foÙk ea=kky;
(foÙkh; lsok,a foHkkx)
ubZ fnYYkh] 11 flrEcj] 2014
dk-vk- 2483-—jk"Vªh; vkokl cSad vf/fu;e] 1987
(1987 dk 53) dh /kjk 6 ds [k.M (p) }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] bl foHkkx dh 22
tqykbZ] 2012 dh lela[;d vf/lwpuk dk vf/Øe.k djrs gq,
lfpo@izèkku lfpo] fcgkj ljdkj] 'kgjh fodkl vkSj vkokl
foHkkx (muds inuke ls) dks bl vf/lwpuk dh rkjh[k ls
19 ekpZ] 2015 rd dh vof/ ds fy, jk"Vªh; vkokl cSad
,u ,p ch ds funs'kd eaMy esa funs'kd ukfer djrh gSA
[iQk- la- 24@17@2010&vkbZ,iQ&II]
mn; Hkku ¯lg] voj lfpo
3535 GI/2014
(6307)
jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05
REGD. NO. D. L. (N) 04/0007/2003—05
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 38]
ubZ fnYyh, flrEcj 14—flrEcj 20] 2014] 'kfuokj@Hkkæ 23—Hkkæ 29] 1936
No. 38]
NEW DELHI, SEPTEMBER 14—SEPTEMBER 20, 2014, SATURDAY/BHADRA 23—BHADRA 29, 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)
MINISTRY OF FINANCE
(Department of Financial Services)
New Delhi, the 11th September, 2014
S.O. 2483.—In supersession of this Department’s
Notification of even number dated July 22, 2012 and in
exercise of the powers conferred by clause (f) of Section 6
of the National Housing Bank Act, 1987 (53 of 1987), the
Central Government hereby appoints Secretary/Principal
Secretary to the Government of Bihar, Urban Development
and Housing Department (by designation) to be Director
on the Board of Directors of National Housing Bank (NHB)
for a period up to March 19, 2015 with effect from the date
of issue of this Notification.
[F. No. 24/17/2010-IF-II]
UDAI BHAN SINGH, Under Secy.
6308
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
ubZ fnYYkh] 15 flrEcj] 2014
dk-vk- 2484-—Hkkjrh; y?kq m|ksx fodkl cSad vfèkfu;e]
1989 (1989 dk 39) dh /kjk 6 dh mi&/kjk (1) ds [k.M (Ä)
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, dsUnzh; ljdkj] ,rn~}kjk]
eè; izns'k foÙk fuxe (,eih,iQlh) ds izca/ funs'kd (,eMh)
dks vf/lwpuk dh rkjh[k ls rhu o"kZ dh vof/ ds fy, vFkok
vxys vkns'k gksus rd] tks Hkh igys gks] Hkkjrh; y?kq m|ksx fodkl
cSad (flMch) ds funs'kd e.My esa va'kdkfyd xSj&ljdkjh
funs'kd fu;qDr djrh gSA
[iQk- la- 24@5@2002&vkbZ,iQ&I ([akM&IV)]
mn; Hkku ¯lg] voj lfpo
New Delhi, the 15th September, 2014
S.O. 2484.—In exercise of the powers conferred by
clause (e) of sub-section (1) of Section 6 of the Small
Industreis Development Bank of India Act, 1989 (39 of 1989),
the Central Government, hereby appoints Managing
Director (MD), Madhya Pradesh Financial Corporation
(MPFC), as part time non-official Director on the Board of
Small Industreis Development Bank of India (SIDBI) for a
period of 3 years or until further orders, whichever is earlier
with effect from the date of issue of notification.
[F. No. 24/5/2002-IF-I (Vol. IV)]
UDAI BHAN SINGH, Under Secy.
dkfeZd] yksd f'kdk;r rFkk isa'ku ea=kky;
(dkfeZd vkSj izf'k{k.k foHkkx)
ubZ fnYyh] 11 flrEcj] 2014
dk-vk-
2485-—vijkf/d izfØ;k lafgrk] 1973 (1974
dk vf/fu;e la- 2) dh /kjk 24 dh mi&/kjk (8) }kjk iznRr
'kfDr;ksa dk iz;ksx djrs gq, Hkkjr ljdkj Jh ds-ih- ¯lg] vfèkoDrk
dks lhchvkbZ ds vijkf/d ekeyk la[;k vkj-lh- 1(l)@2013@
lhchvkbZ] ,l-lh-&I] ubZ fnYyh (uUgs ;kno eMZj eqdnek)] vkj-
lh- 2 o 4(l)@2013@lhchvkbZ] ,l-lh-&1] ubZ fnYyh (Mh,lih
ft;kmy gd eMZj eqdnek)] vkj-lh- 3(l)@2012@lhchvkbZ] ,l-
lh-&I] ubZ fnYyh (lqjs'k ;kno e`R;q eqdnek) vkSj blls lacaf/r
o vkuq"kkafxd fdlh vU; ekeys esa fopkj.k ds fy, ftyk ,oa l=k
U;k;ky;] y[kuÅ] fo'ks"k U;kf;d naMkf/dkjh] y[kuÅ ,oa iz/ku
U;kf;d naMkf/dkjh fd'kksj U;k; cksMZ] y[kuÅ ds fy, fo'ks"k
yksd vfHk;kstd fu;qDr djrh gSA
¹iQk- la- 225@25@2014&,-oh-Mh-&IIº
jktho tSu] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS
(Department of Personnel and Training)
New Delhi, the 11th September, 2014
S.O. 2485.—In exercise of the powers conferred by
sub-section (8) of Section 24 of the Code of Criminal
Procedure, 1973 (Act No. 2 of 1974), the Central Government
hereby appoints Shri K. P. Singh, Advocate as Special
Public Prosecutor to conduct the trial of CBI cases (1) RC
1/2013/CBI/SIC-I/New Delhi, (2) RC 2 & 4(S)/2013/CBI/SIC-
I/New Delhi, (3) RC 3(S)/2012/CBI/SIC-I/New Delhi,
instituted by the Delhi Special Police Establishment (C.B.I.)
in the District and Sessions Judge Court at Lucknow,
Special Judicial Magistrate Court (CBI) and Principal
Magistrate Junvenile Justice Board at Lucknow and
appeals/revisions or other matters connected therewith and
incidental thereto.
[F. No. 225/25/2014-AVD-II]
RAJIV JAIN, Under Secy.
ubZ fnYyh] 16 flrEcj] 2014
dk-vk- 2486-—dsUnz ljdkj ,rn~}kjk naM izfØ;k lafgrk]
1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi&/kjk (8)
}kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, y[kuÅ fLFkr fopkj.k
U;k;ky;ksa esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v- C;wjks) }kjk
laLFkkfir ds-v- C;wjks ds ,iQvkbZlh,e ekeyksa (1) vkjlh 220
2014 bZ 0002] lhchvkbZ] bZvks;w&VI] ubZ fnYyh] (2) vkjlh
21@2012] lhchvkbZ] bZvks;w&VI] ubZ fnYyh] (3) vkjlh 09@2013]
lhchvkbZ] bZvks;w&VI] ubZ fnYyh] (4) vkjlh 09@2008] lhchvkbZ]
bZvks;w&VI] ubZ fnYyh] rFkk blls lac¼ vihyksa@iqujh{k.kksa ;k blls
lacaf/r vFkok blh laO;ogkj esa mRiUu vU; ekeyksa dk lapkyu
ds fy, Jh ds-ih- ¯lg] vfèkoDrk dks fo'ks"k yksd vfHk;kstd
fu;qDr djrh gSA
¹iQk- la- 225@20@2014&,-oh-Mh-&IIº
jktho tSu] voj lfpo
New Delhi, the 16th September, 2014
S.O. 2486.—In exercise of the powers conferred by
sub-section (8) of Section 24 of the Code of Criminal
Procedure, 1973 (Act No. 2 of 1974), the Central Government
hereby appoints Shri K. P. Singh, Advocate as Special
Public Prosecutor to conduct CBI cases of FICN (1) RC 220
2014 E 0002, CBI, EOU-VI, New Delhi, (2) RC 21/2012, CBI,
EOU-VI, New Delhi, (3) RC 09/2013, CBI, EOU-VI, New
Delhi, (4) RC 09/2008, CBI, EOU-VI, New Delhi instituted
by the Delhi Special Police Establishment (C.B.I.) in the
Trial Court at Lucknow and appeals/revisions or other
matters connected therewith and incidental thereto.
[F. No. 225/20/2014-AVD-II]
RAJIV JAIN, Under Secy.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6309
ekuo lalk/u fodkl ea=kky;
(mPprj f'k{kk foHkkx)
ubZ fnYyh] 15 flrEcj] 2014
dk-vk- 2487-—dsUnzh; ljdkj] ljdkjh LFky (vizkf/Ñr vf/Hkksfx;ksa dh csn[kyh) vf/fu;e] 1971 (1971 dk 40) dh /kjk 30
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] vkSj Hkkjr ljdkj] ekuo lalk/u fodkl ea=kky; dh fnukad 3 iQjojh] 2014 dh vf/lwpuk la[;k
dk-vk- 574 ds vf/Øe.k esa uhps nh xbZ lkj.kh ds LraHk (1) esa o£.kr vf/dkjh dks] tks ljdkj ds jktif=kr vf/dkjh dh iafDr ds
lerqY; vf/dkjh gS] ,rn~}kjk mDr vf/fu;e ds iz;kstukFkZ laink vf/dkjh fu;qDr djrh gS] vkSj mDr vf/dkjh mDr lkj.kh ds LraHk
(2) esa fofu£n"V ljdkjh LFkkuksa ds laca/ esa vius vf/dkj {ks=k dh LFkkuh; lhekvksa ds Hkhrj mDr vf/fu;e }kjk ;k mlds rgr laink
vf/dkjh dks iznÙk 'kfDr;ksa dk iz;ksx vkSj mu ij vf/jksfir drZO;ksa dk ikyu djsxk %
lkj.kh
vf/dkjh dk inuke
ljdkjh LFkkuksa ds izoxZ vkSj vf/dkfjrk dh LFkkuh; lhek,a
(1)
(2)
jftLVªkj] Hkkjrh; izkSn~;ksfxdh laLFkku] #M+dh
Hkkjrh; izkSn~;ksfxdh laLFkku] #M+dh ds] ;k mlds }kjk ;k mldh vksj ls iV~Vs
ij fy, x, ;k vf/x`ghr LFkku vkSj tks Hkkjr la?k dh HkkSxksfyd lhekvksa ds
Hkhrj dgha Hkh gks] blds iz'kklfud fu;a=k.k ds rgr gks A
¹iQk- la- 7&22@2014&Vh,l&Iº
vfuy dqekj ¯lg] voj lfpo
MINISTRY OF HUMAN RESOURCE DEVELOPMENT
(Department of Higher Education)
New Delhi, the 15th September, 2014
S.O. 2487.—In exercise of the powers conferred by Section 3 of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (40 of 1971), and in supersession of the notification of the Government of India in the Ministry of
Human Resource Development number S.O. 574, dated the 3rd February, 2004, the Central Government hereby appoints the
officer mentioned in column (1) of the Table below, being the officer equivalent to the rank of a Gazetted Officer of the
Government, to be the estate officer for the purposes of the said Act, who shall exercise the powers conferred and perform
the duties imposed on estate officer by or under the said Act within the local limits of his jurisdiction in respect of the public
premises specified in column (2) of the said Table :
TABLE
Designation of the Officer
Categories of public premises and local limits of jurisdiction
(1)
(2)
Registrar, Inidan Institute of Technology, Roorkee
Premises belonging to or taken on lease or requisitioned by, or
on behalf of the Indian Institute of Technology, Roorkee, and
which are under it’s administrative control, anywhere within the
geographical limits of the Union of India.
[F. No. 7-22/2014-TS-I]
ANIL KUMAR SINGH, Under Secy.
6310
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Ñf"k ea=kky;
(Ñf"k vuqla/ku ,oa f'k{kk foHkkx)
ubZ fnYyh] 15 flrEcj] 2014
dk-vk- 2488-—dsUnzh; ljdkj Ñf"k ea=kky;] Ñf"k
vuqlaèkku ,oa f'k{kk foHkkx] jktHkk"kk (la?k ds 'kkldh; iz;kstuksa
ds fy, iz;ksx) fu;ekoyh 1976 ds fu;e 10 ds mi&fu;e (4)
ds vuqlj.k esa jk"Vªh; vukj vuqla/ku dsUnz] Hkk-Ñ-v-i-] 'kksykiqj]
dks ftlesa 80 izfr'kr ls vf/d deZpkfj;ksa us fgUnh dk dk;Zlkèkd
Kku izkIr dj fy;k gS] ,rn~}kjk vf/lwfpr djrh gS A
¹iQk- la- 13&10@2009&¯gnh@307º
fot; ¯lg] voj lfpo
MINISTRY OF AGRICULTURE
(Department of Agricultural Research and Education)
New Delhi, the 15th September, 2014
S.O. 2488.—In pursuance of sub-Rule (4) of Rule 10
of the Offcial Language (Use for official purpose of the
Union) Rules 1976, the Central Government, Ministry of
Agriculture, Department of Agricultural Research &
Education hereby notifies the National Research Centre
on Pomegranate, Solapur where more than 80% of staff
have acquired the working knowledge of Hindi.
[F. No. 13-10/2009-Hindi/307]
VIJAY SINGH, Under Secy.
oL=k ea=kky;
ubZ fnYyh] 15 flrEcj] 2014
dk-vk- 2489-—dsUnzh; ljdkj (la?k ds 'kkldh; iz;kstuksa
ds fy, iz;ksx) jktHkk"kk fu;e] 1976 ds fu;e 10 ds mi&fu;e
(4) ds vuqlj.k esa] oL=k ea=kky; ds varxZr vkus okys fuEufyf[kr
dk;kZy;ksa dks ftlesa 80% ls vf/d deZpkfj;ksa us fgUnh dk
dk;Zlkèkd Kku izkIr dj fy;k gS] vf/lwfpr djrh gS A
1- {ks=kh; rlj vuqla/ku dsaæ] lhVhvkj ,aM VhvkbZ] dsaæh;
js'ke cksMZ] Mkd?kj&ea=khiq[kjh] bEiQky&795 002
(ef.kiqj)
2- {ks=kh; js'ke mRiknu vuqla/ku dsaæ] lh,lvkj ,aM VhvkbZ]
dsaæh; js'ke cksMZ] 7oka ekby] js'keckM+h] dfyEiksax&734
301 ftyk&nk£t¯yx (if'pe caxky)
3- {ks=kh; rlj vuqla/ku dsaæ] lhVhvkj ,aM VhvkbZ] dsaæh;
js'ke cksMZ] n~okj la- 7&1&4] ,ih,l,iQlh dkEiysDl]
ckyleqUæe guedks.Mk&506 001 ftyk&okjaxy (vkaèkz
izns'k)
4- ih&4 rlj iztuu dsaæ (n~foizt)] dsaæh; rlj vuqla/ku
,oa izf'k{k.k laLFkku] dsaæh; js'ke cksMZ] vuqeaMy
fpfdRlky; ds lkeus] esu jksM] pØ/jiqj&833 102
if'pe ¯lgHkwe (>kj[akM)
¹la- bZ- 11016@1@2011&¯gnhº
lqu;uk rksej] la;qDr lfpo
MINISTRY OF TEXTILES
New Delhi, the 15th September, 2014
S.O. 2489.—In pursuance of sub-Rule (4) of Rule 10
of the Offcial Language (Use for official purpose of the
Union) Rules 1976, the Central Government, hereby notifies
the following offices of the Ministry of Textiles, more than
80% staff whereof have acquired the working knowledge
of Hindi :
1.
Regional Tasar Research Station, CTR & TI, Central
Silk Board, Post-Mantripukhri, Imphal-795 002
(Manipur)
2.
Regional Sericultural Research Station, CSR & TI,
Central Silk Board, 7th Mile, Reshambari, Kalimpong -
734 301 District- Darjeeling (W.B.)
3.
Regional Tasar Research Station, CTR & TI, Central
Silk Board, D.No. 7-1-4, APSFC Complex,
Balasamudram, Hanamakonda-560 001 District-
Warangal (A.P.)
4.
P-4 Tasar Breeding Station (Bivoltine), Central Tasar
Research and Training Institute, Central Silk Board,
Opp. Sub-Divisional Hospital, Main Road,
Chakrdharpur-833 102 West Singhbhum (Jharkhand)
[No. E. 11016/1/2011-Hindi]
SUNAINA TOMAR, Jt. Secy.
isVªksfy;e vkSj izkÑfrd xSl ea=kky;
ubZ fnYyh] 11 flrEcj] 2014
dk-vk- 2490-—dsUnz ljdkj ljdkjh LFkku (vizkf/Ñr
vfèkHkksfx;ksa dh csn[kyh) vf/fu;e] 1971 dh /kjk 3 ds rgr
iznÙk 'kfDr;ksa dk iz;ksx djrs gq, ,rn~}kjk Jh j?kqukFk HkV~Vkpk;Z]
mi iath;d] jktho xka/h isVªkfy;e izkS|ksfxdh laLFkku tSl] jk;cjsyh
dks rRdky izHkko ls muds }kjk laLFkku ds mi iath;d ds in ij
dk;Z djrs jgus vFkok vxys vkns'k gksus rd] buesa tks Hkh igys
gks] laLFkku dk insu laink vf/dkjh fu;qDr djrh gS A
¹iQk- la- ts&25021@4@2014&lkekU;º
ih- dY;k.klqUnje] la;qDr lfpo
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6311
MINISTRY OF PETROLEUM AND NATURAL GAS
New Delhi, the 11th September, 2014
S.O. 2490.—In exercise of the powers conferred under
Section 3 of Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, the Central Government hereby
appoints Shri Raghunath Bhattacharya, Deputy Registrar,
Rajiv Gandhi Institute of Petroleum Technology, Jais, Rae
Bareli as ex-officio Estate Officer of the Institute with
immediate effect till he holds the post of Deputy Registrar
of the Institute or until further orders, whichever is earlier.
[F. No. J-25021/4/2014-Gen.]
P. KALYANASUNDARAM, Jt. Secy.
ubZ fnYyh] 15 flrEcj] 2014
dk-vk- 2491-—dsUæh; ljdkj] isVªksfy;e vkSj [kfut
ikbiykbu (Hkwfe esa mi;ksx ds vf/dkj dk vtZu) vf/fu;e]
1962 (1962 dk 50) dh /kjk 3 dh mi&/kjk (1) }kjk iznÙk
'kfDr;ksa dk iz;ksx djrs gq, Hkkjr ljdkj ds isVªksfy;e vkSj
izkÑfrd xSl ea=kky; ds Hkkjr ds jkti=k] rkjh[k 3-5-2014 izdkf'kr
vf/lwpuk la[;k dk-vk- 1202(v) rkjh[k 29-4-2014 izdkf'kr
(fgUnh Hkkx) esa fuEufyf[kr :i ls la'kks/u djrh gS] vFkkZr~ :—
i`"B la[;k 4] xkao ¶7- fl#okyS¸ ds LFkku ij ¶7-
psYyuxkSaMaiV~Vh¸ i<+k tk, A
¹iQk- la- vkj&25011@4@2014&vksvkj&Iº
iou dqekj] voj lfpo
New Delhi, the 15th September, 2014
S.O.
2491.—In exercise of the powers conferred
under Section 3 of the Petroleum and Minerals Pipelines
(Acquisition of Right of User in Land) Act, 1962 (50 of
1962), the Central Government hereby makes the following
amendments in the notification of Government of India in
the Ministry of Petroleum and Natural Gas published in the
Gazette of India No. 994 dated 30.5.2014, Part II, Section 3,
sub-section (ii) vide S.O. No. 1202(E) dated 29.4.2014 at
pages 17 to 19 namely :—
1. At page 19 in Village 7. Siruvalai, in column No. 1
(Name of the Village)
for ‘7. Siruvalai’ read. ‘7. Chellanagoundanpatti’
[F. No. R-25011/4/2014-OR-I]
PAWAN KUMAR, Under Secy.
dks;yk ea=kky;
ubZ fnYyh] 19 flrEcj] 2014
dk-vk- 2492-—dsUæh; ljdkj ljdkjh LFkku (vizkfèkÑr
vfèkHkksfx;ksa dh csn[kyh) vf/fu;e] 1971 (1971 dk 40) dh
èkkjk 3 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] Hkkjr ds jkti=k ds
Hkkx II] [akM 3] mi&[akM (ii)] rkjh[k 6 vxLr] 1994 esa izdkf'kr]
Hkkjr ljdkj ds dks;yk ea=kky; dh vf/lwpuk la[;kad dk-vk-
1858] rkjh[k 24 twu] 1994] esa fuEufyf[kr la'kks/u djrh gS]
vFkkZr~ :—
mDr vf/fu;e esa Øe la[;kad 42 vkSj blls lacaf/r
izfof"V;ksa ds i'pkr~ fuEufyf[kr Øe la[;kad vkSj izfof"V;ka
var%LFkkfir dh tk,axh] vFkkZr~ :—
vf/dkjh dk inuke
ljdkjh LFkkuksa ds izoxZ
¶43- egkizca/d (izpkyu)]
egkizca/d dk;kZy;] ektjh
osLVuZ dksyiQhYM~l fyfeVsM]
{ks=k] dqpkuk gkm¯lx dkEiysDl
ektjh {ks=k (dqpkuk)]
vkSj dqpkuk ds doknh xzke dk
rglhy % Hkækorh]
iquokZl LFky¸ A
ftyk % pUæiqj]
egkjk"Vª A
¹iQk- la- 43022@7@2013&ihvkjvkbZMCY;w&Iº
nksfefud MqaxMqax] voj lfpo
ikn fVIi.k % ewy vf/lwpuk] la[;kad dk-vk- 1858] rkjh[k
24 twu] 1994 }kjk Hkkjr ds jkti=k ds Hkkx II]
[akM 3] mi&[akM (ii)] rkjh[k 6 vxLr] 1994 esa
izdkf'kr dh xbZ Fkh A
MINISTRY OF COAL
New Delhi, the 19th September, 2014
S.O. 2492.—In exercise of the powers conferred by
Section 3 of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (40 of 1971), the Central Government
hereby makes the following amendments to the notification
of Government of India in the Ministry of Coal, published
in the Gazette of India, Part II, Section 3, sub-section (ii),
dated the 6th August, 1994, vide number S.O. 1858, dated
the 24th June, 1994, namely :—
In the said notification, after serial number 42 and
the entries relating thereto, the following serial number
and entries shall be inserted, namely :—
Designation of the officer Categories of Public Premises
“43. General Manager
General Manager Office, Majri
(Operation), Western
Area, Kuchana Housing
Coalfields Limited,
Complex and Resettlement site
Majri Area (Kuchana),
of Kawadi Village at Kuchana”.
Tehsil : Bhadrawati,
District : Chandrapur,
Maharashtra
[F. No. 43022/7/2013-PRIW-I]
DOMINIC DUNGDUNG, Under Secy.
Note : The principal notification was published in the
Gazette of India, Part II, Section 3, sub-section (ii),
vide number S.O. 1858, dated the 24th June, 1994.
6312
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Je ,oa jkstxkj ea=kky;
ubZ fnYyh] 8 flrEcj] 2014
dk-vk- 2493-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,iQ-lh-vkbZ-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
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MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 8th September, 2014
S.O.
2493.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 75/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court
No. 1, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India and their workmen, received by the Central
Government on 08-09-2014.
[No. L-22012/384/2004-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.l), DHANBAD
In the matter of a reference U/s. 10(1) (D) (2A) of I.D. Act,
1947.
Ref. No. 75 of 2005
Employers in relation to the management of Food
Corporation of India, Patna
AND
Their workmen
Present : Sri Ranjan Kumar Saran, Presiding Officer
Appearances :
For the Employers
:
None
For the Workman
:
Sri D.K.Verma Advocate
State : Bihar
Industry : Food
Dated- 18-7-2014
AWARD
By Order No.L-22012/384/2004-IR (CM-II),
dated.22/08/2005, 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 Food
Corporation of India in terminating the services of
Shri Bhopal Tiwary instead of regularizing his
service is legal and justified? If not, to what relief
the workman is entitled?”
2. The case is received from the Ministry of Labour
on 12.09.2005. After notice both parties appeared, the
workman files their written statement on 03.02.2010.
Thereafter the management files their written statement-
cum-rejoinder on 08.07.2010. Two document of the
workman marked as Ext. W-l Series and W 2 Series.
3. The short point is involved in this case is the so
called workman is entitled to regularization and
ultimately to be reinstated in job of FCI management.
4. The case of the workman is that he was engaged
as casual workman from June 1996 to 2003 and in support
of his claim he has filed the photocopy of attendance
register with seal of depot. Incharge, which is marked as
Ext. W-1 Series.
5. The workman files the unchallenged affidavit
evidence and circular of FCI management to regularize
daily wager marked as Ext. W-2 series.
6. On the contrary save and except the written
statement, the management has neither contested the case
nor adduced any evidence.
7. Moreover the workman has filed his attendance
marked as Ext. W-l which is signed by FCI Official, that
is also unchallenged, from which it is seen that he has
worked more than 240 days in a calendar year.
8. Therefore taking into the unchallenged
testimony of the workman and documents W 1 & W 2
series, and considering the facts and circumstance of this
case, I hold that the action of the management of Food
corporation of India in terminating the service of Shri
Bhopal Tiwary instead of regularizing the service is not
legal and justified, Hence It is ordered to take the
workman into service at once without giving him any
back wages.
This is my award.
R. K. SARAN, Presiding officer
ubZ fnYyh] 8 flrEcj] 2014
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ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
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6313
New Delhi, the 8th September, 2014
S.O.
2494.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.
78/2004) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court No. 2, Dhanbad as shown in the Annexure, in the
industrial dispute between the management of Food
Corporation of India and their workmen, received by the
Central Government on 08-09-2014.
[No. L-22012/315/2003-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD
PRESENT : SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section 10(1)(d)
of the I.D. Act,1947
REFERENCE NO. 78 OF 2004.
PARTIES :
Shri Vinod Kumar,
Addl.State Secretary, FCI C/o FCI,
Exhibition Road, Patna.1
Vs.
Sr. Regional Manager,
Food Corporation of India Ltd.,
Exhibition Road, Patna.1
Ministry’s Order No L-22012/315/2003-IR (CM-II)
dt.30.06.2004.
APPEARANCES :
On behalf of the
:
Mr.Vijayendra Kumar,
workman/Union
Workmen Representative
On behalf of
:
Mr. Debashish, Management
the Management
Representative
State : Bihar
Industry : Food & Pub. Distribution
Dated, Dhanbad, the 23rd July, 2014
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under
Sec.10(1)(d) of the I.D. Act,1947 has referred the
following dispute to this Tribunal for adjudication vide
their Order No. L-22012/315/2003-IR (CM-II) dt.
30.06.2004.
SCHEDULE
“Whether the action of the Management of Food
Corporation of India, Patna in not regularizing the
services of Sri Nand Lal Gupta and Pawan Kumar
Ram as Class IV in terms of Head Quarter Circular
dt.6.5.1987 is legal and justified? If not, to what relief
the workmen are entitled to?”
On receipt of the Order No. L-22012/315/2003-IR(CM-
II) dt.30.06.2004.of the above mentioned reference from
the Government of India, Ministry of Labour &
Employment, New Delhi for adjudication of the dispute,
the Reference Case No. 78-2004 was registered on
19.07.2004 and accordingly an order to that effect was
passed to issue notices through the Registered Posts to
the parties concerned, directing them to appear in the Court
on the date fixed, and to file their written statements along
with the relevant documents. In pursuance of the said
order, notices by the Registered Posts were sent to the
parties concerned.
Both the parties made their appearances and filed
their pleadings and photocopies of their documents. The
Union and the O.P./Management through their
Representatives and contested the case, respectively
2. The case of the sponsoring FCI Executive Staff
Union State Committee, Bihar, for two workmen Nand Lal
Gupta and Pawan Kumar Ram, is that both of them were
employed as casual Class IV workmen under the
Management of F.C.I., Bhagalpur w.e.f. 18.11.1982 and
19.1.1986 respectively. They were discharging their duty
identical to that of the Watchman and the Messenger.
When they demanded for their regularization in Category-
IV employees after considerable period, they were illegally
stopped from attending their job w.e.f. 14.4.88 & 20.1.1988
without any notice or pay and compensation notices under
Sec.25 F of the I.D.Act 1947.During 1988-89,the services
of large number of casual employees/Labour/Daily wage
workers were regularized against the Cat.IV post mostly
as Watchman as per the circular dt.6.5.1987 issued by the
FCI Head Quarter, following the matter raised by the Union
for regularization of more than 1000 casual employees
working in the different depot/offices of the F.C.I. all over
the Country. But the case of these workmen concerned
was not considered, and on their demand for
regularization, the Management instead illegally stopped
them from attending their job w.e.f. 14.4.1988 and 20.01.88
respectively without compliance with the mandatory
provision U/s 25 F of the I.D. Act, 1947, as their stoppage
from attending their job amounts to retrenchment.
On raising he industrial disputes, the Ref.Nos.34/
1991 and 91/91 of workmen Nand Lal Gupta and Pawan
Kumar Ram were referred to the CGIT No.1, Dhanbad, and
accordingly as per the Awards dt. 22.11.1995 and 7.1.1993,
6314
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
the actions of the Management in terminating the services
of the casual workers were held unjustified, directing the
Management to reinstate them and to pay them back
wages, observing “The Management may consider his
regularization in accordance with the rules of the Company’’
and “the Management should consider his claim for
regularization in service as Class- IV employees as and
when vacancy in such arise”, respectively. As per the
awards, they were though reinstated in their job, yet
without considering the aforesaid observations of the
Tribunal concerned whereas the services of their co-
workers were regularized in the terms of the H.Qr’s Circular
dt.6.5.1987, as huge vacancies were available as till date.
The action of the Management in not regularizing
their services is quite illegal and justified. The workmen
have been still discharging their duties as Category IV
employees; they are entitled to their reinstatement,
regularization with wages and other benefits thereof w.e.f.
their dates of retrenchment.
3. In their rejoinder by Mr.V.Kumar,the Regional
Secretary of the Union on their behalf, categorically
denying all the allegations of the O.P./Management, it has
been alleged that as per already amended Sec.22 of the
Trade Union Act, even a retired person like him is
competent is hold the office of Trade Union, and to
represent the workmen. The Management has decided a
policy matter to regularize the casual employees and as
per the said circular, a casual employee who has worked
for 90 days on before 2.5.1986 shall be regularized against
category III & IV post according, to their qualifications.
Both the workmen have fulfilled all the conditions of the
said circular, so they are entitled to their regularization in
Cat.-IV post. They are working casual Cat.IV employee at
FSD.FCI, Jamuai and are being paid by the DM, FCI,
Bhagalpur, and the competent Authority to appoint Cat.IV
Staff. There are huge vacancies against Cat. IV post in
Bihar Region. So they are entitled to regularization in view
of their long services.
4. Whereas categorically denying the allegations
of the Union/workmen, the O.P./Management has filed their
written statements under two parts - A and B as preliminary
issue over the maintainability of the reference, and the
statements on merits respectively.
The workmen had earlier raised the dispute before
the CGIT and its award has also been implemented, soon
thereafter the workmen have got the reference made before
the Tribunal in entirely unjustified manner illegally through
one V.Kumar illegally representing himself as the Secretary
of FCI Executive Staff Union, but he is not so de facto
dejure, because he was not an employee of FCI under
Sec.36 of the I.D.Act to rerpresent, nor could be a member
of office bearer of the said union.
5. The Management of the F.C.I has been along
established u/s 3 of the Food Corporation Act 1964, and is
fully owned and controlled by the Central Government. It
has its recruitment rules for employment of any staff
against the vacancy posts sanctioned by the authorized
persons; and for it, the conditions are required to apply
for it through the Employment Exchange concerned. After
undergoing the prescribed tests conducted by the
Committee of the authorized persons for it, only successful
candidate is given an appointment letter containing terms
and conditions of service as per an office order of the
Competent Authorities in the F.C.I. None of both persons
Nand Lal Gupta and Pawan Kumar Ram has been selected
as per the prescribed procedure for any sanction post. So
the question of the employment stands completely ruled
out. They were casual employees under a contractor, so
they could never be called as the employees of the F.C.I.
at any materials times. Hence the question of their alleged
termination is totally concocted. The workmen have
nowhere stated, the post of their appointment, their
designation, the nature of their duties, their wages by
whom to be paid. Both the workmen have no work at all
in the FCI, and have been sitting idle, and time to time
payment of any salary/wages is entirely wastage of the
F.C.I. financial rersources.They are not entitled to
regularization or any relief in view of the prevalent facts
and circumstances, as none of the workmen fulfills the
conditions and criteria of the circular dt.6.5.1987 which
does not confer on any of third persons any right for it.
Due to the Award passed by the CGIT No.1, Dhanbad, in
the previous Reference Case No.34/ 1991, the present
reference is barred by the principles of estoppel and Res
Judicata.
FINDING WITH REASONS
6. In the instant reference, the Complaint
Application No.20/2006 under Sec.33 of the I.D.Act,
1947 was filed by Mr.Ashok Kr.Verma, the G.M. (R),
FCI, Patna on 28.03.2006 against both the workmen for
permission to terminate their services with immediate
effect by way of discharge. Though Mr.V.Kumar, the
Representative of the workmen appeared only on
30.07.2012, no written objection filed on behalf of the
workmen till date. So it could not be deposed of”.
Meanwhile, the Union Representative for the workmen
and the O.P./Management prefer to contest the I.D. At
full trial, the WWI Pawan Kumar Ram,WW2 Nand Lal
Gupta,both workmen, and WW3 Vijayendra Kumar , the
Zonal Secretary of FCI,for Exec.Staff Union,Patna,and
MWI Quazi Md.Imran,the A.G.I.(M),for the O.P./
Management have been respectively examined.
On perusal of the pleadings, evidences, oral and
documentary, of the workmen, and the OP/Management,
it appears incontroversial that both the workmen Nand
Lal Gupta and Pawan Kumar Ram were undoubtedly
casual daily wagers. But in view of the facts of both the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6315
parties at variance with each other, the main question
evolves from the terms of the reference under adjudication:
‘Whether both the workmen are entitled to
regularization in their services as Class IV in the
terms of the Head Quarter Circular dt.6.5.1987 or
whether any of both the workmen had worked as
casual/daily rated workers for more than 3 months,
i.e., 90 days on or before the cut-off date of 2.5.1986
as per the said Circular.’
Mr.Vijayendra Kumar, the Learned Union
Representative for both the workmen has submitted as
per his written argument as well that both workmen Nand
Lal Gupta and Pawan Kumar Ram were reinstated in their
services of the FCI, Bhagalpur Branch with their back wages
w.e.f. 14.4.1988 and 21.1.1988 of their terminations as per
their own Awards dt. 27.1.1995 and 07.01.1993 passed by
the CGIT No.1, Dhanbad, in their respective Reference
Nos.34/1991 and 91 /1991 respectively, with the
observation of the Tribunal concerned in the latter Award
in respect of latter workman: “…The Management should
consider his claim for regularization in services as class
IV employees and as and when vacancy in such post
arises” as also observed by the Hon’ble Patna High Court
(Ranchi Bench) as per the order dt. 5.4.1994 in the CWJC
No.174/1994 - “If any post of watchman is still found vacant
in the Corporation, the petitioner shall be given preference
over others,” which has not been carried out despite the
vacancies existing still as per the photo copies sanctioned/
existed/vacancy (Extt.W.5 & 5/1 with objections); hence
the present Reference has been brought by both the
workmen for their regularization in their service as class IV
in terms of H.Qr. Circular dt.6.5.1987 (Ext.W.3 & 3/1)
according to which about 100 similarly situated other
workmen even junior to these both workmen have been
regularized, though both the workmen have fulfilled the
requisite conditions of the said circular. In support of his
argument ,the Union Representative for both the workmen
has filed the photocopy of the Judgment dt. Feb.17, 2014
of the Hon’ble Supreme Court passed in the Civil Appeal
Nos.2417, 2418/2014 (arising out of S.L.P. (Civil) Nos. 29634,
29635/2008), Hari Nandan Prasad & Ans. (Govind
Kr.Choudhary) Vs. Employer I/R to the Management of
FCI & Ans.underlying the contents of its paras 36, 37 & 38
that “… other has been given benefits of circular
dt.6.5.1987, then the workmen are also entitled to get the
same benefits of regularization as provided under the said
circular. The Hon’ble Apex Court has also held that there
should not be any discrimination, if there is discrimination
and unfair labour practice, then it is within the power of
the IT (Industrial Tribunal) to award regularization of
service, “as such both the workmen legally entitled to
regularization in their services as class IV in accordance
with the said H.Qr. circular.
7. Whereas just contrary to it, Mr. Debashish, the
Manager as the Representative for the O.P./Management
likewise as per his written argument as well has contended
that both the persons concerned were indisputably daily
wager/casual workers, but they were never appointed as
per the Recruitment Policy/Rules of the FCI Management,
which is the statutory body fully owned, controlled and
carried on by the Central Government, nor any of them
has ever accordingly completed 240 days in a calendar
year, so none of the workmen had any right vested to seek
regularization as a matter of right as his casual engagement.
Further, It has been emphatically contended by
Mr.Debashish, the Representative for the O.P./
Management that both the workmen were working as
casual labourer purely on casual basis, following their
accordingly re-instatement as earlier by virtue of their
awards concerned , but they have not fulfilled any of the
criteria for their recruitment to any post in the Government
Organization or Undertaking as held by the Hon’ble
Supreme Court in the famous case of Uma Devi reported in
2006 (4) SCC as also affirmed in the case of the Official
Liquidator reported in 2008 (1) SCC.
8. On perusal and consideration of the materials
available on the case record, I find the facts as under:
(i) Both the workmen have based the H.Qr.Circular
dt.6.5.1987 as referred in the Schedule to the
Reference as well as the Circular No.38/1996
dt.09.09.1996 (Extt.W.3 and 3/1 respectively) for
their regularization as Class IV.The former circular
relates to the relaxation of the ban as per the
previous two circular Nos.33/1980 & 28/1986 over
the recruitment for filling in any entry level Cat.III
& IV posts for considering casual/daily rated
employees completing three months periods on
2.5.1986, the date of imposing the ban on such
engagement. It also negatively bears the
instruction not applicable to such casual
employees not fulfilling the aforesaid requisite
qualification.
(ii) Whereas the latter circular also emphasizes the
approval of the Authority for the regularization
of services of genuine workers left over who could
not be considered earlier for their regularization
on the aforesaid cut-off date of 2.5.1986 who had
fulfilled the conditions as per the confidential
letter dt.6.5.1987 (the former circular ).The
statement of Nand Lal Gupta (WW2) reveals his
engagement as a casual labour by the F.C.I.,
Bhagalpur on 18.11.1982 and since then he
worked till 14.4.1998,the date of his removal from
the service, whereas the statement of another
workman Pawan Kumar Ram (WWI) points out
his engagement as a casual labour at FCI, Jassidih
6316
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
for more than 100 days from 1.1.1986 to 2.5.1986,
but the photocopy of the Dy.Manager’s letter
dt.19.6.1996 to the Joint Manager (RI) Staff, FCI,
H.Qr., New Delhi in respect of CWJC No.174/94
filed by Pawn Kumar Ram as a casual labour
(Ext.W.4 with objection) reveals his engagement
as a casual labour at FSD, Jassidih, Bhagalpur on
19.4.1986 which makes his case vague. None of
the workmen has any documentary proof of his
working as casual for 90 days on 2.5.1986, the
cut-off date as per the relevant circular.
9. Under the circumstances, I come to the
conclusion that none of the workmen has clearly proved
their own cases nor that others similarly situated workers
have been regularized by the employer under the same
scheme, nor anything like any unfair labour practice
towards the workmen on their behalf. It is the settled law
of the Land that since such a workman was working on
daily wage basis and even after he is reinstated, he has no
right to seek regularization, and also that the Industrial
adjudicator would be achieving the equality by upholding
Article 14 of the Indian Constitution, rather than violating
this Constitution provision as held by the Hon’ble Apex
Court in the renowned Uma Devi Case reported in (2006)4
SCC1. In the backdrop of the present case, the argument
of Vijayendra Kumar, the Union representative for the
workmen, appears to be quite hallow and baseless.
Hence it is hereby, in the in terms of the reference,
responded and held that the action of the Management of
Food Corporation of India Ltd.,Patna in not regularizing
the services of Shri Nand Lal Gupta and Pawan Kumar
Ram as Class -IV in the terms of H.Qr. circular dt.6.5.1987
is quite legal and justified. So the workmen are not entitled
to regularization as Class IV in the services of the FCI
concerned.
KISHORI RAM, Presiding Officer
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New Delhi, the 8th September, 2014
S.O.
2495.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 32/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Asansol as shown in the Annexure, in the industrial
dispute between the management of M/s. Eastern
Coalfields Limited and their workmen, received by the
Central Government on 08-09-2014.
[No. L-22012/105/2004-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT:
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 32 OF 2005
PARTIES:
The management of Parasea Open Cast Project,
Kunustoria Area of M/s. ECL
Vs.
Shri Dilip Kumar Mondal
REPRESENTATIVES:
For the management
: Sri P. K. Goswami,
Ld. Advocate
For the union (Workman) : None
Industry : Coal
State : West Bengal
Dated 06.08.14
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its Order No.
L-22012/105/2004/IR(CM-II) dated 11.05.2005 has been
pleased to refer the following dispute for adjudication by
this Tribunal.
SCHEDULE
“Whether the action of the management of Parasea
Open Cast Project under Kunustoria Area of
M/s. E.C.Ltd. in determining the age/date of birth
made through Apex Medical Board as 42 and half
years as on 27.8.1992 i.e. date of birth as 27.02.1950
in respect of Shri Dilip Kumar Mondal is correct and
justified? If not, to what relief an individual is
entitled?”
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6317
Having received the Order of Letter No. L-22012/
105/2004/IR(CM-II) dated 11.05.2005 of the above said
reference from the Govt. of India, Ministry of Labour,
New Delhi for adjudication of the dispute, a Reference
Case No. 32 of 2005 was registered on 31.05.2005 and
accordingly an order to that effect was passed to issue
notices through the registered post to the parties
concerned directing them to appear in the court on the
date fixed and to file their written statements along with
the relevant documents and a list of witnesses in support
of their claims. In pursuance of the said order notices by
the registered post were sent to the parties concerned.
On perusal of the record I find that my predecessor
(Late Jayanta Kumar Sen, the then P.O.) had reserved
an award in this case because the union / workman neither
appearing nor taking any step since 15.07.2005 despite
registered notices. Several adjournments were granted
but to no effect. So it is apparent that the workman is not
at all interested to proceed with the case further. As such
the case is closed and accordingly a ‘No Dispute Award’
may be passed.
ORDER
Let an “Award” be and the same is passed as “No
Dispute” existing. Send the copies of the order to the
Govt. of India, Ministry of Labour, New Delhi for needful
information. The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
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New Delhi, the 8th September, 2014
S.O.
2496.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 05/2004)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Asansol as shown in the Annexure, in the industrial
dispute between the management of M/s. Eastern
Coalfields Limited and their workmen, received by the
Central Government on 08-09-2014.
[No. L-22012/16/2003-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT:
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE No. 05 OF 2004
PARTIES:
The management of Lacchipur Colliery,
Kajora Area of M/s. ECL
Vs.
Sri Motilal Majhi
REPRESENTATIVES:
For the management
: Sri P. K. Goswami,
Ld. Advocate
For the union (Workman) : None
Industry : Coal
State : West Bengal
Dated : 06.08.14
AWARD
In exercise of powers conferred by clause (d) of
Sub-section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its Order No.
L-22012/16/2003-IR(CM-II) dated 19.01.2004 has been
pleased to refer the following dispute for adjudication by
this Tribunal.
SCHEDULE
“Whether the action of the management of
Lacchipur Colliery, Kajora Area of M/s. ECL in
dismissing Shri Motilal Majhi, U.G. Trammer from
the service is legal and justified? If not, to what
relief the said workman is entitled?”
Having received the Order of Letter No. L-22012/16/
2003-IR(CM-II) dated 19.01.2004 of the above said
reference from the Govt. of India, Ministry of Labour, New
Delhi for adjudication of the dispute, a Reference Case
No. 05 of 2004 was registered on 04.02.2004 and
accordingly an order to that effect was passed to issue
notices through the registered post to the parties
concerned directing them to appear in the court on the
date fixed and to file their written statements along with
the relevant documents and a list of witnesses in support
of their claims. In pursuance of the said order notices by
the registered post were sent to the parties concerned.
On perusal of the record I find that my predecessor
(Late Jayanta Kumar Sen, the then P.O.) had reserved an
award in this case because the workman is neither
appearing nor taking any step after 10.09.2009. Several
opportunities were granted but to no effect. It seems that
the workman is no more interested to proceed with the
6318
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
case further. As such the case is closed and accordingly a
‘No Dispute Award’ may be passed.
ORDER
Let an “Award” be and the same is passed as “No
Dispute” existing. Send the copies of the order to the
Govt. of India, Ministry of Labour, New Delhi for needful
information. The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 8 flrEcj] 2014
dk-vk- 2497-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,iQ-lh-vkbZ-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k
70@2001) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 08&09&2014
dks izkIr gqvk FkkA
¹la- ,y&22012@167@2000&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 8th September, 2014
S.O.
2497.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 70/2001)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
1, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India and their workmen, received by the Central
Government on 08-09-2014.
[No. L-22012/167/2000-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.1), DHANBAD
IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT, 1947
Ref. No. 70 of 2001
Employers in relation to the management of Food Corp.
of India, Patna
AND
Their workmen
Present :
Sri Ranjan Kumar Saran, Presiding officer
Appearances:
For the Employers
:
Sri U.N. Lall, Advocate
For the workman
:
Sri S.N. Goswami, Advocate
State : Bihar
Industry : Food
Dated : 21/8/2014
AWARD
By Order No.L-22012/167/2000-IR(C-II), dated
08/03/2001, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section (2A) of Section 10
of the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal :
SCHEDULE
“Whether Shri Dasrath Prasad has worked for more
than 240 days with the management of FCI since 2nd
March 1998 to 28th April 1999? If so, whether the
action of the management of FCI in terminating the
service w.e.f. 29.04.1999 is legal & justified? If not,
to what relief the workman is entitled to?”
2. The case is received from the Ministry of Labour
& Employment on 03.04.2001. After notice, both parties
appeared, the concerned workman files their written
statement on 18.01.2002. After that the management files
written statement-cum-rejoinder on 14.06.2002. Thereafter
rejoinder and document filed by the parties. Two witnesses
examined on behalf of the workman but one witness
examined on behalf of the management. Document marked
by both side as W-1 to W-7 by the workman and M-1 to
M-14 by the management.
3. The short point to be decided in this reference
case that as to whether the concerned workman worked
under the FCI management from 02.08.1998 to 28.04.1999
or not. From the document filed by the workman, there is
no scent that the workman ever worked under the FCI for
a single day.
4. Documents available to the effect that the
workman applied for the post but could not be selected
for the post. But the workman being physically
handicapped candidate so his name was recommended
for the post to be appointed, which was not approved by
the head office.
5. Mere recommendation for the post does not
create any right for absorption in the post, The documents
filed by the workman does not prove that he was working
in the FCI, as temporary or casual workmen.
6. Considering the facts and circumstance of this
case, I hold that the action of the management of FCI in
terminating the service of Sri Dasrath prasad w.e.f
29.04.1999 is legal & justified. Accordingly his claim is
refused and he is not entitled to get any relief.
This is my award.
R.K. SARAN, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6319
ubZ fnYyh] 8 flrEcj] 2014
dk-vk- 2498-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZ-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa
fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la[;k 12@2008) dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 08&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22012@10@2008&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 8th September, 2014
S.O.
2498.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 12/2008)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Asansol as shown in the Annexure, in the industrial
dispute between the management of M/s. Eastern
Coalfields Limited and their workmen, received by the
Central Government on 08-09-2014.
[No. L-22012/10/2008-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT :
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 12 OF 2008
PARTIES :
The management of Chinakury Mine No. 1 of M/s. ECL
Vs.
Sri Swapan Bouri
REPRESENTATIVES :
For the management
: Sri P. K. Das, Ld. Advocate
For the union
: Sri Rakesh Kumar General
(Workman)
Secretary of K.M.C.
Industry : Coal
State : West Bengal
Dated 04.08.14
AWARD
In exercise of powers conferred by clause (d) of
Sub-section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947 (14 of 1947), Govt. of India
through the Ministry of Labour vide its Order No. L-
22012/10/2008-IR(CM-II) dated 11.03.2008 has been
pleased to refer the following dispute for adjudication by
this Tribunal.
SCHEDULE
“Whether the action of the management of Chinakury
Mine No. 1 of M/s. ECL in dismissing Shri Swapan
Bouri w.e.f. 03.08.2006 is legal and justified? If not,
to what relief is the workman entitled?”
Having received the Order of Letter No. L-22012/10/
2008/IR(CM-II) dated 11.03.2008 of the above said
reference from the Govt. of India, Ministry of Labour, New
Delhi for adjudication of the dispute, a reference case No.
12 of 2008 was registered on 17.03.2008 and accordingly
an order to that effect was passed to issue notices through
the registered post to the parties concerned directing them
to appear in the court on the date fixed and to file their
written statements along with the relevant documents and
a list of witnesses in support of their claims. In pursuance
of the said order notices by the registered post were sent
to the parties concerned.
Sri Rakesh Kumar, General Secretary of the union
appears and submits that the case may be closed as the
workman has already been reinstated in service. Sri P. K.
Das, Ld. Advocate, who appears on behalf of the
management also admits the fact. Since the workman has
been reinstated in service the case is closed. As such the
case is closed and accordingly an order of “No Dispute”
award is hereby passed.
ORDER
Let an “Award” be and the same is passed as “No
Dispute” existing. Send the copies of the order to the
Govt. of India, Ministry of Labour, New Delhi for needful
information. The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 8 flrEcj] 2014
dk-vk- 2499-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZ-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la[;k 86@2007) dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 08&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22012@254@2007&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 8th September, 2014
S.O.
2499.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 86/2007)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Asansol as shown in the Annexure, in the industrial
dispute between the management of M/s. Eastern
6320
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Coalfields Limited and their workmen, received by the
Central Government on 08-09-2014.
[No. L-22012/254/2007-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT:
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE No. 86 OF 2007
PARTIES:
The management of J.K.Nagar Colliery of M/s. ECL,
Burdwan.
Vs.
Sri Sarju Bhuiya
REPRESENTATIVES:
For the management
:
Shri P. K. Goswami,
Ld. Advocate
For the union (Workman) :
Shri S. K. Pandey,
Ld. Representative
Industry : Coal
State : West Bengal
Dated : 01.08.2014
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its Order No. L-
22012/254/2007-IR(CM-II) dated 25.10.2007 has been
pleased to refer the following dispute for adjudication by
this Tribunal.
SCHEDULE
“Whether the action of the management of M/s.
ECL in dismissing Sarju Bhuiya w.e.f. 05.09.2005
is legal and justified? If not, to what relief is the
workman entitled?”
Having received the Order of Letter No. L-22012/
254/2007-IR(CM-II) dated 25.10.2007 of the above said
reference from the Govt. of India, Ministry of Labour,
New Delhi for adjudication of the dispute, a reference
case No. 86 of 2007 was registered on 17.08.05 and
accordingly an order to that effect was passed to issue
notices through the registered post to the parties
concerned directing them to appear in the court on the
date fixed and to file their written statements along with
the relevant documents and a list of witnesses in support
of their claims. In pursuance of the said order notices by
the registered post were sent to the parties concerned.
Sri S. K. Pandey, representative of the workman
appears before the court and submits that the case may be
closed and an award may be passed accordingly as the
workman has already been reinstated in service through
an amicable settlement arrived between the management
and the workman, Sri Sarju Bhuiya. On perusal of case
record I find that office of the General Manager, Satgram
Area, ECL, vide their letter No. Ref.No.SAT/PER/Re-
instatement/2014/207 dated 28.05.2014 has intimated
this office that the workman Sri Sarju Bhuiya has been
declared medically fit and will be reinstated very soon as
a settlement has been arrived between the concerned
workman and the management of Satgram Area on
06.05.2014.
Considering the above facts, the case is closed and
accordingly it is awarded that the case has been settled
as per form ‘H’ memorandum of settlement between both
the parties as an integral part of it. The terms and
conditions of the settlement shall be binding upon both
the parties. Hence, it is ordered
ORDER
Let an “Award” be and the same is passed as per
above discussion. Form ‘H’ containing terms and
conditions does form as an integral part of the Award.
Send the copies of the award to the Govt. of India,
Ministry of Labour & Employment, New Delhi for
information and needful. The reference is accordingly
disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 8 flrEcj] 2014
dk-vk- 2500-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,iQ-lh-vkbZ-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k
309@2013) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 08&09&2014
dks izkIr gqvk FkkA
¹la- ,y&22011@9@2013&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 8th September, 2014
S.O.
2500.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 309/
2013) of the Cent. Govt. Indus. Tribunal-cum-Labour Court
No. 2, Chandigarh as shown in the Annexure, in the
industrial dispute between the management of FCI,
Regional Office (Punjab) and their workmen, received by
the Central Government on 08-09-2014.
[No. L-22011/9/2013-IR (CM-II)]
B. M. PATNAIK, Desk Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6321
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present:
Sri Kewal Krishan, Presiding Officer
Case No. I.D. No. 309/2013
Registered on 7.1.2014
The General Secretary,
Food Corporation of India,
Handling Workers’ Union,
8651, Arakashan Road, Pahar Ganj,
New Delhi-110055
... Petitioner
Versus
The General Manager (Punjab),
FCI, Regional Office (Punjab),
Sector 31, Chandigarh
...Respondents
APPEARANCES
For the workman
:
Ex parte.
For the Management :
Sh. N. K. Zakhmi, Adv.
AWARD
Passed on 11.7.2014
Central Government vide Notification No. L-22011/
9/2013-(IR(CM-II)) Dated 9.12.2013, 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 FCI in
introducing FAP system for DPS labours and not
deducting CPF on OTA wages as alleged by the
union is just, valid and legal? If not, to what other
benefits to the workers entitled for and what
directions are necessary in the matter?”
On receipt of the reference, notice was given to the
workman-Union through registered cover and none
appeared on its behalf and ex parte proceedings were
taken vide order dated 5.5.2014. Since the workman-
Union was proceeded against ex parte, no statement of
claim has been filed to show that the workman-Union is
entitled for the relief claimed by it in the reference.
In result, the reference is answered against the
workman-Union holding that it is not entitled to any
relief.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 8 flrEcj] 2014
dk-vk- 2501-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 99@2005)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 08&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@50@2005&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 8th September, 2014
S.O.
2501.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 99/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Wani North Area of
WCL, Ukani Sub-Area of Wani North Area and their
workmen, received by the Central Government on
08-09-2014.
[No. L-22012/50/2005-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT,
NAGPUR
Case No. CGIT/NGP/99/2005
Date: 25.08.2014
Party No.1 (a)
:
The Chief General Manager,
Wani North Area of WCL,
Tahasil Wani, Distt. Yavatmal
Maharashtra
(b) :
The Sub Area Manager,
Ukani Sub Area of Wani North
Area, Tahasil Wani,
Distt. Yavatmal (MS).
V/s.
Party No. 2
:
Shri Bhalchandra Wararkar
R/o. Near Municipal Council
Primary School No. 4,
Tah. Wani, Distt. Yavatmal,
Maharashtra.
AWARD
(Dated: 25th August, 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
6322
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
management of Wani North Area of WCL and their
workman, Shri Bhalchandra Wararkar, for adjudication, as
per letter No.L-22012/50/2005-IR (CM-II) dated 15.12.2005,
with the following Schedule:-
“Whether the action of the management in relation
to Ukani Sub Area, Wani North Area of WCL, Distt.
Yavatmal in terminating the services of Shri
Bhalchandra S/o. Manoharrao Wararkar vide order
No. Vekoli/Vanashe/Uushe/Uushepra /04/174 dated
10/14.02.2004 is legal and justified? If not, to what
relief is the workman entitled?”
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the workman Shri
Bhalchandra M. Wararkar, (“the workman” in short) filed
the statement of claim and the management of WCL,
(“party No. 1” in short) filed the written statement.
The case of the workman as presented in the
statement of claim is that he was initially appointed by the
party No. 1 on 14.04.1993 as a general mazdoor and posted
at Area workshop, Majri Area on the ground of
rehabilitation, as the lands of his mother were acquired by
party No. 1 and on account of his good work, he was
promoted to the post of clerk grade-III, by order dated
18.01.1996 and worked as such till 08.12.1997 and he was
again promoted as clerk-grade II and posted to the
accounts department and continued till 05.04.2001 and
w.e.f. 06.04.2001, he was promoted as clerk grade-I and
posted at Kolarpimpri Open Cast Project and continued
their till 17.08.2002 and on 19.08.2002, he was transferred
to Ukani Sub-Area, in the same post and his entire service
record was clean and unblemished.
It is further pleaded by the workman that the Group
Account Office made a report to the Sub Area Manager,
Kolarpimpri Sub Area that while accounting the bank
reconciliation, it was noticed that self cheque bearing
No. 43742 dated 11.05.2002 was issued and encashed, but
the same was not accounted either in the cash book or in
the bank book and on receipt of the report, the Sub Area
Manager, Kolarpimpri Sub Area called him and Mr. P.G,
Baid, the Finance Manager for preliminary enquiry on
12.10.2002 and shri P.G. Baid submitted his statement on
12.10.2002 and directed him to sign on three to four plain
blank papers and accordingly, he signed on 3-4 blank
papers on 12.10.2002, under pressure to avoid
disobedience of immediate controlling officer, the Finance
Manager and Sub Area Manager, Kolarpimpri reported
the matter in the police station, Wani, alleging that he
(workman) had misappropriated the fund of WCL on
11.05.2002, suppressing the material facts that Finance
Manager, Shri P.G. Baid had asked him to encash the cheque
of Rs. 30,000/- from Central Bank and accordingly, he had
encashed the cheque and handed over the amount to
Shri P.G. Baid, who had misappropriated the said amount
and at the relevant time, the regular cashier, Shri Wanikar
was not present and he was performing the duties in place
of the regular cashier and Police registered a criminal case
against him, vide Crime no. 53/2002. for the offence of
Criminal Breach of Trust and the said criminal case is
pending for final decision.
It is also pleaded by the workman that party No. 1
issued the charge sheet dated 18.10.2002, under clause
26.1 of the Standing Order, on the allegations of committing
fraud, theft or dishonesty in connection with the
employer’s business or property and it was further alleged
that he was authorized to withdraw an amount of Rs. 30,000/
- by cheque No. 43274 dated 11.05.2002 of Central Bank of
India, Wani and the sais amount was not shown in the
cash book as well as in Bank book of Kolarpimpri project
and he denied the charges levelled against him in his reply
dated 22.10.2002 and the statement and explanation were
given on 12.10.2002 under the influence and pressure of
shri Baid and the factual position is that Rs. 30,000/- was
withdrawn from Central Bank on 11.05.2002 by the order
of Shri Baid and Shri Baid asked him to handover the said
amount and accordingly, he handed over the said amount
of Rs. 30,000/- to Shri Milind Wanikar in presence of
Shri Balu Abhiman Raut and he (workman) deposited the
amount in the Bank on14.10.2002 on the pressure and order
of Shri Baid and thus the charges were not based on the
factual position and the charges were false and baseless
and in spite of the same, the departmental enquiry was
conducted against him and he requested the enquiry officer
to allow him to engage an advocate for his defence, as he
was not well versed with the legal position, but the enquiry
officer rejected his request and thus, there was violation
of the principles of natural justice and he had also
requested the enquiry officer for examination of shri Baid,
Shri Milind Wanikar and Shri Madan, who were involved
in the controversy, as his witnesses, to bring the truth on
record, but his request was rejected by the enquiry officer
and he was not allowed the opportunity to cross-examine
the management witness and there was violation of the
principles of natural justice and he was condemned
unheard and during the enquiry, the enquiry officer put
several questions tactfully to prove the charges and he
was told that nothing would be happened to him in case
of his co-operating with the enquiry and of his having no
need to engage a coworker and thus, the enquiry
conducted against him is unfair and due to non-examination
of Shri Baid and Shri Milind Wanikar as witnesses, the
charges as alleged could not have been held to be proved
conclusively and the enquiry officer did not consider the
affidavit of Shri Balu Abhiman Raut dated 15.01.2003, in
which, it was mentioned that on 14.10.2002 he had gone to
the house of Shri Miland Wanikar the workman to collect
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the amount of Rs. 30,000 which was given to him to hand
over the same to the workman for deposit of the same in
the Bank and that he (workman) deposited the amount in
the Bank and illegally held the charges to have been proved
against him and in the enquiry only one witness, namely
Shri S. Manokaran, Senior Finance Officer was examined
from the side of the management, overlooking the factual
position and the enquiry was completed very hurriedly,
just to comply the mandatory provisions of law and the
party No. 1 issued an order dated 08.08.2003 enclosing the
findings and asked him to submit his representation within
72 hours and he made a request by his letter dated 11.08.2003
for supply of certain documents/enquiry reports dated
19.12.2002, 28.12.2002, 10.01.2003 and 11.01.2003 and to
grant him one month time to submit his reply to the said
show cause notice, but party No. 1 did not supply the
same and did not grant time to reply and surprisingly,
issued the order dated 10/14.02.2004 inflicting the
punishment of dismissal from the services and no
communication was issued by party No. 1 rejecting his
request for grant of time to submit his reply to the show
cause notice and he was not given an opportunity to
submit his reply and thus, principles of natural justice
were violated and the order dated 08.08.2003 was issued
only to complete the empty formality and the impugned
order dated 14.02.2004 terminating his services is ex facie
illegal not in good faith, in utter disregard to the principles
of natural justice and in colourable exercise of employer’s
right, which constitutes victimization.
It is also pleaded by the workman that for the said
misconduct, a charge sheet was also issued by party
No. 1 against shri P.G. Baid, the then Finance Manager,
Vide No. 1291 dated 24.11.2003 and Shri Baid was
suspended and a departmental enquiry was initiated
against Shri Baid and the party no.1 should have
considered that he (workman) was workman as a clerk
grade-I and he was not authorized to write or till the cash
book as it was the job of cashier, Shri Milind Wanikar and
as the amount of Rs. 30,000 was paid by Shri Baid prior to
the issuance of charge sheet dated 18.10.2002 against him,
the submission of the charge sheet is illegal and all actions
pursuant to the said charge sheet are also illegal and the
findings of the enquiry officer are perverse and contrary
to the evidence and available material on record and
therefore, the order dated 14.02.2004 is illegal and liable to
be quashed and set aside and after dismissal from services,
he is not in gainful employment.
The workman has prayed for his reinstatement in
service with all consequential benefits including the back
wages w.e.f. 18.10.2002.
