, taking that Petitioner got no claim to be
made, ‘Nil’ award is passed.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant, corrected by me on this the 26th day of
June, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 tqykbZ] 2014
dk-vk- 2021.—vkSn~;ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj
Hkkjrh; LVsV cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkSn~;ksfxd fookn esa dsUnzh;
ljdkj vkSn~;ksfxd vf/kdj.k gSnjkckn ds iapkV ¼lanHkZ la[;k
49@2012½ dks izdkf’kr djrh gS] tks dsUnzh; ljdkj dks
04@07@2014 dks izkIr gqvk FkkA
[la- ,y&12012@18@2012&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
5288
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
New Delhi, the 9th July, 2014
S.O. 2021.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 49/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court, Hyderabad as shown in the Annexure in the
Industrial Dispute between the management of the State
Bank of India and their workmen, received by the Central
Government on 04/07/2014.
[No. L-12012/18/2012-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
Present: SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 26th day of June, 2014
INDUSTRIAL DISPUTE No. I.D. 49/2012
Between:
Sri P. Adiyya,
R/o H.No.8/86,
Modukur (PO),
T.Sundar(M).
Guntur District.
….Petitioner
AND
1. The Branch Manager,
State Bank of India,
BRP Branch, Governorpet,
Vijayawada – 002.
2. The Asst. General Manager,
State Bank of India,
Zonal Office, Admn. Unit,
Suryaraopet,
Vijayawada.
….Respondents
APPEARANCES :
For the Petitioner
: Party in person
For the Respondent
: Sri B.S. Prasad, Advocate
AWARD
The Government of India, Ministry of Labour by its
order No. L-12012/18/2012-IR(B-I) dated 27.7.2012 referred
the following dispute between the management of State
Bank of India and their workman under section 10(1)(d) of
the I.D. Act, 1947 for adjudication to this Tribunal. The
reference is,
SCHEDULE
“Whether the action the management of State Bank
of India, Vijayawada in terminating the services of
Sri A. Adiyya, w.e.f. 11.11.2008 is legal and justified?
To what relief the workman is entitled?”
The reference is numbered in this Tribunal as I.D. No. 49/
2012 and notices were issued to the parties.
2. The case stands posted for filing of claim
statement and documents by Petitioner.
3. At this stage, Petitioner called absent. Claim
statement not filed and there is no representation. Inspite
of giving fair opportunity Petitioner is not taking interest
in the proceedings. He has not made any claim. In the
circumstances, taking that Petitioner got no claim to be
made, ‘Nil’ award is passed.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant, corrected by me on this the 26th day of
June, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined
Witnesses examined for
for the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
CORRIGENDUM
New Delhi, the 9th July, 2014
S.O.
2022.—Notification of even number dated
6/5/2014 in line No 2-3 in the place of I.D.No.126/2007, it
may be read as C.R.No.126/2007. Other matters will remain
the same.
[No. L-40011/21/2007-IR(DU)]
P. K. VENUGOPAL, Section Officer
CORRIGENDUM
New Delhi, the 9th July, 2014
S.O.
2023.—Notification of even number dated
29/01/2014 in line No 2-3 in the place of I.D.No.01/2012, it
may be read as C.R.No.01/2012, C.R.No.02/2012 and
C.R.No.03/2012. Other matters will remain the same.
[No. L-42012/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5289
ubZ fnYyh] 10 tqykbZ] 2014
dk-vk- 2024.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk çnÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vxLr] 2014
dks ml rkjh[k ds :i esa fu;r djrh gS] ftldks mDr
vf/kfu;e ds v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls
izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6 ¼/kkjk&76 dh mi /kkjk&¼1½
vkSj /kkjk&77] 78] 79 vkSj 81 ds flok; tks igys gh ço`Ùk dh
tk pqdh gS½ ds mica/k dsjy jkT; ds fuEufyf[kr {ks=ksa esa ço`Ùk
gksaxs] vFkkZr~ %
dksVV~;e ftyk ds ehufPpy rkyqd esa ryIikye
[la- ,l&38013@46@2014&,l-,l-1]
vt; efyd] voj lfpo
New Delhi, the 10th July, 2014
S.O. 2024.—In exercise of the powers conferred by
sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st August, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI (except Sub-Section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force) of the said Act shall come into force in the following
areas in the State of Kerala namely :—
Revenue village of Thalappalam in Meenachil Taluk,
Kottayam Dist.
[No. S-38013/46/2014-S.S.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 10 tqykbZ] 2014
dk-vk- 2025.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk çnÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vxLr] 2014
dks ml rkjh[k ds :i esa fu;r djrh gS] ftldks mDr
vf/kfu;e ds v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls
izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6 ¼/kkjk&76 dh mi /kkjk&¼1½
vkSj /kkjk&77] 78] 79 vkSj 81 ds flok; tks igys gh ço`Ùk dh
tk pqdh gS½ ds mica/k dsjy jkT; ds fuEufyf[kr {ks=ksa esa ço`Ùk
gksaxs] vFkkZr~ %
r`''kwj ftyk ds r`''kwj rkyqd esa eqy;e
[la- ,l&38013@47@2014&,l-,l-1]
vt; efyd] voj lfpo
New Delhi, the 10th July, 2014
S.O. 2025.—In exercise of the powers conferred
by sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st August, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI (except Sub-Section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force) of the said Act shall come into force in the following
areas in the State of Kerala namely :—
Revenue village of Mulayam in Thrissur Taluk, Thrissur
Dist.
[No. S-38013/47/2014-S.S.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 10 tqykbZ] 2014
dk-vk- 2026.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk çnÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vxLr] 2014
dks ml rkjh[k ds :i esa fu;r djrh gS] ftldks mDr
vf/kfu;e ds v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls
izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6 ¼/kkjk&76 dh mi /kkjk&¼1½
vkSj /kkjk&77] 78] 79 vkSj 81 ds flok; tks igys gh ço`Ùk dh
tk pqdh gS½ ds mica/k dsjy jkT; ds fuEufyf[kr {ks=ksa esa ço`Ùk
gksaxs] vFkkZr~ %
ikyDdkM ftyk ds fpV~Vwj rkyqd esa rsDdsns'ke
[la- ,l&38013@48@2014&,l-,l-1]
vt; efyd] voj lfpo
New Delhi, the 10th July, 2014
S.O. 2026.—In exercise of the powers conferred
by sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st August, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI (except Sub-Section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force) of the said Act shall come into force in the following
areas in the State of Kerala namely :—
Revenue village of Thekkedesam in Chittur Taluk, Palakkad
Dist.
[No. S-38013/48/2014-S.S.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 10 tqykbZ] 2014
dk-vk- 2027.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk çnÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vxLr] 2014
dks ml rkjh[k ds :i esa fu;r djrh gS] ftldks mDr
vf/kfu;e ds v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls
izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6 ¼/kkjk&76 dh mi /kkjk&¼1½
5290
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
vkSj /kkjk&77] 78] 79 vkSj 81 ds flok; tks igys gh ço`Ùk dh
tk pqdh gS½ ds mica/k dsjy jkT; ds fuEufyf[kr {ks=ksa esa ço`Ùk
gksaxs] vFkkZr~ %
ikyDdkM ftyk ds vksVVIikye rkyqd esa vkuDdjk
[la- ,l&38013@49@2014&,l-,l-1]
vt; efyd] voj lfpo
New Delhi, the 10th July, 2014
S.O.
2027.—In exercise of the powers conferred
by sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st August, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI (except Sub-Section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force) of the said Act shall come into force in the following
areas in the State of Kerala namely :—
Revenue village of Anakkara in Ottapalam Taluk, Palakkad
Dist.
[No. S-38013/49/2014-S.S.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 10 tqykbZ] 2014
dk-vk- 2028.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk çnÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vxLr] 2014
dks ml rkjh[k ds :i esa fu;r djrh gS] ftldks mDr
vf/kfu;e ds v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls
izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6 ¼/kkjk&76 dh mi /kkjk&¼1½
vkSj /kkjk&77] 78] 79 vkSj 81 ds flok; tks igys gh ço`Ùk dh
tk pqdh gS½ ds mica/k dsjy jkT; ds fuEufyf[kr {ks=ksa esa ço`Ùk
gksaxs] vFkkZr~ %
eyIiqje ftyk ds iksUukuh rkyqd esa dkyMh
[la- ,l&38013@50@2014&,l-,l-1]
vt; efyd] voj lfpo
New Delhi, the 10th July, 2014
S.O. 2028.—In exercise of the powers conferred by
sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st August, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI (except Sub-Section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force) of the said Act shall come into force in the following
areas in the State of Kerala namely :—
Revenue village of Kalady in Ponnani Taluk, Malappuram
Dist.
[No. S-38013/50/2014-S.S.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 10 tqykbZ] 2014
dk-vk- 2029.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk çnÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vxLr] 2014
dks ml rkjh[k ds :i esa fu;r djrh gS] ftldks mDr
vf/kfu;e ds v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls
izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6 ¼/kkjk&76 dh mi /kkjk&¼1½
vkSj /kkjk&77] 78] 79 vkSj 81 ds flok; tks igys gh ço`Ùk dh
tk pqdh gS½ ds mica/k dsjy jkT; ds fuEufyf[kr {ks=ksa esa ço`Ùk
gksaxs] vFkkZr~ %
fr:ouqrriqje ftyk ds usMqeaXkkM rkyqd esa v:foDdjk
[la- ,l&38013@52@2014&,l-,l-1]
vt; efyd] voj lfpo
New Delhi, the 10th July, 2014
S.O. 2029.—In exercise of the powers conferred by
sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st August, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI (except Sub-Section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force) of the said Act shall come into force in the following
areas in the State of Kerala namely :—
Revenue village of Aruvikkara in Nedumangad Taluk,
Thiruvananthapuram Dist.
[No. S-38013/52/2014-S.S.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 10 tqykbZ] 2014
dk-vk- 2030.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk çnÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vxLr] 2014
dks ml rkjh[k ds :i esa fu;r djrh gS] ftldks mDr
vf/kfu;e ds v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls
izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6 ¼/kkjk&76 dh mi /kkjk&¼1½
vkSj /kkjk&77] 78] 79 vkSj 81 ds flok; tks igys gh ço`Ùk dh
tk pqdh gS½ ds mica/k dsjy jkT; ds fuEufyf[kr {ks=ksa esa ço`Ùk
gksaxs] vFkkZr~ %
fr:ouaqrriqje ftyk ds usMqeaXkkM rkyqd esa osYyukM
[la- ,l&38013@53@2014&,l-,l-1]
vt; efyd] voj lfpo
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5291
New Delhi, the 10th July, 2014
S.O. 2030.—In exercise of the powers conferred
by sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st August, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI (except Sub-Section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force) of the said Act shall come into force in the following
areas in the State of Kerala namely :—
Revenue village of Vellanad in Nedumangad Taluk,
Thiruvananthapuram Dist.
[No. S-38013/53/2014-S.S.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 11 tqykbZ] 2014
dk-vk- 2031.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.k jsyos
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] psUubZ ds iapkV ¼lanHkZ la[;k 84/2013½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 04@07@2014 dks izkIr gqvk
FkkA
[la- ,y&41012@37@2009&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 11th July, 2014
S.O. 2031.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 84/2013)
of the Central Government Industrial Tribunal/Labour
Court, Chennai as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of the Northern Railway, and their workman,
received by the Central Government on 04/07/2014.
[No. L-41012/37/2009-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Thursday, the 26th June, 2014
PRESENT :
K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 84/2013
(In the matter of the dispute for adjudication under clause
(d) of sub-section (1) and sub-section 2(A) of Section 10
of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of Southern Railway, Madurai and their
workman)
BETWEEN
Sri M. Manoharan : 1st Party/Petitioner
AND
1. The Divisional : 2nd Party/Respondent
Railway Manager
Southern Railway
Madurai Division
Madurai
2. The Senior Divisional
Mechanical Engineer
Southern Railway
Madurai
APPEARANCE :
For the 1st Party/
: Sri P.K. Parameswaran, Advocate
Petitioner
For the 1st Party/
: Sri P. Srinivasan, Advocate
1st & 2nd Respondent
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-41012/37/2009-IR(B-I)
dated 04.09.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the Divisional Railway
Manager, Southern Railway, Madurai in imposing a
penalty of removal from service on Sri M.
Manoharan, Ex-Helper (Mechanical) w.e.f. 15.04.2001
is legal and justified? To what relief the workman is
entitled?”
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 84/2013 and issued notices to both
sides. Both parties have entered appearance through their
counsel and filed their claim and counter statements
respectively.
3. The averments in the Claim Statement filed by the
petitioner in brief are these:
The petitioner was engaged as Casual Labourer on
daily wages by the Southern Railway in 1979. He was
granted temporary status in 1980. Due to closure of major
stream loco sheds in the Salem Division where he was
working he was re-deployed in Madurai Division in 1983
and he was appointed Khalasi Helper in 1986 and was
promoted as C&W Khalasi in the year 1989. He had been
working to the utmost satisfaction of his superiors. On
01.07.1994 the petitioner had submitted an application to
the Divisional Engineer seeking transfer to Salem Since
his family was staying at Salem. His mother was aged and
ill and his wife was also suffering from medical
complications. The request for transfer made by the
5292
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
petitioner was not considered. When his mother and wife
were both attacked by jaundice, the petitioner was forced
to take care of them and he had to take leave from 22.10.1998
to 17.06.1999. He reported for work on 18.06.1999 after
duly submitting his explanation for his absence. The
punishment of stopping of increment for one year was
imposed on the petitioner. After he rejoined duty a Railway
Quarters was allotted to him. After one and half years of
his rejoining duty he was directed to appear for an enquiry
on 24.10.2000 in respect of the alleged charge of
unauthorized absence from 22.10.1998 to 17.06.1999.
During the enquiry the petitioner had explained the
circumstances under which he was absent from duty. He
had pleaded that his absence was not willful. Without
considering the plea of the petitioner the Enquiry Officer
held that the charge against the petitioner is established.
The petitioner had given his submission to the Disciplinary
Authority against the findings of the Enquiry Officer.
Without considering this, the penalty of removal from
service w.e.f. 14.04.2001 was imposed on the petitioner.
The petitioner had preferred an appeal against this order.
However, the Appellate Authority confirmed the order of
the Disciplinary Authority. The dispute was raised in the
above circumstances. Since the Management was not
willing for a conciliation, a failure report was sent by the
Asstt. Labour Commissioner at Madurai. The dispute has
been accordingly referred to this Tribunal for adjudication.
The punishment awarded to the petitioner is
disproportionate to the offence allegedly committed by
him. There is no justification for the punishment imposed
on the petitioner. The petitioner is entitled to an order
reinstating him in service with continuity of service, back
wages and other benefits.
4. The Respondent has filed Counter Statement
contending as follows:
The claim of the petitioner is barred by the Law of
Limitation. The petitioner had absented from duty from
22.10.1998. A charge memorandum dated 19.02.1999 was
issued to him for the misconduct of unauthorized absence
from duty. The petitioner received the charge memo on
19.07.1999. The explanation submitted by the petitioner to
the charge was not acceptable. An Enquiry Officer was
appointed to enquire into the charges against the
petitioner. On conducting enquiry the petitioner was found
guilty of the charges against him. The report of the Enquiry
Officer could be served on the petitioner on 13.01.2001
only since the petitioner was again absent from duty
unauthorizedly from 30.10.2000. The Disciplinary Authority
had considered the explanation submitted by the petitioner
and imposed the penalty of removal from service. Since
the petitioner continued to be absent unauthorizedly the
penalty imposed was exhibited on the Notice Board. It
was sent to his residential address at Salem also. He had
submitted his appeal to the Appellate Authority after a
lapse of two years. The order upholding the penalty of
removal from service was communicated to the petitioner
by letter dated 27.11.2003. The petitioner was
continuously residing at Salem Town only. The case of
the petitioner that he was residing in a remote area at
Yercaud is not correct. No records are available to show
that the penalty of stoppage of increment for one year
was imposed on the petitioner. The petitioner is put to
strict proof regarding this. The petitioner himself had
admitted that he had committed the misconduct of
unauthorized absence from duty. He has not informed his
superiors about his absence. The petitioner is not entitled
to any relief.
5. The evidence in the case consists of documents
marked as Ext.W1 to Ext.W30 and Ext.M1 to Ext.M10. No
oral evidence was adduced by either side.
6. The points for consideration are :
(i)
Whether the action of the management in
imposing the penalty of removal from service
on the petitioner is legal and justified?
(ii)
What is the relief, if any, to which the petitioner
is entitled?
The Points
7. The petitioner who was working in Southern
Railway, Madurai Division as Khalasi was imposed the
punishment of removal from service by the Disciplinary
Authority for his alleged unauthorized absence for the
period from 22.10.1998 to 17.06.1999. After two years of
receipt of communication of removal from service, the
petitioner had filed an appeal before the Appellate
Authority and the Appellate Authority had confirmed the
order of removal from service by order dated 27.11.2003.
After 5 years, on 28.01.2009 by letter which is marked as
Ext.W16 the petitioner has raised the dispute before the
Asstt. Labour Commissioner (Central) seeking conciliation.
The conciliation has ended in failure, a failure report was
given to the Government and the Government has referred
the matter to this Tribunal for adjudication.
8. Even in the Claim Statement the petitioner does
not dispute the case of the Management that he was
absent from duty for the period from 22.10.1998 to
17.06.1999. There is also no case for the petitioner that he
had submitted leave application or had given any
information to the authorities regarding his absence. He
seems to have subsequently rejoined duty and worked
for some more time. Meanwhile disciplinary proceedings
had been initiated against him for his unauthorized
absence, enquiry was conducted and the punishment of
removal from service was imposed on him. As could be
seen from the Counter Statement, even before the enquiry
report could be served on the petitioner he had again been
absenting himself from duty unauthorizedly. Report of
¹Hkkx II—[k.M 3(ii)º
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5293
enquiry was served on him at his residential address. He
had submitted explanation on the report with some delay
which was not accepted by the Disciplinary Authority
and the punishment of removal from service was imposed
on him. At this time also he was not available at the work
premises because of his absence and the order of removal
from service had to be exhibited at the premises and had
to be sent at his residential address.
9. The petitioner had apparently participated in the
enquiry. The concerned Head Clerk had been examined
on the management’s side and the Muster roll pertaining
to the petitioner had been marked. Thus the Management
had proved that the petitioner was absent during the
relevant period. Admittedly the petitioner had not given
any leave application. Though he has stated that on
rejoining duty he has given explanation and the
punishment of stoppage of increment for one year has
been imposed on him. This is disputed by the Respondent.
No document on the part of petitioner has been produced
also to prove that any such punishment has been imposed.
So this case of the petitioner seems unlikely, especially in
view of the proceedings initiated against the petitioner
subsequently on the ground of his unauthorized absence.
10. The petitioner himself is seen examined in the
enquiry proceedings. The petitioner has admitted during
his examination that he was absent from duty from
22.10.1998 and reported for duty on 18.06.1999 only. The
reason he has given during his examination for his absence
is that his wife was having the illness of jaundice and she
had to undergo native treatment and so he was not in a
position to attend duty as he had to help his family. He
has further stated that his native place is Yercaud Hills
near Salem which is a remote area where there is no Post
Office or any other facilities and he was not in a position
to contact his superiors. He also admitted that he is aware
that unauthorized absence is a severe misconduct as per
the Railway Rules.
11. As could be seen, there is no dispute regarding
the fact that the petitioner was absent from duty for the
period from 22.10.1998 to 17.06.1999 and that he did not
submit any leave application to the authorities for his
absence. He was thus absent for a long period of 8 months.
Absenting oneself while working in an establishment,
especially in a government establishment which owes its
existence to the general public for such a long period is
something that is not expected on the part of an employee.
The question to be considered is whether this absence on
the part of the petitioner was willful or whether there was
any acceptable reason for this absence. The reason given
by the petitioner in his Claim Statement is that his
mother and wife were both affected by jaundice, he was
forced to remain at home at Yercaud to help them and he
was not able to contact his superiors. In the enquiry
proceedings what the petitioner has stated is that his wife
has been suffering from jaundice and he had to help the
family because of her illness. The case that his mother
was also suffering from illness is not seen stated by him in
the enquiry proceedings. Earlier in Ext.W14 he had some
other explanation for his absence. He has claimed that
because of debt and other problems in the family he was
not well mentally and he was not able to attend his work.
At that time there was no case of illness of his wife and
mother.
12.Even assuming that two members of the family of
the petitioner were suffering from severe illness, is it a
sufficient reason for the petitioner to remain absent without
giving any information to this superiors, without taking
any leave and without any permission? The case that is
projected by the petitioner is that his residence is at
Yercaud Hills, it is a remote area and it has been impossible
for him to contact his superiors and inform them about his
absence. This case of the petitioner that Yercaud is a
remote area is disputed in the Counter Statement.
According to the Respondents Yercaud is a place of tourist
attraction and has got all the facilities of a town. The
incident was in 1998 and even by then communication
facilities have developed well. So it is difficult to accept
the case of the petitioner that he could not communicate
to his superiors. It is more difficult to believe his case that
there is not even a Post Office at Yercaud. The country is
sufficiently advanced and is having Post Office facility at
every nook and corner. The petitioner did not find time
even to send a letter asking for leave.
13.Even from the Claim Statement it could be seen
that the petitioner was shuttling in between his native
place and Madurai at which place he was working. What
he has stated in his Claim Statement is that since his request
for transfer to Salem was not considered he had been going
to Salem whenever situation warranted and he had been
attending the medical treatment of his mother and wife. So
it is clear that he had been travelling to his native place
whenever required. So it would not have been difficult for
him to intimate the authorities about his absence by one
or other means. Apart from all these no documents are
produced to show that his wife and mother had fallen ill at
the same time and had been undergoing treatment.
14.It has been contended by the Respondents that
the address of the petitioner given is of Salem and not
Yercaud. According to them, the residence of the petitioner
is at Salem itself and not Yercaud. In spite of his contention,
the petitioner has not produced any document to show
that he is a resident of Yercaud. Ext.W14, the copy of the
letter written by the petitioner to the Minister for Railways
refers to him as a resident of Arisipalayam at Salem Town
and not Yercaud. In the Claim Statement also this is the
address given. This itself would disprove the case of the
petitioner that his residence is in remote area of Yercaud.
When all these are considered it could be seen that the
absence of the petitioner was a willful one.
5294
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
15. The subsequent conduct of the petitioner also
would justify a refusal of the claim of the petitioner for
reinstatement. The Respondents have contended in the
Counter Statement that the case is barred by limitation.
The matter having been referred by the Government, there
is no question of limitation becoming applicable to the
case. However, the conduct of the petitioner is the best
example for the latches on his part. As is seen from the
enquiry proceedings he has been remaining absent from
duty even before the enquiry report was served on him.
He had thought of filing an appeal against the order of the
Disciplinary Authority only after two years of service of
the order upon him. He had taken another 5 years to raise
the dispute before the Assistant Labour Commissioner
after the Appellate Authority had confirmed the order of
the Disciplinary Authority. These would show that the
petitioner was never concerned about his job. He had raised
the dispute too late. This is also a factor to be taken into
account even though his claim is not barred by limitation.
I find the petitioner is not entitled to any relief.
16.In view of my discussion above, the reference is
answered against the petitioner.
An award is passed accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 26th June, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/1st &
:
None
2nd Management
Documents Marked
On the Petitioner’s side
Ex. No.
Date
Description
Ex.W1
08.02.1982
Letter No. J/P/533/V/Surplus/Staff
dated 08.02.1982. Surplus staff in
Mechanical
Department
Absorption in alternate job
Ex.W2
30.04.1987
Letter No. U/P 612/IV/Staff No./
MP5 Divisional Officer Personnel
Branch, Madurai dated 30.04.1987
Staff Number Assigning of
Ex.W3
18.12.1989
Promotion List – under ref. SR 0.0
No. 17/IV/89/C&W KH/MP5
dated 18.12.1989
Ex.W4
28.08.1989
S.R. letter No. U/P 555/MDU/
Allotment Ho. Committee/
divisional Office/Personnel
Branch, Madurai Allotment of
quarters at Madurai – M.
Manoharan
Ex.W5
21.10.2000
S.R. No. UM/RMM.SA1-SE/
C&W/O/RMM dated 21.10.2000
relieving of staff to attend enquiry
Ex.W6
23.10.2000
Senior Loco Inspector, Madurai
Letter dated 23.10.2000 relieving
after enquiry and advice to report
for duty.
Ex.W7
23.10.2000
Enquiry proceedings against M.
Manoharan 2934/MDU regarding
absence from 22.10.1998 onwards
dated 23.10.2000
Ex.W8
28.10.2000
Enquiry Report dated 28.10.2000
– M. Manoharan 2934 C&W/KH/
MDU now @ RMM regarding
absence from 22.10.1998 onwards
Ex.W9
07.04.2001
Lr.No. &/TP 28/II/3/UA/C&W/
MDU/V/2/99 Division Office,
Mechanical Branch, Madurai
dated 07.04.2001 Penalty Advice
Ex.W10 25.07.2003
M. Manoharan letter addressed
to Divisional Manager, C&W
Madurai regarding re-examination
request for reinstatement
Ex.W11 28.07.2003
Postal Acknowledgement Card
Ex.W12 25.07.2003
M. Manoharan letter addressed
to Divisional Personnel Manager,
Divisional Office, Madurai
regarding re-examination request
for reinstatement
Ex.W13 28.07.2003
Postal Acknowledgement Card
Ex.W14 25.07.2003
M. Manoharan’s request with
Railway Ministry
Ex.W15 25.08.2003
Additional Private Secretary to
Ministry of State for Railways
Acknowledgement
Ex.W16 28.01.2009
M Manoharan’s requisition letter
to
the
Assistant
Labour
Commissioner (Central) Madurai
for conciliation
Ex.W17 04.02.2009
No.
8/3/2009-AM
dated
04.02.2009 call letter
Ex.W18 05.08.2009
No.
8/3/2009-A/M
dated
05.08.2009 Hearing letter
12.08.2009
Ex.W19 31.08.2009
Southern Railway No. U/P.574/
ALC/MDU Divisional Office,
Personnel Branch, Madurai dated
31.08.2009 Representation
Ex.W20 13.08.2009
No.
8/3/2009-AM
dated
13.08.2009 Hearing letter
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5295
Ex.W21 24.09.2009
Order
Asstt.
Labour
Commissioner (Central) Madurai
Report No. 8/3/2009-A/M dated
24.09.2009
Ex.W22 14.10.2009
M. Manoharan’s Review petition
to the General Manager, Southern
Railway, Chennai
Ex.W23 12.10.2010
Southern Railway letter ref. No.
P(A)/90/Misc./Vol.III dated
08.01.2010
Ex.W24 22.02.2010
M. Manoharan’s letter Asstt.
Personnel Manager, Chennai
regarding reinstatement
Ex.W25 10.01.2011
Order No. L-41012/37/IR(B-I)
Govt. of India, Bharat Sarkar,
Ministry of Labour/Shram
Mantralaya, New Delhi dated
10.01.2011
Ex.W26 24.08.2013
M. Manoharan’s letters to the
Secretary, Ministry of Labour and
Employment, Govt. of India, New
Delhi
Ex.W27 04.09.2013
No. L-41012/37/2009 IR (B1) Govt.
of India, Bharat Sarkar, Ministry
of Labour, Shram Mantralaya
dated 04.09.2013
Ex.W28 11.09.2013
Assistant Labour Commissioner
(Central) Madurai Office Lr. No.
95/Misc.2014=A/M
dated
11.09.2013
Ex.W29 16.09.2013
Notice received from Industrial-
cum-Labour Court, Chennai
Ex.W30 31.08.2013
Petitioners/Claimants mother
pension Post Office Pass Book
Family Pension Book Railway
Family Pension
On the Management’ side
Ex.No.
Date
Description
Ex.M1
19.02.1999
Charge Memorandum
Ex.M2
07.06.1999
Letter to the 1st Party by the 2nd
Respondent
Ex.M3
13.08.1999
Order appointing Enquiry Officer
Ex.M4
28.10.2000
Enquiry Report
Ex.M5
13.01.2001
Acknowledgement of receipt of
Enquiry Report
Ex.M6
18.01.2001
Petitioner’s representation to the
2nd Respondent
Ex.M7
07.04.2001
Penalty advice
Ex.M8
15.04.2001
Letter of SSE (C&W) to the 2nd
Respondent
Ex.M9
25.07.2003
Petitioner’s representation to the
Divisional Mechanical Engineer/
Madurai
Ex.M10 27.11.2003
Order in Appeal.
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New Delhi, the 11th July, 2014
S.O. 2032.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 80/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court, Chennai, now as shown in the Annexure, in the
Industrial Dispute between the management of the State
Bank of India and their workmen, which was received by
the Central Government on 04/07/2014.
[No. L-12012/53/2012-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Wednesday, the 21st May, 2014
PRESENT : K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 80/2012
(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 State Bank of India and their workman)
BETWEEN
Sri G. Mathan
: 1st Party/Petitioner
AND
The Asstt. General
: 2nd Party/Respondent
Manager (Admn.)
Disciplinary Authority,
State Bank of India
Disciplinary Proceedings
Cell Network 2
5296
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Administrative Unit,
Kurinji Complex
State Bank Road
Coimbatore-641018
APPEARANCES :
For the 1st Party/
: M/s. Balan Haridas,
Petitioner
Advocates
For the 2nd Party/
: M/s. T.S. Gopalan,
Respondent
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12012/53/2012-IR (B-I)
dated 15.10.2012 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the management of State
Bank of India, Chennai in imposing the penalty of
removal from service with superannuation benefits
upon Sri G. Mathan, General Attendant, Kadathur
Branch, is legal and justified? To what relief the
workman is entitled?”
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 80/2012 and issued notice to both
sides. Both sides entered appearance through their counsel
and filed claim and counter statement respectively.
3. The averments in the Claim Statement filed by
the petitioner in brief are these :
The petitioner joined the services of the
Respondent Bank as Gardener in 1997. During the year
2007 he was working as General Attendant in Kadathur
Branch of the Bank. The petitioner was placed under
suspension by order dated 09.01.2008. It is alleged that
the petitioner had forged the signature of one Rajan having
Savings Bank Account in the bank and withdrawn amount.
After this the Respondent issued a Show Cause Notice to
the petitioner alleging that he had withdrawn Rs. 41,000/-
from the SB Account of Rajan by forging the signature in
the withdrawal slip during the period from 27.05.2005 to
31.10.2005. The petitioner had given reply to the Show
Cause Notice issued to him. On 03.10.2008 the respondent
issued Charge Memo to the petitioner based on allegations
made in the Show Cause Notice. An enquiry was conducted
on the allegations and the Enquiry Officer had given a
report finding that the charge against the petitioner are
proved. On the basis of the enquiry report, the Disciplinary
Authority imposed the punishment of removal from service
with superannuation benefits on the petitioner. The
petitioner had filed appeal against the order of the
Disciplinary Authority. The appeal has been dismissed.
The petitioner was acquitted of the criminal charges made
against him by the judgment of the Judicial Magistrate
No. 1, Dharmapuri dated 09.03.2011. The punishment
imposed on the petitioner is illegal. The petitioner has not
committed any misconduct as alleged. Enquiry against
the petitioner was conducted in an unfair manner. The
petitioner was found guilty of the charges on the basis of
the report of the forensic expert alone. There is no
justification for the punishment imposed. In any case the
punishment imposed is grossly disproportionate to the
charges leveled against the petitioner. An order may be
passed directing the Respondent to reinstate the petitioner
with back wages, continuity of service and all other
attendant benefits.
4. The Respondent has filed Counter Statement
contending as follows:
The Respondent is a nationalized bank having
branches throughout the country including one at
Dharmapuri in Tamil Nadu. One Raja had SB Account in
the branch for the purpose of loan to purchase a tractor
and he was given the loan. On 21.11.2006, when he came
to the branch to close the account with the balance amount
standing to the credit of his SB Account, he was informed
that there is no sufficient balance in the account to clear
the loan. On verification of entries in his account Raja
disputed certain withdrawals. On 22.11.2006 he gave a
complaint that seven withdrawals made between 27.07.2005
and 31.10.2005 amounting to Rs. 41,000/- were not drawn
by him. He disputed the signature in the withdrawal forms.