3. The party No. 1 in the written statement, after
denying all the adverse allegations made by the workman
was employed as Accounts Clerk Grade-I at Kolarpimpri
OCM up to 1/2 .07.2002 and thereafter, he was transferred
to Ukani OCM w.e.f. 19.08.2002, where he joined his duty
and the Accounts Office, Kolarpimpri informed the then
Sub Area Manager, Kolarpimpri Sub Area that a cheque
bearing No. 43742 dated 11.05.2002 of Central Bank of
India, Wani Branch was handed over to the workman to
collect the money against the said cheque and deposit the
same in the cash book and though the workman withdrew
the cash from the Bank on 11.05.2002 itself, he did not
deposit the same in the company’s cash nor made any
entry thereof in the cash book and the workman being an
employee of the accounts cadre was fully aware of Rules
of handling cheques and cash of the company and
therefore, whatever he did was deliberate with ulterior
motive of misappropriating company’s money for his
personal gain and during the preliminary enquiry
conducted by the sub-area Manager, Kolarpimpri sub area
on 12.10.2002, the workman confessed to have
misappropriated the amount of Rs. 30,000 and used the
same for his personal work and finding that prima facie
there was serious act of misconduct on the part of the
workman, he was charge sheeted and placed under
suspension by the Sub Area Manager, Ukani Sub area
vide charge sheet dated 08.08.2003, as at that time, he was
working under Ukani sub area and the workman was asked
to submit his written explanation within a stipulated time
and the workman submitted his written explanation vide
his letter dated 22.10.2002 denying the charges and as his
explanation was found not satisfactory, the Sub Area
Manager, Ukni Sub Area ordered for initiation of the
departmental enquiry against the workman and vide order
dated 24.10.2002 appointed Shri G.R. Dalnes as the enquiry
officer and Shri S. Mangaram as the management
representative to make the enquiry and the workman did
not object to the appointment of the enquiry officer or
management representative and the enquiry officer held
the enquiry on seven dates with due intimation to the
parties and the workman fully participated in the enquiry
and on few early dates, he availed the services of a co-
worker, but subsequently, he said that he could conduct
his own defence in the departmental enquiry and
accordingly, he presented his case before the enquiry
officer and the enquiry officer conducted the enquiry in a
fair and proper manner by observing the principles of
natural justice and he fixed the dates of the enquiry with
due notice/intimation to the parties and granted
adjournments on some dates as sought by the workman
and the parties were allowed to examine their witnesses
and file documents, which was fully availed by them and
the witness for the management was examined in presence
of the workman and he was cross-examined by the
workman and his co-worker and the documents of the
management were presented in the enquiry in presence of
the workman and the same were noted by him and the
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
workman was offered the opportunity to put up his defence
and the workman examined himself and produced
documents in his defence and he was cross-examined by
the management representative and the proceedings of
the enquiry were held in Hindi Language and duly signed
by the workman and his co-worker on the days they were
present and parties were given opportunity to put up their
written argument in response to which the workman
submitted his written argument and the enquiry officer
submitted his report to the Sub Area Manager, Ukni Sub
area on 31.05.2003 holding the charges levelled against
the workman to have been proved and on receipt of the
enquiry report, a copy of the same was supplied to the
workman vide letter dated 08.08.2003 and the workman
was advised to make his representation if any and the
workman submitted vide his letter dated 11.08.2003,
which was found not to be satisfactory and considering
the seriousness of the misconduct, the workman was
dismissed from service vide order dated 10/14.02.2004
issued by the SAM, Ukni Sub Area after obtaining
approval by the competent authority and the enquiry held
against the workman was just, fair and proper and he
was dismissed from service on the proved act of
misconduct of very serious nature and therefore, its action
was fully justified and legal.
The party No.1 has also pleaded that the workman
had never requested the enquiry officer to allow him to
engage a lawyer to defend him in the enquiry and the
same is afterthought and motivated and the co-worker of
the workman cross-examined the management’s witness
at length and the enquiry was not conducted in a hurried
manner and as many as seven dates were devoted to the
enquiry and the enquiry officer closed the enquiry on
specific consent of the workman and the workman had
already received copies of the day-to-day proceedings
and copies of all documents during the course of the
enquiry and the same were recorded in the proceedings
and signed by the workman and the ground on which he
wanted extension of time was frivolous and not considered
justified and as such, the same was not granted and the
workman was holding charge of the cashier at the relevant
time and he was fully competent to write the cash book
and to discharge the function of the cashier and therefore,
it cannot be considered rational and justified that after the
withdrawal of the money from the bank, he misappropriated
the same for his personal gain and the report of the
enquiry officer is based on evidence on record and hence,
there is no question of perversity in the findings of the
enquiry officer and as its action is fair, legal and
justified, there is no question of grant of any relief to the
workman.
4. As this is a case of dismissal of the workman from
services, after holding of a departmental enquiry against
him, the fairness or otherwise of the departmental
enquiry was taken up as a preliminary issue for
consideration and as per order dated 21.04.2014, the
departmental enquiry conducted against the workman was
held to be legal, proper and in accordance with the
principles of natural justice.
5. At the time of argument, it was submitted by the
learned advocate for the workman that on 11.05.2002, the
workman was in charge of the cashier, as the regular cashier
was on leave and being directed by Shri Baid, the finance
manager and the immediate superior officer of the workman,
the workman withdrew an amount of Rs. 30,000 from Central
Bank and being asked by Shri Baid, the workman handed
over the said amount to him and Shri Baid had told the
workman that the regular cahier would make the necessary
entry in the account book on his resumption of duty and
as such, the workman who was in temporary charge of the
cashier did not make any entry in the concerned registers
and Shri Baid gave the said amount to one Shri Miland
Wanikar and the workman collected the said amount from
Shri Wanikar in presence of Shri Balu Abhiman Raut and
deposited the amount of Rs. 30,000 in the Bank on
14.10.2002, as per the order and pressure of Shri Baid and
the charges levelled against the workman were not based
on the factual position and the same were false and
baseless and during the departmental enquiry, the
workman requested the Enquiry Officer to allow him to
examine Shri Baid, Shri Miland Wanikar and Shri Madan
as witnesses, but his request was rejected by the Enquiry
Officer and the enquiry conducted against the workman
was unfair and due to non examination of the material
witnesses as mentioned above, it can be said that the
charges were not proved conclusively and the workman
had filed the affidavit of Shri Balu Abhiman Raut dated
15.01.2003, but the Enquiry Officer did not consider this
important and vital aspect and illegally held the charges
to have been proved against the workman and as such,
the findings of the Enquiry Officer are perverse and
contrary to the evidence and available material on record
and after receipt of the second show cause notice, the
workman had requested vide his letter dated 11.08.2003
for supply of some documents and also for one month
time, to file his reply, but party No.1 neither supplied the
documents nor granted any time and without making any
communication of rejecting his request, inflicted the
punishment of dismissal from services and thus, there was
violation of the principles of natural justice and the order
of punishment is illegal and the same is liable to be set
aside and the workman is entitled for reinstatement in
service with continuity and as the workman was not
gainfully employed from the date of his dismissal from
service, he is also entitled for full back wages.
In support of the contentions, the learned advocate
for the workman placed reliance on the decisions reported
¹Hkkx II—[k.M 3(ii)º
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6325
in 1993 II CLR-1129 (Managing Director, ECIL (Hyderabad
Vs. B. Karunakar) and 2013 (11) SCALE (Deepali Gundu
Surwase Vs. Kranti Junior Adhyapak Mahabidyalaya and
others).
6. It is to be mentioned here that on the date fixed
for hearing of argument on the points of perversity of the
findings of the Enquiry Officer and the proportionality of
the punishment, none appeared on behalf of the party
No.1 to make argument and as such, no argument was
advanced on behalf of the management of party No.1.
7. Perused the record. Considered the submissions
made by the learned advocate for the workman. On perusal
of the records of the departmental enquiry, it is found that
on 10.01.2003, after closure of the evidence from the side
of the management, the workman entered in to his defence
and examined himself as a witness and he was cross-
examined by the management’s representative. The
workman also examined one Rajesh Bamanrao Dhable as a
witness on his behalf. On the request of the workman, the
departmental enquiry was adjourned to 11.01.2003 for
adducing further evidence from the side of the workman.
On 11.01.2003, the workman produced the receipt showing
deposit of Rs. 30,000 made on 14.10.2002 by him in Central
Bank of India, Wani and the same was taken on record and
marked as AWD-I. As thereafter, the workman declined to
examine any other witness or to produce any other
document, the evidence from his side was closed on
11.01.2003 itself and the enquiry was fixed to 14.01.2003
for filing of written notes of argument by the parties. It is
quite clear from the material on record that the workman
never asked the Enquiry Officer for examination of Shri
P.G. Baid, Shri Miland Wanikar and Shri Madan as
witnesses. It is also found from the record that the
workman did not produce any affidavit of Shri Balu
Abhiman Raut before the Enquiry Officer. Hence, the claim
of the workman that he requested the Enquiry Officer for
the examination of Shri Baid, Shri Wanikar and Shri Madan
as witnesses but the Enquiry Officer rejected his request
or that the Enquiry Officer did not consider the affidavit of
Shri Balu Abhiman Raut dated 15.01.2003 produced by
him is found to be not true and baseless.
8. So far the contention raised by the learned
advocate for the workman regarding the non-supply of
the copy of the departmental proceedings and time to file
reply to the second show-cause notice is concerned, the
same had already been considered and dealt with, while
considering the fairness or otherwise of the departmental
enquiry and as such, there is no scope to reconsider the
said submission or the other submissions made regarding
the validity of the departmental enquiry.
So far the decision reported in 1993 II CLR-1129
(supra) is concerned, the same is regarding the effect of
non-supply of the copy of the report submitted by the
enquiry officer to the workman. In the case in hand, it is
not the case of the workman that he was not supplied with
the copy of the enquiry report. Hence, with respect, I am
of the view that the above said decision has no application
to the case in hand.
9. On perusal of the materials on record, it is found
that this is not a case of no evidence or that the findings
of the Enquiry Officer are totally against the evidence on
record. It is the admitted case of the workman that he
withdrew a sum of Rs. 30,000 from the Bank on 11.05.2002,
while he was in charge of the cashier, but he did not make
any entry either in the cash book or deposit the same in
company’s cash. The written admission made by the
workman dated 12.10.2002 in that regard was also produced
and admitted into evidence in the enquiry. From the
materials on record, it is found that the Enquiry Officer
has based his findings on the materials on record of the
enquiry and not on any extraneous material. The Enquiry
Officer has also assigned reasons in support of his
findings. So, the findings of the Enquiry Officer cannot be
said to be perverse.
10. So far the proportionality of the punishment
imposed against the workman is concerned. It is found
that grave misconduct of dishonesty and fraud in
connection with the employer’s business or property has
been proved against the workman in a properly conducted
departmental enquiry. Hence, the punishment of
termination of the workman from services cannot be said
to be shockingly disproportionate. Therefore, there is no
scope to interfere with the punishment.
11. It is to be mentioned here that the other decision
cited by the learned advocate for the workman as reported
in 2013(11) SCALE-268(supra) is regarding the payment
of the back wages. As in this case, it has been held that
there is no scope to interfere with the punishment imposed
against the workman, there is no scope of any
consideration regarding payment of back wages to the
workman. Hence, with respect, I am of the view that the
said decision has no application to the case in hand.
12. In view of the materials on record and the
discussions made above, it is held that the workman is not
entitled to any relief. Hence, it is ordered:-
ORDER
The action of the management in relation to Ukani
Sub Area, Wani North Area of WCL, Distt. Yavatmal in
terminating the services of Shri Bhalchandra S/o.
Manoharrao Wararkar vide order No. Vekoli/Vanashe/
Uushe/Uushepra/04/174 dated 10/14.02.2004 is legal and
justified. The workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
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New Delhi, the 8th September, 2014
S.O.
2502.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 21/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Rajpur Sub Area, WCL, Post
Rajur Colliery and their workmen, received by the Central
Government on 08-09-2014.
[No. L-22012/87/2011-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT,
NAGPUR
Case No. CGIT/NGP/21/2011
Date: 12.08.2014
Party No. 1
: The Sub Area Manager,
Rajur Sub Area, WCL,
Post. Rajur Colliery,
Tah. Wani, Distt. Yavatmal,
Maharashtra.
Versus
Party No. 2
: The General Secretary,
Lal Zhanda Coal Mines
Mazdoor Union, C/O WC Ltd.,
Coal Estate, Civil Lines,
Nagpur.
AWARD
(Dated: 12th August, 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 Rajur Sub Area, WCL and their workman,
Shri Sadhu Dheba, for adjudication, as per letter No.L-
22012/87/2011-IR (CM-II) dated 03.10.2011, with the
following Schedule:-
“Whether the action of the management of Majri
Area/Wani Area of WCL in denying pay/wages
protection to Shri Sadhu Dheba at the time of
conversion from Piece Rated to Time Rated workers
as per Tripartite settlement dated 02.11.1992 &
Modification dated 31.10.1995 is legal and justified?
To what monitory compensation or payment of
arrears the workman concerned is entitled?”
2.
On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the union, “Lal Zhanda Coal
Mines Mazdoor Union (“the union” in short) filed the
statement of claim on behalf of the workman, Shri Sadhu
Dheba, (‘the workman” in short) and the management of
Rajur Sub Area of WCL (“Party No. 1” in short) filed their
written statement.
The case of the workman as presented in the
statement of claim by the union is that the workman was
initially appointed as a Tub Loader on 01.10.1977 and
presently posted at Bhandewara Mine of Wani Area as a
Tyndal in category IV and in the year 1994, due to fire in
Nakoda U.G. Mine, where the workman was then working
as a Tub Loader, the work of the said Mine was stopped
and as such, vide office order dated 18.10.1994, the
workman came to be transferred to Nagpur Area on
administrative grounds and in view of the said order, the
workman was released in his exisiting capacity and scale
of pay from Nakoda Incline to Nagpur Area w.e.f.
26.11.1994, by the office order dated 20.11.1994 and the
workman joined his duties in Pipla Colliery of Nagpur Area
and at Pipla Colliery, the workman was paid his wages at
the basic rate of Group V-A ( Piece Rated scale) i.e. basic
of Rs. 104.93 and Rs. 20.80 towards SPRA and the workman
was again transferred to Majri Area on administrative
grounds by office order dated 19.10.1995 and on joining in
Majri Area, the workman was wrongly converted to Time
Rated Scale of Category-I, in the pay scale of Rs. 38.47-
0.70-48.27, whereas at that time, he was getting Rs. 125.73
per day and in the year 2004 also, the wages of the workman
came to be reduced to Rs.161.58 from his existing pay of
Rs.192.98, without any reason or without affording any
opportunity of hearing to him.
The further case of the workman as presented by
the union is that no conceivable nexus or sound reasoning
was advanced by party No.1 to fix the wages of the
workman in the lower stage without notice and the action
was arbitrarily in colourable exercise of employer’s right
by party No.1 and the action of party No. 1 was in breach
of clauses 1.3, 1.4 and 4 of the memorandum of settlement
¹Hkkx II—[k.M 3(ii)º
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6327
and understanding dated 02.11.1992 and 31.10.1995
respectively and the memorandum of settlement clearly
stipulates that on conversion from PR to TR, the
management shall fully protect the group wages including
SPRA wherever is applicable and the memorandum of
understanding dated 31.10.1995 which was reached for
the partial modification of the settlement dated
02.11.1992 says that piece rated workmen, who have
come into time rated/monthly rated category and already
have been paid up to 31.10.1995 according to the settlement
dated 02.11.1992, will be paid as per item (3) of the settlement
dated 02.11.1992 and the workman is fully entitled for
protection of his pay in terms of the said settlement and in
the case of one Mh. Aslam, who was identically placed as
that of the workman was granted pay protection of his
erstwhile piece rated job and the party No.1 adopted
discriminatory treatment and pick and choose tactics, in
the matter of granting pay protection to the workman and
the action of the party No.1 is wholly illegal and unjustified
and the workman is entitled for pay protection and the
arrear back wages.
3.
The party No.1 in the written statement has pleaded
inter alia that the action is stated to have arisen in the year
1995, whereas, the alleged dispute was raised by the union
before the Assistant Labour Commissioner (Central),
Chandrapur on 03-6-2008, nearly 13 years of the alleged
cause of action had arisen and as such, the dispute is
highly belated and no justification has been pleaded/
advanced by the union and therefore, the belated dispute
is not maintainable in the eyes of Law and the same is ab-
initio void and liable to be rejected.
It is further pleaded by the party No.1 that it is evident
from records that the workman accepted time rated job
and corresponding wages and has been receiving the same
for nearly 13 years without protest and objection and
having accepted this position for such a long time, he is
debarred from raising the grievance under the principles
of estoppels.
The further case of the party No.1 is that after
closure of Nakoda Underground Mine of Wani Area due
to natural calamity, most of the underground loaders
including the workman were transferred to Nagpur Area
in October, 1994 and after reporting to Nagpur Area, the
workman was deployed in Pipla Mine of the Area and
vide office order No. 36.153 dated10/15.03.1995, issued by
the Deputy Personnel Manager, WCL, Nagpur, the
workman was transferred to Majri Area to report for duty
in time rated category and this transfer to time rated
category was on the request of the workman, as is evident
from the office order itself and in compliance of the said
order and on being released from Nagpur Area, the
workman reported for duty at Majri Area and in the order
dated 19.10.1995, he was specifically advised to report
for time rate and to contact the Chief General Manager,
Majri Area and on reporting to Majri Area, the workman
gave written undertaking and acceptance of category-I in
time rate on the body of the posting order dated 25.11.1995
itself and in the posting order dated 19.11.1995, it was also
specifically mentioned that the same was request transfer
and that he would not be entitled to transfer T.A. etc. and
from the above facts, it is evident that the placement/
conversion of the workman and transfer from Nagpur Area
to Majri Area was on his own request and for his own
benefit and his case was not a case of administrative
transfer and therefore, his entire claim is misconceived
and he is not entitled to any relief.
It is also pleaded by the party No.1 that there is no
provision in the settlement dated 02.11.1992 to give
protection of group wages to loaders in all cases of
conversion from piece rated to time rate and the said
protection was in respect of the conversion of piece rated
workman to time rated as per clause 1.2 of the said
settlement and the case of the workman does not fall under
clause 1.2, as his conversion was not for filling up vacant
post due to natural wastage as determined by man power
budgets and to avoid any controversy, the said clause was
modified on 31.10.1995, in terms of which, it was further
agreed that those loaders who opted for time rated
category would not be entitled for protection of group
wages and it was further agreed that hence forth, all piece
rated workers deployed in time rated job would be paid
as per nature of job performed and therefore, the workman
is not entitled for protection of group wages under the
said settlements and comparison of the case of the
workman with the case of Md. Aslam is vague and it is
not understood as to when and at what establishment of
WCL and under which back ground, the decision in Md.
Aslam’s case was taken and the prayer of the union and
relief sought has no merit and deserves to be rejected.
4.
Both the parties have led oral evidence in support
of their respective stands, besides placing reliance on
documentary evidence.
The workman has examined himself as a witness
in support of his case, where as one Prakash Kumar Ram
has been examined as a witness on behalf of the party
No.1.
5.
The workman in his evidence on affidavit has
reiterated the facts mentioned in the statement of claim.
In his cross-examination, the workman has stated that
he has already retired from service on superannuation
w.e.f. 01.10.2012 and he did not raised any objection
about the fitment made by the management regarding
his wages at any point of time individually.
6.
The evidence of witness, Shri Prakash Kumar Ram
on affidavit is in the same line of the stands taken by the
party No.1 in the written statement. This witess in his
cross-examination has stated that no document has been
filed by the management to show that the workman had
requested for his transfer to Majri Area.
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
7.
At the time of argument, it was submitted by the
learned advocate for the workman that it is clear from the
evidence on record that the conversion of the workman
from piece rated worker to time rated was due to managerial
decision and the same was not done due to any option
given by the workman and there are clear cut provisions
in the settlements in question for giving pay protection to
the piece rated loaders on their conversion to time rate
and the workman is entitled for protection of his wages
under the provisions of the said settlements and the action
of party No.1 in not giving the protection of wages to the
workman is illegal.
8.
It is necessary to mention here that on 22.07.2014, to
which date the reference was fixed for argument, party
No.1 and so also, advocate for the party No.1 remained
absent and no argument was made on behalf of the party
No.1.
9.
On perusal of the materials on record including the
evidence adduced by the parties, both oral and
documentary, it is found that the workman was working as
a piece rated loader in Nakoda Incline of Wani Area and he
was transferred to Nagpur Area along with other loaders,
as Nakoda Incline was closed due to natural calamity, as
per office order dated 18.10.1994, Ext. W-I. It is also clear
from the document, Ext. W-I that direction was given for
the posting of the workman and other loaders transferred
from Nakoda Incline to Nagpur Area in Saoner Mine No.III
in time rated jobs. It is also found from the document, Ext.
W-II the office order dated 20.11.1994 that the workman
was released from Nakoda Incline in his exisiting capacity
and scale of pay. It is crystal clear from Exts. W-I and W-II
that by administrative order of Party No.1, the workman
was converted to time rated worker from piece rated worker
and the same was done as per managerial decision and the
conversion of the workman was not due to any option
given by the workman as claimed by the party No.1. The
subsequent order of transfer of the workman from Nagpur
Area to Majri Area was an order of transfer and not an
order of conversion of the workman. So, the said order
has no bearing to decide the question of conversion of
the workman from piece rated to time rated.
10.
For better appreciation, I think it proper to mention
paragraphs 1(i) to 1(iii) of the settlement dated 02.11.1992.
The same are as follows:-
1.1
Demand No.1 (i):-
That the management shall provide alternate/light
job to the employees particularly loaders who are
physically weak due to their old age, sickness or
I.O.D. irrespective of vacancies.
1.2
Demand No. 1 (ii)
That the management shall fill up 50% vacancies
arising out of natural wastage in Time Rated and
monthly Rated category/grade from amongst the
piece rated workers who have completed at least 15
years of service.
1.3
Demand no. 1 (iii)
That the management shall on conversion from P.R.
to TR/MR will fully protect the group wages
including SPRA wherever applicable. The basic
pay so fixed in the TR/MR category/grade if exceeds
the maximum of the category/grade, the balance
will be treated as personal pay to the person
concerned which shall be adjusted in the subsequent
revision of pay/promotion. This decision shall be
effective from 01.01.1992. It is also agreed that
the cases already converted between 14.11.1990 to
31.12.1991 shall be considered for notional fixation
only and earlier cases not be considered.
11.
On perusal of the settlement dated 02.11.1992, it
is found that in para 1(iii), the party No.1 has agreed to
protect the wages of the loaders converted to time rated
or monthly rated. There is no specification in that
paragraph that the same will apply only to cases covered
under para 1(ii). On plain reading of the paragraphs
1(i) to 1(iii), it is found that there is nothing in the same
to show that para 1(iii) has no application to the cases of
para 1(i), directly or by implication. Hence, I find no
force in the submission made by the party No.1 in that
respect.
12.
So far the modified settlement dated 31.10.1995 is
concerned, on perusal of the same, it is found that in
para 5, provision has been made to protect the wages of
the loader converted to time rated or monthly rated
category under certain circumstances. Paragraph 5 of the
said settlement reads as follow:-
“Such piece rated workman who may put in time
rated/ monthly rated in future by managerial decisions
i.e. without seeking option from time rated/monthly rated
or without going through the selection process against
internal notification from time rated/monthly rated, will
continue to get protection of piece rated wages such piece
rated workmen who came to TR as per option given by
them will not get this benefit.”
13.
The party No.1 has taken the plea of inordinate delay
in raising the dispute. In this regard, it is well settled that
though the court cannot import the period of limitation
and the reference cannot be dismissed merely on the ground
of delay, it does not mean that irrespective of the facts and
circumstances of the case, a stale claim must be entertained
and the relief should be granted. In case of delay, no
formula of universal application can be laid down and it
would depend upon the facts and circumstances of each
case. The Court dealing with the reference will have to
hold an enquiry and record its finding on the question
whether the reference should be dismissed on the ground
of delay. In appropriate cases, the Court may mould the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6329
relief either by reducing the back wages or by denying it
completely.
On perusal of the record, it is found that there was
much delay in raising the dispute and no explanation
has been furnished by the workman or union for the delay
in raising the dispute. However, it is not the case of the
Party No. 1 that the delay is fatal to it, as because the
delay has resulted in material evidence relevant to the
adjudication being lost and rendered unavailable. It is
also pleaded by the Party No. 1 that due to the delay in
raising the dispute caused any prejudice to it. Hence, it
is not a fit case to dismiss the reference on the ground of
delay. However, the delay in raising the dispute will be
taken into consideration while granting relief if any to
the workman.
14.
As in this case, it has already been held that the
workman did not give any option for his conversion and
the conversion was made by party no.1 by an
administrative order and the same is a managerial
decision, the workman is entitled for protection of the
basic wages and SPRA of loader.
15.
At this juncture, I think it proper to mention about
the decision of the Hon’ble High Court of Judicature at
Bombay, Nagpur Bench, and Nagpur in W.P. No. 476 of
2014 (Keshav Vs Senior Manager (Mine), Saoner Mine
No. 1) in regard to protection of wages of the workmen.
Taking into consideration the delay in raising the dispute,
the Hon’ble High Court granted the benefit of pay
protection to the concerned workmen, only from the
period of 3 years prior to filing of petition before the
Hon’ble Court.
16.
Admittedly, there is unexplained delay of about 11
years in raising the dispute. Taking in to consideration
such delay in raising the dispute and applying the
principles enunciated by the Hon’ble High Court, Nagpur
Bench in Writ petition No.476/2014 to the case in hand,
I think it proper to give the benefit of protection of wages
to the workman from the preceding three years of raising
of the dispute by the workman before the Conciliation
Officer-cum-Assistant Labour Commissioner (Central),
Chandrapur. Accordingly, the workman is entitled for
the deferential of wages of Loader and general mazdoor
category I, from the preceding three years of the raising
of the dispute before the Conciliation Officer and not
from the date of his transfer to Majri Area, as claimed by
him and consequential benefits arising out of such pay
protection. Hence it is ordered:-
ORDER
The action of the management of Majri Area/Wani
Area of WCL in denying pay/wages protection to Shri
Sadhu Dheba at the time of conversion from Piece Rated
to Time Rated workers as per Tripartite settlement dated
02.11.1992 & Modification dated 31.10.1995 is illegal
and unjustified.
The workman is entitled for the benefit of protection
of wages from the preceding three years of the date of
raising of the dispute before the Conciliation Officer-cum-
Assistant Labour Commissioner (Central), Chandrapur.
Accordingly, the workman is entitled for the differential of
wages of Loader and general mazdoor category I, from the
preceding three years of the date of raising of the dispute
before the Conciliation Officer and not from the date of his
transfer to Majri Area, as claimed by him. The workman is
also entitled for the consequential benefits arising out of
such pay protection. The Party No. 1 is directed to pay
the arrears of the differential of wages of Loader and
General Mazdoor, Category-I to the workman within one
month of the date of publication of the award in the official
gazette.
J. P. CHAND, Presiding Officer
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New Delhi, the 8th September, 2014
S.O.
2503.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 22/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Rajpur Sub-Area,
WCL. Post Rajpur Colliery, and their workmen, received
by the Central Government on 08-09-2014.
[No. L-22012/128/2011-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT,
NAGPUR
Case No. CGIT/NGP/22/2011
Date: 12.08.2014
Party No. 1
: The Sub-Area Manager,
Rajur Sub-Area, WCL,
Post. Rajur Colliery,
Tah. Wani, Distt. Yavatmal,
Maharashtra
6330
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Versus
Party No. 2
: The General Secretary,
Lal Zhanda Coal Mines
Mazdoor Union, C/O WC Ltd.,
Coal Estate, Civil Lines,
Nagpur
AWARD
(Dated: 12th August, 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 Rajur Sub-Area, WCL and their workman,
Shri Babulal Dhelba, for adjudication, as per letter No.L-
22012/128/2011-IR (CM-II) dated 03.10.2011, with the
following Schedule:-
“Is the action of the management of Majri Area/
Wani Area of WCL in denying pay/wages protection
to Shri Babulal Dhelba at the time of conversion
from Piece Rated to Time Rated workers as per
Tripartite settlement dated 02.11.1992 &
Modification dated 31.10.2005 is legal and
justified? To what monitory compensation or
payment of arrears and post retirement benefits the
claimant is entitled?”
2.
On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the union, “Lal Zhanda Coal
Mines Mazdoor Union (“the union” in short) filed the
statement of claim on behalf of the workman, Shri Babulal
Dhelba, (‘the workman” in short) and the management
of Rajur Sub-Area of WCL (“Party No. 1” in short) filed
their written statement.
The case of the workman as presented in the
statement of claim by the union is that the workman was
initially appointed as a Tub Loader on 01.10.1977 and
presently posted at Bhandewara Mine of Wani Area as a
Tyndal in category IV and in the year 1994, due to fire in
Nakoda U.G.Mine, where the workman was then working
as a Tub Loader, the work of the said Mine was stopped
and as such, vide office order dated 18.10.1994, the
workman came to be transferred to Nagpur Area on
administrative grounds and in view of the said order, the
workman was released in his existing capacity and scale
of pay from Nakoda Incline to Nagpur Area w.e.f.
26.11.1994, by the office order dated 20.11.1994 and the
workman joined his duties in Pipla Colliery of Nagpur Area
and at Pipla Colliery, the workman was paid his wages at
the basic rate of Group V-A ( Piece Rated scale) i.e. basic
of Rs. 104.93 and Rs. 20.80 towards SPRA and the workman
was again transferred to Majri Area on administrative
grounds by office order dated 19.10.1995 and on joining in
Majri Area, the workman was wrongly converted to Time
Rated Scale of Category-I, in the pay scale of Rs. 38.47-
0.70-48.27/-, whereas at that time, he was getting Rs. 125.73/
- per day and in the year 2004 also, the wages of the
workman came to be reduced to Rs.161.58 from his existing
pay of Rs. 192.98/-, without any reason or without affording
any opportunity of hearing to him.
The further case of the workman as presented by
the union is that no conceivable nexus or sound reasoning
was advanced by party No.1 to fix the wages of the
workman in the lower stage without notice and the action
was arbitrarily in colourable exercise of employer’s right
by party No.1 and the action of party No.1 was in breach
of clauses 1.3, 1.4 and 4 of the memorandum of settlement
and understanding dated 02.11.1992 and 31.10.1995
(wrongly mentioned as 31.10.2005 instead of 31.10.1995 in
the schedule of reference) respectively and the
memorSndum of settlement clearly stipulates that on
conversion from PR to TR, the management shall fully
protect the group wages including SPRA wherever is
applicable and the memorandum of understanding dated
31.10.1995 which was reached for the partial modification
of the settlement dated 02.11.1992 says that piece rated
workmen, who have come into time rated/monthly rated
category and already have been paid up to 31.10.1995
according to the settlement dated 02.11.1992, will be paid
as per item (3) of the settlement dated 02.11.1992 and the
workman is fully entitled for protection of his pay in terms
of the said settlement and in the case of one Mh. Aslam,
who was identically placed as that of the workman was
granted pay protection of his erstwhile piece rated job
and the party No.1 adopted discriminatory treatment and
pick and choose tactics, in the matter of granting pay
protection to the workman and the action of the party
No.1 is wholly illegal and unjustified and the workman is
entitled for pay protection and the arrear back wages.
3.
The party No.1 in the written statement has pleaded
inter alia that the action is stated to have arisen in the year
1995, whereas, the alleged dispute was raised by the union
before the Assistant Labour Commissioner (Central),
Chandrapur on 03-6-2008, nearly 13 years of the alleged
cause of action had arisen and as such, the dispute is
highly belated and no justification has been pleaded/
advanced by the union and therefore, the belated dispute
is not maintainable in the eyes of Law and the same is ab-
initio void and liable to be rejected.
It is further pleaded by the party No.1 that it is evident
from records that the workman accepted time rated job
and corresponding wages and has been receiving the same
for nearly 13 years without protest and objection and
having accepted this position for such a long time, he is
debarred from raising the grievance under the principles
of estoppels.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6331
The further case of the party No.1 is that after
closure of Nakoda Underground Mine of Wani Area due
to natural calamity, most of the underground loaders
including the workman were transferred to Nagpur Area in
October, 1994 and after reporting to Nagpur Area, the
workman was deployed in Pipla Mine of the Area and vide
office order no. 36.153 dated10/15.03.1995, issued by the
Deputy Personnel Manager, WCL, Nagpur, the workman
was transferred to Majri Area to report for duty in time
rated category and this transfer to time rated category
was on the request of the workman as is evident from the
office order itself and in compliance of the said order and
on being released from Nagpur Area, the workman reported
for duty at Majri Area and in the order dated 19.10.1995, he
was specifically advised to report for time rate and to
contact the Chief General Manager, Majri Area and on
reporting to Majri Area, the workman gave written
undertaking and acceptance of category-I in time rate on
the body of the posting order dated 25.11.1995 itself and
in the posting order dated 19.11.1995, it was also
specifically mentioned that the same was request transfer
and that he would not be entitled to transfer T.A. etc. and
from the above facts, it is evident that the placement/
conversion of the workman and transfer from Nagpur Area
to Majri Area was on his own request and for his own
benefit and his case was not a case of administrative
transfer and therefore, his entire claim is misconceived
and he is not entitled to any relief.
It is also pleaded by the party No.1 that there is no
provision in the settlement dated 02.11.1992 to give
protection of group wages to loaders in all cases of
conversion from piece rated to time rate and the said
protection was in respect of the conversion of piece rated
workman to time rated as per clause 1.2 of the said
settlement and the case of the workman does not fall under
clause 1.2, as his conversion was not for filling up vacant
post due to natural wastage as determined by man power
budgets and to avoid any controversy, the said clause
was modified on 31.10.1995, in terms of which, it was further
agreed that those loaders who opted for time rated category
would not be entitled for protection of group wages and it
was further agreed that hence forth, all piece rated workers
deployed in time rated job would be paid as per nature of
job performed and therefore, the workman is not entitled
for protection of group wages under the said settlements
and comparison of the case of the workman with the case
of Md. Aslam is vague and it is not understood as to when
and at what establishment of WCL and under which back
ground, the decision in Md. Aslam’s case was taken and
the prayer of the union and relief sought has no merit and
deserves to be rejected.
4.
Both the parties have led oral evidence in support
of their respective stands, besides placing reliance on
documentary evidence.
The workman has examined himself as a witness
in support of his case, where as one Prakash Kumar Ram
has been examined as a witness on behalf of the party
No.1.
5.
The workman in his evidence on affidavit has
reiterated the facts mentioned in the statement of claim. In
his cross-examination, the workman has stated that he
has already retired from service on superannuation w.e.f.
01.10.2012 and he did not raised any objection about the
fitment made by the management regarding his wages at
any point of time individually.
6.
The evidence of witness, Shri Prakash Kumar Ram
on affidavit is in the same line of the stands taken by the
party No.1 in the written statement. This witess in his
cross-examination has stated that no document has been
filed by the management to show that the workman had
requested for his transfer to Majri Area.
7.
At the time of argument, it was submitted by the
learned advocate for the workman that it is clear from the
evidence on record that the conversion of the workman
from piece rated worker to time rated worked was due to
managerial decision and the same was not done due to
any option given by the workman and there are clear cut
provisions in the settlements in question for giving pay
protection to the piece rated loaders on their conversion
to time rate and the workman is entitled for protection of
his wages under the provisions of the said settlements
and the action of party No.1 in not giving the protection
of wages to the workman is illegal.
8.
It is necessary to mention here that on 22.07.2014, to
which date the reference was fixed for argument, party
No.1 and so also, advocate for the party No.1 remained
absent and no argument was made on behalf of the party
No.1.
9.
On perusal of the materials on record including the
evidence adduced by the parties, both oral and
documentary, it is found that the workman was working as
a piece rated loader in Nakoda Incline of Wani Area and he
was transferred to Nagpur Area along with other loaders,
as Nakoda Incline was closed due to natural calamity, as
per office order dated 18.10.1994, Ext. W-I. It is also clear
from the document, Ext. W-I that direction was given for
the posting of the workman and other loaders transferred
from Nakoda Incline to Nagpur Area in Saoner Mine No.III
in time rated jobs. It is also found from the document, Ext.
W-II the office order dated 20.11.1994 that the workman
was released from Nakoda Incline in his exisiting capacity
and scale of pay. It is crystal clear from Exts. W-I and W-II
that by administrative order of Party No.1, the workman
was converted to time rated worker from piece rated worker
and the same was done as per managerial decision and the
conversion of the workman was not due to any option
6332
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
given by the workman as claimed by the party No.1. The
subsequent order of transfer of the workman from Nagpur
Area to Majri Area was an order of transfer and not an
order of conversion of the workman. So, the said order
has no bearing to decide the question of conversion of
the workman from piece rated to time rated.
10.
For better appreciation, I think it proper to mention
paragraphs 1(i) to 1(iii) of the settlement dated 02.11.1992.
The same are as follows:-
1.1
Demand no.1(i):-
That the management shall provide alternate/light
job to the employees particularly loaders who are
physically weak due to their old age, sickness or
I.O.D. irrespective of vacancies.
1.2
Demand no. 1(ii)
That the management shall fill up 50% vacancies
arising out of natural wastage in Time Rated and
monthly Rated category/grade from amongst the
piece rated workers who have completed at least 15
years of service.
1.3
Demand no. 1(iii)
That the management shall on conversion from P.R.
to TR/MR will fully protect the group wages
including SPRA wherever applicable. The basic pay
so fixed in the TR/MR category/grade if exceeds the
maximum of the category/grade, the balance will be
treated as personal pay to the person concerned
which shall be adjusted in the subsequent revision
of pay/promotion. This decision shall be effective
from 01.01.1992. It is also agreed that the cases
already converted between 14.11.1990 to 31.12.1991
shall be considered for notional fixation only and
earlier cases not be considered.
11.
On perusal of the settlement dated 02.11.1992, it is
found that in para 1(iii), the party no.1 has agreed to protect
the wages of the loaders converted to time rated or monthly
rated. There is no specification in that paragraph that the
same will apply only to cases covered under para 1(ii). On
plain reading of the paragraphs 1(i) to 1(iii), it is found that
there is nothing in the same to show that para 1(iii) has no
application to the cases of para 1(i), directly or by
implication. Hence, I find no force in the submission made
by the party No.1 in that respect.
12.
So far the modified settlement dated 31.10.1995 is
concerned, on perusal of the same, it is found that in para
5, provision has been made to protect the wages of the
loader converted to time rated or monthly rated category
under certain circumstances. Paragraph 5 of the said
settlement reads as follow:-
“Such piece rated workman who may put in time
rated/ monthly rated in future by managerial
decisions i.e. without seeking option from time rated/
monthly rated or without going through the selection
process against internal notification from time rated/
monthly rated, will continue to get protection of
piece rated wages such piece rated workmen who
came to TR as per option given by them will not get
this benefit.”
13.
The party No.1 has taken the plea of inordinate delay
in raising the dispute. In this regard, it is well settled that
though the court cannot import the period of limitation
and the reference cannot be dismissed merely on the ground
of delay, it does not mean that irrespective of the facts and
circumstances of the case, a stale claim must be entertained
and the relief should be granted. In case of delay, no
formula of universal application can be laid down and it
would depend upon the facts and circumstances of each
case. The Court dealing with the reference will have to
hold an enquiry and record its finding on the question
whether the reference should be dismissed on the ground
of delay. In appropriate cases, the Court may mould the
relief either by reducing the back wages or by denying it
completely.
On perusal of the record, it is found that there was
much delay in raising the dispute and no explanation has
been furnished by the workman or union for the delay in
raising the dispute. However, it is not the case of the
Party No. 1 that the delay is fatal to it, as because the
delay has resulted in material evidence relevant to the
adjudication being lost and rendered unavailable. It is
also pleaded by the Party No. 1 that due to the delay in
raising the dispute caused any prejudice to it. Hence, it is
not a fit case to dismiss the reference on the ground of
delay. However, the delay in raising the dispute will be
taken into consideration while granting relief if any to the
workman.
14.
As in this case, it has already been held that the
workman did not give any option for his conversion and
the conversion was made by party no.1 by an
administrative order and the same is a managerial decision,
the workman is entitled for protection of the basic wages
and SPRA of loader.
15.
At this juncture, I think it proper to mention about
the decision of the Hon’ble High Court of Judicature at
Bombay, Nagpur Bench, and Nagpur in W.P. No. 476 of
2014 (Keshav Vs Senior Manager (Mine), Saoner Mine
No. 1) in regard to protection of wages of the workmen.
Taking in to consideration the delay in raising the dispute,
the Hon’ble High Court granted the benefit of pay
protection to the concerned workmen, only from the period
of 3 years prior to filing of petition before the Hon’ble
Court.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6333
16.
Admittedly, there is unexplained delay of about 11
years in raising the dispute. Taking in to consideration
such delay in raising the dispute and applying the principles
enunciated by the Hon’ble High Court, Nagpur Bench in
Writ petition No.476/2014 to the case in hand, I think it
proper to give the benefit of protection of wages to the
workman from the preceding three years of raising of the
dispute by the workman before the Conciliation Officer-
cum Assistant Labour Commissioner (Central),
Chandrapur. Accordingly, the workman is entitled for the
differential of wages of Loader and general mazdoor
category I, from the preceding three years of the date of
raising of the dispute before the Conciliation Officer and
not from the date of his transfer to Majri Area, as claimed
by him. The workman is also entitled to consequential
benefits arising out of such pay protection. Hence it is
ordered:-
ORDER
The action of the management of Majri Area/Wani
Area of WCL in denying pay/wages protection to Shri
Babulal Dhelba at the time of conversion from Piece Rated
to Time Rated workers as per Tripartite settlement dated
02.11.1992 & Modification dated 31.10.1995 is illegal and
unjustified.
The workman is entitled for the benefit of protection
of wages from the preceding three years of the date of
raising of the dispute before the Conciliation Officer-cum
Assistant Labour Commissioner (Central), Chandrapur.
Accordingly, the workman is entitled for the differential of
wages of Loader and general mazdoor category I, from the
preceding three years of the date of raising of the dispute
before the Conciliation Officer and not from the date of his
transfer to Majri Area, as claimed by him. The workman is
also entitled to consequential benefits arising out of such
pay protection. The Party No. 1 is directed to pay the
arrears of the differential of wages of Loader and General
Mazdoor, Category-I to the workman within one month of
the date of publication of the award in the official gazette.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 8 flrEcj] 2014
dk-vk- 2504-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-lh-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] gSnjkckn ds iapkV (lanHkZ la[;k 22@1992)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 08&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@33@1992&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 8th September, 2014
S.O.
2504.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 22/1992)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of SCCL, and their
workmen, received by the Central Government on
08-09-2014.
[No. L-22012/33/1992-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL–I, HYDERABAD
Present : SRI V. RAVI KUMAR,
B.Sc., LL.M., Chairman (FAC).
I.D. No. 22/1992
Dated 27th day of March, 2014.
BETWEEN
Sri K. Komaraiah,
S/o Sri Raja Narasimha,
H.No.7/92/995, Ramakrishna purma area,
Division–I, Adilabad.
.....Petitioner
AND
The General Manager,
Singarani Collieries Company Limited,
Ramakrishna purma, Adilabad.
.....Respondent
This Industrial Dispute coming up for hearing on
27.03.2014 in the presence of Sri. P.A.V.V. Sharma, Advocate
for the Respondent, none of appeared for the petitioner
after remind having stool over the same for consideration,
this court passed the following:
AWARD
The Central Government of India, Ministry of Labour
referred Industrial Dispute to this Tribunal for adjudication
of the issues as follows :-
1.
Whether the action of the Management of
M/s. Singareni Collieries Company Limited,
Ramakrishna puram in dismissing the services
of Sri K. Komaraiah, Coal Filler, MK4 is legal
and justified ?
2.
If not to what relief the concerned workman is
entitled ?
2.
After receiving the reference this Tribunal registered
as I.D. No. 22/1992 and notices were issued to both parties.
Both the parties appeared and engaged their counsels.
Both parties filed their respective pleadings. Before
final arguments both parties disputed the Domestic
6334
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Enquiry and examined witnesses and marked Exs.M1 to
M10. Subsequently this Tribunal decided the Domestic
Enquiry against the Respondent and in favour of the
petitioner / workman vide order dated 15.02.1995.
3.
Against the order the Respondent filed Writ Petition
No.139/1996 before the Hon’ble High Court and the said
Writ Petition was allowed on 01.11.2012. After receiving
the Hon’ble High Court order and in view of old case this
Tribunal again issued notices to both the parties. On
behalf of Respondent Sri. P.A.V.V. Sharma, Advocate filed
Vakalat and the notice of petitioner returned un-served
“NO SUCH PERSON”. Again this Tribunal issued fresh
notice to the counsel on record and the same also returned
“NO SUCH PERSON”. This Tribunal ordered publication
in Eenadu at Mandhamari area, Adilabad District for
appearance of petitioner by 24.06.2013. As per the Docket
proceedings from time to time the matter is posted for
appearance of petitioner from 24.06.2013 to 03.03.2014. On
03.03.2014 petitioner called absent, no representation, it
appears Petitioner has no interest to pursue the case as
finally posted to 27.03.2014.
On 27.03.2014 also petitioner called absent, no
representation, petition is dismissed. NIL Award is passed
accordingly.
Given under my hand and the seal of this Court on
this the 27th day of March, 2014
V. RAVI KUMAR, Chairman (FAC)
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2505-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj LVsV cSad vkWiQ
bafM;k ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k tcyiqj ds iapkV (lanHkZ la[;k 68@09) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 01&09&2014 dks izkIr gqvk FkkA
¹la- ,y&12011@05@2009&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2505.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 68/09)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial
dispute between the management of State Bank of India
and their workmen, received by the Central Government
on 01/09/2014.
[No. L-12011/05/2009-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/68/09
PRESIDING OFFICER : SHRI R.B.PATLE
General Secretary,
Mrithya Karmachari Parivar Kalyan Parishad,
F-1, Tripti Vihar, Opp. Engg. College,
Ujjain.....Workman/Union
Versus
Managing Director,
State Bank of India, Central Office,
Madam Cama Marg,
Mumbai-21
....Management
AWARD
Passed on this 28th day of July 2014
1.
As per letter dated 3-7-09 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/
05/2009-IR(B-I). The dispute under reference relates to:
“Whether the action of the Dy.General Manager,
State Bank of India, Zonal office, Gwalior in not
providing compassionate appointment to Smt. Alka
Kadam after the death of her husband is justified? If
not, to what relief Smt. Alka Kadam is entitled to
get?
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 4/1 to 4/6. The case of Ist party dependent of the
workman is that her husband Shri Jaishivrao Kadam was
appointed as peon on 26-2-1981. He rendered his services
with devotion. Her husband died of cancer on 30-10-03 at
the age of 42 years. The deceased left his widow Alka-40
years, son Arun is 20 years old, second son Pankaj is 16
years, daughter Sangeeta is 14 years and son Rinku is 12
years as his dependent. After death of her husband,
amount of Rs. M.W.S.Scheme Rs.10,000 Gratuity Rs.
96,711/-, Provident Fund 2,21,133 Society
Rs. 1,00,000/-, Gratuity Difference- Rs.11,243/- & Provident
Fund difference Rs. 1,171/-. Total Rs. 4,40,258/- were
received by the widow after deducting consumer loan Rs.
16,285/-, house Loan Rs. 2,51,033/-, additional loan 50,505/-,
society loan 77,083/-. Total loan Rs.3,94,906/- balance
amount Rs. 45,352/- was paid to the widow. The widow
was sanctioned pension of Rs. 2578.
3.
It is submitted that applicant has to maintain her
sons and daughter. The pension amount is not sufficient
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6335
for her family needs. She prays for her appointment on
compassionate ground. IInd party has refused employment
on compassionate ground showing artificial income of the
family. Ist party dependent of the deceased has no other
source except the pension amount. On such ground, she
prays for appointment on compassionate ground.
4.
IInd party filed Written Statement at Page 5/1 to 5/8.
Preliminary objection is raised by IInd party that the widow
cannot be covered as workman under Section 2(s) of
I.D.Act, the dispute is not covered under Section 2-k of
I.D.Act. Therefore the reference is not tenable. On merit,
IInd party submits that scheme has been framed by Bank
for appointment on compassionate ground to the
dependents of employee died in harness. The object of
the said scheme for grant of appointment on
compassionate ground is to enable the family to tide over
the sudden crises due to the death of employee. The details
of the factors to be considered are provided – family
pension, gratuity amount received, employees contribution
to Provident Fund, any compensation paid by the Bank or
its welfare fund, proceeds of LIC policies and other
investments of the deceased employees, income of the
family from other sources, income of other family members
from employment and size of the family and liabilities. IInd
party has also given details of the amount paid to the
widow after adjusting loan amount. Amount of Rs. 45,352/-
was paid to the family at the rate of 6 % per annum would
be Rs.181/- per month. The deceased was receiving gross
salary Rs. 8600/-, take home salary is Rs. 3358/-. Widow is
sanctioned pension of Rs. 2578/-. The income of family is
Rs. 2959/-. The family consisting of 6 members at time of
death of the employee was receiving take home salary
Rs. 3358/-. Family has house worth Rs. 5 lakh. Ist party
widow cannot be said in penurious condition. IInd party
submits that claim for compassionate appointment is
rejected after considering all those factors. Ist party is not
entitled to appointment on compassionate grounds.
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 Dy.
In Affirmative
General Manager, State Bank
of India, Zonal office, Gwalior
in not providing compassionate
appointment to Smt. Alka Kadam
after the death of her husband is
justified?
(ii) If not, what relief the workman is
Dependent is
entitled to?”
not entitled to
relief claimed.
REASONS
6.
Claim under reference relates to rejection of
appointment on compassionate ground of widow of
deceased. The documents are admitted. Exhibit W-1 is
death certificate of Shri Jaishivrao kadam. The date of
birth is shown 30-10-03. Exhibit W-2 is copy of pass book
of SBI Account. The balance is shown Rs. 7580.48 on 15-
6-04. The pension amount is credited Rs, 2578/- on 31-5-
04. Exhibit W-3 is application submitted by widow Alka for
appointment on compassionate ground. W-7 is application
submitted to ALC giving details of the family. Amount
received from different sources, loan amount adjusted and
balance Rs.45352 was paid to the widow. The pension of
Rs.2578/- was received by the widow. Exhibit W-8 is copy
of application submitted to ALC, Bhopal giving all details.
Management produced documents Exhibit m-1. The details
of the amount paid to the widow, the pension amount,
income of Rs.200/- per month from M.W.S.Scheme. The
detailed calculations are submitted at Exhibit M-2. Exhibit
M-3 is letter initiating claim of appointment of
compassionate ground. Parties are not in dispute about
the amount received by widow on different heads and
loan amount adjusted.
7.
Widow Alka in her affidavit of evidence has stated
all those facts supported by documents. In her cross-
examination, Alka says she has received education upto
10th standard. Her family consist of 3 sons and daughter
and himself. Her elder son is of 25 years, 2nd son is of 22
years and 3rd son is of 18 years of age and daughter is of
20 years of age. One of her son is doing private work. That
after death of her husband, amount about Rs. 4 lakh was
received. Pension was received Rs. 3500/-. She had
submitted application for appointment on compassionate
ground of her elder son Arun. Her husband died on 3-10-
03. Her son was doing private job and gets Rs. 2500/- to
Rs.3000/- per month. Her husband was getting gross
amount Rs. 8000/-.
8.
Management’s witness Shri T. K. Joshi has given
the amount paid to widow. Loan amount adjusted from it
and balance amount Rs. 45352/- was paid to the widow.
The widow is sanctioned pension Rs. 2578/-. The income
of the family is assessed Rs.2959/-. Last salary of deceased
was Rs. 8600/-. Deduction of Rs. 3358/- were made from it.
Take home salary of deceased was Rs. 3358/-.
Management’s witness in his cross-examination says he
had not inspected the financial condition of the family. If
evidence of Alka in cross-examination is considered, she
gets pension Rs.3500/-. Her son is getting income Rs. 2500-
3000 per month. Entire loan is recovered from the amount
received after death of his husband. Family is free from
any kind of loan. The copy of the scheme is produced at
Exhibit M-6. The factors and financial condition of family
6336
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
to be considered are shown in it. The widow has received
amount of Provident Fund, Gratuity and other benefits.
She is also receiving pension. Her son is working. Therefore
rejection of claim for appointment on compassionate
ground appears proper.
9.
Learned counsel for IInd party Mr. Shroti relies on
catin of cases.
In case of State Bank of India and another versus
Jaspal Kaur reported in 2007(9)SSC 571, their Lordship
held whether deceased left the family in penury and
without any means of livelihood to be decided by
competent authority. Factors to be taken into account for
assessing financial condition. Court should not normally
interfere with the decision of the authority. Their Lordship
considered Penury means compassionate appointment
cannot be claimed by way of right, nor public office is
heritable.
In case of Umesh Kumar Nagpal versus State of
Haryana and others reported in 1994(4) Supreme Court
cases 138. Their Lordship dealing with object of
compassionate appointment held it is to enable the
penurious family of the deceased employee to tide over
the sudden financial crisis and not to provide employment.
Their Lordship dealing with the necessary factors for being
taken into account before offering held mere death of an
employee doesnot entitle his family to compassionate
appointment. The authority must consider as to whether
the family of the deceased employee is unable to meet the
financial crisis resulting from the employees death.
In case of State Bank of India and another versus
Somvir singh reported in 2007(4) Supreme Court cases
778. Their Lordship dealing with compassionate
appointment scheme for dependants of employees dying
in harness held factors to be considered for determining
financial condition. Income of the family from all sources
to be assessed. Penury doesnot comprehend mere financial
hardship.
10.
Ratio held in all those cases supports arguments
advanced by Shri Shroti for IInd party. For above reasons,
I record my finding in Point No.1 in Affirmative.
11.
In the result, award is passed as under:-
(1)
The action of the Dy.General Manager, State Bank
of India, Zonal office, Gwalior in not providing
compassionate appointment to Smt. Alka Kadam after
the death of her husband is proper and legal.
(2)
Ist party, widow of deceased employee is not entitled
to relief claimed by her.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2506-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj nf{k.k jsyos ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k
psUubZ ds iapkV (lanHkZ la[;k 51@2013) dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 12&09&2014 dks izkIr gqvk FkkA
¹la- ,y&41011@15@2013&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2506.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 51/2013) 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 12/09/2014.
[No. L-41011/15/2013-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Wednesday, the 3rd September, 2014
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 51/2013
(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 and their workman)
BETWEEN
The Divisional Secretary
: 1st Party/
All India Loco Running Staff
Petitioner Union
Association, 116-D,
Railway Colony, Erode-2
AND
1.
The Divisional Railway
: 2nd Party/
Manager, Southern Railway,
1st Respondent
Salem Division, Salem
2.
The Sr. Divisional Electrical
: 2nd Party/
Engineer (TRD)
2nd Respondent
Salem Division,
Southern Railway, Salem
3.
The Chief Crew Controller
: 2nd Party/
Crew Booking Officer
3rd Respondent
Southern Railway, Salem
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6337
Appearance:
For the 1st Party/
: Sri DSM Augustus Babu,
Petitioner
Authorized Representative
For the 2nd Party/
: M/s K. Muthamil Raja,
Respondents
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment, vide its Order No. L-41011/15/2013-IR (B-I)
dated 25.04.2013 referred the following Industrial
Dispute to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the Railway Management,
Sr. Divisional Electrical Engineer (TRD), Salem
Division, Southern Railway, Salem in respect of
marking absent and not making payment for April
and May 2012 to Sri N. Balamurugan, Asstt. Loco
Pilot is justified or not? If not, to what relief is the
workman entitled?
2.
On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 51/2013 and issued notices to both
sides. The petitioner has entered appeared through his
Authorized Representative and the Respondent through
its counsel and have filed Claim and Counter Statement
respectively.
3.
The averments in the Claim Statement are as below:
The petitioner is a union registered under the Trade
Union Act. N. Balamurugan is an active member of the
Petitioner Union and is working as Sr. Asstt. Loco Pilot at
Erode under the supervision and control of the Third
Respondent in the management of First and Second
Respondents. In the course of his performance,
Balamurugan was required to shoulder higher
responsibility on oral order. He expressed his inability to
work temporarily on domestic reasons. He wanted 30 days
leave to settle his family encumbrances but this was not
accepted by the Second Respondent. The Third
Respondent who is directly controlling the workman did
not assign any duty to Balamurugan though he turned up
at the office every day. He was marked absent in the muster
roll from 02.04.2012. He was willfully kept off from his
normal duties and was deprived of his salary for the months
of April, May and June unlawfully. Balamurugan has
received his Privilege Ticket Order on 05.04.2012. He has
also received his consumable materials during the period
marked absent. Balamurugan has affixed his signature in
the office register maintained at the office for reporting for
duty. An order may be passed directing the management
to pay wages due to Balamurugan.
4.
The Respondent has filed Counter Statement
contending as follows:
The reference by the Ministry of Labour is for
adjudication of the alleged denial of pay for the months
April and May 2012. However, in the Claim Statement the
petitioner has claimed salary for the month of June also.
Balamurugan was appointed as Asstt. Loco Pilot in Palghat
Division of Southern Railway in the year 2004. He was
promoted as Sr. Asstt. Loco Pilot w.e.f. 01.05.2010. As Sr.
Asstt. Loco Pilot he belongs to Loco Running Cadre. The
posts in the cadre are classified as Safety Posts. There
was acute shortage of staff in the Salem Division after the
division was formed. In spite of this, the petitioner has
been granted leave of 19 days in the year 2010, 42 days in
the year 2011 and 6 days till 02.04.2012 in the year 2012.
Erode Crew Booking Centre used to book average 177
sets of crews to work the trains but the number of Sr.
Asstt. Loco Pilots available were only 333. So the request
of Balamurugan for long leave from 02.04.2012 to 02.05.2012
was rejected by the Controlling Authority on 09.04.2012
and this position was exhibited in the notice board of Crew
Booking Centre, Erode. But Balamurugan continued to
remain absent from duty from 02.04.2012. Unauthorized
absence from duty is a misconduct as per Railway Services
(Conduct) Rules. Due to absence of Balamurugan a Charge
memorandum was issued to him and a penalty of reduction
of pay to one lower stage was imposed on him.
Balamurugan had already undergone training and
completed the promotional course. Order dated 10.02.2012
had been issued to him alongwith others to officiate as
Loco Pilot but he refused to attend work in spite of the call
given to him on 01.04.2012 to officiate as Loco Pilot at
Erode. He was called again on 03.04.2012 but still he did
not obey the instruction. He continued to be absent from
duty unauthorizedly. Staff are supposed to sign CMS
Register only after receiving a Train Order. Balamurugan
has signed the above register without any Train Order or
authorization of Train Order. Balamurugan having
absented from duty unauthorizedly he is not entitled to
salary for the period.
5.
The evidence in the case consists of oral evidence
of WW1 and WW2 and MW1 and also documents marked
as Ext.W1 to Ext.W23 and Ext.M1 to Ext.M13.
6.
The points for consideration are :
(i)
Whether the action of the management in denying
salary to Balamurugan during April and May 2012 is
justifiable?
(ii)
What, if any, is the relief to which the workman is
entitled?
The Points
7.
Balamurugan on whose behalf the dispute is raised
by the petitioner had entered the service of the Respondent
as Asstt. Loco Pilot in the year 2004. He had come under
Salem Division after the division was formed in 2007. He
was promoted as Sr. Asstt. Loco Pilot w.e.f. 01.05.2010.
6338
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
8.
The dispute is in respect of the denial of salary to
Balamurugan for the months April and May 2012. Though
in the Claim Statement he has requested for salary for the
month of June 2012 for which month also he is said to
have been denied salary. This could not be considered by
the Tribunal since it is not the subject matter of reference.
9.
Ext.M7 is the office order dated 10.02.2012 issued to
Balamurugan alongwith others who officiate as Loco Pilot/
Shunting Grade-II. This order seems to have been issued
due to acute shortage of Loco Pilot staff in Salem Division
during the period. Balamurugan had already undergone
training and completed the promotional course and
certified fit to work as Loco Pilot before Ext.M7 order was
issued. The application given by Balamurugan requesting
for leave for one month from 02.04.2012 to 02.05.2012 was
rejected by the Controlling Authority. Ext.M1 is the leave
application of Balamurugan and Ext.M2 is the notice
exhibited in the Notice Board showing rejection of the
leave application. Balamurugan was served with a call to
take learning road to officiate as Loco Pilot/Shunting at
Erode on 01.04.2012 but he refused to do so and made an
endorsement in the Call Book. The page of the Call Book
containing the entry of Balamurugan is marked as Ext.M8.
Another call was made to him on 03.04.2012 and still he
refused to take the learning road. Ext.M9 is the copy of the
entry in the Call Book regarding this. He continued to be
absent from duty after this.
10.
It is not in dispute that a leave application was given
by Balamurugan but this was rejected by the concerned
authority and notice of this was published in the Notice
Board. It is also not in dispute that in spite of the refusal
Balamurugan who was served with call to take learning
road refused to do so on two occasions. He continued to
be absent from duty though his application for leave was
rejected. On account of this misconduct the Respondent
seems to have initiated proceedings against Balamurugan
and reduced his pay to a lower stage.
11.
The argument that is advanced on behalf of the
concerned worker Balamurugan is that he had submitted
an application for leave and there was sufficient reason
for his taking leave and this should not have been rejected.
According to the Authorized Representative, the relevant
rules permit the worker to take leave. It is also argued by
the Authorized Representative that even though
Balamurugan did not attend duty as Loco Pilot (Shunting),
he had been presenting himself at the office and had been
signing the Attendance Register also but he was not
assigned any duty by the office. According to the
Authorized Representative, Balamurugan was actually not
on unauthorized absence. He was denied his normal work
by the Management since he was not willing to work as
Loco Pilot.
12.
According to the Respondent, the workman
concerned had applied for leave only one day in advance
and the circumstances did not permit the Management
to accede to the request of the worker to allow his leave
application. Ext.M1 the leave application reveal that it
is dated 01.04.2012 and Balamurugan was asking for
leave from 02.04.2012 to 02.05.2012. What is stated in
the application is that due to unexpected family problems
arising in the family, he may be granted leave. As seen
from Ext.M2 the rejection of leave application was
published in the Notice Board. There is no case for the
petitioner that this was not done.
13.
The Authorized Representative has referred to Note-
1 of Rule-224 of Indian Railway Establishment Manual
which according to him would show that there was every
justification for Balamurugan in seeking leave. Rule-224 is
concerned with the steps to be taken on refusal by an
employee on promotion. It provides for debarring for future
promotion for a particular period if an employee refuses
promotion. Note-1 to the Rule states that the administration
can entertain request from employee for postponement of
promotion for very short period on account of grave
domestic difficulties and other humanitarian
considerations. According to the Authorized
Representative this note applies to the case of
Balamurugan. In fact, the note is not applicable to the
present case at all. Balamurugan had not requested for
postponement of promotion. He had already been given
direction to officiate as Loco Pilot by order dated
10.02.2012. The application by Balamurugan was not
for postponement of promotion but only for leave.
14.
It could be seen from the leave application that there
was no justification for seeking leave also. The post in
the cadre of Loco Running Staff are classified as Safety
Posts. Application for leave should have been given in
advance. As could be seen from Ext.M1 Balamurugan
did not specify the reason for his taking leave except
stating that he is having family problems. In the claim
statement what he has stated is that he wanted leave to
complete and settle his family encumbrance. However,
his case in the Proof Affidavit filed by him is that his
mother was critically ill and he was required to visit his
mother frequently. He has further stated that financial
help was required for his mother’s treatment. As could
be seen, this case of illness of his mother is coming only
during evidence before this Court. What is stated in the
notes of argument submitted on behalf of the petitioner
is that the concerned workman would have earned more
by way of allowance of mileage as Sr. Asstt. Loco Pilot
than if working as Loco Pilot (Shunter) and he could
have used this to meet the extra expenditure for treating
his mother. Thus, the cat has come out of the bag and the
reason for refusal to work as Loco Pilot (Shunting) seems
to be the more attractive work as Asstt. Loco Pilot which
would have given more earning by way of allowance. It is
¹Hkkx II—[k.M 3(ii)º
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6339
very much clear that the concerned worker has refused to
do the work that was allotted to him. He must have been
very much aware of the shortage in the Loco Section and
yet he had absented himself from duty on the pretext of a
leave application given by him which was subsequently
rejected. Being a worker coming under the classification
of Safety Posts, the concerned worker should have given
his application for leave in advance. Apart from this, he
could have remained absent from duty only after his leave
application was allowed. He continued to be absent from
duty even after the application was rejected and he came
to be aware of it.
15.
The contention raised on behalf of the concerned
worker that though he did not attend duty as Loco Pilot
(Shunting), he was attending the office and so could not
be considered as absent also could not be accepted. He
seems to have been signing CMS Register even though
he was absenting from duty. MW1, the Chief Crew
Controller of Salem Division has stated that CMS Register
is for home station crew and is not meant for reporting
office for duty. The staff are supposed to sign CMS
Register only after receiving a Train Order, he has stated.
After Train Ordering CMS (Crew Management System)
staff approves the Train Order only the staff are to sign on
CMS Kiosk. Duty of the running staff commences when
he signs on CMS Kiosk. MW1 has stated that signing of
the register by Balamurugan was an unauthorized act and
he was imposed with the penalty of withholding of an
increment for his misconduct. The penalty advice is marked
as Ext.M10. In fact the concerned worker himself has
admitted during his cross-examination that only after
allotment of work, an employee can sign CMS Register.
His stand during cross-examination is that only to prove
his presence he has signed the register though he was not
allotted work.
16.
Rule-503 of Indian Railway Establishment Code
states that leave cannot be claimed as a right and leave of
any kind may be refused or revoked by the authority. The
Railway does not permit a Railway Servant to be absent
from duty without permission of his superior or alter his
appointed hours of attendance or exchange duty with any
other Railway Servant or leave his charge of duty unless
properly relieved. It is very much clear that the concerned
worker had defied the authority and had refused to be on
duty in spite of the rejection of his application of his leave.
So there is no justification in his seeking salary for the
period during his absence. He is not entitled to any relief.
17.
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 3rd September, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined :
For the 1st Party/
: WW1, Sri G. Subramanian
Petitioner
WW2, Sri N. Balamurugan
For the 2nd Party/
: MW1, Sri G. Gunaseelan
1st, 2nd &
3rd Management
Documents Marked :
On the petitioner’s side
Ex.No.
Date
Description
Ex.W1
28.04.2012
Representation to ALC (C),
Madurai
Ex.W2
21.02.2013
Failure report submitted by
ALC(C), Madurai
Ex.W3
04.07.2012
Letter issued by DPO/SA
Ex.W4
10.02.2012
Officiating Order
Ex.W5
20.02.2012
Representation submitted by
workman
Ex.W6
02.04.2012
Workman to CCRC/O/ED
Ex.W7
03.04.2012
Representation to Sr. DEE/SA,
DRM/SA & DPO/SA
Ex.W8
01.04.2012
Leave letter submitted by
workman
Ex.W9
27.04.2012
Telegram message given to DRM/
SA and ALC (C)/MDU
Ex.W10
28.05.2012
Proceedings of ALC (C)/MDU
Ex.W11
16.05.2012
Representation to DRM/SPA
Ex.W12
15.06.2012
Representation to LEO/CBE
Ex.W13
-
Copy of pay slip
Ex.W14
04.06.2012
Promotion order as LP/GOODS
Ex.W15
05.04.2012
Supply of one set PTO
Ex.W16
09.04.2012
15.05.2012
Extract of Register
27.06.2012
Ex.W17
02.06.2012
Copy of charge memorandum
Ex.W18
19.06.2012
Reply to charge memorandum
Ex.W19
14.07.2012
Penalty advice
Ex.W20
21.08.2012
Demotion order
Ex.W21
03.07.2012
Letter issued by DPO
Ex.W22
06.07.2012
Letter given by workman
Ex.W23
04.04.2012-
Copy of the Spare
30.06.2012
Register
6340
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
On the Management’s side
Ex.No.
Date
Description
Ex.M1
01.04.2012
Leave application of the 1st Party
Ex.M2
12.04.2012
Notice exhibited in the notice
board
Ex.M3
01.04.2012 Crew Sign on Details
To
30.04.2012
Ex.M4
April-May
Extract of Muster Roll
Ex.M5
31.05.2012
Report of CCRC/ED to ADEE/OP/
ED regarding unauthorized
absence of 1st Party
Ex.M6
14.07.2012 Penalty Advice
Ex.M7
10.02.2012 Office Order No. SA/12/2012/
Run Officiating 1st party for the
post of Loco Pilot/Shunting Gr.II
Ex.M8
01.04.2012 Call book entries
Ex.M9
03.04.2012 Call book entries
Ex.M10
19.08.2009 Earlier Penalty Advice to the 1st
Party
Ex.M11
-
Rules applying to Railway
Servants Generally
Ex.M12
-
Indian Railway Establishment
Code Vol.I
Ex.M13
-
General Rules of Railway Servant
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New Delhi, the 12th September, 2014
S.O.
2507.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 44/
2011) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Chennai as shown in the Annexure, in the industrial
dispute between the management of State Bank of India
and their workmen, received by the Central Government
on 12/09/2014.
[No. L-12012/62/2010-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Tuesday, the 2nd September, 2014
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 44/2011
(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 State Bank of India and their workman)
BETWEEN
Sri V. Anbalagan
: 1st Party/Petitioner
AND
1.
The Deputy General Manager : 2nd Party/
Appellate Authority
1st Respondent
State Bank of India Zonal Office
Mc Donalds Road
Tiruchirapalli-620001
2.
The Asstt. General Manager
: 2nd Party/
(Operations)
2nd Respondent
Disciplinary Authority
State Bank of India,
Zonal Office
Mc. Donalds Road
Tiruchirapalli-620001
Appearance :
For the 1st Party/
: M/s Balan Haridas,
Petitioner
Advocates
For the 2nd Party/
: M/s T.S. Gopalan & Co.,
Respondents
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12012/62/2010-IR (B-I)
dated 23.05.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the management of State
Bank of India, Thiruchirapalli in imposing the
punishment of removal from service w.e.f. 08.02.2008
on Sri V. Anbalagan, Ex-Deputy Head Assistant
(Cash) 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 44/2011 and issued notices to both
sides. Both sides have entered appearance through their
counsel and filed their claim and counter statement
respectively.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6341
3.
The averments in the Claim Statement filed by the
petitioner in brief are these:
The petitioner had joined the Respondent Bank as
Cashier in the year 1981. From the year 1999 the petitioner
was working in Gingee branch. During the year 2003, he
was assigned the duty of Deputy Head Assistant (Cash).
The petitioner was placed under suspension on 02.08.2003
making certain allegations against him. The Respondent
issued a Charge Memo to the petitioner. He gave
explanation denying the charges. In spite of this, domestic
enquiry was ordered against the petitioner. Out of the 8
charges leveled against the petitioner, the Enquiry Officer
held that charges 1 to 4 are not proved and charges 5 to 8
are proved. The Disciplinary Authority disagreed with the
findings of the Enquiry Officer in respect of charge nos. 1
to 4 and held that charges 1, 2 and 4 are proved and charge
no. 3 is proved partly also. The reasons given by the
Disciplinary Authority while disagreeing with the findings
of the Enquiry Officer are contrary to evidence on records
and perverse to the core. The Disciplinary Authority had
disagreed with the findings of the Enquiry Officer as he
was aware that major penalty cannot be imposed in respect
of charges 5 to 8. The petitioner had not committed the
offences alleged. The allegation that on conducting intra-
day cash verification on 28.07.2003, a sum of Rs. 30,000
was found in excess in the petitioner‘s cash receipt counter
is false. The other connected charges are also false. So
also the charge that the petitioner made intimidating
remarks against an Assistant Head Cashier, that he behaved
in an indecent and riotous manner to the Deputy Manager
are also false. The return of cheques issued by the
petitioner referred to in charges 6 and 7 had nothing to do
with the employment of the petitioner and cannot be the
subject matter of any disciplinary proceedings. Charges 6
to 8 are to be ignored. An order may be passed setting
aside the order of the Second Respondent, the Disciplinary
Authority and directing the Respondents to reinstate the
petitioner in service with full back wages, continuity of
service and other attendant benefits.
4.
The Respondents have filed Counter Statement
contending as follows:
While the petitioner was working in Gingee branch
as Deputy Head Asstt. (Cash) he committed certain
irregularities and a charge sheet was issued to him on
10.04.2004. The 1st charge against him is that on 28.07.2003,
while conducting intra-day cash verification in the cash
counters, Rs. 30,000 was found in excess in the cash receipt
counter of the petitioner. The 2nd charge is that on the
same day on completion of intra-day cash verification, he
refused to sign the report of cash verification even though
required by the Deputy Manager (Cash) and this amounts
to disobedience of lawful and reasonable order of the
superior. The 3rd charge is that on the same day he had
surreptitiously replaced Rs. 500 notes with Rs. 100 notes
while delivering amount to the customer Tarzan thus
resulting in cash shortage of Rs. 20,000. The 4th charge is
that on 02.08.2003 the petitioner made intimidating remarks
to the Asstt. Head Cashier. On the same day he behaved
in an indecent and riotous manner to the Deputy Manager.
The petitioner had issued cheques without maintaining
sufficient balance in the Savings Account and the cheques
have been returned for want of sufficient funds. As per
the 8th charge the petitioner has resorted to outside
borrowings. The reply given by the petitioner in the charge
memo was not satisfactory and an enquiry was conducted
on the charges. The Enquiry Officer held that charges 1 to
4 are not proved whereas charges 5 to 8 are proved. The
Disciplinary Authority who considered the report did not
agree with the findings of the Enquiry Officer and held
that charges 1, 2 and 4 are proved and charge 3 is partly
proved. The Disciplinary Authority imposed the
punishment of removal from service with superannuation
benefits on the petitioner. The petitioner is not entitled to
any relief.
5.
The evidence in the case consists of oral evidence
of WW1 and MW1 and documents marked as Ext.W1 to
Ext.W6 and Ext.M1 to Ext.M 32.
6.
The points for consideration are:
(i)
Whether the action of the Respondent in imposing
the punishment of removal from service on the
petitioner is justified?
(ii)
What if any is the relief to which the petitioner is
entitled?
The Points
7.
The alleged incidents resulting in the laying of the
charge against the petitioner occurred while he was
assigned the duty of Head Asstt. (Cash) and was working
as such in Gingee Branch of the Respondent. On 28.07.2003
one Tarzan, a customer of the bank had withdrawn Rs.
2,00,000 from the bank. Though the cash was disbursed
by another staff who was examined as PW4 in the enquiry
proceedings, the petitioner is said to have obtained the
cash from the customer counted it at the counting machine
and returned it to the customer. The customer is said to
have come back to the branch after more than an hour
stating that there was a mix up of Rs. 100 notes in one of
the sections of Rs. 500 and the cash he has obtained is
short of Rs. 20,000. The Manager of the Bank in
consultation with the Officer decided to conduct intra-
day cash verification in all the cash counters. According
to the Management, on such verification, excess amount
of Rs. 30,000 was found at the counter of the petitioner.
Even though the Officer who conducted the verification
had collected this amount also from the counter the
petitioner is said to have snatched away this amount from
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
him. On the basis of intra-day cash verification it is alleged
that excess cash was found in the counter of the petitioner.
According to the Management, the petitioner refused to
sign the report of intra-day cash verification done on
28.07.2003. The first charge is on account of the alleged
excess amount found at the counter and the second charge
is on account of refusal of the petitioner to sign the report
of intra-day cash verification. The third charge is that the
petitioner had replaced Rs. 500 notes with Rs. 100 notes
while counting the cash that was delivered to Tarzan and
it is on account of this shortage had occurred in the cash
received by Tarzan. The incidents relating to charges 4
and 5 are said to have occurred on 02.08.2003. On this
date, by 1000 AM the petitioner is said to have made
intimidating remarks on PW4 in the enquiry proceedings.
The remarks allegedly made are reproduced in Tamil in the
charge memo. The fifth charge is that on 02.08.2003 itself
at noon the petitioner had behaved in an indecent and
riotous manner towards PW3, the Deputy Manager
allegedly because he was a witness of the incident of
28.07.2003. Charges 6 to 8 are in respect of issue of
cheques by the petitioner without sufficient balance in
his accounts return of the cheques for insufficient funds
and borrowings allegedly made by the petitioner, assumed
on the basis of bouncing of the cheques.
7.
In the enquiry proceedings, the Management had
examined PW1 Kannuswamy who had conducted intra-
day cash verification at the counter of the petitioner, PW2
Edwin who was a witness to the same, PW3 to whom the
petitioner had allegedly behaved in a riotous manner on
02.08.2003, PW4 who disbursed amount to customer
Tarzan, PW5 another staff who was also in one of the
counters on 28.07.2003 and PW7 the Branch Manager.
Though the name of MW6 is also given, this witness is
not seen examined. On the side of the petitioner, those
examined are the Security Officer and the Messenger of
the Branch.
8.
Charge Nos. 1 and 2 can be considered together.
These are in respect of excess cash allegedly found at the
counter of the petitioner on intra-day cash verification
and the alleged refusal of the petitioner to sign the
verification report. The decision for the cash verification
was taken on the basis of the oral complaint by the
customer that the cash received by him after counting
was short of Rs. 20,000.
9.
The Enquiry Officer has found that Charge Nos. 1
and 2 and also Charge Nos. 3 to 5 are not proved. However,
the Disciplinary Authority had entered a dissenting note
and had found that Charge Nos. 1 and 2 are proved. He
found that Charge Nos. 4 and 5 also are proved and Charge
No. 3 is partly proved. The reason given by the Enquiry
Officer to enter a finding regarding Charge No. 1 against
the Management is that PW1 has signed in CSE Receipt
and Delivery Book after balancing the cash According to
him, after signing in this one cannot say that there was
excess cash of Rs. 30,000. He has stated that if there was
no excess cash there was no misappropriation of bank
money also. Regarding Charge No. 2 that the petitioner
has refused to sign the cash verification report, the
Enquiry Officer has found that the report was typed not
on 28.07.2003, the date on which cash verification was
done but on 29.07.2003. According to him the petitioner
has refused to sign the report since it showed excess cash
of Rs. 30,000 to that of the original figures which was
acknowledged by PW1.
10.
The Disciplinary Authority on analyzing the
evidence of the witnesses who gave evidence regarding
the cash verification has differed from the finding of the
Enquiry Officer and has found that there was excess cash
at the counter of the petitioner. Based on their evidence
he has found Charge No. 2 also against the petitioner.
11.
The evidence given by the witnesses should be
analyzed to find out if there is any perversity in the finding
entered by the Enquiry Officer and whether there was any
justification in the Disciplinary Authority entering a
dissenting note and giving findings against the petitioner.
PW1, the first witness has spoken as to how he happened
to do the intra-day cash verification at the counter of the
petitioner. He had seen the customer Tarzan holding the
cash that was delivered by PW4, Lata, the Cashier by 1100
AM. By 1200 noon the Branch Manager had called him to
his room and the customer Tarzan was also present there.
The customer seems to have gone to the Branch Manager
and showed the Manager a section in which notes of
Rs. 100 and Rs. 500 denominations were mixed. The matter
was reported to the Zonal Office and they were instructed
to conduct intra-day cash verification. The verification at
the counter of PW4 and petitioner were done by PW1.
PW2 had been witness to this Verification of the counter
of one Sundararajan was done by PW3. PW1 has deposed
that on verification when notes were taken out, Rs. 100
sections were found over the counter and he had asked
the petitioner about this. He replied that it is his personal
cash. PW1 enquired him if he is not aware that he is not
supposed to keep personal cash at the counter. The
petitioner spoke in an arrogant manner. PW1 came out
carrying all the cash including the three Rs. 100 sections
found over the counter. The petitioner who was outside
took away the three sections of Rs. 100 from the tray of
notes carried by PW1. While PW1 was counting the notes
through the machine at the centre table he asked the
petitioner to return the Rs. 100 sections. He refused to
hand over the notes. PW1 again told him that if the notes
are given he can sign them and keep them inside, but still
he refused. PW1 reported to the Manager that the petitioner
did not hand over the three sections. There is the evidence
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6343
given by PW2 who had witnessed the verification also,
regarding this. He has asserted that when PW1 did the
verification at the counter of the petitioner three sections
of Rs. 100/- notes were found in one corner of the counter,
that since the petitioner refused to hand it over, PW1 had
collected those notes also but those were taken away by
the petitioner. There is also the evidence given by PW3
regarding the verification. However, PW3 is not a witness
to the existence of the excess notes at the counter of the
petitioner, he having been engaged in the verification at
the counter of Sundararajan. PW4 has stated that her
counter was also verified. Both PW1 as well as PW2 have
stated that verification at the counter of PW4 was done
first and then they have then proceeded to do verification
of the counter of the petitioner. PW5 who was at the cash
counter at the centre table has also stated about cash
verification done by PW1. Her counter is next to that of
the petitioner. It was from the counting machine at the
centre table that the petitioner had counted the notes that
were given to customer Tarzan. PW5 though not inside
the counter of the petitioner at the time of verification has
also witnessed the incident. She too had stated that there
was excess cash at the time of verification and the petitioner
had taken away the notes that were collected by PW1.
12.
The Branch Manager examined as PW7, though not
a witness to the verification itself, has direct knowledge of
the incident. He has deposed that immediately after the
petitioner had refused to hand over the cash to PW1 or to
deposit in Sundry Deposit Account he had instructed the
petitioner to put it in deposit. In fact he had left the cash
department where he was, proceeded to the counter of the
petitioner and had asked him to hand over the excess cash
of Rs. 30,000/- found at his counter to deposit in the Sundry
Deposit Account. But the petitioner had refused to do so.
13.
From the discussion of the evidence PWs 1, 2, 5 and
7 it is very much clear that all these witnesses unanimously
and consistently have stated that there was excess cash
at the counter of the petitioner and in spite of instruction
he has refused to deposit in Sundry Deposit Account.
There is no reason to disbelieve the evidence of these
witnesses given in unison. It is apparent form the evidence
of these witnesses that other than PW5 all other witnesses
were moving well with the petitioner. There is no case for
the petitioner also that they have got any grunt against
the petitioner. So it is unlikely that if not for the existence
of excess notes at the counter of the petitioner, they would
have given evidence to this effect against the petitioner.
14.
It has come out in evidence that an Officer by name
Parthasarathy has come to the Branch on the next day to
investigate the matter. PW7 has stated that he had reported
the incident to the authorities immediately. It was on
account of this investigation was done on the next day.
This also probabalizes the case that excess cash was found
at the counter of the petitioner.
15.
The version given by the petitioner regarding the
incident is also relevant in this respect. Ex.W1 is the
complaint given by the petitioner to the Branch
Manager on 02.08.2003. The complaint was given
alleging that PW3 had assaulted him and abused him in
filthy language on the said day. After referring to the
complaint, the petitioner has referred to the incident that
had taken place on 28.07.2003. He has stated that he is
not connected with the incident which has taken place
on the said day, that nothing had happened in his counter
but they had asked him to sign a statement that an excess
cash of Rs. 30,000/- was found at his counter and he had
refused to sign. It is clear from Ext.W1 which is the first
version given by the petitioner regarding the incident
that the matter of excess cash of Rs. 30,000/- had come
up on 28.07.2003 itself. Ext.W3 is the letter written by
the petitioner to Asstt. General Manager, Trichy Region
on 11.08.2003 in continuation of his earlier complaint
seeking to take action against PW7, the Branch Manager
and PW3, the Field Officer. In this he has stated that on
29.07.2003 Parthasarathy Officer of Neyveli Branch had
been to the Branch for investigation. He has further stated
in Ext.W3 that Parthasarathy had asked him about the
complaint of excess cash of Rs. 30,000/- at his counter.
This also makes it clear that on 28.07.2003 itself the
petitioner was aware of the case that there was excess
cash at his counter. When such abundant evidence was
available, it was not proper on the part of the Enquiry
Officer to enter a finding that there is no evidence of
excess cash at the counter of the petitioner. The finding
of the Enquiry Officer is in fact perverse when the above
aspects are taken into account. Based on the evidence of
the witnesses and the circumstances, the only conclusion
that could have been arrived at was that there was excess
cash at the counter of the petitioner. It was based on these
aspects, the Disciplinary Authority has dissented from
the findings of the Enquiry Officer and found that the
charge is proved.
16.
The second charge against the petitioner is that he
refused to sign the report of intra-day cash verification
and this amounts to disobedience of lawful and reasonable
orders of the superior. The argument that has been
advanced on behalf of the petitioner is that the report of
intra-day cash verification was prepared subsequently and
the petitioner was asked to sign the same on 30.07.2003
only. According to the counsel, the report was a false one
and the report was not placed before the petitioner for
signature immediately also. According to the counsel the
petitioner was not bound to sign the report which was not
a properly or lawfully prepared one. Only if the report was
correct he was bound to sign the same. In fact it is in
Ext.W3 the petitioner has put forth a case that he was
6344
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
asked to sign the report on 30.07.2003 only. In Ext.W1
there is no such case for him. What he has stated in Ext.W1
is that he had nothing to do with the incident that have
taken place on 28.07.2003, but he was asked to sign a
statement regarding excess cash and he has refused to
sign. In Ext.W1 there is no case for him that he was not
asked to sign the same on 28.07.2003 but only on
30.07.2003. What one would think on reading Ext.W1 is
that the report was placed before him on the same day and
still he has refused to sign it.
17.
During cross-examination of the witnesses much
attempt seems to have been made to make out that the
report was prepared subsequently and not on the same
day. However, this attempt has not succeeded. There is
no doubt that the petitioner was not asked to sign the
verification report immediately after verification was done.
It would not have been possible for PW1 to prepare the
report from the counter itself. Then there was confusion
between the officials as to what is to be done also in the
wake of refusal of the petitioner to hand over the excess
amount to be deposited in Sundry Deposit Account. PW7
has stated that when the petitioner refused to deposit the
excess cash, he had reported to the higher authorities and
he was asked to prepare intra-day cash verification report
and record the refusal of the employee. Ext.M8 and Ext.M9
are the verification reports. The only difference between
the two is that Ext.M9 contains a note to the effect that
physical cash balance of Rs. 30,000 was there but the
petitioner has refused to hand it over to be put in Sundry
Deposit Account. PW7 has stated that the reports were
typed on the same day.
18.
There is the evidence given by other witnesses also
in this respect. PW3 has stated that he is the one who
typed the report. According to PW1, he has given
necessary instruction to prepare the report. He has further
stated that the report was given to the petitioner on the
same day at the Manager’s cabin. There is also the evidence
given by PW5 that she has signed the report on 28.07.2003
in the evening by 0500 PM. PW1 has signed the report
only on 29.07.2003 by 1100 AM. PW2 has also signed the
report on 29.07.2003 between 1030 and 1100 AM. So it is
very much clear that the report was very much available in
the evening of 28.07.2003. If the evidence regarding
preparation of the report and signing of the same are taken
into account alongwith the version of the petitioner, it is
very much clear that he was asked to sign the report on
the same day but he has refused to do so.
19.
Even assuming that the report was prepared on the
next day it should not have prevented the petitioner from
signing the same if the report depicted the correct picture
of what had occurred at the time of intra-day cash
verification. There was no necessity for the petitioner to
refuse to sign the reports under the pretext that they were
given on a later day.
20.
One reason given by the Enquiry Officer for not
accepting the case of the Management is that PW1 has
signed in CSE Receipt and Delivery Book after balancing
the cash. According to the Enquiry Officer, after signing
these he cannot say that there was excess cash. PW1 has
given explanation regarding this. He has stated that he
thought that he will make a record of excess cash when
the petitioner gave Sundry Deposit Voucher. This is quite
natural because he was still expecting that the petitioner
will be depositing the amount. He has informed the Branch
Manager about the refusal of the petitioner to hand over
excess cash and it was after this the Branch Manager has
asked the petitioner to make the deposit. Since the
petitioner defied the instruction of the Branch Manager
also the higher authorities were consulted and it was after
this the report of excess cash was prepared and the refusal
of the petitioner to hand over the cash was recorded. Thus
it could be seen that it was unreasonable that the petitioner
has refused to put his signature in the verification reports.
I find that the Disciplinary Authority has every justification
in finding Charge Nos. 1 and 2 against the petitioner.
21.
It is on account of the incident resulting in the third
charge that intra-day cash verification was done. The third
charge is that while the petitioner was counting the notes
payable to customer Tarzan he had surreptitiously replaced
Rs. 500/- notes with Rs. 100/- resulting in cash shortage of
Rs. 20,000.
22.
It is not in dispute that customer by name Tarzan
had withdrawn Rs. 2,00,000/- in the morning of 28.07.2003
at the counter of PW4. The customer had left the counter
with the money immediately after it was paid to him. He
came back to the bank after more than an hour. It has been
pointed out by the counsel for the petitioner that when
the customer has left the premises with the money and
later makes a complaint of cash shortage the bank is not
bound to accept responsibility. It is clear from the evidence
of PW1 itself that even when the customer came back to
the manager, making a complaint of shortage of cash this
fact was pointed out to him by the Manager as well as
PW1 and there was heated argument between them and
the customer. Normally the bank could not be made
responsible for the shortage once the customer leaves the
premises. He is expected to count the notes and ascertain
the correctness of the notes handed over to him before he
leaves the counter. Though the customer is said to have
approached the Branch Manager, no written complaint
seems to have been obtained from him. The concerned
person is not examined also.
23.
Admittedly, cash was handed over by PW4 to the
customer. The petitioner either at the request of the
customer or otherwise had taken it upon him to count the
notes. He had used the counting machine at the centre
table where PW5 was there for this purpose. At the time
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6345
when the notes were counted, apart from PW5, PW4 and
DW2 were also present. Within 5 minutes the counting
was done. It is a debatable question whether it would
have been possible for the petitioner to replace Rs. 500
notes with Rs. 100 notes within such a short period. From
the evidence of PW1 it is seen that PW7 has shown the
amounts that were brought by the customer alleging that
notes were mixed up and he had noticed that Rs. 500/- and
Rs. 100/- notes were placed alternatively in the section.
Even though the counting was done in the presence of so
many staff nobody has noticed petitioner replacing notes
of one denomination with another. The customer himself
who was expected to watch the counting was close-by
and he too did not notice anything. In such circumstance,
the case that the petitioner had replaced the notes of higher
denomination with notes of lesser denomination certainly
could not be accepted.
24.
Charge no. 3 was rightly found not proved by the
Enquiry Officer. The Disciplinary Authority has found that
the charge is partly proved. According to him there is
evidence to show that the petitioner counted the cash at
the centre table and then delivered the amounts directly
to the customer. This itself could not be treated as a
misconduct. On what basis the Disciplinary Authority has
stated that the charge is partly proved is not clear. There
is no acceptable evidence for this charge and the finding
of the Enquiry Officer in this respect is to be accepted.
25.
The fourth charge against the petitioner is that on
02.08.2003, when PW4 was by the centre table in the cash
department, the petitioner made certain intimidating
remarks referring to her. The translation of the remarks
which is in Tamil quoted under Charge no. 4 is not provided.
The evidence regarding this charge is that of PW5. She
has deposed that on 02.08.2003 by 1000 AM, while herself,
PW4 and others were inside safe room to take cash the
petitioner entered the cash department and started making
remarks addressing PW4. He is said to have asked her
“What sister you are talking to Shanmugham, isn’t cash
balanced? What if you make a phone call, etc.? PW5 has
stated that they have put the incident in writing and given
it to the Manager through the Union Secretary. However,
PW4 who is the alleged victim of the incident has claimed
ignorance of the incident. She has stated that the petitioner
had not spoken to her in a harsh manner. Even assuming
that the petitioner has spoken addressing PW4 in the
manner deposed by PW5 it is difficult to treat those words
as intimidating from the literal meaning of the words itself.
Apart from this is the fact that PW4 who is supposed to
be the victim had has no case of such an incident at all. If
the incident had taken place PW4 is the one to say that
she was intimidated. So the charge under this head could
not be taken as established.
26.
The fifth charge is that on 02.08.2003 itself at
0100 PM the petitioner behaved in a riotous manner to
PW3. As seen from the charge by 0100 PM when PW3 was
coming out of the toilet the petitioner prevented him and
threatened him with dire consequences since he stood as
a witness for the incident of excess cash of Rs. 30,000/-.
The petitioner is said to have abused PW3, pushed him
and caused hurt to him. He is also said to have used un-
parliamentary language on PW3 also.
27.
The evidence available regarding the charge is that
of PW3 itself. Though PW3 is said to have given a
complaint to the Branch Manager, the same is not
available. The petitioner also has complained regarding
the incident and the same is marked as Ext.W1. In this the
petitioner has raised a counter allegation that when he
went to the toilet PW3 had come out of the toilet, caught
hold of his shirt and had abused him in filthy language. He
had immediately gone to the Branch Manager and
complained him.
28.
The version given by PW3 regarding the incident is
that the petitioner met him at the toilet premises, he asked
him why he has acted as a witness and threatened him
holding both his hands and insisted that he should reply
and then only he could leave. While PW3 he was
struggling to come out the petitioner was pulling his hand
and was restraining him from coming out.
29.
From the evidence of PW3 alone, one could not
make out what exactly had happened. It is clear that there
was some skirmish between the petitioner and PW3 at the
time. As seen from the evidence of PW7, both of them had
immediately run to the Manager’s cabin and had been
complaining against each other to the Manager, Though,
one Raghuraman, another Officer is said to have witnessed
part of the incident he is not examined. The statement said
to have given by him regarding the incident could not be
relied upon in the absence of the evidence. The evidence
given by PW3 is not sufficient to establish the charge.
30.
Charge Nos. 6 to 8 are related to issue of cheques by
the petitioner without sufficient balance in the account,
return of cheques for want of sufficient funds and the
assumption of the Bank based on the cheques that the
petitioner has resorted to outside borrowings without
approval of the appropriate authority. It is clear from the
cheques produced and even from the admission made by
the petitioner that the cheques were issued without
sufficient funds and they were returned also. According
to the counsel for the petitioner this would not amount to
misconduct at all. The memorandum of settlement dated
27.05.2002 shows that incurring debts to an extent
considered by the Management as excessive is a minor
misconduct under Clasuse-7l of the settlement.
6346
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
31.
Having found that the finding of the Disciplinary
Authority regarding charges 1 and 2 are justified, the
question that remains to be considered is on the
proportionality of the punishment given to the petitioner.
The Disciplinary Authority has imposed the punishment
of removal from service on the basis of his findings. It is
to be borne in mind that the Disciplinary Authority
himself did not enter a finding that there was
misappropriation of money as narrated in Charge No. 3.
When this aspect and other circumstances are considered,
I feel that a lesser punishment would be sufficient in the
matter. Accordingly, the punishment of removal from
service is set aside and is modified to compulsory
retirement from service with effect from 08.02.2008.
32.
In view of my discussion above, an award is passed
as follows:
The punishment imposed on the petitioner is
modified and the punishment of Compulsory Retirement
from service w.e.f. 08.02.2008 is imposed on the
petitioner.
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 2nd September, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined :
For the 1st Party/
: WW1, Sri V. Anbalagan
Petitioner
For the 2nd Party/
: MW1, Sri K. Gomathi Nayagam
Managements
Documents Marked :
On the petitioner’s side
Ex. No.
Date
Description
Ex.W1
02.08.2003 Complaint letter of the petitioner
Ex.W2
02.08.2003 Attendance Register
Ex.W3
11.08.2003
Letter of the Petitioner
Ex.W4
15.02.2007 Letter by the petitioner to the
Assistant General Manager
Ex.W5
07.01.2008 Letter by the petitioner to the
Assistant General Manager
Ex.W6
25.02.2008 Letter by the petitioner to the
Deputy General Manager
On the Management’s side
Ex. No.
Date
Description
Ex.M1
10.04.2004
Charge
sheet
issued
to
Anbazhagan
Ex.M2
05.09.2005 Enquiry Report
Ex.M3
30.01.2006
Dissent Note of DA
Ex.M4
20.11.2006
Order of High Court in WP No.
7615 of 2006
Ex.M5
08.02.2008
Order of the Disciplinary
Authority
Ex.M6
17.11.2008
Order of the Appellate Authority
Ex.M7
Various dates Minutes of Enquiry Proceedings
Ex.M8
28.07.2003
Report of Intraday Cash
Verification
Ex.M9
28.07.2003
Report of Intraday Cash
Verification with a note signed by
Kannusamy & A. K. Edwin -
Officers
Ex.M10
15.04.2004
Garnishee Order on SBI from
Principal Sub-Judge, Villupuram-
to attach the salary of V.
Anbalagan for Rs. 79,555 in
monthly
instalments
of
Rs. 5,000 (Decree Holder –
Sadaiyan)
Ex.M11
13.10.2000
Garnishee Order on SBI from
District Munsiff, Villupuram for
Rs. 27,623/- in monthly
instalments of Rs. 3,000/- p.m.
(Decree Holder – Akhtar
Mohammad)
Ex.M12
31.03.2003
From bank to petitioner reg.
returned cheques and calling for
explanation
Ex.M13
30.09.2002
Cheque Nos. 179751 – Rs. 20,000
Ex.M14
12.05.2003
Cheque No. 179756 – Rs. 25,000
Ex.M15
30.07.2002
Cheque No. 179741 – Rs. 3,000
Ex.M16
03.08.2002
Cheque No. 179747 – Rs. 1,450
Ex.M17
20.02.2003
Cheque No. 179753 – Rs. 2,000
Ex.M18
02.08.2003
Statement of R. Raghuraman –
Dy. Manager
Ex.M19
-
Cheques referred and returned
register
Ex.M20
-
Cash Received Delivery Book
Ex.M21
25.02.2003
Legal Notice of Mr. V. Jagadeesan,
Panruti on behalf of Co-Optex–
Panruti to the petitioner and two
others demanding Rs. 11,384
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6347
Ex.M22
-
Prosecution Brief
Ex.M23
21.05.2005
Defence Brief
Ex.M24
31.12.2007
Letter of Management to the
petitioner enclosing letter of
19.12.2007
Ex.M25
12.02.2000
Statement of account of petitioner
30.06.2004
Ex.M26
20.03.2003
H.4 – Notice issued by Central
Nazir of Principal Subordinate
Court, Villupuram to State Bank
of India, Gingee in Ref: O.S.No.
189 of 2001.
Ex.M27
19.05.2004
Letter from Disciplinary Authority
to the petitioner granting further
time to submit his explanation
Ex.M28
31.05.2004
Explanation of the petitioner to
the Charge Sheet dated 10.04.2004
Ex.M29
01.08.1994
DIS-CON dated 01.08.1994
Appellate Authority’s order
“confirming punishment of
withdrawal of Special Allowance
for a period of four years with
signature of Anbalagan dated
04.08.1994
Ex.M30
24.05.1997
DIS-CON-25 – dated 24.05.1997
“warning” Disciplinary Authority
order
Ex.M31
06.09.1999
DIS-CON-230 dated 06.09.1999
Charge Sheet
Ex.M32
03.01.2002
DIS-CON-354 dated 03.01.2002
“bringing down to lower stage in
your scale of pay for a period of
one
year
with
the
acknowledgement of Anbalagan
dated 09.01.2002
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2508-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj fcykliqj
jk;iqj {ks=kh; xzkeh.k cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj
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dsUnzh; ljdkj vkS|ksfxd vfèkdj.k tcyiqj ds iapkV (lanHkZ
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09&09&2014 dks izkIr gqvk FkkA
¹la- ,y&12012@31@96&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2508.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 104/97) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Bilaspur Raipur Kshetriya
Gramin Bank and their workmen, received by the Central
Government on 09/09/2014.
[No. L-12012/31/96-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/104/97
PRESIDING OFFICER : SHRI R.B.PATLE
Shri Mohanlal Sahu,
Ex-Messenger-cum-Sweeper,
Gram & Post Kargikala,
Distt Bilaspur.
.....Workman
Versus
The Chairman,
Bilaspur Raipur Kshetriya Gramin
Bank Head Office,
Dayalband,
Distt. Bilaspur (MP)
.....Management
AWARD
Passed on this 20th day of August, 2014
1.
As per letter dated 25-3-97 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-12012/
31/96-IR(B-I). The dispute under reference relates to:
“Whether the action of the management of Bilaspur
Raipur Kshetriya Gramin Bank, Branch Kargikala in
terminating the service of Shri Mohan Lal Sahu, Ex-
Messenger-cum-Sweeper w.e.f. 23-7-94 is justified?
If not, to what relief the workman is entitled?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at 4/1 to 4/3. Case of workman is that he was engaged as
messenger by IInd party in Bilaspur branch from 27-4-88.
He was continuously working till 23-7-94. His services
were discontinued without notice. That workman was
doing work of sweeping, cleaning, distribution of letters,
taking stationery to required tables, spreading water for
6348
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
khasta etc. he was working from 10 AM till late evening.
He was also required to work like writing pass books,
registers, taking entries in registers. He was deputed for
taking stationery. He was continuously working as per
directions given by the Manager doing all these works.
His termination of his service is illegal. He was not paid
retrenchment compensation at the time of termination of
his service. Workman prays for his reinstatement with
consequential benefits.
3.
Management filed Written Statement at page 7/1 to
7/10. IInd party denies that workman was continuously
working. As per management, Ist party workman was
employed purely as part time daily wage employee.
Working days are shown in Para-1. Workman has not
completed 240 days during any of the year. It is submitted
that the workman was not appointed by the Bank. He is
not entitled to notice before termination of his service.
Workman was engaged on daily wages. He was not
continuously working. Notice under Section 25-F of I.D.
Act was not required. That subordinate staff of the Bank
is appointed by the Selection Committee following
recruitment procedure. It is reiterated that workman had
not completed 240 days continuous service. The working
days of workman are shown. Workman is not entitled to
notice or retrenchment compensation as he was not
covered under Section 25-B of I.D.Act. On such
contentions, IInd party prays for rejection of claim.
4.
Workman filed rejoinder at page 9/1 to 9/2
reiterating his contentions in statement of claim.
Workman submits that after termination of his service,
Shri Ganga Prasad Sahu, Prahlad Soni, Narmada Pd.
Sahu, Krishna Kumar Sahu, Smt. Rajeshwari Sahu,
Ramesh Sahu and others were engaged by IInd party.
He is not given opportunity. Therefore termination of his
service is illegal.
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 Bilaspur Raipur Kshetriya
Gramin Bank, Branch Kargikala
in terminating the service of
Shri Mohan Lal Sahu, Ex-Messenger-
cum-Sweeper w.e.f. 23-7-94 is
justified?
(ii) If not, what relief the workman
As per final
is entitled to?”
order.
REASONS
6.
Workman is challenging termination of his service
for violation of Section 25-F of I.D.Act. workman filed
affidavit of his evidence. Workman has stated that he
was continuously working in Kargikala branch of the
bank from 27-4-88 to 23-7-94. He was orally terminated
without notice, retrenchment compensation was not paid
to him. He was doing various kinds of work in the Bank.
Management failed to cross-examine the workman.
Management also failed to participate in the reference
proceeding. No evidence is adduced by IInd party to
substantiate his contentions about working days of
workman pleaded in Written Statement. In absence of
such evidence and unchallenged evidence of workman, I
find no reason to disbelieve evidence of workman.
Workman had submitted application for production of
documents on 14-9-99 though copy was received and
reply filed by management contending that relevant
documents have already filed. IInd party has not produced
any document about working days of workman therefore
contentions of management cannot be accepted. 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 that
termination of services of workman is illegal and violation
of Section 25-F of I.D.Act, question arises whether
workman is entitled for reinstatement with back wages.
Evidence of workman shows that he was engaged without
following recruitment process therefore claim for
reinstatement with back wages cannot be allowed.
Considering workman working from 27-4-88 to 23-7-94
for more than 6 years, reasonable compensation Rs. One
Lakh would be reasonable. 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 Bilaspur Raipur
Kshetriya Gramin Bank, Branch Kargikala in
terminating the service of Shri Mohan Lal Sahu,
Ex-Messenger-cum-Sweeper w.e.f. 23-7-94 is not
proper and legal.
(2)
IInd party is directed to pay compensation Rs. 1
Lakh to the workman within 30 days from the date
of publication of award.
Amount as per above order shall be paid to workman
within 30 days from the date of notification of award. In
case of default, amount shall carry 9 % interest per annum
from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
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dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj if'pe eè;
jsyos ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
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¹Hkkx II—[k.M 3(ii)º
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6349
New Delhi, the 12th September, 2014
S.O.
2509.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 22/06) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of West Central Railway and
their workmen, received by the Central Government on
08/09/2014.
[No. L-41012/4/2005-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/22/06
PRESIDING OFFICER : SHRI R.B.PATLE
Shri Shailendra Kumar,
S/o Late Shri Bhoora Sharma,
C/o Shri J.P.Sharma, Bhatta Mohalla,
Near D.Mahajan House,
Mundawara, Katni,
Distt. Katni (MP)
.....Workman
Versus
Divisional Railway Manager,
West Central Railway,
Jabalpur
.....Management
AWARD
Passed on this 21st day of August, 2014
1.
As per letter dated June 2006 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-41012/
4/2005-IR(B-I). The dispute under reference relates to:
“Whether the action of the management of DRM,
West Central Railway, Jabalpur (MP) in terminating
the services of Shri Shailendra Kumar S/o Late Shri
Bhoora Sharma, Ex-U.K.C Ticket No. 1911 w.e.f. 5-6-
86 is justified? If not, what relief the applicant is
entitled to”
2.
After receiving reference, notices were issued to
the parties. Unfortunately Ist party workman died on
3-6-07 before submitting his statement of claim in the matter.
The application for LRs of deceased workman was filed
by Shri Rishab Sharma claiming himself to be adopted son
of deceased. The application for substituting LR has been
rejected considering name of Rishab Sharma
for succession was rejected by Civil Court, Katni in
Case No. 13/2011. Notices served were issued to brother
of the deceased. He has not appeared in the matter. Thus
the claim of Ist party workman is proceeded exparte against
LRs.
3.
IInd party filed affidavit of Shri Arun Kumar Mishra
contending that the application for LR filed by Rishab
Sharma through J.K.Sharma was rejected. The contention
of Rishab Sharma claiming to be adopted son of workman
are not accepted. Management was directed to file exparte
Written Statement. The services of workman were
terminated on 5-6-86. The dispute is raised after 20 years.
The records beyond 10 years are not maintained as per
circular No. 235 of April 1989. The documents pertaining
to the dispute are not available. It is submitted that
management is justified in terminating services of the
deceased workman.
4.
Workman died during pendency. His LRs are not
brought on record. No statement of claim is filed on behalf
of LRs. Therefore legality of termination of services of
workman could not be decided on merit. The matter
deserved to be disposed off by way of No Dispute Award.
Accordingly award is passed as under:-
“As Statement of Claim is not filed by deceased or
his LRs, No Dispute Award is passed.”
5.
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] 12 flrEcj] 2014
dk-vk- 2510-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj LVsV cSad vkWiQ
ifV;kyk ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k paMhx<+ ds iapkV (lanHkZ la[;k 718@2005) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 01&09&2014 dks izkIr gqvk FkkA
¹la- ,y&12012@41@96&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2510.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 718/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court
No. 2 Chandigarh as shown in the Annexure, in the
industrial dispute between the management of State Bank
of Patiala and their workmen, received by the Central
Government on 01/09/2014.
[No. L-12012/41/96-IR (B-I)]
SUMATI SAKLANI, Section Officer
6350
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 718/2005
Registered on 1.9.2005
Secretary,
State Bank of Patiala Staff Union,
House No. 2112, Nehru Colony,
Khanna Nagar, Amritsar.
.....Petitioner
Versus
Regional Manager,
State Bank of Patiala,
Ambedkar Chowk, Jalandhar.
.....Respondents
APPEARANCES
For the workman
: Sh. Raj Kaushik Adv.
For the Management : Sh. N.K. Zakhmi Adv.
AWARD
Passed on 28-7-2014
Central Government vide Notification No. L-
12012/41/96-IR(B-I) Dated 23.6.1997, by exercising its
powers under Section 10 Sub Section (1) Clause (d) and
Sub Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal:-
“Whether the action of the management of State
Bank of Patiala, Amritsar in issuing order vide
order dated 24.8.1995 for deemed voluntary
retirement of Sh. Pradeep Bhalla, Cashier-cum-
Clerk posted at Mukherjee Marg branch of State
Bank of Patiala, Amritsar w.e.f. 9.9.1994 is legal
and just? If not, to what relief the workman is
entitled to and from which date?”
In response to the notice, the workman submitted
statement of claim to which the management filed written
reply.
The facts emerging from the documents are that
the workman was posted as Clerk-cum-Cashier at Katra
Branch, Amritsar with the respondent management and
he was transferred on 28.2.1994 to Mukherjee Branch,
Amritsar. He was on leave from 28.2.1994 to 3.3.1994 and
he only reported for duty on 13/8-9/1994 and according to
him, he suffered injuries on 3.3.1994 and due to illness he
could not join the duty. He joined the duty on 13/8-9/
1994. While posted in the branch, he misbehaved with the
customer on 5.9.1994 and 8.9.1994 and was
charge-sheeted on 5.4.1995. He did not attend his duty
w.e.f. 9.9.1994 and remained absent without any
leave. He was served with a notice dated 10.1.1995 asking
him to join the duty. Again a letter dated 20.1.1995 (Exhibit
R3) was sent to him asking him to report for duty within 30
days failing which it would be deemed that he had
voluntarily retired from service.
According to the workman he sent reply (Exhibit
PH) to the bank and the management has denied the
receipt of the said letter. However he did not join the
duty in pursuance of the letter dated 20.1.1995 and
consequently, it was ordered that he had voluntarily
retired from service vide letter dated 24.8.1995 (Exhibit
R4) by the Regional Manager of the respondent-Bank.
The management has denied that the previous
absence from 3.3.1994 to 13.8.1994 was due to sickness.
It is also pleaded by the workman that he was
transferred from the Branch under the influence of one
Union and his services were terminated without
conducting any inquiry. He has sought reinstatement in
service with back wages.
Parties were given opportunity to lead evidence.
Workman appeared in the witness box and filed
his affidavit reiterating the case as set out in the claim
petition.
On the other hand the management has examined
Sh. Narinder Singh, Deputy Manager, who filed his
affidavit (Exhibit R1) supporting the case of the
respondent bank.
I have heard Sh. Raj Kaushik, counsel for the
workman and Sh. N.K. Zakhmi, counsel for the
management.
It was contended by the learned counsel for the
workman that in this case the workman did not attend
his duty from 3.3.1994 to 12/8-9/1994 as he met with an
accident and he submitted a certificate from a Chief
Medical Officer and his absence was not intentional. He
has further argued that the management managed false
complaints and on the basis of that, he was wrongly
charge-sheeted and the management without conducting
any inquiry terminated his services which are illegal. He
has further submitted that though charge-sheet was served
on the workman, but in pursuance thereof, no inquiry
was conducted and as such the order terminating the
services is illegal.
I have considered the contentions raised by the
learned counsel.
It may be added that no action was taken against
the workman on the basis of the charge-sheet and rather
he was deemed to have voluntarily retired from service
as he remained absent w.e.f. 9.9.1994 vide order dated
24.8.1995 (Exhibit R4).
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6351
Clause 17-A of the Bipartite Settlement dated
10.4.1989 read as follow:-
The earlier provisions relating to the voluntary
cessation of employment by the employee in the earlier
settlements shall stand substituted by the following:-
(a)
When an employee absents himself from work for a
period of 90 or more consecutive days, without
submitting any application for leave or for its
extension or without any leave to his credit or beyond
the period of leave sanctioned originally/
subsequently or when there is a satisfactory
evidence that he has taken up employment in India
or when the management is reasonably satisfied that
he has no intention of joining duties, the
management may at any time thereafter give a notice
to the employee at his last known address calling
upon him to report for duty within 30 days of the
date of the notice, stating inter alia the grounds for
coming to the conclusion that the employee has no
intention of joining duties and furnishing necessary
evidence, where available, Unless the employee
reports for duty within 30 days of the notice or gives
an explanation for his absence within the said period
of 30 days satisfying the management that he has
not taken up another employment or avocation and
that he has no intention of not joining duties, the
employee will be deemed to have voluntarily retired
from the bank’s service on the expiry of the said
notice. In the event of the employee submitting a
satisfactory reply, he shall be permitted to report for
duty thereafter within 30 days from the date of the
expiry of the aforesaid notice without prejudice to
the bank’s right to take any action under the law or
rules of service.
Thus this Clause provides that if an employee
absents himself from work for a period of 90 days, or there
is evidence that he has taken up employment in India; or
the management is satisfied that he has no intention of
joining the duty, the management after giving a notice
calling upon him to report for duty within 30 days of the
notice, the management can deem the employee to have
voluntarily retired from bank’s service.
The management has specifically pleaded in para 8
of the written statement on merit that he remained absent
from duty without any leave application w.e.f. 9.9.1994.
The workman did not controvert this assertion in his
rejoinder and therefore it is to be taken that he remained
absent w.e.f. 9.9.1994 till the day i.e. 20.1.1995 when a notice
was issued to him calling upon him to report for duty
within 30 days failing which he was presumed to have
voluntarily retire from service. The workman has pleaded
in para 9 of his statement of claim that he was asked to
resume duties vide order dated 20.1.1995 and he replied
that he was not in a position to resume the duties due to
harassment and victimization by respondent No.3. This
admission on the part of the workman clinches the issue
that he remained absent from 9.9.1994 till the date of
issuance of the notice dated 20.1.1995 (Exhibit R3) and
since he failed to resume the duties, the bank was well
within its rights, in view of Clause 17A of the Bipartite
Settlement to deem that workman has voluntarily retired
from the service.
The photocopy of the letter Exhibit PH has been
placed on file by the workman and it shows that he refused
to join the duty by alleging that it was unsafe for him to
resume the duty. Thus in the statement of claim as well as
in the said reply, he did not comply with the notice dated
20.1.1995 and as such the bank has rightly passed the
order dated 24.8.1995. In the given circumstances and in
view of provisions of law, there was no need for the
management to conduct an inquiry as argued by the learned
counsel.
In result, it is held that the order dated 24.8.1995
passed by the respondent management is legal and valid
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
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New Delhi, the 12th September, 2014
S.O.
2511.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 34/92)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of State Bank of India and their
workmen, received by the Central Government on
01/09/2014.
[No. L-12012/124/88D-III(A)/IR (B-III)]
SUMATI SAKLANI, Section Officer
6352
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/34/92
PRESIDING OFFICER : SHRI R.B. PATLE
Shri Samuel A.Henry,
S/o Late A.F.Henry,
C/o State Bank Employees Union
Through P.C. Khare, 507,
Beoharbagh, Jabalpur
.....Workman
Versus
Chief Regional Manager,
State Bank of India,
Regional Office,
Marhatal, Jabalpur
.....Management
AWARD
Passed on this 11th day of August, 2014
1.
As per letter dated 2-1-92 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-
12012/124/88/D-III(A)/IRB-III. The dispute under reference
relates to:
“Whether the action of the management of State
Bank of India in not allowing Shri Samuel A.Henry
to work in the post of Teller and thereby denying
him special allowance was justified? If not, to what
relief the workman is entitled?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of
claim at Page 5/1 to 5/5. Case of workman is that IInd party
Bank is constituted under State Bank of India Act, 1955.
Management not acted fairly giving benefit of special
allowance to workman laid to the dispute. The Bank
employees are subordinate staff and non-subordinate
staff. Non-subordinate staff includes clerks, cashiers,
stenos, officials in charge, telephone operators, audit
clerks, draftsman, machine operators, tellers, special
assistants, headclerks, etc. Ist party workman claims that
he belongs to category of workman from non-subordinate
staff of the Bank. That as per Para 5.282 of Desai Award,
special allowance to certain category of workman is
provided for non-subordinate or clerical cadre. Workman
being senior most eligible employee at material time at
Jabalpur was given higher appointment on the special
allowance bearing post of Teller w.e.f. 22-8-85.
He was continuously working as Teller but he was not
paid full special allowance on regular basis. He
requested management to comply with conditions of
appointment of Tellers. That he stood confirmed as Teller
on completion of 6 months continuous working. His
request and recommendations were not considered.
3.
In December 1986, Telex machine was installed at
Jabalpur branch of the Bank. Workman was working as
Teller. He was senior most clerk typist in the branch on
date of installation of Telex machine. He was eligible for
appointment on special allowance bearing post. Telex
machine operator were in clerical cadre. That
management appointed Ravindra Kumar clerk typist on
special allowance bearing post of Telex operator ignoring
seniority of Shri S.K. Jat. Objection in appointment of
Ravindra Kumar Makhija was objected by Shri S.K. Jat
claiming seniority and eligibility for special allowance
bearing post. Management made prestige issue and did
not offer appointment to Shri S.K. Jat. Workman further
submits that in November 1986, he approached Union
for redressal of his grievance. Notice was served on
management on 4-3-87 for payment of his dues. That
with ulterior motive to deny claim of Shri S.K.Jat
management issued memorandum dated 11-5-87 to the
workman. That being senior most clerk typist, it was
decided to give him chance as Telex Operator.
Management Bank wanted workman to accept work of
Telex Operator to avoid claim of Shri Jat. Workman
further submits that as he did not oblige management
caused harassment and humilitation and financial loss
to him in various ways like issuing memos, deducting
wages and asking him to work as an ordinary clerk etc.
Workman raised dispute before ALC. However
Government refused to make reference. He filed Writ
Petition No. 3690/88 in High Court of M.P. On direction of
Honble High Court, the reference was made. Workman
submits that he being senior most clerk typist, was not
given special allowance bearing post of regular Teller.
Consequently he was denied special allowance. On such
ground, workman is praying for appropriate relief.
4.
IInd party filed Written Statement at Page 7/1 to 7/5
denying claim of workman. IInd party submits that Ist party
workman is permanent employee appointed as clerk-cum-
typist. The Bank was compelled of making temporary
appointment of Teller for purpose of accepting electric
bills at the branch. The post of Teller is carrying allowance
of Rs. 325 per month. 4 posts of Teller were sanctioned for
Civil Line Branch. 4 persons were already appointed in
said branch in 1985. Workman was working as clerk typist.
Because of additional workload, workman was asked to
work on post of teller on officiating basis as per branch
seniority temporarily. That post of teller is in cadre for
which zonal wise seniority is maintained. Workman was
paid allowance for the period he worked as Teller. He has
no right to the post of Teller by temporary working on said
post. IInd party further submits that workman was asked
to work on post of Teller on officiating basis from 22-8-85
to 24-11-87 on account of expansion of powers of cashier,
the temporary teller counter was abolished from 25-11-87
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6353
and the work was given to the cashier. The opening of the
temporary counter of Teller was neither sanctioned nor
was there any additional teller post sanctioned. Workman
was paid allowance for the period he worked. Appointment
on post of Teller is regulated by the administrative
instructions and memorandum dated 15-7-81. Earlier post
of Teller was filed from clerks working in the branch on the
basis of seniority. However since the clerks working on
the post of Teller were deemed to have confirmed after
working more than six months. That the instructions were
modified by Circular No.2 dated 15-1-1982. Selection for
the post of Teller was made on the basis of combined
zonal seniority of clerks and departmental staff. That
seniority of Teller on department was also to be determined
on zonal seniority basis. If they were found eligible for
appointment on zonal seniority basis, they were to be
continued as Teller. Workman was asked to work as Teller
on officiating basis in 1985 as per Circular No.2 of 1985.
The appointment on the post of Teller could be made only
on zonal seniority basis. Workman could not be appointed
on post of Teller. Reiterating those contentions, IInd party
submits that workman is not entitled to any relief.
Workman was paid for his working on officiating basis as
Teller as per instructions already laid down. Workman is
not entitled to officiating allowance for post of Teller on
the basis of Zonal seniority basis. On such ground, IInd
party prays for rejection of claim.
5.
Workman has filed rejoinder at page 8/1 to 8/6
reiterating his contentions in statement of claim. It is further
submitted that management of Bank itself did not strictly
adhere to the provisions of circulars. Management made
efforts to take shelter of budgetary which remains on paper
only. It is denied that post of Teller was temporarily created
to pop up with additional work load. Workman was
continuously absorbed for 2 ½ years. The post was not
withdrawn. When workload was already negligible,
workman was allowed to continue to work. He was not
advised or given impression that his posting as Teller was
of temporary nature. After working for six months, work
of Teller could not be withdrawn. He argued to be
confirmed. He was working without break. On such ground,
Ist party workman prays for special allowance for the post
of Teller.
6.
Management filed reply to the rejoinder filed by
workman at page 9/1 to 9/6 reiterating his contentions in
Written Statement.
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 manage-
In Negative
ment of State Bank of India in not
allowing Shri Samuel A.Henry to
work in the post of Teller and thereby
denying him special allowance was
justified?
(ii) If not, what relief the workman is
As per final
entitled to?”
order.
REASONS
8.
Workman being aggrieved by denial of special
allowance for post of Teller has raised present dispute.
Workman submits that he was continuously working on
post of Teller for 2 ½ years. He was never informed that
post was of temporary nature. He was denied special
allowance for said post is illegal. IInd party in his Written
Statement and reply to rejoinder denied all material
contentions of workman. Management has reiterated that
the workman was appointed temporarily on post of Teller
Special Allowance carrying post as per circular
No. 2/82. The selection for the post of Teller is required to
be made on zonal seniority basis therefore workman is not
entitled to relief claimed by him. He has no right to the
post of Teller as he was temporarily appointed on
officiating basis considering increase in work.
9.
Documents are produced Exhibit M-1 to M-12 by
management. Exhibit M-1 is copy of application under
Section 33 filed by workman. M-2 is copy of reply filed
by IInd party before ALC. It is contented by IInd party
because of additional work load, workman was asked to
work on officiating basis on post of Teller. That workman
was never appointed on post of Teller as he was not senior
most in Regional Seniority List. The post of Teller was
not sanctioned. In document Exhibit M-3, Government
refused to make reference. Exhibit M-4 is copy of circular
No. 47/81 instruction for appointment of Tellers. Para-3
of the said document is clear that on continuous working
on he post of Teller, it would be deemed to have been
confirmed on said post. Exhibit M-5 is copy of circular
No. 2/82. Para-3 of said circular provides that
appointment for the post of Teller is made on basis of
zonal seniority. Exhibit M-6 is office order discontinuing
workman from post of Teller from 25-11-87. Exhibit
M-7 is copy of seniority list dated 1-2-87. Name of workman
is appearing at Sl.No. 22 his date of appointment is shown
12-6-75. Exhibit M-7 is copy of complaint submitted by
workman to ALC. Exhibit M-9 is copy of letter given by
workman dated 14-5-87. Exhibit M-10 is copy of Writ
Petition No. 210/96. The circulars No. 47/81, 2/82 are not in
dispute between parties. Workman has produced
documents Exhibit W-1 is Bank’s policy on record of
retention. The relevant record is destroyed.
10.
Workman filed affidavit of his evidence stating that
as per Circular No. 47/81, he is deemed to be confirmed
on post of Teller. That he was employee of State Bank of
India, Tularam chowk branch. As per letter dated 12-8-83,
that since he was performing duties of Teller for past
6354
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
3 years, he worked continuously for 2 ½ years at State
Bank of India, Main Branch, Jabalpur. That destruction of
record on 31-3-00 was attempt to suppress his facts to
deny the facts claimed by him. From further evidence of
workman, the documents are exhibited. Management’s
representative declined to cross-examine workman. Thus
evidence of Ist party workman remained unchallenged.
Exhibit W-1 to W-14 produced by workman proved from
his further evidence. Claim of workman after continuous
working for six months on post of Teller, he is deemed
confirmed as per circular No.47/81(W-1). Management has
contented that workman was appointed on officiating
basis. He was not eligible for appointment on post of Teller
on zonal seniority basis. In the evidence of management’s
witness Ram Sharan Prajapati, he supported contentions
of IInd party that workman was asked to officiate
temporarily to cop up with the work. The opening of
temporary counter of Teller was not sanctioned. There
was no additional sanctioned teller post workman was not
eligible for post of Teller on zonal seniority basis. Workman
was never appointed on post of Teller. Though the
management’s witness says that workman was appointed
on officiating basis on post of Teller, the order is not
produced. IInd party has not produced any evidence
whether other 4 persons working in the branch were
eligible for appointment on post of Teller on zonal seniority
basis. There is absolutely no evidence that only 4 posts
of Teller were sanctioned in the branch. The evidence of
workman remained unchallenged. There is no evidence
about circular No.2/82 was strictly acted upon by the Bank.
When Circular No. 2/82 was issued in the year 1982, the
evidence of IInd party is absolutely silent how workman
was temporarily appointed on post of Teller and allowed
to work for more than 2 ½ years. The evidence on record
supports claim of workman that he was denied special
allowance carrying post after working for more than 2 ½
years cannot be justified. For above reasons, I record my
finding in Point No.1 in Negative.
11.
In the result, award is passed as under:-
(1)
The action of the management of State Bank of India
in not allowing Shri Samuel A.Henry to work in the
post of Teller and thereby denying him special
allowance is not legal and justified.
(2)
IInd party is directed to pay special allowance for
the post of Teller to workman from 25-11-87 till he
hold post of Teller or equivalent special allowance
carrying post.
Amount of Special Allowance as per above directions be
paid to workman within 30 days from the date of publication
of award. In case of default, amount shall carry 9 % interest
per annum from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
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¹la- ,y&41012@128@2004&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2512.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 26/2008)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Lucknow as shown in the Annexure, in the industrial
dispute between the management of Northern Railway and
their workmen, received by the Central Government on
12/08/2014.
[No. L-41012/128/2004-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. 26/2008
Ref. No. L-41012/128/2004- IR(B-I) dated 20.03.2008
BETWEEN
The Divisional Organization Secretary,
Uttar Railway Karmchari Union,
283/63, Kha, Garhi Kannora (Premvati Nagar),
PO - Manak Nagar, Lucknow-226 001
(Espousing cause of Shri Vijay Bahadur)
AND
The Senior Divisional Personnel Officer,
Northern Railway,
D.R.M. Office, Hazraganj,
Lucknow
AWARD
1.
By order No. L-41012/128/2004-IR(B-I) dated
20.03.2008 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A)
of Section 10 of the Industrial Disputes Act, 1947 (14 of
1947) referred this industrial dispute between the
Divisional Organization Secretary, Uttar Railway
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6355
Karmchari Union, 283/63, Kha, Garhi Kannora (Premvati
Nagar), PO - Manak Nagar, Lucknow and the Senior
Divisional Personnel Officer, Northern Railway, D.R.M.
Office, Hazraganj, Lucknow for adjudication to this Central
Government Industrial Tribunal –cum- Labour Court,
Lucknow.
2.
The reference under adjudication is:
“Kya Prabandhan Uttar Railway, Lucknow dwara
Shri Vijay Bahadur Verma putra Shri Ram Adhar
Verma, Diesel Sahayak ko varsh 1983-84 ke panel
main samayojit na karke varsh 1991-92 ke panel main
samayojit karna uchit tatha nayasangat hai? Yadi
nahi, to karmkaar kis anutosh ko pane ka adhikaari
hai?”
3.
The case of the workman’s union is that the
workman, Shri Vijay Bahadur Verma was appointed on the
post of Cleaner on 20.12.76 and worked continuously till
03.09.81 when he has been retrenched illegally on 04.09.81.
The said retrenchment was set aside by the CGIT-cum-
Labour Court, Kanpur vide award dated 25.11.85 in I.D.