Challans pertaining to two of the seven withdrawals were
not traceable and were missing. On questioning the Single
Window operators it was revealed that some of the Sub-
Staff including the petitioner used to present withdrawal
slips and collect cash. The specimen handwriting of the
petitioner as well as that of Ganesan, another Sub-Staff
were offered to Forensic Department, Chennai. The FD
opined that the challans were filled in the handwriting of
the petitioner. The petitioner was issued a show Cause
Notice and he gave a reply denying the charges. He was
issued a Charge Sheet on 03.10.2008 and he has given an
explanation also. An enquiry was conducted on the
charges against the petitioner and the Enquiry Officer gave
his report holding that the charges of forgery and
misappropriation of money of account holder Raja were
proved. Based on this report the Disciplinary Authority
imposed punishment of removal from service with
superannuation benefits on the petitioner. The
punishment is fully justified and does not call for
interference. The judgment of the Criminal Court has no
bearing on the charge against the petitioner. The petitioner
is not entitled to any relief.
5. Though in the Claim Statement there is
contention for the petitioner that enquiry was not
conducted in a fair and proper manner, no such contention
was advanced during the trial. Both sides have advanced
arguments based on the documents pertaining to the
domestic enquiry conducted by the Respondent.
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5297
6. The evidence in the case consists of oral evidence
of petitioner examined as WW1 and documents marked as
Ext.W1 to Ext.W30 and Ext.M1 to Ext.M5
7. The points for consideration are :
(i)
Whether the action of the Respondent in
imposing the penalty of removal from service
with superannuation benefits on the petitioner
is legal and justified?
(ii)
What is the relief, if any, to which the petitioner
is entitled?
The Points
8. The petitioner who had joined the service of the
Respondent Bank as Gardener in 1997 was working as
General Attendant in Dharmapuri branch at the time of the
incident. It is alleged against the petitioner that he made
withdrawals from the SB account of one Rajan, a customer
of the Bank by forging the signature in the withdrawal
slips and misappropriated the amount. Ext.W4 is the Charge
Memo issued to the petitioner. The details of the
withdrawals as seen from the Charge Memo are that he
had withdrawn Rs. 5,000 on 27.07.2005, another Rs. 5,000 on
30.07.2005, Rs. 10,000 each on 05.08.2005, 05.09.2005 and
15.09.2005 and Rs. 500 each on 20.10.2005 and 31.10.2005
thus amounting to Rs. 41,000. As seen from the Counter
Statement the account holder had approached the branch
to close his loan account using the balance amount in his
SB Account. But to his surprise he was told that there is
no amount sufficient enough to close the loan account, in
his SB Account. He verified the account and made a
complaint that the withdrawals referred to above were not
made by him. The Single Window Operators of the bank
were enquired with about the complaint and they informed
that three Sub-Staffs of the bank used to make withdrawals
on behalf of the customers. It was noticed that the
petitioner as well as Ganesan, another Sub-Staff used to
misspell the word thousand in the withdrawals slips. On
the basis of this the disputed challans and the
handwritings of the petitioner as well as that of Ganesan
and also that of the account holder Rajan were sent to the
Forensic Department at Chennai. The Forensic Department
gave a report stating that the disputed withdrawal slips
are in the handwriting of the petitioner. It is accordingly
charge sheet was issued on the petitioner and an enquiry
was conducted against him.
9. In the enquiry proceedings the list of prosecution
witnesses gives the names of 6 persons including the
account holder Rajan and one Jaffer, a Special Assistant.
However, these two persons are not seen examined in the
enquiry proceedings.
10. The Manager of the concerned Bank was
examined as PW2. He has stated that account holder Rajan
had given the complaint to the Chief Manager. PW2 has
stated that vouchers in respect of the disputed withdrawals
were scrutinized. He has added that though money is said
to have been given to the staff, no signature has been
obtained on the reverse side of the voucher as was the
practice. This witness has also stated about the sending
of the handwritings of the petitioner, the other staff, etc.
to the Forensic Department at Chennai alongwith the
withdrawal forms in question. As could be seen, the
evidence of this witness is not of much use in proving the
case against the petitioner.
11. PW3 was the Special Assistant of the Dharmapuri
Town Branch. This witness has stated that at the Cash
Counter cash used to be paid to the customers as well as
to the staff. He has also stated that it was as customer
service that the staff was withdrawing money and paying
it to the customer. When he was asked if the petitioner has
approached him at the Counter for withdrawing the money
of a third party, he has stated that he does not know.
When he was asked about the withdrawal of Rs. 5,000/-
from the account of Rajan on 27.07.2005, he has stated
that he does not know who has withdrawn the amount.
The other disputed withdrawals also were put to this
witness and he has stated that he does not know who
made the withdrawals. Thus it could be seen that PW3
has not stated anything against the petitioner. His
evidence is not of any use in pinpointing the petitioner
with the charge that he has withdrawn amount from the
account of Rajan using forged withdrawal slips.
12. PW4 who is the Sr. Head Messenger of the
Respondent was working at Dharmapuri branch during
the relevant period. This witness has stated that at
Dharmapuri branch it was the practice that staff members
would remit and withdraw cash for customers. In this
manner the petitioner also used to remit and withdraw
cash on behalf of the customers. He does not know if the
petitioner used to approach the Cashier for his own
withdrawal only or even for withdrawal of money on behalf
of third party. When this witness was asked about the
disputed withdrawals he stated that he does not know to
whom these payments were made.
13. PW6 is the one who examined the handwritings
of the petitioner, that of Ganesan and Rajan, the customer
and submitted report. He was the director of Forensic
Department, Chennai Ext.W29 is the report given by this
witness. This witness has given the report that the
withdrawal slips were written in the handwriting of the
petitioner. During his evidence also he has asserted this
fact. There is no reason to reject the opinion given by
PW6. When the circumstances are considered, it is very
much clear that withdrawal slips that were used for
withdrawing amount from the account of Rajan are in the
handwriting of the petitioner himself.
14. Is the evidence referred to above sufficient to
establish that the petitioner was the one who withdrew
money from the account of Rajan, the account holder
5298
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
unauthorizedly? The account holder himself has not been
examined. He has not come forward to state that he did
not put his signature in the withdrawal slips for
withdrawing money. The Enquiry Officer seems to have
been mainly relying upon the report of the forensic expert
to come to the conclusion that the petitioner must have
withdrawn money from the account of Rajan. He has also
taken support from the evidence of PW4 who has stated
that there was the practice of the Sub-Staffs remitting and
withdrawing cash for customers, in the branch. *I have
already been referring to the evidence of PW4. PW4 has
not stated that the particular withdrawals were made by
the petitioner. No other witnesses also have made such a
statement.
15. When the practice of the bank is taken into
account it is quite probable that the Sub-Staff were filling
the withdrawals forms for the customers of the bank. In
the normal course, the customers who have come to the
bank will be putting their signature in the withdrawal forms
which will be presented at the counter by the Sub-Staff for
withdrawing money. The staff will be immediately handing
over the money to the customer also. So there was nothing
unusual in the handwriting of the petitioner appearing in
the concerned withdrawal slips, when the practice of the
bank is taken into account. The Forensic Expert did not
say that the signature in the withdrawal slips were put by
the petitioner. Of course he has stated that it is not the
signature of the customer. But on this basis alone it cannot
be inferred that the signature also must have been put by
the petitioner himself. The concerned vouchers do not
contain any signature on the reverse side. So it is clear
that whoever was at the Cash Counter was allowing
withdrawal without complying with the procedure.
16. The counsel for the petitioner has pointed out
that the petitioner was acquitted of the Criminal Case
initiated against him regarding the incident. Ext.W17 is
the judgment of the Judicial Magistrate No. 1, Dharmapuri
finding the accused not guilty of the charges and
acquitting him. The petitioner is seen charged for offences
under Sections-468, 471 and Section-320 of the IPC. He
was acquitted of all the three offences charged. This
judgment has become final. The Magistrate has referred
to the concerned witnesses and has pointed out that they
have not assertively deposed that the petitioner presented
the withdrawal slips and obtained the amount. This is the
case in the enquiry proceedings also.
17. According to the counsel for the petitioner the
petitioner was charged in the enquiry with the same
offences he was charged in the criminal proceedings.
According to him, since the Criminal Case has resulted in
acquittal, the punishment imposed on the petitioner by
the enquiry proceedings will not lie. The counsel has
referred to the decision in CHINNADURAI VS.
INSPECTOR GENERAL OF REGISTRATION, CHENNAI
reported in 2012 2 LLN 543 in this respect. In this the
Madras High Court has relied upon the decision of the
Apex Court in PAUL ANTONY VS. BHARAT GOLDMINES
LTD. 1999 3 SCC 679 where it was held that if the Criminal
Case and the Departmental Proceedings are based on
identical set of facts and the findings recorded by the
Enquiry Officer vindicate that the charges framed against
the delinquent was not proved and the delinquent having
been acquitted in the Criminal Case by a Judicial
pronouncement it would be unjust, unfair and rather
oppressive to allow the findings recorded at the
departmental proceedings to stand. Since the facts and
the evidence in both the department and criminal
proceedings are the same, without there being any iota of
difference, the distinction which is usually drawn as
between the Departmental Proceedings and the Criminal
Court on the basis of approach and burden of proof would
not be applicable to the case, it was further held.
18.In the present case, the charges that were faced
by the petitioner in the Criminal Court as well as in the
Departmental Proceedings are the same. The Criminal Court
having entered the verdict of acquittal the petitioner is
entitled to the benefit of the dictum laid down by the Apex
Court in the decision referred to above. Even otherwise
the material available in the enquiry proceedings is not
sufficient to establish that the petitioner is the one who
had withdrawn amount using the withdrawal slips in
question. I find that there is no legal or factual basis for
the punishment imposed on the petitioner. The same is to
be set aside. The petitioner is entitled to be reinstated in
service.
18. The petitioner has claimed back wages alongwith
the relief of reinstatement. He has given evidence before
this Tribunal that he was not employed after he was
removed from service by the Respondent. Considering
the circumstances, I am inclined to allow 50% of the back
wages to the petitioner. Accordingly an order is passed as
follows:
The Respondent is directed to reinstate the
petitioner in service with 50% back wages within a month.
If the amount is not paid within the period prescribed it
will carry interest @ 9% per annum.
The reference is answered accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 21st May, 2014)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined :
For the 1st Party/
:
WW1, Sri G. Mathan
Petitioner
For the 2nd Party/
:
None
Management
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5299
Documents Marked :
On the petitioner’s side
Ex.No.
Date
Description
Ex.W1
09.01.2008
Suspension Order
Ex.W2
25.02.2008
Show Cause Notice
Ex.W3
31.03.2008
Reply of petitioner
Ex.W4
03.10.2008
Charge Memo
Ex.W5
05.11.2008
Explanation of Charge Memo
Ex.W6
08.11.2008
Enquiry Notice
Ex.W7
19.11.2008
Letter of the petitioner
Ex.W8
-
Enquiry Proceeding
Ex.W9
04.03.2010
Letter given by the petitioner
Ex.W10 12.10.2010
Enquiry report
Ex.W11 03.11.2010
Reply of Enquiry report
Ex.W12 19.11.2010
Second Show Cause Notice
Ex.W13 06.12.2010
Dismissal Order
Ex.W14 21.01.2011
Appeal filed by the petitioner
Ex.W15 08.04.2011
Represented by the petitioner
Ex.W16 30.04.2011
Order of Appellate Authority
Ex.W17 09.03.2011
Acquittal order of Judicial
Magistrate Court
Ex.W18 14.06.2011
Petition filed before ACL
Ex.W19 -
Counter filed before ACL
Ex.W20 22.11.2006
Letter of A. Rajan
Ex.W21 27.07.2006
Payment voucher
Ex.W22 30.07.2005
Payment voucher
Ex.W23 05.08.2005
Payment voucher
Ex.W24 05.09.2005
Payment voucher
Ex.W25 20.10.2005
Payment voucher
Ex.W26 28.12.2007
Letter from SI of Police
Ex.W27 26.12.2007
FIR Copy
Ex.W28 24.04.2007
Letter to Forensic Department
Ex.W29 02.05.2007
Report of Forensic Department
Ex.W30 03.10.2008
Charge Memo
On the Management’s side
Ex.No.
Date
Description
Ex.M1
08.12.2006
Letter from Chief Manager, State
Bank of India, Dharmapuri to AGM
– Operation, Z.O., Coimbatore
intimating that paid vouchers
15.09.2005 and 31.10.2005 are not
traceable in the branches
Ex.M2
20.07.2010
Presenting Officer’s summing up
Ex.M3
06.08.2010
Defence Officer’s summing up
Ex.M4
01.12.2010
Proceedings of personal hearing
before the Disciplinary Authority
Ex.M5
01.12.2010
Written submission of the
petitioner in the personal hearing
ubZ fnYyh] 11 tqykbZ] 2014
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vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] eqacbZ ds iapkV ¼lanHkZ
la[;k 95@2008½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
11-07-2014 dks izkIr gqvk FkkA
[la- ,y&12012@116@2000&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 11th July, 2014
S.O. 2033.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 95/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court, Mumbai as shown in the Annexure in the Industrial
Dispute between the management of the Union Bank of
India and their workmen, received by the Central
Government on 11/07/2014.
[No. L-12012/116/2000-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-2/95 of 2000
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF UNION BANK OF INDIA
The Regional Manager
Union Bank of India
Daulat Building, 3rd floor
18th June
Panaji
Goa-403 001.
AND
THEIR WORKMEN
Shri Deepak D. Naik
H. No.339/2
Peacan Coimawaddo
Quitala
Aldona, Bardez
Goa-403 508.
APPEARANCES :
FOR THE EMPLOYER : Mr. A.V. Pavithran, Advocate
FOR THE WORKMAN: Mr. P. J. Kamat, Advocate
5300
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Mumbai, dated the 21st May, 2014.
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No.L-12012 / 116 /2000-IR (B-II),
dated 29.09.2000 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 claim of Shri Deepak D. Naik, Peon/
Sub-Staff of Mapusa Branch of Union Bank of India
that he has worked continuously with the
management of Union Bank of India, Goa from
22/11/1996 to 03/08/1999 and the management has
illegally terminated his service w.e.f. 04.08.1999 is
legal and justified? If yes, what relief the workman
is entitled for?”
2. After receipt of the reference notices were issued
to both the parties. In response to the notice second
party workman filed his statement of claim at Ex-5.
According to workman he was appointed as Sub staff
(Peon) in the first party Bank against clear vacancy on
daily wages. He was appointed from 27/11/1996 and he
worked continuously till 03/08/1999. Though he worked
continuously for more than 240 days the first party abruptly
terminated his services without any notice pay and
retrenchment compensation. The first party violated the
provisions of Section 25 F of the I.D. Act. The
representation of the workman was not considered by the
authority of first party. Therefore workman raised
industrial dispute before ALC (C) Goa. As conciliation
failed on the report of ALC (C) the Central Labour Ministry
has sent the reference to this Tribunal. According to the
workman his termination was illegal. Therefore he prays
that he be reinstated in service with full back wages.
3. The first party management resisted the claim vide
its written statement at Ex-8. According to them the
workman was never appointed against clear vacancy. They
utilised his services as and when required for. He was
engaged purely on temporary and casual basis. Bank being
Government under taking they have to follow the
recruitment process while appointing any employee. The
workman was not appointed by following recruiting
process. There was no vacancy. In the absence of
permanent employee they used to engage the concerned
workman for sundry jobs like cleaning, dusting etc. He
was engaged as and when required on casual and daily
wage basis. They denied that the workman worked
continuously from 22/11/1996 to 03/08/1999. They
disengaged him as they were not in need of his services.
It does not amount to retrenchment. There was no
violation of provisions of Section 25 F of the I. D. Act.
Therefore they pray that the reference be dismissed with
cost.
4. The second party workman vide his rejoinder Ex-
10 denied the contents in the written statement and
reiterated the recitals in statement of claim.
5. On the basis of pleadings, my Ld. Predecessor
has framed the following issues for my determination. I
record my findings thereon for the reasons to follow.
Sr.
Issues
Findings
No.
1.
Whether it is proved that the
workman Shri Deepak D. Naik
Peon/Sub-staff of Mapusa Branch
of Union Bank of India has
Yes.
completed 240 days of service
continuously from 22/11/96 to
3/8/99?
2.
Whether the action of the
management of Union Bank of
India in terminating the services
Not
of workman Shri Deepak D.
required
Naik from 4/8/99 is legal and
to be dealt
justified?
with.
3.
What relief the workman is
As per order
entitled to?
below.
REASONS
6. My Ld. Predecessor by his award dt. 13/01/2003
answered issue no.1 in the affirmative. However decided
issue no.2 in favour of the first party management and
held that their action of disengaging the workman was
legal and justified. The workman challenged the award in
writ petition no.425/2003. In the writ petition Hon’ble High
Court found that the findings in the award that workman
had worked more than 240 days with the first party is not
based on the evidence on record. Therefore Hon’ble High
Court quashed and set aside the findings to that effect
and remanded the matter for scrutinising the material and
to arrive at definite conclusion in that respect. In short as
per the direction of Hon’ble High Court I am required to
deal with only issue no.1.
Issue no. 1 :
7. In this respect the ld. adv. for the second party
workman submitted that workman was appointed by the
first party Bank as a sub staff since 22/11/1996 and was
working with the Bank till he was disengaged on
03/08/1999. The workman has produced on record relevant
pages of cash voucher register with list Ex-21/1, cash
vouchers with list Ex-21/2 and Cash receipts with list Ex-
20/4. Along with written arguments Ex-49 he has given
summary of the statement of actual working days of the
workman shown in Ex-20/4, Ex-21/1 & Ex-21/2. From this
statement it is clear that from August 1998 to July 1999 the
workman had worked for 291 days. These documents Ex-
20/4, Ex-21/1 and Ex-21/2 are the documents of Bank. In
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5301
the circumstances I found that there is substance in the
version of the workman that he had worked more than 240
days in a period of 12 months. Accordingly I decide this
issue no.1 in the affirmative.
8. In this respect I would like to point out that, though
workman had worked for more than 240 days, his services
cannot be regularised as he was not appointed by following
the recruitment procedure and verdict to that effect is given
by Hon’ble High Court while deciding the aforesaid writ
petition. However as the workman had worked for 240
days in a period of 12 months, he is well entitled to the
protection under Section 25-F of the I.D. Act. In short, the
workman is entitled to the notice pay and retrenchment
compensation as prescribed under Section 25-F of the I.D.
Act. Accordingly I partly allow the reference and proceed
to pass the following order:
ORDER
(i) The reference is partly allowed with no order as
to cost.
(ii) The order of termination of services of workman
is found in violation to Section 25 F of the I.D.
Act.
(iii) The first party is directed to pay to the workman
notice pay and retrenchment compensation as
prescribed under Section 25 F of the I.D. Act,
1947.
Date : 21/05/2014
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 11 tqykbZ] 2014
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vkbZ- cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] eqacbZ ds iapkV ¼lanHkZ
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11-07-2014 dks izkIr gqvk FkkA
[la- ,y&12011@70@2008&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 11th July, 2014
S.O. 2034.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 60/2008)
of the Central Government Industrial Tribunal-cum-Labour
Court, Mumbai as shown in the Annexure in the Industrial
Dispute between the management of I.D.B.I. Bank and
their workmen, received by the Central Government on
11/07/2014.
[No. L-12011/70/2008-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT : K. B. KATAKE, B.A., LL.M., Presiding Officer
REFERENCE NO.CGIT-2/60 of 2008
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF I.D.B.I. BANK
The Deputy General Manager (ER)
IDBI Bank
IDBI Tower, WTC Complex
Cuffe Parade
Mumbai-400005.
AND
THEIR WORKMEN
The General Secretary
IDBI Karmachari Sangh
Vishwakarma Sabhagruha
Central Plaza
Rajwada
Satara-415 002.
APPEARANCES :
FOR THE EMPLOYER : Mr. R.S. Pai, Advocate.
FOR THE WORKMEN: Mr. S.V. Sahasrabudhe,
Advocate.
Mumbai, dated the 28th May, 2014
AWARD
1. The Government of India, Ministry of Labour &
Employment by its Order No.L-12011/70 /2008-IR (B-II)
dated 17.09.2008 in exercise of the powers conferred by
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947 have referred
the following industrial dispute to this Tribunal for
adjudication:
“Whether the action of the management of IDBI
Ltd., Mumbai by transferring Organising Secretary
of the Union, Shri Sunil Bhagwat is justified? What
relief the union is entitled to?”
2. After receipt of the reference, notices were issued
to both the parties. In response to the notice, the second
party union filed their statement of claim at Ex-4. According
to the second party union the erstwhile United Western
Bank Ltd. was amalgamated in the first party Bank. They
have absorbed the staff members of the United Western
Bank. Shri Sunil R. Bhagwat is Organising Secretary of
erstwhile United Western Bank. After amalgamation the
name of the union was changed as IDBI Karmachari Sangh.
The post of Organising Secretary is key post in the union.
Shri Sunil Bhagwat was working at Zonal Office, Mumbai.
5302
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
He was assigned with various roles, duties and tasks
pertaining to the Trade Union operating in IDBI Bank Ltd.
As per the Shastry Award the Bank was not supposed to
transfer such office bearers. Inspite of that they transferred
Shri Sunil Bhagwat from Zonal Office, Mumbai to Head
Office Premises Department, Mumbai by the order dated
03/11/2007. Again they have transferred Shri Bhagwat to
Aundh Branch at Pune. The said order of transfer of
Organising Secretary was with mala fide intention and to
victimize the office bearer of the union.
3. Therefore union raised the dispute before ALC
(C). However dispute could not be resolved and ALC (C)
sent failure report to the Central Labour Ministry. On his
report the Central Labour Ministry sent the reference to
this Tribunal. The union herein prays that, action of the
management transferring Shri Bhagwat be declared unjust
and illegal. They also pray for declaration that
management has indulged in unfair labour practice and
also prays that first party be directed to bring the
Organising Secretary of the union to his original place of
posting. They also pray that the period of transfer of Shri
S. R. Bhagwat to Aundh Pune Branch be treated as on
deputation and they be directed to pay TA/DA to Shri
Bhagwat for the above period and also prays for exemplary
cost from the management for unfair labour practice.
4. The first party management resisted the statement
of claim vide their written statement at Ex-11. According
to them there is no clarity of status of second party union.
There are many complaints against Shri Bhagwat from his
current branch about his poor leave record and his attitude
towards the office work. The second party union has no
locus-standi to raise industrial dispute on the issue.
Neither it is collective bargaining agent nor representative
body of all workmen of the first party Bank. The transfer
is prerogative pertaining to routine transfer thus dispute
be dismissed summarily. The transfer was purely an
administrative decision taken by the management. The
amalgamation took place on 30/9/2006 and it provides for
a maximum period of three years during which the
employees are required to be migrated to the terms and
conditions of service of the employees of the transferee
Bank. There was no mala fide intention in effecting the
transfer of Mr. Bhagwat. After amalgamation it was decided
to close certain branches of erstwhile United Western Bank
and shift some to new location as per the business plan of
the first party. Shri Bhagwat happens to be one of the
many employees so relocated. According to the first party
the present dispute is raised by the second party with
malafied intentions and ulterior motives to pressurize and
coerce the management to further its unreasonable
demands in furtherance of personal gains. Therefore they
pray that reference be dismissed with cost.
5. The second party filed their rejoinder at Ex-13
denying the contents in the written statement and
reiterating the submissions made in the statement of claim.
6. Following are the issues for my determination. I
record my findings thereon for the reasons to follow:
Sr. Issues
Findings
No.
1.
Whether the decision of first party
in transferring Shri Sunil Bhagwat,
Secretary of the Union is just and
legal?
No.
2.
What order?
As per order
below.
REASONS
Issue No. 1 :
7. In this respect the ld. adv. for the first party
submitted that the transfer of the workman was in routine
course and it was routine administrative action of the
management. According to him the workman though of
erstwhile United Western Bank after amalgamation he
became the employee of the first party and was bound by
the rules and regulations of the Bank. The ld. adv.
submitted that the transfer is one of the service conditions
and the same cannot be challenged by an employee. In
support of his argument ld. adv. resorted to Apex Court
ruling in Kendriya Vidhyalaya Sanghatan V/s. Damodar
Prasad Pandey and ors. 2004 (Supp) SCR 578. In Para 4 of
the judgment the Hon’ble Court observed that:
“Transfer which is an incidence of service is not to
be interfered with by the Courts unless it is shown
to be clearly arbitrary or vitiated by mala fide or
infraction of any prescribed norms of principles
governing the transfer.”
8. The ld. adv. also cited few more rulings, they are
(1) State of Madhya Pradesh & Ors V/s. Shri S.S. Kourav
& Ors. 1995 SCC (3) 270, (2) Shri Abani Kanta Ray V/s.
State of Orissa & ors 1995 SCC (Supp-4) 169, (3) Pearlite
Liners (P) Ltd. V/s. Manorama Shirshe 2004 3 SCC 172
wherein Hon’ble Court observed that :
“A transfer order is normal incidence of service
unless there is a term to the contrary in the contract
of service.”
9. The ld. adv. for the first party also cited Bombay
High Court ruling in VIP Industries Ltd. Satara V/s.
Maharashtra Kamgar Karmachari Sanghatana, Satara &
Anr 2008 (3) CLR 22 wherein Hon’ble Court in respect of
transfer, observed that :
“If transferability is condition of service, it
cannot be faulted except on grounds of
mala fides or there being statutory
violation.”
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5303
10. In short, transfer is service condition and
generally the order of transfer need not be interfered with
unless it is effected with malafied intention or there being
Statutory violation. However in the case at hand facts are
quite different. In this respect I would like to point out that
the fact is not disputed that the workman herein is the
office bearer and is Organizing Secretary of the union. In
this respect I would like to refer clause 535 of Shastry
Award. It provides :
“1. Every registered bank employees’ union from
time to time shall furnish the bank with the names
of the President, Vice-President and the
Secretaries of the Union;
2. Except in very special cases, whenever the
transfer of any of the above mentioned officers
is contemplated, at least five clear working days’
notice should be put up on the notice boards of
the bank of such contemplated action;
3. Any representations written or oral made by
the union shall be considered by the Bank;
4. If any order of transfer is ultimately made a
record shall be made by the bank of such
representations and the banks reasons for
regarding them as inadequate; and
5. The decision shall be communicated to the
union as well as to the employee concern.”
11. As per Shastry Award the President, Vice
President and Secretaries of the union are protected
workmen and before transfer at least five clear days notice
is required to be given and after hearing their
representation if transfer is ultimately made, Bank is
required to communicate the reasons as inadequate made
in the representation. The decision shall be communicated
to the union as well as the employee concerned. In the
case at hand no such notice was given to Mr. Bhagwat
before effecting his transfer. As the workman Shri Sunil
Bhagwat is the Organising Secretary of the Union, his
transfer in the light of Clause 535 of Shastry Award cannot
be said just and legal. Thus it needs no further discussion
to arrive me at the conclusion that the transfer of the
workman was not justified and legal. The ratios laid down
in the above rulings are not applicable to the set of facts
of the present case as the workmen therein were not
protected workmen.
12. In this respect further I would like to point out
that even after completion of period of three years till this
date he was not transferred to Mumbai. Thus direction is
required to be given to the first party to cancel his transfer
to Aundh, Pune. Accordingly I decide this issue no. 1 in
the negative and proceed to pass the following order:
ORDER
(i)
The action of first party transferring
Mr. Sunil Bhagwat to Aundh Branch,
Pune from Head office at Mumbai is
declared not justified and legal.
(ii)
The first party is directed to cancel his
transfer and post him at Mumbai.
Date: 28.05.2014
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 11 tqykbZ] 2014
dk-vk- 2035.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
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iksVZ VªLV izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] gSnjkckn ds iapkV
¼lanHkZ la[;k 33@2012½ dks izdkf'kr djrh gS tks dsUnzh;
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New Delhi, the 11th July, 2014
S.O. 2035.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 33/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court, Hyderabad as shown in the Annexure in the
Industrial Dispute between the management of the
Visakhapatnam Port Trust and their workmen, received
by the Central Government on 11/07/2014.
[No. L-34011/02/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT : SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 19th day of June, 2014
INDUSTRIAL DISPUTE No. 33/2012
Between :
The General Secretary,
National Port Trust Employees Union,
D.No.31-33-103/1, Opp.to Sree Leela Mahal,
Cinema Hall, Dabagardens,
Visakhapatnam – 530020.
….Petitioner
5304
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
AND
The Chairman,
Visakhapatnam Port Trust,
Port Area,
Visakhapatnam – 530 001.
….Respondent
APPEARANCES :
For the Petitioner
: M/s. G. Vidya Sagar, K. Udaya
Sri & P. Sudheer Rao, Advocates
For the Respondent
:
M/s. Alluri Krishnam Raju &
N. Santosh Reddy, Advocates
AWARD
The Government of India, Ministry of Labour by its
order No. L-34011/2/2011-IR(B-II) dated 9.7.2012 referred
the following dispute under section 10(1)(d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of Visakhapatnam Port Trust and their
workman. The reference is :
SCHEDULE
“Whether the action of the management of
Visakhapatnam Port Trust to stop the supply of
multi-vitamin tablets which was introduced by
them 25 years back, to the workers of VPT without
any notice, is legal and justified? What relief the
concerned workmen are entitled to?”
The reference is numbered in this Tribunal as I.D. No. 33/
2012 and notices were issued to the parties concerned.
2. Case stands posted for filing of Claim Statement
and documents by Petitioner.
3. At this stage, Petitioner called absent. No
representation. Claim statement not filed. Inspite of giving
fair opportunity again and again Petitioner is not taking
any interest in the proceedings and he has not made any
claim. Hence, taking that there is no claim to be made for
the Petitioner, ‘Nil’ Award is passed.
Award is passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 19th
day of June, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 11 tqykbZ] 2014
dk-vk- 2036.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lSaVªy cSad
vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 27@2004½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
11-07-2014 dks izkIr gqvk FkkA
[la- ,y&12011@273@2003&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 11th July, 2014
S.O. 2036.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 27/2004)
of the Central Government Industrial Tribunal-cum-Labour
Court, Jabalpur 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 11/07/2014.
[No. L-12011/273/2003-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/27/04
Presiding Officer : SHRI R.B.PATLE
General Secretary,
Daily Wages Bank Employees Association,
Hardev Niwas, 9, Sanwer Road,
Ujjain
...Workman/Union
Versus
Regional Manager,
Central Bank of India,
Regional Office,
6/3, Race Course Road,
Indore
...Management
AWARD
Passed on this 15th day of May, 2014
1. As per letter dated 8-3-04 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-12011/
273/2003-IR(B-II). The dispute under reference relates to:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5305
“ Whether the action of the management of Regional
Manager, Central Bank of India, Indore in terminating
the services of Shri Rajesh Kalyane in the year 1993-
94 and not regularizing him in the bank is justified?
If not, what relief the workman is entitled for?”
2. After receiving reference, notices issued to the
parties. Ist party workman submitted statement of claim at
Pages 2/1 to 2/6. Case of Ist party is that there was
settlement between Bank Management and Federation of
Employees Union on 24-12-99. As per said settlement
temporary employees working for 90 days during 1-1-82
to 24-12-90. The temporary employee working for 90 days
from 1-1-82 to 31-12-86 and such employees working for
60 days form 1-1-1987 to 24-12-90 were eligible for
permanent appointment. Such employees passing Written
Test would be placed as per seniority in the list. This
remain in force till it is exhausted. Workman submits that
he had worked at Siaganj Branch NBO regional office
Indore 60 days every year from 1990 to 1994. That he was
called for Written Test on 9-3-13. He was declared
successful. He belong to SC Category. Vide letter dated
29-6-93, he was informed that he had passed Written Test.
He was interviewed on 12-7-93. The select list was
published, his name was at Sl.No. 2. As per letter dated
24-11-95, he was informed about his selection. Ist party
workman further submits that despite of his selection in
Written Test and interview, he was not given appointment
as peon. That as per letter dated 28-6-02 report was called
by ALC, Bhopal. In the matter of appointment of other
candidates Manoj Likhar, workman and Pankan Bundela.
Report was submitted by Labour Officer on 6-4-02. As per
letter dated 17-7-03, General Manager found that Ist party
workman was selected and the list was still existing.