No. 163/1983; and the workman, whose name finds
reference at serial no. 42 of the award, was ordered to be
reinstated with full back wages. It is further submitted
that the workman was reinstated on 04.08.83 during
pendency of the I. D. No. 163/1983. The workman’s union
has submitted that the appeal against said award was
rejected by Hon’ble High Court, Lucknow Bench, Lucknow
vide order dated 14.3.91 and its review too was rejected
vide order dated 22.12.2004. Thereafter, the management
preferred SLP before Hon’ble Apex, which was also
rejected vide order dated 03.01.2006. It is alleged by the
workman’s union that the workman had been regularized
on the post of Loco Cleaner vide order dated 30.08.91;
whereas it included the other workmen junior to him in the
panel for the year 83-84 on the basis of 120 days working
only. It has been submitted that the workmen viz. Shri
Amarjeet Singh and Abdul Aziz were included in the panel
for year 1992; but on the directions of Hon’ble CAT,
Lucknow vide order dated 26.04.93 and 25.04.2001 were
included in the panel for the year 83-84; likewise, the
workmen viz. Shri Pratap Bahadur and Ahmad Ali were
included in the panel for the year 1992; but on the directions
of this Tribunal in I.D. No. 28/2004 and 12/2005
respectively, they have been included in the panel for the
year 83-84. Accordingly, the workman’s union has prayed
that the workman be included in the panel for the year 83-
84 as other workmen, junior to him have been included.
4.
The management of the railways has denied the claim
of the workman’s union by filing its written statement;
stating therein that the workman was re-engaged in
compliance of award dated 19.02.87 of the CGIT-cum-
Labour Court, Kanpur and was absorbed and
regularized as per availability of regular vacant post,
therefore, he cannot claim the seniority over and above
those persons, who were given seniority by the order of
the Hon’ble Central Administrative Tribunal as well as by
the order of this Tribunal as the workman was not a party
in the respective cases. It has relied on Ramakotaiah vs.
Union of India 2007 (6) A.W.C. 6556 (S.C.); wherein Hon’ble
Apex Court has held that the seniority of casual
labour in the railway is treated as temporary, but
subsequently absorbed in temporary/permanent cadre, to
be reckoned from the date of their regular appointment.
Accordingly, the management of the railways has prayed
that the case be rejected as devoid of merit.
5.
The workman’s union has filed its rejoinder; wherein
he has stated nothing new apart from reiterating the
averments already made by his statement of claim.
6.
The workman’s union has filed documentary
evidence in support of their claim; whereas the
management has filed none. The workman filed its
evidence and was cross-examined by the authorized
representative of the management. On conclusion of the
workman’s evidence, the case was fixed for managements’
evidence on 28.09.2010; but the management did not turn
up for its evidence for several dates in a long span of time,
which led to closing opportunity of evidence on behalf of
the management vide order dated 28.06.2012 and 26.07.2009
was fixed for arguments. The management again did not
turn for putting forward its arguments or get the order
dated 28.06.2012; accordingly, heard authorized
representative of the union only and reserved the file for
award, keeping in view the reluctance of the management
to contest their case and long pendency of the case since
2008.
7.
After considering pleadings of the parties and
submissions of the workman’s representative, an award
dated 12.06.2013 was passed by this Tribunal, which was
notified vide dated 23.07.2013 by the Central
Government.
8.
The authorized representative moved an application
to recall award dated 12.06.2013, which was registered as
Misc. Case No. 10.2013. The workman did not turned up
to file its objection to the recall application nor did it put
up any oral arguments. Accordingly, the award dated
12.06.2013 was recalled and the present industrial dispute
was revived on its original number, vide order dated
06.01.2014, fixing 14.02.2014 for hearing.
9.
The parties’ authorized representatives were absent
on 14.02.2014; however, they were present on 16.04.2014
and 28.05.2014; but sought adjournment; accordingly,
07.07.2014 was fixed for arguments at the request of the
parties. On 07.07.2014 authorised representatives of both
the parties were present who forwarded oral arguments in
support of their case.
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[PART II—SEC. 3(ii)]
10.
I have given my thoughtful consideration to the
arguments forwarded by the authorized representatives
of the parties and perused entire evidence on record.
11.
It is the case of the workman that initially he was
illegally terminated and when he was reinstated on
04.08.1983, in the wake of award of the CGIT-cum-Labour
Court, Kanpur in I.D. No. 163/1983, the management did
not include him in the panel for the year 83-84 and instead
he was included in the panel for the year 91-92. It is also
the case of the workman’s union that the management
included other junior workmen in the panel of 83-84 on the
basis of 120 days’ working up to 30.09.81 and few similarly
situated other workmen viz. Amarjeet Singh & Abdul Aziz
in the compliance of orders of Hon’ble CAT and Shri Pratap
Bahadur and Ahmad Ali in compliance of this Tribunal’s
order. He has substantiated its pleading with the help of
his oral evidence.
12.
In rebuttal, the management has come forward with
pleadings that the re-engagement of the workman was in
compliance of award dated 19.02.87 of the CGIT-cum-
Labour Court, Kanpur and was absorbed and regularized
as per availability of regular vacant post, therefore, he
cannot claim the seniority over and above those persons,
who were given seniority by the order of the Hon’ble
Central Administrative Tribunal as well as by the order of
this Tribunal as the workman was not a party in the
respective cases. The management has failed to corroborate
its pleadings through some cogent evidence.
13.
The workman has sought empanelment in the year
83-84 on the basis of 120 days’ working up to 30.09.81 as
the other juniors were included. He has mentioned case
of one such junior viz. Abdul Aziz who had been included
in the panel for the year 83-84 in compliance of order of
Hon’ble CAT. It is noteworthy to mention here that Abdul
Aziz was terminated w.e.f. 4.10.1981 and was reinstated by
Labour Court and the same was confirmed by order dated
05.02.1990 Hon’ble High Confirmed the same. On
reinstatement he was put for screening in the year 1991
whereas workmen junior to him had already been screened
and empanelled in the year 1982. Therefore, the workman
moved an original application before Hon’ble CAT,
Lucknow for inclusion of his name in the panel for the
year 1982. Hon’ble CAT vide their order dated 25.04.2001
directed the management as under:
“to include the name of the applicant in the panel
frame on the basis of screening held in the year 1982
…………….. and place the name of the applicant at
appropriate place as Cleaner over and above his
juniors and to further accord him all the
consequential benefits.”
The management challenged the above order of the
CAT before Hon’ble High Court, Lucknow Bench vide
writ petition No. 68 (SB) of 2002, which was disposed of
vide their order dated 20.03.2006 as under:
“Once the termination order has been held to be
void and has been set aside with the specific direct
that the respondent shall be reinstated in service
with full back wages, his continuity in service cannot
be taken away nor he can be treated as new appointee
or fresh appointee after passing of the order by the
Labour Court, which was confirmed by the High
Court. Reinstatement in the aforesaid circumstances
would necessarily mean continues service from the
date of appointment, in this case initial engagement,
unless, of course, there were some directive to the
contrary by the Court. The respondents had been
taken into service only because of the order passed
by the Labour Court, confirmed by the High Court,
and therefore, he was entitled to have all the
consequential benefits arising out of the orders
passed by the Court. The termination order having
been quashed, the respondent would also be entitled
to seniority and consequential benefits fixation of
wages and salary etc.”
The management moved review Petition No. 129/
2006 of the above order dated 20.03.2006, which was
dismissed being not maintainable vide order dated
15.5.2006. Thereafter, the management included the name
of the workman, Abdul Aziz in the panel for the year 1982.
14.
Admittedly, the workman was working with the
management of Northern Railways since 20.12.76 and was
terminated w.e.f. 04.09.81 and was reinstated back in the
services in compliance of award dated 25.11.85 given by
the CGIT-cum-Labour Court, Kanpur in I.D. No. 163/83;
and also in view of the fact that appeal against said award
vide writ Petition No. 5901/1986 and its review vide review
Petition No. 34/1991 before Hon’ble High Court were
dismissed vide orders dated 14.3.91 and dated 22.12.2004
respectively. The SLP No. 11945 (C) of 2005 before Hon’ble
Apex Court too was dismissed vide order dated 03.01.2006.
The workman was reinstated on 04.08.83 during pendency
of industrial dispute before Labour Court and was included
in the panel for the year 1991-1992.
Thus, the main issue for consideration before this
tribunal is that as to whether the workman is entitled to be
included in the seniority list of 1981 of which he was
deprived consequent to his alleged illegal termination in
the year 1981? and if it comes out in positive then its
effect.
¹Hkkx II—[k.M 3(ii)º
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6357
15.
In the instant case the workman was not in the
service of the opposite party in the year 1981 due to illegal
termination of his services. The CGIT-cum-Labour Court,
Kanpur setting aside his termination directed for
reinstatement with full back wages. This means that when
the Tribunal awarded for full back wages then it assumed
that the workman was in continuous service for the period
of termination. Once the order termination was held illegal
and the same was held to be void and has been set aside
by the Labour Court with the specific direction to the
management of the railways that the workman shall be
reinstated in service with full back wages then his
continuity in service cannot be taken away nor he can be
treated as a new appointee or fresh appointee after passing
of the order by the Labour Court, which was confirmed by
the Hon’ble High Court. Therefore, reinstatement in the
aforesaid circumstances would necessarily mean
continuous service from the date of appointment, in the
instant case initial engagement, unless, of course, there
were some directive to the contrary by the Court. The
respondent had been taken into service only because of
the order passed by the Labour Court, confirmed by the
High Court, and therefore, he is entitled to have all the
consequential benefits arising out of the orders passed
by the Court. The termination order having been quashed,
the workman shall also be entitled to seniority and
consequential benefits. Moreover, the management has
not turned up to substantiate its version before this court;
and it is settled law that mere pleading are no proof.
16.
Therefore, in view of the circumstances of the case
and discussions made hereinabove, I come to the
conclusion that the action of the management in not
including the workman in the panel for the year 1983-
1984 is not proper and justified. Accordingly, the
workman is entitled to be included in the panel for the
year 1983-84 over his juniors after complying the
procedure, within two months from the notification of
the award. Further, he shall also be entitled for
consequential financial benefits accrued to his next junior.
17.
Award as above.
Dr. MANJU NIGAM, Presiding Officer
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New Delhi, the 12th September, 2014
S.O.
2513.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 49/2011) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ahmedabad as shown in the Annexure, in the industrial
dispute between the management of Western Railway
and their workmen, received by the Central Government
on 5/09/2014.
[No. L-41011/136/2010-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
Present :
Binay Kumar Sinha,
Presiding Officer, CGIT-cum-Labour Court,
Ahmedabad, Dated 31st March, 2014
Reference (CGITA) No. 49/2011
Reference order no. L-41011/136/2010/IR(B-I)
Dated 19.05.2011
1.
The Chief Project Manager,
Western Railway, 2nd Floor,
B.G. Station Building, Kalupur,
Ahmedabad (Gujarat)
2.
The Dy. Chief Engineer (C) GP-1,
Western Railway, Near Platform Complex,
Post-Railwaypura,
Ahmedabad (Gujarat)
3.
The Chief Works Manager,
CLW Workshop, West Central Railway,
Kota (Rajasthan)
..... 1st Parties
And
Their Workman
Through the Divisional Secretary,
Paschim Railway Karmachari Parishad,
28/3, Narayan Park,
Behind Chandkheda Railway Station,
Sabarmati, Ahmedabad (Gujarat)
.... (2nd Party)
For the First Party
: Shri Vilash G. Goswami,
Advocate
For the Second Party: Shri Raghuveer Singh Sisodia,
President, P.R.K.P. (Union)
AWARD
The Government of India/Ministry of Labour vide
its order No. L-41011/136/2010-IR (B-I), New Delhi
dated 19.05.2011 referred the dispute between the
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
employers in relation to the management of western
Railway and their workman u/s 10 clause (d) sub section 1
and (2A) of the Act to this tribunal for adjudication in
respect of the matters specified in the Schedule:
SCHEDULE
“Whether the action of the management of Deputy
Chief Engineer (*construction) GP-1 , Western
Railway, Ahmedabad in not fixing pay of Shri
Krushna Chandra Pandey, Jr. Clerk as per 5th and
6th CPC report and payment of arrears thereof and
in transferring him to his parent department is legal
and justify? To What relief the Union/workman is
entitled?”
2.
The case of the Union (2nd party) as per statement
of claim (Ext.6) is that the workman Shri K.C. Pandey
working as junior clerk is bonafide member of the Union
(PRKP). The union raised chartered of demand for grant
of fifth and sixth pay commission recommendation benefits
and payment of arrears to Shri K.C. Pandey and also prayed
to transfer him to his parent department. The conciliation
effort failed before the conciliation officer and failure report
sent to the appropriate government followed by reference
order for adjudication by the Tribunal. Further case is that
Shri K.C. Pandey was initially appointed as Khalasi on
08.06.1976, having his lien in CWM Engineering workshop,
Kota. In 1988, he was promoted as junior clerk and
transferred from CPM Jaipur to CPM Ahmedabad. At
Ahmedabad Shri K.C. Pandey joined the services in S&C
department and working in Ahmedabad construction
department continuously and uninterruptedly. Shri K.C.
Pandey after getting due promotion has been transferred
with specific condition that his transfer is maintained in
lien in CWM Engineering workshop. On this condition he
was promoted and transferred from CPM Jaipur to CPM,
Ahmedabad. In the year 2001, Shri Pandey was reverted
and 1st party intends to send him back at his original
place at Kota where he got promotion and was transferred
to Ahmedabad. Shri K. C. Pandey approached CAT,
Ahmedabad by filing OA No. 376/2001 and the CAT,
Ahmedabad passed order restraining the 1st party
employer from transferring by passing his lien department.
Then the 1st party employer decided not to transfer K.C.
Pandey form Ahmedabad to original place of appointment
at Kota. Since then 2002, Shri K.C. Pandey is continuously
and uninterruptedly working with the 1st party employer
as junior clerk in construction. Further case is that Shri
K.C. Pandey was promoted from Khalasi to junior clerk in
1986 and he was transferred from Kota to Ahmedabad in
the year 1998. But the 1st party employer did not grant
any benefit to him at par with his similarly situated workman
of completing services of 9,18 and 27 years. There is circular
that if a workman completes 5 years of satisfactory service
with the employer then he is entitled for increment in the
pay scale, but Shri K.C. Pandey was not granted increment.
Some of the junior workman have become most senior as
they have been granted promotion. The 1st party employer
on demand made for release of 5th and 6th CPC and for
increment then in drastic action the 1st party employer
has transferred Shri K.C. Pandey without any reason of
transfer in the interest of administration from Ahmedabad
to Kota after a period of 13 years. The seniority of Shri
K.C. Pandey is maintained in the construction unit of
Ahmedabad Division and if he will again be transferred,
his seniority will be adversely affected and that retirement
of Shri K.C. Pandey is in near future. There is rule prevailing
in the 1st party employer to post the workman at his choice
of place whose retiring age is near. Further case is that if
the management of the 1st party wants to again transfer
him to Kota then according to rules, the employer has to
grant promotion and to pay him higher scale if not then
the employer cannot transfer Shri K.C. Pandey from
Ahmedabad to Kota. The case of the workman Shri K.C.
Pandey is sheer victimisation because he raised dispute
though the union. Further case is that Shri K.C. Pandey is
a protected workman under the provision of I.D. Act.
Further case is that other workman who have been initially
transferred from Kota to Ahmedabad are working in
Ahmedabad in construction division and only Shri K.C.
Pandey has been transferred from Ahmedabad to Kota
and thus the 1st party employer has adopted pick and
choose method. On these grounds, prayer is made to allow
the reference and to direct the 1st party employer to grant
the benefit of fifth and sixth pay commission
recommendation to workman Shri K.C. Pandey and to direct
the 1st party employer to continue the workman at his
original place at Ahmedabad for payment of arrears of pay
from date of his juniors have been granted the said benefits
and to any other relief to which Shri K.C. Pandey is found
entitled.
3.
Along with the filing of statement of claim on
28.07.2011 by the 2nd party Union, the concerned workman
Shri K.C. Pandey filed I.R. application u/s. 10(4) of the I.D.
Act (Ext.2) through the union that the dispute which has
been referred by the appropriate Government to this
C.G.I.T.-cum-Labour Court, Ahmedabad along with issue
of transfer is also seized by the competent authority.
Therefore, the 1st party employer cannot proceed further
in view of chargesheet dated 07.07.2011 issued by the 1st
party No.3 and so the action of the 1st party employer to
issue show cause notice/chargesheet dated 07.07.2011 is
exceeding its jurisdiction and required to be quashed
and set aside. On these grounds, praying to stay the
departmental proceeding initiated by the Asst.
works Manager (general), Kota (Rajasthan) vide
letter dated 07.07.2011 and for directing the 1st
party employer not to proceed further in view of
notice dated 07.07.2011 till the reference in
¹Hkkx II—[k.M 3(ii)º
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6359
adjudicated finally by this Tribunal. A show cause notice
was issued to the 1st party employer asking to show cause
on 04.08.2011 as to why not the relief prayed for in Ext.2 be
granted. The 1st party failed to show cause by stipulated
date 04.08.2011, then order (Ext.7) dated 04.08.2011 was
passed directing the 1st party including the Asst. works
Manager (General) Kota to maintain statusquo upon letter
dated 07.07.2011 until further order by not taking coercive
steps against the workman Shri K.C. Pandey. The 1st party
were directed to file its show cause /reply to the I.R.
application and also to file written statement to the
statement of claim by 05.09.2011 fixing for hearing on merit
of the interim application (Ext.2). The period of interim
relief was extended on 05.09.2011 when the 1st party failed
to submit reply. Then on 21.09.2011, the 1st party submitted
written statement and reply to interim relief (Ext.11). But
the 1st party did not turn up for final hearing on interim
relief application (Ext.2) and the statusquo order continued
against the 1st party. Then the 1st party filed an application
(Ext.25) for vacating interim relief granted vide order dated
04.08.2011 and its copy received by the Union/2nd party
and the 2nd party union filed rejoinder to application
(Ext.25) of the 1st party. Thereafter vide detailed order
passed by this court dated 21.08.2012 (Ext.28) the
application at Ext.25 of the 1st party was rejected and the
statusquo order dated 04.08.2011 was extended/confirmed
till the disposal of this reference case. Then the management
of the 1st party preferred S.C.A. No. 12802 of 2012 against
the order dated 04.08.2011 whereby statusquo granted by
this tribunal and against the order dated 21.08.2012 by
which application of the 1st party was rejected for vacating
the statusquo order and extending/confirming the same
until disposal the reference case and the Hon’ble Gujarat
High Court by order dated 07.12.2012 held that…..“The
Chief works Manager, Western Railway, Kota (Rajasthan)
has issued charge sheet against the respondent (Shri K.C.
Pandey) dated -7.-7.2011 during the pendency of the
reference alleging regarding misconduct on part of the
respondent for his unauthorised absence and he is
transferred place at Kota but the said transfer order besides
other dispute so referred by the appropriate Government
and pending under this reference case. Considering the
overall facts and circumstances the order passed by the
Tribunal/Labour Court is just and proper. The petition is
devoid of merits and the same is dismissed. The Hon’ble
Court directed to this tribunal to dispose the pending
reference proceedings within a period of one year from
the date of the receipt of the order of this Court…..”
4.
The case of the 1st party interlia as per written
statement dated 21.09.2011 (Ext.11) is that the dispute
referred for adjudication is legally not maintainable under
the laws, the demand of pay as per 5th and 6th pay
commission is not an Industrial dispute. The 2nd party
(union) has no legal right to raise industrial dispute as the
Union (P.R.K.P) is not come with clean hands and has
concealed true facts. The transfer/repatriation is
prerogative of the employer and also part of service
conditions and that transfer is administrative function and
this tribunal is not appellate authority to quash or set
aside the transfer order of railway Administration. Transfer
order can be challenged only on the ground of being
malafide or victimisation. P.R.K.P. is not recognised Union
and only recognised union office bearers can claim the
status of protected workman. Further case is that Shri K.C.
Pandey was initially appointed under CWM-Kota in the
year 1976 as Khalasi, before that he was engaged as casual
labour , Group ‘D’ on 08.07.1976 and on completion of
statutory period he was granted temporary status on
02.11.1976 by AWM(workshop) Kota vide letter No. E/
891/2/VOL III dated 12.04.1982 pay was fixed in the time
scale of Rs. 196-232. He was then promoted on adhoc
basis as Helper/Khalasi in grade of Rs. 210-296 on pay of
Rs. 218/- By office order of AWM/Kota dated 08.02.1985
he was promoted as Jr. Clerk on adhoc basis and was
posted in the time office w.e.f. 01.05.1985. By office order
dated 30.05.1985 issued by AWM/Kota Shri K.C. Pandey
was reverted to his original post of Khalasi/Helper and he
worked as Helper/Khalasi till 29.11.1986. On request Shri
K.C. Pandey was posted in Railway Electrification project
in scale of Rs. 196-232 in mill writ shop of Kota workshop
with the lieu of Kota workshop having lien under (CWM/
Kota) parent Unit. The Railway electrification was a project
work and on completion of Railway Electrification project
to avoid retrenchment Shri K.C .Pandey was promoted as
adhoc Jr. Clerk in the scale Rs. 260-400 vide order dated
25.11.1986 and was posted on available vacant post and
was directed to attend project work at different station
and division. On completion of said project he was posted
under Dy. CSTE (C) Jaipur vide letter dated 11.07.1991 in
adhoc capacity and subsequently posted under Dy. C.E.
(C) Falna. From there Shri K.C. Pandey was transferred
and posted under CPM/ADI on a different project and he
was transferred under Dy. CE (C) II ADI on 15.11.2000 and
posted as junior clerk in Establishment section. Further
case is that Shri K.C. Pandey was substantively holding a
Group D post and lien was maintained by chief works
manager, Kota. Chief Project Manager, Ahmedabad is a
project unit and on the need base and availability of funds
from central Government either engage staff or obtain staff
from the different units/divisions on deputation. The
workman Shri K.C. Pandey was transferred to his parent
post, whose lien is there on administrative ground with
the approval of competent authority. The lien and seniority
of an employee working in construction organisation
remains with parent division/Unit of the employee. The
posting in S&C department will be on deputation basis
and he will be liable to be repatriated to his original department
without assigning any reason or expiry of currency of
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
post held by him or closer of project whichever is earlier.
The transfer order of Shri K.C. Pandey to his parent unit
has been issued within the rules and with the approval of
competent authority without any prejudice and Shri
Pandey has already been relieved from the office of Dy.
C.E. (C) GPL/A.D.I. long back. The fixation of wages as
per 5th and 6th pay commission and the statutory remedy
in the department is avilable and so does not fall within
the purview of Industrial Dispute. P.R.K.P. is not
recognised union but is only a registered union and that
unrecognised Union has no right to submit names of office
bearers to the competent Authority and so Shri K.C. Pandey
is not protected employee. More so, the Union (P.R.K.P)
has not submitted names of office bearers to have status
of protected workman. The order of repatriation to parent
unit was challenged by Shri K.C. Pandey in the year 2001
before CAT, Ahmedabad but by the order of Hon’ble
Bench of CAT, Shri K.C. Pandey was not granted relief
and so the present ground in the terms of reference for
adjudication is barred by delay, acquiescence and estoppel
on these scores prayer is made to dismiss the reference
since the 2nd party/Union /workman is not entitled to any
relief.
5.
In view of the rival contention of the parties in
respective pleadings, the following issues are taken for
discussion and determination :-
ISSUES
(i)
Is the reference maintainable?
(ii)
Has the 2nd party valid cause of action to raise
industrial dispute in this case?
(iii)
Whether the case is barred by latches, acquiescence
and estoppel?
(iv)
Whether the demand of fixation of pay as per 5th
and 6th pay commission with payment of arrear is
not an industrial Dispute and whether non-payment
of wages falls under the purview of pre-existing
right and whether remedy is available under section
33 C (2) of the I.D. Act, 1947?
(v)
Whether parent unit of the concerned workman Shri
K.C. Pandey was Loco shed of Kota Division or
Kota workshop? Whether his parent Unit at Kota
has ever asked for return lien of Shri K.C. Pandey
working at Project G.P.I. under Dy. Chief Engineer
(C) G.P.I., Ahmedabad? Whether the transfer order
dated 09.06.2009 is malafide on part of the 1st party
No. 1&2 or was in response of call of lien by parent
unit of Kota by way of repatriation?
(vi)
Whether the action of the management of the 1st
party No. 1 &2, Western Railway, Ahmedabad in
not fixing pay of Shri K.C. Pandey, junior clerk as
per 5th & 6th C.P.C. report and payment of arrears
thereof is legal and justified?
(vii)
Whether transfer order of the 1st party Shri K.C.
Pandey vide order dated 9.06.2009 to his parent
department is legal and justified?
(viii) To what relief the 2nd party/Union/workman Shri
K.C. Pandey is entitled to?
FINDINGS
6.
ISSUE NO. (v):- The 2nd party Union filed 11
documents as per list Ext. 9 which are Ext. M-9/1 to 9/11.
These are copy of transfer order dated 10.05.2001 of the
1st party from Jr. Clerk to Khalasi at his parent unit, Kota
for further posting (Ext. M-9/1) Ext. 9/2 is order of CAT
dated 27.0-9.2002 in O.A. No. 376/2001 Ext.9/3 is copy of
order dated 21.10.2003 of the 1st party retains Shri K.C.
Pandey in construction organisation and posted in stores
section Dy. CE(C) 1 ADI’s office with approval of competent
authority. Ext. 9/4 is charter of demand of P.R.K.P. includes
strike notice dated 17.08.2006. Ext. 9/5 is copy of letter
dated 30.03.2009 of D.R.M., Kota to A.L.C. regarding
workman K.C. Pandey in connection with claim of fixation
of pay under 5th C.P.C informing Shri K.C. Pandey never
worked in this office. Ext. 9/6 is copy of relieving order
dated 09.06.2009 of Shri K.C. Pandey Jr. clerk issued by
office of Dy. Chief Engineer (C) GPI. Ext. 9/7 is copy of
submission of list of protected workman of P.R.K.P.
submitted to the G.M., Western Railway, Churchgate,
Mumbai-20 dated 24.03.2010. Shri K.C. Pandey a Sl. No. 75
Jr. Clerk, Dy. CEC A.D.I showing him as branch secretary.
Ext.9/8 is copy of letter dated 08.12.2009 of P.R.K.P. (Union)
to A.L.C. (Central) Ahmedabad to take action u/s 31 of the
I.D. Act, informing that during pendency of industrial
dispute, the Dy. C.E.C. A.D.I. has relieved K.C. Pandey
when dispute regarding of fixation of pay under 5th CPC
is long pending. Ext. 9/9 is letter dated 04.01.2010 given to
Dy. A.L.C. (Central) regarding violation of service condition
of K.C. Pandey. Ext. 9/10 is copy of conciliation proceeding
by ALC (C) A.D.I. before the representative of the 1st
party and president P.R.K.P.. Ext.11 is copy of letter of
A.L.C (Central) dated 30.08.2010 addressed to the Dy. Chief
Administrative officer (Construction) Western Railway,
Churchgate, Mumbai requesting to study the details of
case of workman K.C. Pandey who is having few years to
retire to consider his case and to advice officials of
Ahmedabad to take favourable decision which will give
justice to Shri K.C. Pandey, workman. On the other hand,
Annexure-A, B and C are the same documents ass Ext.9/4,
9/6 and 9/2.
7.
The 1st party has submitted with list (Ext.13) copy
of decision S.C , A.I.R. 2002 S.C. 2279, (2007) (8) S.C.C.,
150, (2009) 11 S.C.C. 678 and (2009) 15 S.C.C. 178 as Ext.
M-13/1 to 13/4. Ext. 13/5 is letter of H.O. Mumbai on subject
recognition to trade union on western Railway with votes
obtained. Ext. 13/6 is letter of G.M. W.R.,
Mumbai to A.LC. (Central) informing the A.L.C.,
Central, New Delhi is empowered to declare the office
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bearers of registered trade union as protected workman.
Ext. 13/7 is H.O., Churchgate W.R. letter dated 02.06.2011
on the sub strike notice dated 02.06.2011 of union P.R.K.P.
over transfer of Shri Manish Viradia OS-11 informing that
H.O. only consider the office bearer of recognised union
as protected workman and that P.R.K.P. is registered Union
but not recognised so A.L.C. (Central) New Delhi is
empowered to declared protected workman of
unrecognised Union.
8.
The concerned workman Shri K.C. Pandey in his
affidavit (Ext. 14) in lieu of examination in chief states
vide para 5 his transfer order is not in the interest of
management and that impugned order is issued by the
1st party employer because he is active office bearer of
the Union and also protected workman and has raised
charter of demand regarding grant of benefit of 5th and
6th pay commission recommendation. Vide para-7 he is
class III employee working in the establishment of the
1st party No. 1 & 2 since 1998 till date in Ahmedabad.
Prior to this he was working as Khalasi from 08.06.1976
and that Kota Division after giving him promotion from
Khalasi to clerk transferred him to Ahmedabad
construction area. He is continuously and uninterruptedly
working with 1st party No. 1 &2 and that question of
implementation of order of CAT of the year 2002 does
not arise when the order is already implemented by the
1st party vide order dated 02.10.2003 vide para 8 he is
protected workman declared for the year 2009-10 vide
para-11 he states that the impugned transfer order dated
09.06.2009 is nothing but the colourable exercise of power
and with a view to victimise him and that all his juniors
workman are working in the same place where as he has
been transfereed without cogent reason. During cross
examination at para 15 he says that when he was working
at Kota workshop as khalasi he was promoted as junior
clerk. Vide para 16 his lien is at Kota where he was
appointed and that seniority, promotion and other matter
under lien. Vide para-17 he says Rly. Dept. passed order
for transfer from Ahmedabad to Kota but during pendency
of dispute seized before appropriate Government and the
Rly. did not issue pass. He is not being taken back in job
by the 1st party and he is not getting salary.
9.
1st party adduced oral evidence of two witness
through affidavit in lieu of examination in chief Ext. 33
and 35. The witness Smt. Gulshan A. Sharma She during
cross examination by Union (2nd party) states vide para-
7 that Shri K.C. Pandey in the year 1976 was appointed
in Kota Loco shed and he got T.S. on 02.11.1976 and
that he became regular by working in Kota loco shed and
in 1979 he was transferred to Kota Rly. Factory. She
admits that Shri K.C. Pandey was transferred in the
month of October, 1998 to Ahmedabad project and that
seniority list of workers is made those working in project
and that seniority list of workers is made those working
in project from the Unit where lien of concern workman
exist and the parent department used to issue order of
seniority list. She also admitted that in project extra
promotion was given to borrowed workman but it has been
stopped since four –five year. The 1st party witness vide
para 8 admits it is true that Kota Division never call back
Shri K.C. Pandey that you are going to be promoted or
that your promotion is under consideration She admits
that every employee got Rs. 10,000/- as per 5th pay
recommendation but Shri K.C. Pandey was not given vide
para-9 She admits that since 1987 Shri K. C. Pandey did
not get any increment and for this Shri K.C. Pandey raised
demand before A.L.C. (central) Ahmedabad. Vide para 11
this witness stated it is true when transfer order of
K.C.Pandey to Kota was issued the demand matter was
pending before A.L.C. (Central). It has been also admitted
by the 1st party witness vide para -12 it is true that K.C.
Pandey was not given/sent Rly pass on his impugned
transfer and vide para-13 Shri K.C. Pandey had put the
matter before the 1st party (No.1&2) that his matter is
pending at Ahmedabad and so he may not be transferred.
Vide para-15 it has been stated it is true that the management
of the 1st party did not follow any request, instruction
and became adamant to transfer Shri K.C. Pandey to Kota
and that it is true those employee who are about to
complete 60 years are allowed to retire from project and all
relevant papers are got filed by welfare Inspector who
took of those papers. Vide para 16 as per Railway Scheme
those who did not get promotion that their grade will be
changed on 10 year, 20 year and 30 years and grade pay
will be increased. It is true that neither Ahmedabad
construction Department not Kota Rly. Department gave
benefit of aforesaid scheme to Shri K.C.Pandey. Vide para
19 She states She cannot tell that concerned Rly.
Department in order to harass Shri K.C. Pandey issued his
transfer order to Kota. Vide para-21 She Shows ignorance
that Kota Division never sent letter to repatriate Shri K.C.
Pandey to Kota. The witness also concedes that officials
of Kota Karkhana reverted Shri K.C. Pandey as Khalasi
from Jr. Clerk and issued chagesheet upon him during
pendency of this reference case before the tribunal. She
cannot say that Rly. Department has done injustice with
Shri K.C. Pandey. It is not true that the transfer order is
illegal since it was for Kota workshop and not for Kota
Division.
10.
The evidence of other witness of the 1st party
namely Shri Chandra Prakash Yadav O.S. WRS. (Wagon
Repair shop) Kota is that Shri K.C. Pandey was appointed
at CWM, Kota and had not resumed duty at his parent
department since 10.06.2009 though his lien was at parent
department, Kota and he remained unauthorisedly absent.
He states that Kota Division has issued office order dated
24.08.2012 to the effect that Shri K.C. Pandey was relieved
from construction department, Ahmedabad on 09.06.2009
but did not join his parent department at Kota till date.
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
This order has been issued during pendency of this
reference case where Shri K.C. Pandey deposed in oral
evidence in support of case through affidavit (Ext.32) dated
on 03.10.2011 and cross examined on 15.10.2012. The
document of the 1st party R/2 dated 30.04.2010 go to show
designation of Shri K.C. Pandey Jr. clerk whereas R/3 order
dated 24.06.2012 shows Shri K.C. Pandey as Khalasi, where
in admitted position is this that Shri K.C. Pandey was
promoted as junior clerk by Kota division itself so how he
can be reverted to the post of Khalasi by Chief Factory
Manager, Kota in his office order. This witness also admits
vide para-5 (cross examination) that Shri K.C. Pandey on
08.07.1976 was appointed in Kota Loco shed, and in 1979
he was transferred to Kota Karkhana. Kota, Loco Shed
and Kota Karkhana are separate unit and seniority of these
units are separate. He says that since Shri K.C. Pandey
did not join in Kota Karkhana so he was not given benefit
of M.A.C.P. scheme 2009. Vide para-8 this witness admits
that Kota Rail karkhana did not sent and letter to
Ahmedabad project office to send Shri K.C. Pandey to
Kota who is on lien vide para 10 admits that since 1986
Shri K.C .Pandey has not been given increment and that
Shri K.C. Pandey has crossed age of superannuation even
then he has not been given retiral benefits since D.A.R. is
pending against Shri Pandey at Kota. Vide para 11 Shri
K.C. Pandey was engaged in Loco shed, Kota but he was
made permanent at Kota Rail Karkhanaa and so his lien is
kept at Kota Rail Karkhana.
11.
It has been submitted in the written argument of the
1st party dated 02.12.2013 that Shri K.C. Pandey has been
repatriated to his parent department CWM (Eng.)
workshop, Kota with immediate effect vide order dated
09.06.2009 and the said order was issued on administrative
ground and that the transfer/repatriation is prerogative of
employer and also part of service condition and that
transfer order can be challenged only on the ground of
being malafide or victimisation. On the other hand, it is
submitted in written argument of the 2nd party Union
dated 02.12.2013 that as per admission of the 1st party
witness Smt. Gulshan Sharma that K.C. Pandey was
appointed in loco shed, Kota and not in CWM. Engg.
Workshop, Kota and so his parent department must be
loco shed, Kota. It has also been submitted that the
parent department has not asked for though
correspondence to construction department, Ahmedabad
to recall lien of Shri K.C. Pandey, and more so, project
work at Ahmedabad has not closed and that in the year
2006 Shri K.C. Pandey through the Union (P.R.K.P.) has
raised charter demand for fixation of pay of Shri K.C.
Pandey, Jr. Clerk as per 5th and 6th C.P.C. report and that
the conciliation officer had directed to consider the
demand and when conciliation matter was pending
before the A.L.C. (Central) Ahmedabad, suddenly
issuing order of transfer dated 09.06.2009 and
relieving Shri K.C. Pandey when the matter was seized
before the appropriate Govt. clearly appears to be malafide,
on part of the 1st party No. 1 & 2 in order to victimise the
concern workman Shri K.C. Pandey whose lien has not
been recalled by parent department, Kota and so in absence
of recall of lien, the order of transfer in the garb of
repatriation appears to be unjustified and illegal. It has
been further argued by the 2nd party Union that during
pendency of the reference case issue of chargesheet dated
07.07.2011, on the ground of unauthorised absence from
Kota parent department since after relieving on 09.06.2009
which had not come into force since the dispute was
seized before appropriate Government certainly malafide
intention of the 1st party to any how frustrate the reference
case to be infructuous add towards malafide action for
victimising Shri K.C. Pandey.
12.
The 1st party lawyer as per written argument has
submitted that the demand of pay as per 5th and 6th pay
commission is not industrial dispute U/s 10 of the I.D. Act
rather such demand fall under purview of existing right
and remedy is available to claim under Section 33 C(2) of
the I.D. Act. On the other hand it has been submitted in
the written argument of the 2nd party that the 1st party
has not challenged the reference order of the appropriate
Government before the Hon’ble High Court of Gujarat and
so such contention raised before this tribunal has no leg
to stand and that the law is settled by the Hon’ble Apex
Court that when dispute is referred for adjudication the
tribunal has to answer either in affirmative or in negative
and the tribunal cannot examine the legality and validity
of the reference.
13.
The contention raised by the lawyer of the 1st party
in written argument that 2nd party Union P.R.K.P. is not
recognised Union over Western Railway and so 2nd party
has no right to raise charter of demand has no leg to stand.
Because P.R.K.P. is registered union and used to take up
the cause of aggrieved workman at the hands of employer
of western Railway and more so as per Trade Union Act,
1926, the union is defined as a registered Trade union and
the legislature has not used the word Recognised Trade
Union and so any registered Trade Union can raise an
industrial dispute on behalf of the workman and that right
has also been guaranteed under the constitution of India.
So it was also incumbent upon the management of the 1st
party to consider the demand of pay fixation in which the
1st party have palpably failed. It was the duty of the 1st
party No. 1 & 2 to take up the grievances of fixation of pay
of Shri K.C. Pandey at their own level where he was working
in construction department since 1998 and more so, he
was promoted as Jr. Clerk by his parent department at
Kota and had been transferred to construction department
as borrowed employee since his lien is at Kota. If, 1st
party no. 1 & 2 was unable to resolve the demand then
correspondence with parent department ought to have
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6363
been made for fixation of pay and more so, the parent unit
of Shri K.C. Pandey has not made correspondence for
recall of lien of Shri K.C. Pandey working in construction
department, Ahmedabad under 1st party No. 1 & 2 and so
during pending of dispute when the dispute was raised
before the appropriate Government on submission of failure
report of A.L.C (Central) Ahmedabad and paying no heed
to the request of conciliation officer is certainly malafide
action on part of the 1st party No. 1 & 2 to suomotto
transfer Shri K.C. Pandey to Kota with the wording of
repatriation. The concern workman Shri K.C. Pandey has
not prayed/represented for his repatriation before his
parent unit or before the construction department A.D.I.
under 1st party No. 1 & 2.
14.
Thus upon consideration the evidence oral and
documentary and also submission of parties in the
foregoings, I am of the considered views that in the instant
case it has to be considered this much that the parent unit
of the concerned workman Shri K.C. Pandey is at Kota
and it is immaterial at present whether his lien is with loco
shed, Kota or Kota workshop. So, I find and hold that Shri
K.C. Pandey was given promotion in Jr. Clerk by his parent
unit at Kota and he was transferred on lien at construction
dept., Ahmedabad under 1st party employer No. 1 & 2 and
was working since 1998 and that his parent unit at Kota
has not made correspondence asking for return lien of
Shri K.C. Pandey to parent unit from project G.P.I.
Ahmedabad. So, I further find and hold that the transfer
order dated 09.06.2009 in the garb of suomotto repatriation
of Shri K.C. Pandey to parent unit Kota when the dispute
was pending at Ahmedabad with construction dept. as to
demand of pay fixation as per 5th and 6th C.P.C. with
payment of arrears and the works of project had not come
to closure is quite malafide for victimising Shri K.C. Pandey
anyhow by degrading his post as Khalasi where as he had
been promoted as Jr. Clerk by parent unit, Kota and he
was working also as Jr. Clerk at construction dept. since
long back. This issue is answered against the 1st party.
15.
ISSUE NO. (iv) and (vi):- In view of the findings in
the foregoing paras while deciding issue No (iv). I further
find and hold that the demand of the 2nd party (Paschim
Rail Karmachari Parishad for fixation of pay as per 5th and
6th C.P.C. with arrear of pay to the concern workman
Shri Krushna Chandra Pandey is an industrial dispute
referred under reference order for adjudication and the
union/concern workman has no pre-existing right available
for case U/s. 33 C(2) of the I.D. Act, 1947. I further find and
hold that the action of the management of the 1st party
No. 1 & 2, Western Railway, Ahmedabad in not fixing pay
of Shri K.C. Pandey, Jr. Clerk as per 5th and 6th C.P.C.,
report and payment of arrears thereof is not legal and
justified. These issues are answered accordingly.
16.
ISSUE NO. (vii):- In view of findings to Issue
No. (iv) in the foregoings, I further find and hold that
issuing transfer order by the 1st party No. 1 & 2 of
Shri K.C. Pandey vide order dated 09.06.2009 to his parent
unit Kota is not legal and justified. This issue is answered
against the 1st party.
17.
ISSUE NO. (vii):- In view of the findings to issue
Nos. iv,v,vi and vii in the foregoings also considering that
this issue is ornamental and the 1st party has not pressed
in his written argument and so it is held that this reference
case is not barred by latches, acquiescence and estoppel.
This issue is decided in negative.
18.
ISSUE NOs. (i) & (ii):- As per findings above, I
further find and hold that the reference is maintainable
and the 2nd party (P.R.K.P. union) has valid cause of action
to raise dispute for redressal of grievances of the concerned
workman Shri Krushna Chandra Pandey.
19.
ISSUE NO. (viii):- I further find and hold that the
concerned workman who has admittedly crossed the age
of superannuation at the age of sixty has been immensely
victimised by the 1st party in not fixing his pay as per 5th
and 6th C.P.C. report and not paying arrears accured to
him even working under 1st party No. 1 & 2 and having
his lien by parents unit Kota not recalled. I further find
and hold that the concerned workman is entitled for annual
increment which has admittedly not been released to him
since 1987 as admitted by 1st party witness
Smt. Gulshan Sharma at para 9 of cross exam. I further
direct the 1st parties to grant benefit of 5th and 6th pay
commission recommendation to Shri Krushna Chandra
Pandey with payment of arrears (as per recommendation
of pay commission. The transfer order dated 09.06.2009 in
the garb of repatriation to parent unit Kota during
pendency of dispute seized before the appropriate
Government is illegal and unjust and so this order is set-
aside. The concerned workman Shri K.C. Pandey was about
to reach retiring age and as per rule even such employee
in construction department having lien at other place has
to be allowed also considering that he is office bearer and
protected workman for his continuance till he retire from
construction project which was denied by the 1st party
and so the 1st parties are directed to treat the concerned
workman throughout on duty till his retirement and are
further directed to release the pay for the intervening
period till he reached the age of retirement at G.P.I.
Ahmedabad, since the concerned workman has suffered
much mental agony and financial crisis. The 1st party No.
3 is permanently restrained from starting departmental
enquiry as per DAR for issuing charge sheet dated
07.07.2011. Since the concerned workman Shri K.C. Pandey
is directed to be treated on duty at G.P.I. Ahmedabad so
his relieving order dated 09.06.2009 by the 1st party No. 2
is held to be redundant and ineffective and as such there
is no question of initiating DAR proceeding by issuing
6364
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
charge sheet dated 07.07.2011 regarding misconduct of
absenteeism from parent unit, Kota or regarding issue of
office order dated 24.06.2012 by Chief workshop manager,
Kota for accepting lien of Shri K.C. Pandey in the cadre of
Khalasi where as Shri Pandey had been promoted from
Khalasi to Jr. Clerk at Kota . Further the 1st party No. 3 is
directed to fix the lien of the concerned workman in clerical
cadre for the purpose of releasing retiral benefits from the
parent units. The 1st parties are further directed to
implement the award within two months of receiving the
copy of award otherwise the arrear pay will carry interest
@ 9% P.A.
The reference is accordingly allowed. No order of
cost.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
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New Delhi, the 12th September, 2014
S.O.
2514.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 32/2008)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of B.C.C.L, and their
workmen, received by the Central Government on
12-09-2014.
[No. L-20012/48/2008-IR (CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT : SHRI KISHORI RAM, Presiding Officer.
In the matter of an Industrial Dispute under Section 10(1)(d)
of the I.D. Act., 1947.
REFERENCE NO. 32 OF 2008.
PARTIES : The Secretary,
United Coal Workers Union,
Pran Jivan School Road,
Gandhi Nagar, Dhanbad.
Vs.
General Manager
Sijua Area of M/s. B.C.C.L.,
PO: Sijua, Dhanbad.
Ministry’s Order No.L-20012/48/2008-IR (CM-I)
Dt. 05.06.2008.
APPEARANCES :
On behalf of the
: Mr. R.R. Ram, Ld. Advocate
workman/Union
On behalf of the
: Mr. D.K. Verma, Ld. Advocate
Management
State : Jharkhand
Industry : Coal
Dated, Dhanbad, the 8th July, 2014
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under
Sec.10(1)(d) of the I.D. Act.,1947 has referred the
following dispute to this Tribunal for adjudication
vide their Order No. L-20012/48/2008-IR (CM-I)
dt. 05.06.2008.
SCHEDULE
“Whether the action of the Management of
Basdeopur Colliery of M/s. B.C.C.L. in dismissing
Sh. Ashok Paswan, Haulage Operator from the
service of the Company w.e.f. 11.8.2006 is legal
and justified? (ii) To what relief is the concerned
workman entitled?”
On receipt of the Order No. L-20012/48/2008-IR
(CM-I) dt.05.06.2008 of the above mentioned reference
from the Government of India, Ministry of Labour &
Employment, New Delhi for adjudication of the dispute,
the Reference Case No. 32-2008 of was registered on
16.06.2008 and accordingly an order to that effect was
passed to issue notices through the Registered Posts to
the parties concerned, directing them to appear in the Court
on the date fixed, and to file their written statements along
with the relevant documents. In pursuance of the said
order, notices by the Registered Posts were sent to the
parties concerned.
Both the parties made their appearances and filed
their pleadings and photocopies of their documents. The
Union and the O.P./Management through their Advocates
respectively appeared in, and contested the case.
2.
The case of sponsoring United Coal Workers Union
for workman Ashok Paswan is that he was a permanent
employee as Haulage Operator of M/s. BCCL. His service
was unblemished. He fell sick on 3.3.2005 due to heavy
coal dust in the ground. Though he reported the Colliery
Hospital, no proper and adequate treatment could be
given to him. He also reported the Management of his
sickness. When he went to Civil Assistant Surgeon
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6365
Dr. Kishna Murari Singh, who on his diagnosis found him
suffering from Pulminary Tuberculosis, so the Doctor
advised him for bed rest. The Doctor declared him
medically fit for duty. When the workman reported for
duty, he was served with a chargesheet dt. 5.4.2005 for
unauthorized absence under clause 26.1.1. of the Certified
Standing Orders of the Company, allowing him to reply
within 48hours. He submitted his reply with the medical
certificate of his illness, denying the allegations levelled
as constituting no misconduct against him. His reply was
satisfactorily, yet the management appointed the Enquiry
Officer to conduct the domestic enquiry. But the Enquiry
Officer conducted the domestic enquiry violative of the
principles of natural justice by disallowing him to cross
examine the Management’s witness. The Enquiry Officer
submitted his report based on perverse findings without
considering his Medical Certificate. The Disciplinary
Authority passed the order of his dismissal illegal and
unjusitified. Moreover, the Disciplinary Authority had not
initiated the departmental proceeding for major
punishment. The punishment of his dismissal is
shockingly disproportionate to the charge against the
workman. His representation to the Management was also
unconsidered. Finally, the Union raised the Industrial
Dispute resulting in the reference for adjudication.
In the rejoinder filed on behalf of the workman, all
the allegations of the O.P./Management have been
specifically denied.
3.
Whereas categorically denying the allegations of
the workman, the case of the O.P./Management is that the
reference is unmaintainable; the workman was issued the
chargesheet dt.5.4.2005 of the Certified Standing Orders.
He also replied to it. But finding his reply unsatisfactory,
on appointment of Sri A.N.P. Abasta, the Personnel Officer,
as the Enquiry Officer by the Management, the domestic
enquiry was fairly held in presence of the workman. After
the Enquiry, the Enquiry Officer submitted his enquiry
report, holding his guilty of the charges.Thereafter, on
the second show cause notice with a copy of the enquiry
report to the workman, the workman did not explain about
it. So he was rightly dismissed from the service of the
Company. The Management sought permission for firstly
proving the fairness of the domestic Enquiry as preliminary
issue, and also for adducing afresh evidence on merits in
case the enquiry found unfair at the preliminary point.
Moreover, on consideration of the workman’s past
attendance for three years - Nil, 66 & 17 days in the year
2002, 2003 and 2007 respectively, he was along a habitual
absentee.
In rejoinder, it has been alleged by the O.P./
Management that the workman never reported the
Management of his sickness, though free treatment is
imparted to a workman at the Colliery Dispensary, Regional
Hospital, and the Central Hospital. He did not produce
any paper of his treatment along with his reply. So the
workman is not entitled to any relief, as the action of the
Management is legal and justified.
FINDING WITH REASONS
4.
At the very outset, the fairness of the domestic
enquiry has been held as per the Order No. 21 of the
Tribunal, following its acceptance by Mr. R.R. Ram, Ld.
Advocate for the workman through his petition. It resulted
in hearing the final argument of both the parties on merits.
Mr. R. R. Ram, the Union Representative cum
Advocate for the Union concerned for the workman
submits that while workman was sick regularly, he was
chargesheeted with a direction for his reply within 48 hours,
and later on, he was dismissed from the service of the
Company which not legally justifiable. Whereas
Mr. D.K. Verma, Ld. Advocate for the O.P./Management
has to contend that the workman absented from his duty
w.e.f. 03.03.2005 unauthorisedly, for which after due
enquiry, he was dismissed from the service on the proof of
willful absentism charge. Further on the consideration of
his past three years attendances - Nil, 66 and 17 days in
the years 2002, 2003 and 2004 respectively, he was
dismissed from the service of the Company, as he was a
habitual absentee.
5.
On perusal of the materials as produced on behalf of
both the parties on the case record, I find that as the
enquiry proceedings reveals the fact that the workman
Ashok Paswan in his statement had fully justified his
absence due to his illness affected with Pulminary
Tuberculosis (P.T), for which he was all along under
treatment from 4.3.2005 to 19.10.2005, and such sickness
of the workman in the Colliery usually affected in the
Basdeopur Colliery where the workman had to work as the
Haulage Operator. This fact also fully dealt with in the
Enquiry Report. (Ext. M.4). Moreover, the enquiry
proceedings nowhere deals with the previous records of
workman’s attendance.
Under these circumstances, I find that the dismissal
of the workman appears to be horribly disproportionate to
the nature of absentism of the workman. So the order of
the dismissal (Ext. M.6) passed by the Management
towards the workman is liable to be set aside.
In result, it is hereby, in the terms of reference,
awarded that the action of the Management of Basdeopur
Colliery of M/s. BCCL in dismissing Shri Ashok Paswan,
the Haulage Operator from the service of the Company
w.e.f. 11.08.2006 is quite illegal and unjustified. Hence, the
workman is entitled to reinstatement in his service, but
without back wages, maintaining the continuity of his
service.
KISHORI RAM, Presiding Officer
6366
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2515-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch-lh-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 70@
2002) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014
dks izkIr gqvk FkkA
¹la- ,y&20012@47@2002&vkbZvkj (lh&I)º
,e- osQ- ¯lg] vuqHkkx vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2515.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 70/2002) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court
No. 1, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. BCCL, and their
workmen, received by the Central Government on
12/09/2014.
[No. L-20012/47/2002-IR (C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/s 10 (1) (d) (2A) of
I.D. Act, 1947
Ref. No. 70 of 2002
Employer in relation to the management of
Kustore Area M/s. BCCL
AND
Their workmen.
Present : SRI RANJAN KUMAR SARAN, Presiding Officer.
Appearances :
For the Employers
: Sri U. N. Lall, Advocate
For the Workman
: Sri S. C. Gour, Rep.
State : Jharkhand
Industry : Coal
Dated : 19/8/2014
AWARD
By Order No. L-20012/47/2002-IR (C-I), dated.
15/07/2002, 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 denial of the benefit of special VRS (F) to
Smt. Bandhia Devi and consequent denial of
employment to her son by the management of Ena
Colliery under Kustore Area of M/s. BCCL is legal
and justified ? if not, to what relief is the concerned
workman or her dependent entitled ?’’
2.
This Case is received from the Ministry of Labour
& Employment on 02.08.2002. After receipt of reference
both parties are noticed. The Sponsoring Union files their
written statement on 12.08.2002. The management files their
written statement on 25.09.2002. One witness each has
been examined from both side. Document marked as W-1
to W-4 by the workman and M-1 to M-5 by the
management.
3.
The short point to be decided in this reference is as
per female VRS Scheme. One lady workman applied for
VRS and their male child applied for job in the place of the
his mother.
4.
The BCCL management did not act on the
application of woman workman as a result of which, the
lady workman retired, and virtually application for job
of her dependent workman refused.
5.
When the dispute arose it is argued by the
management that there is no provision to give
employment to his/her dependent of retired employee
under VRS Scheme. But it is submitted by the female
workman that as there case was not considered, his
children are out of employment since more than 10 years
and above.
6.
Moreover the MW-1 in his cross examination stated
that the copy of refusal of employment was not
communicated to the workman. In this regard. no such
document filed by the management to prove, that why
his application is refused.
7.
It is submitted by the workman, that they applied
according to scheme within the period, and their claim
should have been decided promptly. If it is delayed, the
benefit would go to the workman.
8.
But on scrutiny of documents, it is found that, the
scheme is the female workman must be 58 years of old
and the applicant in place of her job must be 18 years and
above and below 35 years. But on the service excerpts of
the female workman filed it is seen that the applicant
for job in her place is aged 18 years (it is written after
scored though the digit at its original place) and years of
birth shown 1978. The scheme published in 1995 and
the years of birth of the dependent is 1978.
9.
If that is so at the time of applying for job in place of
female employee her dependant’s age was 17 years.
Moreover cutting in service excerpts creates doubt.
Therefore management rightly refused the claim.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6367
10.
Moreover female workman also completed her job
under the management till her sixtieth years. Hence the
claim of the workman is refused.
11.
Considering the facts and circumstance of the case,
I hold that the denial of the benefit of special VRS (F)
to Smt. Bandhia Devi and consequent denial of
employment to her son by the management of Ena
Colliery under Kustore Area of M/s. BCCL is legal and
justified. Hence he is not entitled to get any relief.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2516-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lh-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 22 vkWiQ 2010) dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks izkIr
gqvk FkkA
¹la- ,y&20012@94@2009&vkbZvkj (lh,e&I)º
,e- osQ- ¯lg] vuqHkkx vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2516.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 22/2010) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
1, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. CCL, and their
workmen, received by the Central Government on
12/09/2014.
[No. L-20012/94/2009-IR (CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/s 10 (1) (d) (2A) of
I.D.Act. 1947
Ref. No. 22 of 2010
Employer in relation to the management of
Sayal “D” Colliery Barka Sayal Area M/S CCL
AND
Their workmen.
Present : Sri RANJAN KUMAR SARAN, Presiding Officer.
Appearances :
For the Employers
: Sri D. K.Verma, Advocate
For the Workman
: Sri A. K. Pandey, Rep.
State : Jharkhand
Industry : Coal
Dated : 25/7/2014
AWARD
By Order No.L-20012/94/2009-IR (CM-I), dated.
11/02/2010, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub-section (1) and sub –section (2A) of Section 10
of the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
“Whether the action of the management of Sayal D
Colliery, Barka Sayal Area of M/s. CCL in
superannuating Shri Sahadat Ali Conveyor Khalasi
Cat-III from the services of the company w.e.f.
21.7.2004 is justified and legal? To what relief is the
workman concerned entitled?”
2.
This Case is received from the Ministry of Labour &
Employment on 08.03.2010. After receipt of reference, ,
both parties are noticed. The workman files their written
statement on 22.03.2010. The management files their written
statement on 07.12.2012. One witness each has been
examined from both side.
3.
The short point involved in this reference is that,
whether the retirement of the workman on 21.07.2004 is
just and proper. The workman to support his case examined
himself as a witness. He is unable to speak his correct age.
His approximate age as he said In his evidence is also
confusing.
4.
The concerned workman as witness (WW-1) further
says that he raised the dispute of his age after the
retirement . The law is well settled that any claim of age
dispute at fag end of the job or after retirement can not be
acceptable that it may be after thought.
5.
Considering the facts and circumstances of this case,
I hold that, in the absence of strong proof mere claim of
premature retirement will not be entertained . Hence his
claim is refused, he not entitled to get any relief.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2517-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lh-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 57 vkWiQ 1992) dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks izkIr
gqvk FkkA
¹la- ,y&20012@275@1991&vkbZvkj (lh&I)º
,e- osQ- ¯lg] vuqHkkx vf/dkjh
6368
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
New Delhi, the 12th September, 2014
S.O.
2517.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 57/1992) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No
1, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. CCL, and their
workmen, received by the Central Government on
12/09/2014.
[No. L-20012/275/1991-IR (C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD.
In the matter of reference U/s. 10 (1) (d) (2A) of
I.D.Act. 1947
Ref. No. 57 of 1992
Employer in relation to the management of
Sayal Colliery, M/s. CCL,
AND
Their workmen.
Present: Sri RANJAN KUMAR SARAN, Presiding Officer.
Appearances :
For the Employers
: None
For the Workman
: None
State : Jharkhand
Industry : Coal.
Dated : 12/08/2014
AWARD
By Order No.L-20012/275/1991-IR (C-I), dated
29/07/1992, 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 Sayal
Colliery of C.C. Ltd. P.O-Sayal, Distt. Hazaribagh.
In not promoting Sri Ram Vyasan from Category-
V to VI is justified? If not , to what relief workman
is entitled ?”
2.
After receipt of the reference, parties are noticed,
Though they took steps for certain dates, the management
& workman examined one evidence each. The
management marked document M-1 & M-2.
Subsequently the workman did not appear nor take any
interest in the case. It is presumed that the disputes
between parties have been resolved in the meantime.
Hence No Dispute Award is passed.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2518-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-lh-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] xksnkojh[kUuh ds iapkV (lanHkZ la[;k
58@2009) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014
dks izkIr gqvk FkkA
¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2518.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award of the Indus.
Tribunal-cum-Labour Court, Godavarikhani (IT/ID/58/
2009) 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 12.09.2014.
[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.
Tuesday, the 5th Day of August, 2014.
Industrial Dispute No. 58 of 2009
Between :
Gadham Mallesh,
Ex-Shot Firer, E.C. No. 0968575,
S/o. Mallaiah, 56 Yrs,
C/o. Sri B. Amarender Rao, Advocate, Raghupathi
Nagar, (Ganga Nagar)
PO : Godavarikhani,
Dist. Karimnagar.
.....Petitioner/Workman.
And
1.
The Superintendent of Mines,
SCCo. Ltd., GDK 1 & 3 Incline,
PO : Godavarikhani,
Dist. Karimnagar - 505209 (A.P).
2.
The Chief General Manager,
SCCo. Ltd., Ramagundam Area 1,
PO : Godavarikhani,
Dist. Karimnagar - 505 209 (A.P).
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6369
3.
The Director (P. A & W),
SC Co. Ltd., PO: Kothagudem,
Dist. Khammam (A.P.).
4.
The Chairman & Managing Director,
SC Co. Ltd., PO: Kothagudem,
Dist. Khammam. (A.P.).
— Respondents/Management.
This Industrial Dispute petition coming on before
me for final hearing in the presence of Sri B.Amarender
Rao, Advocate, for the petitioner and Sri D.Krishna
Murthy, Advocate, for the respondents, and the matter
having stood over before me for consideration till this
date, the Court passed the following :
AWARD
1.
This is a petition filed to set aside the dismissal
order dt. 15.12.2008 issued by R3 and to direct the
respondents to reinstate the petitioner into service with
continuity of service, back wages and other benefits.
2.
The allegations in the petition are as follows:
Petitioner was appointed in the respondent company in
the year 1972 as Badli Filler and later promoted as coal
filler in the year 1973. Petitioner was promoted as Short
Firer in the year 1977 and ever since he has been
discharging his duties to the satisfaction of his superiors.
Due to head injury sustained by the petitioner during the
course of employment, petitioner suffered from severe
ill-health during the year 2007 and on account of domestic
problems i.e. unpleasant marital problems of his daughter
and consequently court cases petitioner’s health and
mental condition deteriorated. He underwent regular
treatments in the respondent company hospital, referral
and private hospitals during the year 2006 and 2008.
R-1 without considering the genuine ill-health condition
of the petitioner issued charge sheet dt. 29-01-2008 under
Company’s standing order no. 25.25 allegint that
“Habitual late attendance or habitual absent from
duty without sufficient cause” during the year 2007"
The charge sheet was served on the petitioner on
08-02-2008. Petitioner submitted his explanation dt.
11-02-2008 narrating his health problems and domestic
problems and requested to refer him to medical board in
view of his serious ill-health. But a farce of domestic
enquiry was conducted on 20-02-2008 and show cause
notice dt. 29-03-2008 was issued on R2 requiring the
petitioner to submit his representation if any on the
enquiry findings. Petitioner submitted his written
representation dt. 07-04-2008 once again requesting the
Management to consider his genuine ill-health and refer
him to Apex Medical Board of the Company. Petitioner
developed health problems from the year 2006 onwards.
He underwent regular medical treatment in private
hospitals and respondent company’s hospital. On
01-07-2007 he was made unfit by SCCL Hospital and he was
given treatment from 01-07-2007 to 13-07-2007. He attended
for duties for about (20) days in the month of August,
2007 but his health condition deteriorated and he reported
sick and sent telegram to R1 on 27-09-2007. R-1 referred
the petitioner to Area Hospital, Ramagundam where
petitioner was given treatment till 12-04-2008 for
“Malingering, heaviness of the head, giddiness, ed memory
and fear, apprehension & ed concentration” etc. Petitioner
was referred to Director, Institute of Medical health vide
letter dt. 13.04.2008 and he was given treatment at Mental
Hospital, Errgadda till May, 2008. The said Authorities
sent back the petitioner to R2 Area Hospital vide their
medical report dt. 02-06-2008. In the letter it was
recommended that the petitioner be given a surface job
where handling of explosive is not involved. Area Hospital
Authorities referred the petitioner to CMS Main Hospital,
Kothagudem regarding his fitness for duties vide letter dt.
02-07-2008. R-2 again wrote letter dt. 08-01-2009 for
confirmation of petitioner’s medical fitness/unfitness by
Medical Board of the Company. Later medication and
follow up treatment was denied to the petitioner by the
respondents and even after lapse of 4 to 5 months period
no further action was initiated for his medical unfit/fitness
and giving surface job. Then the petitioner submitted
representation dt.14-05-2009 to R-2. Subsequently
respondents victimized the petitioner and neither provided
him surface job nor declared him medical unfit. To deprive
the petitioner of his legitimate surface job or medical unfit
benefits R-3 issued the dismissal order with effect from
25-10-2009. The material dates were altered in the said
order by showing the dates 15-12-2008 and 25-10-2009.
The order was served to the petitioner vide office memo
dt. 25-10-2009 very recently. This is a very clear case of
unfair labour practice and victimization. Petitioner
participated in the enquiry and deposed about his ill-health
condition. The domestic enquiry was not conducted fairly
and properly. The findings of enquiry officer are cryptic
and vague. There is reasonable and sufficient cause for
the absence of petitioner during the year 2007. Petitioner
served the respondent Company for 35 years without any
remark. The dismissal order without issuing Show cause
notice of dismissal from service is not sustainable. The
punishment given to the petitioner is extremely harsh.
Petitioner could not secure any alternative job and
remained unemployed. Hence the dismissal order may be
set aside and petitioner be taken into service with
continuity of service, attendant benefits and full back
wages.
3.
Respondent No. 1 filed counter contending that this
Tribunal has no jurisdiction as the Respondent Company
is a Central Government Company and there is a separate
tribunal at Hyderabad established by the Central
Government. In Para “6” of the counter it is stated that the
petitioner never reported sick in the Company’s hospital
and did not undergo treatment of head injury and he did
6370
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
not sustain any head injury during the employment in the
year 2007. If any such thing happened it would have been
recorded in the Register maintained at the Mine. Petitioner
reported sick at Area Hospital of Respondent Company
on 01-07-2007 and made fit on 13-07-2007. Petitioner being
an underground employee is expected to put in minimum
of (190) musters in a Calendar Year but he failed to do so
during the period from 2003 to 2008. The attendance of the
petitioner from the year 2003 to 2008 is as follows:
Sl. No.
Year
No. of musters
1.
2003
111
2.
2004
104
3.
2005
101
4.
2006
110
5.
2007
18
6.
2008
NIL
Petitioner was issued charge sheet on 08-02-2008
reqarding his unauthorized absence and he submitted his
explanation on 11-02-2008. Therefore enquiry was ordered
and petitioner attended the enquiry on 20-02-2008 and
admitted the charges. Enquiry was conducted in a fair
manner. On completion of enquiry petitioner was issued
show cause notice dt. 31-03-2008 along with copies of
enquiry proceedings and enquiry report, giving him an
opportunity to make his representation if any. Petitioner
gave reply on 07-04-2008 admitting the charges and
requesting for cancellation of charge sheet. In Para No. 10
of the counter the details of the treatment taken by the
petitioner from 01-07-2007 including the treatment at the
Mental Hospital, Erragadda and referring to the Chief
Medical Services, Kothagudem, are admitted. Issuing
notice with proposed punishment is not a requirement of
principals of natural justice and the standing orders of the
respondent company do not speak about any such show
cause notice. Unauthorized absence creates lot of
hindrances to the productive work of the Company.
Therefore the petition may be dismissed.
4.
This Counter filed by Respondent No. 1 was
adopted by respondents 2 to 4.
5.
At the time of hearing, Ex.W-1 to W-14 have been
marked on behalf of the workman and Ex. M-1 to M-10 are
marked on behalf of the Management.
6.
Written arguments have been filed by both parties.
In the written arguments Advocate for the petitioner sought
the setting aside of dismissal order and granting
full back wages from the date of his unfit till his
superannuation i.e., 01-07-2007 till 30-06-2012 or declaring
the petitioner as medical unfit with effect from 01-07-2007.
In the written arguments filed on behalf of the respondent
the counter allegations have been reiterated.
7.
Now the point for consideration is whether the
petitioner is entitled to relief of reinstatement or any other
alternative relief since the, petitioner attained the age of
superannuation on 30-06-2012?
8.
POINT : As per Ex.M-1 the charge against the
petitioner is he was absent from duties without any
sanctioned leave during the year 2007. It is an admitted
fact in the counter and also in the documents filed by the
petitioner that petitioner reported sick on 01-07-2007. On
27-09-2007 petitioner says that he issued telegram to his
employer about his illness and in proof of the same he
filed a telegraph office receipt which is marked as Ex.
W-4. Respondents neither denied the receipt of telegram
nor confirmed the receipt of telegram. On 12-02-2008 the
Superintendent of Mines, Godavarikhani-I Incline
addressed a letter to the Additional Chief Medical Officer,
Area Hospital, Ramagundam that petitioner was absent
from duties from 27-06-2007 and to advise his medical
fitness to allow him for duty. Ex.W-6 photostat copy of the
treatment particulars of the petitioner shows that in
February, 2008 he approached the Area Hospital,
Godavarikhani maintained by the respondents and he was
treated till 06-04-2008. He was referred to the Director,
Institute of Mental Health, Erragadda, Hyderabad as per
Ex.W-7 addressed by Addl. Chief Medical Officer, Area
Hospital, SCCL, Godavarikhani. On 02-06-2008 the
Superintendent, Mental Care Hospital, Hyderabad
addressed a letter stating the that petitioner responded to
treatment and he may be given job which does not involve
handling of explosives (petitioner was working as Short
Firer involving the use of explosives prior to his becoming
sick). Then a letter was addressed to C.M.S. Kothagudem,
on 02-07-2008 to advise regarding his fitness. Copy of this
letter is marked as Ex.W-9. On 14-05-2009 petitioner sent a
representation to the Chief General Manger, RG-I,
Godavarikhani that he may be sent to Company Apex
Board, Kothagudem stating that after the letter dt.
02-07-2008 and another letter dt. 08-01-2009 he was not
sent to the Medical Board, Kothagudem for confirming
his fitness or declaring him unfit. In September, 2009
petitioner was allowed to work and he had worked for (8)
days and he was given salary as can be seen from Ex.W-
11. On 15-12-2008 an office order was passed dismissing
the petitioner from service, w.e.f., 25-10-2009. This office
order referred to the representation of petitioner dt. 07-04-
2008. This representation is marked as Ex. M-9. At this
stage the admissions of the respondents that petitioner
suffered illness from 01-07-2007, referring to Institute of
Mental Health, Erragadda and the recommendation of
Mental Hospital Authorities that petitioner be provided
surface job, have to be highlighted. There is no record to
show that the petitioner was ever offered a surface job as
recommended by the Mental Care Hospital Authorities. It
¹Hkkx II—[k.M 3(ii)º
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6371
is not as though petitioner approached the Mental Care
Hospital, Erragadda on his own. He was referred to that
hospital through the Company Hospital only. The
petitioner filed letter dt. 14-05-2009 requesting that he was
declared as unfit through the Apex Medical Board. The
Addl. Chief Medical Officer, Area Hospital, Ramagundam
has examined the petitioner as can be seen from Ex.W-9.
9.
With regard to the sending the petitioner to the main
company hospital at Kothagudem to examine the fitness
of the petitioner and with regard to providing the petitioner
with a surface job as recommended by the Mental Health
Hospital, Hyderabad, the respondents have not stated
anything specific and they are evasive. When the petitioner
was referred to Mental Health Hospital, Hyderabad who
gave their opinion, the respondents should have informed
the petitioner whether he will be provided a surface job or
whether he will be treated as medically unfit. Respondents
just kept quiet. So also regarding the sending of petitioner
to the main hospital of the respondent company at
Kothagudem. While the petitioner was going round
hospitals and infact taking treatment as can be seen from
Ex.W-6, he was issued show cause notice with regard to
the enquiry report. The dismissal order dt. 15.12.2008 is
completely silent about the period of medical unfitness of
petitioner. The petitioner’s plea that he was sick during
the year 2007 can not be brushed aside because he reported
sick on 1.7.2007 itself. The enquiry record does not make
out that the petitioner was intentionally absent from duties.
The enquiry report marked as Ex.M-6 is completely silent
about the petitioner reporting sick on 01-07-2007. Therefore
it is to be held that the attitude of the respondents towards
petitioner, is to say the least predetermined and evasive.
Therefore the dismissal order is liable to be set aside. Since
the petitioner has attained the age of superannuation on
30-06-2012, the following order is passed.
10.
In the result, award is passed holding that
i.
The dismissal order against the petitioner is set
aside.
ii.
The petitioner is entitled to full back wages from
2.7.2008 i.e., the date on which letter was addressed
to the main Hospital, Kothagudem regarding fitness
of the petitioner.
iii.
The back wages are payable upto the date of
superannuation i.e., 30.6.2012.
iv.
The petitioner is deemed to have retired on 30.6.2012
and he is entitled to all attendant benefits and
continuity of service.
G. B. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman :—
For Management :—
-Nil-
-Nil-
EXHIBITS
For Workman :—
Ex.W-1
Dt. 29-01-2008
Charge sheet, x. copy
Ex.W-2
Dt. 11-02-2008
Reply to charge memo, x.
copy
Ex.W-3
Dt. 13-07-2007
Fit certificate from 1-7-2007 to
13-07-2007
Ex.W-4
Dt. 27-09-2008
Telegram receipt
Ex.W-5
Dt. 12-02-2008
Letter issued to ACMO, Area
Hospital, by SOM, GDK. 1
Incline regarding leave
particulars of the petititioner,
x. copy
Ex.W-6
Dt. 13-02-2008
Medical treatment OP tickets
to
(3) three sheets.
12-04-2008
Ex.W-7
Dt. 13-04-2008 Letter addressed to the
Director, Institute of Mental
Health,
Yerragadda,
Hyderabad by the Addl.
Chief Medical Officer, Area
Hospital RG.
Ex.W-8
Dt. 02-06-2008 Letter addressed to the
CMO, Area Hospital, GDK by
the Supdt., Govt. Hospital for
mental car, Hyderabad,
regarding medical report of
petitioner
Ex.W-9
Dt. 02-07-2008
Letter of Addl. CMO, Area
Hospital, RG, regarding
medical examination report of
petitioner.
Ex.W-10
Dt. 14.05.2009
Representation of petitioner
submitted to Chief General
Manager, SCCL, RG-I.
Ex.W-11
Dt. -
Pay slip for the month of
September, 2009
Ex.W-12
Dt. 25-10-2009
Office memo regarding name
removal of petitioner
Ex.W-13
Dt. 15-12-2009
Dismissal order
Ex.W-14
Dt. 01-12-2009
Demand notice submitted to
the Director, (PA&W),
Kothagudem
For Management :—
Ex.M-1
Dt. 29-01-2008
Charge sheet
Ex.M-2
Dt. 08-02-2008
Postal Ac., of petitioner
Ex.M-3
Dt. 11-02-2008
Reply to charge sheet
6372
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Ex.M-4
Dt. 17-02-2008
Enquiry notice
Ex.M-5
Dt. 20-02-2008
Domestic enquiry
proceedings
Ex.M-6
Dt. 20-02-2008 Enquiry report
Ex.M-7
Dt. 28/31-3-2008 Show cause notice
Ex.M-8
Dt. 04-04-2008
Ack., to show cause notice
Ex.M-9
Dt. 07-04-2008
Reply to show cause notice
Ex.M-10
Dt. 15-12-2008
Dismissal order, x.copy
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New Delhi, the 12th September, 2014
S.O.
2519.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award of the Indus.
Tribunal-cum-Labour Court, Godavarikhani (IT/ID/37/
2007) as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
SCCL and their workmen, which was received by the
Central Government on 12.09.2014.
[No. L-22013/1/2014-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
GODAVARIKHANI
Present
: SRI G. V. KRISHNAIAH,
Chairman-cum-Presiding Officer.
Wednesday, on this the 9th day of July, 2014
INDUSTRIAL DISPUTE No. 37 OF 2007
Between:-
SHAIK TAJUDDIN,
Ex.Badli Filler, E.C. No. 2895370,
S/o. Jani, Age 30 years,
C/o. Sri B. Amarender Rao, Advocate,
Q.No. ST2-370, Bus Stand Colony,
P.O. Godavarikhani,
Dist. Karimnagar–505209 (A.P.)
….Petitioner
And
(1) The Colliery Manager,
S.C. Co. Ltd., RK-NT Incline,
P.O. Srirampur,
Dist. Adilabad (A.P.)
(2) The General Manager,
S.C. Co. Ltd., Srirampur (P) Area,
P.O. Srirampur,
Dist. Adilabad (A.P.)
(3) The Chairman & Managing Director,
S.C. Co. Ltd., P.O. Kothagudem,
District Khammam (A.P.)
… Respondents
This case coming before me for final hearing in the
presence of Sri B.Amarendar Rao, Advocate for the
petitioner and of Sri D.Krishna Murthy, Advocate for the
Respondents; and having been heard and having stood
over for consideration till this day, the Court delivered the
following:-
AWARD
This petition is filed U/Sec. 2-A(2) of the Industrial
Disputes Act, 1947 to set aside the dismissal order dt.
19-11-2002 passed by the 2nd respondent against the
petitioner and direct the respondents’ company to reinstate
the petitioner into service as Badli Filler with continuity of
service, all other consequential attendant benefits and
full back wages.
2.
The averments of the petition are that the petitioner
was appointed as Badli Filler by the respondent company
in the year 1996. Ever since the date of appointment, the
petitioner was discharging his duties to the utmost
satisfaction of the company authorities. The petitioner
had put in more than the required 100 physical musters
every year, ever since his appointment in the year 1996 to
till the year 2000. He worked hard and put up good
attendance. The petitioner participated in the sports on
behalf of the respondents’ company. While so, during the
course of such participating in the sports on behalf of the
company in the year 1999, the petitioner sustained leg
injury in the knee joints. He took medical treatment in the
company’s hospitals for the leg injury in the knee joints
sustained by him during the course of his employment
i.e., participating in the sports on behalf of the
respondents’ company. As per the advice of the doctors
due to the said leg injury, the respondents provided
General Mazdoor job to the petitioner from 1999 to 2000
and paid category-I wages.
3.
The petitioner was taking continuous medical
treatment in the company hospitals in the years 1999 and
2000 for his leg injury in the knee joint, while performing
the alternative General Mazdoor light duty by receiving
category-I wages. During the year 2001, the 1st respondent
forced the petitioner to go to under ground mine and do
¹Hkkx II—[k.M 3(ii)º
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6373
the coal filling duty, which is very strenuous. The 1st
respondent without considering the true facts and ill health
condition of the petitioner in the year 2001, issued charge
sheet under company’s standing order No. 25.25 to the
petitioner dt.16-02-2002 alleging that:-
“For your habitual late attendance or habitual
absence from duty without sufficient cause during
the year 2001”.
4.
The petitioner submitted his explanation to the
charge sheet, on 25-2-2002 explaining his knee joint leg
injury and requested to provide General Mazdoor duty, as
he sustained injury during the course of his employment.
But a farce of enquiry was conducted and the petitioner
participated in the enquiry proceedings. The Enquiry
Officer simply submitted his cryptic findings report in a
single paragraph. The respondents failed to provide
observation period to the petitioner after the domestic
enquiry and dismissed him from service by proc., dt.19-
11-2002. The petitioner sustained serious leg injury in the
knee joints while he was participating in the sports on
behalf of the company. There is reasonable cause for the
absence of the petitioner during the year 2001. No show
cause notice was issued proposing the capital punishment
of dismissal from service, which is against the mandatory/
statutory provisions of law and contrary to the principles
of natural justice. The extremely harsh punishment of
dismissal from service is highly excessive and shockingly
disproportionate. Therefore, he prays to set aside the
dismissal order and to order for his reinstatement into
service with full back wages.
5.
The respondent No. 2 filed his counter denying all
the allegations in the petition putting the petitioner to
strict proof of all those allegations. The 1st and 3rd
respondents filed memo adopting the counter filed by
R-2.
6.
The brief averments of counter of R-2 are that the
respondents’ company is a Government Company
incorporated under the provisions of Company’s Act, 1956
for carrying out the business of winning and selling the
coal and since the coal mining industry is a central subject,
the appropriate Government for this respondent/
management is Central Government. As per Sec.7(A)(1)
of I.D. Act, the appropriate Government may by
notification in the official gazette constitutes one or more
Industrial Tribunals for the adjudication of Industrial
Disputes relating to any matter whether specified in the
2nd or 3rd schedule and for performing such other
functions as may be assigned to them under this Act.
And that the Central Government established an Industrial
Tribunal-cum-Labour Court at Hyderabad from 29-12-2000
for adjudication of Industrial Disputes and the petitioner
ought to have approached the said Tribunal for the
redressal of grievances if any. But he conveniently avoided
to file his petition before the Tribunal established by the
Central Government for the reasons best known to him
and the petition is not maintainable under law and the
same may be dismissed on this ground alone.
7.
The petitioner was appointed as Badli Filler on
3-5-1996. The petitioner is put to strict proof of the
allegation that he participated in the sports on behalf of
the company in the year 1999 and sustained injury in the
knee joints. There is no documentary proof that the
petitioner played volley ball on behalf of the respondent
company and sustained head injury to his knee joints in
the year 1999. The petitioner was not regular to his duties
in any year and not put in required minimum (190) musters.
During the year 2001 the petitioner put in only 49 musters.
As the above act amounts to misconduct, he was issued
charge sheet dt.16-2-2002. The petitioner submitted his
written
explanation
dt.
25-2-2002
stating
that due to white jaundice he was absent for duties in the
year 2001. He did not produce any documentary evidence
in support of his ailment. During the enquiry, he accepted
that he remained absent on the dates mentioned in the
charge sheet and pleaded guilty of the charges. Domestic
enquiry was conducted in a fair way the Enquiry Officer
submitted his report on the basis of recorded evidence.
Subsequent to the enquiry proceedings, the petitioner was
advised to attend family counseling vide letter dt.
24-7-2002, but he failed to attend the same. The charges
levelled against the petitioner were proved and the
respondents company was constrained to dismiss the
petitioner from service vide letter dt.19-11-2002. The
respondents company cannot go on employing the
persons who are chronic absentees, who are a burden to
the respondents company. As such, the petitioner was
dismissed from service for his unauthorized absenteeism.
Therefore, the respondents pray to dismiss the petition
with costs.
8.
Ex.W-1 to W-10 are marked on behalf of the petitioner
and Ex. M-1 to Ex. M-10 are marked on behalf of the
respondents.
9.
Heard both sides. Perused the material papers on
record.
10.
Now the point for consideration is:-
(1)
Whether the present petition is maintainable before
this Tribunal?
(2)
To what extent the alleged misconduct on the part
of the petitioner was made out in the domestic
enquiry and whether the punishment of dismissal of
the petitioner is justified?”.
11.
This court passed order dt.10-7-2013, holding the
domestic enquiry conducted by the respondents is valid.
6374
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
12.
POINT NO. 1
It is the case of the respondents that the respondents
company incorporated under the provisions of Company’s
Act, 1956 for carrying out the business and selling the
coal and since the coal mining industry is a Central subject,
the appropriate Government for this respondents/
management is Central Government and that as per
Sec.7A(1) of I.D., Act, the appropriate Government by may
its notification the official gazette constitute one or more
industrial tribunals for adjudication of industrial disputes
relating to any matter whether specified in the 2nd or 3rd
schedule and for performing such other functions as may
be assigned to them under this Act. The respondents
further submitted in their counter the Central Government
established an Industrial Tribunal-cum-Labour Court at
Hyderabad on 29-12-2000 for adjudication of Industrial
Disputes and the petitioner ought to have approached
the said tribunal for redressal of grievances if any. As
such, the ID is liable to be dismissed in limini.
13.
In a case reported in 1998(5) ALD-16 (D.B) in a writ
petition between U.Chinnappa Vrs., Cotton Corporation
of India and others; the Division Bench of our High Court
held – “we will assume that in so far as the dismissed or
retrenched workman is able to approach the Labour Court
straight-away, the power of the Central Government to
make a reference of the dispute may be whittled down
protanto and in that sense there is a conflict or repugnancy
with sub-section (2) of section 2(A) and Section 10(1) r/w
sub-section (1) of section 2-A and Section 3 of the Act.
Even then, the Presidential assent given under Article
254(2) makes the State law prevail over the provisions of
the Central law to the extent of repugnancy”. It also further
observed Industrial Disputes Act, 1947, Section 2-A(2) is
not confined to workmen employed in Industrial
undertakings of State Government and it applies also to
workmen engaged in Central Government undertakings.
14.
In the light of the above cited case law, Section 2-
A(2) of I.D Act, 1947 applies both to the workmen employed
in State Government undertakings and Central Government
undertakings. It is for the workman to approach U/Sec.2-
A(2) of I.D. Act, either to the Industrial Tribunals having
Central jurisdiction and also the Tribunals having State
jurisdiction. Therefore, the point is answered in favour of
the petitioner.
15.
POINT No.2:-
Now, it is to be seen to what extent the alleged
misconduct on the part of the petitioner was made out in
the domestic enquiry and whether the punishment of
dismissal of the petitioner is justified.
16.
This petition is filed seeking relief of reinstatement
as Badli Filler. According to the petitioner he joined the
Respondent Company in the year 1996 and had put in
more than required 100 musters every year up to the year
2000. He sustained injury while playing sports and
because of injury he could not put in sufficient musters
during the year 2000-2001. The petitioner has taken
treatment from the company Hospital in the year 1999-
2000 for his injuries. During the year 2001 the petitioner
was forced to do under ground work which is very
strenuous and therefore his pain in the knee joint increased.
Subsequently charge was framed against the petitioner
that he was not regularly attending duties from January,
2001 to December, 2001. The petitioner gave explanation,
but it was not considered. Enquiry was conducted, but it
was not conducted fairly. The respondent failed to come
family counseling and observation period to the petitioner
for domestic enquiry and such failure is against the circular
and MOs of the Company. Basing on enquiry report the
petitioner was illegally dismissed vide Order, dt.19.11.2002.
The order was passed without issuing show cause notice.
Hence the order may set aside.
17.
The counter is filed on behalf of the second
respondent stating that the petitioner never played sports
on behalf of the respondent company, that petitioner being
a under ground worker was expected to work for at least
190 days in a calendar year, that from 1997-2000 the
petitioner failed to put in minimum 190 musters as shown
in the table below:
1997
181
1998
122
1999
123
2000
101
2001
049
Therefore he was charge sheeted for habitual
absence from duty without sufficient cause. The petitioner
submitted an explanation with due to jaundice he was
absent for that days in the year 2001, but did not produce
any documentary evidence in support of his evidence.
The petitioner did not mention in his explanation that he
reported sick in Company Hospital, during the enquiry
the petitioner pleaded guilty for the charges because of
the irregular attitude of the petitioner the production of
the company was affected and therefore the petition may
be dismissed.
18.
During the course of enquiry by order dt.10.7.2013
procedure followed in preliminary enquiry was held to be
correct. During the course of enquiry Ex.W-1 to W-10
are marked on behalf of the workman and Ex.M-1 to M-10
are marked on behalf of the Management.
19.
The main contention of the petitioner is that he was
participating in sports and therefore sustained injury and
could not attend duties regularly. Ex.W-6 is the certificate
¹Hkkx II—[k.M 3(ii)º
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6375
showing that the petitioner participated in Volleyball
Tournament. Ex.W-9 is guidelines over relieving employees
for participating in sports. Ex.W-10 is reply to the
information sought by the petitioner regarding TA claims,
relieving letters towards sports relief in departmental/
regional tournaments. In this letter it is stated that days of
relief are not available. Out of the seven years of service
put in by the petitioner, he was attending duty some what
regularly up to the year 2000. In the year 2001 only
petitioner was on duty for 49 days and this was the reason
for his removal. Though the absence of the petitioner
without permission to him, have caused inconvenience to
the respondent, the mis-conduct is not of last serious
nature as to award removal from the service. In a decision
reported in 1982 LAB.IC.1031 between R.M., PARMAR
VRS. GUJARATH ELECTRICITY BOARD with regard to
the condition of removal it was observed by the Gujarath
High Court is as follows:
DIVISION BENCH JUDGMENT OF GUJARATH HIGH
COURT
REPORTED IN 1982 LAB.IC.1031
BETWEEN: R.M., PARMAR VRS. GUJARATH
ELECTRICITY BOARD
Guidelines laid down in the matter of inflicting
punishment 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,
6376
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
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.
Taking into account the above observation and also
the facts that the removal of the petitioner is
disproportionate to the mis-conduct, the petition is
allowed.
20.
In the result, the dismissal order, dt.19.11.2002
marked as Ex.M-10 passed by the respondent No.2 is set
aside. The respondent’s Company is hereby directed to
reinstate the petitioner in the service as “Afresh Badli
Filler” subject to Medical fitness for the post. The
petitioner is not entitled to any continuity of service and
back wages. The award is passed accordingly.
Dictated to the Stenographer (G-III), transcribed by
him, corrected and pronounced by me in the open court
on this the 9th day of July, 2014.
G. V. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman:-
For Management:-
-Nil-
-Nil-
EXHIBITS
For workman:-
Ex.W-1
Dt. 13-04-2007
Demand letter
Ex.W-2
Dt. —
Postal receipt No.1142
Ex.W-3
Dt. 29-04-1996
Appointment order
Ex.W-4
Dt. 27-7-2002
Enquiry report
Ex.W-5
Dt. 19-11-2002
Dismissal order
Ex.W-6
Dt. —
XXVI APS10 valley ball
championship participa-
tion certificate.
Ex.W-7
Dt. 17/18-12-2013
Letter issued to the
petitioner by the respon-
dent regarding information
received from the petitioner
application dt. 24-10-2013
Ex.W-8
Dt. 17-12-2013
Travelling advance drawn
by the petition during the
period from 1998-1999 to
2000-2001
Ex.W-9
Dt. 13/15-7-2013
Circular issued by the AGM
(PER), SRP. Area for
guidelines for relieving
employees for participating
in sports and games.
Ex.W-10 Dt. 26-11-2013
Petitioner’s pay sheets for
the month of 9/1997, 10/
1997, 11/1999 and 12/1999
shows participated sports,
the responded entered his
musters as O.Ds.,
For Management :-
Ex.M-1
Dt. 16-02-2002
Charge sheet o/copy.
Ex.M-2
Dt. 20-02-2002
Ack., to charge sheet
Ex.M-3
Dt. 25-02-2002
Reply to the charge sheet
Ex.M-4
Dt. 26-06-2002
Enquiry notice
Ex.M-5
Dt. 03-07-2002
Enquiry proceedings
Ex.M-6
Dt. 24-07-2002
Notice issued to the
petitioner to attend coun-
seling duly acknowledged
by the petitioner.
Ex.M-7
Dt. 27-07-2002
Enquiry report.
Ex.M-8
Dt. 31-07-2002
Show cause notice
Ex.M-9
Dt. 11-10-2002
Reply to the show cause
notice.
Ex.M-10 Dt. 19-11-2002
Dismissal order o/copy.
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2520-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-lh-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; xksnkojh[kkuh ds iapkV (lanHkZ la[;k
39@2009) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014
dks izkIr gqvk FkkA
¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2520.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award of the Indus.
Tribunal-cum-Labour Court, Godavarikhani (IT/ID/39/
2009) 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 12.09.2014.
[No. L-22013/1/2014-IR (C-II)]
B. M. PATNAIK, Desk Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6377
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
GODAVARIKHANI
Present
: SRI G.V. KRISHNAIAH,
Chairman-cum-Presiding Officer
Thursday, on this the 10th Day of July, 2014
INDUSTRIAL DISPUTE No. 39 OF 2009
Between:
Kondanaveni Srinivas,
Ex-Badli Filler, E.C.No.2911401,
S/o. Rajamallu, Aged about 31 years,
R/o. H.No. 20-21, Himmathnagar,
Srirampur, Mancherial
M/o. Adilabad District
…Petitioner
And
1.
The Supdt. of Mines,
S.C.Co. Ltd., RK-7 Incline,
PO.Srirampur, District: Adilabad.
2.
The General Manager,
S.C.Co. Ltd., Srirampur Area,
PO: Srirampur, District: Adilabad
3.
The Chairman & Managing Director,
S.C.Co. Ltd., P.O: Kothagudem,
District : Khammam (A.P.)
… Respondents
This Industrial Dispute petition coming on before
me for final hearing in the presence of Sri B.Amarendar
Rao, Advocate, for the petitioner and Sri D. Krishnamurthy,
Advocate, for the respondents, and the matter having
stood over before me for consideration till this date, the
Court passed the following:-
AWARD
1.
The petitioner who worked as Coal Filler in the
Singareni Collieries Company Limited seeks his
reinstatement by setting aside the dismissal order dated
12-02-2004 with continuity of service, all other
consequential attendant benefits and full back wages.
2.
The allegations in the petition are as follows:-
According to the petitioner, he was appointed as
Badli Coal Filler in the year 2002 under dependent
employment scheme in place of his deceased brother. Ever
since the date of his appointment, the petitioner was
discharging his duties to the utmost satisfaction of the
company authorities. He belongs to SC community. Ever
since the date of appointment of the petitioner, he was
discharging his duties to the utmost satisfaction of the
company authorities. He was given employment in the
absentee vacancies of coal fillers and was shown work as
and when available in place of permanent coal fillers who
were temporarily absent. The respondent declared that
the petitioner was not entitled to any wages on the days
when the petitioner was not shown any employment. The
petitioner worked hard and put-up good attendance in the
respondent’s company. That unfortunately in the said very
first year of 2002, he suffered from severe ill-health, fever,
joint pains and back ache on account of the strenuous job
of Badli Filler. But the 1st respondent without considering
the true facts and ill-health condition of the petitioner
issued charge sheet dt.17/30-04-2003 under the company’s
standing order No.25.25 to the petitioner alleging that :
“For your habitual absence from duty without
sufficient cause during the year 2002".
3.
In the charge sheet, it is alleged that the petitioner
absented for his duties habitually during the year 2002
without sanctioned leave or sufficient cause. The petitioner
submitted his satisfactory explanation to the charge sheet
denying the charge and explaining the true facts of his ill-
health, his inability to attend coal filling underground duty
and requested to drop the charge in view of his severe ill-
health during the course of his employment in the company.
4.
The 1st respondent failed to consider the true facts
of his case and got conducted a farce of enquiry. The
petitioner participated in the enquiry proceedings and
deposed his statement explaining the true facts of his ill-
health condition praying to provide an opportunity to work
in the company. The domestic enquiry was not conducted
by the respondents fairly and properly and fair opportunity
was not given to the petitioner. The petitioner was
imparted medical treatment for his ill-health during the
year 2002 in the Areas Hospital of the respondents
company and also in the Govt. Community Hospital,
Peddapalli. The petitioner put in the required 100 musters
in the year 2002. As such, it cannot be termed as
misconduct. There is no deliberate or intentional absence
on the part of the petitioner.
5.
The 2nd respondent without considering the
genuine ill-health of the petitioner, dismissed him from
service. That the domestic enquiry was not conducted
fairly and properly by the respondents and the findings of
the enquiry officer are highly perverse, biased and he was
dismissed from Service by order dated 12-02-2004, unjustly.
Therefore, he prays to allow the petition granting full back
wages.
6.
R-2 filed counter which was adopted by R-1 and R-
3. The main points raised in the counter are regarding the
lack of jurisdiction of this Tribunal since the respondents
management is a Central Government Company and that
there was poor attendance of the petitioner in the year,
2002 (19) musters in the year 2003, (09) musters and in the
year 2004, (Nil) musters and that therefore charges were
6378
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
framed under Sec. 25(25) of standing orders of the
company:-
“Habitual late attendance or habitual absence from
duty without sufficient cause”.
7.
The petitioner received charge sheet and submitted
his explanation stating that due to ill-health and due to
the death of his brother in law, he has absented himself
during the year 2002. The petitioner was issued enquiry
notice advising him to attend the enquiry. The petitioner
attended the enquiry on 05-05-2007. The petitioner
pleaded guilty to the charges leveled against him in the
charge sheet. The petitioner did not file any documentary
evidence or did not produce any witness in support of his
contention that due to ill-health and the death of his
brother in law, he absented himself from duty. The
petitioner was subjected to family counseling on 3-5-2003
and wherein the petitioner along with his wife attended
the session. During the counseling the petitioner assured
that he would improve his performance. But the petitioner
failed to improve his performance/attendance. The
petitioner being a chronic absentee, has never put in
required musters from the date of appointment and further
failed to improve his attendance even after issuance of
charge sheet. The petitioner had not submitted any
documents/papers of the treatment taken in the company’s
area hospital.
8,
The respondents company conducted the enquiry
fairly following the principles of natural justice and after
taking the previous record of the petitioner and his
performance during the observation period into
consideration, was constrained to dismiss the petitioner
from service. Therefore, punishment of dismissal was
imposed with effect from 12-02-2004 as per order dated 12-
02-2004. That habitual absenteeism adversely impacts the
performance of the company, which is engaged in the
mining activities and therefore, petition may be dismissed.
9.
Heard both sides. The respondents have filed written
arguments also. The petitioner contended that the
departmental enquiry was not conducted fairly and
properly, subsequently memo was filed U/Sec.11-A of I.D.,
Act conceding the validity of the departmental enquiry.
As such, it is not in dispute.
10.
The consideration of respective contentions of the
parties the following points required to be determined:-
1.
“Whether this Tribunal has got jurisdiction?”
2.
“Whether the punishment of dismissal of the
petitioner is justified and proportionate?”
11.
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.
12.
Point No. 2
The petitioner worked as Badli Filler in third
respondent company, was removed from service on the
ground of not attending for duties during the years 2002-
2003 and 2003-2004.
13.
It is an admitted fact that petitioner worked for 19
musters in the year 2002 and 9 musters in the year 2003
and in nil attendance in the year 2004, after conducting
departmental enquiry as the petitioner was removed. The
petitioner attended family counseling also along with his
wife on 3.5.2003, but he failed to improve his performance.
In the year 2009 the petitioner has come up with this ID
against all the facts being admitted. The only question is
whether the punishment is proportionate and just. On
this aspect, I may refer to the decision cited on behalf of
the petitioner. The first decision is 2009-IV-LLJ-672
between Chairman-cum- Managing Director, Coal India
Limited and another Vs. Mukul Kumar Choudhuri and
others.
14.
It is a case where a systems officer in the Coal India
Limited was removed from service for his un-authorised
absence for six months. Initially the workman was granted
leave up to 29.9.1998 and thereafter he was absent for six
months. In the enquiry he admitted to his absence and he
stated that the reason is purely personal which cannot be
produced by any evidence and the reason is beyond his
control also. After referring to the case Law in the subject
the Supreme Court of India laid down one test with regard
to the proportionately of punishment. The test is whether
a reasonable employer would have imposed such
punishment in such circumstances. Then the Supreme
Court took in to consideration the fairness of the employee
admitting the guilt and explained the circumstances the
punishment was held to be un-duly harsh.
15.
The above decision was a review of the necessity of
removing of workman and the circumstances to be taken
into consideration which holding that the punishment of
removal was not justified.
16.
Another decision is reported in 1988, 303 Supreme
Court between Scooter India Limited Verses Labour Court,
Lucknow. In this case the workman was found guilty of
acts of major mis conduct between March, 1981 and July,
1981 and separate enquiries were held in respect of three
charge memos. Labour Court had held that the enquiry
was properly held that the workman was guilty of the
charges, considering the punishment in proper perspective
and held that withholding back-wages to the extent of
25% to meet the ends of justice and re-instate the workman.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6379
17.
The Labour Court took the view that justice must be
tempered with mercy and the erring workman should be
given an opportunity to reform himself and prove to be a
loyal and disciplined employee.
18.
Thus the award of the labour court was appraised
by the Supreme Court.
Coming to the present case the number of musters
put in by the petitioner during the year 2002-2003 and
2003-2004 are as follows:-
2002
19
2003
09
2004
Nil
Petitioner did not attend his duties even after
counseling on 3.5.2003. The petitioner was given
dependant employee in the place of his deceased brother.
The petitioner did not utilized the opportunity and his
absence from duties to the extent of management being
uncertain as to when he would attend and when he would
not attend. In the two cases cited on behalf of the
petitioner facts were different. It is no doubt true that
removal of workman is not always desirable, but when the
workman does not show any inclination to work and when
the workman is so negligent towards his duties that he
compels to take management harsh decisions. In the
present case the absence of the workman as pointed above
is such that he was quite reluctant to perform his duties.
Therefore it is not a fit case whether the Tribunal can
exercise its jurisdiction in favour of workman. When we
look at the explanation of the petitioner to the charge sheet
he stated that he was not keeping good health and because
his brother’s-in-law died, he could not attend duties. This
explanation was given on 2.5.2003. On 3.5.2003 the family
counseling to the petitioner conducted to perform his
duties regularly. In enquiry the petitioner admitted that he
has not taken treatment from company’s hospital and he
did not inform about his sickness to the management.
Therefore in this case the workman does not deserve any
relief. Accordingly petition is to be dismissed.
19.
In the result, the petition is dismissed.
Dictated to the Stenographer (G-III), transcribed by
him, corrected and pronounced by me in the open court
on this the 10th day of July, 2014.
G. V. KRISHNAIAN, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman
For Management:-
Nil
Nil-
EXHIBITS
For workman:-
Ex.W-1
Dt. 07-01-2012
Appointment order x.copy
Ex.W-2
Dt. 12-02-2004
Dismissal order, x.copy
Ex.W-3
Dt. 31-07-2008
Demand letter with postal
receipt.
For Management:-
Ex.M-1
Dt. 17/30-4-2003 Charge sheet
Ex.M-2
Dt. 02-05-2003
Reply to charge sheet
Ex.M-3
Dt. 02-05-2003
Enquiry notice
Ex.M-4
Dt. 03-05-2003
Family counseling letter
submitted by the petitioner
and his wife.
Ex.M-5
Dt. 05-05-2003
Enquiry proceedings
Ex.M-6
Dt. 31-05-2003
Enquiry report.
Ex.M-7
Dt. 14-06-2003
Show cause notice
Ex.M-8
Dt. 12-02-2004
Dismissal order.
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2521-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,iQ-lh-vkbZ-ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] bukZoqQye ds iapkV (lanHkZ la[;k 24@2010) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22011@11@2010&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2521.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 24/2010) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ernakulam, 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 12/09/2014.
[No. L-22011/11/2010-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present
: Shri. D. SREEVALLABHAN, B.Sc., LL.B,
Presiding Officer
(Thursday the 31st day of July, 2014/9th Shravana, 1936)
6380
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
ID 24/2010
Unions : 1.
Shri T B Abykumar
Unit President, FCI Worker’s Union
Chingavanam Unit
C/o Food Corporation of India
Chingavanam Kottayam
2.
Shri K P Shaji
Secretary FCI Workers Association (CITU)
Chingavanam Unit
C/o Food Corporation of India
Chingavanam Kottayam
By Advs. Shri Santhosh G Prabhu & Smt. Deepa N U
Management : The Area Manager
Food Corporation of India
District Office
Chingavanam Kottayam
By M/s. Sukumaran & Usha Advocates
This case coming up for final hearing on 29.07.2014
and this Tribunal-cum-Labour Court on 31.07.2014 passed
the following:
AWARD
In exercise of the powers\ conferred by clause (d) of
sub-section(1) and sub-section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947), the
Government of India/Ministry of Labour vide its Order
No-L-22011/11/2010-IR(CM-II) dated 15.07.2010 referred
the industrial dispute scheduled thereunder for
adjudication to this tribunal.
2.
The dispute is:
“(i) Whether the action of the DPS workers of FCI
Chingavanam Depot in not working on Sundays is
justified?
(ii) Whether the wages paid to the workers for
working on Sundays which is their weekly day of
rest is adequate and justified?
(iii) To what relief are the workmen concerned entitled
for?”
3.
Unions 1 and 2 after appearance filed separate claim
statements with identical allegations. The allegations, in a
nutshell, are that from 01.01.1997 onwards the workers of
the management are paid their wages and service benefits
as per the conditions in Direct Payment System Circular
No.IR(L)/8(22)94 dated 14.06.1996. As per the conditions
in 16(a) of that Circular each worker will be allowed paid
weekly off on Sundays provided the works on all working
days of the week preceding the weekly off day. Due to the
compulsion of the Senior Regional Manager and District
Manager, unions agreed to work on Sundays though a
weekly off day on fulfillment of three conditions. The
District Manager was informed the conditions by letter
dated 14.10.2003. The third condition was to take a final
decision on the rate of wages on the day of weekly off
after discussion with the Senior Regional Manager. But
instead of fixing the rate of overtime wages as provided in
the said DPS circular the rate was reduced to 1.1% of the
normal wages. It was reduced without having any
discussion with the unions or the workers and about which
an industrial dispute is pending before the Hon’ble
National Industrial Tribunal, Mumbai as ID No.NTB-1/
2005. Due to the reduction of the overtime wages the
workmen are working in loss. Since the workers were asked
to work with the reduced overtime wages they refused to
work on weekly off day after informing the District Manager
by letter dated 20.02.2005. The management was informed
that the workers are ready to work on weekly off day on
payment of overtime wages as provided in the said DPS
circular. Afterwards the workers were asked to do
impossible works to harass them. The workmen have the
eligibility for expecting and enjoying a weekly off day by
planning their personal activities. The management has
no authority to deny the statutory rights of the workmen.
The action of the management is arbitrary, illegal and unjust
and is contrary to the provisions of the Industrial Disputes
Act and Rules. It also violates the Model Standing Orders
provided in Industrial Employment (Standing Orders) Act.
It amounts to victimization of the workmen and is an unfair
labour practice. The intention of the management is to
curtail the benefits and privileges of the workers. Hence
an award can be passed holding that the action of the DPS
workers of FCI, Chingavanam depot in not working on
Sundays is justified and the wages paid to them for working
on Sundays is not adequate and justified.
4.
Management filed written statement denying the
allegations in the claim statements and contending that
the Food Corporation of India, a Central Government
undertaking established under the Food Corporation Act,
1964, transports food grains from different parts of the
country and store it in its godown to make it available for
Public Distribution System. It completely depends on
Indian Railways for transportation of food grains. The
Indian Railways is working without any holiday and are
providing service without any break, around the clock,
throughout the year. When Railways places rakes in the
FCI godown, the Food Corporation of India is bound to
load or unload the goods within nine hours of placing
irrespective of the time and day. All the workers engaged
by the FCI for that purpose throughout the country except
those in Kerala perform their duties irrespective of the
time and day of placing of rakes. The workers in Kerala
caused delay in loading or unloading of goods from the
rakes which has resulted in paying heavy demurrage
charges by the FCI to the Indian Railways. The FCI has
the right to direct the workers to work on any day and
they are paid overtime allowances and holidays for working
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6381
on Sundays and other holidays. They are adequately
compensated for taking overtime duty. In Chingavanam
depot of the FCI some of the workers under the leadership
of Mr. T B Abeykumar of the FCI Workers Union and
Mr. K P Shaji of the Workers Association (CITU) were not
attending wagon receipt work properly. There was
dislocation of work and the FCI was compelled to pay
demurrage charges to Indian Railways. On 01.11.2009, 32
wagons were placed for clearance at the FCI siding at
Chingavanam. Even though the workers were directed to
clear the wagons within the free time by issuing notice
dated 31.10.2009 they were reluctant to attend the
unloading work for the reason that 01.11.2009 is Sunday.
On 02.11.2009 they cleared only 22 wagons even though
they used to clear more than 32 wagons in a day. The
unloading work was stopped by 02.30 pm without working
for the remaining three working hours. The balance 10
wagons were cleared only at 10.00 am on 03.11.2009. An
amount of 1,37,600 had to be paid as demurrage charges
by the FCI to the Railways. Out of the 102 DPS workers
only 79 were present on 02.11.2009 and 75 only on
03.11.2009. On 04.11.2009 the Railways again placed 32
wagons. Workers were intimated about it through letter
dated 03.11.2009. But 20 wagons were only unloaded by
them on 04.11.2009. They left the workplace at 02.30 pm
leaving 12 wagons without working for the three remaining
working hours. Only 77 workers were present on that day.
The balance 12 wagons were cleared on 05.11.2009. An
amount of 67,200 was to be paid as demurrage charges.
Even though Indian Railways is booking food grains
rakewise with 40 to 43 wagons, the FCI is accommodating
only 30 to 32 wagons at Chingavanam since there is no
capacity to accommodate one full rake. There was regular
unauthorized absence of workers on wagon placement
days in the Chingavanam depot causing dislocation of
work and monetary loss to the FCI. After the introduction
of DPS the workers were attending work on Sundays
availing over time allowance @1.25 times of hourly rate of
earnings upto 18.01.2004. Afterwards when the rate was
revised to 1.10 in the year 2004 they refused to work on
Sundays. The wagon placement on Sundays or holidays
happens occasionally. The FCI cannot request the Indian
Railways not to place the wagons on Sundays. There are
occasions when wagons may be delayed due to reasons
beyond the control of FCI. The FCI has no intention to
curtail the benefits and privileges of the workers. The FCI
is not denying their statutory rights. The workers are
directed to attend the work on Sundays/holidays availing
the existing rate of over time allowance. The DPS workers
are causing difficulties to the smooth functioning of the
FCI. None of the actions of the FCI is contrary to the
provisions of the Industrial Disputes Act and Rules. It is
necessary to direct the workers to accept the uniform
wages for working on Sundays.
5.
Unions did not file any rejoinder in spite of the
opportunity given for that purpose.
6.
From the side of the unions one witness was
examined as WW1 and Exts.W1 to W9 were marked.
For the management one witness was examined as MW1
and Exts.M1 to M15 were marked.
7.
The points for determination are:
(i)
Whether refusal of the DPS workers of the FCI,
Chingavanam Depot to work on Sundays is
justified?
(ii)
Whether the wages paid to them for working on
Sundays is adequate?
(iii)
To what relief, the workmen are entitled to?
8.
Point No. (i) : Direct Payment System (DPS) was
introduced from 01.01.1997 onwards to the workers of
the management. Their conditions of service are
governed by DPS Circular dated 14.06.1996, copy of
which was marked as Ext.M2. As per clause 16(a) of the
Circular Sunday is paid weekly off day if the worker was
working on all the working days of the week but the
management can employ the worker on such day by
paying one extra wage in addition to the normal wage.
Clause 16(a) is relevant and hence the same is extracted
below :—
“Each worker will be allowed paid weekly off on
Sundays provided he has worked on all the working
days of the week preceding the day of weekly off.
In case a Handling Worker will be employed on
the day of his weekly off, he will be paid one extra
wage at the rate of Minimum Guaranteed daily
wage or actual wages for the work done on the basis
of ASORs on such weekly off days – whichever is
higher – in addition to normal wage equal to
Minimum Guaranteed daily wage at the above rates
for such weekly off again provided the worker has
worked on all the working days of the week
preceding the day of weekly off. In case an
Ancillary (Casual) worker is employed on the day
of his weekly off, he will be paid one extra wage
equal to the above Minimum Guaranteed Daily
Wage for attending work on such weekly off day in
addition to the normal Minimum Guaranteed Daily
wage for such weekly off, provided he has also
worked on all the working days of the week
preceding the day of weekly off”.
9.
On a reading of clause 16(a) it is apparently clear
that even though Sunday is a weekly off day the handling
worker can be employed on the day of his weekly off by
paying one extra wage. Nothing is stated about the
overtime allowance in that provision.
10.
In order to prove that overtime allowance is also to
be paid for the workers employed on weekly off days union
`
`
6382
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
has produced Ext.W8. On a perusal of Ext.W8 it can be
seen that the payment of overtime allowance is to be
regulated as per the Headquarters circular No.IR(L)/4(2)/
93 dated 16.06.1994 which provides that the workers
engaged for overtime work in the exigencies shall be
entitled to overtime payment at 1.25 times of the hourly
rate for the extra duty hours put in beyond the normal
duty hours upto statutory hours of work and rate for
overtime allowance beyond statutory hours of work as
prescribed in the respective Shops and Establishments
Act of the respective States. It does not expressly provide
the payment of overtime wages on weekly off days. But
as per Ext.M3, the Circular No.13/1999 dated 27/
30.09.1999, issued as clarification of overtime wages to
the DPS workers, it is made clear that those workers are
entitled to get overtime wage equal to 1.25 times for their
work on weekly off days. Clause 5 of the Circular deals
with the payment of such overtime wages and the relevant
portion reads thus:
“As regards working on weekly off days, the
overtime wage will be paid equal to 1.25 times for
the hours work done beyond shift hours of the week
i.e.39 hours (6 ½ effective hours × 6 days of the
week) and upto statutory weekly hours i.e. 48 hours
or so as per Shops and Establishment Act. Further,
overtime wage for the work done beyond statutory
hours i.e. 48 hours or so will be paid at the rate
prescribed in the Shops & Establishment Act. This
shall be paid in addition to the minimum
guaranteed daily wage payable as usual for weekly
off day. If a worker is engaged for work on holiday/
weekly off and has already worked for more than
48 hours or the ceiling limit as provided under the
Local Shops & Establishment Act of the respective
State during the week days, he would be entitled
for payment of overtime wage as per the provisions
of the Shops and Establishments Act. The hourly
rate for the purpose of payment of overtime wage
for the work done on weekly off days will be
calculated by dividing the actual total earnings for
the entire day by the total number of hours put in for
work for that day”.
11.
The DPS workers were getting the overtime wage in
addition to the extra wage for work on weekly off days.
But notice was issued under Section 9A of the Industrial
Disputes Act by the management for the change of
conditions of service including the reduction of overtime
wages to 1.1 times of the normal hourly wages and the
same is evidenced by Ext. M4. It came into effect on
22.07.2002. But due to the stay owing to the pendency
of conciliation before the Regional Labour
Commissioner(Central), New Delhi it was implemented
only on 19.01.2004 by issuing circular No.02/2004, copy
of which is Ext. M5. As per the circular the overtime wage
was reduced to 1.1 times of hourly rate of earnings.
12.
It is because of the reduction of the wages the DPS
workers refused to work on weekly off days. From
Exts.W1 to W7 it can be seen that there was continuous
demand from the side of the two unions in this case to
restore it. Finally they had expressed their refusal to
work on weekly off days through letter dated 18.02.2005,
copy of which is Ext.W4. They stopped working on
weekly off days from 20.02.2005 and due to their refusal
to work on such days the FCI had to incur payment of
huge amounts as demurrage charges and the same is
evidenced by Exts. M7 to M11.
13.
Now it is to be considered whether the refusal of the
DPS workers to work on weekly off days is justifiable in
view of the above said facts and circumstances. DPS
workers have to attend duty if they are employed on
weekly off days. They are bound to work on such days in
view of clause 16(a) of Ext. M2. For the reason that the
overtime wage was reduced from 1.25 to 1.10 they have
no right to refuse to work on weekly off days. Their
remedy is to raise an industrial dispute as per the
provisions of the Industrial Disputes Act.
14.
By placing reliance on the decision reported in
M/s.North Book Jute Co. Ltd. and Another Vs. Their
Workmen AIR 1960 SC 879 it was argued by the learned
counsel for the unions that the refusal to work is justified
for the reason of change of conditions of service. Therein
it was held that the existence of the remedy under Section
33A of the Industrial Disputes Act does not mean that
the workmen are bound to work under the altered
conditions of service, even though those are in mere
contravention of law. It cannot be made applicable in
this case as it was held on a different fact situation. It is
not a case relating to public utility service. It was a case
where there was introduction of a rationalization scheme
by the employer in contravention of Section 33 of the
Industrial Disputes Act. The dispute was with regard to
the entitlement of wages for the period of absence of the
workmen saying that there was an illegal lockout by the
employer. Here in this case notice under Section 9A of
the Industrial Disputes Act was given on 01.07.2002
informing the implementation of reduction of the wages
from 22.07.2002. But due to the pendency of the
conciliation proceedings it was implemented only on
19.01.2004 by issuing Ext. M5. At the time of issuance of
that circular no proceeding was pending before any of the
authorities provided under the Industrial Disputes Act.
The National Industrial Tribunal was seized of the matter
only in 2005. The DPS workers had to wait for the decision
of the National Tribunal as to the dispute as to the reduction
of overtime wages. They had not approached the National
Tribunal during the pendency of that proceeding for any
interim relief. Their refusal to work on weekly off days for
the reason of reduction of wages cannot be justified
without any lawful reason. They had to seek appropriate
remedies instead of stoppage of work on Sundays. Hence
¹Hkkx II—[k.M 3(ii)º
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6383
it can be held that the action of the DPS workers in not
working on Sundays is not justified.
15.
Point No.(ii) : There is no dispute as to the extra
wage to be paid for working on Sundays. As per clause
16(a) they are entitled to get one extra wage. The dispute
is only as to the overtime wage at the time of making this
reference. The dispute with regard to the reduction of
overtime wages was pending before the National Tribunal
while making this reference. Hence this Tribunal was
lacking jurisdiction to deal with that matter. But during
the pendency of this proceedings award was passed by
the National Tribunal on 18.07.2013, copy of which is
Ext.W9. The National Tribunal found that the reduction
of overtime allowance from 1.25 to 1.1 is unjust and
improper and quashed the notice dated 01.07.2002 and the
two circulars dated 19.01.2004 altering overtime allowance
to 1.1 times of the normal hourly rate of wages and the
rates of overtime allowance as prescribed in the circular
dated 16.06.1994 of the FCI was restored. Hence the DPS
workers are now entitled to get overtime wages as
prescribed in the circular dated 16.06.1994 of the FCI. It is
1.25 times of the normal hourly rate of wages as provided
in the circular. Hence it can very well be held that the
wages paid to the workers for working on Sundays is not
adequate and justified.
16.
Point No.(iii) : In the result an award is passed
holding that the action of the DPS workers of the FCI
depot in not working on Sundays is not justified and that
the wages paid to the workers for working on Sundays is
not adequate and justified. They are not entitled to any
relief in this ID.
The award will come into force one month after its
publication in the Official Gazette.
Dictated to the Personal Assistant, transcribed and
typed by her, corrected and passed by me on this the 31st
day of July, 2014.
D. SREEVALLABHAN, Presiding Officer
APPENDIX
Witness for the workman
WW1
10.07.2012
Shri K. P. Shaji
Witness for the management
MW1
09.08.2012
Shri P. N. Soman
Exhibits for the workman
W1
-
Copy of letter dated 02.12.2009
addressed to the Assistant
Labour Commissioner(Central),
Trivandrum by Shri K. P. Shaji,
Secretary,
FCI
Worker’s
Association, Chingavanom Unit
W2
-
Copy of letter dated 02.12.2009
addressed to the Assistant Labour
C o m m i s s i o n e r ( C e n t r a l ) ,
Trivandrum by Shri T. B.
Abykumar, Unit President, FCI
Workers Union, Chingavanam
W3
-
Copy of letter dated 14.10.2003
addressed to the District
Manager, Food Corporation of
India, Chingavanom by Shri P. K.
Sasi, Organising Secretary, FCI
Workers Union, Chingavanam
W4
-
Copy of letter dated 18.02.2005
addressed to the District
Manager, Food Corporation of
India, Chingavanom by Shri P. K.
Sasi, Organising Secretary, FCI
Workers Union, Chingavanam
W5
-
Copy of letter dated 05.11.2005
addressed to the District
Manager, Food Corporation of
India, Chingavanom by Shri P. K.
Sasi, Organising Secretary, FCI
Workers Union, Chingavanam
W6
-
Copy of letter dated 11.11.2005
addressed to the District
Manager, Food Corporation of
India, Chingavanom by Shri P. K.
Sasi, Organising Secretary, FCI
Workers Union, Chingavanam
W7
-
Copy of letter dated 14.05.2007
addressed to the Area Manager,
Food Corporation of India,
Chingavanom by Shri P. V.
Ponnappan, Central Committee
Member, FCI Workers Union,
Chingavanam
W8
-
Copy of letter No.IR-L/1(1)/97
dated 24.02.2007 addressed to
the District Manager, Food
Corporation of India by the
Senior Regional Manager
W9
-
Copy of the Award dated
07.09.2012
in
Reference
No.NTB-1/2005 of the National
Industrial Tribunal, Mumbai
Exhibits for the management
M1
-
Copy of instructions as to Rates
Circular No.84 of 2006 dated
10.10.2006 issued by the Director
Traffic Commercial(Rates),
Railway Board
6384
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
M2
-
Copy of letter No.IR(L)/8(22)/94
dated 14.06.1996 addressed to the
Zonal Managers and the Senior
Regional Managers by the
Executive Director(Genl.)
M3
-
Copy of Circular No.13/1999 dated
27/30.09.1999 issued by the
Manager(IR-L)
M4
-
Copy of notice dated 01.07.2002
as to change of service conditions
proposed by the employer
M5
-
Copy of Circular No.02/2004 dated
19.01.2004 issued by the
Manager(IR-Labour),
FCI,
Headquarter, New Delhi
M6
-
Copy of letter No.ND-8/19/2002-
PA dated 11.11.2003 addressed to
the Secretary, Govt. of India,
Ministry of Labour, Shram Shakti
Bhawan, New Delhi by the
Regional
Labour
Commissioner(C), New Delhi
M7
-
Copy of Notice No.DPS-D/IRL/
32(4)2008 dated 31.10.2009 issued
by the Manager(DPS), FCI,
Kottayam District to the unions
M8
-
D/C Bill No.GOV/FCI/DC/09/09-10
dated 03.11.2009
M9
-
Copy of letter No.V/C/200/DC/
FCI/CGV/11/09-10
dated
11.02.2010 addressed to the Area
Manager, Food Corporation of
India, District Office, Kottayam by
the Senior Divisional Commercial
Manager, Southern Railway,
Divisional Office, Commercial
Branch, Thiruvananthapuram
M10
-
Copy of Show Cause Notice
No.IR-L/32(3)/03/09
dated
10.11.2009 issued by the Area
Manager, Food Corporation of
India, Kottayam District
M11
-
Copy of letter dated 14.11.2009
addressed to the Area Manager,
FCI, Chingavanam by Shri K. K.
Rajappan
M12
-
Copy of letter No.IR(L)/4(33)/2003
dated 28.6.2004/ 15.07.2004
addressed
to
the
Zonal
Manager(East)(South), FCI,
Kolkata/Chennai by the Joint
Manager(IR-Labour),
FCI,
Headquarters, New Delhi
M13
-
Copy of letter No.IR(L)/14(31)/
1998/Vol.III dated 03.04.2007
addressed to the General
Manager(Region), FCI, Regional
Office, Chennai by the Assistant
General Manager(IR-L), FCI,
Headquarters, New Delhi
M14
-
Copy of Circular No.IR(L)/4(2)/93
dated 16.06.1994 issued by the
Manager(IR-L),
FCI,
Headquarters, New Delhi
M15
-
Copy of Memorandum Of
Understanding dated 13.06.1994
arrived
at
between
the
management and the FCI Workers
Union
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New Delhi, the 12th September, 2014
S.O.
2522.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 67/06) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Indira Gandhi National Open
University, and their workmen, received by the Central
Government on 12/09/2014.
[No. L-42012/52/2005-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/67/06
Presiding Officer : SHRI R. B. PATLE
¹Hkkx II—[k.M 3(ii)º
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6385
General Secretary,
SC/ST/OBC Karmchari Kalyan Parishad,
9, Sanwer Road, Ujjain.
....Workman/Union
Versus
Regional Director,
Indira Gandhi National Open University,
IIIrd Floor, Sanchi Complex,
Shivaji Nagar, Bhopal
....Management
AWARD
Passed on this Ist day of August 2014
1.
As per letter dated 6-10-06 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.
L-42012/52/2005-IR(CM-II). The dispute under reference
relates to:
“Whether the action of the management of Indira
Gandhi National Open University in terminating the
services of Shri Vinod Kumar Chadar w.e.f. 28-2-03
is legal and justified? If not, to what relief the
workman is entitled?’
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
Page 3/1 to ¾. Case of workman is that he was engaged by
IInd party as permanent peon on 16-4-98. He was paid Rs.
2300 per month. He further submits that his wages were
increased from Rs. 96 to 104, 112, 116, 151 per day. He was
paid wages for Monday to Saturday. He was not paid for
Sunday and national holidays. His services were
terminated on 28-2-2000 without notice. He was not paid
retrenchment compensation. Workman also claims that he
was selected after interview on 17-7-01. He acquired status
of employee under Section 25 B of I.D.Act as he completed
more than 240 days continuous service. His services are
terminated in violation of Section 25-F of I.D.Act. On such
ground, workman prays for his reinstatement with
consequential benefits.
3.
IInd party filed Written Statement at page 8/1 to
8/2. Claim of workman is denied. IInd party submits that it
is not covered as an industry, it is an educational institution.
Provisions of I.D.Act are not applicable to it. The reference
is not tenable and deserves to be rejected. IInd party further
submits that workman was engaged on temporary basis
for period of 60 days. After expiry of the said period, his
services were automatically terminated. It was not
necessary to give notice. Workman is not covered as
employee under Section 25 B of I.D.Act. He has not
completed 240 days continuous service. IInd party prays
for rejection of claim.
4.
Rejoinder is filed by workman at page 11/1 to 11/3
reiterating his contentions in statement of 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 establishment of
In Affirmative
IInd party is covered as an
Industry under Section 2(j)
of I.D.Act?
(ii) Whether the action of the
In Negative
management of Indira Gandhi
National Open University in
terminating the services of
Shri Vinod Kumar Chadar
w.e.f. 28-2-03 is legal and
justified?
(iii) If not, what relief the workman
As per final
is entitled to?”
order.
REASONS
6.
IInd party raised objection that its institution is not
covered under I.D.Act being educational institution. The
affidavit of evidence filed by management’s witness
Shri K.S.Tiwari is silent what kind of sovereign functions
IInd party is discharging. The ratio held in Bangalore Water
Supply case settled the legal position that educational
institution are not excluded from Section 2(j) of I.D.Act.
only sovereign functions of state are excluded. In absence
of specific evidence about the activities undertaken by
establishment of IInd party and absence of evidence is
discharging functions of State, I hold that the
establishment of IInd party is covered as an industry under
2(j) of I.D.Act.
7.
Point No.2,3- workman is challenging termination of
his service for violation of Section 25-F of I.D.Act. In his
affidavit, he stated that he was working as Ware House
Attendant from 17-4-98 on monthly pay Rs. 2300/-. His
services are terminated without notice from 28-2-03.
He was not paid retrenchment compensation. Though
workman has stated about bonus was not paid to him by
IInd party, the terms of reference doesnot include the
claim for bonus. In his cross-examination, workman says
he has produced zerox copies of the document. The
documents were supplied by Dr. Kaushik. Originals are
not with him. He has not received appointment letters.
The cross-examination of workman is absolutely silent.
There is no denial of continuous working of workman
for more than 240ays. The evidence of workman on above
point remained unchallenged.
8.
Management’s witness Shri K.S.Tiwari filed affidavit
of his evidence. He remained absent for his cross-
examination. Therefore evidence of management’s
witness cannot be considered. IInd party did not dispute
workman was working on its establishment. IInd party
has contented that workman was not appointed as regular
employee and employer employee relationship doesnot
6386
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
exist. The engagement of labour on daily wages is not
excluded from Section 2(s) of I.D.Act. the document
Exhibit W-5 to W-15 admitted by IInd party corroborated
evidence of workman that he completed more than 240 days
continuous service. His services were terminated without
notice. No retrenchment compensation was paid to him.
Therefore termination of service of workman is in violation
of Section 25-F of I.D.Act. for above reasons, I record my
finding in Point No.1 in Negative.
9.
In view of my finding in Point No.1, question arises
whether workman is entitled for reinstatement with back
wages. Considering short period of working and workman
was not appointed following recruitment rules,
reinstatement of workman cannot be allowed.
Considering tenure from 16-4-98 to 28-2-03 for about
4 year 10 months, compensation Rs. 75,000/- would be
reasonable. Accordingly I record my finding in Point No.2.
10.
In the result, award is passed as under:-
(1)
The action of the management of Indira Gandhi
National Open University in terminating the
services of Shri Vinod Kumar Chadar w.e.f.
28-2-03 is not proper.
(2)
IInd party is directed to pay compensation
Rs. 75,000 to the workman.
Amount as per above order shall be paid to workman
within 30 days from the date of notification of award. In
case of default, amount shall carry 9 % interest per annum
from the date of award till its realization.
R. B. PATLE, Presiding Officer
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New Delhi, the 12th September, 2014
S.O.