Workman further submits that he is eligible for
appointment as permanent peon. His services were
discontinued in violation of Section 25-F, G, N of I.D. Act.
On such ground, workman prays for appointment as per
seniority. He also prays for reinstatement with back wages.
3. IInd party filed Written Statement at Page 5/1 to
5/4. IInd party submits that Union is not competent to
represent workman as the Union has no 50% membership
of the employees. IInd party admits that certificate dated
20-9-93 , Para-3.2 employees whose name were sponsored
through Employment Exchange and working for 90 days
from 82 to 86, 60 days from 87 to December 90 were eligible
to be considered for permanent appointment. It is
submitted that such employees were entitled to be
considered for appointment and not eligible for direct
appointment. All other adverse contentions of workman
are denied. It is submitted that workman had not completed
more than 60 days working during any of the year. That
only after approval is given by RBI for recruitment on the
post then only the appointments can be given to the
candidates in the selected list. On such ground, IInd party
prays for rejection of claim.
4. Ist party workman filed rejoinder at Pages 14/1
to 14/2 reiterating his contentions in statement of claim
that he was selected in the Written Test and oral interview.
5. Considering pleadings on record, the points
which arise for my consideration and determination are as
under. My findings are recorded against each of them for
the reasons as below:-
(i) Whether the action of the manage-
In Negative
ment of Regional Manager, Central
Bank of India, Indore in terminating
the services of Shri Rajesh Kalyane
in the year 1993-94 and not regulari-
zing him in the bank is justified?
(ii) If not, what relief the workman is
As per final
entitled to?”
order.
REASONS
6. As per terms of reference, legality of termination
of services of Rajesh Kalyane and not regularizing him in
Bank is referred for adjudication. The statement of claim
submitted by workman though he has pleaded that his
services were terminated in violation of Section 25-F, G, N
of I.D. Act, his statement of claim is silent that he had
completed 240 days continuous service during any of the
year. Rather in Para-3 of his statement of claim, workman
has pleaded that he had worked for 60 days during each of
the year during 1990 to 1994. Pleadings of workman did
not make out ground for violation of Section 25-F of
I.D.Act. As his pleadings are silent that he was working
for more than 240 days preceding termination of his
service. as such pleadings are incomplete. That workman
was covered under Section 25 (B) of I.D.Act. His statement
of claim is also not disclosing the exact date of termination
of his services. Workman filed affidavit of his evidence.
He has shown working days 60 days in each of the year
90, 94 & 97. In his cross-examination workman says that
he had passed 8th standard. He was working 60 days in
1990 at Siyarganj branch. In 1997, he worked in Head office.
That he was called for interview, he was selected but
appointment was not given to him. His name was at Sl.No.2
in SC Category. Management has not adduced evidence.
The evidence of management is closed on 21-11-13.
Documents P-3 to 18 produced by workman are admitted
by IInd party. Head clerk is directed to exhibit all those
documents. Document P-3 clearly provides that temporary
employees working for 90 days during 1982 to 1990 are
eligible to be called for interview. Document P-4 provides
that candidates should write in their answer-sheets whether
they belong to SC, ST category. Document P-5 shows
name of Ist party workman at Sl. No. 2 of SC category in
the select list. Document P-8 shows that Ist party workman
was called for Written Test and interview and select list
was prepared. Document P-18 shows the report submitted
by Regional manager which clearly shows that the panel
will remain in existence till it is exhausted. The report is
clear that Written Test was conducted as per settlement
5306
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
dated 24-12-90, the list was prepared after interview. Hence
the report is clear that list will remain in force till it is
exhausted. No reasons are found in Written Statement
submitted by management why workman was not given
opportunity of selection. Management has not even
adduced evidence to explain why workman was not
appointed after selection as per the settlement. I find
absolutely no justification in denying appointment to the
workman on the post of permanent peon therefore the
action of the management cannot be justified. For above
reasons, I record my finding in Point No.1 in Negative.
7. Point No.2 in view of my finding in Point No.1
action of the management not regularizing services of
workman after his selection in Written Test and interview
is not justified, question arises whether workman is entitled
for reinstatement with back wages or he is entitled for
regularization. As discussed above, workman has not made
out that termination of his service is in violation of Section
25-F therefore there is no question of his reinstatement in
service with back wages. The evidence discussed above
is clear that workman had worked 60 days during each of
the year and as per settlement dated 24-12-90 he was
selected after Written test and interview. His name was
appearing at Sl.No. 2 in ST Category. Workman was not
given appointment even after his selection. Management
is not explaining reasons. IInd party has not participated
in reference proceeding though evidence is adduced.
Workman is denied opportunity for his selection therefore
the workman is entitled for appointment on the post of
permanent peon in IInd party Bank. Since workman is
waiting for his employment since 1994. However the
evidence of the workman is absolutely silent how he is
surviving all those years. Though in his affidavit of
evidence, he has shown his occupation as unemployed,
the circumstances shows that he must be doing some
work for his survival therefore the monetary benefit cannot
be allowed to the workman on that ground. Accordingly I
record my finding in Point No. 2.
8. In the result, award is passed as under:-
(1) The action of the management of Regional
Manager, Central Bank of India, Indore in
terminating the services of Shri Rajesh Kalyane
in the year 1993-94 and not regularizing him in
the bank is not proper.
(2) IInd party is directed to provide employment
as permanent peon as per settlement dated
24-12-90 within 30 days from the date of
publication of award. It is made clear that
workman is not entitled to any monetary
benefits for the intervening period.
9. Let the copies of the award be sent to the
Government of India, Ministry of Labour & Employment
as per rules.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2037.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wfu;u cSad
vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas
ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 51@2004½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
14-07-2014 dks izkIr gqvk FkkA
[la- ,y&12012@17@2004&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2037.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 51/2004)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur as shown in the Annexure in the Industrial
Dispute between the management of the Union Bank of
India and their workmen, received by the Central
Government on 14.07.2014.
[No. L-12012/17/2004-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/51/2004
PRESIDING OFFICER : SHRI R. B. PATLE
Shri Harkesh Prasad Kushwaha,
S/o Shri Devideen Kushwaha,
R/o Village Boliha Post Karsara,
Satna (MP)
... Workman
Versus
Asstt. General Manager,
Union Bank of India,
Regional Office, Sirmour Chowk,
Reewan (MP)
... Management
AWARD
Passed on this 2nd day of May 2014
1. As per letter dated 31-5-04 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D. Act, 1947 as per Notification No. L-12012/
17/2004-IR(B-II). The dispute under reference relates to:
“ Whether the action of the management of Union
Bank of India, Regional Office, Reewan (MP) in
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5307
terminating the services of Shri Harkesh Prasad
Kushwaha from service is legal and justified? If not,
to what relief is concerned workman entitled to?”
2. After receiving reference, notices were issued to
parties, workman submitted statement of claim at Page 2/1
to 2/5. Case of Ist party workman is that he was working
with IInd party from 1977 to June- 2003. He has obtained
status of permanent employee. IInd party instead of
according status of permanent employee to him,
discontinued his services. His services were discontinued
orally. Order of termination in writing is not issued to him
and his services are terminated without notice. He
completed more than 240 days continuous service
preceding his termination. He was engaged as sweeper.
His services are terminated without paying retrenchment
compensation in violation of Section 25-F of I.D. Act. IInd
party did not consider seniority. He was not called for
selection for permanent post. IInd party has committed
unfair labour practice. His services are terminated in
violation of Section 25-F, N of I.D. Act. On such grounds,
workman prays for his reinstatement with back wages.
3. IInd party filed Written statement at Page 5/1 to
5/11: IInd party submits that workman was never in
employment of the Bank. There was no question of
termination of service. The reference is not tenable. The
Bank is established under banking Company’s
(Acquisition and Transfer of Undertakings)act, 1970. The
Bank carries business at different branches of Zonal Office,
central office and Regional office. The regulations for
recruitment of Class-IV employees are formulated by Govt.
of India. Only After adopting procedure for recruitment
on the basis of names sponsored by Employment
Exchange, candidates are appointed. The Branch Manager
shall no power to appoint sub staff without approval from
Central Office. The workman by raising this dispute wants
employment in the back through back door entry, his name
was not sponsored through Employment Exchange. he
was never appointed as messenger/peon. Workman not
completed 240 days service. The duties of peons are
carried by permanent messengers in the branches.
Workman was engaged for cleaning work for 1-2 hours. It
doesnot give right as employee of the Bank. Workman
was paid wages agreed to him. IInd party reiterates that
workman had not completed 240 days service, defence
was not appointed. Workman desires back door entry in
the Bank. It is denied that services of workman are not
terminated violating Section 25-F of I.D. Act. IInd party
submits that non- engagement of workman is not covered
under Section 2(oo) of I.D. Act. IInd party prays for
rejection of claim.
4. Workman filed rejoinder at Page 7/1 to 7/3. The
contentions in statement of claim are reiterated in the
rejoinder in support of their claim.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below.-
(i)
Whether the action of the
In Negative
management of Union Bank
of India, Regional Office,
Reewan (MP) in terminating
the services of Shri Harkesh
Prasad Kushwaha from service
is legal and justified?
(ii)
If not, what relief the
As per final
workman is entitled to?”
order
REASONS
6. Workman is challenging termination of his service
for violation of Section 25-F, N of I.D. Act. IInd party
denied his claim filing Written Statement. Workman filed
affidavit of his evidence. He has stated that in 1996, names
were called from Employment Exchange, names of two
persons as well as name of workman was sent from
Employment Exchange office but no action was taken.
Again 1997, his name was sent from Employment Exchange
office as request of IInd party for appomtment of regular
post. That he was working in IInd party form May 97 till
June 2003 without break. His services are terminated
without notice in violation of law. That after termination
of his service, one Ganga Prasad Singh is engaged in his
place at Satna branch. He has stated that his services are
terminated by way of victimization. In his cross-
examination, workman says in 1996, he was of about
18 years of age. There were 4 employees in branch
including Branch Manager, Head cashier and Daftry.
Sweeper was also working at branch. He was working 1
hour morning and 1 hour evening. Again said that he was
working whole day in branch. He was paid Rs. 13, 15 per
day. The wages were increased to Rs. 25 per day.
Documents 7110 to 7116 are prepared in his handwriting.
The appointment letter was not given to him. regular pay
was not paid to him by Bank. In Cross-examination of
workman, no question is asked to workman that he was
not continuously working from May 96 to May 2003. The
evidence of workman on the point of continuous working
is not challenged in cross-examination. In his further cross-
examination, workman says that he produced documents
about his working in Bank form 1997 to 2003. His
appointment was as part time sweeper. Appointment letter
was not given to him. his name was sent through
Employment Exchange. His present age was 38 years on
date of recording evidence i.e. on 7-10-10. Before
appointment, he was not interviewed. Document Exhibit
W-l shows that Dy. General Manager had sent letter to
workman in reply to his letter dated 22-4-96. That the
appointment were made after name sponsored through
5308
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Employment Exchange. his request could not be
considered. He should keep contact with Employment
Exchange office. In Exhibit W-2- Branch Manager had sent
letter to Regional office applications of workman for
permanent appointment. It finds reference that name of
workman was received through Employment Exchange
office.
7. Management filed affidavit of evidence of
witness Shri Abdul Sayeed Mohammad, Branch Manager.
Management’s witness says workman was not employee
of the Bank. He is not covered as workman under I.D. Act.
His services were never terminated. That workman was
not appointed following recruitment rules on the basis of
names sponsored through Employment Exchange.
applicant’s name was not called for interview in recruitment
process. His services where utilized as part time sweeper
for 1-2 hours. His services were utilized for sweepmg,
cleanmg of branch premises. Workmg for 1-2 hours does
not entitle workman to claim employee of the Bank. In his
cross-examination, management’s witness says certificate
dated 17- 11-99 does not bear his signature while he was
Branch Manager at Karsara Branch. Workman was doing
cleaning work for 30-40 minutes. He denies that his name
was sponsored through Employment Exchange. he was
working as Branch Manager at Karsara from 1-8-98 to
4-8-2000. During that period, part time sweeper was not
available. He claims ignorance whether permanent post
of PTs was sanctioned. workman Harkesh had not
submitted application for part time/permanent post of
sweeper. He claims ignorance whether his name was
recommended to Regional/Zonal office for the post of part
time sweeper. He claims ignorance whether notice of
termination was issued to workman, whether retrenchment
compensation was not paid to him.
8. The evidence of workman is supported by
documents Exhibit W-l , W-2. As per Exhibit W-2, name of
workman was sponsored through Employment Exchange.
IInd party has not produced any documents about working
days of workman, payment of wages. Management’s
witness Anil Kumar Pujara also supported management
that the workman had not completed 240 days continuous
service. The appointments are made following recruitment
process, name of workman was not sponsored through
Employment Exchange. In his cross-examination above
witness of management admitted documents exhibit W-1,
W-2, other documents referred to him were denied. No
documents produced about Ist party workman working
on part time basis. Only his affidavit is filed on the point.
That engagement of workman on contract was oral. No
agreement in writing was executed. Workman was not
paid compensation. Termination notice was not issued to
him. witness of management says that verifying record,
he cannot say the period of working as part time sweeper
to workman. He claims ignorance whether name of
workman was sponsored through Employment Exchange,
that documents are not produced by management, learned
counsel for Ist party Pranay Choubey submits that adverse
inference shall be drawn against management in support
of his argument. Learned counsel relies on ratio held in
Case of R. M.Yellatti versus Asstt. Executive Engineer
reported by Apex Court. After dealing with the evidence
and ratio relied in different cases, their Lordship held
provisions of Evidence Act may presume or may not
presume that If a party despite possession of the best
evidence had not produced the same, it would have one
against his contentions. The matter however would be
different where inference despite direction by a Court the
evidence is withheld. Presumption as to adverse inference
for non-production of evidence is always optional and
one of the factors which is required to be taken into
consideration is the background of the facts involved in
the lis. Their Lordship further observed in present case
we are of the view that workman has stepped in the witness
box and his case that he had worked for 240 days in a
given year was supported by the certificate (Ex.
W-I). In the circumstances, the division bench of the High
court had erred in interfering with the concurrent findings
of fact.
In present case in cross-examination of workman,
his evidence was not challenged about his continuous
working from 1997 to 2003.
9. IInd party has not produced documents about
payment vouchers or the evidence about working days
of workman. Shri Choubey also relies on ratio held in
Central Bank of India versus S.Satyan and others in JT
1996(7) 181. The ratio held in the case relies to that
retrenchment under Chapter V-A is not enacted only for
the benefit of the workmen to whom Section 25-F applies
but for all cases of retrenchment and therefore there is no
reason to restrict application of Section 25- H therein only
to one category of retrenched workmen. We are therefore
unable to accept the contention of Shri Pai that a restricted
meaning should be given to the word retrenchment in
Section 25-H. this contention is therefore rejected. In
present case, pleadings and evidence of workman about
failure of IInd party to provide him re-employment or some
other person is re-employed in his place are not clearly
stated, therefore the ratio cannot be applied to present
case at hand. Considering evidence discussed above, the
evidence of workman is cogent that he was continuously
working form May 1997 to June 2003, his services are
terminated without notice, retrenchment compensation is
not paid to him. As such termination of workman is in
violation of Section 25-F(a,b) of I.D. Act. Therefore I record
my finding in Point No.1 in Negative.
10. In view of my finding in Pont No.1, services of
workman are terminated in violation of Section 25-F,
question arises whether workmen is entitled for
reinstatement with back wages. Workman in his cross-
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5309
examination says that he was not interviewed, he was
engaged on daily wages. The appointment of workman
was not against any vacant post. He was working as part
time employee from May 97 to June 2003. Considering
period of his working and nature of his employment on
part time basis, reinstatement of workman would not be
appropriate. In my considered view, compensation
Rs. 50,000 would be appropriate relief. Accordingly I record
my finding in Point No.2.
11. In the result, award is passed as under.-
(1)
The action of the management of Union Bank of
India, Regional Office, Reewan (MP) in
terminating the services of Shri Harkesh Prasad
Kushwaha from service is not legal and proper.
(2)
IInd party is directed to pay compensation
Rs.50,000/- to the workman. Amount as per above
order shall be paid to workman within 30 days
from the date of notification of award. In case of
default, amount shall carry 9 % interest per annum
from the date of award till its realization.
12. Let the copies of the award be sent to the
Government of India, Ministry of Labour & Employment
as per rules.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2038.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 39@1987½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
14-07-2014 dks izkIr gqvk FkkA
[la- ,y&12012@137@1986&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2038.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 39/1987)
of the Central Government Industrial Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure in the Industrial
Dispute between the management of the Bank of India
and their workman, received by the Central Government
on 14.07.2014.
[No. L-12012/137/1986-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/39/87
Presiding Officer : SHRI R. B. PATLE
Shri A. K. Jhawar, 26,
Sitlmata Ki Gali,
Opp. Maheshwari,
Dharamshala, Ramganj,
Khandwa (MP)
... Workman
Versus
Regional Manager,
Bank of India,
Khandwa Region,
Khandwa.
...Management
AWARD
Passed on this 2 day of May, 2014
1. As per letter dated 16-4-87 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D. Act, 1947 as per Notification
No.L-12012/137/86-IR(B-II). The dispute under reference
relates to:
“ Whether the action of the management of Bank of
India, Khaigaon branch in dismissing Shri Arvind
Kumar Jhawar, Agricultural assistant, Ahmedpur
Branch w.e.f. 11-2-84 is justified? If not, to what
relief the workman is entitled and from what date?”
2. After receiving reference, notices were issued to
the parties. In present matter, enquiry conducted against
workman was found legal by my predecessor as per order
dated 1-1-1991. The award was passed by my predecessor
on 6-3-92 in favour of management. The award was
challenged by workman in Writ petition No. 1786/94. Writ
petition was decided on 20-4-06. The award was set-aside
and the matter is remanded back. Management was given
opportunity to adduce evidence on the point of
misconduct. That order dated 1-1-91 and award dated 6-3-
92 were quashed. When the matter was restored, it was
noticed that the record was weeded out. As per order sheet
18-7-2011, the parties were directed to file copies of
statement of claim and documents. Copy of statement of
claim is not produced. Written Statement is produced on
record. Copy of rejoinder is also produced on record. The
contentions of parties are available as narrated by passing
order dated 6-3-92.
3. Case of Ist party workman was that he was working
as Agricultural Assistant with the management and he
was dismissed from service w.e.f. 11-2-84 by management
of Bank of India, Khargaon Branch. The chargesheet was
issued to workman alleging misconduct on 12-9-83,
5310
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
13-9-83, 12-1-84. It was submitted that workman received
medical treatment of Psycho-Neurosis and was treated
by Dr. V. G. Dhodapkar, Suptd. Mental Hospital, Indore.
His mental condition was deteriorated and was admitted
in Choithram Hospital, Indore under Supervision of
Dr. J. W. Sabhaney workman was then taken to H. D. Gandhi
Memorial Hospital, Bombay for treatment. He received
treatment from Dr. V. N.Vahia from 16-10-84 to 12-11-84.
That workman was not aware of misconduct alleged
against him in the chargesheet. That he was informed by
his parents about the alleged misconduct. That he had
not received notice of enquiry, he had not written letters,
he was not aware of the findings of Enquiry Officer. That
Enquiry Officer was biased. The findings of Enquiry Officer
were perverse. He had not committed riotous behavior in
the month of September 1983. That exparte enquiry was
conducted. He also denied incident dated 12-1-1984
assaulting Branch Manager for putting iron chain around
his neck. That enquiries were simultaneously conducted.
Enquiry was not legal. The findings are perverse. On such
grounds, workman prayed for reinstatement.
4. Management filed Written Statement at Page 8 to
11. IInd party submitted that workman joined service in
Bank on 24-1-77. He was posted at Branch. On his request,
he was transferred to Amedpur Khaigaon Branch.
He resumed duty in said branch on 1-7-1981. That in
September 1983, workman resorted to riotous and
disorderly behavior in premises of the Bank. He assaulted
Manager threatening to cut into pieces. Chargesheet was
issued to him on 24-9-83 setting out the details. It is alleged
that vide letter dated 26-11-83, 12-12-83, 10-1-84, Enquiry
Officer was informed that workman will not participate in
enquiry. Enquiry was conducted exparte.
5. On 12-1-84, it is alleged that workman conducted
serious act of riotous behavior. He assaulted the Manager
by putting iron chain around his neck and tried to pull it
away. As such chargesheet was issued. Enquiry was
conducted. After receiving report of Enquiry Officer,
charges were proved and punishment was imposed. That
punishment is legal. The contentions of workman that he
was suffering from mental disability have been denied.
IInd party prays for rejection of the claim.
6. Rejoinder was filed by workman at Page 12 to 14
reiterating his contentions in statement of claim. That
enquiry was conducted without following proper
procedure, he was suffering from mental illness. He had
no knowledge about misconduct alleged and findings of
Enqurry Officer.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i)
Whether the action of the
In Affirmative
management of Bank of
India, Khaigaon branch
in dismissing Shri Arvind
Kumar Jhawar, Agricultural
assistant, Ahmedpur Branch
w.e.f. 11-2-84 is justified?
(ii)
If not, what relief the work-
Relief prayed
man entitled to?”
by workman is
is rejected.
REASONS
8. As stated above, my predecessor vide order dated
1-1-91 found enquiry conducted against workman as legal.
The final award was passed on 6-3-92. Award was passed
in favour of management. Said award was challenged by
workman filing Writ Petition No. 1786/1994. The order on
preliminary issue and award passed by my predecessor
are set-aside. Management has been given opportunity
to adduce evidence to prove misconduct.
9. IInd party management filed evidence by way of
affidavit of Albert Lakra, R.C.Mahadik, Nandan Kulkarni,
Harsh Vardhan Dixit, M.V.Virulikar, Rohni Kumar Pandey
& R.K.Pandey. All witnesses of the management have
supported management that Ist party workman was
reading newspaper in office. He had abused and assaulted
Branch Manager Mr. Shivdasani. In IInd incident,
workman had held neck of Shivdas holding iron chain
and tried to kill him. The evidence in cross-examination
Albert Lakra says that he was working as Cash-cum-
Account clerk, he was sitting on chair next to chair of Mr.
Jhawar. He was not knowing what discussion had taken
place between Jhawar and Branch Manager. The incident
occurred in a hall, size of hall is 20x12 ft. Manager left
branch office. He was going to police. He claims ignorance
whether incident was reported to Police. On say of
Manager Shri Shivdasani, he had given evidence. Witness
R. C. Mahadik was not cross-examined as coulsel for
workman remained absent and failed to cross-examine.
Witness Nandan in his cross-examination says personally
he did not see chargesheet issued to workman. He did not
remember strength of staff working in Ahmedpur branch.
He did not recollect the size of the branch office. There
was cabin of cashier, Manager and counter. The distance
between Manager cabin and place of sitting of Jhawar
was 10 ft. On day of incident, he was sitting in Manager’s
cabin. When Manager came out of his cabin, he also came
out. The evidence of both witnesses is not shattered
about place of incident.
10. Mr. Harsh Vardhan Dixit in his cross-examination
says Branch office was about 1000 sq. ft. The distance
between him and Jhawar was about 6-7 ft. it was rural
bank. At the time of incident, there was no rush of
customers. The bicycles kept outside the branch but there
was no cycle stand approved by branch. He claims
ignorance whether on day of incident around 11 AM,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5311
Branch Manager Shivdasani and Mr. Jhawar went towards
cycle stand. The evidence of witness abut occurrence of
incident assault on 13-9-83 or Branch manager is not
shattered. Witness Rohini Kumar Pandey in his cross-
examination says in 1983, 11 persons were working in
Ahmedpur branch. Mr. Jhawar was working as Agriculture
Assistant sitting beyond two seats that him. Prior to
assault by chair, Mr. Jhawar was reading news paper.
Manager objected to it. At that time Mr. Jhawar said there
were no customers and he can read newspaper. Jhawar
got angry and assaulted him. The evidence of witness
about assault of Manager is not shattered. Witness
R.K.Pandey in his cross-examination says that prior to
said incident, bycycle of Jhawar fell over motor cycle.
Branch Manager Shivdasani had told Mr. Jhawar to keep
his cycle properly so that it should not fell. Jhawar was
sitting beyond two seat beyond him. He was at his seat.
Mr. Jhawar left his seat and went to place of incident
where Manager was sitting. Witness Kadva Atoot also
supported the charge. In his cross-examination he says
he does not know what is written in his affidavit.
11. In domestic enquiry, it is not required to prove
charge beyond reasonable doubt. The evidence discussed
above is supporting the allegations of misconduct
committed by the workman. The evidence is cogent that
workman assaulted Branch Manager with chair as well as
pulled him by Iron chain at the time of IInd incident. Such
acts on part of workman is serious misconduct. If employee
assaults Branch Manager, the punishment of dismissal of
service imposed against him cannot be said illegal. For
above reasons, I record my finding in Point No.l in
Affirmative.
12. In the result, award is passed as under:-
(1)
The action of the management of Bank of India,
Khaigaon branch in dismissing Shri Arvind
Kumar Jhawar, Agricultural assistant, Ahmedpur
Branch w.e.f. 11-2-84 is proper and legal.
(2)
Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk-
2039.—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj
;wfu;u cSad vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj
ds iapkV ¼lanHkZ la[;k 169@1992½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 14-07-2014 dks izkIr gqvk FkkA
[la- ,y&12012@119@1992&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O.
2039.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 169/
1992) of the Central Government Industrial Tribunal/Labour
Court, Jabalpur as shown in the Annexure in the Industrial
Dispute between the management of the Union Bank of
India and their workmen, received by the Central
Government on 14.07.2014.
[No. L-12012/119/1992-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/169/92
Presiding Officer : SHRI R. B. PATLE
Smt. Nandini Naidu,
LR of Shri Arun Naidu,
Qr. No. 70, Napier Town,
Jabalpur
...Workman
Versus
Regional Manager,
Union Bank of India,
Regional Office,
Russel Chowk Crossing,
Jabalur
...Management
AWARD
Passed on this 2nd day of April 2014
1. As per letter dated 30-7-92 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No.L-
12012/119/92-IR(B-II). The dispute under reference relates
to:
“ Whether the claim of Shri Arun Naidu that he was
engaged by the Union Bank of India for driving
Bank’s car in connection with official work from
15-3-83 to 31-12-91 is correct? If so, whether
termination of his services w.e.f. 31-12-91 is justified?
what relief, if any is the workman entitled to?”
2. After receiving reference, notices were issued to
the parties. Statement of claim is submitted by Union at
Page 2/1 to 2/2. Case of Ist party workman is that workman
Arun Naidu was engaged by the Bank on post of Driver
w.e.f. 15-3-83. He was continuously working without
complaints. The services of workman were dismissed from
31-12-91. No chargesheet was issued to him, any enquiry
was not conducted against workman. Workman was called
for interview in 1987 for regular appointment as Driver.
The result was not declared. Workman had acquired status
of permanent employee covered under Section 25-B of
5312
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
I.D. Act. Termination of services of workman was without
notice or pay in lieu of notice. The services were terminated
as per oral order dated 31-12-91. Junior employees were
made permanent. It is submitted that the termination
amount to illegal retrenchment. On such grounds Union
prays for appropriate. reliefs.
3. IInd party filed Written Statement at Page 3/1 to
3/8. Claim of Union is opposed. Ilnd party management
submits that Shri Anil Kumar was never employed as
Driver in the Bank. He was personal driver appointed by
successive Regional Managers namely Shri M.C.Narula,
A.C.Duggal, J.Jayasingh and S.P.Dubey. That the terms
of reference is vague, devoid of merit. The Govt. of India
without applying its mind made the reference. There was
no employer- employee relationship therefore reference is
not tenable. It is reiterated that workman was never
employed as Driver by the IInd party Bank he was engaged
as personal driver by Regional Managers. IInd party
submits that practice prevalent in Banking industry for
allotting cars to executives and permitting them to occupy
personal drivers. In most of the nationalized banks, there
is scheme for allotment of Bank cars to the executives.
The mere fact that car is allotted by Bank to the executive
doesnot mean that personal driver appointed to drive the
car can gain employment in the bank. That Shri Arun
Kumar Naidu was not employee of the bank. Workman is
not covered under Section 2(s) of LD.Act. the bank has
no control over the employees engaged by Regional
Manager as they are personal servants. Bank has no
control over his working hours, remunerations paid to the
workman. Bank has recruitment rules for following
selection process. Workman was not appointed after
following selection process by the Bank. The Bank did
not terminate his services. On such ground, IInd party
prays for rejection of his claim.
4. The workman Arun Naidu died during pendency
of the reference. His LR Nandini Naidu is substituted on
record.
5. Considering pleadings on record, the points
which arise for my consideration and determination are as
under. My findings are recorded against each of them for
the reasons as below:-
(i)
Whether the claim of
In Negative
Shri Arun Kumar Naidu
that he was engaged by
the Union Bank of India
for driving Bank’s car
in connection with official
work from 15- 3-83 to
31-12-91 is proved?
(ii)
Whether termination of his
services w.e.f. 31-12-91 is
InAffirmative
justified?
(iii)
If not, what relief the
As per final
workman is entitled to?"
orders
REASONS
6. The terms of reference relates to. whether deceased
workman was engaged by IInd party Bank as Driver,
whether termination of his service is legal? Workman died
during pendency of the reference proceeding. In support
of claim of deceased workman Arun Naidu, affidavit of
evidence is filed by widow Nandini. She has stated that
her husband was appointed by Bank as Driver from 15-3-
83. He was in continuous service without break. His
services were discontinued till retrenchment of his service
on 31-12-91. That her husband was not given notice,
compensation was not paid in lieu of notice to her
husband. Certain junior employees to her husband are
made permanent. The names are not stated. Her husband
was not regularized. In her cross-examination, witness
Nandini says she knows places where her husband was
working and what kind of work he was doing. Her husband
was working as Driver. He was given appointment letter, it
was not produced on record. She explained that the
appointment letter is produced on other case. Her husband
had ppeared in Driving Test conducted by the bank. She
was unable to tell whether her husband was working as
Private Driver of Regional Manager. However she claimed
that her husband was working as regular driver of the
Bank. Salary of her husband was paid to his account.
Witness has not produced copy of appointment letters or
passbook of bank account of her husband. the evidence
of Nandini does not show how she received personal
knowledge about working of her husband in the Bank.
Copy of letter dated 19-3-91 produced on record shows
that Dy. General Manager of the bank had informed
Shri Kankar Munjare, Member of the Parliament for
regularization of service of Shri Arun Naidu, information
was being collected in the matter. The zerox copies of
letters produced on record. No care is taken to prove
those documents. Any co-worker is not examined in the
matter who had seen Arun Naidu working as employee of
IInd party bank. Document Exhibit W -1 produced is copy
of failure report submitted to Govt. of India. Said document
cannot prove that the deceased Arun Naidu was working
as employee of the Bank.
7. Management filed affidavit of evidence of Chief
Manager Arun Kumar Bhole supporting contentions of
management that late Arun Kumar Naidu was engaged as
private driver by Regional Manager. He was not appointed
by the bank. In his cross-examination, management’s
witness says during 1983 to 1991 he was not posted in
Regional Office, Jabalpur. He was unable to say whether
post of Driver was vacant in Regional Office in 1983. He
was also unable to tell whether in 1987, workman was called
for interview, he claims ignorance whether workman was
driving official car of Regional Manager. That he had not
seen logbook. The logbook record of the period is not
available. The pleadings of 1st party and evidence of
Nandini donot disclose vehicle Number which Arun was
driving. In absence of such evidence, the application
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5313
submitted by Union dated 17-2-95 calling IInd party to
produce documents, statement of pass Book No. S-323
logbook of vehicle driven by him, vehicle petrol slip etc.
cannot help to claim that deceased workman was working
as Driver in the Bank. Bank’s passbook normally is
expected in custody of deceased workman. No reason is
explained how passbook of deceased workman was in the
bank and its production was sought.
8. Learned counsel for 1st party Pranay Choubey
relies on ratio held in case of Shri R.M.Yellatti versus
Asstt. Executive Engineer. In said case their Lordship
held observations that MW-1 has suppressed the material
evidence before the court. The facts of the case are not
comparable as the evidence adduced by workman is not
cogent that her husband was working as driver of the
Bank. The ratio held in the case cannot be applied. For the
same reasons ratio held in case of UCO Bank and others
versus CGIT, Kanpur Nagar cannot be beneficially applied.
Evidence of Nandini does not disclose what was salary
paid to her husband by the Bank. The evidence about
working of deceased workman Arun Naidu in the Bank as
Driver is cogent and reliable. Employer-employee
relationship is not established. Therefore I record my
finding in Point No.1 in Negative.
9. Point No. 2 does not survive. In view of my finding
in Point No.1 that it is not established that late Arun
Naidu was employed as Driver by the bank, there is no
evidence about termination of services of Arun Naidu by
the Bank therefore as the deceased workman was not
employed by the Bank, there was no question of
termination by the Bank. The Point does not survive.
Accordingly I record my finding in Point No.2.
10. In the result, award is passed as under:-
(l)
It is not established that deceased Arun Kumar
Naidu was employed as Driver by IInd party
Bank.
(2)
As their employer-employee relationship is not
proved between Arun Naidu and Bank, the
termination of his service by Bank is not proved.
(3)
Workman is not entitled to relief prayed by him.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2040.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWQ
egkjk"Vª ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 35@1999½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
14-07-2014 dks izkIr gqvk FkkA
[la- ,y&12011@12@1998&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2040.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 35/1999)
of the Central Government Industrial Tribunal-cum-Labour
Court, Jabalpur 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 14.07.2014.
[No. L-12011/12/1998-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/35/99
Presiding Officer : SHRI R. B. PATLE
Dy. General Secretary,
Union of Maharashtra Bank Employees,
Jabalpur Unit,
Hanuman Mandir Gali,
Yadav Colony, Jabalpur
...Workman/Union
Versus
Asstt. General Manager,
Bank of Maharashtra,
Industrial Relations, Central Office 1501,
Lokmangal, Shivaji Nagar,
Pune (Maharashtra)
... Management
AWARD
Passed on this 2nd day of April 2014
1. As per letter dated 18-12-98 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-
12013/12/98/IR(B-II). The dispute under reference relates
to:
“ Whether the action of the management of Bank of
Maharashtra in depriving the benefits of full time
sub staff to Shri Tirath Singh Bisen and Shri Dilip
Jain Part time Sweepers of Ashta Branch and Bhoma
Branch respectively, Distt. Seoni is justified? If not,
to what relief the workmen are entitled to?”
2. After receiving reference, notices were issued to
the parties. However workman failed to file statement of
claim. Workman was proceeded exparte on 3-8-07. When
case is fixed for exparte Written Statement, workman has
submitted application for withdrawal of reference.
Workman submits that he has been regularized by IInd
party therefore he does not desire to prosecute the
reference proceeding. The application is supported by
his affidavit. Counsel for management has no objection.
5314
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
3. In view of the above facts, award is passed as
under:-
“As workman is regularized in service as per order
dated 9-9-98, the dispute between parties seized to
exist. Accordingly the reference is disposed off”.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2041.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc
us'kuy cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 30@2000½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
14-07-2014 dks izkIr gqvk FkkA
[la- ,y&12012@237@1999&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2041.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 30/2000
of the Central Government Industrial Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure in the Industrial
Dispute between the management of the Punjab National
Bank and their workman, received by the Central
Government on 14.07.2014.
[No. L-12012/237/1999-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/30/2000
Presiding Officer : SHRI R.B. PATLE
Shri Rameshchandra Soni,
S/o R.N. Soni,
Shri Krishina Bhavan,
Choudhary Colony,
Mandsour (MP)
... Workman
Versus
Regional Manager,
Punjab National Bank,
Regional office,
20, Sneh Nagar,
Indore
... Management
AWARD
Passed on this 13th day of May, 2014
1. As per letter dated 14-1-00 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.
L-12012/237/99/IR(B-II).The dispute under reference
relates to:
“ Whether the action of the management of Punjab
National Bank in terminating the services of Shri
Ramesh Chandra Soni, S/o Shri Ramnath Soni w.e.f.
9-1-99 and denial of wages appropriate to the norms
laid down is justified? If not, what relief the workman
is entitled for?”
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 2/1 to 2/3. Case of 1st party workman is that Ilnd
party appointed workman as part time peon from
21-2-98 in place of Shri Mahesh Kumar Soni. He was
continuously working as part time peon till discontinuation
of his service on 9-1-99. That 1st party workman was paid
salary Rs. 440 per month less than the minimum wages.
Workman submits that as per rule, he was entitled for
1/3rd salary for post of peon. His services were terminated
without notice, without paying retrenchment
compensation on 9-1-99. His services were terminated
orally. He was not given opportunity of hearing. He was
performing services satisfactorily. Termination of his
service without notice and without paying retrenchment
compensation is illegal. On such ground, workman prays
for his reinstatement with consequential benefits.
3. IInd party filed Written Statement at Page 6/1 to
6/3. IInd party raised preliminary objection. That workman
was engaged for specific period. Appointment order was
not issued to him. discontinuation of his service is covered
under Section 2(oo )(bb) of I.D.Act. it is not retrenchment.
As per rules and regulations of the Bank, a person with
education more than 4th standard cannot be appointed as
part time sweeper. That workman had made false
declaration that he passed 4th standard. Infact he had
passed 8th standard therefore the workman was not eligible
for appointment as part time Sweeper. Workman was
engaged for cleaning, sweeping work on casual basis.
He was paid agreed wages for his working days. Workman
was engaged from 2-3-98 to 31-7-98. Thereafter he was not
engaged by the IInd party. Workman was not continuously
working. After death of Shri Mahesh Soni workman was
engaged for cleaning work. Workman is not entitled to
relief claimed by him.
4. Considering pleadings on record, the points
which arise for my consideration and determination are as
under. My findings are recorded against each of them for
the reasons as below:-
(i)
Whether the action of the
management of Punjab
In Affirmative
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5315
National Bank in termi-
nating the services of
Shri Ramesh Chandra Soni,
S/o Shri Ramnath Soni
w.e.f. 9-1-99 and denial
of wages appropriate
to the norms laid down
is justified?
(ii)
If not, what relief the
Workman is not
workman is
entitled to relief
entitled to?”
claimed by him.
REASONS
5. Though workman is challenging termination of
his services for violation of Section 25-F of LD.Act but he
was not paid-retrenchment compensation, his services
were orally terminated. Workman failed to adduce
evidence. Evidence of workman is closed on 1-7-2013.
Management also failed to adduce any evidence. As such
both parties failed to participate in the reference
proceeding. Thus claim of workman is not supported by
evidence. Therefore I record my finding in Point No.l in
Affirmative.
6. In the result, award is passed as under:-
(1)
The action of the management of Punjab National
Bank in terminating the services of Shri Ramesh
Chandra Soni, S/o Shri Ramnath Soni w.e.f.
9-1-99 and denial of wages appropriate to the
norms laid down is legal and proper.
(2)
Relief prayed by workman is rejected.
7. Let the copies of the award be sent to the
Government of India, Ministry of Labour & Employment
as per rules.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2042.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wfu;u cSad
vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas
ds chp vuqca/k esa fufnZ""V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;&1] /kuckn ds iapkV
¼lanHkZ la[;k 42@2012½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 14-07-2014 dks izkIr gqvk FkkA
[la- ,y&12012@36@2011&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2042.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 42/2012)
of the Central Government Industrial Tribunal/Labour
Court-1, Dhanbad as shown in the Annexure in the
Industrial Dispute between the management of Union Bank
of India and their workmen, received by the Central
Government on 14.07.2014.
[No. L-12012/36/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.l), DHANBAD
IN THE MATTER OF I.D. U/S (2A)(i) (2) OF I.D.
AMENDMENT ACT 2010
I.D. Case No. 1/2013
Santosh Kumar Pandey
S/o Late Pramod Prasad Pandey
C/O Uttam Kumar Pandey
Moh- Raja para, Kalitalla
P.O+ P.S+ Dist - Pakur
...Applicant
Vs.
Dy General Manager
Union Bank of India,
Regional Office Manju shree Tower,
Ranchi, 834001
...Opp. Party
AND
Reference: No. 42 of 2012
IN THE MATTER OF REFERENCE U/S 10 (1)(D) (2A)
OF I.D. ACT, 1947
Parties: Employers in relation to the management of Union
Bank of India, Ranchi
And
Their workman
Present:-Sri Ranjan Kumar Saran,
Presiding officer
APPEARANCES:
For the Employers
: None
For the workman
: Sri B. Prasad, Rep.
State : Jharkhand
Industry: Banking
Dated 28/04/2014
AWARD
By Order No.L-12012/36/2011-IR (B-II), dated
09/07/2012, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub-section (1) and sub -section (2A) of Section 10
of the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal.
SCHEDULE
“Whether the action of the management of Union
Bank of India In terminating the service of Shri
Santosh Kumar Pandey w.e.f 01.08.2010 is legal
5316
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
and justified ? Whether the demand of the
workman for regularisation of his service is just
and proper? What relief the concerned workman
is entitled to?”
2. One I.D. case of Santosh Kumar pandey Vs Union
Bank of India is registered in CGIT No.2 as I.D. 1/2011.
But in the meantime the same case is registered in this
Tribunal vide Ministry’s order No. L-.12012/36/2011 IR
(B-II) dated 09.07.2012 as Reference 42 of 2012. Thereafter
the I.D. case of CGIT No.2 is transferred in this Tribunal
and registered as I.D. 1 of 2013 therefore Now I.D. l of 2013
is merged with Reference 42 of 2012.
4. The Reference case is received from the Ministry
of Labour on 30.07.2012. After notice both parties
appeared, Sponsoring Union files a petition for merger of
I.D. 1 of 13 with Ref. 42/12 and prays that the reference
case should proceed in which stage the I.D. case is
received in this Tribunal. Thereafter both case heard
analogously.
5. The short point involved in this case is that the
workman was working as messenger under the Union
Bank management, on In 04/10/2009 He worked
continuously till 31.07.2010 from 9 AM til16 PM. i.e. for
285 days.
6. When he prayed for regularization his job he was
terminated on 01.08.2010. without any prior notice.
7. In spite of valid postal registerd notice, the
management neither appeared nor filed counter claim
statement. Considering the bank vouchers payment to
workman and his unchallenged testimony there is no
reason to believed his case.
8. Considering the facts and circumstance of this
case, I hold that the action of the management of Union
Bank of India In terminating the service of Shri Santosh
Kumar Pandey w.e.f 01.08.2010 is not legal and justified,
Accordingly it is ordered to reinstate him in his post on
the prevalent scale of pay as temporary worker.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2043.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tsV ,vjost
bf.M;k çkbZosV fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] dksydkrk
ds iapkV ¼lanHkZ la[;k 05 of 2008½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 14-08-2014 dks izkIr gqvk FkkA
[la- ,y&11012@1@2008&vkbZvkj¼lh,e&I½]
,e- ds- flag] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2043.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 05/2008)
of the Central Government Industrial Tribunal/Labour
Court, Kolkata as shown in the Annexure in the Industrial
Dispute between the management of M/s. Jet Airways
(India) Pvt. Ltd., and their workmen, which was received
by the Central Government on 14.07.2014.
[No. L-11012/1/2008-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL AT KOLKATA
Reference No. 05 of 2008
Parties : Employers in relation to the management of
Jet Airways(India) Pvt. Ltd., Kolkata Airport.
AND
Their workman
Present : Justice Dipak Saha Ray, Presiding Officer
Appearance:
On behalf of the : Mr. S.K. Sharma, Ld. Advocate
Management
On behalf of the : None.
Workman
State: West Bengal
Industry : Airlines.
Dated: 19th May, 2014.
AWARD
By Order No. L-11012/1/2008-IR(CM-I) dated 21.01.2008
the Government of India, Ministry of Labour in exercise
of its powers under Section 10(1)(d) and (2A) of the
Industrial Disputes Act, 1947 referred the following dispute
to this Tribunal for adjudication:
“Whether the action of the management of Jet
Airways (India) Pvt. Ltd. Kolkata in dismissing the
service of Sh. Moshidul Biswas, Loader-cum-cleaner,
w.e.f. 18.2.2004 is justified and legal? If not, to what
relief is the concerned workman is entitled?”
2. When the case is taken up today for hearing,
none appears on behalf of the workman though the
management is represented by its learned counsel.
It appears from the record that the workman is absent
since 20.01.2014, i.e., for four consecutive dates. From the
above conduct of the workman it may reasonably be
presumed that the workman is not at all interested to
proceed with the case further. Perhaps the workman at
present has got no grievance against the management.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5317
3. In view of the above, instant reference case is
disposed of by passing a “No Dispute Award”.
Kolkata,
Dated, the 19th May, 2014.
JUSTICE DIPAK SAHA RAY, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2044.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,;j bf.M;k
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] pSUubZ ds iapkV ¼lanHkZ la[;k 31 of
2014½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 14-07-2014
dks izkIr gqvk FkkA
[la- ,y&11012@12@2006&vkbZvkj¼lh,e&I½]
,e- ds- flag] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2044.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 31/2014)
of the Central Government Industrial Tribunal-cum-Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the M/s. Air India and their workman,
received by the Central Government on 14.07.2014.
[No. L-11012/12/2006-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL - CUM - LABOUR COURT,
CHENNAI
Thursday, the 5th June, 2014
Present:
K. P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 31/2014
(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 Air India and their workman)
BETWEEN
The Secretary
: 1st Party/Petitioner
Chennai Airport Contract
Union
Workers Union
No. 13, 1st State, Balaji
Nagar Anakaputhur,
Chennai-600070
AND
1. The Senior Manager
: 2nd Party/1st
Air India, Chennai Airport
Respondent
Chennai-600006
2. M/s Katchiamman
: 2nd Party/2nd
Electricals
Respondent
C/o Air India, Chennai
Airport Chennai-600027
Appearance: .
For the 1st Party/Petitioner
: Set Ex-Parte
Union
For the 2nd Party/1st &
: Set Ex-Parte
2nd Respondent
AWARD
The Central Government, Ministry of Labour &
Employment, vide its Order No. L-11012/12/2006-IR(C-I)
dated 26.03.2014 referred the following Industrial Dispute
to this Tribunal for adjudication. The Schedule mentioned
in that order is:
“Whether services of 7 (seven contract workers (as per
annexure) working under M/s Kamatchiamman Electricals
at Chennai Airport can be regularized by the Management
of Air India? To what relief the concerned workers are
entitled to?”
2.On receipt of the Industrial Dispute this Tribunal
has numbered it as ID No. 31/2014 and issued notices to
both sides.
3. Though the petitioner was served with notice, he
has not appeared on the date of first hearing. Though the
case was posted to another date for appearance of the
petitioner, the petitioner still failed to enter appearance.
The First Respondent also was absent, though served
with notice. The petitioner seems to be not interested in
pursuing the matter.
The reference is answered against the petitioner.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on
this day the 5th June, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined
F or the 1st Party/Petitioner
: None
For the 2nd Party/1st &
: None
2nd Party Management
Documents Marked:
On the petitioner’s side
Ex. No.
Date
Description
Nil
On the Respondent’s side
Ex. No.
Date
Description
Nil
5318
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2045.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj flaxkiqj
,;jykbZUl fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] pSUubZ ds iapkV
¼lanHkZ la[;k 42 of 2014½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 14-07-2014 dks izkIr gqvk FkkA
[la- ,y&11012@10@2014&vkbZvkj ¼lh,e&I½]
,e- ds- flag] vuqHkkx vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2045.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 42/2014)
of the Central Government Industrial Tribunal-cum-Labour
Court, Chennai as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of the M/s. Singhapore Airlines Ltd., and
their workmen, received by the Central Government on
14.07.2014.
[No. L-11012/10/2014-IR (CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Friday, the 27th June, 2014
Present: K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 42/2014
(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 M/s Singapore Airlines Ltd. and their
workman)
BETWEEN
The Singapore Airlines
: 1st Party/Petitioner
Limited Staff &
Officers Union 12,
Visweswarapuram Street
Mylapore Chennai-600004
AND
The Managing Director
: 2nd Party/Respondent
M/s Singapore Airlines Ltd.
West Minister, 108,
Dr. Radhakrishnan Salai
Mylapore Chennai-600074
Appearance:
For the 1st Party/Petitioner: M/s BFS Legal, Advocates
For the 2nd Party/
: M/s Fox Mandal &
Respondent
Associates, Advocates
AWARD
The Central Government, Ministry of Labour &
Employment, vide its Order No. L-11012/10/2014 (IR(CM-
I) dated 22.04.2014 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
“Whether the action of the management of
M/s. Singapore Airlines Ltd. in respect of non-
payment of cost of living adjustment benefits to the
members of the Union for the period from 2009 to
2013 is justified? To what relief the workman are
entitled to?
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID No. 42/2014 and issued notices to
both sides. Both sides have entered appearance through
their counsel.
3. The parties have settled their dispute and have
entered into a Memorandum of Settlement on 31.05.2014.
The parties now seek an award on the basis of the
Memorandum of Settlement. The counsel on both sides
have endorsed agreeing for an award on the basis of the
Memorandum of Settlement. Accordingly, an award is
passed in terms of the Memorandum of Settlement filed
by the parties. The Memorandum of Settlement will form
part of the award.
The reference is answered accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on
this day the 27th June, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined :
For the 1st Party/Petitioner
: None
For the 2nd Party/
: None
Management
Documents Marked:
On the petitioner’s side
Ex. No.
Date
Description
N/A
On the Management’s side
Ex. No.
Date
Description
N/A
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5319
SINGAPORE AIRLINES LTD.
MEMORANDUM OF SETTLEMENT
NAMES OF PARTIES: 1. SINGAPORE AIRLINES
LIMITED.
THE WESTMINISTER, 1ST
FLOOR 108 DR:
RADHAKRISHNAN SALAI
MYLAPCRE
CHENNAI-600 004
2. SINGAPORE AIRLINES LTD.
STAFF & OFFICERS UNION
12, VISWESWARAPURAM
STREET MYLAPORE
CHENNAI-600 004
REPRESENTING
1. MR. SEAH CHEE CHIAN
THE EMPLOYER
SINGAPORE AIRLINES LTD.
CHENNAI
REPRESENTING
2. MR. P. S. SELVAKUMARAN
THE EMPLOYEES
GENERAL SECRETARY
SINGAPORE AIRLINES
STAFF & OFFICERS UNION
CHENNAI
SHORT RECITAL
That Singapore Airlines Limited (hereinafter referred
to as “the Company”) received the Charters of Demands
dated 03 June 2010 from Singapore Airlines Staff & Officers
Union Chennai (hereinafter referred to as “the
Association”) for and on behalf its members, the
employees of Singapore Airlines Limited and Singapore
Airlines Cargo Pvt. Ltd. The Company, after making a
detailed study of the said demands, invited the Association
for negotiations. After holding negotiations on several
occasions on the said Charters of Demands, the Company
and the Association have arrived at an amicable settlement
on the following terms and conditions :-
1.
PERIOD OF AGREEMENT
1.1
This Agreement shall come into effect on 01 April
2010 and remain in force till 31 March2015.
2.
GENERAL CONDITIONS OF SERVICE, SALARY,
ALLOWANCES AND OTHER BENEFITS
2.1
The general conditions of service, salary and
allowances, and other benefits shall be set out in
Parts One and Two of the Agreement.
PART ONE
GENERAL TERMS AND CONDITIONS OF SERVICE
1.
EXCLUSIVE SERVICE
1.1
An employee shall not, without the prior written
permission of the Company, be engaged in any
outside business or be employed in any capacity
for any period by any person, government
department, statutory board, firm, company or
organisation other than the Company.
1.2
If an employee’s family member(s) is engaged in
any business which has dealings with the
Company or any of it’s subsidiaries that could have
the effect of putting the employee in a position of
conflict of interest in the discharge of his duties
towards the Company, he must inform the
Company in writing as soon as possible.
2.
PUBLICATIONS, INTERVIEWS, BROADCASTS,
ETC.
2.1
The consent of the Company must be obtained
before any employee may;
2.1.1
Publish, or cause to be published or submit for
publication any article, book, letter or photograph;
2.1.2
Give any interview or disclose any information for
publication;
2.1.3
Broadcast or appear in television programmes;
2.1.4
Deliver any lecture or speech;
2.1.5
Exhibit or cause to be exhibited any cinematograph
film; or any matter which concerns his duties or
the business of the Company.
2.2
In the case of publication under clauses 2.1.1 to
2.1.5 not concerned with the Company, no mention
may be made by the employee of his title or position
in the Company, or his connection with the
Company.
3
PRIVILEGE TRAVEL
3.1
Employees may apply for privilege travel on the
Company services in accordance with the
Company regulations in force from time to time.
4
UNIFORM
4.1
Employees who are required to wear uniform during
duty hours will do so.
4.2
Uniform will be issued according to the Company’s
Uniform Manual and will remain the property of
the Company.
4.3
Employees are responsible for keeping their
uniform clean, presentable and in good condition.
4.4
Uniform shall not be worn when staff are off duty.
Staff may, however, wear the uniform while
travelling between their home and their place of
duty and vice versa.
4.5
Employees leaving the services of the Company
must return all items of uniform or pay the value of
the unexpired life of any article which may have
5320
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
been lost. Such items may be deducted from the
final payments due on termination of employment.
5.
PROBATIONARY PERIOD
5.1
The period of probation will be six months subject
to extension by the Company at its sole discretion
for a period of further three months. The total
period of probation shall not exceed nine months.
6.
NOTICE FOR TERMINATION OF EMPLOYMENT
6.1
Termination of employment may be effected by
either the Company or the employee in the
following manner:
6.1.1
During probation:
(i)
within the first three months of employment:
without notice;
(ii) after the first three months of employment: 14
days notice in writing or payment of 14 days
salary in lieu of notice; and
6.1.2
After confirmation:
(I)
one month’s notice in writing or by the
payment of one month’s salary in lieu of
notice.
7.
MISCONDUCT/PUNISHMENT/DISMISSAL
7.1
Any of the following acts or omissions on the part
of any employee shall amount to misconduct;
7.1.1
wilful insubordination or disobedience, whether
or not in combination with another, of any lawful
and reasonable order of the superior;
7.1.2
going on illegal strike or abetting, inciting,
instigating or acting in furtherance thereof;
7.1.3
wilful slowing down in performance of work or
abetment or instigation thereof:
7.1.4
theft, fraud or dishonesty in connection with the
Company’s business or property;
7.1.5
taking or giving bribes or any illegal gratification;
7.1.6
habitual absence without leave or absence without
leave for more than 10 consecutive days or
overstaying the sanctioned leave without sufficient
grounds or proper or satisfactory explanation;
7.1.7
late attendance on not less than four occasions in
a month;
7.1.8
habitual breach of any law applicable to the
Company or any rules made there under;
7.1.9
collection without the permission of the Company
of any money within the premises of the Company
except sanctioned by any law for the time being in
force;
7.1.10 engaging in trade within the premises of the
Company;
7.1.11 drunkenness, riotous, disorderly or indecent
behaviour in the Company premises;
7.1.12 commission of any Act subversive to discipline or
good behaviour in the Company premises;
7.1.13 habitual neglect of work or gross or habitual
negligence;
7.1.14 habitual breach of any rules or instructions for the
maintenance and running of any department, or
the maintenance of the cleanliness of any portion
of the Company premises;
7.1.15 habitual commission of any Act or omission for
which a fine may be imposed under Payment of
Wages Act 1936.
7.1.16 canvassing for Union membership or the collection
of Union dues within the Company premises,
except in accordance with any law or with the
permission of the Company;
7.1.17 wilful damage to any Company property;
7.1.18 holding meetings in the Company premises,
without the prior permission of the Company or
except in accordance with any law for the time being
in force;
7.1.19 disclosing to any unauthorised person any
information in regard to the process of the
Company which may come to the possession of
the employee in the course of his work;
7.1.20 gambling within the Company premises;
7.1.21 smoking or spitting in the Company premises where
it is prohibited by the Company;
7.1.22 failure to observe safety instruction notified by
the Company or interference with any safety device
or equipment installed by the Company.
7.1.23 distributing or exhibiting within the Company
premises handbills, pamphlets and such other
things or causing to be displayed by means of
signs or writing or other visible representation on
any matter without prior sanction of the company;
7.1.24 refusal to accept a charge sheet, order or other
communication served in accordance with the
Standing Orders; and
7.1.25 unauthorised possession of any lethal weapon in
the Company premises.
Explanation: No act of misconduct, which is
committed on less than three occasions within the
space of one year, shall be treated as habitual.
7.2
An employee guilty of misconduct may be:
7.2.1
warned or censured; or
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5321
7.2.2
fined. subject to and in accordance with the
provision of the Payment of Wages Act 1936; or
7.2.3
suspended by an order in writing from the Company
for a period not exceeding four days; or
7.2.4
dismissed without notice.
7.3
No order under 7.2.3 shall be made unless the
employee concerned has been informed in writing
of the allegod misconduct or given an opportunity
to explain the circumstances alleged against him.
7.4
No order or dismissal under 7.2.4 shall be made
except holding an enquiry against the employee
concerned in respect of the alleged misconduct in
the manner set out in clause 7.5.
7.5
An employee against whom an enquiry is proposed
to be held shall be given a charge sheet. clearly
setting forth the circumstances appearing against
him and requiring his explanation. He shall be
permitted to defend himself or shall be permitted
to be defended by an employee working in the
same department as himself or by any office bearer
of the Association. Except for reasons to be
recorded in writing by the Enquiry Officer, the
employee shall be permitted to produce witness in
his defence and cross examine any witness on
whose evidence the charges rest. A concise
summary of the evidence from both sides and the
employee’s pleas shall be recorded.
7.6
All proceedings of the enquiry shall be conducted
in English.
7.7
The enquiry shall be completed within a period of
3 months. Provided that the period of 3 months
may for reasons to be recorded In writing, be
extended to such further period as may be deemed
necessary by the Enquiry Officer.
7.8
An employee against whom any action is proposed
to be taken under clauses 7.2.2 to 7.2.4 may be
suspended pending the enquiry or for the period,
if any, allowed to him for giving his explanation.
The order of suspension may take effect
immediately on its communication to the employee.
7.8.1
Subject to the provision of the Payment of Wages-
Act 1936, an employee who is placed under
suspension shall, curing the period of suspension,
be paid a subsistence allowance at the following
rates:
.
(i)
for the first ninety days of the suspension
period, the employee will be paid on ½ of the
basic salary and allowances. However, the
Shift Allowance and Uniform Laundry
Allowance will not be paid;
(ii) If the enquiry gets prolonged and in case the
employee continues to be under suspension
for the period exceeding 90 days, he will be
paid ¾ basic pay and allowances. However,
the Shift Allowance and Uniform Laundry
Allowance will not be paid.
(iii) If the enquiry is not completed within a period
of 180 days the employee will be paid full
basic pay and allowances. However, Shift
Allowance and the Uniform Laundry
Allowance will not be paid.
7.8.2
Provided that where the findings of the enquiry
officer show that such enquiry is prolonged beyond
a period of 90 days, or as the case be 180 days, for
reasons directly attributable to the employee, the
subsistence allowance to be paid per month shall
be for the period exceeding 90 days, or as the case
may be 180 days, be reduced to ½ basic pay and
allowances.
7.8.3
If, as a result of the enquiry held or explanations
tendered, it is decided not to take any action
against the employee under Clause 7.2 the
employee shall be deemed to have been on duty
and shall be entitled to full wages minus such
subsistence allowance as he may already have
drawn and to all other privileges for the full period
of suspension.
7.8.4
The payment of subsistence allowance under
Clause 7.8.1 shall be subject to the employee
concerned not taking up any employment during
the period of subsistence.
7.9
In awarding the punishment under this standing
order, the Company shall take into account the
gravity of the misconduct, previous record if any
of the employee, and any other extenuating or
aggravating circumstances that may exist.
7.10
If an employee refuses to accept a charge sheet
order or other communication served in
accordance with the Standing Order and provided
that he has been asked to accept the charge sheet
in the presence of at least 2 witnesses, he shall be
told verbally the time and place at which the enquiry
into his alleged misconduct is to be held, and if he
refuses or fails to attend at that time, the enquiry
shall be conducted ex-parte and the punishment
awarded shall take into account the misconduct
under Standing Order 22 thus committed.
7.11
An employee may be warned, censured or fined
for any of the following acts and omissions:
7.11.1 absence without leave without sufficient cause;
7.11.2 late attendance;
7.11.3 negligence in performance of duties;
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
7.11.4 neglect of work;
7.11.5 absence without leave or without sufficient cause
from the appointed place of work;
7.11.6 entering or leaving, or attempting to enter or leave
the Company premises except by a gate or entrance
appointed:
7.11.7 committing a nuisance on the Company premises:
7.11.8 breach of any rule or instruction for maintenance
or running of any department. Provided that no
employee shall be fined, except in accordance with
the provisions of the Payment of Wages Act 1936,
where the provisions of the said Act are applicable
to him.
8.
WORKING HOURS
8.1
The normal hours of work will not exceed thirty-
eight hours and forty-five minutes per week
excluding meal breaks. These hours of work will be
distributed over five days a week with two days in
each week being days off. It shall be the absolute
discretion of the Company to specify the exact
working hours, depending upon operational
requirements. In the case of employees working
on shift basis, the length of each working week
may vary according to the particular shift roster,
but on an average; each employee will be required
to complete 38 hours and 45 minutes over the
course of the complete shift cycle.
8.2
No employee shall be eligible to receive wages if
he fails to report for duty for any reason other
than approved leave or paid holidays.
8.3
An employee will work in excess of the normal
working hours when required to do so by the
Company subject to the payment of Overtime for
the extended hours worked.
8.4
Overtime will be calculated at twice the basic hourly
rate of work. The hourly rate will be calculated as
follows:
Basic Salary per month x 12 mooths
52 weeks x 38 hours and 45 minutes
8.5
Employees will be required to enter their starting
and finishing time of work, on each occasion, in
an attendance register kept for this purpose. Time
in excess of normal working hours has to be
certified in the register as being required for
company duty by the departmental nead
concerned.
8.6
Employees working in excess of half an hour from
their rostered time off, shall be entitled to overtime
payment from the rostered time off.
9
WORKING ON A WEEKLY DAY OFF
9.1
If an employee is required to work on his scheduled
day off, he will be given a day off in lieu within 21
days. If this is not possible, he will be paid overtime
at twice the basic hourly rate subject to a minimum
guaranteed four hours.
10
WORKING ON PUBLIC/NATIONAL HOLIDAY
FALLING ON A OFF DAY
10.1
If an employee is required to work on his scheduled
off day which is also a Public/National holiday for
the station, he will be given two days off In lieu
within twenty-one days. If this is not possible. he
will be paid overtime at twice the basic hourly rate
for that day and be given a day off. Overtime will
be paid subject to a minimum guaranteed four
hours.
11
WORKING ON PUBLIC/NATIONAL HOLIDAY
11.1
If an employee is required to work on a Public/
National holiday he will be given a day off in lieu
within twenty one days. If this is not possible he
will be paid overtime at twice the basic hourly rate,
subject to a minimum guaranteed four hours.
12
ROSTERED DUTIES
12.1
The roster will be published two weeks in advance
for a period of four weeks. It can, however, be
changed by giving twenty-four hours notice. For
operational exigencies for e.g. aircraft diversions,
or return to base, no notice of change need be
given.
12.2
There will be a minimum of twelve hours break
between shifts. If an employee is required to report
for duty before he has had this break of twelve
hours, he will be entitled for overtime payment for
the hours that fall short of the full break.
12.3
An employee who is required to work continuously
for 17 hours or more will be paid overtime for the
extended hours worked, be given a break of 12
hours and a compensatory off within 21 days.
13
PUBLIC HOLIDAYS
13.1
Employees will be granted fifteen public holidays
in a calendar year. The list of public holidays will
be drawn up with the Association before the
commencement of the year. In case the Govemment
announces any additional holidays under the
Negotiable Instruments Act, employees will be
granted that holiday.
14
ANNUAL LEAVE
14.1
Annual leave will be granted on the following basis
and will be taken in accordance with the following
regulations:
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5323
14.1.1 For employees with up to
17 working days
5 years service
14.1.2 For employees with more
20 working days
than 5 years service
14.1.3 For employees with more
23 working days
than 15 years service
14.2
Annual leave must be taken in the calendar year in
which it is earned. Leave not utilised by the end of
the calendar year will lapse unless it was not taken
at the Company’s request. In such cases and
provided prior approval is obtained from the
General Manager or State Manager, the leave may
be carried forward to the following year to be
cleared by 31 March.