2523.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No. 28/2010
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Jhingurda Project of NCL,
Jhingurda Project of NCL, and their workmen, received by
the Central Government on 12/09/2014
[No. L-22012/74/2009-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/28/2010
PRESIDING OFFICER : SHRI R.B.PATLE
The President/Secretary,
RCWF(NLO),
SHF-135, Singrauli Colliery,
Distt. Singrauli, MP.
.....Workman/Union
Versus
Chief General Manager,
Jhingurda Project of NCL,
PO Amlohri , Distt. Singrauli,
MP.
....Management
AWARD
Passed on this 20th day of August, 2014
1.
As per letter dated 3-3-2010 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
74/2009-IR(CM-II). The dispute under reference relates to:
“Whether the demands of Rashtriya Colliery
Workers Federation for (i) placing Shri Tejbali Singh,
Sr. Surveyor in SLU Grade A in accordance with II-
32 and (ii) promoting Shri Tejbali Singh to the post
of Mining Surveyor Grade A (T&S) w.e.f. 28-3-02 i.e.
the effective date of the Certificate of Mining
Surveyor are legal and justified? To what relief is
the claimant workman entitled for?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted his statement of
claim. Case of Ist party workman is that he had passed ITI
in 1975 and completed 2 years surveyor’s course. He
joined as apprentice for 1 year after completion of
apprentice, he was appointed in NCL in 1977 on
3-12-1977. On 11-10-88, he was promoted as Surveyor Civil
Grade B on the pretext that there was no cadre scheme,
promotional avenues of workman were denied. As per
rules by JBCCI on completion of 8 years service in same
grade, workman was extended such benefit on 1-11-97 in
Grade A Pay Scale. Workman further submits that as per
JBCCI Circular dated 22-1-02 employees passed ITI
working in same grade for 3 years were given placement in
the next grade from 1-1-2000. More than 100 employees
from Jhingurda Project passed ITI were extended its
benefit. The workman was denied said benefit.
3.
It is further submitted that joint representation was
submitted on 19-9-02 to management of Jhingurda Mine
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6387
and fax message to NCL Head office was sent on
30-12-02. It was claimed by them that the appointment of
the employees passed ITI, their service details were called.
Said information was submitted by Jhingurda Project on
2-1-03 to NCL Head Office. On 24-1-03,ITI certificates were
called from them. On 3-2-03, other employees who had
submitted representations with him R.B.Singh draftsman
was upgraded, the workman was not given said benefit.
That in Jayant and Amlohri Project on 6-2-04, 18-5-04, the
Surveyors were given benefit of II.32. workman had again
submitted representations dated 24-7-04, 16-8-04 but he
was not given benefit of SLU. From Amlohri Project,
Ramagya Pandey, Surveyor Grade C was given SLU benefit
to Grade-A. workman was given benefit of SLU to Grade
B. workman was denied Grade A and pay Scale A-1 .
4.
Workman further submits that on 19-7-04, a proposal
was prepared and got approved by the competent officer
for according benefit of I.I.32. the names of employees
including Ramagya Pandey, R.B.Singh were included in it.
To be precise workman submits that he received certificate
of competency Mine Surveyor from Director General of
Security. He was eligible for the post of Surveyor Grade
A. workman despite of repeated reminders was denied
said benefit to the post of Surveyor Grade A. workman
was given Grade B w.e.f. 28-3-02. Workman was drawing
Grade A pay scale from 1-1-97. Therefore workman joined
said post under protest. Workman had given letters dated
21-5-04, 18-6-04 to the Union and letter dated 30-5-05
claiming post of Mine Surveyor Grade A from the date of
passing competent examination. Workman was not given
said benefit. He further submits that other 14 mine
surveyors passing competency examination were given
Grade A post while they were working in Group C namely
R.S.Verma and others. Workman was denied the post.
There was practice in establishment of IInd party to accord
Grade A to the employees passing competency examination
of Mining Surveyor. Workman submits that cadre scheme
dated 18-12-97 is not approved by JBCCI. He is competent
to frame cadre scheme. That it only relates to career growth
and internal staffing pattern. Workman had passed BGMS,
competency mine surveyor examination, ITI, apprentice
for 1 year, has 27 years experience in the mine is
discriminated and denied post of Mine Surveyor Grade A.
workman prays for benefits of I.I.No.32 and promotion to
the post of Mine Surveyor Grade A w.e.f. 28-3-02.
5.
IInd party filed Written Statement denying claim
of Ist party and workman for promotion to the post of
mine surveyor Grade A. that SLU benefit as per I.I.32 is
already given to the workman. Said claim doesnot survive.
That terms and conditions of employees working in
coal industry are governed by NCWA. Cadre Scheme
has been formulated for each category of workman
regarding qualification, experience etc. That promotion
is given as per provisions of cadre scheme. There is
committee formed known as JBCCI. It consist of equal
strength of representations of recognized Union, Central
Trade Union and management. JBCCI subsequently issued
revised pattern/ permanent avenues for mine survey
persons by circular dated 18-12-97. It is submitted that
workman was initially appointed as Grade I from 3-12-77.
He was promoted next to the post of Surveyor since Grade
C on 29-1-82. Further promotion as Sr. Surveyor Grade B
was from 11-10-88. Workman was given SLU benefit after
completing 8 years service in Grade B. As per I.I.32 dated
22-1-02, workman was given benefit vide order dated 10-
12/7/2010. That workman passed competency examination
of Surveyor under Coal Mines Regulation 1957 in July
2001 vide certificate issued on 24-7-02. Workman submitted
certificate with application dated 5-8-02. Thereafter
management issued order dated 22-4-04 and as per
recommendations of DPC, workman was placed in Grade B
pay scale 431-7257. Said fixation was made as per revised
order dated 18-12-97. The entry point of category B-1 has
been proposed as T&S Grade B. workman was correctly
placed in Grade B. workman is not entitled to Grade A.
Above contentions are reiterated by management. All
adverse contentions in statement of claim of workman are
denied. It is submitted that workman is rightly placed in
Grade B as per staffing pattern at relevant time. IInd party
prays for rejection of claim.
6.
Workman filed rejoinder reiterating his contentions
in statement of claim. He submits that cadre scheme is
violated in his matter. Comparison with other employees
is necessary. That Shri Ansari was given Grade A post and
workman has been discriminated.
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 demands of Rashriya
In Affirmative
Colliery Workers Federation for
(i) placing Shri Tejbali Singh,
Sr. Surveyor in SLU Grade A in
accordance with II-32 and
(ii) promoting Shri Tejbali Singh
to the post of Mining Surveyor
Grade A (T&S) w.e.f. 28-3-02
i.e. the effective date of the
Certificate of Mining Surveyor
are legal and justified?
(ii) If so, to what relief the workman
As per final
is entitled to?”
order.
REASONS
8.
The dispute relates to SLU benefit in accordance
with I.I.32 to the workman. Said benefit is already extended.
6388
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Therefore Ist part of the reference in the dispute seems to
exist. IInd party of terms of reference relates to promotion
of workman Tejbali to the post of Mining Surveyor Grade
A (T&S) w.e.f. 28-3-02. The parties are in serious dispute
about said demand. Workman is not represented by legal
practitioner. He has produced numerous documents but
no care is taken to prove any of those documents. The
affidavit of evidence of workman is also not happily
worded. The affidavit of evidence of workman is on the
point that contentions raised in statement of claim and
rejoinder are correct. Workman was cross-examined. In
his cross-examination workman says post of surveyor
Grade B was claimed by him from 28-3-02 as per I.I.32. he is
given said benefit. He admits cadre scheme shown to him
marked Exhibit M-1 and circular dated 18-12-97 marked as
Exhibit M-2. His appointment was as draftsman trainee in
1977. On 3-12-78, he was appointed in cat-II. On 3-10-79,
he was appointed as Assistant Surveyor. On 29-1-82, he
was promoted as Surveyor Civil Grade C. on 11-10-88, he
was promoted to the post of Sr. Surveyor Grade B. he
admits that after completion of 8 years service, he was
given SLU benefit. He passed surveyor competency
examination on 28-3-02. The certificate was issued on 5-8-
02. He denies that his pay was correctly fixed.
9.
Management’s witness Sandeep Kumar Shah
supported contentions of management that workman was
initially appointed as Trainee Category I. he was placed to
the post of Trainee Category II on 3-12-78. He was
appointed as Asstt. Suveyor on 3-12-1979, promoted as
Surveyor Civil from 29-1-82, promoted as Sr. Surveyor
Grade B on 11-10-88 after completion of 8 year service.
SLU benefit was given in Grade B. that on 22-4-04 on
recommendation of DPC, workman was placed in Grade B
from 28-3-02. Management’s witness in his cross-
examination denies that cadre scheme was implemented
in 1980. Staffing pattern was implemented in 1997. Workman
is given benefit of I.I.32 from 3-1-01. After giving benefit
of I.I.32 , workman was given monetary benefit of post of
Grade A but designation was not given of the post of
Grade A. management’s witness admitted office order
dated
12-7-88
Exhibit
W-3,
order
dated
12-2-93. Exhibit W-4 – cadre scheme. In order Exhibit W-3,
W-4, there is no reference that workman was given Grade
A. management’s witness denies that the employees
holding ITI, passing DGMS examination are directly given
Grade A. management’s witness admits that in 2002, after
giving promotion to Surveyor Grade B, financial benefits
of Surveyor Grade A was given to workman.
10.
Exhibit W-1 is copy of certificate of passing ITI.
W-2 is certificate of National Apprenticeship for the
period 8-3-76 to 7-3-77. Copies of representations and
appointment/ promotions of other employees are
produced. Copy of fax message dated 27-1-03 is produced.
Office order dated 3-2-03 shows that as per I.I.32, Shri Raj
Bahadur Singh, Sr. D/Man (Mech) Jhingurda Project who
completed 3 years in the existing grade as on 31-12-2000 is
hereby notionally placed in the next higher grade i.e. Grade
A. Office order dated 6-2-04 shows list of Surveyors (T&S)
were brought to higher grade of pay Scale Grade A. name
of Ist party workman is not included in it. Name of Shri
Ganesh Patel is appearing in the list. The controversy
between parties relates to the cadre scheme. The copies
of office note with recommendations of Grade A to the
workman are produced on record. Exhibit M-1 cadre
scheme is dated 22-6-80. The promotion to the post of
overman/head overman Grade A, pay scale is shown 722-
1278 . The eligibility of employees is shown must have
worked as overman for 5 years- promotion from DPC or
Seniority cum merit basis subject to availability of vacancy.
Clause 3 of Exhibit M-1 provides the promotional channel
for various categories of Survey Personnel shall be as per
Annexure A-5 hereto. The said annexure only indicates
the qualifications and experience to be possessed by the
departmental candidates including in the cadre form time
to time for the purpose of eligibility for consideration for
selection in connection with next higher post. Clause 5
provides direct recruitment to the post of Surveyor and
Dy. Surveyor shall be resorted to only if there is no
likelihood of departmental candidates to fill all the vacant
posts within a period of six months. The chart Annexure A
shows post of Surveyor Technical Grade A, Pay Scale
722-1278- qualification is matriculate with survey certificate
of competency granted by DGMS with 3 years experience
as Dy.Surveyor- promotion through DPC. Workman has
passed DGMS and certificate was submitted on 28-3-02.
Exhibit M-2 relates to revised cadre scheme for Surveyors.
The Cadre Scheme Annexure I identifies surveyors
depending on qualification/ training in categories.
Category A – degree in mining or equivalent proposed to
be recruited as JNT (Survey), Category A-I degree in
mining or equivalent with surveyor’s certificate of
competency. Category B-I matriculation with surveyors
certificate of competency. Category B2 Diploma in mine
surveying with surveyors certificate of competency.
Category B-3 matriculation and successful completion of
company’s training course for surveyors of not less than
two years with Surveyors certificate of competency. Exhibit
M-2 doesnot supersede cadre scheme M-1 introduced on
22-6-80. Cadre scheme Exhibit M-2 was introduced on 18-
2-97 describing higher qualification of degree, diploma
etc. for different categories. Management’s witness in his
cross-examination has admitted that in ExhibitW-3. W-4,
there is no reference of giving financial benefits of Grade
A to the workman. Management’s witness says that
workman was given monetary benefits of Grade A without
changing designation. There appears confusion with the
officers of management about cadre scheme Exhibit M-1
and cadre scheme Exhibit M-2 . The contentions of
workman about Mr. Ansari and Patel are denied. The
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6389
management in its Written Statement and evidence of its
witness claims that there cannot be comparison with those
employees as their case was different in their matter.
However management has not explained what were
different aspects. That Mr. Ansari and Patel were given
Grade A and workman was denied said benefit. In absence
of such evidence or explanation, the evidence of workman
that he has been discriminated and denied benefit of Grade
A pay scale cannot be rejected. For above reasons, I record
my finding on Point No.1 partly in Affirmative relating to
denial of Grade A pay scale to the workman.
11.
In the result, award is passed as under:-
(1)
The action of the management denying post of
Mining Surveyor Grade A (T&S) w.e.f. 28-3-02 to the
workman is not proper and legal. Benefit of I.I.32 is
already given to the workman.
(2)
IInd party is directed to give benefit of Grade A pay
scale to the workman from 28-3-02.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2524-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-bZ-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 90@1993)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@361@1992&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2524.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 90/93)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial
dispute between the management of SECL and their
workmen, received by the Central Government on
12/09/2014.
[No. L-22012/361/1992-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/90/93
PRESIDING OFFICER : SHRI R.B. PATLE
Shri Malkrit Singh,
M.Q. No. A/5,
PO Jamuna Colliery,
Distt. Shahdol.
...Workman
Versus
General Manager,
Jamuna & Kotma Area of SECL,
PO Jamuna Colliery,
Distt. Shahdol
...Management
AWARD
Passed on this 12th day of August 2014
1.
As per letter dated 3-3-93 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal
under Section 10 of I.D. Act, 1947 as per Notification
No. L-22012/361/92-IR(C-II). The dispute under reference
relates to:
“Whether the action of the Sub Area Manager,
Jamuna Sub Area, Jamuna & Kotma Area of SECL
in dismissing Shri Malkrit Singh Acting Driver
w.e.f. 11-1-80 vis a vis acquittal of Shri Malkrit
Singh by Judicial Court is legal and justified? If
not, to what relief the workman is entitled to?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman filed statement of claim at
Page 4/1 to 4/2. Case of workman is that she was
employed as Driver in Jamuna Kotma Open Cast Mines
on 6-11-79. His truck was met with an accident. 6 persons
were killed in the accident. After chargesheet, enquiry
was conducted against him. He was dismissed on
11-1-1980. On same charge, criminal case for offence under
Section 304 IPC vide Case No. 207/80 was prosecuted
against him before JMFC Katghora, Distt. Bilaspur. He
submits that he was acquitted in said case on 12-2-88.
After his acquittal in said case, workman submitted
representation requesting for reinstatement. That there
was no parallel finding regarding the offence. The finding
of criminal court has to prevail over the domestic enquiry.
That he was denied reinstatement by management.
Conciliation proceeding was initiated. On such ground,
workman prays for his reinstatement.
3.
Management filed Written Statement at Page 5/1 to
5/3. IInd party submits that it is registered under
Company’s Act. The company is having many colliery
in MP. Workman was working as Category I mazdoor in
Jamuna Open Cast Mines. He was officiating as truck
driver. Chargesheet was issued to workman about serious
misconduct. Workman filed reply to the chargesheet. It
was found not satisfactory. Enquiry was conducted against
workman. Workman fully participated in the enquiry
proceedings. He was given opportunity for his defence.
Principles of natural justice were followed. After approval
of competent authority, workman was dismissed from
service. That legality of enquiry be decided first before
deciding the matter on merit. If enquiry is found vitiated,
management be allowed to prove misconduct. That
workman is not entitled to relief claimed by him. It is denied
6390
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
that judgment in Criminal Case by JMFC prevails in
findings in Enquiry Proceedings. IInd party prayed for
rejection of his claim.
4.
Workman filed rejoinder at Page 6/1 reiterating his
contentions in statement of claim. As per ordersheet dated
19-2-96 as a record of Enquiry Proceedings was not
produced, enquiry was found vitiated. Management was
permitted to adduce evidence to prove misconduct.
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 misconduct
The incident occurred
alleged against workman
due to negligence of
is proved by IInd party?
workman. He allowed
to travel passengers
unauthorisely in truck
given by him.
(ii) Whether the action of
In Affirmative
the Sub Area Manager,
Jamuna Sub Area, Jamuna
& Kotma Area of SECL in
dismissing Shri Malkrit
Singh Acting Driver w.e.f.
11-1-80 vis a vis acquittal
of Shri Malkrit Singh by
Judicial Court is legal and
justified?
(iii) If not, what relief the
Workman is not
workman is entitled to?”
entitled to relief
claimed by him.
REASONS
6.
As discussed above, enquiry conducted against
workman is found vitiated. Management has been
permitted to prove by adducing evidence. Management
filed affidavit of Shri Manaki Foreman stating that
workman was driving Truck No.MHG-5764 in the
morning of 6th November 1979 met with accident before
approaching Village Madhai. Workman was prosecuted
in said accident. That six persons died on spot in the
accident. In his cross-examination, witness of
management says he doesnot hold degree or diploma in
automobile. He had taken inspection of Truck on the spot.
Workman was prosecuted for the accident. He had
submitted written report. Witness No. 2 R.L. Ramawat also
given similar evidence that the workman was driving
truck in morning of 6-11-1979. The truck met with an
accident. Truck was driven negligently by workman. In
his cross-examination, witness of management says he
was Security Inspector. He is matriculate. He was not
considered with maintenance of colliery vehicles. He has
no technical knowledge about truck. Manimk Sharma
management’s witness also in his affidavit of evidence
has stated that incident occurred on 6-11-79. He visited
spot of accident with Executive Engineer on 8-11-79. He
had taken inspection. The machines loaded over the truck
had come out breaking the stand. Witness of management
was not cross-examined. Management’s witness Vashista
Dubey in his affidavit of evidence says about accident
occurred on 6-11-79. He had talk with the passenger
travelling in the truck. The Driver had allowed 35
passengers. The Truck was driven in excessive speed. In
his cross-examination, witness says he had handed over
the affidavit of his evidence to the Officer of the
management. Affidavit was written by the officer. His
statement was not recorded in criminal court. Earlier the
vehicle was in speed. Speed was reduced at turning.
7.
Learned counsel for workman Shri R.C. Shrivstava
submits that the evidence of the management’s witnesses
is not sufficient to prove charges against workman. Ist
party workman was acquitted by Criminal Court. The
misconduct alleged against workman is not proved.
Copies of judgments in MACT cases 34, 35, 39 of 1986
are produced. Workman was Respondent No. 2 in all those
proceedings. Point No.1 in those judgments shows that
workman had allowed 27 passengers in his truck. Point
No.1(B) is answered that deceased was not responsible
for accident. All the claims were partly allowed. The
awards were challenged by filing miscellaneous appeal
No. 675/97 before Hon’ble High Court by Gehna Bai,
Santram. The compensation was enhanced to Rs. 87,500.
The evidence of management’s witness is corroborated
by judgments in MACT cases discussed above. Workman
himself admits occurrence of accident and death of 6
persons. However after his acquittal, he is pressing for
reinstatement on the ground that finding of Criminal
Court prevails over the finding in Enquiry Proceedings.
On the point, learned counsel for IInd party Mr. A.K.
Shashi relies on ratio held in case of
“Management of Thiruvalluvar Transport
Corporation and Shri S. Anthonysamy and another
reported in 2005-II-LLJ-236. Their Lordship of
Madras High Court dealing with the question held
that Labour Court interfere with dismissal of
workman on ground of acquittal in criminal case
was on wrong legal basis. Standard of proof in
criminal proceeding is different from that in
departmental proceeding.”
Merely on the ground of acquittal by criminal court,
workman cannot claim reinstatement. Misconduct is
proved. As such I record my finding in Point No.1, 2 in
Affirmative.
8.
In the result, award is passed as under:-
(1)
The action of the Sub Area Manager, Jamuna Sub
Area, Jamuna & Kotma Area of SECL in dismissing
Shri Malkrit Singh, w.e.f. 11-1-80 is proper and
legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6391
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2525-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w--lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 125@1992)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@70@1992&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2525.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 125/
1992) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of WCL and their
workmen, received by the Central Government on
12/09/2014.
[No. L-22012/70/1992-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/125/92
PRESIDING OFFICER : SHRI R. B. PATLE
The Organising Secretary,
R.K.K.M.S. (INYUC),
PO Chandametta,
Distt. Chhindwara (MP)
...Workman/Union
Versus
Manager,
Nandan Mine No.1,
Western Coalfields Ltd.,
PO Nandan,
Distt. Chhindwara (MP)
...Management
AWARD
Passed on this 20th day of August, 2014
1.
As per letter dated 9-6-92 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
70/92-IR(C-II). The dispute under reference relates to:
“Whether the action of the General Manager, WC
Ltd., Kanhan Area PO Dungaria, Distt. Chhindwara
and the Manager, Nandan Colliery No.1 of WCL, PO
Nandan Distt. Chhindwara MP is justified in
terminating from the services of Shri Ramesh S/o
Santoo, D.P.R. and 9 others, workmen of Nandan
Coal Mine No.1, WCL, PO Nandan Distt. Chhindwara
(MP) w.e.f. the date shown against the name of
each workman in the attached list as Annexure-I? if
not, to what relief the concerned workmen are entitled
to?”
2.
After receiving reference, notices were issued to
the parties. Union filed statement of claim at Page 5/1 to 5/
9. Case of Ist party workman is that 10 employees names
shown in Para-1 of statement of claim were terminated
from service of IInd party from different dates shown
against their respective names. That Union is registered
under Trade Union Act. Those employees Shri Ramesh,
Mangal singh, Dhanaram Baradi, Azamali Khan,
Sumersingh, Goroo, Joharlal, Kishanlal & Batoo were
working on DPR, General Masdoor, Trammer, Dresser in
Nandan Mine No.1 of WCL. They were permanent
employees discharging their duties to the satisfaction of
their superiors. That those employees were not provided
quarters. Their families were residing at their native places.
Employees jointly used to visit their native places once or
twice in a month. However due to domestic problems of
individual employees, they were visiting their respective
villages taking casual leave informing the management.
That those employees went on leave and could not attend
their duties within 10 days as mentioned in standing orders.
However management was informed. That charge sheet
was issued to them for habitual unauthorised absence.
Those employees being illiterate and belong to backward
community did not give reply to the charge sheet. Enquiry
Officer was appointed to Shri B. Prasad Sr. Personal
Manager. Shri S.K. Karketta Regional Officer was
representative of the management. After their transfer, Shri
P.S. Deshpande and Shri S.Bhargava were appointed as
Enquiry Officer and Presenting Officer. That enquiry was
started against those employees, notices were issued to
them on wrong address. Notices were not issued to any of
those employees. Enquiry was conducted ex parte without
giving opportunity of hearing in those points. The Union
alleged that enquiry is illegal. Enquiry Officer was pre-
determined and biased. Enquiry Officer acted as a
prosecutor. Any documents about absence from duty was
not proved by management’s witnesses. Enquiries were
motivated for termination of their services. Notice was
published in Navbharat on 16-10-99. Those employees
being illiterate & said news paper has no circulation at
Parasia, they had no knowledge of the public notice.
Employees were not given reasonable opportunity for
defence. Enquiry Officer twisted statements made in
enquiry proceedings. Co-workers were not permitted.
3.
It is further submitted that standing orders provided
if employee is absent for more than 10 days, his name
should be taken in badly test. Findings were submitted to
6392
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
the colliery Manager. The findings of Enquiry Officer are
perverse. The punishment imposed is illegal. Punishment
is harsh. Families of employees are justified, facing
financial crisis due to unemployment. On such ground,
Union prays for reinstatement with back wages for those
10 employees.
4.
Management filed Written Statement at Page 6/1 to
6/4. Identical Written statement are filed separately for
other employees at Page 7/1 to 7/4, 8/1 to 8/2, 9/1 to 9/4.
Identical Written statement are filed in respect of the
respective employees. It is submitted that termination of
each employee is on basis of individual facts. Nothing is
common in the termination of respective employees.
Combined reference is not legal. The reference is bad. Non-
employment of casual employees cannot made termination
of services. Out of 10, 4 employees were totally employed
on casual basis as and when required. Their employment
starts on starting of the day and ends on end of day. Their
discontinuation cannot be said termination. That Ramesh
was employed as DPR. He was remaining absent without
leave. He had no intention to continue work. Repeated
efforts were made to persuade him for his job. All warnings
not resulted in action. Charge sheet was issued to
employees. Enquiry was conducted. Employee did not
participate in enquiry despite of notice.
5.
That Azamali was employed as Dresser/ driver. He
was in habit of permanent absent without permission.
Repeated efforts to pursue him had no affect. Charge sheet
was issued to him on 4-8-85, enquiry was conducted.
Workman did not participate despite of notice. Identical
contentions are raised in Written Statement filed in matter
of Sumersingh, Dhanaram, Goroo, Joharlal, Kishanlal &
Batoo. IInd party prayed for rejection of claim. In the matter
of Guroo, Written Statement is filed at Pages 12/1 to 12/7.
His date of termination is shown 18-12-88. Charge sheet
was issued to him. Workman did not appear. It was
disclosed that workman had died. His LRs failed to appear
in Enquiry Proceedings. Statements of witnesses of
management were recorded. Enquiry was conducted as
per rules.
6.
Legality of enquiry was in dispute. As per order
dated 7-11-2013, enquiry conducted against workman is
found legal and proper. 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 misconduct alleged
In Affirmative
against workman is proved from
evidence in Enquiry proceedings?
(ii) Whether the punishment of termi-
In Affirmative
nation/dismissal imposed against
workman is proper and legal?
(iii) If so, to what relief the workman
Workmen are
is entitled to?”
not entitled to
any relief.
REASONS
7.
As discussed above, enquiry conducted against
workman is found proper and legal as per order dated
7-11-2014. Workman did not adduce evidence about other
issues. As enquiry is found proper and legal, only evidence
in Enquiry Proceedings is required to be considered for
recording finding whether misconduct alleged against
workman is proved or not. From evidence of
management’s witnesses, record of Enquiry proceedings
is produced as Exhibit M-7 to M-16. The perusal of record
of Enquiry proceedings shows that separate enquiry was
conducted against all those employees. Statements of
witnesses of management were recorded before Enquiry
Officer. The bill clerk, time keeper have stated about
workmen were absent without permission. Certificate
about attendance of respective employees were produced.
Any of the Ist party workman did not participate in Enquiry
Proceedings. Evidence of management’s witnesses
remained unchallenged. The Ist party workmen even did
not participate in reference proceeding. They failed to
adduce evidence in support of their contentions in
statement of claim. For absence of evidence, enquiry
conducted against workman was found proper and legal.
The unauthorized absence of all workmen is proved from
the record of Enquiry proceedings Exhibit M-7 to M-16.
For above reasons, I record my finding in Point No.1 in
Affirmative.
8.
Point No. 2- enquiry conducted against workman
pertaining to their unauthorized absence. In view of my
finding in Point No.1, the misconduct alleged against
workman have been proved, question arises whether
punishment of dismissal imposed against workman is
proper and legal? Any of the workmen have not adduced
any evidence. Union has not participated in the reference
proceeding. As to what were the reasons for which the
workmen remained absent from duties is not supported
by any evidence. Considering long absence from duty of
the workmen as per chargesheet, the punishment of
dismissal imposed against workmen doesnot call for
interference. Accordingly I record my finding in Point
No.2.
9.
In the result, award is passed as under:-
(1)
The action of the General Manager, WCLtd.,
Kanhan Area PO Dungaria, Distt. Chhindwara and
the Manager, Nandan Colliery No.1 of WCL, PO
Nandan Distt. Chhindwara MP in terminating from
the services of Shri Ramesh & 9 others is proper
and legal.
(2)
Workmen are not entitled to any relief as claimed
by Union.
R. B. PATLE, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6393
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2526-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k
151@1992) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
12&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22012@73@1992&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2526.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 151/
92) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of WCL and their
workmen, received by the Central Government on
12/09/2014
[No. L-22012/73/1992-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/151/92
PRESIDING OFFICER : SHRI R.B. PATLE
Organising Secretary,
R.K.K.M.S(INTUC),
PO Chandametta,
Distt. Chhindwara
...Workman
Versus
The Manager,
Nandan Mine No.I,
WCL, PO Nandan,
Distt. Chhindwara
...Management
AWARD
Passed on this 13th day of August 2014
1.
As per letter dated 2-7-92 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-22012/73/92-IR(C-II). The dispute under reference relates
to:
“Whether the action of the General Manager, WCL,
Kanhan Area, PO Dungaria, Distt. Chhindwara and
the Manager, Nandan Coal Mine No.1 of WCL,
Kanhan Area, PO Nandan Distt. Chhindwara (MP)
is justified in terminating the serices of Shri
Purushottam S/o Angad, General Mazdoor Token
No. 1375 and other nine workmen of Nandan Coal
Mine No.1 of Nandan Group of Mines WCL w.e.f.
date shown against the name of each workman in
the attached list as Annexure I. If not, to what relief
the concerned ten workmen are entitled to?”
2.
After receiving reference, notices were issued to
the parties. Statement of claim is submitted through
Secretary RKKMS Chandametta, Chhindwara at Page 6/1
to 6/8. The case of Union is that employees Purushottam
S/o Angad, General Mazdoor Token No.1375, Sukhlal S/o
Baisakhu, General Mazdoor Token No.1915, Ammilal S/o
Ranglal, DPR, Token No.1318 Sundersingh S/o Shyamlal
General Mazdoor Token No. 1416, Mangaria S/o Ranglal
Token No. 2466, Natthu S/o Nandlal Driller/Tracer token
no. 415, Bhura S/o Bihari General Mazdoor Token No. 302,
Devilal S/o Gende, DPR Token No. 1699, Somlal S/o
Maresa, DPR Token No. 1942 and Ammilal S/o Ojha DPR
Token No. 1932 were employees of Nandan Mine No.1,
Kanhan Area of WCL. They were permanent employees
discharging duties with devotion. That employees belong
to SC, ST, OBC. Those employees belong to remote village.
They were visiting village once in a year. Their families
used to stay in remote areas. The employees were staying
along at coalfields without families. When any urgent
messages about sickness of family members received, they
were visiting their native places. That those employees
on emergency went to their village during personal
problems, own sickness. The employees properly
informed management representative about sickness,
domestic problems. However management decided to
terminate their services. Chargesheet was issued to the
them about their continuous absence without permission.
Charesheet was issued under clause 18/1 of standing
orders. The detailed pleadings are raised that workman
did not received chargesheet, they had no knowledge
about enquiry. They had no knowledge about appointment
of Enquiry Officer. Shri S.Kerkette, B.Prasad and Shri
S.K.Bhargava were appointed as Enquiry Officer and Shri
H.Rehman was appointed as management representative.
Principles of natural justice were not followed by Enquiry
Officer. The enquiry is vitiated. The findings of Enquiry
Officer are perverse. Management acted arbitrarily while
conducting enquiry. The employees received knowledge
about enquiry only after service of order of dismissal.
That employees are poor. They are unemployed, their
family members are facing serious problems, exparte
enquiry was conducted. The order of their dismissal is
illegal. Union prayed for reinstatement of employees with
consequential benefits.
6394
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
3.
IInd party submitted different Written Statement
raising identical pleadings. That reference is vague,
reference is not tenable. The Govt. mechanically made
reference without application of mind. That there was no
termination of Shri Purushottam and others. IInd party
further submitted that all those employees were
unauthorisely absent. Chargesheet were issued to them
for absence from duties. Management provided various
facilities of free accommodation, free watersupply to
employees and their families. The employees were also
provided medical facilities. Employees remained
unauthorized absent. Said act constitutes misconduct on
their part. Enquiry was properly conducted. It is denied
that enquiry is vitiated for violation of natural justice.
IInd party prays for rejection of claim.
4.
As per order dated 21-12-2014, enquiry conducted
against workmen is found legal. Considering pleadings
& order on preliminary issue, the points which arise for
my consideration and determination are as under. My
findings are recorded against each of them for the reasons
as below:-
(i)
‘‘Whether the charges alleged
In Affirmative
against workmen are proved
from Enquiry proceedings?
(ii) Whether punishment of dismissal In Affirmative
imposed against workman is legal
and proper?
(ii) If not, what relief the workman
Workmen are
is entitled to?”
not entitled to
relief of rein-
statement
claimed by
Union
REASONS
5.
The enquiry conducted against workmen is found
legal and proper. The record of enquiry proceedings are
produced at Exhibits M-1 to M-10. The scrutiny of record
of Enquiry Proceedings shows management’s
representative had stated about absence of all workmen
from duty as such unauthorized absence. The evidence
of management’s representative on the point of
unauthorized absence of above employees was not
shattered by cross-examination. It is surprising to say
that evidence in Enquiry Proceedings proves the alleged
misconduct of unauthorised absence against those
workmen.
6.
Point No. 2- from evidence in Enquiry Proceedings,
unauthorized absence of workmen are proved. The Union
as well as the employees have not participated in reference
proceeding. Though evidence is adduced on their behalf.
I do not find reason to hold that the punishment of
dismissal imposed against them for unauthorized absence
is exorbitant or illegal. Therefore, I record my finding in
Point No2. In Affirmative.
7.
In the result, award is passed under:-
(1)
The action of the General Manager, WCL, Kanhan
Area, PO Dungaria, Distt. Chhindwara and the
Manager, Nandan Coal Mine No.1 of WCL,
Kanhan Area, PO Nandan Distt. Chhindwara (MP)
is justified in terminating the serices of Shri
Purushottam S/o Angad, General Mazdoor Token
No. 1375 and other nine workmen of Nandan Coal
Mine No.1 of Nandan Group of Mines WCL is
proper and legal.
(2)
Relief prayed by Union is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2527-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-bZ-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k
119@2003) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
12&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22012@376@2002&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2527.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 119/
2003) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of SECL Balgi Project,
and their workmen, received by the Central Government
on 12/09/2014
[No. L-22012/376/2002-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/119/03
PRESIDING OFFICER : SHRI R. B. PATLE
Shri Kashi Kanth Mishra,
Working President,
Bharatiya Koyla Khadan Mazdoor Sangh (BMS),
Qtr. No. E/8, 15 Block Colony,
PO Korba Colliery,
Korba (Chhattisgarh)
...Workman/Union
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6395
Versus
The Sub Area Manager,
SECL, Balgi Project,
PO Balgi project,
Korba (Chhattisgarh)
...Management
AWARD
Passed on this 21st day of August 2014
1.
As per letter dated 4-7-03 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section 10 of I.D. Act, 1947 as per Notification
No. L-22012/376/2002-IR(CM-II). The dispute under
reference relates to:
“Whether the action of the management of the SECL,
Balgi Project, Dt. Korba (Chhattisgarh) in terminating
the services of Shri Gendh Ram, S/o Bahoran,
Explosive Carrier vide order dated 29-12-01 is
justified? If not, to what relief the said workman is
entitled?”
2.
After receiving reference, notices were issued to
the parties. Statement of claim is filed by BKMS Union
Bilaspur through president. The case of Ist party workman
submitted by Union is that workman Gendram was
appointed on 3-1-85 as PR Loader. On 1-2-87, he was
converted to time rated worker. Considering his excellent
service record, workman was promoted to explosive career
Cat-II. That the workman suffered from illness since
13-6-00. He received treatment in hospital till 18-6-00.
Information was given to the management. Workman
attended for duty but he was not allowed to join the duties.
Workman was told that he was transferred to Bhelwadi.
Workman was not allowed to work at Bhelwadi also.
Union had given letter dated 13-1-02 to the management
requesting to furnish information. No information was
furnished by the management. General Manager Korba
Area vide his letter dated 25-4-02 informed that for
unauthorized absence from 13-6-00, workman was
terminated on 29-12-01. Any of the letters given by
workman Gendram were not replied. On such ground, it
is submitted that termination of service of Gendram is in
violation of principles of natural justice. Union prayed
for reinstatement with consequential benefits.
3.
Management filed Written Statement opposing
claim by the Union. Management did not dispute
workman was initially engaged from 3-1-1985. He was
regularized as General Mazdoor from 1-2-1987. He was
promoted as Explosive Career on 25-1-91. IInd party
contended that workman was habitual absentee. He was
unauthorisely absent from duty without information. His
leave was not sanctioned for many occasions. Workman
was granted opportunity to improve himself. Workman
remained absent unauthorisely without permission. On
13-6-00, chargesheet was issued to workman by RPAD.
No reply was given to the chargesheet. DE was conducted.
Mr. S.Goel was Enquiry Officer, D.P.Mishra Under
Manager was management’s representative. Enquiry was
conducted issuing notice. Workman did not present in
enquiry. Workman was on duty for 109 days in 1997, 94
days in 1998, 40 days in 1999. The enquiry was conducted
properly. Workman remained absent, not participated in
enquiry. Termination of workman is proper.
4.
Enquiry conducted against workman was found
legal as per order dated 12-6-2013. Considering pleadings
and findings on preliminary issue, the points which arise
for my consideration and determination are as under. My
findings are recorded against each of them for the reasons
as below:-
(i)
Whether the misconduct alleged
In Affirmative
against workman of unauthorized
absence is proved form evidence
in Enquiry Proceedings?
(ii) Whether punishment of termina- In Affirmative
tion from service of workman is
proper and legal?
(iii) If so, to what relief the workman Workman is not
is entitled to?”
entitled to any
relief as
claimed by him.
REASONS
5.
Point No.1,2 As stated above enquiry conducted
against workman is found legal. It is pertinent to note
that workman has failed to adduce evidence. The question
remains for decision is whether evidence in Enquiry
Proceedings is sufficient to prove misconduct alleged
against workman. The record of Enquiry Proceedings is
produced at Exhibit M-1. The charge against workman
is that he was unauthorisely absent from 13-6-00.
Management’s witness M.K.T.Anandram stated that he
was working for 5 years as attendance of Gendram is
shown 109 days in 1998, 64 days in 1999, 48 days in
2000. Workman has not participated in Enquiry
Proceedings or Reference Proceedings. The findings of
Enquiry Officer is based on evidence of Shri M.T.K.
Anandram holding that charges of unauthorized absence
are proved. Charge No.1 relates to habitual absence of
workman which is supported by evidence of Shri
M.T.K.Anandram. Considering the attendance of Ist party
workman during 1998 to 2000, findings of Enquiry Officer
are supported by same evidence. No interference is called
for as the workman has failed to participate in Enquiry
Proceedings as well as in reference proceeding.
Punishment of dismissal doesnot call for interference. For
above reasons, I record my finding in Point No.1,2 in
Affirmative.
6.
In the result, award is passed as under:-
(1)
The action of the management of the SECL, Balgi
Project, Dt. Korba (Chhattisgarh) in terminating
6396
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
the services of Shri Gendh Ram, S/o Bahoran,
Explosive Carrier vide order dated 29-12-01 is
proper and legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2528-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,iQ-lh-vkbZ-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 184@1994)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@288@1994&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O. 2528.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 184/
94) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of FCI and their workmen,
received by the Central Government on 12/09/2014.
[No. L-22012/288/1994-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/184/94
PRESIDING OFFICER : SHRI R.B.PATLE
Smt.Ganjali,
W/o Shri Kewalram
Gram Kunjnagar,
Tehsil Surajpur,
Distt. Surguja (MP)
(LRs Smt. Sukmin Bai, Chhappan Deo, Vishnu Ram.
Birendra Ram. Kaushal Ram & Narayan Ram)
Smt. Rajmen Bai
W/o Shri Amar Sai,
Near Railway Station Bisrampur,
Tehsil Surajpur,
Distt. Surguja (MP)
...Workmen/LRs
Versus
District Manager,
FCI,
Bilaspur (MP)
...Management
AWARD
Passed on this 14th day of August, 2014
1.
As per letter dated 28-9-94 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section 10 of I.D. Act, 1947 as per Notification
No. L-22012(288)/94-IR(C-II). The dispute under reference
relates to:
“Whether the action of the District Manager, FCI,
Bilaspur in not regularizing Smt. Gangajali W/o
Kewal Ram, Smt. Rajmen Bai, W/o Late Amar Sai
and Shri Dhaneswar Prasad S/o Shri Ogar Sai Ex
Contract labourers on the service of FCI, FSD,
Bisrampur as per agreement dated 12-4-91 is legal
and justified? If not, to what relief are these three
workmen entitled to?”
2.
Present reference is unique that the illiterate labours
are approaching pillars to post for justice. After receiving
reference, notices were issued to the parties. However
the Ist party workmen failed to appear and no dispute
award was passed on 11-4-95. Said no dispute award was
challenged by workman filing Writ petition 4134/95. Vide
judgment dated 27-3-97, said award was set-aside to file
application for setting aside exparte award. Accordingly
the application for setting award was filed. In said
application was opposed by IInd party. It appears that
exparte award was set-aside and statement of claim was
filed by workmen at Pages 16/1 to 16/7. Case of workman
is that Smt. Gngajali was working as casual labor on
daily wages since 1984 in Bisrampur storage depot. That
IInd party had entered in agreement dated 10-4-91.
However she was not extended benefit of said agreement.
That workman was kept out of job in violation of Section
25-F, N of I.D.Act. She was illegally retrenched. Workman
further submits that FCI is undertaking of Central Govt.
the provisions of FCI Act, 1964 governs service conditions
of the employees in addition to FCI Staff Regulation, 1971.
That provisions of I.D.Act are applicable. Ist party
workman claims to be covered under Section 2(s) of
I.D.Act. Writ petition No. 13598 of 1983 was filed by FCI
workers Union against Govt. of India requesting
prohibiting contract labours by FCI. After discussion with
Union agreement was executed on 12-4-91. Direct
Payment system was introduced w.e.f. 1991. Union issued
bio-data forms to FCI workmen and same were jointly
examined by management Union Representative for
regularization in service. The orders were issued in March
1992 regularising some of the labours. Ist party workman
,Rajman Bai & Dhaneshwar were not regularized by FCI,
Bisrampur depot. That the list produced by workman
document No.1 in support of claim, her name is included.
As above workmen were not regularized due to
discriminatory treatment, their services were discontinued
with violation of Section 25-F, N of I.D.Act, dispute was
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6397
raised before ALC, Shahdol. On failure report submitted
by LC, the dispute was referred.
3.
It is reiterated that workmen were working as
contract labour at Bisrampur depot since about 7-8 years.
However they were not regularized as per the agreement.
They had completed more than 240 days continuous
service. Their services were not regularized as per
agreement. They were discontinued in service in violation
of statutory provisions. On such ground, Ist party prays
for regularization of their services as per agreement dated
12-4-91 with consequential benefits.
4.
IInd party submitted Written statement at Page 18/1
to 18/9. IInd party submits that it is corporation established
under Act of 1964. That management appoints handling
and transport contractors for getting the work done at
various depots. It is entirely lookout of the contractors to
find labours and get work done. IInd party has no
administrative or disciplinary control over the labours
engaged by the contractors. The FCI workers Union and
representative of the Union safeguards interest of the
workers. Union was present for implementation of
Notification dated 11-11-90 issued by Govt. of India under
Section 10 of Contract Labour (R&A)Act, 1970. The
committee was formed by FCI Union on 12-4-91. The
minutes of Committee were recorded. After negotiation
held between FCI Union and management direct payment
system was introduced in the depots and godowns
including Bisrampur depot in MP. As per said agreement,
Union was empowered to nominate mates in the depot
and in turn has to execute with the District Manager. The
FCI Union and number of hands who assessed were given
forms to be filled by workers. The Union after verifying
the same and after examining used to fulfill
bio-data forms duly authenticated and recommended for
direct payment system.
5.
IInd party further submits the implementation of
notification among other facts discussed by FCI Workers
Union. The agreement was signed on 12th April, 1991
introducing direct payment system. Accordingly 50
labours were regularized as per requirement. That Gangajali
was never engaged by FCI. Probably she was engaged
with handling and transport contractor Ishwarchand. That
she is not covered as workman under Section 2(s) of I.D.
Act as FCI had not engaged her. That employer employee
relationship does not exist between the parties. The
dispute is raised after long lapse of time. As per laid down
policy, decision taken by the management, the agreement
was settled with Union departmentalization of labours was
made after fulfilling the formalities on submission of biodata
by labours through Union. IInd party has denied employer
employee relationship and opposed relief for regularization
claimed by him.
6.
Workman Gangajali filed rejoinder at pages 19/1 to
19/5 reiterating her contentions in statement of claim. It
is emphasized that the documents which were
authenticated are claimed for regularization.
7.
Rejoinder is filed by management at Pages 201 to 20/
8 reiterating contentions in Written Statement.
8.
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 District
In Negative
Manager, FCI, Bilaspur in not
as related to
regularizing Smt. Gangajali W/o
Gangajali Bai
Kewal Ram, Smt. Rajmen Bai,
only
W/o Late Amar Sai and Shri
Dhaneswar Prasad S/o Shri Ogar
Sai Ex Contract labourers on the
service of FCI, FSD, Bisrampur as
per agreement dated 12-4-91 is
legal and justified?
(ii) If not, what relief the workman is
As per final
entitled to?”
order.
REASONS
9.
Present dispute pertains to 3 labours Gangajali,
Rajman Bai and Dhaneshwar Prasad. No dispute was
passed on 11-4-95. Said award was challenged in Writ
Petition. However the statement of claim is filed only by
Gangajali. During pendency of reference proceeding,
Gangajali died. Application for substituting her LRs is
filed. Name of LRs are Smt. Sukmin Bai, Chhappan Deo,
Vishnu Ram. Birendra Ram. Kaushal Ram & Narayan
Ram is substituted as her LRs. Gangajali filed her affidavit
of evidence. She has stated that she was working as
contract labour at Bisrampur. She was doing work of
cleaning food grains. She refers to document No. 2
produced with statement of claim. That she was
discontinued from September 1991 without any enquiry.
The contract labour were prohibited. In her cross-
examination, she stated that she was working under
contractor Ishwarchand. She was working all years with
FCI contractor. She was not member of any Union. She
had not put thump marks in the payment register. She
was working 4-5 days in a week . Other worker not
adduced any evidence to support claim.
10.
Management’s witness Shri B.R.Pasi filed affidavit
of his evidence supporting contentions in Written
Statement of management but he did not stand for cross-
examination. Next affidavit of Asat Siddiqui is filed as
management’s witness. The witness of the management
has stated that as per prevailing contracts, work was
done by FCI contractors appointed at Bisrampur depot.
The contractors used to engage their labours.
Management of FCI had no control over them. That
6398
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Committee was formed by FCI workers Union on 12-4-91.
The minutes of meeting produced at Annexure M-2. As a
result of negotiation between Union and management,
mate system was introduced. That as per Clause C of
agreement, biodata forms was provided by management
to Union. The forms were to be filled by workman and
submit to the office. That IInd party had submitted forms
of 5 candidates authenticated by Union. The name of
Gangajali was not in the biodata forms submitted by
Union. The witness of the management is not cross-
examined. The evidence remained unchallenged. The
evidence of Gangajali about document No.2 submitted with
her statement of claim is not challenged. In document No.1
submitted by workman, the names at Sl. No. 75 to 78 finds
note at bottom that they were not members of the Union.
Name of Gangajali is appearing at Sl.No. 77. Though the
name of Gangajali and other workers were in the list, they
were not given benefit of agreement dated 12-4-91.
Gangajali was discontinued from service without giving
benefit for regularization. Management has produced
notification dated 1-11-90 prohibiting contract labors in
the depots. The agreement dated 12-4-91 introducing direct
payment system. Workman Gangajali was not given benefit
of said agreement. The service were discontinued in the
month of September i.e. after about 5 months of said
agreement. As per the notification when contract system
was abolished, the employees are given benefit of direct
payment system, the deceased Gangajali becomes the
employee of FCI. As such employer employee relationship
between parties needs to be assumed. Instead of
regularizing her services under direct payment system,
termination of her service without notice or paying
retrenchment compensation is illegal. FCI had regularized
50 employees as per agreement but workman Gangajali
was denied said benefit. Therefore the action of
management is not legal. For above reasons, I record my
finding in Point No.1 in Negative.
11.
Point No.2- In view of my finding in Point No.1,
action of the management is not legal instead of regularizing
services of Shri Gangajali as per agreement dated 12-4-91,
she was discontinued from work. Gangajali had died
during pendency of reference. Consequently relief of
reinstatement is requested. Considering the facts of case
in my considered view, compensation Rs. 75,000would be
appropriate to Gangajali. Other labours have not adduced
any evidence, not participated in reference therefore claim
cannot be accepted. Accordingly I record my finding in
Point No.2.
12.
In the result, award is passed as under:-
(1)
The action of the District Manager, FCI, Bilaspur in
not regularizing Smt. Gangajali W/o Kewal Ram is
not legal and proper.
(2)
IInd party is directed to pay compensation Rs. 75,000
to the workman Gangajali.
Amount as per above order shall be paid to workman
within 30 days from the date of notification of award. In
case of default, amount shall carry 9 % interest per annum
from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2529-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,iQ-lh-vkbZ-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 123@2001)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@314@2000&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2529.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 123/
2001) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of FCI and their
workmen, received by the Central Government on
12/09/2014.
[No. L-22012/314/2000-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/123/01
Presiding Officer : SHRI R.B.PATLE
Regional Working President,
FCI Employees Association, 8/86,
Sarita Complex,
Near 5 No. Bus Stop,
Bhopal
....Workman/Union
Versus
Sr. Regional Manager,
FCI, Regional Office,
Chetak Building,
MP Nagar, Bhopal
.....Management
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6399
AWARD
Passed on this 11th day of August 2014
1.
As per letter dated 22-6-01 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-
22012/314/2000-IR(C-II). The dispute under reference
relates to:
“Whether denial of selection grade to Shri
B.M.Singh from the date of eligibility i.e. 1-12-
1987 by the management of FCI Bhopal is legal
and justified? If not, to what relief he is entitled
to?”
2.
After receiving reference, notices were issued to
the parties. Workman submitted statement of claim at
pages 2/1 to 2/2. Case of workman is that there is scheme
for regularizing in FCI as per circular No. 22 of 1992
dated 30-12-92. The placement in selection grade is for
the employees who have completed 12 years of service
subject to the condition that the total selection grade post
shall be restricted to 30 % of sanctioned strength as on
1-12-1987, the employees proposed to be placed under
selection grade should be free from vigilance angle. That
workman was deprived his legitimate right to be placed
under selection grade despite he had completed 12 years
service as Assistant Grade III. That workman was
appointed in post of Asstt. Grade III in 1973. His
colleagues R.B.Gautam was given benefit of this scheme.
The comparative seniority particulars are submitted by
workman. It is reiterated that the workman was denied
benefit of selection grade is illegal. On such contentions
workman prays for extending him benefit as per the
scheme.
3.
IInd party filed Written Statement at pages 11/1 to
11/6 opposing claim of the workman. That Ist party
workman was appointed in post of Asstt. Grade II in 1973.
FCI introduced scheme for selection grade in 1992
issuing Circular No. 22 of 1992 giving retrospective effect
from 1-12-1987. Said benefit was to be given on certain
conditions. The total selection grade post were restricted
to 30 % of the sanctioned strength on 1-12-87. If a person
falls within 30 % of total strength, he is not entitled for
grant of selection grade if he is not found fit for such
placement. Since the workman was not free from
Vigilance angle, he was not found fit for placement in
the selection grade. Chargesheet was issued on 2-3-93.
Penalty of sensor was imposed against him on
12-12-94. Workman also issued chargesheet on 2-3-93,
penalty was imposed on 12-1-94. Workman was under
vigilance case from 2-3-93 till 31-8-94. In said backdraw,
the workman was denied selection grade. IInd party denies
allegation of workman. That special grade was denied to
him is malafide. IInd party is reiterating about the
punishment imposed against workman. IInd party prays
for rejection of claim of workman.
4.
Workman has filed rejoinder at pages 13/1 to 13/3
reiterating his contentions in statement of claim and
denied adverse contentions raised in Written Statement
filed by management. Management filed reply to the
rejoinder at pages 15/1 to 15/8 denying contentions raised
by workman in rejoinder.
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 denial of selection grade
In Affirmative
to Shri B.M.Singh from the date
of eligibility i.e. 1-12-1987 by the
management of FCI Bhopal is legal
and justified?
(ii) If not, what relief the workman is
Workman is
entitled to?”
not entitled
to any relief.
REASONS
6.
Workman is claiming selection Grade benefit as per
scheme under Circular 22/92 dated 30-12-92. Workman in
his affidavit of evidence has stated that he was appointed
as EG-III(D) in 1973. He was eligible for selection grade on
1-12-1987. There was no vigilance case pending against
him on 1-12-1987. He was promoted on post of EG-II(D) on
31-12-90. That selection grade was started in FCI from
1992-93. The employees who completed 12 years service
on the post were eligible for selection post. In his cross-
examination workman claims ignorance about promotion
policy of clerical staff in FCI. That he was promoted as
Asstt. Grade-II on 31-12-90. He claims ignorance under
which policy promotion was given to him. He also claims
ignorance under which policy on completion of 22 year
service benefit of selection grade was given. Workman
says his next promotion would be on the post of Assistant
Grade I . He claims ignorance whether ACRs of 5 years are
considered for promotion.
7.
Management’s witness Shri P. Subramanian filed
affidavit of his evidence. His affidavit is devoted about
scheme of selection grade introduced as per Circular No.22
of 1992. Retrospective effect was given from
1-12-1987. The employees completed 12 years service were
entitled to be placed in selection grade. The restriction
was of 30 % staff working as on 1-12-1987. Management’s
witness has further stated that the workman was served
with chargesheet. He was facing disciplinary enquiry.
Penalty of sensor was imposed on 12-1-94. Next
chargesheet
was
issued
to
workman
on
3-1-93. Penalty of recovery was imposed against him.
Recovery continued till 31-8-94. Workman was not found
eligible for selection grade. The evidence of management’s
witness remained unchallenged as workman failed to cross-
examine the management’s witness. I find no reason to
disbelieve unchallenged evidence of the management’s
6400
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
witness. Workman was facing disciplinary enquiry.
Punishments were imposed against him in 1993-94. The
claim of workman for selection grade cannot be upheld.
For above reasons, I record my finding in Point No. 1 in
Affirmative.
8.
In the result award is passed as under:-
(1)
The denial of selection grade to Shri B.M.Singh from
the date of eligibility i.e. 1-12-1987 by the
management of FCI Bhopal is legal and proper.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2530-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZ-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la[;k 50@2000) dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 12&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22012@483@1999&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2530.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 50/
2000) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Asansol as shown in the Annexure, in the industrial
dispute between the management of ECL and their
workmen, received by the Central Government on
12/09/2014
[No. L-22012/483/1999-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL.
Present : Sri PRAMOD KUMAR MISHRA, Presiding Officer
REFERENCE NO. 50 of 2000
PARTIES : The management of Central Kajora Colliery,
ECL
Vs.
Sri Mahendra Bhuia
REPRESENTATIVES :
For the Management
: Sri P. K. Das,
Ld. Advocate
For the Union (Workman) : Sri Rakesh Kumar,
General Secretary, KMC
Industry : Coal
State : West Bengal
Dated – 05.08.2014
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter NO. L-22012/
483/99/IR(CM-II) dated 28.06.2000 has been pleased to
refer the following dispute for adjudication by this
Tribunal.
SCHEDULE
“Whether the action of the management of Central
Kajora Colliery of M/s. ECL in dismissing Sh.
Mahendra Bhuia, U.G. Loader from services is legal
and justified? If not, to what relief the workman is
entitled?”
Having received the Order NO. L-22012/483/99/
IR(CM-II) dated 28.06.2000 of the above said reference
from the Govt. of India, Ministry of Labour, New Delhi for
adjudication of the dispute, a reference case No. 50 of
2000 was registered on 01.08.2000. Accordingly an order
to that effect was passed to issue notices through the
registered post to the parties concerned, directing them to
appear in the court, on the date fixed and to file their written
statements along with the relevant documents and a list
of witnesses in support of their claims. In pursuance of
the said order notices by the registered post were sent to
the parties concerned. Both the parties appeared in the
Tribunal, through their representative and filed their
separate sets of written statement in support of their
respective claims.
In brief as per written statement of the workman the
facts are that, Sri Mahendra Bhuia, the delinquent
employee, was regular employee of Central Kajora Colliery
of M/s ECL, having U.M. No. 55 B Form No. 544 his date
of appointment 27.02.1991 and date of birth is 21.08.1969.
The management of Central Kajora Colliery issued a Charge
Sheet to him on 09/12.06.1995 for his absence w.e.f.
16.01.1995. Sri Mahendra Bhuia could not participate in
the enquiry because he was sick. Management held
enquiry ex parte. Management of Central Kajora Colliery
recommended the dismissal of Sri Mahendra Bhuia.
Accordingly Sri Mahendra Bhuia was dismissed from
service w.e.f. 18.08.1996. During reconciliation proceeding
management give contradictory statement that workman
did not participate in the enquiry and the enquiry
conducted ex parte. But in the same para management
said that full and fair opportunity was given to the worker.
In the instant case enquiry was not held properly. Workman
has challenged the fairness of the enquiry because he
was not given opportunity to defend himself. In this instant
case the total period of absence is less than 10 months
and that is too on medical ground. 2nd show cause notice
was not been issued to the worker. As per observation
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6401
Hon’ble Supreme Court 2nd show cause notice is must.
Sri Mahendra Bhuia is a young man of less than 35 years.
In his family he is the only bread-earner, he is facing
starvation.
On the other hand the management has stated in his
written statement that concern workman was working as
Ex-U.G. Loader of Central Kajora Colliery. The concerned
workman was absenting himself from duty unauthorizedly.
The concerned workman was absent from his duty
unauthorizedly from 16.01.1995 without any leave. He was
issued charge sheet vide No. CKC/P & IR/C-6/19/5235
dated 09/12.06.1995 under clause 17 (1) (n) and (c) of the
model standing order applicable to the coal industry and
the same was sent by registered post with A/D in the
recorded address of the charge sheeted workman. But he
failed to submit his explanation for his long absence.
Therefore domestic enquiry was held by the competent
authority. Enquiry officer issued a notice of enquiry to the
ex-workman to his recorded address as per service record.
But the workman did not participate in enquiry proceeding
in spite of all reasonable opportunity. Finally the said
enquiry was held ex-parte on 16.12.1995. Charge of
misconduct was proved against the workman. The
disciplinary authority was pleased to pass an order of
dismissal of concern workman. The punishment awarded
in the instant case was quite proportionate and accordance
with the gravity of misconduct. The disciplinary authority
also considered the past record of the concern workman.
The allegation made in the written statement of the union
that management did not gave opportunity to the worker
in the enquiry proceeding is wrong. The worker is habitual
absentee.
In rejoinder-cum-written argument of the union, the
worker stated that Sri Mahendra Bhuia ex-employee was
absent only 4 months and 25 days i.e. from 16.01.1995 to
12.06.1995 for which he was charge sheeted. The job of
U.G. Loader is very harsh, hard and hazard everybody
can’t work underground. Sri Mahendra Bhuia is physically
weak, he was not able to perform the duty of U.G. Loader.
He requested the management for deploying in time rated
job but his request was not considered. Consequently the
worker became sick and due to sickness he did not perform
his duty. The management of ECL allows thousands of
workers in light of Memo of Settlement signed before
RLC(C) on 22.05.2007. The worker whose absence is under
9 months and less than 45 years of age are allowed to join
the duty. Sri Mahendra Bhuia fulfill the condition of Memo
of Settlement, his date of birth was 21 years as on
21.08.1989 i.e. he was less than 45 years of age and absence
was from 16.01.1995 to 12.06.1995 i.e. less than 5 months.
Sri Mahendra Bhuia after his sickness when he
returns on duty he was not given any information about
date of enquiry on 17.11.1995. But the date of enquiry
was fixed on 06.12.1995. It was not possible to reach the
letter by post before 06.12.1995. Again the date of enquiry
was fixed on 15.12.1995 and notice of the enquiry
dispatched to him on 07.12.1995. Enquiry Officer did not
give him time to know the date of enquiry and to participate
in the enquiry proceeding. Finally the enquiry was declared
ex-parte. Management did not issue 2nd show cause
notice before passing the order of dismissal. The
punishment of dismissal is very harsh and extreme
punishment which should have been avoided. The
workman is out of job since 1995 and remained without
wages for 18 years. Sri Mahendra Bhuia is an illiterate
person and don’t know the rules and regulations of the
company. He has prayed that he should be reinstated to
his duty with full back wages and other consequential
benefits.
The union has produced the Xerox copy of Enquiry
Report, Dismissal Order and Memorandum of Association
dated 22.05.2007. Workman Sri Mahendra Bhuia has
examined himself as witness.
I have heard the argument of Sri Rakesh Kumar,
General Secretary of KMC on behalf of the delinquent
workman and Sri P. K. Das Ld. Advocate on behalf of the
management.
It is not disputed that Sri Mahendra Bhuia the
delinquent employee is permanent employee of Central
Kajora Colliery. It is admitted that the delinquent workman
was absent from 16.01.1995. According to the delinquent
workman he was absent for 4 months and 25 days i.e.
from 16.01.1995 to 12.06.1995. It is also admitted that enquiry
against the delinquent workman is ex-parte. The domestic
enquiry conducted by the management has been
challenged by the workman.
Sri Rakesh Kumar appeared on behalf of the
delinquent workman has argued that the enquiry was not
fair and bonafied. The delinquent workman was not given
proper opportunity to put his defence version. Enquiry
proceeding was held ex-parte. Sri Rakesh Kumar was also
argued that the worker was under 45 years of age and his
absence is less than 9 months. Therefore as per
Memorandum of Settlement he should be reinstated. On
the other hand Sri P. K. Das Ld. Advocate on behalf of the
management has argued that delinquent workman was
given sufficient opportunity in the enquiry proceeding.
The workman was aware of the enquiry proceeding but he
did not participate in the enquiry proceeding. Therefore
enquiry proceeding was held ex- parte, he argued that the
delinquent workman is habitual absentee.
The domestic enquiry was conducted by Enquiry
Officer on 06.12.1995 and on 15.12.1995. It transpires from
the enquiry report that the date of enquiry was fixed on
06.12.1995 the notice was sent to delinquent employee
but on which date the notice was sent to the delinquent
employee is not disclosed. It is also not disclosed that the
6402
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
notice was actually served on the delinquent employee.
In the enquiry report it is also not disclosed that in what
date the notice was served on the delinquent workman. In
the enquiry report there is not reference of postal receipt
or postal certificate. On 06.12.1995 enquiry proceeded
ex parte. On 06.12.1995 the date of enquiry was fixed
for 15.12.1995, notice of date of enquiry for 15.12.1995
was sent to the delinquent employee on 07.15.1995. The
Enquiry Officer did not insure about the receipt of postal
information to the delinquent workman regarding
enquiry. It was not ensured by the Enquiry Officer whether
the notice sent to the workman was ever received before
the date of enquiry.
Domestic enquiry in Industrial Law has acquired
great significance. Industrial adjudication attaches
considerably importance to such enquiry. In number of
cases, the Hon’ble Supreme Court has observed that an
enquiry is not an empty formality, but an essential condition
to the legality of the disciplinary order. In other words
before the delinquent workmen can be dismissed for
misconduct, the employer shall hold a fair and regular
enquiry into the misconduct. Dismissal without holding a
regular enquiry would be an illegality. It is well settled that
disciplinary enquiry has to be a quasi-judicial enquiry. It
should be held according to principles of natural justice
and Enquiry Officer has a duty to act judicially because
the charges of misconduct, if proved, will result not only
in deprivation of livelihood of the workman, but also attach
stigma to his character.
In dealing with domestic enquiries held in industrial
matters, the fact that the large majority of cases employees
are likely to be illiterate and ignorant, should be borne in
mind. The Enquiry Officer has to take care in the facts and
circumstances of such case that the defence of the
workman is not prejudiced in any manner. The rules of
natural justice require that the workman proceeded against,
should be informed clearly of the charges leveled against
him, witness should be examined in his presence. The
workman should be given a fair opportunity to examine
witness, in support of his defence.
Unfair or wrongful discharge or dismissal of
industrial workmen as a measure of disciplinary action is
one of the major causes of industrial dispute though the
employers have always regarded the right of disciplinary
action as a concomitant to the efficient attainment of the
objectives of industrial activity. On the other hand, the
workers and their unions have tended to regard protection
from arbitrary or unjustified disciplinary action as one of
the most important functions of the trade union activity.
In all cases of detrimental action taken against a
worker, for misconduct, the employer has to establish
whether the action was taken for “Just and sufficient
reasons”. An industrial worker is always entitled to
question the property and justice of punitive or detrimental
action taken against him.
It is worth mention that the first date of enquiry was
fixed on 06.12.1995 though enquiry officer without ensuring
that the notice was actually received by the workman,
proceeded ex-parte. If the worker did not appear, the
Enquiry Officer ought to have adjourned the enquiry
proceeding rather to proceed ex-parte. Especially in this
circumstance when it is doubtful that notice regarding
date of enquiry was served on delinquent workman. On
06.12.1995 the date of enquiry was fixed for 15.12.1995.
Again Enquiry Officer did not ensure that the notice
regarding date of enquiry on 15.12.1995 was served on
delinquent worker. Instead of adjourning the enquiry
proceeding he proceeded ex parte.
The Memorandum of Settlement dated 22.05.2007
on which reliance has been place by the union is recital
of representative of the management as well as union. It
has been settled that the employees who were absent for
a period upto 9 months and under 45 years of age will be
considered for reinstatement on merit basis. Undoubtedly
on date of passing dismissal order the delinquent
employee was less than 45 years. Besides delinquent
workman was absent for a period of less then 5 months.
Therefore as per Memorandum of Settlement delinquent
employee may be eligible for reinstatement.
Before imposing a punishment of dismissal, it is
necessary for the disciplinary authority to consider totality
of facts and circumstances of delinquent employee, his
social and economic background and compelling
circumstances to commit misconduct. Punishment of
dismissal for absence of less than 5 months is too harsh
punishment and disproportionate to alleged misconduct.
During period of dismissal the delinquent workman was
not employed anywhere. Though in short span of service
the delinquent workman was previously absent.
Sri Mahendra Bhuia the delinquent workman in his
statement stated that he was sick in his village but he has
no document regarding his treatment. He has also stated
that he sent information to the Labour Officer, but has
no proof. Whereas in enquiry report Sri Tapan Kumar
Mondal, Leave Clerk, who maintains leave record has
stated that he did not get any leave application of
Sri Mahendra Bhuia from 16.01.1995 till date. From this
fact it appears that Sri Mahendra Bhuia was absent from
duty without any leave. In enquiry report the Enquiry
Officer has stated that Sri Mahendra Bhuia was a habitual
absentee. In the year 1992 his attendance was only 88
days, in 1993 only 47 days, in 1994 only 51 days and in
the year 1995 (upto 16.01.1995) his attendance was only
9 days.
In view of this matter I think it just and proper to
modify and substitute the punishment exercising the
power u/s II (a) Industrial Dispute Act 1947. According
the order of dismissal of the delinquent workman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6403
Sri Mahendra Bhuia is hereby set-a-side and he is directed
to be reinstated with the continuity of service. The
delinquent workman be imposed a punishment of strict
warning not to repeat the same in future. It is further directed
that the workman will be entitled to get only 50% of the
back wages.
ORDER
Let an “Award” be and the same is passed as per
above discussion. Send the copies of the order to the Govt.
of India, Ministry of Labour, New Delhi for information
and needful. The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2531-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZ-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa
fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la[;k 88@2000) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22012@88@2000&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2531.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 88/2000)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Asansol as shown in the Annexure, in the industrial
dispute between the management of ECL and their
workmen, received by the Central Government on
12/09/2014.
[No. L-22012/88/2000-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL.
PRESENT : Sri Pramod Kumar Mishra, Presiding Officer
Reference No. 88 of 2000
PARTIES : The management of Khas Kajora Colliery,
ECL
Vs.
Sri Ramchandra Mallah
REPRESENTATIVES:
For the management
: Sri P. K. Das,
Ld. Advocate
For the union (Workman)
: Sri Rakesh Kumar,
General Secretary, KMC
Industry : Coal
State : West Bengal
Dated – 05.08.2014
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter No.
L-22012/88/2000-IR(CM-II) dated 15.09.2000 has been
pleased to refer the following dispute for adjudication by
this Tribunal.
SCHEDULE
“Whether the action of the management of Khas
Kajora Colliery of M/s. ECL in dismissing
Sh. Ramchandra Mallah U.G.L. from services is legal
and justified? If not, to what relief the workman is
entitled?”
Having received the Order No. L-22012/88/2000-
IR(CM-II) dated 15.09.2000 of the above said reference
from the Govt. of India, Ministry of Labour, New Delhi
for adjudication of the dispute, a reference case No. 88 of
2000 was registered on 27.09.2000. Accordingly an order
to that effect was passed to issue notices through the
registered post to the parties concerned, directing them
to appear in the court, on the date fixed and to file their
written statements along with the relevant documents and
a list of witnesses in support of their claims. In pursuance
of the said order notices by the registered post were sent
to the parties concerned. Both the parties appeared in
the Tribunal, through their representative and filed their
separate sets of written statement in support of their
respective claims.
In brief the fact of the workman concerned as per his
written statement is that Sri Ramchandra Mallah U.G.
Loader of Khas Kajora Colliery was permanent worker
having U.M. No. 555021, Sri Ramchandra Mallah was
charge sheeted on 24.11.91 for his absence from duty.
He replied the charges and informed the management
that he was sick. He also submitted his treatment paper
in support of his sickness. His treatment was done at
colliery dispensary, Kajora Area Hospital & Government
Hospital. He also sent the information to the management
that he was sick and could not attend his duty. His absence
was very well confirmed by his medical certificate and
his absence was beyond his control and was unintentional.
The workman belongs to backward community and being
illiterate was ignorant of the rules and regulations of the
company. Since he became sick, he could not join the
duty. The punishment of dismissal is very harsh in this
matter. As per directive of Supreme Court & also as per
C.I.L. guidelines punishment should not be
disproportionate to the nature of offence. Worker
explained the position while replying of the 2nd Show
Cause why he could not attend his duty. Management
should take lenient view because absence of the worker
was beyond his control. This fact was known to the
management because the worker was treated by the colliery
6404
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
medical officer. Colliery medical officer referred the worker
to Area Hospital. Memo was counter signed by the manager
of the colliery. Sri Ramchandra Mallah is a young man and
can work as U.G. Loader. Dismissal of Sri Ramchandra
Mallah is wrong and he should be reinstated in service
with full back wages.
On the other hand the defence case of the
management as per his written statement is that the instant
reference is bad in the eye of law and the very dispute is
entirely misconceived one. The case of the management
is Sri Ramchandra Mallah Ex-U.G. Loader absented himself
from his duties w.e.f. 28.12.1997 to 25.02.99 i.e. 14 months
without any permission or intimation to the management.
Sri Ramchandra Mallah was charged vide Letter No. KKC/
P&IR/C-6/19/98/Habitual/183 dated 24.11.1998 for his
above act of misconduct under class 17(i)(d)&(n) of Model
Standing orders applicable in the Coal Mining Industry.
He neither submitted his reply to the said charge sheet
nor sent any information in this regard. Ultimately a
domestic enquiry was ordered to be conducted. The
delinquent was issued three enquiry notices but he did
not bother to attend the enquiry nor sent any information.
Ultimately on 4th notice of enquiry, he came for enquiry
on 26.02.1999 and requested for next date for 02.03.1999.
Accordingly the enquiry held on 02.03.1999 in which the
delinquent fully participated along with co-worker. After
the conclusion of the enquiry proceeding the enquiry
officer held the workman guilty of the charges of
misconduct as framed. After enquiry proceeding the worker
was given a second show cause notice vide reference No.
KA/PM/C-6/10/16/2913 dated 01.04.1999 a chance to
explain. The reply of worker dated 12.04.1999 was not
convincing. Therefore the disciplinary authority awarded
an order of dismissal of the ex-workman from his service
vide Letter No. KA/PM/C-6/10/426/2319 dated 20.04.1999.
It is denied by the management that the workman was sick
and got treatment in outside hospital since the ex-workman
did not bother to inform. In previous occasion also ex-
worker was absent in his duty. In year 1996 his attendance
was only 125 days and in year 1997 his attendance was
only 79 days which is clear indication of his habitual
absenteeism. The dismissal of workman is totally justified
and punishment of the workman is not disproportionate
at all. In enquiry the workman was offered full opportunity
and principle of natural justice was complied.
I have heard the argument of Sri Rakesh Kumar on
behalf of the union/workman and Sri P. K. Das Ld.
Advocate on behalf of the management.
It is not disputed that the worker Sri Ramchandra
Mallah was Ex- U.G. Loader in Khas Kajora Colliery. It is
also not disputed that Sri Ramchandra Mallah was absent
from his duty through as per written statement of the
worker he was absent due to his sickness.
The validity and fairness of the enquiry proceeding
is not challenged. The delinquent employee had
participated in the enquiry proceeding. It is not the case
of the worker that enquiry officer was biased or enquiry
proceeding was not fair. In the charge sheet Reference
No. KKC/P&IR/C-6/19/habitual/98/183 dated 24.11.1998
the worker is shown to be absent from 28.12.1997 till date.
Besides he has been shown absence from his duty in 1996
& 1997. In 1996 he was present 125 days on duty and in
1997 he was physically present only 79 days. The Xerox
copy of the treatment papers has been filed by the worker
as per the document it appears that Sri Ramchandra Mallah
was treated by Medical Officer of Khas Kajora Colliery of
ECL, thereafter he was treated in Laudoha Block Primary
Center, Govt. of West Bengal in Burdwan district. In
Laudoha Block Primary Health Center he was treated as
outdoor patient on 02.01.1998, 25.01.1998, 03.05.1998 and
18.01.1999. On 30.01.1999 he was declared fit by Medical
Officer to resume his duty on 01.02.1999 again, certificate
was issued by the Medical Officer of Laudoha Block
Primary Health Center on 22.02.1999 that Sri Ramchandra
Mallah was suffering from U.T.I from 01.02.1999 to
22.02.1999 and fit to resume his duty on 23.02.1999 in reply
to the charge sheet issued by the management. It is
significant to note that Sri Ramchandra Mallah was treated
in Laudoha Block Primary Health Center as outdoor patient.
He was not admitted for treatment as indoor patient in
Laudoha Block Primary Health Center. Therefore Sri
Ramchandra Mallah was in position to intimate the
management about his absence on medical ground at least
by post. But there is complete absence of any such
documents on record. It appears from the record that
delinquent employee Sri Ramchandra Mallah was habitual
absentee. Even he did not care to intimate the management
or his superior officer regarding his unauthorized absence.
But even then for such period of unauthorized absence
the punishment of dismissal is harsh punishment. The
hon’ble Apex Court in Mukund Engineering Works Vs.
Bansi Purushottam 1994 SCC Supl. (2) 725, held that in
totality of circumstances the workman should either get
reinstated without back wages or back wages without
reinstatement.
However I am of the considered view, that the
punishment of dismissal for an unauthorized absence is
harsh punishment, which is disproportionate to the alleged
misconduct. In this view of the matter I think it just improper
to modify and substitute the punishment exercising the
law u/s 11(a) of the Industrial Dispute Act 1947 and
according the impugned order of dismissal of the concern
workman is hereby sat aside and he is directed to be re-
instead with continuity of the service without back wages.
I think it appropriate that the delinquent workman be
punished with stoppage of one increment without
cumulative effect.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6405
ORDER
Let an “Award” be and the same is passed as per
above discussion. Send the copies of the order to the Govt.
of India, Ministry of Labour, New Delhi for information
and needful. The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2532-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZ-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa
fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la[;k 23@2012) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks izkIr gqvk FkkA
¹la- ,y&22012@64@2012&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2532.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 23/2012)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Asansol as shown in the Annexure, in the industrial
dispute between the management of J. K. Nagar Colliery,
M/s. E.C. Ltd., and their workmen, received by the Central
Government on 12/09/2014.
[No. L-22012/64/2012-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL.
PRESENT : Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 23 OF 2012
PARTIES : The management of J. K. Nagar Colliery of
M/s. ECL
Vs.
Shri Bhudhan Dhibar
REPRESENTATIVES :
For the management
: None
For the union (Workman)
: Sri. D. K. Routh
Industry : Coal
State : West Bengal
Dated – 13.08.14
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its Order No. L-22012/
64/2012-IR(CM-II) dated 26.04.2012 has been pleased to
refer the following dispute for adjudication by this
Tribunal.
SCHEDULE
“Whether the action of the management of J. K.
Nagar Colliery of M/s. ECL in not payment HRA
@ 10% of basic pay to Sri Bhudhan Dhibar is fair
and justified? To what relief the concerned
workman is entitled to?”
Having received the Order of Letter No. L-22012/
64/2012-IR(CM-II) dated 26.04.2012 of the above said
reference from the Govt. of India, Ministry of Labour,
New Delhi for adjudication of the dispute, a Reference
Case No. 23 of 2012 was registered on 16.05.2012 and
accordingly an order to that effect was passed to issue
notices through the registered post to the parties
concerned directing them to appear in the court on the
date fixed and to file their written statements along with
the relevant documents and a list of witnesses in support
of their claims. In pursuance of the said order notices by
the registered post were sent to the parties concerned.
On perusal of the record I find that the case was
kept reserved for an award by my predecessor (Late
Jayanta Kumar Sen, the then P.O.) because Sri. D. K.
Routh, Branch Joint Secretary had made an endorsement
that the workman is not interested to proceed with the
case further. Since the workman as well as the union are
not interested to proceed with the case further. As such
the case is closed and accordingly a ‘No Dispute Award’
may be passed.
ORDER
Let an “Award” be and the same is passed as “No
Dispute” existing. Send the copies of the order to the
Govt. of India, Ministry of Labour, New Delhi for needful
information. The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2533-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-bZ-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 33@1999)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@16@1998&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2533.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.33/1999)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial
6406
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
dispute between the management of SECL and their
workmen, received by the Central Government on
12/09/2014.
[No. L-22012/16/1998-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/33/99
PRESIDING OFFICER : SHRI R.B.PATLE
Branch Secretary,
S.K.K.M.S, Branch Banki,
PO Bankimongra,
Distt. Bilaspur
....Workman/Union
Versus
Dy.General Manager,
SECL, Banki Colliery,
PO Banki Mogra,
Distt. Bilaspur (MP)
.....Management
AWARD
Passed on this 28th day of August 2014
1.
As per letter dated 16-12-98 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-
22012/16/98-IR(CM-II). The dispute under reference
relates to:
“Whether the action of the management of SECL,
Banki Colliery, Distt. Bilaspur (MP) in not
changing the date of birth of Shri S.C.Haldar,
Mechanical Fitter from 1-1-1941 to 1-10-1946 is
justified? If not, to what relief the workmen is
entitled?”
2.
After receiving reference, notices were issued to
the parties. Workman submitted statement of claim at
Page 3/1 to 3/2. Case of Ist party workman is that he is
holding ITI, in electrician Trade. He joined service with
IInd party on 20-12-65 as Electrician Grade-I mazdoor.
In Form B register as per Mines Rules, his date of birth
was recorded 11-10-46. He was promoted in 1973. After
merger of coal India, Mines rules were amended in 1978.
Form B register was also amended. Fresh Form B was
prepared. The formate were supplied on 29-4-87.
Objections were called from workman filling the forms
were also required. Applicant submits that his date of
birth was wrongly shown as 1-1-1941. That as per
educational certificate, his date of birth is 11-10-1946.
That his representations for correction of date of birth
were not considered. He was retired on 1-1-01. Workman
prays for correction of date of birth and his reinstatement
in service.
3.
IInd party filed Written statement at Page 8/1 to
8/8. IInd party denied claim of workman. It is submitted
that workman was appointed on 28-12-1965 by NCDC. As
per coal Mines legislation management has to maintain
statutory record. under Mines Rules, register of
employment called Form B is required to be maintained. It
is reiterated that date of birth of workman was declared
1-1-1941 in Form B Register of workman. It is further
submitted that the dispute regarding age is required to be
decided as per guidelines provided in NCWA-II. Instruction
No.37 notice was displayed on 1982 inviting objection
within 30 days. In said notice, date of birth of workman
was shown 1-1-1941. Workman did not submitted
objection. If he had any grievance, objections should
have been submitted within 90 days.
4.
It is further reiterated that as per NCWA-III,
modification instruction No. 37 of I.I.No.76 earlier was
revised. The dispute about date of birth of workman was
examined by the Committee and found that date of birth
of workman was properly recorded. Workman has not
produced any documents admissible as per rules. Rest of
the documents of workman are denied. Workman has not
explained why the certificates as per rules were not
produced. The correction of date of birth beyond
reasonable time should not be encouraged. On all such
contentions, IInd party claims for rejection of 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 manage- In Affirmative
ment of SECL, Banki Colliery,
Distt. Bilaspur (MP) in not changing
the date of birth of Shri S.C.Haldar,
Mechanical Fitter from 1-1-1941 to
1-10-1946 is justified?
(ii) If not, what relief the workman is
Workman is
entitled to?”
not entitled to
any relief.
REASONS
6.
Workman is claiming that his date of birth was
recorded 11-10-1946 in Form B. that he was prematurely
retired accepting his date of birth 1-1-1941. The
contentions of workman are totally denied by
management. Workman filed affidavit of his evidence
supporting his claim. He joined service on 20-12-1965,
after 1973, NCDC was merged in Coal India Ltd. and
after merger, fresh service record was prepared in which
he submitted his date of birth as 11-10-1946. Said date of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6407
birth was also recorded in service record, Provident Fund
etc. he should not have been retired treating his date of
birth as 1-1-1941. In his cross-examination workman says
he joined service on 20-12-1965, at that time he was of 18
years of age. Attested copy of ITI certificate was submitted
by him to the management during appointment. The
certificate was not attested by any Gazetted Officer. He
passed ITI 1 October 1965 , he received ITI education
from Chhattisgarh. That his family migrated from Dhaka
to Raipur. They have settled in Calcutta for some period.
He says that it is duty of management to maintain Form B,
the original service record produced in the matter was
subsequently prepared. His date of birth is not original
record. He claims ignorance whether he has put his thumb
mark on the original Form B was referred to witness. He
says his name is at Sl. No.70 in form B, the date of birth is
subsequently entered. He claims ignorance whether in 1972
management displayed notice calling objections to the
date of birth. The applicant says that he was on leave and
did not raise any objection. That he submitted application
one year before his retirement.
7.
Documents produced by applicant Exhibit W-1 is
that applicant has claimed his date of birth was 11-10-1946.
In Exhibit W-2, copy of admit card from Board of
Intermediate Secondary Education, his date of birth is
shown as 11-10-1946. The admit card is not admissible as
proof of date of birth as per the instructions in NCWA-II,
III. Document Exhibit W-3 doesnot show date of birth of
workman. It is migration certificate dated 13-3-1964, the
age of workman is shown 18 years workman had not
produced school leaving certificate or any documents
admissible to prove his date of birth was 11-10-1946.
Documents Exhibit M-1, M-2 produced by IInd party also
donot show his correct date of birth. Document Exhibit
M-3 notice name of workman is appearing at Sl.No. 20
annexed with document, his date of birth is shown as
1-1-41. His date of birth was not corrected, rather as per
office order dated 25-11-89, Age Determination Committee
found correct date of birth of workman as
1-1-1941. Name of workman is appearing at Sl.No.75.
8.
Management’s witness Surya Prakash Patnaik in his
affidavit of evidence supported contentions of
management. His evidence in cross-examination shows
that he was not member of Age Determination Committee.
He joined service of IInd party. Evidence of management’s
witness is not shattered on the material aspects.
9.
Learned counsel for IInd party Shri Shashi has
submitted bunch of citations-
In case of State of Tamil Nadu versus
T.V.Venugopalan reported in 1994(6) SCC 302 their
Lordship held delay in seeking correction of date of birth
recorded after entering service and counter signed by
Govt. servant would not be permitted to be challenged by
the Govt. servant at the fag end of his service.
Copy of order passed by CAT Jabalpur in Petition
No. 18/2000 is produced. Their Lordship observed counsel
for respondents also pointed out that record in Form B
Register is maintained in accordance with the statutory
requirement contained in Section 48 of the Mines Act,
1952 and Rule 77 of the Mines Rules 1955.
Their Lordship on any ground for calling interference
w.e.t. petitioners 1, 4 to 7 claim of petitioners No. 2, 3 was
forwarded to Headquarters and they were forced to pursue
remedy.
In present case, applicant’s claim about correction
of date of birth was rejected by Age Determination
Committee. Workman has not produced documents about
his correct date of birth from School record or any authentic
record therefore I record my finding in Point No.1 in
Affirmative.
10.
In the result, award is passed as under:-
(1)
The action of the management of SECL, Banki
Colliery, Distt. Bilaspur (MP) in not changing the
date of birth of Shri S.C.Haldar, Mechanical Fitter
from 1-1-1941 to 1-10-1946 is proper and legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2534-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-bZ-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 301@1999)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@144@1999&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2534.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.No. 301/
1999) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 12/09/2014.
[No. L-22012/144/1999-IR (CM-II)]
B. M. PATNAIK, Desk Officer
6408
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/301/99
PRESIDING OFFICER : SHRI R.B.PATLE
General Secretary,
Rashtriya Koyla Khadan Mazdoor Sangh (INTUC),
PO Jamuna Colliery,
Distt. Shahdol (MP)
.....Workman/Union
Versus
General Manager,
Jamuna & Kotma Area of SECL,
PO Jamuna Colliery,
Distt. Shahdol (MP)
.....Management
AWARD
Passed on this 27th day of August, 2014
1.
As per letter dated 8-9/9/99 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-
22012/144/99-IR(CM-II). The dispute under reference
relates to:
“Whether the action of the General Manager,
Jamuna and Kotma Area of SECL, PO Jamuna
Colliery, Distt. Shahdol MP in not promoting
Shri Bihari Lal Pandey, S/o Shri Ram Biswash as
Asstt. Foreman vis-à-vis others is legal and justified?
If not, to what relief the workman is entitled?”
2.
After receiving reference, notices were issued to
the parties. Ist party RKKMS Union submitted statement
of claim. Case of Ist party Union is that Shri Bihari Lal
Pandey was appointed as General Mazdoor Category I in
1980. He was working as mechanical helper and
regularized as such in 1981. Considering his sincere
work, workman was promoted as mechanical fitter
Category IV in 1983. In 1987, he was promoted as
mechanical fitter Category V. On 1-4-1991, he was again
promoted as Mechanical Fitter Category VI.
3.
It is alleged that Shri S.N.Jha and Lalloo Singh were
designated as Welder and were junior to workman Shri
Bihari Lal Pandey. They were performing job of Welder
upto December 1996. Management issued letter dated
23-12-96 giving notional seniority to Shri S.N.Jha and Lalloo
Singh from 1989 as Mechanical Fitter Category VI. They
were promoted as Assistant Foreman (T&SGrade C). They
were junior to Bihari Lal Pandey who was working in
mechanical section since date of his appointment. That
on basis of notional seniority given to Shri S.N.Jha, they
were promoted as Assistant Foreman. Workman was not
considered for promotion. His juniors Shri Lalloo Singh
and S.N.Jha were promoted. That notional seniority given
to Shri S.N.Jha and Lalloo Singh was basis for their
promotion the post of Assistant Foreman. Workman was
deprived with the promotion. That promotion of Shri
S.N.Jha and Lalloo Singh is illegal, unjustified. It is prayed
that Bihari Lal is entitled for promotion to the post of
Asstt. Foreman (T&A)Grade C from the date Shri S.N.Jha
and Lalloo Singh were promoted on said post.
4.
IInd party filed Written Statement at page 7/1 to
7/2 denying the claim of Ist party workman. IInd party
submits that Shri S.N.Jha and Lalloo Singh were designated
as Welders. They were actually performing job of
mechanical fitter for long time. They have acquired
sufficient skills and knowledge in that field. That
Shri S.N.Jha and Lalloo Singh are not junior to the workmen.
It is reiterated that Shri S.N.Jha and Lalloo Singh were
performing job of mechanical fitter though they were
designated as Welders. Considering their skill and
experience, they were re-designated to Mechanical Fitter
Category VI strictly in compliance of practice. In DPC for
promotion to the post of Mechanical Fitter Category B-I,
they were considered. As per norms of cadre scheme, 47
candidates were eligible for consideration by DPC for post
of Assistant Foreman Grade C including workman. There
were only 13 vacancies of mechanical discipline, the DPC
recommended a panel of 14 persons in which names of
Shri Lalloo Singh and S.N.Jha were at Sl No.3 & 9. Name
of workman was at Sl.No.28. Therefore he could not be
promoted as names of Shri S.N.Jha and Lalloo Singh were
above the name of workman in the list. Other allegation of
workman are denied.
5.
Union filed rejoinder at Page 8/1 to 8/2 reiterating its
contentions in statement of claim.
6.
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 General
In Affirmative
Manager, Jamuna and Kotma Area
of SECL, PO Jamuna Colliery,
Distt. Shahdol MP in not promoting
Shri Bihari Lal Pandey, S/o Shri
Ram Biswash as Asstt. Foreman
vis-à-vis others is legal and justified?
(ii) If not, what relief the workman is
Workman is
entitled to?”
not entitled to
relief claimed
by him.
REASONS
7.
The present dispute relates to denial of promotion
to workman Shri Bihari Lal Pandey to post of Assistant
Foreman. Claim of Union is denied by management.
Workman Bihari Lal Pandey filed his affidavit of his
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6409
evidence. He has stated about notional seniority given to
Shri S.N.Jha and Lalloo Singh as per letter dated
23-12-96. To the post of Mechanical Fitter Category VI
from 1989. They were given promotion as Assistant
foreman ( T&S) Grade C as such the workman is rendered
junior to them. However management committed illegality
in giving notional seniority to Shri S.N.Jha and Lalloo
Singh. Management should have considered him for
promotion as Assistant Foreman (T&S) Grade C in 1996.
In his cross-examination workman says he joined as General
Mazdoor in 1980. In 1982, he was designated as Category
II, in 1984 as Category IV, in 1987 as Category V and in
1991 as Category VI. He was promoted as Assistant
Foreman Grade C in 2006. Shri S.N.Jha and Lalloo Singh
are not junior to him. He was unable to tell on which post
Shri S.N.Jha and Lalloo Singh were promoted and time of
their promotions. That both Shri S.N.Jha and Lalloo Singh
were appointed as Welder, General Mazdoor. They were
not appointed as Welder. He further claims ignorance when
they were designated as Welder, he claims ignorance
whether work of mechanical fitter was done by them. That
both Shri S.N.Jha and Lalloo Singh were working in Welder
Category VI. He denies that they were working at
Mechanical Fitter for several years. For promotion to the
post of Foreman Grade-C, he was placed before DPC, the
names of Shri S.N.Jha and Lalloo Singh were not included.
In his further cross-examination, workman says he
alongwith Shri S.N.Jha and Lalloo Singh for the post of
Assistant Foreman Grade C, he claims ignorance whether
14 persons were recommended by DPC. He also claims
ignorance whether name of Shri S.N.Jha and Lalloo Singh
were at Sl.No.3, 9 and his name was at Sl.No.28.
8.
Evidence in cross-examination of workman shatters
his claim. He has admitted that Shri S.N.Jha and Lalloo
Singh were not juniors to him.
9.
Management’s witness Shri S.Parida filed affidavit
supporting contentions raised in Written Statement.
Management’s witness was not cross-examined. Affidavit
of evidence is also filed by Shri V.D,Bhide supporting
contentions of management in Written Statement. He is
also not cross-examined.
10.
Considering evidence in cross-examination of
workman and unchallenged evidence of management’s
witnesses, I do not find substance in allegation of Union
that workman was superseded by Shri S.N.Jha and Lalloo
Singh, juniors to him. The documents page 7/3, 7/4
produced by management about recommendation by DPC
for post of Assistant Foreman, Mechanical Fitter Grade C.
The name of workman is appearing at Sl.No.28. Workman
has admitted documents at Page 11/6, 11/7. For reasons
discussed above, claim of Ist party workman raised by
Union is not justified. Therefore I record my finding in
Point No.1 in Negative.
11.
In the result, award is passed as under:-
(1)
The action of the General Manager, Jamuna and
Kotma Area of SECL, PO Jamuna Colliery, Distt.
Shahdol MP in not promoting Shri Bihari Lal Pandey,
S/o Shri Ram Biswash as Asstt. Foreman vis-à-vis
others is proper and legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2535-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-bZ-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 5@1999)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@19@1998&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2535.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 5/1999)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 12/09/2014.
[No. L-22012/19/1998-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/5/99
PRESIDING OFFICER : SHRI R.B.PATLE
Secretary,
Chhattisgarh Khadan Karkhana
Mazdoor Union, Bankimogra,
Distt. Bilaspur (MP)
.....Workman/Union
Versus
Dy.General Manager,
SECL, Banki Group,
Dhelwadih Project,
Distt. Bilaspur (MP)
.....Management
6410
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
AWARD
Passed on this 27th day of August, 2014
1.
As per letter dated 27-11-88 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section 10 of I.D. Act, 1947 as per Notification No.
L-22012/19/98-IR(C-II). The dispute under reference relates
to:
“Whether the action of the management of SECL,
Dhelwadih Project (Banki Group) Distt. Bilaspur in
not regularizing the worker Shri Shiv Bhagat
S/o Uchit, Loading Mate Cat-IV as Loading Clerk
Grade-III from the date he was promoted as Loading
Mate and not giving further promotion is justified?
If not, to what relief the workman is entitled?”
2.
After receiving reference, notices were issued to
the parties. Union submitted statement of claim at Page
2/1 to 2/6. Case of Ist party Union is that in Coal Industry,
the award passed by Tribunal called Majumdar Award
governs grade, designations, categories of the employees
in Coal Industry. Workman Shiv Bhagat was employed in
loading section on daily wages as Mazdoor Category III
from 5-5-1966. He was dong work of loading clerk
regularly. Above named workman has failed matriculation
in 1965. He was performing duties of clerical nature.
SECL Banki Group, Dhelwadih project started in October
1992. The workman was doing work of loading section
taking the entries as Loading assistant. Workman was
taking entries as way bridge clerk, Loading Inspector.
Workman was preparing monthly quarterly annual coal
production despatch stock register, statements reports etc.
such statements were verified from payments by the
workman. On 13-5-93, workman submitted application
to Sr. Suptd. Loading Suptd. Shri P.M.Mathai for
regularisation as loading clerk. The management vide
order dated 31-1-94 allowed designation to the workman
as loading mate Category IV Pay 14.18-1.32-16.65 per
day. It is also submitted that the workman was promoted
in said category. That in coal industry, employee
completed 3 years as per cadre scheme is entitled for
promotion. The management refused promotion to the
workman. After completion of 3 years on 1-1-1997 on
the ground that there was no post of loading mate in the
cadre scheme. On 1-3-97, workman submitted application
for his regularization as loading clerk. Management did
not consider said application. On 4-3-97, workman
submitted representation to Dy.General Manager
requesting proper consideration of representations for
his regularization as loading clerk. That as per Coal
Wage Board Award 1968, colliery dispute award 1956
and coal wage agreements cadre schemes were
introduced. The post of loading mate was not in the cadre
scheme. Appendix 16 of colliery disputes award provides
designation of store mates, store issue clerks. Coal wage
award Appendix VI provides staff grading, store issue clerk,
Store Mates Clerk Grade-III.
3.
Union further submits ministerial staff loading
personnel provides Assistant Loading Clerk Grade III, Sr.
Loading Inspector Grade A, promotions for matriculate
employees. Workman is denied promotions as per those
schemes. He is not regularized as Asstt. Loading Clerk. It
is submitted that the cadre scheme for clerk minimum
educational qualification is matriculate. Workman was kept
in Grade III. As per Cadre Scheme, the employees working
as Assistant Loading Clerk are entitled to promotion to
the post of Assistant Loading Inspector. Educational
qualification is not a bar for promotion to Grade C. On
such contentions, Union is praying that workman
Shri Shiv Bhagat be allowed promotion as Loading Clerk
Grade-III.
4.
Management of IInd party filed Written Statement
at Page 4/1 to 4/3. Claim of workman is denied. It is
submitted that workman Shri Shiv Bhagat was appointed
on daily wages from 5-5-66 in Category-I. On 5-2-72,
workman had submitted resignation. On appeal of the
workman, he was re-appointed on 20-12-72 for a period
of 3 months. On 1-7-89, workman was allowed
upgradation to Category-IV. On 18-10-98, workman was
transferred to Dhelwadih. In other colliery, the workman
was doing work in Railway Siding on daily wages. He
was doing work of digging through gang. That for clerical
post minimum educational qualification is Matriculate/
Higher Secondary. Workman had not passed departmental
examination. Only after Higher Secondary Examination,
workman cannot work as clerk. It is reiterated that the
workman had not passed matriculation. He was never
appointed as Assistant Loader Clerk. There was no
question of workman doing work of loading clerk at that
time. Workman was promoted to Category IV daily wages
as loading mate. Workman is not holding required
educational qualification. Demand of Union is not
justified. workman cannot be allowed benefit of cadre
scheme for loading persons. On such contentions, IInd
party prays for award in its favour.
5.
Union submitted rejoinder at Page 6/1 to 6/2
reiterating its contentions in statement of claim.
6.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i)
‘‘Whether the action of the manage- In Affirmative
ment of SECL, Dhelwadih Project
(Banki Group) distt. Bilaspur in
not regularizing the worker
Shri Shiv Bhagat S/o Uchit,
Loading Mate Cat-IV as Loading
Clerk Grade-III from the date he
was promoted as Loading Mate
and not giving further promotion
is justified?
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6411
(ii) If not, what relief the workman
Workman is not
is entitled to?”
entitled to any
relief.
REASONS
7.
Dispute relates to claim of workman for promotion
to post of loading clerk. His claim is denied by management
on the ground as per cadre scheme minimum qualification
for clerical post is matriculation. Workman is not holding
educational qualification for said post. The evidence of
workman says that he has failed 11th standard. From 5-5-
66, he was working in Banki colliery in loading section as
Mazdoor Category-I. that he was doing the work of coal
loading transportation in Banki colliery. On 18-10-93, he
was transferred to Dhelwadih. At that time, he was working
in Loader Category IV. From 1-1-94, he was designated as
mate. He says that he was carrying work of daily work of
dispatch register, store register, delivering order taking
entries in registers. He is doing similar work till date of his
evidence. That he was doing work of Assistant Loading
clerk Grade-III. That he would have been promoted as
loading clerk Grade-II. In his cross-examination, workman
says he was not authorized by any-body for doing clerical
work. For post of Asstt.Grade- III, educational qualification
of Higher Secondary Examination. For post of clerk Grade-
III, minimum 3 years experience in SECL, passing
departmental examination is required. That he had not
appeared in departmental examination and not passed
Higher Secondary Exam. In his further cross-examination,
he says that he was working under Mines Suptd. Mr.
Gumasta and S.K.Gupta. He was not working under any
plan. At the time of his evidence, he was working as loading
mate. He was unable to tell when cadre scheme was
introduced. That loading mate is daily wager post. Loading
clerk is monthly retd. post.
8.
Management filed affidavit of witness Shri
N.K.Sattigeri. Witness of management says Shiv Bhagat
was appointed on 15-5-56 in Category-I as daily wager in
Banki colliery. He was working as General Mazdoor
Category-III on daily wages, he had rendered his
resignation on 5-2-72. On appeal submitted by workman,
he was allowed re-employment. His service period was
extended for 3 months time to time. Workman was
transferred to Dhelwadih Project on 18-10-98. Workman
was granted SLU benefit Category –IV on daily wages
designated as loading mate. The service conditions of
employees in coal industry are governed by NCWA.
Workman was never appointed as Assistant Loading clerk.
He was not asked to work as loading clerk. Cadre scheme
of ministerial staff post are classified as General Clerical
cadre, Store Personnel Cadre, Loading Dispatch and Sales
cadre, Cash Personnel Cadre, Accounts Cadre and
Secretariat Cadre. The evidence of management’s witness
remains unchallenged. The witness of management was
not cross-examined.
9.
Considering evidence of workman that not passed
matriculation or departmental examination, cadre scheme
is produced document Exhibit M-1. For post of clerk Grade-
III minimum qualification is matriculation or equivalent
from recognized board with 3 years service. Workman
donot fulfill requirement of his appointment. Therefore
action of denial of promotion to workman cannot be said
illegal. For above reasons, I record my finding in Point
No.1 in Affirmative.
10.
In the result, award is passed as under:-
(1)
The action of the management of SECL, Dhelwadih
Project (Banki Group) Distt. Bilaspur in not
regularizing the worker Shri Shiv Bhagat S/o Uchit,
Loading Mate Cat-IV as Loading Clerk Grade-III is
proper and legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2536-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 174@1999)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@191@1998&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2536.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.174/99)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of WCL and their workmen,
received by the Central Government on 12/09/2014.
[No. L-22012/191/1998-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/174/99
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Ram Kishan Pal,
Ex. S.S. Attendant,
Nandan Mine No.2, Behind Gram Panc
P.O. Damua, Distt. Chhindwara
Chhindwara
.....Workman
6412
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Versus
Manager,
Nandan Mine No. 2 of WCL,
P.O. Damua,
Distt. Chhindwara
Chhindwara (MP)
.....Management
AWARD
Passed on this 27th day of August, 2014
1.
As per letter dated 24-4-99 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal
under Section 10 of I.D. Act, 1947 as per Notification
No. L-22012/191/98/IR(CM-II). The dispute under
reference relates to:
“Whether the action of the management of Nandan
Mine No. 2 of M/s. WCL, Distt. Chhindwara in
dismissing the services of Shri Ram Kishan Pal
S/o Shri Darshan Pal S.S. Attendant w.e.f. 15-12-97
is justified? If not, to what relief the workman is
entitled?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 4 to 9. Case of Ist party is that service conditions
of the workman of WCL are governed under provisions of
NCWA. Charge-sheet was issued to workman on 6-10-97
alleging his absence from duty without sanctioned leave,
without reasonable cost for more than 10 days.
Management alleged misconduct under clause 26:24 of
the standing orders related to habitual late attendance,
habitual absence from duty without sufficient cause.
Clause 26:30 of standing orders relate to absence from
duty without sanctioned leave. That the allegation of
habitual absence from duty have not been framed in the
chargesheet as per clause 26.24 of standing orders. That
workman replied to chargesheet denying charges against
him. The Manager having rigid view and implicated him
falsely. Enquiry officer S.S.Soda was appointed. Enquiry
officer is the Asstt. Manager of Nandan Mine No.2 and
was controlling Authority of the workman.
3.
Workman further submits that he attended duty on
19-7-97. His attendance was marked. However one Fitter
Shri Ganga cought him and pushed into the rest room of
the overman. He threatened him and abused in filthy
language. One shri Dinaker Pathak also threatened to the
applicant workman and asked him why he had come on
duty. Workman was threatened to be killed, he filed
complaint to the Manager for securing his safety.
Management did not care of his complaint. It is further
alleged that Gangaram, Hassan Gul Mohammad and
Dinaker Pathak has gone to his house with iron rod and
stick to attempt upon him but his neighbours and his family
members saved him. Workman had filed complaint to JMX
under Section 420/467 of IPC. Workman has further alleged
that enquiry was not properly conducted. Documents were
not produced about his absence. Enquiry conducted
against him was not fair. The witnesses were not allowed
to be cross-examined. He was not issued show cause notice.
Report of enquiry was not received by him. Enquiry is
vitiated. Workman submitted appeal on 26-12-97 as per
Clause 30 of the certified standing order. His appeal was
turned down by Appellate Authority in breach of natural
justice. That management had not adduced any document
in Enquiry Proceedings. Any material evidence was not
produced before Enquiry officer. Said charges against him
were not substantiated by evidence. On such ground
workman submits charges against him are not proved. The
order of dismissal imposed against him is illegal. Workman
prays for his reinstatement.
4.
IInd party filed Written Statement at page 16 to 25.
Relief prayed by workman are denied. It is submitted that
workman was not supposed to be absent without
permission. Workman remained absent without intimation
or sanctioned leave. Workman was continuously absent
without sanctioned leave from 20-7-97 till day of issuing
charge-sheet 6-10-97. Standing orders are applicable. Period
of absence from duty is shown in para-3 of the statement
of claim. The reply submitted by workman was not found
satisfactory. Shri Soda was appointed as Enquiry Officer,
Shri S.N. Rana was appointed as Management’s
Representative. Memo about appointment of Enquiry
Officer was sent to workman on 21-10-97. Enquiry was
held on 21-10-97, 1-11-97. Workman filed application for
adjournment. When enquiry was fixed on 4-11-97, workman
and his co-worker Sunder Das were present on that day.
The charges were explained to the workman. He denied
charges against him. Workman had requested for
production of documents- attendance register etc.
Management’s witnesses were cross-examined by co-
worker. Enquiry conducted against workman is proper and
legal. Workman was habitual absentee. He remained absent
from duty without reasons, without application for leave.
IInd party has referred to ratio held in various cases. All
the contentions of workman about denial of opportunity
have been denied. The charges against workman are
proved from evidence. Considering proved charges of
unauthorized absence, workman was terminated.
Termination of his service is legal. IInd party prays for
award in its favour.
5.
Workman filed rejoinder at page 53 to 55 reiterating
its contentions in statement of claim.
6.
As per order dated 14-6-2012, my predecessor found
enquiry conducted against workman is not legal and valid.
Management was allowed to prove misconduct in Court.
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:-
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6413
(i)
Whether the charges of unautho-
Only charge
rised absence, habitual absence
under clause
alleged under clause 26.24, 26.30
26.30 is
against workman are proved by
proved.
the management of IInd party?
(ii) Whether the punishment of dis-
In Negative
missal imposed against workman
is proper and legal?
(iii) If so, to what relief the workman
As per final
is entitled to?
order
REASONS
7.
Enquiry conducted against workman is found
vitiated by my predecessor. IInd party management has
been permitted to prove misconduct in Court.
Management filed affidavit of evidence of its witness
Shri Sunil Kumar Jain working as Sr. Manager.
Management’s witness in his evidence says that
chargesheet was issued to workman related to continuous
absence from duty without sanctioned leave or sufficient
cause. The domestic enquiry was ordered. Shri Soda was
appointed as Enquiry officer and S.N. Rana as
Management Representative. Workman participated in
enquiry. The findings of enquiry was submitted to
Competent Authority. Punishment was awarded by
competent authority. The evidence of management’s
witness is devoted about chargesheet issued to workman
and enquiry conducted against him, the findings of
Enquiry officer. The management’s witness in his cross-
examination says that he doesnot know workman
personally. He has not issued notice to the workman about
his habitual absence. He was unable to say whether said
register and attendance register are produced before
Enquiry officer Shri Soda. He claims ignorance whether
Ist party workman has filed criminal case against Enquiry
officer before chargesheet issued to workman. Witness
claims ignorance whether notice was issued to workman
before issuing chargesheet about his unauthorised
absence. Thus entire evidence of workman is devoted
about enquiry conducted against workman. His evidence
is absolutely silent about period of absence of workman
from duty, whether the workman had not submitted
application for leave, what was the period of unauthorised
absence of workman. Thus chargesheet issued to
workman document M-1 spells about misconduct alleged
against workman under Clause 26.24- habitual
unauthorized absence from duty without sufficient
reasons. Clause 26.30 absence from duty without
sanctioned leave for more than 10 days. The evidence of
management’s witness is absolutely silent on above
charges. The legal position is shattered that when enquiry
is vitiated, the evidence in Enquiry Proceeding cannot
be considered. The management has to prove misconduct
adducing evidence as promotion was already granted.
8.
Workman has filed affidavit of his evidence
contending that his explanation was not called by
management at any time. That on 11-10-97, workman was
threatened to be killed by Gangaram. He had filed
complaint against Shri Sonwanshi Manager for offence
under Section 420 IPC. Thereafter the Manager issued
chargesheet against him. That he was unable to give
education to his children. In his cross-examination, he
says he received charge Exhibit M-1. He submitted reply
to chargesheet Exhibit M-3. He admit that he was absent
from duty from 27-7-97 to 6-10-97. He had not submitted
application for leave. He sent telegram about his absence.
That in telegram he had not applied for leave. He had
not received communication that his leave was sanctioned
or he shouldnot attend case. He had not produced
documents about criminal case filed against Fitter
Gangaram. He denies that he not submitted report to
police. In cross-examination of workman, he has admitted
his absence from duty, leave application was not
submitted. No copy of telegram sent to office is produced
at Exhibit W-6.
9.
Though management has not adduced evidence
about the charges against workman from evidence in his
cross-examination charge under Clause 26.30 of
unauthorised absence for more than 10 days is established.
The evidence of management’s witness doesnot disclose
absence of workman. Therefore charge about habitual
absence under clause 26.24 cannot be proved and charge
under Clause 26.30 is proved against workman. For above
reasons, I record my finding in Point No.1. charge only
under clause 26.30 is proved, charge under clause 26.24
is not proved.
10.
Point No.2- In view of my finding in Point No.1
that charge under Clause 26.24 is not proved against
workman, question arises whether the workman is
entitled for reinstatement with back wages. Learned
counsel for workman has submitted written notes of
argument and bunch of citations.
In case of Krusnakant B.Parmar versus Union of
India and another reported in 2012(3) Supreme Court
Cases 178, their Lordship held misconduct of
unauthorized absence from duty, willful absence for
sustaining such allegations it must be proved that
unauthorized absence was willful. If the absence is due
to compelling circumstances under which it is not possible
to report for on perform duty such absence cannot be
held to be willful and employee guilty of misconduct.
In present case, workman in his cross-examination
stated that he had sent telegram, application for leave
was not submitted. At the same time management’s
evidence is silent about previous absence of workman.
Therefore charge under Clause 26.30 only proved from
evidence in record.
11.
On the point of illegal termination and back wages,
reliance is placed by learned counsel for workman
Shri R.S.Verma on ratio held in Case of Deepali Gundu
Surwase versus Kranti Junior Adhyapak Mahavidyalaya
6414
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
and others reported in 2013(10)SSC-324. Their Lordship
allowed full back wages on reinstatement on ground that
appellant had not proved factum of non-employment.
The facts of present case are not comparable
therefore ratio in above cited case cannot be applied to
case at hand.
12.
Learned counsel for IInd party Shri A.K. Shashi on
the point of reinstatement, back wages relies on ratio held
in case of J.K. Synthetics Ltd. versus K.P. Agrawal and
another reported in 2007(2) SCC 433. Their Lordship held
in cases of misconduct, reinstatement. Court is not holding
that employer was in wrong or that dismissal was illegal or
invalid. Court is merely exercising its discretion to award a
lesser punishment. Till such power is exercised, the
dismissal is valid and in force. There is no automatic
reinstatement and nor is it automatically retrospective. If
reinstatement is directed, it is a consequential direction
on a finding that punishment is excessive.
In present case, chargeheet was issued to workman
Exhibit M-1 on 6-10-97. As per evidence of workman during
cross-examination sys he was absent from duty from 20-7-
97 till 6-10-97 i.e. about 2 ½ months. Therefore punishment
of dismissal from service for absence of 2 ½ months without
sanctioned leave would not be appropriate.
Shri A.K. Shashi further relied on ratio held in case
of Kendriya Vidyalaya Sangathan and another versus Shri
S.C.Sharma reported in 2005-II-LLJ-153. Their Lordship
held against a concurrent adverse verdict by the Central
Administrative Tribunal and the High Court, appellant
Kendriya Vidyalaya tried in this appeal to justify its action
in terminating the service of the respondent Principal, but
to no avail. The Supreme Court upheld the said verdict. It
observed the appellant had not recorded a finding before
applying Rule 19(ii) of Central Civil Service Rules 1965,
that it was not reasonably practicable to hold the inquiry
proceedings. Such a findings was a basic requirement for
application of Rule 19(ii) in the background of Rule 14 of
the said rules, the Supreme Court observed.
In para-16 of the judgment their Lordship setaside
that part of the impugned order which granted the
respondent back wages. It observed the respondent had
neither pleaded nor placed any material to show that he
was not gainfully employed. It pointed out that the initial
burden was on the employee to prove the above fact. The
Supreme Court added that it had not expressed any opinion
on the merits of the case or on the entitlement of
respondent to service benefits.
In present case, charge under Clause 26.30 about
unauthorized absence for more than 10 days is proved.
The dismissal from service for absence of such period
would not be appropriate. In my considered view,
punishment of withholding two increments of workman
with cumulative effect would be appropriate. The
punishment of dismissal of workman is excessive and
deserves to be quashed. On the point of back wages, the
evidence adduced by parties is not cogent whether
workman was unemployed or he was in gainful employment
after dismissal. Under such facts, reinstatement of
workman with 50 % back wages would be proper.
Accordingly I record my finding in Point No.2.
13.
In the result, award is passed as under:-
(1)
The action of the management of Nandan Mine No.2
of M/S WCL, Distt. Chhindwara in dismissing the
services of Shri Ram Kishan Pal S/o
Shri Darshan Pal S.S. Attendant w.e.f. 15-12-97 is
not proper and legal.
(2)
Order of dismissal of workman is set-aside. For
proved charge of unauthorized absence against
workman under clause 26.30. punishment of
withholding two increments with cumulative effect
is imposed. IInd party is directed to reinstate
workman with 50 % back wages with continuity of
service.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2537-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-bZ-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 194@1998)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@121@1997&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2537.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 194/
98) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 12-09-2014.
[No. L-22012/121/1997-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/194/98
PRESIDING OFFICER : SHRI R.B.PATLE
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6415
Secretary,
M.P. Koyla Mazdoor Sabha (HMS),
Po Haldibadi,
Distt. Surguja (MP)
.....Workman/Union
Versus
Chief General Manager,
Chirimiri Area of SECL,
Post West Chirimiri Colliery,
Distt. Surguja (MP)
.....Management
AWARD
Passed on this 22nd day of August, 2014
1.
As per letter dated 19-8-98 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D.Act, 1947 as per Notification No.
L-22012/121/97/IR(CM-II). The dispute under reference
relates to:
“Whether the action of the Chief General Manager,
Chirimiri area of SECL in not promoting
Shri Goverdhan Sharma, Mining Sirdar, NCPH colliery
to the post of safety-cum-production Asstt. and
superceding him by promoting his juniors is legal
and justified? If not, to what relief the workman is
entitled?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at page 4/1 to 4/7. Case of workman is that he is employed
as Safety-cum-Production Assistant in new Chirimiri Hills
Colliery of SECL. He was initially appointed on 28-12-65.
His service record was excellent. He was promoted as
Mining Sirdar on 26-6-77. His name was at sl.No.44 in
gradation list. That he is Trade Union Activist since date
of his appointment. He was elected as office bearer,
Secretary, Vice President, President of HMS Union. As
office bearer of the Union, he submitted various demands.
He had raised several demands for facilitating the workers.
The management was annoyed with him. He was denied
timely promotions by management because of his Union
activities. It amounts to unfair labour practice.
3.
Workman further submits that during whole career,
he had not received any warnings/CRs. He tired to
cooperate with the management. That service conditions
of employees are covered by NCWA from time to time.
That as per cadre scheme. Next promotion after mining
Sirdar is to the post of Safety Cum Production Assistant.
Required conditions for said promotion are – (i) Mining
Sirdar Certificate of competency issued by DGMS,
(ii) Gas Testing Certificate. That the workman possessed
required qualifications and minimum experience of
10 years as Mining Sirdar. He was denied promotion on
22-12-93 when 13 persons were promoted as Safety-cum-
Production Assistant. He was not considered for
promotion to said post when Pradeep Kumar Saha Junior
to him was promoted. Shri S.V.R.Raju was promoted on
22-12-93. Shri S.V.R.Raju was not having 10 years
experience as Mining Sirdar. It is submitted that because
of his Union activities, workman was denied promotion to
the post of Safety-cum-Production Assistant during 1993,
95. He was given promotion on 21-3-98. Workman claims
promotion to the post of Safety-cum-Production Assistant
from 1993 when his juniors were promoted.
4.
IInd party filed Written Statement at Page 7/1 to 7/9.
IInd party denied claim of workman. Accordingly to the
IInd party, the promotional channels for various categories
are provided. Promotions are based on qualifications,
experience and selection by DPC. The selection of
candidates for filling vacancies in higher categories is
made on recommendation of DPC constituted by
Competent Authority. The final panel prepared by DPC
may be made known to the concerned personas after DPC
has found them suitable. There is cadre scheme for mining
supervisory employees which starts from T&S Grade C.
that workman was initially appointed in 1965. He was
given promotion from time to time. Workman was promoted
as Safety-cum-Production Assistant on 31-3-98 after
recommendation by DPC. Workman was not found
suitable in 1993, 1995 as his CR were adverse. Workman
was found disqualified as his CR was average. The
Committee after assessment of each and every 123
candidates, candidates securing marks 40 and above only
3 candidates were promoted at the time of DPC held on 20-
4-94, 182 mining sirdars who have completed 7 years
service were considered for promotion. Name of workman
was at Sl.No. 35. He could not be promoted. In DPC held
on 1-3-95, workman was considered merit list of Mining
Sirdar of Chirimiri Area for the promotion to the post of
Safety Cum Production Assistant, name of workman was
at Sl. No. 23. The Committee finally recommended panel
for period of one year for promotion to the post of Safety
Cum Production Assistant, out of which 22 candidates
may be promoted and remaining candidates may be kept
in panel for one year. Promotions are given on
recommendation of DPC subject to vacancies. Workman
was promoted on 23-3-98 to the post of Safety-cum-
Production Assistant in Pay Scale 2064-119-4040.
5.
IInd party further submits that workman was issued
charge sheet on 18-6-90. Another charge sheet was issued
to him on 23-3-93. On 14-12-94, punishment of stoppage
of increment was imposed against workman. Workman was
also issued warning letter on 12-5-00. Charge sheet is
issued to workman on 9-11-2000. Showcause notice is
issued to him on 12-12-00, 13-3-01. The service record of
workman is not clean. IInd party submits that
promotions were given as per cadre scheme on
6416
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
recommendation by DPC. Reference be answered in favour
of the management.
6.
Workman has filed rejoinder at Page 8/1 to 8/7
reiterating his contentions in statement of claim.
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 Chief
In Affirmative
General Manager, Chirimiri area
of SECL in not promoting
Shri Goverdhan Sharma, Mining
Sirdar, NCPH colliery to the post
of safety-cum-production Asstt.
and superseding him by promot-
ing his juniors is legal and
justified?
(ii) If not, what relief the workman
Workman is not
is entitled to?”
entitled to any
relief.
REASONS
8.
Present reference pertains to denial of promotion to
the workman to the post of Safety-cum-Production
Assistant in 1993, 95 when his juniors were promoted.
IInd party denied material contentions of workman.
Affidavit of his evidence is filed by workman supporting
his contention in statement of claim that he was initially
appointed on 28-12-1965. He was promoted as Mining
Sirdar on 26-6-77. That he was elected as office bearer,
Vice President and President of HNS Union. In said
capacity he had submitted various demands for
employees. Management was annoyed from him.
Promotions of employees are required to be made as per
cadre scheme. For coal mining staff, the cadre scheme
provides promotion of Mining Sirdar to Safety Cum
Production Assistant. It is necessary that for promotion,
employee should hold mining sirdar certificate of
competency issued by DGMS and Gas Testing Certificate.
That departmental candidates should possess minimum
10 years working experience as Mining Sirdar. That on
22-12-93, 13 Mining Sirdars were promoted.
Shri Pradeep Kumar Saha was junior to him, his name was
at Sl. No. 57 of the Gradation list. On 5-8-85, Shri S.V.R.Raju
was promoted to the post of Short Firer cum Mining
Sirdar. That he has not completed 10 years service
overlooking cadre scheme Raju was promoted on
December 1993. Workman was superseded both the times.
He was promoted in 1998 on recommendation by DPC. In
his cross-examination, workman says that he raised
dispute for Grade B. he knows that for promotion,
recommendation by DPC is necessary. Only seniority is
not basis for promotion. 10 years experience as Mining
Sirdar and Competency Certificate is basis for promotion
to Safety Assistant. On admission by workman circular is
marked as Exhibit M-1. Workman denies that cadre scheme
was not violated by DPC. Documents referred to witness
are marked as Exhibit M-10, 10-a,b,c. workman is admitting
that promotions are required to be made by
recommendation by DPC. Management’s witness T. Samuel
is supporting contentions of management in Written
Statement. That workman was found disqualified as his
CRs are average along with 19 other candidates. That
Committee after assessment of each and every candidate
only 123 candidates has served qualifying 40 marks and
above. Only 3 candidates were to be promoted. Panel of
50 candidates who secured 50 marks is recommended. That
he was working as Sr. personnel Officer during the period
of DPC i.e. 1-3-1995. He was given details why workman
was not selected in 1993, 1995. Workman was selected by
DPC in 1998. In his cross-examination, management’s
witness says that he was member of DPC in 1995. He was
posted at Chirimiri from 1998 to 2003. The report of DPC
dated 1-3-95 is produced at Exhibit M-2(b). Workman was
promoted as per list Exhibit M-2(c). Management’s witness
was not cross-examined. His evidence remained
unchallenged. In evidence discussed above, workman has
admitted promotions as per cadre scheme by
recommendations by DPC. His name was not
recommended in 1993, 95, therefore the allegation of
supersession by workman cannot be accepted. For above
reasons, I record my finding in Point No.1 in Affirmative.
9.
In the result, award is passed as under:-
(1)
The action of the Chief General Manager, Chirimiri
area of SECL in not promoting Shri Goverdhan
Sharma, Mining Sirdar, NCPH colliery to the post of
Safety-cum-Production Asstt. and superseding him
by promoting his juniors is proper and legal.
(2)
Workman is not entitled to any relief prayed by him.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2538-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 262@1997)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@470@1996&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6417
New Delhi, the 12th September, 2014
S.O.
2538.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 262/
1997) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of WCL and their workmen,
received by the Central Government on 12/09/2014.
[No. L-22012/470/1996-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/262/97
PRESIDING OFFICER : SHRI R.B.PATLE
Secretary,
M.P.K.M.S(HMS),
West Chirimiri Colliery,
Post West Chirimiri Colliery,
Distt. Surguja
.....Workman/Union
Versus
Sub Area Manager,
West Chirimiri Colliery of WCL,
Post West Chirimiri Colliery,
Distt. Surguja (MP)
.....Management
AWARD
Passed on this 28th day of August 2014
1.
As per letter dated 29-8/3-9/97 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D.Act, 1947 as per Notification No.L-22012/
470/96-IR(C-II). The dispute under reference relates to:
“Whether the action of the management of West
Chirimiri Colliery of SECL in dismissing Smt.
Lakshminiya Ct-I Mazdoor from services w.e.f. 15/
19-6-96 is legal and justified? If not, to what relief is
the worker entitled and from which date?”
2.
After receiving reference, notices were issued to
the oparties. Workman filed statement of claim at Page 2/1
to 2/3. Case of Ist party workman is that she is widow. She
was working in North Colliery of SECL Chirimiri area. She
couldnot attend service from 1989 to 1992 as she was
mentally disturbed. She was regularly receiving
treatment after death of her husband. That her children
have become dependent on her. She was travelling from
North Chirimiri Collieiry to West Chirimiri Colliery.
Transfer letter was not given to her. She was roaming
place to place. Without any kind of investigation, her
services were terminated. That Mr. S.N.Sen not conducted
proper investigation. Principles of natural justice were not
followed. Order of her termination be quashed.
3.
IInd party filed written Statement. It is submitted by
IInd party that Ist party workman was working as General
Mazdoor Category-I in North Chirimiri Colliery. As per order
dated 9-10-89, she was transferred to west Chirimiri. She
was relieved on 21-8-89. The order was served on her.
Workman reported on duty on 21-8-89. Workman despite
of her transfer did not report to duty. As per records
maintained in West Chirimiri Colliery, she was absent
without intimation or sanctioned leave. Charge-sheet was
issued on 21-3-95 for her unauthorized absence as per
clause 26.30 of standing orders. Enquiry was conducted
against workman by Shri A.M.Sen, Sr. personnel officer,
M.N.Das Sr. manager was the management’s
representative. Enquiry Officer read over charges to
workman. She admitted charges after fully understanding
the same. Documents were produced. Enquiry officer
recorded statements of witnesses. The co-worker did not
cross-examined witnesses of the management. No defence
evidence was adduced by workman. Enquiry was
conducted properly. After considering report of Enquiry
officer, the punishment of dismissal was imposed against
workman. Rest of all contentions of workman are denied
by IInd party. It is reiterated that enquiry conducted against
workman was proper following principles of natural justice.
4.
As per order dated 29-1-2012, enquiry conducted
against workman was found legal. Considering pleadings
on record, the points which arise for my consideration
and determination are as under. My findings are recorded
against each of them for the reasons as below:-
(i)
Whether the charges against
In Affirmative
workman are proved from
evidence in Enquiry proceedings?
(ii) Whether the punishment of
In Affirmative
dismissal imposed against
workman is legal and proper?
(iii) If not, to what relief the work-
Workman is not
man is entitled to?”
entitled to any
relief.
REASONS
5.
As stated above, enquiry conducted against
workman is found proper and legal. From evidence of
management’s witness, documents of enquiry are proved
and marked Exhibit M-1/1 to 1/8. As enquiry conducted
against workman is found legal, the evidence in Enquiry
proceedings needs to be considered for deciding whether
6418
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
the charges against workman are proved. Record of
Enquiry proceedings Page 7 shows that workman
Laxminiya was transferred to West Chirimiri Colliery, she
was relieved on transfer order dated 21-8-89. As per
statement of Shri Vinod Pathak clerk, name of workman
was not recorded in Form B register. As per statement of
Shri Choudhary, any record was not available w.r.t. workman
in West Chirimiri Colliery. Management’s Representative
stated that after workman was relieved on 21-8-99, she
was absent from duties. Thus statement of workman was
recorded at Page 9 of the Enquiry proceedings. Workman
claimed that she was not knowing about order of her
transfer to West Chirimiri Colliery. However in cross-
examination of management’s representative, Ist party
workman says in 1992, when she attended for duty, she
had come to know about her transfer to West Chirimiri
Colliery. Thus the defence of Ist party workman is shattered
in her cross-examination. The evidence in Enquiry
proceedings proves charges of unauthorized absence from
duty. For above reasons, I record my finding in Point No.1
in Affirmative.
6.
Workman is dismissed for proved charges of
unauthorized absence. She was transferred from North
Chirimiri Colliery to West Chirimiri Colliery on 9-10-89. She
remained absent from duty for quite long period. In her
statement of claim, workman has pleaded that she was
mentally upset. She couldnot attend duty after death of
her husband. Such excuses cannot be allowed.
Considering long absence from duties, punishment of
dismissal imposed against workman cannot be said
exorbitant or excessive. Accordingly I record my finding
in Point No. 2.
7.