15
CASUAL LEAVE
15.1
An employee will be entitled to paid Casual leave
up to 9 days in a calendar year, but not more than
2 days at a time.
15.2
Casual leave shall be non-cumulative and no leave
of any kind may be combined with Casual Leave.
15.3
Casual leave is intended to meet special or
unforeseen circumstances for which provision
cannot be made by exact rules.
15.4
The previous permission of the Department Head
must be taken in writing before Casual leave is
taken, but when this is not possible, information
should be given on the telephone.
16
SICK LEAVE
16.1
An employee will be eligible for sick leave on full
salary up to a maximum of 12 working days in one
calendar year. Sick leave may be accumulated up
to a maximum of 90 working days.
16.2
Sick leave taken for two or more working days must
be supported by a certificate from the Company-
appointed doctor.
17
MATERNITY LEAVE
17.1
All female employees will be entitled to maternity
leave as per the provisions of Maternity Benefit
Act - 1961 and the amendments made to it thereafter.
18
MEDICAL TREATMENT (DOMICILIARY)
18.1
Employees can opt for one of two schemes:
18.1.1 Scheme 1 : Full reimbursement tor the employee
only, for the cost of medical treatment received
from Company-appointed doctors.
18.1.2 Scheme 2 : Reimbursement, for the employee,
spouse and dependent children, for the cost of
medical treatment received from Company-
appointed doctors subject to a maximum limit of
Rs.8,500 per annum for staff, and Rs.2,500 per
annum each for spouse and two dependent
children
18.2
Medical treatment shall consist of consultation
fees, including specialist’s fees, the cost of any
tests/investigations required for the diagnosis of
the illness, and medicines prescribed by the
doctors. This will also include the Company-
appointed doctors’ visiting fees.
18.3
The employee shall exercise the option once a year.
Once exercised, the option cannot be changed for
a period of 12 months.
18.4
The Company shall not be responsible for the
payment of any expenses arising from:
18.4.1 all medical, surgical, optical and dental appliances
including spectacles and eye glasses, dentures
and similar appliances;
18.4.2 pregnancy, confinement or miscarriage;
18.4.3 illness or disablement arising from attempted
suicide, the performance of an unlawful act,
provoked assault, the use of drugs other than those
prescribed by the Company’s doctor;
18.4.4 treatment of medicines where these become
necessary as a result of the misconduct or
negligence on the part of an employee or in the
case of an employee who refuses to undergo
treatment as prescribed by the Company doctor.
19.
DENTAL TREATMENT
19.1
Employees shall be reimbursed the cost of dental
treatment which they may receive from Company-
appointed dentists. This consists of consultation
fees, including specialist’s fees, the cost of any
tests/investigations required for the diagnosis of
the illness, and medicines prescribed by the dentist.
19.2
Dental treatment includes cleaning, scaling, filling,
extraction, root canal treatment, gum surgery etc.
It excludes capping, bridging, dentures and other
dental appliances.
20.
MEDICAL TREATMENT (HOSPITALISATION)
20.1
All employees are covered for hospitalisation by
an insurance policy with the premium of which
will be paid for by the Company. In the case of
married employees, the Company will pay fifty
percent of the premium for the employees’ spouse
and dependent children. The balance fifty percent
will be paid by the employee himself.
20.2
For employees in Grades Ill, the maximum sum
insured will be Rs.200,000. With effect from the
next date of renewal the sum insured will increase
to Rs.300,000 (subject to renewal of the policy by
the insurance company).
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
20.3
For employees in Grades IV and V, the maximum
sum insured will be Rs.250,000. With effect from
the next date of renewal of the said policies the
sum insured will be revised to Rs.350,000 (subject
to renewal of the policy by the Insurance company).
21.
PERSONAL ACCIDENT INSURANCE
21.1
All employees are covered for hospitalisation by a
Personal Accident Insurance Policy, the premium
of which will be paid by the Company.
21.2
The sum insured for each employee will be twice
the annual salary of each employee (at the time of
renewal).
22.
EMPLOYEES’ PROVIDENT FUND
22.1
Employees who are members of the, Employees’
Provident Fund will be eligible for the benefits as
per the rules of the Fund.
23.
RETIREMENT
23.1
The retirement age is 58 years for both male and
female employees.
PART TWO
SALARY, ALLOWANCES & OTHER SERVICE
CONDITIONS
1.
SALARY SCALES
1.1
Salaries for each position will be paid in accordance
with the salary scales set out in Annexure 1.
2.
ANNUAL INCREMENTS
2.1
Employees will be granted annual increments on
01 April each year, amounting to 4% of their basic
salary as at 31 March.
3.
BASIC SALARY REVISION
3.1
Employees will be granted a Cost of Living
Adjsutment (COLA) for the duration of this
agreement as per the table below:
Date
COLA
(% of 31 March basic pay)
01 April 10
9.85
01 April 11
8.71
01 April 12
8.31
01 April 13
11.06
01 April 14
9.95
3.2
The Cost of Living Adjustment (COLA) will be
based on a weighted average of CPI of 05 on-line
metros (BOM, BLR. CCU, DEL & MAA), using
staff strength as variable.
4.
TRANSPORT SUBSIDY
Transport subsidy will be paid as per the table
below:
01 April 2010
01 April 2011 onwards
Grade
Town
Traffic
Town
Traffic
3
3550
6250
4250
7500
4
3680
6370
4400
7640
5
3800
6500
4550
7800
5A
3900
6600
4680
7900
5.
HOUSE RENT ALLOWANCE
5.1
All employees will be entitled to receive a House
Rent Allowance ‘amounting to 10% of their basic
pay
6.
SHIFT ALLOWANCE:
6.1
Employees who are rostered for shift duties will be
paid a single rate Shift Allowance with effect from
01 April 2010.
6.1.1
The Shift Allowance replaces the Night Shift
Allowance and the Work Through Break
Allowance, which will cease to be paid from the
same date.
6.2
The Shift Allowance will be paid on the following
basis:
6.2.1
FY1 0/11, FY11/12 & FY12/13 : Rs.1000 per month
X 11 months for each year
6.2.2
Effective 01 April 13, the Shift Allowance will
increase to Rs.2,500 per month;
6.2.3
Effective 01 April 14, the Shift Allowance will
increase to Rs.3,000 per month
7.
UNIFORM LAUNDRY ALLOWANCE:
7.1
Effective 01 April 2010, employees who are required
to wear uniforms will be paid a Uniform Laundry
Allowance of Rs.700 per month towards the cost
of laundering their uniforms.
7.2
Staff will not be paid the Uniform Laundry
Allowance when they are on annual leave.
8.
ACTING ALLOWANCE
8.1
When an employee is absent for a period exceeding
5 working days, the Company may at its discretion
appoint an employee in a lower grade to act for the
absent employee. The junior employee will be
entitled to an Acting Allowance provided he takes
over the full responsibilities and duties of the senior
employee and acts for a period of at least 5
consecutive working days. The Acting Allowance
payable will be 6% of the junior employee’s
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5325
monthly basic salary pro-rated for the number of
days applicable.
9.
BONUS
9.1
Employees will be paid an annual bonus in
accordance with the law.
10.
GRATUITY
10.1
Gratuity will be payable to all employees as per the
provisions of The Payment of Gratuity Act, 1972
and the amendments made thereafter.
11.
RECOVERY OF OVERPAYMENT OF SALARY
AND ALLOWANCES
11.1
In the event of excess payment of salary and
allowances, owing to.
11.2
Cashier error
11.3
Error in calculation
11.4
Sick leave and annual leave taken in excess of
entitlement the Company shall recover the same
from the employee’s future wages. However, the
deduction should be effected within 01 year from
the date of excess payment.
12.
CHANGES IN ALLOWANCE AND BONUSES AND
SUCH OTHER PAYMENTS AS REQUIRED BY
LEGISLATION .
12.1
The Company agrees to make such changes to the
allowances, bonuses, and such other payments
as may be required by legislation.
12.2
In the event that an employee resigns from the
services of the Company he will receive arrears
which are due to him from the date of termination
of employment, in accordance with the law.
13.
EXISTING BENEFITS AND PRIVILEGES
13.1
All existing benefits, privileges, payments and
allowances not covered in this Agreement in Parts
One and Two shall not be changed without prior
agreement with the Association in writing.
14
GENERAL
14.1
The Management shall withdraw the Writ Petition
No. 22435 of 2013 filed by Singapore Airlines
Limited before the High Court of Judicature at
Madras where an order dated 19.08.2013 has been
passed to stay the proceedings in ID No. 36 of
2013 pending before the Central Government
Industrial Tribunal, Chennai and Writ Petition No.
22491 of 2013 filed by Singapore Airlines Limited
before the High Court of Judicature at Madras
where an order dated 19.08.2013 has been passed
to stay the proceedings in ID No. 47 of 2013
pending before the Central Government Industrial
Tribunal, Chennai. Subsequent to the withdrawal
of the Writ Petitions mentioned above, the
Association shall file the present Settlement
Agreement before the Central Government
Industrial Tribunal, Chennai and request CGIT to
pass an award in I.D. No. 36 of 2013, I.D. No. 47 of
2013 and I.D. No. 42 of 2014 in terms of this
Settlement Agreement.
14.2.1 The Union agrees not to make any other demands
other than those contained herein pursuant to the
Charter of Demand dated 03 June, 2010, during the
tenure of this agreement. The demands which have
not been settled by this settlement and contained
in the Charter of Demands, are hereby withdrawn
by the Union.
14.3
In the event that the Company reaches an
agreement with any staff association in India on
more beneficial terms, the Company undertakes to
extend the same to the Association, with effect
from the same date from which they become
applicable.
This agreement is signed at Chennai on the 31st day of
May Two Thousand and Fourteen
Manager Southern India
General Secretary
Singapore Airlines Limited
Singapore Airlines Staff
(For & on behalf of the
Officers &Union
Employer)
(For & on behalf of the
Employees)
WITNESSES:
1. K Ravichandran
2. Mohamed Akmal
15 ANNEXURE 1
1.
Salary Ranges with effect from 01 April, 2010.
Salary Ranges
(Ra/pm)
Grade Title
Min
Max
1
Office Helper
14,203
35,308
2
Clerk
17,717
44,293
Jr Agent/Clerk
3
(Customer Service,
22,519
56,300
Reservations, Accounts,
Sales & Marketing)
.
Agent
4
(Customer Service,
Reservations, Accounts,
25,981
64,950
Sales & Marketing)
Officer
5
(Customer Service,
Reservations, Accounts,
33,085
82,700
Sales & Marketing)
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
2.
Salary Ranges with effect from 01 April, 2013.
Salary Ranges
(Ra/pm)
Grade Title
Min
Max
Jr Agent/Clerk
3
(Customer Service,
Reservations, Accounts,
25,000
62,500
Sales & Marketing)
Agent
4
(Customer Service,
Reservations, Accounts,
33,000
82,500
Sales & Marketing)
Officer
5
(Customer Service,
Reservations, Accounts,
40,000
100,000
Sales & Marketing)
Sr. Officer
5A
(Customer Service,
Reservations, Accounts,
45,000
112,500
Sales & Marketing)
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New Delhi, the 14th July, 2014
S.O.
2046.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 1129/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court No. 2, Chandigarh as shown in the Annexure
in the Industrial Dispute between the management of
M/s. BBMB, Dhulkote, and their workmen, received by
the Central Government on 14.07.2014.
[No. L-23012/26/1998-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT II,
CHANDIGARH
Present : SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 1129/2005
Registered on 22.9.2005
Sh. Jugal Kishore, Village Sultanpur, Post Office
Kakru, Tehsil and District Ambala.
...Petitioner
Versus
The Executive Engineer, O&M Division BBMB,
Dhulkote, District Ambala.
...Respondents
APPEARANCES:
For the workman
: Sh. R.K. Singh Parmar A.R.
For the Management : Mrs. Sumanjit Kaur Adv.
AWARD
Passed on- 9.6.2014
Central Government vide Notification No. L-23012/
26/98/IR(CM-II) Dated 17.2.1999, by exercising its powers
under Section 10 sub-section (1) Clause (d) and Sub-
section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal:-
“Whether the action of the Executive Engineer, O&M
Division Bhakra Beas Management Board, Dhulkote
in terminating the services of Sh. Jugal Kishore S/o
Sh. Chamela Ram w.e.f. 25.7.85 is just and legal? If
not, to what relief is the workman entitled?”
In response to the notice, the workman submitted
statement of claim pleading that he was employed by the
respondent management on 1.10.1984 as Beldar in District
Ambala where he worked till 31.12.1984. He was transferred
to Chandigarh where he worked up to 25.7.1985 when his
services were terminated illegally.
It is pleaded that he served a demand notice and the
conciliation proceedings failed. The Central Government
declined to make the reference to the Labour Court. It is
alleged that his Authorized Representative did not include
his service period from October 84 to December 84 during
which he served at Ambala and only mentioned the period
from 1.1.1985 to 25.7.1985. He filed Civil Writ Petition
No.8990 of 1994 which was also dismissed on the ground
that the workman did not furnish the list of workmen who
were junior to him. Workman came to know about the
names of the workman who were junior to him. He again
preferred Civil Writ Petition No.4003/1997 which was also
dismissed on the ground that he did not disclose the
names earlier. Following were the persons who were junior
to him –
¹Hkkx II—[k.M 3(ii)º
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5327
Sr.
Name of the workman
Date of
No.
employment
1.
Sh. Joginder Singh, S/o Sh. Ram
4/85
Kishan
2.
Sh. Chanda Singh S/o Sh. Jagir Singh
5/85
3.
Sh. Labh Singh, S/o Sh. Ajaib Singh
8/85
4.
Sh. Ram Lal S/o Sh. Jagir Singh
9/85
5.
Sh. Luxman Dass S/o Sh. Tau Ram
10/85
6.
Sh. Umesh Prasad S/o Maheshanand
10/85
7.
Sh. Om Prakash S/o Sh. Dewan Chand
7/87
He completed more than 240 days of service and
juniors were retained in service and therefore his
termination is illegal and he be reinstated in service.
Respondent management filed written reply
controverting the averments and pleaded that the workman
was employed as Team Mate workcharge vide offer of
appointment issued vide Memo No.3198/99 dated
22.3.1985 (Annexure I) against a specific work of Mohali-
Chandigarh Line. His period of service was to be extended
from time to time. He joined the service on 27.3.1985
(Annexure 2) and on completion of the work, his services
were terminated on 25.7.1985 after serving 10 days notice
dated 15.7.1985 (Annexure 3). That he worked only for
190 days against a specific work and as such his services
came to an end under Section 2(oo)(bb) of the Act.
During the pendency of the proceedings the
workman died and his LR was brought on record vide
order dated 12.5.2008.
Parties were given opportunity to lead its evidence.
Laxmi Devi, LR of the workman appeared in the
witness box and examined Kashmiri Lal.
Laxmi Devi has stated that workman was her son
and was employed by the respondent as daily wager, and
then as a workcharge.
Kashmiri Lal filed his affidavit deposing therein that
workman was employed as daily wager from 1.10.1984 and
worked with him.
On the other hand the management examined
Narender Sharma, Executive Engineer who filed his
affidavit reiterating the case of the management as set out
in the written statement.
I have heard Sh. R.K. Singh Parmar, AR of the
workman and Mrs. Sumanjeet Kaur, counsel for the
management.
It was contended by the AR of the workman that the
workman continuously worked with the respondent
management from 1.10.1984 to 25.7.1985 and his services
were terminated without complying with the provisions of
Section 25F as well as the persons junior to him whose
names find mention in para 13 of the claim statement were
retained in service and thus the termination of the workman
was illegal and he be reinstated in service. He further
argued that he moved an application for production of
documents but the management failed to produce and
relying on Punjab State Forest Development Nigam Limited
Vs. Presiding Officer, Labour Court, Amritsar and Another
reported in 2010(1) SCT 667 submitted that management
was required to maintain the relevant record and if the
same is not produced, adverse inference be taken. The
AR of the workman also relied on The General Manager,
Punjab Roadways, Tarn Taran Vs. Sardar Masih and
Another reported in 2007(2)SCT 763 to submit that the
services of the workman were terminated in violation of
the rule of ‘Last Come First Go’.
There is no dispute about the proposition of law as
laid down in the said authorities. But the question is
whether the workman was actually employed from
1.10.1984 to 26.3.1985 as the management admits that he
joined the service on 27.3.1985 as workcharge employee.
There is an affidavit of Kashmiri Lal who deposed that
workman was employed as daily wager w.e.f. 1.10.1984
and worked with him. But in the absence of any
documentary evidence that workman was actually
employed by the respondent management the bare
statement of Kashmiri Lal cannot be believed, and even
so it is not clear whether Kashmiri Lal actually worked
with the respondent management at the relevant time. Thus
there is absolutely no evidence that workman worked with
the management from 1.10.1984 onwards. When it is not
proved that workman worked with the management, his
service record was not to be maintained at all and if the
management did not produce any such record, no adverse
inference can be drawn against it.
The definite stand of the management is that the
workman was initially appointed for one month against a
specific work i.e. Mohali-Chandigarh Line where he joined
on 27.3.1985 and on completion of the work his services
were terminated on 25.7.1985 after serving a 10 days’ notice
as required under Clause 21(ii) of the Standing Order of
the management. These facts are clear from Annexure A1
whereby an offer was given to the workman to be appointed
initially for period of one month against the work of Mohali-
Chandigarh Line and he submitted his joining report on
27.3.1985 (Annexure A2) and on completion of the work,
he was served with a notice for termination of his services
as is clear from Annexure A3. Thus the workman was
appointed against a specific work i.e. workcharged
employee and on completion of the work, his services
were to be terminated and the case of the workman clearly
falls within the ambit of Section 2(oo)(bb) and the same do
5328
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
not amount to ‘retrenchment’ and it cannot be said that
the management has violated any provisions of the Act.
According to the workman the persons whose
names find mentioned in para 13 of the claim petition were
junior to him but the management has taken a definite
stand that the said persons were appointed on daily wages
and not on workcharged basis. As stated above the
workman was appointed against a specific work of Mohali-
Chandigarh Line and when the work was completed, it
cannot be said that any other worker was appointed there
as workcharged employee. If the management has
employed some persons as daily wagers at some other
work, it cannot be said that there was only violation of
Section 25G of the Act.
In result, it is held that the termination of the services
of the workman cannot be termed as illegal and the workman
is not entitled to any relief. The reference is accordingly
answered against the workman. Let hard and soft copy of
the award be sent to the Central Government for further
necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2047.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ts- ,y- ,u-
ch- lh- ,oa ,p- ,- ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; ua- 2] p.Mhx<+
ds iapkV ¼lanHkZ la[;k 89@2005½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 14-07-2014 dks izkIr gqvk FkkA
[la- ,y&42012@125@2004&vkbZvkj¼lh,e&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2047.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 89/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Chandigarh as shown in the Annexure, in the
Industrial Dispute between the management of Jawahar
Lal Nehru Bhartiya Chiktisa Avom Homoeopathy Central
Research Institute (Ayurveda), and their workmen,
received by the Central Government on 14.07.2014.
[No. L-42012/125/2004-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT II, CHANDIGARH.
Present : SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 89/2005
Registered on 20.4.2005
Sh. Anand Prakash, S/o Sh. Girdhan Lal, H.No.778, Gali
No.3, Bajwa Colony, Patiala.
...Petitioner
Versus
1. The Director, Jawahar Lal Nehru Bhartiya ChikitsaAvom
Homoeopathy Anusandhan, Bhawan No.61 to 65, Opp
(D) Block Institutional New Area, Janakpuri, New Delhi.
2. The Assistant Director, Central Research Institute
(Ayurveda), P.B. No.83, Moti Bagh Road, Patiala.
...Respondents
APPEARANCES :
For the workman
: Sh. Karam Singh A.R.
For the Management : Ex parte.
AWARD
Passed on 5.06.2014
Central Government vide Notification No. L-42012/
125/2004 IR(CM-II)) Dated 30.3.2005, by exercising its
powers under Section 10 sub-section (1) Clause (d) and
sub-section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal:-
“Whether the action of the management of Jawahar
Lal Nehru Bhartiya Chikitsa Avom Homoeopathy
Anusandhan, New Delhi in terminating the services of
Sh. Anand Prakash, Dresser w.e.f. 2.6.1987 is legal and
justified? If not, to what relief the workman is entitled?”
In response to the notice the workman appeared
and submitted statement of claim pleading that he was
appointed as Dresser by respondent No.1 vide order dated
19.7.1987 in the pay scale of Rs.210-270 plus usual
allowances and the workman joined his duties on the same
day. He continuously worked up to 1.6.1987 when his
services were terminated. It is pleaded that he was granted
earned leave during the period he remained in service and
work of Pharmacist was also taken from him. That he was
getting a pay scale of a dresser. That his services were
terminated without complying with the provisions of
Section 25F of the Act and even the post of Pharmacist
was filled after terminating his services and as such there
is violation of Section 25H of the Act also. That he be
reinstated in service with full back wages.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5329
Respondent management filed written reply pleading
that the workman was appointed as dresser on ad hoc
basis in place of Sh. Balwant Singh who in turn was
appointed to officiate as compounder against the leave
vacancy of Surinder Kumar compounder who was on leave
w.e.f. 4.6.1984 to 30.5.1987. When Surinder Kumar joined
his duty on 1.6.1987, Sh. Balwant Singh was reverted back
and the services of the workman were dispensed with.
That there is no violation of Section 25F and 25H of the
Act.
The management was proceeded against ex-parte
vide order dated 7.9.2011.
The workman appeared in the witness box and filed
his affidavit reiterating the case as set out in the claim
petition. He has also filed the documents Annexure W1 to
W6.
I have heard Sh. Karam Singh, AR of the workman.
It was argued by the AR of the workman that the
workman continuously worked with the management from
19.7.1984 to 1.6.1987 when his services were abruptly
terminated and in violation of the provisions of Section
25F of the Act as well as a person was appointed after
terminating his services without giving him an opportunity
and as such the termination of the workman is illegal and
he be reinstated with full back wages.
I have considered the contention of the learned
counsel.
The appointment letter dated 19.7.1984 is reproduced
as follows:-
“As Sh. Hari Kesh S/o Sh. Devki Nandan
did not report for duty to the office so far.
Therefore, Sh. Anand Prakash S/o Sh. Girdhar
Lal, is hereby appointed as Dresser w.e.f. 19.7.1984
against the post of Sh. Balwant Singh, Dresser
who has joined as Compounder against the Leave
Vacancy of Sh. Surinder Kumar Sharma,
Compounder till further orders in the pay scale of
Rs.210-270 plus usual allowances admissible
under rules.”
A bare perusal of the order shows that Surinder
Kumar was posted as Compounder and proceeded on leave
and against his place Sh. Balwant Singh joined and in
place of Balwant Singh the workman was appointed. Thus
it was a leave vacancy arrangement and on the joining of
the service of Sh. Surinder Kumar, Sh. Balwant Singh was
reverted to his original place as Dresser and consequently
the services of the workman came to an end on 1.6.1987.
Section 2(oo)(bb) of the Act defines ‘retrenchment’ and it
read as follows:-
(oo)
“retrenchment means the termination by the
employer of the service of the workman for
any reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action but does not include –
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching
the age of superannuation if the contract
of employment between the employer
and the workman concerned contains a
stipulation in that behalf; or
(bb) termination of the service of the
workman as a result of the non-renewal
of the contract of employment between
the employer and the workman
concerned on its expiry or of such
contract being terminated under a
stipulation in that behalf contained
therein; or
(c)
termination of the service of a workman
on the ground of continued ill-health.
Thus the termination of service under a stipulation
in that behalf do not amount to retrenchment. In the
present case the workman himself admits that he was
appointed in a leave arrangement and on the joining of
Sh. Surinder Kumar, his services were terminated. Thus
when his services were terminated under a stipulation of
the appointment letter, he cannot claim the benefit of any
provision of the Act.
It may also be added that the workman was not
appointed by following any rules and regulations of the
department and the Hon’ble Apex Court in Secretary State
of Karnataka Vs. Uma Devi reported in A.I.R. 2006 S.C.
1806, observed that employees who were not appointed
by observing regular procedure and rules are not entitled
to regularization of their services.
Thus the workman who was appointed in a leave
vacancy arrangement cannot claim that he was appointed
on regular basis and he is not entitled to the protection of
the provisions of the Act and it cannot be said that
termination of his services are illegal and he is not entitled
to any relief. The reference is accordingly answered
against the workman. Let hard and soft copy of the award
be sent to the Central Government for further necessary
action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 14 tqykbZ] 2014
dk-vk- 2048.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh-ih-MCY;w-
Mh- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
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vf/kdj.k@Je U;k;ky; ua- 2] ubZ fnYyh+ ds iapkV ¼lanHkZ
5330
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
la[;k 139@2004½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 14-07-2014 dks izkIr gqvk FkkA
[la- ,y&42012@287@2003&vkbZvkj¼lh,e&II½]
ch- ,e- iVuk;d] MsLd vf/kdkjh
New Delhi, the 14th July, 2014
S.O. 2048.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 139/
2004) of the Central Government Industrial Tribunal/Labour
Court No. 2, New Delhi as shown in the Annexure in the
Industrial Dispute between the management of Central
Public Works Department, and their workmen, received
by the Central Government on 14.07.2014.
[No. L-42012/287/2003-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
KARKARDOOMA, DELHI
Present : SHRI HARBANSH KUMAR SAXENA,
Presenting Officer
ID No. 139/2004
Sh. Ashutosh Kumar
Versus
CPWD
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-42012/287/2003-IR(CM-II) dated
17.08.2004 referred the following Industrial Dispute to this
tribunal for adjudication :-
“Whether the contact between the management of
CPWD and their contractor is sham and the demand
of CPWD Karamchari Union for absorption /
regularization of S/Shri Ashutosh Kumar, Satya
Prakash and Tejpal Singh (contract labour) with the
management of CPWD is legal and justified? If yes,
to what relief they are entitled?”
On 03.09.2004 reference was received in this tribunal.
Which was register as I.D No. 139/2004 and claimants were
called upon to filed claim statement with in fifteen days
from date of service of notice. Which was required to be
accompanied with relevant documents and list of
witnesses.
After service of notice workmen/claimants filed claim
statement on 20.10.2005. Wherein they stated as follows:-
1. That the workman No. was initially inducted on
year 1997 and the workmen No.2 was induced on year
1993 as General Operator through the Private Contractor.
Management No. 2 for discharging the job of operating
for the principal Employer, Management No. 1 it is stated
that ever since their appointment they have been
discharging their job diligently and sincerely for the
management of CPWD having been posted at Electrical
Division No. 1, Nirman Bhawan, New Delhi -110001 under
the Executive Engineer, Electrical i.e. Management No. 2.
2. That the nature of job discharged by both the
workmen are perennial and permanent in nature and the
job satisfy all the ingredients contained in Section 10 of
Contract Labour (Regulation and Abolition) Act, 1970
worksuting abolition of contract labour in the said job. It
is stated that the contract awarded by CPWD. In favour of
contractor for carrying out perennial nature of job is bad
in law and the contract itself is vague which ought to be
lifted in industrial adjudication.
3. That the workmen are placed under the direct
control and supervision of Principal Employer and the
contractor has no role to play in day to day affairs of
working of the workman. It is stated that the nature of job
performed by the workmen are similar to be workmen
posted on regular basis and they work as if under the
Principal employer.
4. That each of the workmen, has completed 240
days in each year of working, regarding the establishment
of Principal Employer to regularize them in the principal
employer.
5. That the workmen through the union send a
demand notice to the management requesting therein for
their regularize/absorption in the establishment of the
CPWD since their respective date of appointment through
contractor with consequential benefits but the
management has neither replied nor complied with the said
notice.
6. That the workmen through their union also filed a
claim before the Asstt. Labour Commissioner (Central )
Curzon Road, New Delhi for intiating the conciliation
proceedings regularize/ absorption in the establishment.
The management was called in the conciliation
proceedings and the management duly participated in the
same but failed to settle the dispute and did not regularize
the workmen in the establishment despite efforts made by
the conciliation officer.
7. That after being satisfied that conciliation officer
referred the dispute to that Hon’ble Tribunal for proper
adjudication of the dispute.
PRAYER
It is, therefore, most respectfully prayed that this
Hon’ble Tribunal may be pleased to :-
(a)
Pass an award in favour of the workman and
against the management directing the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5331
management to permanently absorb/
regularized the workmen in the establishment
of CPWD. Since their respective date of initial
appointment through contractor with
consequential benefits in the matter of pay/
emoluments and other benefits.
(b)
Any other relief which this Hon’ble Tribunal
may deems fit and proper in the fact and
circumstances of the present case.
Against aforesaid claim Respondent No.1 CPWD
filed no written statement case proceeded ex-parte against
management consequent ex-parte Award on 29.12.2005 has
been passed in favour of workmen and against
management. Through which my Ld. Predecessor decided
question of determination No. 1 in favour of workmen
namely Sh. Ashutosh Kumar, Satya Prakash and Tejpal
(Contract Labour) and against management.
My Ld. Predecessor replied the reference as
follows:-
The contract between the management of CPWD
and their contractor is sham and the demand of CPWD
Karamchari Union for absorption /regularization of S/Shri
Ashutosh Kumar, Satya Prakash and Sh. Tejpal (Contract
Labour) with the management of CPWD is legal and
justified. The management is directed to absorb the
workmen within two months from the date of publication
of the award.
Award is given accordingly.
Ex-parte award dated 29.12.2005 passed in favour of
workmen. Which was challenged in Hon’ble High Court
of Delhi by management.
On 12.12.2007 Hon’ble High Court set- aside the ex-
parte award dated 29.12.2005 and remanded the case to
this tribunal for decision afresh. Parties were directed to
appear before tribunal. On 15.1.2008 case was taken up in
this tribunal after remand. Parties were directed to appear
before tribunal on 17.01.2008.
On 08.10.2008 evidence of workmen was recorded in
this tribunal. Thereafter A/R for the workmen closed
evidence of workmen.
On the request of parties my Ld. Predecessor also
passed following order on 08.10.2008 “as per request of
the parties evidence recorded in ID. No. 139/2004 be also
read in the other LCA No. 55/2007”.
On 11.02.2009 affidavit of management witness
Sh. Himanshu Gupta has been filed copy of which supplied
to Ld. A/R for the workman and 08.04.2009 was fixed for
cross-examination of MW1 Sh. Himanshu Gupta but his
examination-in-chief and his cross-examination could be
recorded on 9.11.2010. Thereafter management closed its
evidence and then this tribunal fixed 07.02.2011 for
argument.
On 27.05.2013 this case taken before my Ld.
Predecessor Dr. R.K. Yadav. Ms. Meenakshi Aggarwal,
Ld. A/R for the management submitted that inadvertently.
Management has not adduced any evidence in the case.
The court has recorded evidence of the management in
LCA No. 55/2007. She explains that said evidence cannot
read in the present dispute. She wants time to examine to
witness on behalf of management this request was not
opposed by Shri B.K. Prasad. Case was adjourned to
08.07.2013 for management evidence.
On 13.11.2013 an application has been moved on
behalf of management. Which was not opposed by
Ld. A/R for the workmen. Hence allowed in the interest of
justice. Photocopy of statement of Sh. Himanshu Gupta is
introduced on record and fixed 16.12.2013 for argument.
On 03.03.2014 written arguments on behalf of
workmen filed copy of which supplied to Ld. A/R for the
management. Several opportunities given to Ld. A/R for
management but no written arguments in reply has been
filed by Ld. A/R for the management which compel this
tribunal to pass order on 30.05.2014 for fixing 23.06.2014
for award. However Ld. A/R for the management has been
afforded opportunity to file reply of written arguments of
workmen and supply copy of aforesaid arguments to Ld.
A/R for the workmen. Even then Ld. A/R for the
management has not filed reply of written arguments of
the workmen upto 11 am of 23.06.2014 nor orally argued
although Ld. A/R for management appeared in other case.
Written arguments filed by workmen are as
follows:-
1. That the Ministry of Labour, Sharm Shakti Bhavan,
New Delhi vide its order No. L-42012/287/2003-IR(CM-II)
dated 17.08.2004 have referred the dispute between the
above parties for adjudication as per following terms and
conditions:
SCHEDULE
“Whether the contract between the Management of
CPWD and their contractor is sham and the demand
of CPWD Karamchari Union for absorption /
regularization of Shri Ashutosh Kumar, Satya Prakash
and Tejpal (Contract Labour) with the management
of CPWD is legal and justified? If yes, to what relief
they are entitled?
2. That the Union has filed claim statement on behalf
of the workmen and according to their Statement of Claim
S/Shri Ashutosh Kumar was initially engaged in the year
1997 and Sh. Satya Prakash was engaged in the year 1998
as Generator Operator through the private contractor and
both the workmen were operating the job of Generator
Operator directly under the control of Principle employer
of the management of CPWD and posted at Electrical
Division-I, Nirman Bhawan, New Delhi under the Executive
Engineer, Electrical, CPWD, New Delhi. That Sh. Tejpal
5332
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
workman connected with the dispute left the job and not
performing the duty with the management of CPWD.
3.
That both the workmen were performing their
duty on the work which is perennial and permanent in
nature and the job satisfy all the ingredients contained in
Section 10 of the Contract Labour (Regulation and
Abolition ) Act, 1970 and the said job was abolished by
the appropriate Govt. i.e. Ministry of Labour issued the
notification dated 31st July, 2002 and the said notification
is Exhibit WW1/1 and Exhibit MW1/W1.
4.
That the Management witnesses have also
admitted that he has no knowledge if any registration was
required to be obtained before allowing outsourcing of
workers through contractor. The cross-examination of the
management MW1 is reproduced as under:
“I am in ECDI, CPWD Division since July , 2008.
It is correct that I have no personal knowledge
regarding anything happening in this Division
prior to my posting there. I do not dispute the
copy of the notification published in the Gazette
of India on 31.07.2002. The same is Ex. MW1/W1.
It is correct that the workmen were operating the
generators. Whatever job is done by the
workman, the same has to be entered in a book
called Log Book. It is correct that the JE checks
the installation and thereafter the signs of log
book. The workmen were not on the muster roll.
However, as a general rule/policy, the mustor roll
employees are paid all the dues like a regular
employee except the increments. I do not dispute
the correctness of the Annexures C and D filed in
this court. The same are Ex. MW1/W2 and Ex.
MW1/3. I have no knowledge if any registration
was required to be obtained before allowing out-
sourcing of workers through a contractor as this
is an administrative matter and I am a technical
man. I do not know if any such registration was
seen at the time of engaging the contractor. The
job of the contractor is known to the contractor
only. He does not furnish any copy of the slip of
wages paid to the workers. It is correct that a JE
supervises the making of the payment by the
contractor. It is wrong to suggest that the JE does
nothing. The contractor should have paid the
minimum wages. We have not received any
complaint from the workers that they have not
been paid minimum wages. It is wrong to suggest
that I have deposed falsely or we are exploiting
the poor workers since long time.
5. That in a cross-examination of Management
witness MW1 Sh. Himanshu Gupta, it is proved that the
work has been abolished including Generator Operator
w.e.f 31.07.2002 by the notification of Ministry of Labour,
Govt. of India who is competent to issue the notification
for Abolition of Contract Labour so the workman deemed
to be direct employee of management of CPWD.
6. That management witness MW1 i.e. Sh. Himanshu
Gupta also admitted in his cross-examination that “ it is
correct that the JE checks the installation and thereafter
signs the Log Book.” Which is also proved that the
workmen have been performing their duties directly under
the control and supervision of the junior engineers of
management. i.e. CPWD. It is also proved that the so called
contractor is only sake and providing the duty of Cashier
so the Contract is Sham and comafledge and the workmen
have to be treated as direct employee of the management
on this account also.
7. It is also proved that Junior Engineer of the
Principal Employer/officer of CPWD maintaining the Log
Book which is exhibit WW2/C (Collectively) and also
identity card, entry passes have been issued by the CPWD
from time to time and duly signed by AE (Assistant
Engineer). Those documents were exhibit WW2/A
(Collectively) and Exhibit WW2B collectively which proves
that the so called contractor is nothing but the tool of the
management.
8.That the Management witness also admitted that
the daily rated workers getting the wages of minimum of
time scale with all allowances except increment. Copy of
the said Memorandum issued by the Director General
(Works), CPWD are exhibit MW1/ W-2 and exhibit MW1/
W-3. So it is proved that the workmen have been performing
their duties of a skilled nature of job but the management
even denied the payment of Minimum of Time Scale with
all allowances except increment but the regular workers in
the same category have been getting regular pay scale
even increments which proves that these workmen are
direct employees of the management of CPWD on the
account of the Contract is sham and comon fledge and
also on the account of Abolition of Employment of Contract
Labour in the category of Generator Operator also the
workman automatically deemed to be the employee of
CPWD after the judgment of Steel Authority of India and
Ors. Vs. Nation Union Water Front Workers and Ors. (2001)
7 SCC.
9. That the judgment of Constitutional Bench of
the Hon’ble Supreme Court of India, in the matter of Steel
Authority of India and Ors. National Union Waterfront
Workers and Ors. (2001) 7 SCC. The relevant paras of the
judgment i.e. 125(5) and (6) settled the dispute between
the principal employer and the contract labour who was
employed in a camoufledge manner and treated the direct
employee of the principal employer, and the same is
reproduced as under:
“ 125(5) On issuance of prohibition notification
under Section 10(1) of the CLRS Act prohibiting
employment of contract labour or otherwise, in an
industrial dispute brought before it by any contract
¹Hkkx II—[k.M 3(ii)º
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5333
labour in regard to conditions of service, the
industrial adjudicator will have to consider the
question whether the contract has been interposed
either on the ground of having undertaken to
produce any given result for the establishment for
supply of contract labour for work of the
establishment under a genuine contract or is a mere
ruse/camouflage to evade compliance with various
beneficial legislations so as to deprive the workers
of the benefit there under. If the contract is found to
be not genuine but a mere camouflage, the so called
contract labour will have to be treated as employees
of the principal employer who shall be directed to
regularize the service of the contract labour in the
establishment concerned subject to the conditions
as may be specified by it for that purposes in the
light of para 6 hereunder.
“6. If the contract is found to be genuine and
prohibition notification under section 10(1) of the
CLRA Act in respect of the establishment concerned
has been issued by the appropriate Government
prohibiting employment of contract labour in any
process, operation or other work of any
establishment and where in such process, operation
or other work of the establishment the principal
employer intends to employ regular workmen, he
shall preference to the erstwhile contract labour, if
otherwise found suitable and if necessary by relaxing
the condition as to maximum age appropriately,
taking into consideration the age of the workers at
the time of their initial employment by the contractor
and also relaxing the condition as to academic
qualifications other than technical qualification”
10. That the workmen also produce the following
judgments in support of their claim:
(1) That in SAIL (2001) 7 SCC also affirm the
judgment of Hon’ble Supreme Court in Hussainbhai Vs.
Alath Factory Thezhilali Union (1987) II-LLJ 397 and Indian
Petrochemicals Corporation Ltd. And another, Appellants
Vs. Shramik Sena and others and observed in para 71 as
under:
“71. By definition the term “contract labour” is a
species of workmen. A workman shall be so deemed
when he is hired in or in connection with the work of
an establishment by or through a contractor, with or
without the knowledge of the principlal employer. A
workman may be hired (1) in an establishment by
the principal employer or by his agent with or
without the knowledge of the principal employer; or
(2) in connection with the work of an establishment
by the principle employer through a contractor or
by a contractor with or without the knowledge of
the principal employer. Where a workman is hired in
or in connection with the work of an establishment
by the principal employer through a contractor, he
merely acts as an agent so there will be master and
servant relationship between the principal employer
had the workman. But where a workman is hired in
or in connection with the work of an establishment
by a contractor, either because he has undertaken
to produce a given result for the establishment or
because he supplies workmen for any work of the
establishment, a question might arise whether the
contractor is a mere camouflage as in Hussainbhai
case and in Indian Petrochemicals Corporation case
etc. if the answer is in the affirmative the workman
will be in fact an employee of the principal employer,
but if the answer is in the negative, the workman will
be a contract labour.
11.That it is a matter of record that the contractors
in this case is only supplying the labour for performing
the work of principal employer i.e. CPWD within their
premises and as per the judgment of the Hussainbhai
Calicut Vs. Alath Factory Thozhilai Union (1978) II-LLJ
397, he workmen have to be treated as the direct employees
of the SAIL Relevant portion of the judgment is as under:-
“5. The true test may, with brevity be indicated once
again. Where a worker or group of workers labours
to produce goods or services and there goods or
services are for the business of another, that other
is in fact the employer. He has economic control
over the workers, subsistence, skill and contained
employment. If he for any reason chokes off the
workers is, virtually laid off. The presence of
intermediate contractors with whom alone the
workers have immediate or direct relationship ex-
contract is of no consequence of factors governing
employment, we discern the maked truth through
draped in different perfect paper arrangement that
the real employment is the management not the
immediate contractor. My raid devices half hidden
in fold after fold of legal form depending on the
degree of concealment needed the type of industry,
the local conditions and the like maybe resorted to
when labour legislation casts welfare obligations
on the real and employer, based on Arts 38,39,42,43
and 43 A of the Constitution. The Court must be
astute to avoid the mischief and achieve the purpose
of the law and not be mislead by the maya of legal
appearances.
6. If the livelihood of the workmen substantially
depends on labour rendered to produce goods and
services for the benefit and satisfaction of an
enterprise, the absence of direct relationship or the
presence of dubious intermediaries or the make
believe trapping of detachment from the management
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[PART II—SEC. 3(ii)]
cannot map the real life bond. The story may vary
but the inference defies in gratuity. The liability
cannot be shaken off.
7. Of course, if there is total disassociation in fact
between the disowning management and the
aggrieved workmen the employment is, in substance
and in real-life terms by another. The management’s
adventitious connections cannot ripen into real
employment.”
12. That the management witness MW1 has himself
admitted in cross-examination that both workmen have
been performing their job owned by the CPWD in their
premises and log book supervised by the Junior Engineer
who checks the log book and installation of Generator
where the workman performing his duty as Generator
operator . The Hon’ble Supreme court in the matter titled
M/s. Bharat Heavy Electrical Ltd. Appellant Vs. State of
U.P. and another’s ….. Respondents reported in 2003 LAB
I.C. 2630 has held that the test of control –Gardeners
engaged through contractor –Looking after lawns and
parks inside factory premises, campus and residential
colony of company. Their work supervised by employer
of company-Attendance recorded by another employee
of company –concurrent finding by Labour Court and High
Court that gardeners were under direct control and
supervision of company and were employees of company –
Not liable to be interfered with-fact that work of gardener
is not integral part of industry of company – Does not
make them any the less employees of company when they
were employed with company to work in its premises –
Non filing of attendance register by company also supports
the concurrent finding recorded by Labour Court and High
Court- Termination of Services of gardeners in violation
of S. 6N – Company liable to pay compensation and re-
employ them. Hussainbhai V. Alath factory , 1978 Lab IC
1264 : AIR 1978 SC 1410. Neither dissented nor diluted in
Steel Authority of India Vs. National Union Water Front,
2001 Lab IC 3653 AIR SCW 3574 AIR 2001 SC 3527.
In view of the above judgment the workman
connected with the dispute has been performing their duty
under the supervision, control and within the premises of
the Management so the contract is a sham, comafledge
and unjust to deny the establishment of CPWD. It is also
submitted that the contract system was abolished by the
Ministry of Labour during they have been performing their
duties as Generator Operator and entitled to be treated
direct employee of CPWD.
13.The Hon’bel Supreme Court in case of Indian
Petrochemicals Corporation Ltd. Vs. Shramik Sena and
others 1999 Lab. I.C. 3078 have decided that when the
contract labour is treated direct employees of the
management for all purposes and the regularization was
granted by the court not as a matter of right of the workmen
arising under any status but with a view to eradicate unfair
labour practice and inequity to undo any social justice
and a measure of labour welfare. Operative portion of the
said judgment is reproduce as under:
“ 29. In this appeal, the workmen have questioned
the conditions that have been imposed by the High
Court while directing regularization of the workmen.
They contend that once the Court comes to the
conclusion that the workmen are in fact the
employees of the management , there is no occasion
to impose their condition. We are unable to agree
with this argument. It should be borne in mind that
the initial appointments of their workmen are not in
accordance with rules covering the appointments
or the established policy of recruitment of the
management. The said recruitment could also be in
contravention of the various statutory orders
including the reservation policy. Further the
respondent is an instrumentality of the State and
has an obligation to conform to the requirements of
Article 14 and 16 of the Constitution. In spite of the
same the services of the workmen are being
regularized by the Court not as a matter of right of
the workmen arising under any status but with a
view of to eradicate unfair labour practices and in
equity to undo social injustice and as a measuere of
labour welfare. Therefore, it is necessary that in the
process suitable guidelines or conditions be laid
down at the time of courts issuing directions to
concerned depending upon the facts of each case.
The court has consistently followed this practice in
the earlier cases of regularization and we so not
find any reason to differ from the same. For the
aforesaid reasons, this appeal also fails and the same
is dismissed but with costs.
14. That is proved by the evidence that one of the
major conditions for employment of contract labour i.e
registration by the principal employer i.e. CPWD is lacking
and even the contractors are not having license for
supplying the contract labour, so the contract system
was not the genuine contract and the workmen connected
with the dispute have to be treated as direct employees of
the CPWD as per the directions of the Constitution Bench
of the Hon’ble Supreme Court decided in Steel Authority
of India, ltd. (SAIL) case. In another case, the Hon’bel
Surpeme court between the Secretary, Haryana State
Electricity Board and Suresh and Others (1999-1-LLJ-1086)
also held that if the so called contractor was mere name
lender, who procured labour for appellant Board as broker,
Board was not principal employers called contract was
mere camouflage which concealed real relationship for the
employer employees.
15. That the workmen also Placed the notification
31.07.2002 issued by the Ministry of Labour , Govt of India,
New Delhi which prohibited the employment of contract
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5335
labour in the process/operation or work specified in the
schedule and according to the said Notification, the
employment of Generator Operator is also prohibited in
the establishment of CPWD. The Notification is published
in the Gazette of India Extraordinary Part-II, Section 3, Sub-
section (ii) dated 31st July 2002. On the basis of evidence
adduced by both the parties, documents placed on record
and different judgment of the Hon’ble Supreme Court.
16. That the Management has admitted Annexure C
and D and the same is Exhibit MW1/2 and Exhibit MW1/3
as per the said documents, even the daily rated workers
have been getting their wages in the time scale with all
allowances including HRA, CCA , DA, Interim Relief etc.
except increment but these workman connected with the
dispute denied the said payment and only paid minimum
wages which Act of the Management is also unjustified
ad evading the payment of equal pay paying to their casual
labour/daily wages workers directly appointed by them.
The Hon’ble Supreme Court titled “Rhone –Poulenc (India)
Ltd. Appellant Vs. State of U.P. and others …. Respondents
reported in 2000 LAB I.C. 3325 has held in para 5 and 7.
“5 The letter of the Labour Department and the
certificate issued by the Assistant Department
Manager of the appellant at Bankura are in conformity
with rule 25(2) (v) (a) of the Central Rules framed
under Contract Labour (Regulation and Abolition )
Act, 1970. These two materials clearly indicate that
the respondents were doing the job, which is on par
with the work of class IV employees. Further the
wages to be payable to them on daily rate would be
1/26th of the monthly wages of the class IV
employees. These materials were available before
the High Court at the time of disposal of FMAT No.
3614 of 1992 and at the time when in interim order
was granted in yet another proceeding wherein this
principle was adopted. Therefore, the grievance
sought to be made out by the learned counsel for
the appellant that there has been no inquiry as to
parity with regard to class IV employees and the
wages payable to the casual workers is palpably
incorrect and is not borne out by record at all.
7. Further, the High Court had given a finding that
since some casual workers appointed directly by
the appellant and some employed by the contractors
are working in the same godown and on the same
work, there could not be any scope for making any
difference and to deny equal pay for equal work.
Proceeding further it was stated that on the principles
set out earlier with reference to the letter of the Labour
Department , the wages will have to be paid regularly
to the respondent at the same rate at which it was
paid to the regular employees of the appellant doing
identical work which has to the worked out on daily
rate basis, from March 1989. The was the order that
was affirmed by this Court and was not interfered
with. It is difficult for us to comprehend on what
basis the appellant can make any complaint now
except to engage themselves in nit picking and being
over ingenious in making submissions before the
court. The position is, therefore , clear to the effect
that this appeal is misconceived and deserves to be
dismissed with costs, quantified at Rs. 10,000.
17. That as per Section 21 of Contract Labour
(Regulation and Abolition ) Act 1970 the wages includes
the balance of wages or arrears thereof-Principle employer
is statutorily responsible to ensure payment of the wages
as per the law. Titled Senior Regional Manager, Food
Corporation of India, Calcutta and Tulsi Das Bauri and
Ors . reported 1997 –II –LLJ- 747 has held in para 5 and 6.
The operative para 5 and 6 is reproduce as under:
“5.Section 21 postulates the responsibility for
payment of wages. Under sub-section (1) a
contractor shall be responsible for payment of wages
to each worker employed by him as contract labour
and such wages shall be paid before the expiry of
such period as may be prescribed. Under sub-section
(4) , in case the contractor fails to make payment of
wages within the prescribed period or make short
payment , then the principal employer shall be liable
to make payment of wages in full or the unpaid
balance due, as the case may be, to the contract
labour employed by the contractor and recover the
amount so paid from the contractor either by
deducting from any amount payable to the
contractor under any contract or as a debt payable
by the contractor. That liability has been prescribed
under sub-section (2) thereof which says that every
principal employer shall nominate a representative
duly authorized by him to be present at the time of
disbursement of wages by the contractor and it shall
be the duty of such representative to certify the
amounts paid as wages in such manner as may be
prescribed.
6. Thus, it could be seen that the principal
employer is statutorily responsible to ensure
payment of wages as per the law. In case the
contractor commits default in the payment of the
wages, the principal employer is made responsible
for due payment and in case such payment is made
he is entitled to have it recovered by deducting from
any amount payable to the contractor under the
contract or as a debt payable by the contractor.
18. That it is proved that the contract is sham and
comafledge and also the work of Generator Operator has
been abolished by the notification of Ministry of Labour ,
Govt. of India dated 31.07.2002 so Sh/ Shri Ashutosh and
Sh. Satyapal Prakash are entitled to be absorbed/
regularization in the establishment of the CPWD is legal
and justified.
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[PART II—SEC. 3(ii)]
In view of the above, this Hon’ble CGIT –cum-Labour
Court No. II may kindly passed the Award while treating
the workman connected with the dispute of the
management of CPWD and allow all the benefits including
equal pay for equal work to these workmen from the date
of their initial employment.
In the light of contentions made by Ld.A/R for the
workmen orally as well as in written. I perused the pleadings
and evidence on record and principles laid down in the
cited rulings on behalf of workmen.
Moreover Ld. A/R for the management couldn’t dare
to reply either orally or in written the contentions of the
Ld. A/R for the workman.
In these background I am of considered view that
reference made to this tribunal is liable to be decided in
favour of workmen and against management because the
contract between the management of CPWD and their
contractor is sham and the demand of CPWD Karamchari
Union for absorption/ regularization of S/Shri Ashutosh
Kumar, Satya Prakash and Sh. Tejpal (Contract Labour )
with the management of CPWD is legal and justified. The
management is directed to absorb the workmen within two
months from the date of publication of the award.
The award is accordingly passed.
Dated:-23/06/2014
HARBANSH KUMAR SAXENA, Presiding Officer
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New Delhi, the 14th July, 2014
S.O. 2049.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 60/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, New Delhi as shown in the Annexure in the
Industrial Dispute between the management of Central
Public Works Department, and their workmen, received
by the Central Government on 14.07.2014.
[No. L-42012/177/2004-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT - II,
KARKARDOOMA, DELHI
Present : SHRI HARBANSH KUMAR SAXENA,
Presenting Officer
ID No. 60/2005
Sh. Jagdish Kumar
Versus
CPWD
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-42012/177/2004-IR (CM-II)dated
29.6.2005 referred the following industrial Dispute to this
tribunal for the adjudication:-
“Whether the demand of the All India CPWD
Employees Union, Lodhi Colony, Enquiry Office,
CPWD, New Delhi -110003 for regularization of the
services of Sh. Jagdish Kumar, S/o Sh. Hari Lal,
Painter in the establishment of CPWD is legal and
justified? If yes, to what benefits the workman is
entitled for?”
On 8/8/2005 reference was received in this tribunal.
Which was register as I.D No. 60/05 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. Wherein he stated as follows:-
1. That Sh. Jagdish Kumar (Applicant) has been
working as Painter, on causal basis (on work-order) since
2.1.1989, at CGO Complex, and presently working under
the Executive Engineer, ‘U’ Division, CPWD , New Delhi.
2. That the Applicant is covered under the definition
of ‘workman’ as defined under section 2s of the ‘Industrial
Disputes Act, 1947’ (hereafter Stated as ‘The Act’).
3. That the Executive Engineer, ‘U’ Division, CPWD,
New Delhi is ‘Employer’ as per the definition under section
2g of ‘The Act’.
4. That the CPWD is an ‘Industry’ as defined section
2j of ‘The Act’.
5. That the Applicant has been employed on the
work of maintenance of the buildings at CGO Complex,
which is a work of permanent nature.
6. That the Applicant has not been regularized so
far, though he has been working on the job of permanent
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5337
nature for the last more than thirteen years, though the
workers junior to the ‘Applicant’ have already been
regularized.
7. That the act of the ‘Employer’ of keeping the
worker un-regularized and thereby keeping him deprive
from the status and privileges of permanent workman, is
exploitative, and is an act of ‘Unfair Labour Practice’ as
mentioned in the fifth schedule of ‘The Act’
8. The act of committing the ‘Unfair Labour Practice’
is prohibited, under section 25T of the Industrial Dispute
Act, 1947 and is punishable as per the provisions of the
section 25 u of the Industrial Dispute Act 1947.
9. That the Hon’ble Supreme Court of India, in its
order dated 23.4.87 , in the writ-petition No. 15920/84 , filed
by the All India CPWD Employees’ Union, against the
CPWD , expressed hope that all the workmen who have
performed duty for more than six months’ will be
regularized.
10. That the Hon’ble Supreme Court of India in a
decision in writ petitioner No. 1324 of 1990, directed the
CPWD authorities to regularize 91 casual workers
(petitioners). As such a few worker junior to the ‘Applicant’
have been regularized, thereby inflicting injustice upon
the ‘Applicant’.
11. That the efforts being made by the ‘Employer’ to
show the ‘Applicant’ as a Contractor is an ill conceived
and malafide attempt to conceal the real position, between
the ‘Applicant’ and the Employer’.
12. That the practice of not regularizing the workman
has not left any other alternative, left with the workman
and the Union , but to raise dispute before this forum.
13. That the rigid stand taken by the ‘Employer’ in
the conciliation proceedings before the ‘Regional Labour
Commissioner (Central) resulted in failure.
14. That the leave is sought to file the necessary
documents as evidence, at the appropriate time, as and
when directed by you.
15. That the ‘Applicant’ craves for the leave to add,
delete, amend or modify this application with the prior
permission from your good-self.
It is most humbly prayed that suitable direction may
be issued to the ‘Employer’, to regularize the Applicant’
from the date he joined the department , along with all the
consequential benefits.
That suitable action should be taken against the
Employer, for committing ‘Unfair Labour Practice’, besides
any other action deemed fit by this Hon’ble forum.
That any other action deemed fit by your good-self,
be taken against the ‘Employer’.
Against claim statement management filed
following written statement:-
1. That the contents of the corresponding para are
wrong, misleading and misconceived and hence
vehemently denied. It is vehemently denied that the
applicant/workman has been working as Painter on Casual
basis. It is submitted that he applicant has entered into
agreement from time to time for supply of Painter as per
the terms and conditions contained in the contract.
Therefore, the claim of the applicant is false and frivolous
and hence vehemently denied.
2. That the contents of the corresponding para are
wrong, misleading and misconceived and hence
vehemently denied. It is specifically denied that the
applicant is workman as per the Industrial Disputes Act,
1947. It is respectfully submitted that there is no employer-
employee relationship between the applicant and the
respondent. In view of the submissions made in para 1
hereinabove, the contents of the corresponding para of
the ID need no further reply.
3. That the contents of the corresponding para are
wrong, misleading and misconceived and hence
vehemently denied. It is denied that the replying
respondent is employer as per Section 2(j) of the Industrial
Dispute Act, 1947.
4. That the contents of the corresponding para are
wrong, misleading and misconceived and hence
vehemently denied. It is denied that the CPWD is an
industry as per section 2(j) of Industrial Dispute Act, 1947.
5. That the contents of the corresponding para are
wrong, misleading and misconceived and hence
vehemently denied. It is vehemently denied that the
applicant/workman has been employed on the work of
maintenance of buildings at CGO Complex, which is a
workman of permanent nature. It is respectfully submitted
that the applicant has entered into an agreement from time
to time for supply of painter as per the terms and conditions
of the contract/work order. Therefore, the allegations of
the applicant that he has been employed against the work
of maintenance are vehemently denied. It is categorically
denied that the work, as alleged, is of permanent nature.
6. That the contents of the corresponding para are
wrong, misleading, frivolous, baseless, without any
material fact and hence vehemently denied. It is specifically
denied that the applicant has been working on this job of
permanent nature for the last 13 years or workers junior to
him have already been regularized. It is reiterated that the
applicant has entered into agreement with the replying
respondent from time to time for supply of painter as per
terms and conditions of the contract/work order. The
applicant is only a contractor for supply of painter as per
the contract/work order and the applicant is not an
employee of the replying respondent. Therefore, there is
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THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
no question of regularizing the services of the applicant.
Without prejudice to the rights and contentions of the
replying respondent, it is submitted that the averments of
the applicant that workers junior to the him have already
been regularized are wrong, misleading and without any
basis. The applicant has neither disclosed the names of
such persons nor provided any detail with regard to such
regularization of any junior worker, as alleged. The replying
respondents seek leave of this Hon’ble Tribunal to reply
to such details, if any, as and when provided/disclosed
by the applicant.
7. That the contents of the corresponding para are
wrong, misleading and misconceived and hence
vehemently denied. It is respectfully submitted that the
replying respondent neither have authority nor power to
regularize the contractors nor is there any provision in the
departmental rules for regularization of persons like the
applicant, who is a contractor. Therefore, the question of
deprivation from the status and privileges of permanent
workman does not arise. Hence, there is no question of
exploitation and unfair trade practice as has been falsely
alleged by the applicant.
9 & 10. That in reply to the averments made in the
corresponding paras, it is submitted that the judgment ,
referred and relied by the applicant in the corresponding
para of the petition, are not relevant in the facts and
circumstances of the present matter. It is submitted that
these judgements pertain to the case of work order on
daily wages and in those cases the workmen were engaged
on daily wages whereas in the instant case the applicant
was given contract on certain terms and conditions , as
contained therein the contract. The judgments, under
reference, are out of context and not applicable in the
facts and circumstances of the present case. It is pertinent
to submit that the decision of the Hon’ble High Court of
Delhi dated 26.5.2000, which referred to the matter to Central
Advisory Contract Labour Board (CACLB) was based on
the judgment of Hon’ble Supreme Court of India in the
AIR India’s case which has been prospectively overruled
by the Hon’ble Supreme Court of India on 30.8.2001 in the
case titled “Steel Authority of India Ltd. National Union
Water Front Workers”, reported in 2001 AIR © 3527. The
relevant extract of the judgment at sub-paras (3) to (6) of
para 121 of the judgment read as under:-
“Neither Section 10 of the CRLA Act nor any other
provision in the Act, whether expressly or by necessary
implication, provides for automatic absorption of contract
labour on issuing a notification by appropriate government
under sub section 1 of section-10, prohibiting employment
of contract labour, in any process, operation or other work
in any establishment. Consequently, the Principal employer
cannot be required to order absorption of the contract
labour working in the concerned establishment.”
It is further submitted that in view of the facts and
circumstances, the applicant has got no cause of action
inasmuch as he has no vested/legal right to claim
regularization or any consequential benefits. Reliance is
made on the law laid down by the Hon’ble Apex Court in
“Secretary, State of Karnataka Vs. Uma Devi & Ors.”,
reported in 2006 (4)SCC 1 and further reliance is made on
the law laid down in “Vivek Pousaty Vs. State of Haryana
& Ors”, reported in 2006 (3) SLR 786, “Rakesh Kumar &
Ors. Vs. State of Punjab”, reported in 2006(3) SLR 806. It is
reiterated that in absence of employer-employee relation
between the applicant and respondent , the applicant has
no right to claim regularization or any consequential
benefits. The work was got executed by express contract
and it is trite law that even the Courts cannot go against
the express language of the appointment letter. Reliance is
made on law laid down in “Dr. (Mrs) Chanchal Goel Vs.
State of Rajasthan”, reported in 2003 (3) SLJ 1 (SC).
11. That the contents of the corresponding para are
wrong, misleading and misconceived and hence
vehemently denied. It is submitted that the respondent/
department is not concealing any facts. It is reiterated that
the applicant is a contractor and he is given work on work
order basis, his quotations being lowest, for which he
quotes his rates through quotations. It is further submitted
that no appointment letter etc. have been issued to him
and hence his claim is denied and the petition under reply
deserves to be dismissed.
12 to 15. That the contents of the corresponding
para are wrong, except those being matter of record, are
wrong, misleading and misconceived and hence
vehemently denied. In view of the submissions made
hereinabove, the contents of the corresponding paras need
no further reply. However, it is specifically submitted that
the reference is misconceived and not tenable in the eyes
of law.
In view of above submissions it is prayed that ID
may kindly be dismissed with costs.
Workman filed rejoinder wherein he stated as
follows:-
1. The contention made in the claim application is
reiterated and the contention of the ‘Management’ is
denied. The so called contract is a sham and is simply
being adopted to hoodwink the law.
2. The contention made in the claim application is
reiterated and the contention of the ‘Management’ is
denied. There is definitely employee-employer relationship
between the ‘Applicant’ and the ‘Respondent’.
3. The contention made in the claim application is
reiterated and the contention of the ‘Management’ is
denied. The ‘Respondent’ is the Employer’ in this case, as
he has employed the ‘Applicant’, for the work.
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5339
4. The contention made in the claim application is
reiterated and the contention of the ‘Management’ is
denied. The main function of CPWD in general is
construction and maintenance of roads, buildings and
bridges, and as such it is covered under the definition of
‘industry’ as defined under section 2j of the I.D Act, 1947.
5.The contention made in the claim application is
reiterated and the contention of the ‘Management’ is
denied. The so called contract is a sham and is simply
being adopted to hoodwink the law, thereby causing
unwarranted and unlawful exploitation of the ‘Applicant’.
The fact clearly show that the work of painter in CGO
Complex is of permanent nature, that is why the ‘Applicant’
has been working continuously on that work for the last
seventeen years.
6. The contention made in the claim application is
reiterated and the contention of the ‘Management’ is
denied. The requisite evidence for the contention will be
produced at the appropriate stage.
7&8. The contention made in the claim application
is reiterated and the contention of the ‘Management’ is
denied. The ‘Applicant’ is a workman hence is eligible for
regularization. The fact is that the so called contract is a
sham and is simply being adopted to hoodwink the law.
The contention of not having the power or authority , to
regularize the ‘Applicant’ is a lame excuse, and has been
placed simply to shirk away from the responsibility. Such
contentions of the respondent have already been found
untenable in the matter of other such workmen. In their
case the respondent has already paid them the wages of
the departmental employees, though they were also
employed on work-order, and were being denied regular
wages, by terming them contractors. Even after this to
keep paying the ‘Applicant’ less wages is simply a case of
exploitation.
9 & 10. The contention made in the claim application
is reiterated and the contention of the ‘Management’ is
denied. The ‘Applicant’ was employed on work- order
simply to hoodwink the law. Many other workers were
also employed on work-order by many a divisions
including this division, fore called contract is a sham and
is simply being adopted to hoodwink the law. In this
situation the there definitely exists the relation of employee
and employer, between the ‘Applicant’ and the
‘Respondent’ . After paying the wages of regular employee
to the other such workers, the ‘Respondent’ cannot take
any different and discriminatory stand into the matter.
11. The contention made in the claim application is
reiterated and the contention of the ‘Management’ is
denied. The reasons given in the reply are not tenable.
12 to 15. That the contentions made in the paras of
the claim application are reiterated.
There is no valid reason for dismissal of the I.D ,
hence the submissions made in the prayer by the
‘Respondent’ be ignored. The contentions made in the
prayer clause in the claim application is reiterated.
My Ld. predecessors has not framed any issue but proceed
to adjudicate the present reference on the basis of schedule
wherein questions of determination were as follows:-
“Whether the demand of the All India CPWD
Employees Union, Lodhi Colony, Enquiry Office,
CPWD, New Delhi -110003 for regularization of the
services of Sh. Jagdish Kumar, S/o Sh. Hari Lal,
Painter in the establishment of CPWD is legal and
justified? If yes, to what benefits the workman is
entitled for?
Workman in support of his case filled affidavit in
his evidence wherein he stated as follows:-
1. That I have been employed as ‘Painter’ in CPWD
since 2.1.89, on ‘work-order’ and is fully conversant with
the facts of the case.
2. That I have continuously been performing the
duties in the department, and have been posted at the
CGO complex, Lodi Road, New Delhi , for the work of the
maintenance of the building.
3. That this work is of perennial nature and is going
on continuously, though the Divisions for this work have
changed many a times, yet I have been kept posted on
this work. Presently this work is under the ‘U’ Division,
CPWD.
4. That I am an employee of the department and my
attendance is marked by the ‘Junior Engineer’ of the
department in the same manner, as prescribed for other
workers of the department.
5. That the fact, that I am an employee of the
department, gets substantiated from the documents, in
which my name has been forwarded , along with the other
workers, for regularization, Photocopies of these
documents are collectively attached as Annexure -1 and
please be marked as W.W.1 .
6. That I am an employee of the department, also
gets proved from the fact that I have been issued ‘identify
card’ by the department and have been paid wages through
hand receipt, and also have been issued the details of the
working days. Photocopies of these documents are
collectively attached as Annexure-2 and please be marked
as W.W.-2. If I would have been a contractor then no such
documents could have been issued to me.
7. That I my self do the job of painting as a
‘Workman’, clearly shows that the ploy of the department
to term me a ‘Contractor’ is an effort to hoodwink the law.
8. That the department issued an Office
Memorandum, dated 26-7-94, therein reiterating the ban
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[PART II—SEC. 3(ii)]
on employment of the workers on work-order basis. This
also shows that the workers employed on work-order are
not contractors, but the employees, because there is no
ban on contractors. Photocopies of this document is
attached as Annexure -3 and please be marked as W.W-3.
9. That despite the provisions of the laws I have
been kept deprived from regularization, thereby causing
me monetary loss besides other disadvantages.
10. That the Executive Engineer, ‘U’ Division has
wrongly been denying my regularization and keeping me
casual.
11. That two other workers, namely Raj and Dev
Karan, working as ‘Sweeper’ and ‘Beldar’ respectively in
‘U’ Division , on Work-Order, in a similar and identical
situation as mine, have been regularized in June-2007, by
the department. Photocopies of their ‘appointment-letters’
are collectively attached as Annexure -4 and please be
marked as W.W. -4.
12. That the documents being submitted by me are
the photocopies of the official documents, and originals
of these documents are with the department. In case of
doubting the veracity of these documents, the ‘Employer’
may be directed to produce the original documents.
He was cross-examined by Ms. Pooja Wahal Advocaae,
A/R for the Management:-
His Cross-examination is as follows:-
I am not in possession of any appointment letter
showing my appointment in the office of the management.
I came to know about the vacancy through some private
person only and not from the Employment Exchange or
any advertisement etc. in Newspaper or Magazine etc.
One Mr. S.C. Singhal X.En. had appointed me. Mr. S.C.
Singhal did not give any paper to me in writing employing
me anywhere in the CPWD and it was merely a normal talk.
It is incorrect to suggest that I was never given
employment by the CPWD at all. It is incorrect to suggest
that I used to supply painters to the CPWD Department
on their request and I was practically handling like a
contractor for them for supplying the painters. I used to
be paid on daily wage basis cash monthly. No pay slip
was ever given to me to me nor the payment was made by
any cheque. I never used to sign any attendance register
in the CPWD but J.E. used to mark my presence. Jagdish
Kumar also used to do painting job himself and for that he
used to be paid on daily wage basis. I do not know if I
used to fill up the quotation for getting the work order.
However, my signatures used to be obtained by the
officials of the management. I never raised any objection
against obtaining my signatures on papers ever. I was not
subjected to medical examination or any kind of police
verification by the management in connection with my job
there. I did not use to get holidays. Employees used to
get. I have worked in four divisions of the CPWD. I had
worked last time on 17.3.2007. It is wrong to suggest that
I myself was not interested to work and so I did not honour
the work order given to me by CPWD on 1.4.2007. It is
wrong to suggest that my claim against the management
is false and baseless.
Management in support of his case filled affidavit in his
evidence. Wherein he stated as follows:-
1. I the above deponent do hereby state that this
Affidavit is being submitted in lieu of the previous
Affidavit filed by Sh. U.S. Gauri, Executive Engineer on
behalf of the department. Henceforth this deponent shall
be responsible to deal with the matter concern on behalf
of the Department as the previous deponent has already
been transferred to another position, hence this Affidavit
shall be deemed effective in place of that Affidavit.
2. I state that the deponent is working as an Executive
Engineer, ‘U’ Division, CPWD , CGO Complex, Lodhi Road,
New Delhi of the Management and as well conversant
with the facts and circumstance of the case and am I am
competent to swear this affidavit.
3. I state that the applicant workman has not been
working as Painter on casual basis. It is submitted that the
applicant has entered into agreement from time to time for
supply of Painter as per terms and conditions contained
in the contract.
4. I state that the applicant is not workman as per
the Industrial Disputes Act, 1947. It is respectfully
submitted that there is no employer-employee relationship
between the applicant and respondent.
5. I state that the applicant/workman has not been
employed on the work of maintenance of building at CGO
Complex, which is a work of permanent nature. It is
respectfully submitted that the applicant has entered into
an agreement from time to time supply of Painter as per the
terms and conditions of the Contract/Work Order.
Therefore, the allegation of the applicant that he has been
employed against the work of maintenance does not bear
any truth.
6. I state that the applicant has not been working on
this job of permanent nature for the last 13 years or workers
junior to him have already been regularized. The applicant
is only a contractor for supply of painter as per the
contract/work order and the applicant is not an employee
of respondent . The applicant has neither disclosed the
names of such persons nor provided any detail with regard
to such regularization of any junior worker.
7. I state that the respondent neither have authority
nor power to regularize the Contractor nor is there any
provision in the department rules for regularization of
persons like the applicant, who is a contractor. Therefore,
the question of deprivation from the status and privileges
of permanent workman does not arise.
8. I state that neither section 10 of the CRLA Act nor
any other provision in the Act, whether expressly or by
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necessary implication, provides for automatic absorption
of contract labour on issuing a notification by appropriate
government under sub-section 1 of Section 10, prohibiting
employment of contract labour in any process, operation
or other work in any establishment. Consequently the
Principal employer cannot be required to order absorption
of the contract labour working in the concerned
establishment.
9. I state that the facts and circumstances, the
applicant has got no cause of action in as much as he has
no vested/legal right to claim regularization or any
consequential benefits. I further state that in absence of
employer-employee relation between the application and
respondent, the application has no right to claim
regularization or any consequential benefits. The work
has got executed by express contract and it is trite law that
even the Counts cannot go against the express language
of the appointment letter.
10. I state that the applicant is a contractor and he is
given work on work order basis, his quotations being
lowest, for which he quotes his rates through quotations.
It is further submitted that no appointment letter etc. have
been issued to him.
11. I state that the claim of the workman against the
management is not maintainable and is liable to be
dismissed.
He was cross-examined by Mr. Vinod Kumar, A/R for the
Workman:-
His Cross-examination is as follows:-
It is incorrect to suggest that Jagdish Kumar was
employed as painter by the CPWD as employee of the
CPWD . He was given some painting job which he was to
get for the department. Jagdish Kumar workman could do
the work himself or employ some other painter. In fact, he
never employed anyone for doing the job and he himself
only had done the job. Jagdish Kumar had been doing the
painting job regularly every day since 02.01.1989. Except
Jagdish Kumar, the painting job was never assigned to
anyone else by the department. It is wrong to suggest
that Jagdish Kumar was employed by the CPWD and I am
making a false statement that he was merely a contract
person for doing the job of painting. It is correct that two
persons, one a sweeper and one Baildar who were working
on work order basis have been regularized by the CPWD
department by the order of court. It is correct that Jagdish
kumar was also working on work order basis and his case
is no different than the cases of above mentioned two
work order persons who were regularized. It is correct that
the case of Jagdish Kumar was also sent for regularization
by the department vide letter dated 16.11.1994 Ex. WW1/1
but I do not know why he was not regularized. I have
never heard of any complaint regarding his painting job
from anyone or from the records. It is wrong to suggest
that the department is wrongly and maliciously not
regularizing Jagdish Kumar to which he is entitled.
Written Argument on behalf of the Applicant/Workman.
Wherein he stated as follows:-
Sh. Jagdish Kumar , Painter/Applicant (hereafter
stated as ‘The Applicant’ for the sake of brevity), was
employed by the Respondent(s), as Painter, for doing the
day to day work of painting in the buildings of C.G.O.
Complex , Lodi Road, on 2.1.89, on ‘work-order’. Since that
day ‘The Applicant’ has performed the duty of painter, to
the satisfaction of the ‘Employer’. He was being paid on
the basis of per day on the basis of his presence. For this
purpose his attendance was marked by the concerned
‘Junior Engineer’ in the same manner in which the
attendance of the rest of the staff was marked. In this way,
though ‘The Applicant’ was at par with the other
employees of the department , yet he was not regularized
even after performing duty as casual/daily rated employee
for a long period of more than fifteen years. Aggrieved by
this injustice ‘The Applicant’ was forced to raise an ‘
Industrial Dispute’ for getting justice. The stand of the
‘Employer’ during the conciliation proceedings and before
this forum had been that ‘The Applicant’ is not an
employee, rather he is a contractor , as such he cannot be
regularized.
Therefore the prime issue to be settled is whether
‘The Applicant is an employee or a contractor. ‘The
Applicant’ is an employee of the department which is clear
on the basis of the following facts:
1. That ‘The Applicant’ was employed on work-order
on 2.1.1989 , for doing the maintenance work of painting ,
by the ‘Employer’ , and he continued to do this work
himself for the period of nineteen years. (Evident from the
record and documents of the dispute).
It is beyond all reasonable assumptions that a single
contractor got on getting awarded the contract of painting
of the CGO Complex building continuously for the period
of nineteen years, without any break, or being replaced by
some other contractor.
2. That ‘The Applicant’ was paid on the basis of
the per day wages and has been paid accordingly,
regardless of the availability of the work. His attendance
was being marked by the concerned ‘Junior Engineer’ in
the manner, prescribed for the other employees , including
daily rated employees. (From the documents submitted
by the ‘The Applicant’ along with the counter reply on
2.11.2006, it is clear that he was to be paid @ Rs. 116 per
day for the period of duty for 9 A.M. to 5 P.M. , and his
attendance was marked by the Junior Engineer).
This shows that there is /was no difference between
‘The applicant’ and other employees, particularly the daily
rated employees. As the wages to such employees is paid
on the basis of the days marked present. On the other
hand a contractor cannot be bound to be present or leave
the sight at a particular prescribed time, and cannot be
paid on the basis of his presents, regardless whether any
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[PART II—SEC. 3(ii)]
work has been done by him or not. Other wise there will
be no differences between an employee and a contractor,
and so every employee could be termed a contractor. It
shows that ‘The Applicant’ was under the control of the
‘Employer’ or his designated officer, for the directions of
the work and also for the purpose of the attendance. This
shows that there was a clear relation of employer and the
employee between the two. Any denial by the
‘Respondent’ in this regard is totally wrong and ought to
be ignored.
3. That ‘The Applicant’ has worked as a painter on a
particular place of work ie CGO Complex Building for a
continuous period of more than nineteen years, (This fact
is very much clear from the documents submitted before
the forum as well as the evidence tendered by the
‘Employer’ on 24.4.2012 during cross-examination) clearly
show that it is a work of perennial nature, and there is
perennial requirement of a painter. In such situation to
keep ‘The Applicant’ un-regularized, amounts to
committing ‘Unfair Labour Practice’, as mentioned in the
‘Industrial Disputes Act’.
This shows that ‘The applicant cannot be a
contractor, because regardless of the availability of the
work, to keep a person employed and to pay him on the
basis of his presence continuously for a period of more
than nineteen years can simply mean that there was/ is a
relation of employer and employee between the two, and
‘The Applicant’ is an employee. Any contractor portrayed
by the ‘Employer’ in this respect is a sham and has been
weaved simply to by pass the provisions of the labour
laws.
4. That the Employer has admitted in his cross-
examination on 25.4.2012, that two other work-order
employees (one sweeper and one beldar) have been
regularized by them on the orders of the court. The copies
of the ‘ Appointment-letters’ appointing these two workers,
namely Sh. Raju and Sh. Dev karan, as sweeper and beldar,
respectively, have been submitted to this honorable forum,
by ‘‘The Applicant’ as W.W.-4.
That shows that ‘The Applicant’ is not a contractor,
but an employee, as he is at par with other workers, working
on work-order in that division. If two such workers can be
regularized , then ‘The Applicant’ is also entitled to be
regularized without any discrimination . As such to
discriminate this worker, by the employer is unjustified,
unlawful and mala fide.
5. That ‘The Applicant’ is an employee of the
department, also gets substantiated from the documents
submitted as evidence marked as WW-1 , WW-2 and
WW-3 . All these documents are the copies of the
departmental letters, or certificates or Orders. It shall be
pertinent to mention that the respondent have not denied
any of these documents, as such these documents are
valid and authentic as evidence. These documents are
relevant as follows:-
(a)The documents marked as W.W.-1 are the copies
of the correspondence letters between various offices,
regarding the regularization of the workers working on
‘work –order’. The name of ‘The Applicant’ also figures in
the list of such workers. In one of the documents, two
columns are significant : (1) The date of first entry into the
department, and (2) Reason for recruitment after ban. These
documents show that the names of some workers
including the name of ‘The Applicant’ were forwarded for
necessary action for the purpose of regularization.
This shows that the name of ‘The Applicant’ along
with other workers, who were working on ‘work-order’
were forwarded for regularization. This fact has also been
admitted by the Employer in his cross-examination on
25.4.2012, under oath. If ‘The Applicant’ was a contractor
then how his name was sent for regularization. More over
the significance of the ‘date of first entry into the
department ‘ and also the ‘ reason for recruitment after the
ban’ can pertain to and can be significant in the case of an
employee only. Contractors are neither regularized in any
department, nor they have got any reason for recruitment
or date of first entry in the deparment.
(b)The documents marked as W.W-2 are the copies
of the (1) . Photocopy of the identity card issued to ‘The
Applicant’ by the department , (2) .Photocopy of the
certificates issued to ‘The Applicant’ by the employer,
showing the month vise number of days worked by ‘The
Applicant’ .(3). Photocopy of the hand-receipt and wage-
slip , through which payment has been made to ‘The
Applicant’
These documents show that ‘The Applicant’ is /
was the employee in the department , and not a contractor,
because contractors are not issued such documents.
(c)The document marked as W.W.-3 is the
photocopy of an ‘Office-Memorandum’ dated 26th July
1994. In this order the ban has been put on recruitment of
the workers on ‘work-order’ also.
This shows that the department was aware that the
workers are being recruited on ‘work-order’, and they were
employees of the department. That is why the department
has put ban on such recruitment . If these workers were
contractors then there was no justification in putting a
ban on them.
6. The employer is concern of the Union
Government, and ought to act as a ‘model employer’. On
the contrary the employer has kept ‘The Applicant’ and
also other some workers casual for such a long period of
decades, in violation of the relevant ‘Labour laws’ and in
the guise of a sham contract. This is a simply case of
exploitation of the workers. The further of such workers in
such situation can very well be imagined. As after a period
of performing duties for decades, they are going to get
nothing, and a dark future will be looming before them.
Such action and irrelevant arguments simply make mockery
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5343
of the ‘labour laws’ and defeat the very purpose of framing
such Acts and Laws, if the Labour/Industrial workers
remain deprived from getting justice, assured under the
laws.
From the above paragraphs it is absolutely clear
that ‘The Applicant’ is not a contractor , but an employee
of the department, who has worked for a period of more
than nineteen years as a painter, and has yet not been
regularized, though the junior workers to him have been
regularized.
Therefore to save ‘The Applicant’ from exploitation,
injustice and discrimination, it is very much necessary
that he should be given justice by regularizing him. The
prayer is made accordingly before the honorable Court.
Written Argument on behalf of Management . Wherein
it stated as follows:-
1. That the respondent is working as an Executive
Engineer, ‘U’ Division, CPWD , CGO Complex, Lodhi Road,
New Delhi of the Management and as well conversant
with the facts and circumstances of the case.
2. That the applicant has not been working as Painter
on casual basis. It is submitted that the applicant has
entered into agreement from time to time for supply of
Painter as per terms and conditions contained in the
contract.
3. That the applicant is not applicant as per the
Industrial Disputes Act, 1947 . It is respectfully submitted
that there is no employer-employee relationship between
the applicant and respondent.
4. That the applicant has not been employed on the
work of maintenance of building at CGO Complex, which
is a work of permanent nature. It is respectfully submitted
that the applicant has entered into an agreement from time
to time supply of Painter as per the terms and conditions
of the Contract /Work Order. Therefore, the allegation of
the application that he has been employed against the
work of maintenance does not bear any truth. Moreover,
no vacancy of Painter has ever been published or any
interview been conducted for the post of Painter. Also
other norms such as medical examination, police
verification etc. have not been followed in this case.
5. That the applicant has not been working on this
job of permanent nature for the last 13 years or workers
junior to him have already been regularized. The applicant
is only a contractor for supply of painter as per the
contract/work order and the applicant is not an employee
of respondent. The applicant has neither disclosed the
names of such persons nor provided any detail with regard
to such regularization of any junior worker.
6. That the respondent neither have authority nor
power to regularized the contractor nor is there any
provision in the department rules for regularization of
persons like the applicant, who is a contractor. Therefore,
the question of deprivation from the status and privileges
of permanent workman does not arise.
7. That neither section 10 of the CRLA Act nor any
other provision in the Act, whether expressly or by
necessary implication, provides for automatic absorption
of contract labour on issuing a notification by appropriate
government under sub section (1) of section 10 ,
prohibiting employment of contract labour in any process,
operation or other work in any establishment.
Consequently the Principal employer cannot be required
to order absorption of the contract labour working in the
concerned establishment.
8. That the applicant has got no cause of action in
as much as he has not vested /legal right to claim
regularization or any consequential benefits. I further state
that in absence of employer-employee relation between
the applicant and respondent, the applicant has no right
to claim regularization or any consequential benefits. The
work has got executed by express contract and it is trite
law that even the Counts cannot go against the express
language of the appointment letter.
9. That the applicant is a contractor and he is given
work on work order basis, his quotation being lowest, for
which he quotes his rates through quotations. It is further
submitted that no appointment letter etc. have been issued
to him. It is also stated that no Service Book and Leave
A/c has been maintained by the management and all the
payments have been made strictly in accordance with the
terms & conditions of the work order. It is clear from the
available record no leave period has been sanctioned in
R/o the applicant as the applicant is himself a contractor ,
CRs in R/o the applicant have never been filled in during
the period of the contract.
10. That the management has cited the award passed
in case titled as CPWD Vs. Workman in reference no. CGIT-
1/25 of 2007 of Justice G.S. Sarraf Presiding Officer on
18.01.2012 by mentioning that “ Management /Central
Government Department and there are specific recruitment
rules. If there is a vacancy it has to be advertised. The
candidates have to be interviewed and medically examined
and police verification has to be done before any person
is appointment to the job. No such procedure was followed.
The applicant /workman has admitted in his cross-
examination that he never applied for any in the CPWD,
the employment exchange never sent his name to the
CPWD, the CPWD never interviewed him, he was never
medically examined and he never furnished any details for
the purpose of police verification. There is no order
terminating the service of the applicant/workman w.e.f
13.9.2001 because he was never given an appointment in
the department. The applicant /workman worked on the
basis of contractual work orders. When the work order
was not given to the applicant he came with the request
for reinstatement. There never existed a relationship of
employer and employee between the CPWD and the
applicant and if the applicant has worked for more than
240 days on the basis of contract entered into by him with
first party then certainly he cannot seek reinstatement.
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[PART II—SEC. 3(ii)]
11. In another matter of CPWD, DG (W) , New Delhi
V/s Sh. Daya Shankar Prasad , verdict of High Court, New
Delhi may also be referred to, where in the award of CGIT
to reinstate the respondent in service , who was engaged
on work order from time to time , has been set aside vide
judgment W.P. © 12178/2006 dt. 20th September, 2012. (Copy
of the judgment is enclosed.)
It is therefore, submitted before this Hon’ble
Authority that as per facts stated in above paras the facts
becomes crystal clear and thus applicant is not entitled as
prayed for.
In the light of contentions and counter contentions
I perused the questions of determination mentioned in the
schedule of reference dated 29.6.2005, pleadings of claim
statement, written statement and rejoinder, evidence of
workman and Management , written arguments of parties,
principles laid down in cited rulings, settled law on the
point and relevant provisions of concerned law.
Questions of determination No.1 mentioned in
schedule of reference is as follows:-
“Whether the demand of the All India CPWD
Employees Union, Lodhi Colony, Enquiry Office,
CPWD, New Delhi -110003 for regularization of the
services of Sh. Jagdish Kumar , S/o Sh. Hari Lal,
Painter in the establishment of CPWD is legal and
justified?” Which is in itself shows that burden to
prove this demand mentioned in question of
determination is on workman.
To prove his case mentioned in Question of
Determination No.1 workman adduced his oral and
documentary evidence.
In his oral evidence he filed his affidavit on 29.8.2007.
Wherein he mentioned that he has been employed as
‘Painter’ in CPWD since 2.1.89 on ‘work order’.
He has continuously been performing the duties in
the department. His name has been forwarded, alongwith
the other workers, for regularization.
The executive Engineer, ‘U’ Division has wrongly
been denying his regularization and keeping him casual.
Two other workers, namely Raju and Dev Karan, working
as ‘Sweeper’ and ‘Beldar’ respectively in ‘U’ Division , on
work-order, in a similar and Identical situation as him ,
have been regularized in June 2007, by the department.
Photo copies of their ‘appointment letters’ are collectively
attached as Annexure -4.
He also annexed Annexure-1 to show that his name
alongwith the other workers was sent , to higher authority
for regularization .
He also annexed with affidavit annexure No. 2 to
show photocopy identity card issued by department,
photocopy of receipts to show payment of wages to him
and photo copies to show details of the working days.
He also annexed with affidavit photo copy of office
memorandum dated 26.7.1994 as Annexure-3 to show that
workman was employed on work order. He was not
contractor.
He tendered his affidavit on 23.10.2008. He was
cross-examined same day by Ld A/R for the management.
Wherein he admitted that I had worked last time on
17.3.2007.
On the basis of his aforesaid evidence workman
claimed his regularization.
In rebuttal management filed affidavit of Sh. Gulshan
Sharma Executive Engineer on 15.11.2011. Who tendered
his affidavit on 25.4.2012. He was cross-examined same
day by Ld A/R for the workman.
On the basis of evidence on record Ld. A/R for
management stressed that co-worker Raju sweeper and
Dev Karan Beldar have raised their Industrial Dispute
before ministry of Labour then their Dispute has been
referred for adjudication to Tribunal. When reference was
received in Tribunal then it was register as I.D. No. 217/
1999. Which was decided and Award was passed on
31.08.2000 by the then P.O. of CGIT , New Delhi. Who
directed to management to regularized the workman Raju
and Dev Karan. On the basis of aforesaid award.
Concerned authority made co-worker Raju and Dev
Karan regularized on 6.6.2007 and Jagdish Kumar worker
of the I.D No. 60 of 2005 could not be regularized in want
of award in favour of workman Jagdish Kumar.
Upon this Ld. A/R for workman stressed that now
workman Jagdish Kumar has raised Industrial Dispute.
Which is pending for adjudication before this tribunal. In
which similar direction to management for regularization
of workman Jagdish Kumar could be issued on the basis
of parity.
So question of determination is that whether there
exists parity between the workman Jagdish Kumar and co-
worker Raju and Dev karan for the purpose of issuing
direction to management to regularized the workman
Jagdish Kumar.
For the purpose of determination of aforesaid
questions evidence of workman is to be looked into.
Statement of workman Jagdish Kumar makes it
crystal clear that he himself admitted on 23.10.2008 in his
cross-examination that he had worked last time on
17.3.2007. So he is no more in service of management . In
want of which relief of regularization to workman could
not be granted. But at the same time it cannot be brushed
aside as trivial fact that management has not considered
the case of workman for regularization upto 17.3.2007
without any plausible reason . Hence management is liable
to pay reasonable compensation to workman and workman
is entitled to get reasonable Compensation.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5345
Adopting delaying tactics deprived the workman
Jagdish Kumar in getting benefits of regularization since
12.5.06 when he was in service. Due to which he suffered
lot of pecuniary loss etc to considerable extent.
On the basis of which I am of considered view that
compensation of Rs. 50,000/- (Fifty thousand only) by
way of damages as compensation to the workman/claimant
by management after expiry of period of limitation of
available remedy against Award . That will meet the ends
of justice.
Thus reference is accordingly decided in favour of
workman and against management .
Award is accordingly passed.
Dated:-14/03/2014
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 16 tqykbZ] 2014
dk-vk- 2050.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj gknksrh {ks=h;
xzkeh.k cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] t;iqj ds iapkV ¼lanHkZ
la[;k 30/2013½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
30@06@2014 dks izkIr gqvk FkkA
[la- ,y&12011@30@2013&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, 16th July, 2014
S.O. 2050.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref 30/2013) of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Jaipur
as shown in the Annexure, in the industrial dispute
between the management of Hadoti Kshetriya Gramin Bank
and their workmen, received by the Central Government
on 30/06/2014.
[No. L-12011/30/2013-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, JAIPUR
Presiding Officer, Bharat Pandey
I.D. 30/2013
Reference No.L-12011/30/2013-IR(B-I)) dated: 21.6.2013
The President/Mahamantri
Hadoti Kshetriya Gramin Bank
Karmachari Union,
Office Add: 5 F 12, Talvandi,
Kota (Rajasthan).
V/s.
The Administrative Officer/President
Baroda Kshetriya Gramin Bank
City Plaza, 1st Floor, Vaishali Nagar,
Ajmer (Rajasthan).
AWARD
Dated: 06.5.2014
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 Hadoti
Kshetriya Gramin bank over stoppage of three
increments with cumulative effect for three years of
Sh. Ganesh Lal Bundel, clerk-cum-Cashier is legal &
justified? If not, to what relief the workman concerned
is entitled for?”
2. In pursuance of reference order, registered notices
were sent to both the parties as per address contained in
reference order. Opposite party has been served with
notice but there has been no appearance on behalf of
opposite party till date. Notice sent to applicant union on
27.9.2013 was returned back by postal department with
endorsement that information has been given to the
postman that addressee has left the place of residence
hence it is returned back to sender. Finding the above
state of service of notice, another notice was sent to the
applicant on address mentioned in the reference order. It
was again returned back with the same endorsement dated
12.4.2014 made by postal department.
3. No other known address appeared suitable &
proper to make effective service against the applicant union
& notices send twice as given in reference have served no
purpose to make effective service. It is important to note
that in reference order dated 21.6.2013 applicant was
directed by Ministry to file statement of claim complete
with relevant documents & list of witnesses in the tribunal
within 15 days from the receipt of the reference order
forwarding copy of such statement to opposite parties
but in compliance of that order too applicant has not filed
any statement of claim. Under these circumstances, the
reference order under adjudication cannot be adjudicated
on merits, hence “ No Claim Award” is passed in this matter.
The reference under adjudication is answered accordingly.
4. Award as above.
5. Let a copy of the award be sent to Central
Government for publication u/s 17(1) of the I.D.Act.
BHARAT PANDEY, Presiding Officer
ubZ fnYyh] 16 tqykbZ] 2014
dk-vk- 2051.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkbZ- ,u-
th- oS'; cSad fy- izca/kra= ds lac) fu;kstdksa vkSj muds
5346
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] ukxiqj ds iapkV
¼lanHkZ la[;k 26/2013½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 30@06@2014 dks izkIr gqvk FkkA
[la- ,y&12012@02@2013&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, 16th July 2014
S.O. 2051.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref 26/2013) of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Nagpur
as shown in the Annexure, in the industrial dispute
between the management of ING Vysha Bank Limited and
their workmen, received by the Central Government on
30/06/2014.
[No. L-12012/02/2013-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/26/2013 Date: 23 .06.2014.
Party No.1
:
The Branch Manager,
ING Vysya Bank Limited,
Satyam Apartment, Dhantoli,
Nagpur-440012.
Versus
Party No. 2
:
Shri Gunwant,
S/O Shri Pandurangji Kakde,
Plot No.50, New Amar Nagar,
Near Prerna Vidya Mandir,
Manewada Ring Road,
Nagpur-440034.
AWARD
Dated: 23rd June, 2014
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of ING VYSYA Bank Limited and their
workman, Shri Gunwant Kakde, for adjudication, as per
letter No.L-22012/02/2013-IR (B-I) dated 20 .05.2013, with
the following schedule:-
“Whether the action of the management of ING Vysya
Bank Limited, Nagpur in terminating the services of
Shri Gunwant Kakde S/o Shri Pandurangaji Kakde,
Ex. Peon w.e.f. 18.01.2012 is just, fair and legal? If
not, then what relief the workman is entitled to?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the workman, Shri
Gunwant Kakde,(‘the workman” in short), filed the
statement of claim.
It is necessary to mention here that notice of the
reference was sent by registered post with A.D. to the
management of ING Vysya Bank Limited (“Party No. 1” in
short) and though the service of notice was sufficient,
party No. 1 did not make any appearance. The reference
was adjourned twice for filing of written statement by the
party No.1, but party No.1 neither appeared nor filed their
written statement, so, on 03.12.2013, order was passed to
proceed with the case without written statement.
It is also necessary to mention here that as the party
No.1 did not appear at all to take part in the hearing of the
case, on 28.04.2014, order was passed to proceed ex-parte
against the party No.1.
3. The case of the workman as presented in the
statement of claim is that he was appointed as a peon on
03.08.2007 in the office of party No.1 at Nagpur and he
served as such with an unblemished service record for 4
years 5 months and 15 days continuously without any
interruption and party No.1 issued a certificate on
09.08.2010 in his favour, mentioning about his performance
and conduct in the same and an identity card had also
been issued by party no.1 in his favour, but party No.1 on
18.01.2012 orally terminated his services without assigning
any reason thereof, after making payment of monthly
wages of Rs. 5499/- to him and before termination of his
services party No. neither issued any show cause notice
or memo nor made any domestic enquiry against him.
It is further pleaded by the workman that before
termination of his services, party No.1 neither issued one
month’s notice nor made payment of one month’s wages
in lieu of the notice nor the retrenchment compensation as
required under section 25-F of the Act and the termination
of his services was in violation of the provisions of Sections
25-F and 25-G of the Act and he served a notice dated
15.02.2012 on party No.1 for illegal termination of his
services and requested for his reinstatement in service
with continuity and all other consequential benefits and
party No.1 in their reply dated 18.02.2012 claimed that he
as never appointed by them and he was employed by one
Shona Corporate Services Pvt. Ltd. and there was no
question of his reinstatement and as such he raised the
dispute before the Asstt. Labour Commissioner (Central),
Nagpur, but as the conciliation ended in failure, failure
report was submitted to the Central Government by the
Conciliation Officer and ultimately the reference has been
made by the Government to this Tribunal for adjudication
of the industrial dispute.
The workman has made prayer for his reinstatement
in service with continuity, full back wages and
consequential benefits.
4. To prove his case, the workman has examined
himself as a witness, besides placing reliance on
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5347
documentary evidence. In his evidence on affidavit, the
workman has reiterated the facts mentioned in the
statement of claim.
The evidence of the workman remained
unchallenged, as none appeared on behalf of the party
no.1 to cross examine him.
5. At the time of argument it was submitted on behalf
of the workman that the workman was appointed as a peon
on 03.08.2007 by party no.1 and he worked for about 4
years 5 months and 15 days without any interruption and
a certificate dated 09.08.2010 was also issued by party
no.1, confirming his appointment as a peon and the
workman was also issued with identity card dated
24.12.2011to perform the works relating to Reserve Bank
of India and the said documents confirmed the relationship
of master and servant between the party no.1 and the
workman and on 18.01.2012 the workman was terminated
from service orally without following the due procedure
of law and neither one month’s notice nor one month’s
pay in lieu of the notice nor retrenchment compensation
was paid to the workman before termination of his services
and such termination amounts to retrenchment from
service and is illegal and as such, the workman is entitled
for reinstatement in service with continuity, back wages
and all consequential reliefs.
6. Admittedly, the case proceeded exparte against
the party no.1. However, in view of the claim of the
workman that his services were terminated without
compliance of the provisions of Section 25-F of the Act,
the burden lies upon him to plead and prove that infact he
had worked for 240 days in the preceding 12 calendar
months of the date of the alleged termination i.e. 18.01.2012.
On perusal of the record it is found that though the
workman has claimed that he was appointed as a peon by
party no.1 on 03.08.2007, he has not filed any appointment
letter or any other document showing his appointment as
a peon on 03.08.2007. On perusal of the zerox copy of the
so called service certificate it is found that the same was
issued on 09.08.2010 and the same was issued by the
Branch Operations and Services Head, Nagpur Branch.
The copy of the Identity card shows that the designation
of the workman was “Office Boy” and the same was issued
by the Reserve Bank of India i.e. National Clearing Cell.
The said documents do not show that the workman worked
for 240 days in the preceding 12 calendar months of
18.01.2012.
In the entire statement of claim, no where the
workman has pleaded that infact he had worked for 240
days in the preceding 12 calendar months of 18.01.2012.
In his evidence on affidavit also the workman has not
whispered a single word about his working for 240 days in
the preceding 12 calendar months of 18.01.2012.
7. The workman has filed some additional documents.
Out of the said documents Annexure-IX is a zerox copy of
the reply given by party no.1 to the workman dated
21.02.2012. The said letter shows that the workman was
an employee of Shona Services, the contractor and he
was engaged by the contractor with party no.1. Annexure-
X filed by the workman shows that Shona Corporate
Services Pvt. Ltd., the contractor had called for explanation
from the workman for remaining absent from duty.
Annexure-X also shows that the workman remained absent
from duty from 16.01.2012 and thereafter did not resume
duty. Annexure-IX & X clearly shows that the workman
was engaged with party no.1 by the contractor Shona
Corporate Services Pvt. Ltd. The documents filed by the
workman do not show that infact he had worked for 240
days in the preceding 12 calendar months of 18.01.2012.
In view of the failure of the workman that he worked for
240 days in the preceding year of the date of his
termination, he is not entitled to get the benefit of Section
25-F of the Act.
As the evidence adduced by the workman doesn’t
show that the workman was appointed as a peon by party
no.1 on 03.08.2007 and that he worked for 240 days in
preceding 12 calendar months of 18.01.2012, the workman
is not entitled for any relief. Hence, it is ordered:-
ORDER
The reference is answered in the negative and
against the workman. The workman is not entitled to any
relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 16 tqykbZ] 2014
dk-vk- 2052.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.k jsyos
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;] psUubZ ds iapkV ¼lanHkZ la[;k 54]
55] 56] 57] 63] 64 vkSj 65/2013½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 04@07@2014 dks izkIr gqvk FkkA
[la- ,y&41012@01] 02] 03] 07] 04] 05 vkSj
06@2013&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, 16th July, 2014
S.O. 2052.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref . Nos. 54,
55, 56, 57, 63, 64 and 65/2013) of the Cent.Govt.
Indus.Tribunal-cum-Labour Court, Chennai as shown in
the Annexure, in the industrial dispute between the
management of Southern Railway, and their workmen,
received by the Central Government on 04/7/2014.
[No. L-41012/01, 02, 03, 07, 04, 05 and
06/2013-IR(B-I)]
SUMATI SAKLANI, Section Officer
5348
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Friday, the 23rd May, 2014
Present :
K.P. PRASANNA KUMARI,
Presiding Officer
I.D. Nos. 54, 55, 56, 57, 63, 64 and 65 of 2013
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
S.
I. D. No.
Reference No.
Name of the
Name of the
Appearance for Appearance for
No.
& Date
I Party S/Sri
II Party
Workman
Respondent
1.
54/2013
L-41012/01/2013-
K. Krishnamurthy
The General
M/s S.T.
Sri K. V. Sanjeev
IR (B-I) dt. 17.05.2013
Manager (Law)
Varadarajulu,
Kumar, Advocate
Southern
Advocate
Railway
Chennai-3
2.
55/2013
L-41012/02/2013-
C. Kuppusamy
The General
M/s S.T.
Sri K. V. Sanjeev
IR (B-I) dt. 20.05.2013
Manager (Law)
Varadarajulu,
Kumar, Advocate
Southern
Advocate
Railway
Chennai-3
3.
56/2013
L-41012/03/2013-
P. Ravichandran
The General
M/s S.T.
Sri K. V. Sanjeev
IR (B-I) dt. 21.05.2013
Manager (Law)
Varadarajulu,
Kumar, Advocate
Southern
Advocate
Railway
Chennai-3
4.
57/2013
L-41012/07/2013-
M. Velu
The General
M/s S.T.
Sri K. V. Sanjeev
IR (B-I) dt. 16.05.2013
Manager (Law)
Varadarajulu,
Kumar, Advocate
Southern
Advocate
Railway
Chennai-3
5.
63/2013
L-41012/04/2013-
C. S. Arumugam
The General
M/s S.T.
Sri K. V. Sanjeev
IR (B-I) dt. 21.05.2013
Manager (Law)
Varadarajulu,
Kumar, Advocate
Southern
Advocate
Railway
Chennai-3
6.
64/2013
L-41012/05/2013-
M. Chellappan
The General
M/s S.T.
Sri K. V. Sanjeev
IR (B-I) dt. 21.05.2013
Manager (Law)
Varadarajulu,
Kumar, Advocate
Southern
Advocate
Railway
Chennai-3
7.
65/2013
L-41012/06/2013-
K. Macharegai
The General
M/s S.T.
Sri K. V. Sanjeev
IR (B-I) dt. 27.05.2013
Manager (Law)
Varadarajulu,
Kumar, Advocate
Southern
Advocate
Railway
Chennai-3
Section 10 of the Industrial Disputes Act, 1947(14 of 1947),
between the Management of Southern Railway and their
workman)
BETWEEN
Sri K. Krishnamurthy &
: 1st Party/Petitioners
6 Others
AND
The General Manager (Law) : 2nd Party/Respondent
Southern Railway
Moore Market Complex
Chennai-600003
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tqykbZ 19] 2014@vk"kk<+ 28] 1936
5349
COMMON AWARD
The Central Government, Ministry of Labour &
Employment vide the above order of references referred
the IDs mentioned above to this Tribunal for adjudication.
2. The schedule mentioned in the orders of
reference in the above IDs are as under:
ID 54/2013
“Whether the action of the Railway Management-
Southern Railway, Chennai regarding termination of the
service of the petitioner K. Krishnamurthy without
following the provisions of Section-2(OO) and 25(F) of
the ID Act is justified or not? If not, to what relief the
workman is entitled to?”
ID 55/2013
“Whether the action of the Railway Management-
Southern Railway, Chennai regarding termination of the
service of the petitioner C. Kuppusamy without following
the provisions of Section 2(OO) and 25(F) of the ID Act
is justified or not? If not, what relief the workman is
entitled?”
ID 56/2013
“Whether the action of the Railway Management-
Southern Railway, Chennai regarding termination of the
service of the petitioner P. Ravichandran without
following the provisions of Section 2(OO) and 25(F) of
the ID Act is justified or not? If not, what relief the
workman is entitled?”
ID 57/2013
“Whether the action of the Railway Management-
Southern Railway, Chennai regarding termination of the
service of the petitioner M. Velu without following the
provisions of Section 2(OO) and 25(F) of the ID Act is
justified or not? If not, what relief the workman is
entitled?”
ID 63/2013
“Whether the action of the Railway Management-
Southern Railway, Chennai regarding termination of the
service of the petitioner C.S. Arumugam without following
the provisions of Section 2(OO) and 25(F) of the ID Act
is justified or not? If not, what relief the workman is
entitled?”
ID 64/2013
“Whether the action of the Railway Management-
Southern Railway, Chennai regarding termination of the
service of the petitioner M. Chellappan without following
the provisions of Section 2(OO) and 25(F) of the ID Act
is justified or not? If not, what relief the workman is
entitled?”
ID 65/2013
“Whether the action of the Railway Management-
Southern Railway, Chennai regarding termination of the
service of the petitioner K. Macharegai without following
the provisions of Section 2(OO) and 25(F) of the ID Act
is justified or not? If not, what relief the workman is
entitled?”
3. On receipt of the Industrial Dispute this Tribunal
has numbered them and issued notices to both sides. Both
sides have entered appearance through their counsel and
have filed their claim and counter statement respectively.
4. The averments in the Claim Statement in ID 54/
2013 in brief are these:
The petitioner joined the service of the Respondent
as Box Boy on 07.02.1994 on salary of Rs. 600/-. He was
working under the Chief Controller of AC Loco Shed,
Jolarpet, Southern Railway. The petitioner was engaged
against the regular vacancy which arose on account of
regular railway servants having retired from service. Since
the petitioner was engaged in regular vacancy he was
entitled to the benefit of monthly salary of Rs. 750/- plus
Dearness Allowance from the date of initial recruitment.
He was entitled to absorption against the vacancy on
completion of 240 days of continuous service. The
petitioner was continuously employed since 07.02.1994.
However, he was unjustly denied employment from
03.11.1995. The petitioner had put in more than 240 days
of service in a year. Terminating the services of the
petitioner without any valid reason is retrenchment as per
Section-2(oo) of the Industrial Disputes Act. The petitioner
was not given any retrenchment notice or paid any
compensation. The petitioner is without any employment
after 03.11.1995. An order may be passed directing the
Respondent to reinstate the petitioner in service with back
wages and continuity of service alongwith attendant
benefits.
5. The Respondent has filed Counter Statement
contending as follows:
The claim made by the petitioner is not maintainable.
It is an abuse of the process of law. The petitioner was
not appointed by the Respondent. No appointment can
be made directly by the Chief Controller as claimed by the
petitioner. All the appointments under the Railway
Administration will be made by the Railway Board. No
other authority has any power to appoint any person in
the Railway. Since the petitioner was not appointed on
monthly salary there was no termination also. There is
no employer-employee between the petitioner and the
Respondent. The petitioner is not entitled to any relief.
6. The petitioners in ID 55/2013, 56/2013, 57/2013,
63/2013, 64/2013 and 65/2013 also have filed Claim
Statements raising contentions similar to the one raised
by the petitioner in ID 54/2013. All of them have stated
5350
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
that they have joined in the service of the Respondent as
Box Boy on 07.02.1994 and had been terminated from
service after sometime. All of them have claimed that they
were appointed in regular vacancy and they had worked
for more than 240 days in a year. All these petitioners have
also claimed that they are entitled to be reinstated in the
service of the Respondent. The Respondent has filed
Counter Statement in all these IDs repeating the contentions
in the ID 54/2013. Their stand is that none of these
petitioners were ever appointed by the Respondent, they
were never in the service of the Respondent and there is
no employer-employee relationship between them and the
Respondent.
7. The contentions raised in all the IDs being similar
in nature and the issue to be decided being similar the
parties have filed memo seeking joint trial of all the IDs
and this was allowed.
8. ID 54/2013 was treated as the main case and
evidence was recorded in this. On the side of the
petitioners, WW1 and WW2 were examined and Ext.W1
to Ext.W7 were marked. MW1 was examined on the side of
the Respondent.
9. The points for consideration in the above
petitions are:
(i) Whether the Respondent had terminated the
service of the petitioners in violation of the provisions of
the ID Act?
(ii)To what relief the petitioners are entitled?
The Points
10. Before approaching this Tribunal the petitioners
have approached other forums seeking relief for their
grievances. They have filed a Claim Petition before the
Central Govt. Labour Court under Section-33((2) of the ID
Act claiming amount by way of difference in the wages.
Ext.W2 is the order directing the Respondent to pay
the difference to each of the petitioners. The Respondent
had challenged this order by Writ Petition before High
Court of Madras and the order was set aside. The
petitioners seem to have filed application for reinstatement
also before the Labour Court, Chennai alleging that their
services were terminated without obtaining sanction from
the Competent Authority under Section-33 of the ID Act.
The Court had denied the relief of reinstatement to the
petitioners but had directed to pay compensation of Rs.
1,00,000/- to each of the petitioners. These were challenged
by the Respondent as well as the petitioners. The writ
petitions of the Respondent were allowed and that of the
petitioners were dismissed finding that their petitions
before the Labour Court were not maintainable. Ext.W6 is
the copy of the common order. It is after the adverse order
of the Hon’ble High Court the petitioners have raised the
dispute. Conciliation having ended up in failure, a failure
report was given and the Government had referred all the
matters to this Court for adjudication.
11.The petitioner in ID 64/2013 has given evidence
as WW1 for himself and on behalf of other petitioners.
WW2 examined by the petitioners is one who had been
working as mail driver and had retired from service. There
is the evidence given by WW1 that he had joined the
service of the Respondent on 07.02.1994 as Box Boy and
had been terminated from service on 03.11.1995. WW2
has stated in the Proof Affidavit filed by him in lieu of
Chief Examination that the petitioners were in the service
of the Respondent as Box Boys since February 1984 under
the Chief Controller of AC Loco Shed, Jolarpet.
12.Though it is claimed by all the petitioners that
they have joined the service of the Respondent on
07.02.1994, there is no document available showing that
they were appointed by the Respondent in this capacity.
The case of the Respondent is that there is no post of Box
Boy at all in the Railway. The petitioners have claimed that
earlier there used to be regular Box Boy under the Railway
and when they have retired from service, the petitioners
were engaged by the Respondent. There is no
documentary evidence available even to show that the
Respondent had the post of Box Boy.
13.WW1 has stated during his cross-examination
that he has not produced any appointment order. According
to him, on 03.11.1995 he was told that the Respondent will
thereafter be giving the work on contract. Though in the
Claim Statement the case of WW1 is that he worked till
03.11.1995, during his cross-examination his case is that
he continued to work for the Respondent after 03.11.1995
for some time and then left since the remuneration was not
sufficient. Though WW2 has stated in the Affidavit that
the petitioners were working as Box Boys, he had admitted
during his cross-examination that the petitioners had never
worked for him. Apart from this, it is also seen from the
version of this witness in cross-examination, that
petitioners were not working in the Division where WW2
was working at all. The case of the petitioners is that they
were working at Jolarpet, WW2 had been working at
Trichirapally and Madras Divisions. He has also revealed
that Trichirapally and Jolarpet are two separate divisions.
So in the normal course there was no necessity for WW1
to have the details of the work, if any, done by the
petitioners. Again according to WW2, though the
petitioners initially worked under Railways, subsequently
they had worked under the Contractors.
14. The counsel for the petitioners has been relying
upon Ex.W2, the remarks submitted by the Respondent
before the Asstt. Labour Commissioner (C) for the purpose
of conciliation. In this it has been stated that with the end
of reducing manpower some of the activities which do not
constitute employment of full time persons have been shed
down. It is further stated that one such area is loading and
unloading of boxes of such categories of staff such as
Loco Drivers, Guards and Travelling Ticket Examiners. It
is further stated in this that the crew who are travelling
¹Hkkx II—[k.M 3(ii)º
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5351
alongwith the train such as Drivers, Guards and TTs are
required to carry their boxes containing the official
documents and other paraphrenelia and since it was not
possible for the individual employee to carry his own box
or to make arrangements for the boxes to be lifted, the
Station Superintendent or the Supervisory Official
concerned used to engage some person who is available
in the vicinity to undertake this job on payment of piece
rate to be settled between them. Such persons were engaged
in intervals for a few minutes at the time of boarding the
train to load or unload the boxes for a specified
remuneration. It is further stated that no account of this
expenditure was maintained as it was spent from the
imprest cash sanctioned to the supervisory official.
Records of persons so engaged are also not available, it is
stated. It is also stated that in the absence of any records,
the Respondent could not even state whether the
petitioners were ever engaged for the purpose of loading
or unloading the boxes.
15. On the basis of the above remarks made in
Ext.W1 it has been argued by the counsel for the petitioners
that the Respondent has been engaging persons as Box
Boys. True, there is a statement in Ex.W1 that as and when
required men used to be engaged for carrying the boxes.
However, according to the Respondent this was just like a
porter was engaged by a passenger to carry his luggage
and the work was just for a few minutes alone for carrying
the boxes to the train or back from the train. It was not a
work of stable nature and the engagement was not to
particular persons also. Thus, there is nothing in Ext.W1
by way of admission that the petitioners were ever engaged
as Box Boys and they were working in this capacity
continuously. The petitioner themselves were not able to
produce even a scrap of paper to show that they were
ever engaged by the Respondent. Not even any
documents pertaining to payments said to have been made
to them are produced. So apart from the statement made
by the petitioners in their Claim Statement and assertion
by WW1 in his affidavit there is no evidence at all to show
that any of the petitioners were engaged by the
Respondent from 07.02.1994 as claimed by them and
continued in service till 03.11.1995 on which date they
were allegedly terminated. There is no document pertaining
to alleged termination also. So material are totally lacking
to show that the petitioners were working for the
Respondent continuously from 07.02.1994 as claimed by
them.
16. Even if the petitioner were working in the
capacity claimed by them it seems to have been as contract
labourers. I have already referred to the evidence given
by WW1 that he continued to work with the Respondent
after 03.11.1995. This itself gives a goby to the case in the
Claim Statement that he was terminated on 03.11.1995.
Ex.W3 are the complaints filed by the petitioners before
the Central Government Labour Court, Chennai under
Section-33A of the I.D. Act. What is stated in these
complaints is that they had earlier approached the Court
for benefits of differences in wages, mode of payment,
compensatory and other allowances and for abolition of
the work of regular nature to private contractor. It is further
stated in the complaint that the services of these petitioners
were terminated by the private contractor without obtaining
sanction from the competent authority under Section-33
of the I.D. Act. Thus there is an admission in these
complaints that they were working for the Respondent
through private contractors when their services were
terminated. On the other hand in the Claim Statements
filed before this Court the petitioners were silent about
the contractual nature of the work done by them. Their
claim is that they were directly employed by the
Respondent and were terminated by the Respondent also.
This seems to be not true when the statement made in the
complaints are taken into account.
17. The Central Govt. Labour Court, Chennai had
directed payment of differences in wages to the
petitioners. There also the petitioners have not produced
any documents. The Court had drawn adverse inference
against the Respondent for not producing any documents
that were sought by the petitioners. The Respondent had
challenged the order by Writ Petition No. 1857/2000 while
allowing the writ petition and setting aside the order of
the Labour Court the High Court has observed that when
the very case of the Respondent was that the petitioners
were never engaged by the Respondent it was wrong on
the part of the Court to draw such adverse inference. The
petitioners having approached this Court claiming the
relief it was upon them to produce sufficient material to
prove that they were engaged by the Respondent and
were subsequently terminated. There cannot be an
assumption that they might have been engaged by the
Respondent. In the absence of any such material
establishing the case of the petitioners they are not entitled
to the relief of reinstatement claimed by them. They are
not entitled to any other reliefs also.
18. In view of my findings above, all the references
are answered against the petitioners. 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 23rd May, 2014)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined
For the 1st Party/Petitioners : WW1, Sri M. Chellappan
WW2, Sri V.P. Stalin
For the 2nd Party/
: MW1, Smt. M. Sunitha
Management
5352
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
Documents Marked
On the Petitioner’s side
Ex.
Date
Description
No.
Ex.W1
27.08.1996
Remarks submitted by the
Respondent before the ACL
(Central)
Ex.W2
29.11.1999
Order passed in CP No. 25 of
1995
Ex.W3
28.08.2000
Complaint filed by the
petitioners
Ex.W4
2002
Counter filed in the complaint
by Opposite Party
Ex.W5
29.11.2008
Award passed in complaints
Ex.W6
19.07.2011
Order in WP No. 6231-6237 of
2009
Ex.W7
18.12.2012
Failure Report
On the Management’s side
Ex.
Date
Description
No.
Nil
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cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;] psUubZ ds iapkV ¼lanHkZ la[;k 15/
2014½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 04@07@2014
dks izkIr gqvk FkkA
[la- ,y&12012@01@2014&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, 16th July 2014
S.O. 2053.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 15/2014)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Channai 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 04/07/2014.
[No. L-12011/01/2014-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Monday, the 21st April, 2014
Present : K. P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 15/2014
[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 State Bank of India and their
workman]
Between :
Smt. Shanthi Umapathy
: 1st Party/Petitioner
AND
The Dy. General Manager,
: 2nd Party/Respondent
State Bank of India
Industrial Finance Branch
No. 155, Anna Salai
Chennai-600002
APPEARANCE :
For the 1st Party/Petitioner :
M/s Balan Haridas,
Advocates
For the 2nd Party/
:
M/s T. S. Gopalan & Co.,
Management
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12012/01/2014-IR (B-I)
dated 03.03.2014 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the management of State
Bank of India, Industrial Finance Branch, 155, Anna
Salai, Chennai-2 in terminating the service of
Smt. Shanti Umapathy, Assistant is legal and
justified? To what relief the concerned workman is
entitled?”
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as I.D. No. 15/2014 and issued notices to
both sides. The parties have entered appearance on receipt
of notice.
3. The petitioner has filed a memo stating that she
is not intending to prosecute the matter. It is seen from the
memo that she has already filed the petition before this
Court directly, challenging the order of the Respondent
Bank terminating her from service. The said ID has been
numbered as ID 4/2014 and the same is pending before
this Court. The petitioner has stated in the memo that she
¹Hkkx II—[k.M 3(ii)º
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5353
is intending to proceed with ID 4/2014 and does not want
to proceed with this ID. So it is only proper that ID is
closed.
4. Therefore, the ID is closed. The reference is
answered accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 21st April, 2014)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Documents Marked
On the Petitioner’s side
Ex. No. Date
Description
Nil
On the Management’s side
Ex.No. Date
Description
Nil
ubZ fnYyh] 16 tqykbZ] 2014
dk-vk- 2054.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky; ua- 2] eqEcbZ ds iapkV ¼lanHkZ la[;k
43/2005½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
04@07@2014 dks izkIr gqvk FkkA
[la- ,y&12012@218@2004&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, 16th July, 2014
S.O. 2054.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 43/2005)
of the Cent. Govt. Indus.Tribunal-cum-Labour Court No.
2, Mumbai as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government
on 04/07/2014.
[No. L-12012/218/2004-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
Present : K.B. KATAKE, Presiding Officer
REFERENCE No. CGIT-2/43 of 2005
EMPLOYERS IN RELATION TO THE
MANAGEMENT OF STATE BANK OF INDIA
The Assistant General Manager (OAD),
State Bank of India
Central Office, (Office Admin. Department)
National Building Group
New Admin. Building Plot Nos. 8, 9 & 10,
Sector-11,
CBD Belapur,
Navi Mumbai 400 614.
AND
THEIR WORKMEN
State Bank of India Staff Union (Mumbai Circle)
C/o. U.P. Naik
68/86, Harkoovarbai Building
Pandit Bakhale Path
Thakurdwar Road,
Mumbai 400 002.
APPEARANCES:
FOR THE EMPLOYER
: Mr. M. G. Nadkarni,
Advocate
FOR THE WORKMEN
: M. B. Anchan,
Advocate
Mumbai, dated the 2nd April, 2014.
AWARD PART - II
The Government of India, Ministry of Labour&
Employment by its Order No.L-12012/218/2004-IR (B-I),
dated 03.01.2005 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 State
Bank of India (Office Administration Department),
CBD Belapur, Navi Mumbai in terminating the
services of Shri M.K.Nair, Sr. Assistant by way of
“Removal of Services” of the bank vide punishment
Order dated 3/7/2003 is justified, legal and in
proportion to the alleged charges of misconduct? If
not, to what relief the concerned workman is entitled
to?”
2. In the Part-I Award the preliminary issues were
decided in favour of the first party. It was held that the
inquiry was fair and proper. So also the findings of the
I.O. were found not perverse. Therefore in this Part-II
Award following are the remaining issues for my
5354
THE GAZETTE OF INDIA : JULY 19, 2014/ASADHA 28, 1936
[PART II—SEC. 3(ii)]
determination. I record my findings thereon for the reasons
to follow:
Sr.
Issues
Findings
No.
3.
Whether misconduct alleged is
proved against concerned workman?
Yes
4.
Whether punishment under challenge
is just and proportionate?
Yes
5.
Is workman entitled for any relief ?
No
6.
What order?
As per
final
order
REASONS
Issue No. 3 :
3. The Inquiry Officer on the basis of documentary
evidence and the entries in the accounts books as well as
on the basis of explanation in respect of the two cheques
deposited in the joint account of workman arrived at the
conclusion that these misconducts of opening the account
without prior authorisation from the Bank and depositing
these two cheques of Rs.7,85,000/- and Rs.6,11,250/-
respectively were proved against the workman. Except
one charge the I.O. held that the rest of the four charges
were proved. The findings of the Inquiry Officer were
based on the documents, entries in the account books as
well as non-denial of the facts by the workman. Therefore
this Tribunal while deciding issue no.2 in Part-I Award
held that findings of the I.O. are not perverse as they are
based on cogent evidence on record. The entries made in
the account books during the course of business can very
well be read in evidence as prescribed under Section 34 of
the Evidence Act as well as entries in the Bank Account
books are also read in evidence without any proof under
Banking Evidence Act. In the circumstances as findings
of the IO in respect of the two misconducts held not
perverse, I hold that the alleged misconducts are proved
against the workman concerned. Accordingly, I decide
this issue no.3 in the affirmative.
Issues Nos. 4 & 5 :
4. On the point it was submitted on behalf of the
workman that he was implicated in the case falsely. Police
have dropped the inquiry against him. CBI Officer has
also not taken any action against the second party workman
as there was no evidence against him. Therefore it is
submitted that punishment of removal from service is
shockingly disproportionate. It is further contended that
the young age and future tenure of service of the workman
also should be taken into account while awarding such a
harsh punishment.
5. In this respect I would like to point out that,
dropping of inquiry by Police and not implicating the
workman by CBI does not extend any help as workman
was found guilty by the Inquiry Officer and findings of
the I.O. in the inquiry proceedings were upheld in Part-I
Award passed by this Tribunal.
6. In respect of young age and the length of service
and previous conduct of the workman, the Ld. Adv. for
the first party submitted that the workman was found guilty
of serious misconduct. The misconduct of opening joint
account without prior authorisation and depositing stolen
cheques of huge amounts to the tune of Rs.6,11,000/- &
Rs.7,85,000/- are no doubt grave & serious misconducts
besides canvassing colleagues and others to invest money
in some other institutions. He was also charge-sheeted
for collecting amounts from colleagues and some outsiders
by giving them false promise to pay interest at a higher
rate. In this respect it was also pointed out on behalf of
the workman that Bank has not sustained any monetary
loss as both the cheques were dishonoured. In this respect
the Ld. Adv. for the first party submitted that when the
misconduct is of grave nature, the defence of no loss to
the Bank or profit to the workman is not available to the
second party workman. In support of his argument the
Ld. Adv. resorted to Apex Court ruling in State Bank of
India & Anr V/s. Bela Bagchi & Ors. 2005 (7) SCC 435
wherein in para 15 of the judgement the Hon’ble Apex
Court observed that;
“As was observed by this court in Disciplinary
Authority-cum-Regional Manager V/s Nikunja Bihari
Patnaik, it is no defence available to say that there
was no loss or profit which resulted in the case,
when the officer/employee acted without authority.
The very discipline of an organisation more
particularly a Bank is dependent upon each of its
officers and officers acting and operating within their
allotted sphere. Acting beyond one’s authority is
by itself a breach of discipline and is a misconduct.
The charges against the employee were not casual
in nature and were serious. That being so, the plea
about absence of loss is also sans substance.”
7. In this respect the Ld. Adv. for the first party
submitted that the second party workman was found
guilty for grave misconduct. The allegations against him
were that he had opened joint secret account in his and
his wife’s name and had deposited two stolen cheques of
huge amounts one more than Rs.6 lakhs and the other
more than Rs.8 lakhs and tried to misappropriate huge
amounts. According to the Ld. Adv. being employee of
the Bank, his conduct was expected of high moral standard.
In support of his argument the Ld. Adv. resorted to Apex
Court ruling in Union Bank of India V/s. Vishwa Mohan
(1998) Lab IC 2514 wherein the Hon’ble Apex Court in
respect of the quality of Bank employee in para 11 of the
judgement observed that;
¹Hkkx II—[k.M 3(ii)º
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5355
“It needs to be emphasised that in the Banking
business absolute devotion, diligence, integrity and
honesty needs to be preserved by every bank
employee and in particular the Bank officer. If this is
not observed, the confidence of the public
depositors would be impaired.”
8. The Ld. Adv. for the first party further submitted
that once the misconduct is proved, it is the discretion of
the disciplinary authority to award appropriate
punishment and the Tribunal or Court need not interfere
therein. In support of his argument Ld. Adv. resorted to
the Apex Court ruling in N. Rajarathinam V/s. State of Tamil
Nadu & Anr. (1996) 10 SCC 371 wherein the Hon’ble Court
observed that;
“Once there is a finding as regards the proof of
misconduct, what should be the nature of
punishment to be imposed is for the disciplinary
authority to consider. While making decision to
impose punishment of dismissal from service, if the
disciplinary authority had taken the totality of all
the facts keeping in view the discipline in the
service.”
9. On the same point Ld. Adv. also cited Apex Court
ruling in State Bank of Mysore V/s. M.C.Krishnappa (2011)
7 SCC 325 wherein the Hon’ble Court observed that;
“It is well settled that punishment is primarily a
function of the management and the courts rarely
interfere with the quantum of punishment.”
10. Ld. Adv. for the first party in support of his
argument also cited number of rulings. It would be
unnecessary to discuss them in detail. I am citing those
rulings which support the case of the first party. Those
rulings are:
1.
Regional Manager, Rajasthan State Road
Transport Corporation V/s. Sohan Lal 2004 (8)
SCC 218.
2.
Management of Digwadih Colliery Tata Iron and
Steel Co. Ltd. V/s. Ramji Singh 1964 (2) LLJ 143.
3.
Suresh Pathrella V/s. Oriental Bank of Commerce
2006 (10) SCC 572.
4.
Janatha Bazar South Kanara Central Co-op.
Wholesale Stores Ltd & Ors. V/s. Secretary,
Sahakari Noukarana Sangh & Ors. 2000 II LLJ
1395.
5.
State Bank of Bikaner and Jaipur V/s. Nemi Chand
Nalwaya 2011 (4) SCC 584.
6.
Ganesh Santa Ram Sirur V/s. State Bank of India
& Anr. AIR 2005 SC 314.
7.
Municipal Committee, Bahadurgarh V/s. Krishna
Behari & Ors. AIR 1996 SC 1249.
11. In the case at hand the second party workman
was found guilty for grave misconduct. He was a Bank
employee and he was expected absolute devotion,
diligence, integrity and honesty in performing his duties
as has been observed by Hon’ble Apex Court in the ruling
of Union Bank of India V/s. Vishwa Mohan. Furthermore
the workman is not fit to continue with the service of Bank
as management has lost confidence in him. In the light of
above rulings and the rulings cited by Ld. Adv. enlisted
above and considering the nature of misconduct
discussed herein above conclusion can be arrived at that
the order of punishment of removal from service cannot
be said shockingly disproportionate. Thus it needs no
interference. Hence, I decide this issue no. 4 in the
affirmative and issue no. 5 in the negative and proceed to
pass the following order:
ORDER
The reference stands rejected with no order as to
cost.
Date: 02/04/2014
K. B. KATAKE, Presiding Officer
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.