In the result, award is passed as under:-
(1)
The action of the management of West Chirimiri
Colliery of SECL in dismissing Smt. Lakshminiya
Ct-I Mazdoor from services w.e.f. 15/19-6-96 is legal
and proper.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2539-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-bZ-lh-,y-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 199@1996)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@218@1995&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2539.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 199/1996)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 12/09/2014.
[No. L-22012/218/1995-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/199/96
PRESIDING OFFICER : SHRI R. B. PATLE
General Secretary,
M.P. Koyla Mazdoor Sabha (HMS),
Post South Jhagrakhand Colliery,
Distt. Surguja (MP)
.....Workman/Union
Versus
General Manager,
Hasdeo Area of SECL,
Post South Jhagrakhand Colliery,
(MP)
.....Management
AWARD
Passed on this 26th day of August, 2014
1.
As per letter dated 18-10-96 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D. Act, 1947 as per Notification No.
L-22012/218/95-IR(C-II) The dispute under reference
relates to:
“Whether the action of the management of Hasdeo
Area of SECL in not regularizing the workers engaged
in different jobs of the stores of Hasdeo Area situated
at Bijuri is legal and justified? If not, what relief the
workmen concerned are entitled to?”
2.
After receiving reference, notices were issued to
the parties. Union submitted statement of claim at Page 7
to 23. Case of 1st party workman is that Shri Gaushankar
and 11 others were working in Regional Store of
Hasdeo Area since 1987. Previously it was situated
at North Jhagrakhand Colliery. The Union raised dispute
regarding regularization of their services before
ALC, Shahdol. Vide letter dated 25-5-95, ALC Shahdol
submitted failure report to the Ministry, Govt. of India.
Government declined to make reference. Union filed
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6419
miscellaneous petition before Hon’ble High Court. Hon’ble
High Court quashed order dated 17-4-96 of the Govt. of
India. In pursuance of directions received by Hon’ble High
Court, dispute is referred.
3.
Union further submits that Gaushankar and 11
others shown in the list were working in Central Store of
Hasdeo Area at Bijuri. Previously the centre store was at
North Jhagrakhand. That workers have been engaged
directly by the management and controlling officer of the
store. Their attendance was marked at Store by Competent
Authority personnel of the management of Hasdeo Area.
The job done by these workers was of regular in nature i.e.
permanent and perennial in nature. Union also contents
that besides those 11 workers, other 4 workmen namely
Lallu, Dhanshyam, Uttam Kumar and Dashru also handed
over their applications with affidavit to Union for raising
dispute on their behalf. It is submitted that work of those
persons is part and parcel of the industry, i.e. integral part
of the industry defined under Section 2(j) of I.D.Act. The
relevant provisions are reproduced by Union. That as per
Section 48 of Mines Act and Rule 78, management is
required to mark their attendance in statutory record by
the company. The matter is further verified as per circular
document W-5. That the service conditions of workman
employed in coal mine industry are governed by Central
Coal Wage Board 1967 after nationalization of Coal Mines
in 1973. The wage structure and service conditions are
regulated by NCWA raised between management and
Union Bipartite Committee. That those agreements
accepted by Govt. of India binding on management and
workers. That as per NCWA no contract workers can be
engaged in any coal mines on work of regular permanent
nature. Clause 11.5.0 of NCWA is reproduced.
4.
Union further submits that all workers were
continuously working since 1987. They have completed
240 days attendance during every year. It is submitted
that those workers are in continuous service. Their
attendance-cum-payment sheet has been certified by the
management personnels. The work performed by workers
is of SECL. All materials belong to the management. The
officials of SECL have direct control over their workers.
The workers have worked for profit and business of SECL
and depending for their livelihood on SECL. That nature
of work performed by workmen is similar to the work
performed by the regular workers of SECL in certain stores
and other areas of the collieries. In other areas, similar
work done by regular workers are getting wages of
Category-I. the work done by those workers is similar to
the regular workers. They are entitled to wages of
Category I.
5.
Management has engaged similar type of workers
on previous occasion in Regional Store and stores of
Ramnagar and Jhimar Colliery. After demand of Union,
services of workman were regularized on company roll.
The settlement in Form A is entered between Union and
management have relied. It is alleged that Govt. of India
undertaking SECL which is subsidiary of Coal India Ltd.
indulged in unfair labour practices by denying rightful
wages and other benefits of these workers engaged in
permanent, perennial and regular nature of job. The
management of SECL has adopted discriminatory attitude
engaging those workmen through contractor is illegal,
unjustified against the law laid down by Hon’ble High
Court. That the employment of contract labour is pending
by the Apex Court. The ratio held in AIR 1990 SC-532 is
reproduced. It is further submitted that services of those
workers are terminated during pendency of dispute before
appropriate Govt. without obtaining permission required
by law. That workmen have completed 190 days, 240 days
service are deemed in continuous service as per Section
25 B of I.D.Act. That their services are terminated in
violation of Section 25-F, N of I.D.Act is illegal. That the
work done by those workers is of permanent nature. The
regular employees doing similar work are paid wages of
Cat-I. The Union has reiterated that services of those
workmen are terminated in violation of Section 25-F of
I.D.Act. That those workers have been engaged by
management of SECL only to deny legitimate right and
proper wages. Those workers have been engaged by
management of SECL through intermediary who has no
role over the supervision, financial and administrative
control over the workers, the intermediary so called
contractor is a ghost and smoke screen, the contract is
sham . That the workers are entitled to receive wages of
Cat-I. That the coal industry is not an industry as per
Section 2(j) of I.D.Act. On such ground, Union is praying
for regularization of those workers.
6.
IInd party management filed Written Statement at
Page 59 to 65. IInd party has denied claim for regularization
of those workers. It was not disputed that SECL is Govt.
of India undertaking registered under Company’s Act. It
is submitted that Regional stores Bijuri against various
supply orders, the consignments arrived through rail/road
are unloaded and stored/stacked from time to time for use
for issue. The job of unloading and storing/stacking is
irregular and uncertain depending upon the arrival of
consignments through rail/road. Taking into consideration
of the fact that the work is neither permanent, perennial in
nature, it is not necessary to deploy regular band of workers
for the said job. That IInd party therefore issued work
order in favour of Shri Shubhkaran Bhura by following
the laid down tendering process. Copies of NIT as well as
work order Rate contract so issued Exhibit M-1, M-2 are
referred. That as per Exhibit M-2, it can be observed that
work is classified and rates are prescribed for unloading
and stacking of different stores. That the rate contract/
work order that the contractor has to arrange the unloading
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
and stacking/ storing of the material as and when the rails/
trucks with consignment meant for Regional Stores, Bijuri
is received.
7.
It is submitted that the contractor is not expected to
deploy the workers for executing the work when there is
no stores. Only on receipt of the stores by means of rail/
road there is necessity of unloading and stacking/storing
of materials. Once the stores so arrived through rails/trucks
are unloaded and stored/stacked rate contract work order
is ineffective till arrival of fresh consignment. It is
contemplated under work order, rate contemplated is not
perennial in nature neither there is any scope for Non-
applicant to directly supervise or mark attendance of
worker assigned by contractor. That the Central Govt. had
initially refused to refer the dispute for the above reasons.
It is submitted that the Union may be directed to resort
remedy available to it. That present dispute be decided
only to the extent of reference made by the appropriate
government. The nature of work for which work order
was issued and executed is not prohibited. The definition
of mine provided under Mines Act is not disputed. The
applicability of said provision is contradicted. That the
provisions quoted are applicable only to the employees
directly engaged by management of IInd party. That the
claimants were not directly engaged by management of
IInd party. The provisions of Mines Act referred in
statement of claim is calculated attempt to misguide the
Hon’ble Tribunal. It is reiterated that provisions of Mines
Act and rules thereunder are applicable to the employee
directly engaged by IInd party after following prescribed
rules and regulations. That the claims were not engaged
by IInd party directly or otherwise in any prohibited nature
of job. There is no employer employee relationship. The
provisions of Mines Act are not applicable to the present
matter. That the work which was awarded to contractor
was irregular and uncertain owing to the reason that work
was not permanent or perennial in nature. There was not
question of completing 240 days continuous service by
the workman. That IInd party after awarding work order
did not have control over contract labours. Non-applicant
did not issue the labour contract to the contractor. Once a
work order of the work not prohibited in nature was issued
to the contractor, only contractor alone have control over
the workers. That minimum wages applicable to the workers
were paid. The workers were not directly engaged by IInd
party for performing job of permanent nature. Workers
were engaged through contractor. The settlements referred
by Union in year 1984 & 89 were entered in peculiar
circumstances. It can be treated as precedent. In Regional
Store Bijuri, since the work performed is irregular and
uncertain, the IInd party doesnot require permanent
labours. On such grounds, IInd party prays that reference
be answered in its favour and against the Union.
8.
Ist party Union filed rejoinder reiterating its
contentions in statement of claim at Page 81 to 91. It is
further contented that as per Section 48(4) of Mines Act
Rule 78, management is required to maintain statutory
record about attendance of workers engaged in mine. As
per Section 2(1)(j) of Mines Act, the workers are covered
under Mines Act. That IInd party is not Scheduled
industry. Provisions of MW Act are not applicable to it.
The workers have been engaged for 9 years regularly for
specific job or entitled to notice for termination. Termination
of service without notice amount to retrenchment.
9.
IInd party filed rejoinder at Page 165 to 173 denying
claim for regularization of the employees. That IInd party
has not engaged any permanent employee prohibited by
perennial nature denying all other material contentions
raised in rejoinder.
10.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i)
Whether it is proved that Gauri-
In Affirmative
shankar and 11 other workers
shown in the list along with
reference are workers of IInd
party management of SECL and
the contract about their engage-
ment is sham and bogus?
(ii) Whether the action of the
In Affirmative
management of Hasdeo Area
of SECL in not regularizing
the workers engaged in different
jobs of the stores of Hasdeo Area
situated at Bijuri is legal and
justified?
(iii) If so, to what relief the workman
As per final
is entitled to?”
order.
REASONS
11.
At the time of argument, learned counsel for IInd
party Shri A. K. Shashi submitted that order of reference
relates to the action of the management in not regularizing
the workers engaged in different jobs of the stores of
Hasdeo Area situated at Bijuri is legal and justified. The
reference order doesnot relate to the illegal termination of
those workmen. Therefore said aspect cannot be decided
by the Tribunal. Union Representative Mr. Pandey in his
oral argument and written notes emphasized that the order
of reference is loosely worded. The dispute between
parties needs to be decided considering the pleadings of
respective parties. The parties are in dispute about the
status of those employees whether they are the employees
of Principal Employer i.e. IInd party or employees engaged
through contractor, whether the contract is sham and
bogus.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6421
12.
Learned counsel for IInd party Shri A. K.Shashi on
above point relies on ratio held in
Case of Pottery Mazdoor Panchayat versus Perfect
Pottery Company reported in AIR 1979-SC-1356. Their
Lordship held the jurisdiction of Tribunal in industrial
dispute is limited to the points specifically referred for
its adjudication and to matters incidental thereto and the
Tribunal cannot go beyond the terms of reference. Where
the very terms of references showed that the point in
dispute between the parties was not the fact of closure of
its business by the employers and the references were
limited to the narrow question as to whether the closure
was proper and justified, the Tribunals by the very terms
of the references, had no jurisdiction to go behind the
fact of closure and inquire into the question whether the
business was infact closed down by the management.
On the above point, Union Representative
Shri N. L. Pandey relies on ratio held in :
Case of General Manager, Oil and Natural Gas
Commission, Silchar versus Oil and Natural Gas
Commission Contractual Workers Union reported in
2008(12)SSC-275. Their lordship in Para-18 of his judgment
observed there are several observations which do suggest
that a workman who has put in 240 days or is a contractual
worker, is not entitled automatically to regularization. We,
however, believe that the present case is not one of
regularization simpliciter such as in the case of an ad hoc
or casual employee claiming this privilege. The basic issue
in the present case is the status of the workmen and
whether they were the employees of ONGC or the
contractor and in the event that they were employees of
the former, a claim to be treated on a par with other such
employees. As would be clear from the discussion a little
later, this was the basic issue on which the parties went to
trial, notwithstanding the confusion created by the ill
worded reference. After considering ratio held in various
cases in Para-24 their Lordship observed in our opinion
the Tribunal must, in any event, look to the pleadings of
the parties to findout the exact nature of the dispute
because in most cases the order of reference is so cryptic
that it is impossible to cull out therefrom the various points
about which the parties were at variance leading to the
trouble. In this case, the order of reference was based on
the report of the Conciliation Officer and it was certainly
open to the management to show that the dispute which
had been referred was not an industrial dispute at all so as
to attract jurisdiction under the I.D.Act. But the parties
cannot be allowed to go a stage further and contend that
the foundation of the dispute mentioned in the order of
reference was non-existent and that the true dispute was
something else.
In para-1 of the statement of claim filed by Union, it
is pleaded that Gaushankar and 11 others were working in
Regional Store. Hasdeo since 1987. In Para-2 it is pleaded
that workers have been engaged directly by management
and Controling Officer of the store. Their attendance have
been marked at Store by Competent Statutory Personnel
of the management of Hasdeo Area. In para-6, it is pleaded
that 11.5 of NCWA V provided industry shall not employ
labour through contractor or engage contractor’s labour
on jobs of permanent and perennial nature. In para-14, it is
pleaded that services of those workers have been
terminated during pendency of reference before
appropriate Government without permission in violation
of Section 25-F, N of I.D.Act. In para 14(v) it is pleaded
that workers have been engaged by the management of
SECL through contractors only to deny their legitimate
right and proper wages. All those contentions are denied
by IInd party having knowledge of those pleadings both
parties have adduced evidence. Management has adduced
evidence about workers engaged through contractor.
Documents produced in that regard. Considering ratio held
in 2008(12)SSC-275, the controversy between parties what
was the status of the workers needs to be decided. It cannot
be said that reference is simplicitor for regularization of
workers as appearing in reference order.
13.
My attention was also drawn to provisions under
Section 48 of Mines Act, 1958 which provides for every
mine there shall be a prescribed register of all persons
employed in the mine. Rule 78 is clear that registers
required by Sub-section 4 of Section 48 of persons
employed in mine below ground in open case and above
ground are required to be maintained in Form C, D, E.
14.
The controversy about what was the status of
Gaushankar and 11 others needs to be decided considering
oral and documentary evidence adduced by parties. At
time of argument advanced on behalf of both parties, it
was clear that any licence of contractor is not produced
on record for the period 1987 to 1994. Though the
registration certificate of the establishment of IInd party
were called by Ist party Union, the same have not been
produced.
Section 7 of the Contract Labour (R&A)Act, 1970
provide each principal employer of establishment to which
the act applies etc. make application to the registering
officer in the prescribed manner for registration of
establishment. The commentary of Contract Labour (R&A)
Act, 1970 by Shri Kharbanda 7th Revised Edition 2011 at
Page 284, 285 elaborated the legal position that up to 2-12-
1980, the corporation donot have certificate of registration
which permitted it under the Act to employ contract labour.
On this fact alone, it can be established without going to
the question whether the contractor had a valid licence
that the employment of contract labour was not regularized
as required under the Act. In the circumstances, the
workmen employed by VTC up to 1980 could legitimately
claim that they are the workmen of the corporation. In
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Note-6, legal position is elaborated. The certificate of
registration is required to be obtained by the Principal
Employer, issued by the appropriate Government under
the provisions of Section 7 of the Act. The licence is to be
obtained by the contractor under the provisions of
Section 12 of the Act. The workmen can be employed as
contract labour only through licenced contractors. Unless
both these conditions are complied with, the provisions
of the Contract Labour (R&A) Act 1970 would not be
attracted. Both these conditions are required to be fulfilled,
if one wishes to avail the provisions of the Contract Labour
(R&A) Act 1970 would not be attracted.
On above point, learned counsel for IInd party Shri
A.K. Shashi relies in ratio held in :
Case of General Manager (OSD) Bengal Nagpur
Cotton Mills Rajnandgaon versus Bharat Lal and another
reported in 2011(1) SSC 635. Their Lordship observed that
it is now well settled that if industrial adjudicator finds
that the contract between the principal employer and the
contractor to be a sham, nominal or merely a camouflage
to deny employment benefits to the employee and that
there was infact a direct employment, it can grant relief to
the employee by holding that the workman is the direct
employee of the principal employer. Two of the well
recognized tests to find out whether the contract labourers
are the direct employees of the principal employer are (i)
whether the principal employer pays the salary instead of
the contractor and (ii) whether the Principal Employer
controls and supervises the work of the employee.
Reliance is also placed in case of Air Ports Authority
of India, Mumbai versus Indian Airport Kamgar Union
and others reported in 2011-I-LLJ-211. Their Lordship
dealing with point of sham character of contract held the
award allowing reference and directing contract labourers
to be treated as permanent employee and directing contract
labourers to be treated as permanent employees. Award
held not sustainable as it proceeded on wrong premise
that said labourers workmen under I.D.Act.
The ratio held in above cited case is not helpful to
decide the controversy between parties.
In case of International Airport Authority of India
versus International Air Cargo Workers Union and another
reported in 2009(13) SCC-374 relied by Shri A.K.Shashi.
their Lordship of the Apex Court held whether direction
and control is with the principal employer or with
contractor, has to be determined with reference to factors
like who pays salary, who has power to initiate disciplinary
action, to remove/dismiss employee from service, who can
tell employee the way work should be done etc. However
where contract is merely to supply labour only, contract
labour is bound to work under supervision of principal
employer. In such a situation, primary control still vests
with contractor and not with principal employer.
Keeping above legal position in view, I proceed to
deal with the evidence of parties on record. Copy of
NCWA-IV is produced at time of argument. Clause 11.51,
11.52 prohibits engagement of contract labour on work of
permanent nature.
15.
Union filed affidavit of workers Mohan
S/o Lachchu, Gangaram S/o Sampat, Shri Baliram
S/o Ramvilas, Ram Prasad S/o Khikh Ram, Ramjiyawan
S/o Munna, Ram Prasad S/o Ramdhani, Shyamlal S/o Ram
Prasad, Tulsi S/o Rammit, Daduram S/o Vishali,
Gaurishankar S/o Nankibabu, Kacharu S/o Purushottam
and outsider Shri Narayan S/o Ram Sahay. The affidavit of
evidence of all the above workers are almost identical.
They were working in Central Store from February, 87 to
1996. They were doing work of loading, unloading,
Stacking, cleaning. They were also going by truck to
Koroba, Churcha, Bhalumada, Vishrampur for different
kinds of store work. Regular workers Jaideen, Raja,
Narayan, Bhaiyalal, Patiram, Shiv Prasad working in store
through contract work were regularized. That the
contractor was not holding licence. The establishment of
IInd party was not registered. Those workers were paid
wages bearing Rs.20/-, 25/-, 30/-. The evidence in their
cross-examination needs to be carefully considered. Shri
Mohan in his cross-examination says Shri Shubhkaran
Bhura was disbursing pay to him. Affidavit of his
evidence was prepared by Shri N.L.Pandey. Clerk in
Central Store Bijuri were asking him to go for work to other
places. The contractor Shri Shubhkaran Bhura was not
objecting to it. That Shri Shubhkaran Bhura was coming
to disburse payment to him. Except Shri Shubhkaran Bhura,
no other person was disbursing payment. Shri Shubhkaran
Bhura was not having any Munshi. When truck was not
arrived, he was directed to do other work in the store.
Leave was sanctioned to him by clerks. On instruction of
clerk, he was going on truck to other sub-area. The
documents were prepared after completion of work. He
was unable to tell who has taken his interview. The clerks
had engaged him on work. He had not submitted any
application, his name was not sponsored through
Employment Exchange. Orally Shri Shubhkaran Bhura told
him not to come on work from next day. Even after
termination of his services, he did not ask Bhura why he
was terminated.
16.
Shri Gangaram S/o Sampat in his cross-examination
says that he doesnot understand meaning of work
Registration. That Shri Shubhkaran Bhura had
provided employment to all those 12 workers. Welfare
Officer Khalco was paying wages. They were not taking
any leave. Clerk in store office told him not to come to
work. On that he did not go to Shri Shubhkaran Bhura
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6423
enquiring why his services were terminated. He had
received net payment 1200/-. He completed 240 days
continuous service. Witness Baliram S/o Ramvilas in his
cross-examination denies that Shri Shubhkaran Bhura has
employed him . that Shri Shubhkaran Bhura was preparing
payment sheet. After making payment, his thumb mark
were obtained on it. Photograph on W-11 was handed
over to him by shri N.L.Pandey at Mahendragarh. His
photograph was not attested by any officer. He was
receiving wages Rs.500/- per month. Workman Indrapal
S/o Bullu Singh in his cross-examination says Shri
Shubhkaran Bhura had employed him since 1986. Shri
Shubhkaran Bhura was making payment to all those
workers. He was putting thumb mark on it. He had not
submitted application for employment. He was not
interviewed, appointment letter was not received by him.
Shri Shubhkaran Bhura was obtaining his thumb mark on
payment sheet. Ramprasad in his cross-examination says
that clerk Mr. Mihir had engaged him in work in 1987. He
was not employed by Shri Shubhkaran Bhura, wages were
paid obtaining his thumb mark on payment slip. At the
time of payment Mr. Khalco used to remain present. In
1996, Mihir asked him not to come to work. He claimed
ignorance whether Shri Shubhkaran Bhura was contractor
of the company. That photograph on W-1 was handed
over by him to Mr. Pandey at Mahendragarh. His photo
was not attested. He has not submitted application for
employment. He was not interviewed. His name was not
sponsored through Employment Exchange. Appointment
letter was not given to him. Shri Ramnarayan in his cross-
examination has stated similarly that Shri Shubhkaran
Bhura was obtaining his thumb mark on payment sheet.
Shri Khalko used to remain present. Workman Khalko was
on leave, some other officer was not sitting at time of
payment. Rest of his cross-examination is devoted on same
lines. Ram Prasad in his cross-examination says that he
was employed by Mihir in 1987. All workers were employed
by Mihir. They were not engaged by Shri Shubhkaran
Bhura . Shri Shubhkaran Bhura was making to them. He
claims ignorance whether Shri Shubhkaran Bhura was a
contractor of the company. Mihir Babu told him in 1996
not to come again. His rest of the cross-examination is
devoted on similar lines as other witnesses. Shyamlal
S/o Ram Prasad in his cross-examination claims ignorance
whether Shri Shubhkaran Bhura was contractor of the
company. He is illiterate and gives thumb mark. Payment
was made by Welfare Officer Mr. Khalko. Shri Shubhkaran
Bhura used to be present. After termination of his service,
he did not go Shri Shubhkaran Bhura. Mihir told him not
to come to work. Rest of his cross-examination is on similar
line that of other witnesses. Tulsi S/o Rammit in his cross-
exmination says that he was engaged by Mihir Babu. Shri
Shubhkaran Bhura was making payment and obtaining
thumb mark on payment sheet. Shri Shubhkaran Bhura
had not employed him. He not submitted application for
service. He was not interviewed. His name was not
sponsored through Employment Exchange. Rest of his
cross-examination is on same lines as other witness. Shri
Daduram in his cross-examination says that officers in
store were sitting in the office. He was going to them in
search of work. That his attendance was marked in store
office. There were total 5 godowns in the store. That they
had gone to the store for work. He was not engaged by
Shri Shubhkaran Bhura. The wages were paid by Shri
Shubhkaran Bhura. Mihir Babu told him not to come to
work. He had not submitted any application, appointment
letter was not received by him. Mihir was sanctioning leave
to him. He did not asked Shri Shubhkaran Bhura for
providing employment. Rest of his cross-examination is
devoted on similar lines as other workers.
17.
Gaurishankar S/o Nankibabu in his cross-
examination says he doesnot know about Form B. His
affidavit was prepared by Shri N.L. Pandey. he is not
educated person. He did not enquire from Shri Shubhkaran
Bhura whether he was holding licence. He had no
knowledge about it. He and other workers were putting
thumb mark about their attendance. That Shri Sunil Kumar
had told him not to come to work. He had not submitted
application for employment. He was not interviewed. His
name was not sponsored through Employment Exchange.
Rest of his cross-examination is devoted on similar lines.
Shri Shubhkaran Bhura was taking amount from colliery
and paying wages to them. Shri Daduram in his cross-
examination says that Shri Shubhkaran Bhura was paying
wages to him. He was obtaining his thumb mark on
payment sheet. That they were working in store. Similar
work of loading, unloading was done by regular employee.
Shri Shubhkaran Bhura was not objecting to them working
in stores.
18.
Management adduced evidence of his witness of
Shri I.V.Chawra Asstt. Store Keeper working since 1981 at
Bijuri. He has stated in his affidavit in 1987/92, tenders
were invited to undertake loading and unloading of
materials received through rails/road i.e. Iron & Steel,
A.C.Sheet, Cement ad unserviceable materials. Shri
Shubhkaran Bhura having quoted lowest rate, was awarded
the contract the Regional Stores was in North
Jhagrakhand. Shri Shubhkaran Bhura himself was
supervising the work. When the store was shifted to Bijuri,
Shri Gaurishankar was supervising the work of loading
unloading. It is pertinent to note than dispute relates to
working of all workmen at Bijuri Store. Gaurishankar is
not alleged to be a contractor. This witness further says
that no other work provided in contract was done by the
workmen. These worker were never sent to Korba,
Baikunthpur etc. In his cross-examination, Mr. Chawra
says workers of Shri Shubhkaran Bhura contractor were
about 8 to 10 in number. He recollect name of Shri
Gaurishankr. Shri M.K. Rai was Asstt. Store Keeper. The
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
contractor was giving instructions of duties to the
workmen. He denies that contract workers were reporting
to Chief Store Keeper. In his further cross-examination, he
says that he did not go to home. The contractor’s workers
reported but their work was supervised by contractor. That
entries about coming to work and reporting back was not
taken in register. The contractor was still providing work
to the workers. On completion of work, they were returning
back. The contractor’s labours were going by Truck to
Bisrampur. All contrary suggestions are denied by the
witness that contract workers were not working with
regular workers. Sometimes clerk and workers were going
with contract labours. The charges were paid by contractor.
Contractor himself was supervising payment of wages.
19.
Management’s witness Shri Sunil Kumar in his
affidavit says that Shri Shubhkaran Bhura had submitted
lowest rate. He was called and after negotiation, final rate
was fixed and contract was executed. The contract was
entered with Shri Shubhkaran Bhura in 1987/92. After 2
years, letter M-18 was issued to Shri Shubhkaran Bhura
requesting him to continue contract at same rate. He denied
material suggestions of workman that tender was finalized
after completion of work. In his cross-examination, Shri
Sunil Kumar says no entry was taken of labours going in
stores and returning back. That as per his knowledge, the
work was for period 1990 to 1994. The payment of wages
were supervised by him. It is pertinent to note that any of
the documents about tender, agreement, work orders were
not proved from evidence of this witness. Affidavit of
evidence of Shri H.Khalko is filed by IInd party.
Management’s witness Khalko says that contractor Shri
Shubhkaran Bhura was engaged on contract rate. He was
making payment of wages to his workers. About 6-8
workers were working. Charges were paid as per LPC. He
admits that W-8 bears his signature. Shri Sunil Kumar had
obtained his signature under threats, forced to drink
liquor. In his cross-examination, he says that he was
working form 1986 to 1992 both the stores and workshop
were under control. He was supervising payments by
contractor Shri Shubhkaran Bhura. He used to sign
payment sheets. Whenever payments were made he signed
on the payment sheet. From evidence in cross-examination
of this witness documents Exhibit W-2 to W-6 are exhibited
on his admission.
20.
Exhibit W-1 is register of entries taken of visitors in
mine during the period 1-6-93 to 22-9-94. Exhibit
W-2 are labor payment certificates issued by Welfare
Officer for the period 1-11-93 to 30-6-95. Those documents
donot bear signature of Shri Shubhkaran Bhura, contractor.
Document Exhibit W-3 is register payment of loading/
unloading in the stores shows names of all those workmen.
Exhibit W-4 is register of entries of visitors (outsiders)
names of all those 12 labours are found in it. Reasons
shown in Column-4 to meet Chief Store keeper- time of
arrival is 9AM & departure is 5.30 PM and sometimes
absence of those workers are also marked. Union
Representative Mr. Pandey rightly pointed out my
attention that the entry of arrival and departure shown in
Exhibit W-4, the absence of workman indicates working
in the store. Exhibit W-7 is copy of order passed by Chief
Labour Commissioner in the matter of application filed
by those workers for payment of wages under NCWA.
21.
Learned counsel for management Shri A.K.Shashi
submits that workman claimed wages claiming to be
employees of Principal Employer i.e. IInd party. They
cannot be permitted to plead to the contrary that they
were employed by contractor and the contract was sham
and bogus.The pleadings in statement of claim referred
above, workmen are reiterating that they were employees
of the Principal Employer i.e. IInd party but they were
shown contractors employees. The contract was bogus.
There is no inconsistency in pleadings as argued by
learned counsel for management. I find no substance in
above argument. The pleadings of the workmen are clear
that the contract was sham, bogus. The evidence of the
some of the workmen is not consistent on the point of
engagement and payment of wages. Workers claimed that
wages were paid to them by the stores employees and
some of the workers have stated that wages were paid to
them by Contractor Shri Shubhkaran Bhura and obtained
their thumb mark on paysheet. All workers are illiterate
persons. Their evidence is adduced after lapse of many
years. The evidence of management’s witnesses is not
supported by documents. The evidence of management’s
witnesses cannot be believed as the entries were taken
in Exhibit W-4 in name of the workers and time of arrival
and departure and time of meeting to CSK from the period
1-6-93 to March, 94. The evidence of management’s
witness is contrary to the entries in Exhibit W-4. Document
Exhibit W-5 shows bills submitted for payment during 1-
1-1987 to 31-12-1987. Exhibit W-6 is letter given by Store
Officer for extension of contract period from 1-1-1991 to
31-3-92. The note clearly shows that there was acute
shortage of the workers in the stores. Above evidence
corroborate evidence of workers they working in store.
22.
Learned counsel for management Shri A.K.Shashi
emphasized that in document Exhibit W-2, number of
workers is shown 16 to 17. Labour payment certificate is
issued by Welfare Officer. That the contractor had not
engaged more than 20 labours and therefore the contractor
was not required to obtain licence under Section 12 of
Contract Labour (Regulation and Abolition) Act, 1970. The
note submitted by union Representative Mr. Pandey refers
to evidence of management’s witness Khalko that more
than 25 workers were working with the contractor
Shri Shubhkaran Bhura. The evidence of Union is also
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6425
supported by outsider Shri Narayan. Shri Narayan says
that all those workers were working in Regional Stores
Hasdeo from 1987 to 1996. He was working with them.
That those workers were also going by Truck to Railway
Siding and Korba Area, Bisrampur Area, Churcha as per
requirement. Their number might vary in 5,7,15. They were
going by Truck along with regular employees. The services
of those workers were discontinued from February, 1996.
In his cross-examination, Narayan says prior to 1987, he
was not paid wages by management, contractor was
making payment. That in February 1996, Shri Shubhkaran
Bhura was making payment to regular employees. Separate
register for regular employees was maintained. Shri
Shubhkaran Bhura also supported claim of Union filing
affidavit of his evidence that all those workers were
working in the store from 1987 to 1996. They were also
going to Korba, Churcha by Truck. Their number was
varying form 5 to 15. In his cross-examination, witness
had admitted signature on documents M-5 to M-15 w.r.t.
the tender. The documents about tender, work orders,
payment sheets are not tallying w.r.t. the period of working,
period of tender. The tenders and work orders are
subsequent in time. Document Exhibit M-1 is proforma of
tender notice dated 10-7-87 giving rates for loading,
unloading stacking etc. work. Exhibit M-2 is tender notice
dated 20-1-91. However the bills W-5 , work order are
subsequent in time. Thus oral evidence of management’s
witnesses is not corroborated with the documentary
evidence. The evidence of management’s witnesses is
silent how the work was done by contractor without there
being agreement, work order at the relevant time. To
conclude the evidence of workman who are illiterate person
is corroborated by outsider Narayan, contractor Shri
Shubhkaran Bhura and evidence on record. therefore the
evidence of witnesses of the Union cannot be discarded.
Contractor Shri Shubhkaran Bhura in his cross-examination
says he was nominal contractor. All the labours were
working under instruction of the officers. His evidence on
above point is not shattered in his cross-examination. In
his cross-examination, in Para-13, he has reaffirmed that
he was receiving 5 % commission. Its bill was separately
prepared. The witness has admitted his signatures on the
documents. The evidence shows that tender of Shri
S.N.Agrawal and Jain were submitted with him in 1992-
Exhibit M-12 & 13. The evidence is silent whether tender
by any person were submitted in 1987. There was
absolutely no contractor on record from January, 1987 to
July, 1987 and after 1994 to February, 1996.
23.
The registration certificate is not produced by IInd
party. Union Representative Shri Pandey submitted that
adverse inference be drawn. In support of his submissions,
reliance is placed in ratio held in case of Bharat Heavy
Electricals Ltd. Versus State of UP reported in 2003(6)SCC-
528. Their Lordship with reference to Section 114 Clause
III(g) Evidence Act held failure to produce records alleging
that they were not available, adverse inference were rightly
drawn. Shri A.K.Shashi for management on the point relies
on ratio held in
Case of Surendra Nagar District Panchayat versus
Dahyabhai Amarsingh reported in 2005(8) Supreme
Court Cases 750. Their Lordship dealing with Section
25-F, 25 B of I.D.Act held adverse inference may be
withdrawn by Court. Workman claiming to have been in
employment for 10 years with employer, employer not
producing record for 10 years courts below drawing
adverse inference against it and reinstating workman.
Scope of enquiry before Labour Court was confined to
only twelve months preceding the date of termination to
decide question of continuation of service.
The facts of present case are not comparable. The
adverse inference w.r.t. non-production of registration
certificate is involved in present case and not relating to
the continuous working. Therefore the ratio in above cited
case cannot be applied to case at hand.
24.
The evidence on record shows that from Bijuri
store, materials were supplied to 5 mines in the near by
area. The work was continuously carried. As per the
chart submitted by Union. Working days of workers are
more than 240 days during all the years. It shows that
the work carried in the workshop was of permanent and
regular nature. The work in the workshop supplying
materials cement, cement sheets, steel articles appears
integral part of the establishment of IInd party. The
evidence discussed above clearly demonstrate that the
contractor shown in the matter was nominal. Infact no
contract executed by Shubhkaran Bhura is produced on
record, only signatures on documents, tenders, labour
payment clearance are produced Exhibit M-1 to M-15.
Therefore it is sufficiently proved that all those workmen
were employees of the Principal employer i.e. IInd party
and contract was camouflage. For above reasons, I record
my finding in Point No.1 in Affirmative.
25.
Point No.2- In view of my finding in Point No.1
Gaurishankar and 11 others are held workmen of IInd
party and contract is found camouflage, the question
arises for decision as to whether all those workmen are
entitled for regularization. The argument were advanced
by learned counsel for IInd party Shri A.K. Shashi that the
services of workmen were terminated. Said point is not
covered under terms of reference. As the workmen are not
in employment, relief of reinstatement cannot be allowed.
In reply, Union Representative Shri Pandey submits that
as per Section 10(4) of I.D.Act, the matters incidental to
reference is also required to be decided by the Tribunal.
Powers of the Tribunal are wide. Reliance is placed on
ratio held in case of Delhi Cloth and General Mills Co. Ltd.
and their workmen. Their Lordship held Tribunal might in
any event look to findout the exact nature of the dispute
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
because in most cases the order of reference is so cryptic
that it is impossible to cull out therefrom the various points
abut which the parties were at variance leading to the
trouble. Therefore the incidental question involved can
be decided by the Tribunal. Learned counsel for IInd party
Shri A.K. Shashi submits that workmen were not appointed
following recruitment process submitting application,
facing interview, appointment letters were not given to
them. The witnesses of Union - most of the workers have
deposed in their evidence that they have not submitted
application for appointment, they were not interviewed,
their names were not sponsored through employment
exchange. Mr. Pandey Union Representative on the point
submits that when the contract is found camouflage
workers become employee of Principal Employer as per
Ratio held in Steel Authority of India Ltd reported in 2001(7)
SCC-1, workers are entitled for reinstatement. My attention
is point out to Para-125 of the judgment. Their Lordship
have given abstracts of the discussions. In sub-para-5,
their Lordship observed on issuance of prohibition
notification under Section 10(1) of CLRA Act prohibiting
employment of contrct labour or otherwise, in an industrial
dispute brought before it by any contract labour in regard
to conditions of service, the industrial adjudicator will
have to consider the question whether the contractor has
been interposed either on the ground of having undertaken
to produce any given result for the establishment or for
supply of contract labor 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 thereunder. If the
contract is found to be not genuine but a mere camouflage,
the so called contract labour will have to be treated s
employees of the principal employer who shall be directed
to regularize the services of the contract labour in the
establishment. In the light of Para-6, their Lordship
observed if the contract is found to be genuine ad
prohibition notification under Section 10(1) of 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 given
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 conditions as to
academic qualifications other than technical qualifications.
26.
Learned counsel for IInd party Mr. Shashi further
submits that workmen were not engaged following
recruitment process. They are not entitled for
regularization. In support of his argument, learned counsel
relies in case of
Secretary, State of Karnataka and others versus
Umadevi and others reported in AIR 2006-SC-1806,their
Lordship dealing with public employment appointment
dehors due process of selection envisaged by
constitutional scheme confers no righit on appointee. It
is further held that regularization of daily wager appointed
in violation of constitutional scheme. Right of court/
executive would not extend to directing regularization to
be treated as permanence in service. The fact that employee
has continued for long, irrespective. That apart, principle
of equal pay for equal work cannot also be applied for
giving relief of permanency . Doctrine of legitimate
expectation cannot be invoked by such employees merely
because in past State had regularized similarly placed
employees.
Above judgment is of the year 2006. Shri Pandey on
the point further pointed out my attention on subsequent
ratio held in
Case of General Manager, Oil and natural Gas
Commission, Silchar vrs Oil and Natural Gas Commission
Contractual workers Union reported in 2008(12)SCC-275.
In para-6, their Lordship w.r.t. the judgment of Umadevi
we find that often Umadevi case is being applied by Courts
mechanically as if it were a Euclid’s formula without seeing
the facts of a particular case. As observed by this Court in
Bhavnagar University case and Bharat petroleum
Corporation Ltd. case, a little difference in facts or even
one additional fact may make a lot of difference in the
precedential value of a decision. Hence in our opinion,
Umadevi case cannot be applied mechanically without
seeing the facts of a particular case as a little difference in
facts can make Umadevi case inapplicable to the facts of
that case.
In para-21, their Lordship observed it has also been
observed that ONGC had admitted that since 1988, there
was no licensed contractor and that the wages were being
paid through one of the leaders of the Union and one
such contractor, Manik has been named. The Tribunal
then opined that it appeared from the record that Manik
himself was a workman and not a contractor as he too was
shown in the acquintance roll to have received wages. We
find that the real issue was as to the status of the workmen
as employees of ONGC or of the contractor, and it having
been found that the workmen were the employees of ONGC
they would ipso facto be entitled to all benefits available
in that capacity, and the issue of regularisation would,
therefore, pale into insignificance. We find that in this
situation, the Industrial Tribunhal and the Division Bench
of the High Court were justified in lifting the veil in order
to determine as to the nature of employment in the light of
the judgments quoted above. We therefore find that the
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6427
ratio of the judgment in Umadevi case would not be
applicable and that the facts of the Pandey case are on the
contrary more akin to the facts of the present one.
The evidence of Shri Shubhkaran Bhura is clear that
he was a nominal contractor. In his cross-examination he
says he received 5 % commission. His evidence on those
nominal points is not challenged in his cross-examination.
When contract was camouflage as per ratio held in above
cited case, the workers are entitled to all benefits as
employees of IInd party.
27.
Shri Pandey further submits that workmen were
terminated during pendency of reference proceeding
before appropriate Government without taking permission
under Section 33(2)(B) of I.D. Act. consequently the order
of termination is void and employee is continued to be in
service. In support of above argument, ratio is placed in
Case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd
versus Ram Gopal Sharma and others reported in 2002(2)
Supreme Court Cases 244. Their Lordship dealing with
Section 33(2)(b) of I.D.Act proviso held non-approval of
the order of discharge or dismissal. In such circumstances,
employee continues to be in service as if the order of
discharge/dismissal was never passed. Their Lordship
further held that requirement of Section 33(2)(b) of I.D.
Act are mandatory. Failure to make application for approval
of the order of discharge or dismissal or withdrawal of
such application after maiking it renders the order of
discharge or dismissal void and inoperative.
On above point, reliance is also placed in case of
Cholan Roadways Ltd. Versus G.Thirugnanasambandam
reported in 2005(3) Supreme Court Cases 241. Their
Lordship held Section 33(2)(b) is limited and cannot be
equated with that under Section 10. While considering
grant of approval under Section 33(2)(b), Tribunal is
required to see whether a prima facie case has been made
out as regards validity of the domestic enquiry, keeping in
view that the dismissal would be liable to challenge in
terms of the Act.
In present case, Written Statement or evidence of
management’s witnesses is silent about the mode and
manner the services of workmen were terminated, any
chargesheet was not issued, enquiry was not conducted.
Therefore the ratio held in the case has no direct bearing
on controversy between the parties.
28.
Shri A.K.Shashi has produced copies of award
passed by this Tribunal in R/197/98 for persuasive
purpose. Para-26 of the award makes it clear that in said
case, evidence on record shows that all claimants were
engaged by the contractor as such appointment authority,
wages were paid by the contractor, services were
discontinued by the contractor. Thus the evidence on
record cannot establish that the agreement with contractor
was mere camouflage. Therefore the award pointed out
cannot be relied for persuing purpose.
29.
Union Representative Mr. Pandey also produced
copy of award passed by this Tribunal in R/235/90
allowing claim of workman for regularistaion. Each of
the matter needs to be decided on evidence adduced by
parties. The evidence adduced by Union is clear that the
contractor was nominal as such camouflage. As per ratio
held in Oil and Natural Gas Commission case, the
employees are entitled to all the benefits as employees of
Principal Employer. The ratio held in Umadevi case
cannot be applied mechanically as discussed above.
30.
Shri A.K.Shashi relies on ratio held in
Case of Indian Drugs and Pharmaceuticals Ltd.
Versus workmen, Indian Drugs and Pharmaceuticals Ltd
reported in 2007(1) SCC 408, their Lordship held
regularisation cannot be mode of appointment. Rules of
recruitment cannot be relaxed and the Court tribunal
cannot direct appointment dehors rules. Their Lordship
held regularisation can only be done in accordance with
the rules and not dehors the rules. Their Lordship dealing
with Article 16,14 & 309 of the constitution held creation
of the post, appointment to the posts, regularisation, fixing
of pay scales, continuation in service, promotions etc.
financial and economic considerations. Permissibility of
state to take them into account. Impermissibility of
interference by court on basis of compassion. Held court
cannot impose on state a financial burden by insisting
on regularisation or permanence in employment, when
those employed temporarily are not needed permanently
or regularly.
The ratio held in General Manager, Oil and Natural
Gas Commission 2008(12)SCC 275 is subsequent in time
and the ratio held in said case is clear that if contract is
found camouflage, the workmen are found entitled to the
benefits of employee of Principle employer. Therefore
the claim of workman for regularisation is covered under
ratio held in said case. Employees were working since
1987 till 1996 showing them as contract labour.
Shri A.K.Shashi also relies in ratio held in case of
Post Master General Kolkata and others versus Tutu Das
reported in 2007-III-LLJ-163. Their Lordship dealing
with article 309 of constitution held completion of 240
days service not relevant for regularisation. Daily rated
substitute ELA claiming regularisation on basis of certain
circular. Shri A.K.shashi further submits that as services
of workmen are terminated in violation of Section 25-F
workman cannot be regularised rather compensation
would meet the ends of justice. In support of above
argument, reliance is placed in ratio held in case of
Assistant Engineer, Rajasthan development corporation
and another versus Gitam Singh reported in 2013(5) SSC
136. Their Lordship dealing with termination in
contravention of Section 25-F, directed payment of
compensation of Rs.50,000/- in above cited case. There
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
was no question of contract labour and the contract was
camouflage. Therefore the ratio held in above cited case
cannot be applied to the case at hand. As discussed above,
claim of workman for regularisation is covered by ratio
held in 2008(1) SCC-275.
31.
Reliance is placed by shri Pandey in ratio held in
case of Harinandan Prasad and another versus
management of FCI and another reported in 2014-II-LLJ-
54. The ratio cannot be applied to present case as the
benefit of the circular dated 6-5-97 was denied to the
workman in above cited case. In present case, no such
benefit of any circular is involved. As discussed earlier,
the copy of NCWA-IV made available.
Clause 11.5.1 provides Industry shall not employ
labour through contractor or engage contractor’s labor
on jobs of permanent and perennial nature.
Clause 11.5.2 provides jobs of permanent and
perennial nature, which are at present being done
departmentally will continue to be done by regular
employees.
IInd party has violated above clause of NCWA-IV.
The services of all workmen are terminated in violation of
Section 33(2)(b) therefore termination of workmen is in
violation and the workmen are deemed continued in
employment of IInd party. The evidence of workers is not
clear after termination of their service, how they are
surviving. No evidence is also adduced by management
about those surviving workers are in gainful employment.
No argument are also advanced on the point of back wages.
To be fair and judicious, workmen cannot be allowed full
back wages without working. In my considered view,
reinstatement of surviving workers deserves to be allowed
with 50 % back wages. For above reasons all the surviving
workmen are entitled for regularization of their services
with 50 % back wages and employees who died during
pendency and the employees who attained age of
superannuation will be entitled to the benefit of
regularization of service till the date of death/
superannuation. Accordingly I record my finding in Point
No.2.
32.
In the result, award is passed as under:-
(1)
Action of the management in not regularizing
workers engaged in different jobs of stores of
Hasdeo Area at Bijuri is illegal.
(2)
IInd party is directed to regularize services of
surviving employees shown in list annexed with
reference with 50 % back wages and continuity of
service.
(3)
Deceased workman Shri Mohan S/o Lachchu, Lallu
S/o Babulal and Dasharu S/o Narottam shall be
deemed in service till their death and their legal heirs
be paid 50 % wages.
(4)
Workmen attaining age of superannuation shall be
deemed in service and 50 % wages be paid to them
till date of their superannuation.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
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dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w-lh-,y-
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vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 214@1997)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 12&09&2014 dks
izkIr gqvk FkkA
¹la- ,y&22012@293@1996&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 12th September, 2014
S.O.
2540.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 214/
1997) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of WCL and their workmen,
received by the Central Government on 12/09/2014.
[No. L-22012/293/1996-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/214/97
PRESIDING OFFICER : SHRI R.B.PATLE
General Secretary,
Pench Kanhan Koyla Khadan Karmchari Sangh,
Post Damua,
Distt. Chhindwara (MP)
....Workman/Union
Versus
Manager, Ghodawari Colliery of WCL,
Post Ghodawari
Distt Chhindwara (MP)
....Management
AWARD
Passed on this 22nd day of August 2014
1.
As per letter dated 22-7-97 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
293/96-IR(C-II). The dispute under reference relates to:
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6429
“Whether the action of the management of
Ghorawari colliery of WCL, Kanhan Area in
demoting Shri Hemu Prasad Sharma from the post of
SDL Operator, Cat VI to Haulage Khalasi,
Cat-III w.e.f. 1-12-93 is legal and justified? If not, to
what relief the workman is entitled and from which
date?”
2.
After receiving reference, notices were issued to
the parties. Ist party Union filed statement of claim at Page
7 to 15. Case of Union is workman was appointed as tub
loader in Ghorawari colliery of WCL. His grade was
changed from tub loader DPR in job of General Mazdoor
Category-I. that charge No. 434/93 was issued to workman
on 5-5-93 implicating falsely. The allegation was that
workman has beaten and abused Safety Officer. He has
also threatened to kill him. The place and location of
incident was not disclosed. Workman had suffered
prejudice. Workman was not supplied copy of report during
enquiry proceedings. Workman was not given reasonable
opportunity to prove his innocence. The statements of
Shri M.K.Joshi and Hirday Singh, Rafique were relied. Its
copies were not supplied to workman for effective cross-
examination of respective witnesses. Enquiry Officer was
biased. Shri A.K.Singh Enquiry Officer was accompanying
Shri M.K.Joshi Safety Officer on back seat of his scooter
at the time of occurrence of incident. The incident occurred
on public road near labour colony. Workman was injured.
It is submitted that witness cannot be judge in the matter.
Shri A.K.Singh Personal Manager with M.K.Joshi Safety
Officer have falsely implicated workman. FIR was also
lodged to the police station, Damua. Enquiry Officer Shri
A.K.Singh was also Dy.Personal Manager. He threatened
workman if he report to police, he would be dismissed.
That quarrel occurred between workman outside working
hours far away from work spot was a private matter. It is
not covered under Model Standing Orders. That witnesses
including Shri M.K.Joshi Safety officer admitted in his
statement that he reported to police regarding incident.
Enquiry Officer denied to supply said report for cross-
examination. It is submitted that enquiry is not conducted
properly. Principles of natural justice were not followed.
On such ground, reinstatement of workman Hemu Prasad
Sharma with back wages is prayed.
3.
IInd party management filed Written Statement at
Page 21 to 27. IInd party submits that chargesheet was
issued to workman on 5-5-93. The allegation were that the
workman has beaten and abused Shri M.K.Joshi,
Safety Officer and also threaten to kill him at about 5.15
PM on 4-5-93. Shri Anil Singh was appointed as Enquiry
Officer and Shri M.Khan was appointed as representative
of Management. The workman admitted charge in
presence of co-worker. The witnesses of management
were examined and cross-examined by co-worker.
Considering report of Enquiry Officer, leniency was
shown. Workman was demoted vide order dated 27-11-93.
It is submitted that serious misconduct committed by
workman assaulting Sr. Officer threatening him to kill is
proved. Punishment imposed against workman is proper.
Reference be answered in favour of management.
4.
Workman submitted rejoinder at Page 29 to 33
reiterating his contentions in Statement of claim.
5.
Management submitted rejoinder at page 41 to 47
reiterating his contentions in Written Statement.
6.
My learned predecessor vide order 4-12-12 held
enquiry conducted against workman as illegal.
Management was permitted to prove misconduct in Court.
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 alleged incident
In Negative
occurred outside industrial
premises of IInd party or
management of IInd party was
not competent to issue charge-
sheet?
(ii) Whether the action of the
In Negtive
management demoting workman
Hemu Prasad Sharma from the
post of SDL Operator, Cat VI to
Haulage Khalasi, Cat-III w.e.f.
1-12-93 is legal and justified?
(iii) If not, what relief the workman
As per final
is entitled to?”
order
REASONS
7.
Ist party Union has contented that the incident
occurred on public road. IInd party has no authority to
issue chargesheet. Punishment imposed against workman
is illegal. IInd party had denied those contentions of the
Union. However enquiry conducted against workman is
found vitiated for various reasons. The chargesheet is
produced alongwith list. Chargesheet was issued to
workman alleging misconduct under model standing order
Clause 17-1 (r) giving threats, abuses and assaulting
superior officers by workman. Management’s witness Shri
M.K.Joshi in his evidence has stated that on 4-5-93 around
5.15 PM, when he was going to Ghorawari Colliery HEMM
Garriage, a scooter was passing from Miners colony by
side of Jharna Road. One boy had come from right side of
road. Somebody called him, he changed gear of his scooter
and applied break. Scooter proceeded 5-6 feet distance.
The boy coming running towards his scooter dashed to
the mudguard. That he lost control of his scooter. He felled
down and at that time the workman had rushed towards
him started bearing causing bleading injury at his nose.
One lady had intervened and separated from workman. In
his cross-examination, management’s witness says on day
of incident, workman was at his home. Boy had suffered
6430
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
injury at road and not at mine. Personally he did not know
workman. He claims ignorance whether report was lodged
to police about incident and any case is pending about
such FIR.
8.
As enquiry is vitiated, the evidence in Enquiry
Proceedings cannot be considered. Learned counsel for
workman Shri Yadav submits that the evidence on
affidavit of workman may also be considered while deciding
the matter. Workman in his affidavit of evidence has also
stated that on 4-5-93, he had returned from mine around
4.30 AM while he was changing clothes he heard cries of
his son. He and his wife had come out of his house and
noticed their son lying under wheel of the scooter. Shri
M.K.Singh was standing. That A.K.Singh and Joshi fell
from Scooter. The place of incident is not in dispute. On
the point whether management has authority to conduct
enquiry of incident outside its premises, learned counsel
for IInd party Mr. Shashi relies on ratio held in
Case of Central India coalfields Ltd. Calcutta
versus Ram Bilas Shobnath reported in 1961-I-LLJ-546.
Their Lordship held normally standing orders would apply
to the behaviour on the premises where the workmen
discharge their duties and during the hours of their work.
It may also be conceded that if a quarrel takes place
between workmen outside the working hours and away
from the workspot that would be a private matter which
may not fall within the provisions of such standing order.
But in the special circumstances of the instant case it is
clear that the incident took place in the quarters at a short
distance from the workspot. Hence the action of the
employer in disbursing such workmen must be held proper
and justified. It was further proved that unless the
employer took some action against the concerned
workman, break of peace among the workman was
threatened. The employer could not consider such matter
with complacence.”
9.
On the same point, learned counsel for IInd party
Shri Praveen Yadav relies on ratio held in
Case of M/S Glaxo Laboratories Ltd,. Versus
Presiding Officer, Meerut and others reported in AIR-1984-
SC-505. Their Lordship held where standing orders of an
establishment provided that certain acts would constitute
misconduct if committed within premises of the
establishment or in the vicinity thereof then any
misconduct committed anywhere irrespective of the time
place content where and when it is committed cannot be
comprehended to be the misconduct within the meaning
of the standing orders merely because it has some remote
impact on the peaceful atmosphere in the establishment.
The words committed within premises of the establishment
or in the vicinity thereof are words of limitation and they
must cut down the operation of the standing order. The
misconduct prescribed in a standing order which would
attract a penalty has a casual connection with the place of
work as well as the time at which it is committed which
would be within the establishment and during duty hours.
The casual connection in order to provide linkage between
the alleged act of misconduct and employment must be
real and substantial, immediate and proximate and not
remote or tenuous.
10.
Model Standing Orders for industrial establishment
in coal mines. Misconduct are provided Clause r deals
with threatening, abusing or assaulting any senior or co-
worker. Chargesheet was issued to co-worker under clause
17(1)(r) as per ratio held in M/S Glaxo Laboratories
discussed above. The misconduct prescribed in standing
order would attract penalty as casual connection with place
of work as well as the time at which it is connected would
ordinarily within the establishment and during duty hours.
The evidence of Shri M.K.Joshi is clear that incident
occurred on road near quarter of workman. Said incident
was absolutely not connected with the duties or working
of the establishment of IInd party. The occurrence of
incident was totally private matter. The evidence further
shows that the incident was reported to police.
Considering ratio held in Glaxo case, management was not
competent to issue chargesheet and conduct enquiry as
incident was private matter. For above reasons. I record
my finding in Point No.1 in Negative.
11.
Point No.2- in view of my finding in Point No.1 that
management of IInd party was not competent to issue
chargesheet or conduct enquiry against workman for the
incident outside its establishment. Punishment of
demotion against workman cannot be upheld. For above
reasons, I record my finding in Point No.2 in Negative.
12.
In the result, award is passed as under:-
(1)
The action of the management of Ghorawari colliery
of WCL, Kanhan Area in demoting Shri Hemu Prasad
Sharma is not legal and proper.
(2)
Order of demotion of workman from the post of SDL
Operator, Cat VI to Haulage Khalasi, Cat-III w.e.f. 1-
12-93 is quashed and set-aside. Consequential
benefits be allowed to the workman.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 12 flrEcj] 2014
dk-vk- 2541-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkVZjd dSaVhu
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k ,oa Je U;k;ky;&1 paMhx<+ ds iapkV (lanHkZ la[;k
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dks izkIr gqvk FkkA
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6431
New Delhi, the 12th September, 2014
S.O.
2541.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 83/2013)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 1, Chandigarh now as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of the ARTRAC Canteen and their
workman, which was received by the Central Government
on 11/09/2014.
[No. L-42012/22/2013-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-1,
CHANDIGARH
Case No. ID 83 of 2013
Reference No. L-12012/22/2013-IR (DU)
dated 20-6-2013
Sh. Devki Nand Kalta
S/o Sh. Kewal Ram Kalta.
R/o Village Khalantu,
P.O. Mohri. Tehsil The of
Shimla (Himachal Pradesh)
.....Workman
Versus
1.
The Chairman,
Managing Committee ARTRAC Canteens,
Shimla (Himachal Pradesh)
2.
The Manager ARTRAC Canteen,
Shimla (Himachal Pradesh)
....Respondents
Appearances
For the Workman
: Sh. J.C. Bhardwaj
For the Management
: Sh. Vijay Arora Advocate
Award Dated : 03-09-2014
Government of India Ministry of Labour vide
notification L-42012/22/2013-IR (DU) dated 20-06-2013 has
referred the following dispute to this Tribunal for
adjudication :
Term of Reference :
“Whether the action of the Managing Committee of
ARTRAC Canteen, Shimla in terminating the service
of Sh. Devki Nand Kalra w.e.f. 30-09-2012/08-1-2013
without following the procedure laid down U/s 25-F
of the ID Act. 1947 is just and legal? To what relief
the workman is entitled to and from which date?”
2.
On receipt of the reference notices were issued to
the parties. Workman filed claim statement pleading
therein that he was appointed as salesman on 15-06-2002
and upgraded as storekeeper and posted in Army Training
Centre Canteen. Shimla and remained till he was transferred
from Shimla to Mandi on 15-11-2011 against the policy
and minutes of management committee meeting held on
21-06-2006 wherein chairman agreed that there is no change
in transfer policy of employee and status-quo shall be
maintained. However mutual transfers within the canteens
can be considered at this headquarter. The transfer of the
workman from Shimla to Mandi was made against the
policy when the workman left only three years to retire
which is discriminatory. The workman made representation
for cancellation of his transfer but his representation
neither accepted nor rejected till today. Workman never
made request for any mutual transfer. Aggrieved from the
action of transfer of the workman the workman file O.A.
No. 1266/HP/2011 before Central Administrative Tribunal,
Chandigarh for stay or the transfer. The Hon’ble CAT
passed the interim direction of stay till the next date, The
copy or the order of the CAT was served to Manager
Army Training Canteen, Shimla. The workman remained
going everyday to the office i.e. canteen but manager did
not allow his entry in the premises of the canteen. The
canteen manager adopted the policy of pick and choose
by retaining some or the employees with longer stay and
transferred the workman against the directions of his
superior. Workman filed contempt petition before the CAT.
however the O.A. was dismissed by the CAT on the point
of jurisdiction with the liberty to raise all contentions in
the appropriate court of law. Workman moved Hon’ble
High Court of Himachal Pradesh Shimla by filing CWP No.
4484 of 2012 which was rejected for lack of jurisdiction on
27.9.2012. Therefore, the workman filed the case before
this court. It is further pleaded by the workman that
chairman of the managing committee or Army Training
Canteen issued notice or termination to the workman with
the direction to join duty at a transfer station at Mandi by
22.01.2012 otherwise the services of the workman will stand
terminated.
3.
That after the dismissal or O.A. as withdrawn
the workman filed a writ petition before the Hon’ble
high Court of Himachal Pradesh which was decided
on 27.09.2012 with the observation that the workman
was not holding civil post but he is workman under
the ID Act. 1947 and the concerned Central Industrial
Tribunal will have the jurisdiction to entertain such
matter and writ petition was rejected for lack or
jurisdiction and the workman is free to choose the
appropriate forum which they want to approach.
Workman left with no alternative. went to join
his duties on his transfer place at Mandi on
30.09.2012 and submit his joining report on 1.10.2012
but he was not allowed to join by the manager of the
6432
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
canteen and was told that his services already heen
terminated as per order dated 24.11.2011. It is pleaded by
the workman that he never abandoned his job. He was
fighting for justice under legal remedies but he could not
succeed. The removal of the workman is retrenchment for
all purpose under Section 2(00) of the Act. The
management had not followed any disciplinary proceeding
or conducted any inquiry against workman. Though the
workman has worked more than 240 days in a calendar
year of his service and he was a confirmed employee and
rendered more that 8 year of long service and cannot be
thrown out in any manner as done by the management
without holding any inquiry and the termination of the
workman is violative of fundamental rights under Article
14 and 16 of Constitution of India. The workman filed
demand notice and the present reference is the result of
the demand notice. It is further submitted by the workman
that his work and conduct through out his service were
excellent and his removal from service without any inquiry
is violation of principle of natural justice. The same may
be declared illegal. null and void and the workman may be
directed to be reinstated in service with all service benefits
along with full back wages with costs. seniority and other
consequential benefits. Along with the claim statement
workman also filed documents which included initial
appointment letter. confirmation letter. posting letter,
movement order. request for cancellation of posting from
Shimla to Mandi. representation. minutes of meeting dated
21.06.2006 order dated 30.11.2011 of Central Administrative
Tribunal. Chandigarh. order dated 30.12.2011 of CAT,
nominal role or employees, copy of order of CAT dated
24.05.2012 which is stay for termination of service. Copy
of order of Hon’ble High Court dated 27.09.2012 and copy
of SOP rules and copy of letter dated 8.01.2012. terminating
the services of the workman which are exhibited us Ex. W2
to W14 in evidence.
4.
Management filed reply. Preliminary objection has
been taken that the reference is not maintainable being
false, frivolous. baseless and filed with ulterior motive
and with mala lide intention to cause harassment and
prejudice to the management which is managed by Central
Govt. Department. The objection has also been taken that
the Unit canteen are managed and run by an independent
committee and its office bearers are serving in the
committee in honorary capacity which do not come under
the direct control of Ministry of Defence and it is purely
private venture and at no stretch of imagination the
employees of the Govt. or CSD. The writ petition of the
workman was also disposed off by the Hon’ble High Court
on the ground of jurisdiction. The workman was transferred
as per the transfer policy. The workman never reported to
anyone as on 30.09.2012 it was not a working day of the
canteen being Sunday. The workman have signed on terms
and condition of the service and were bound by
provisions. The workman was transferred for the smooth
functioning of the organization and keeping in view the
work requirement. The service of the workman were
terminated on 8.1.2013 as per the condition mentioned in
the appointrnent letter itself and the management prayed
for the dismissal of the case of the workman. The
management along with reply also file a judgement of the
Hon’ble Hight Court of Kerala in WP No. 16668 of 2012.
The management also filed a certificate annexure 2 and
alleged transfer policy as annexure 3.
5.
The workman filed replication reiterating the claim
made in the claim statement and denying the averment of
the contents in the written statement. In evidence workman
filed his own affidavit. The management filed the affidavit
of Col. R.S. Mehta staff officer canteen managing
committee Shimla. Workman examined and cross-examined
by the learned counsel for the management. The workman
in cross-examination stated that he was given the
appointment letter but he does not remember whether there
was any condition about defying the order. There was a
condition that he may be transferred to any other canteen
situated outside Shimla. It is stated by the workman in
cross-examination that he was transferred from Shimla to
Mandi and served there for three years. There was three/
four more employees who were transferred from Shimla to
other place but none of the transfer employee joined to
their place of transfer. It is further stated by the workman
in cross-examination that on different dates five employees
were transferred outside Shimla but none of them joined
their post. He also stated that he is an old person he did
not try for any other job after his termination and he has
no other source of income and he was getting the pension
from the army only. WW I Shri D.N. Kalta re-examined on
21-08-2014. He stated in re-examination that he has not
Joined ex-serviceman canteen at Mandi after the transfer
order in question.
6.
MW1 witness of the management stated in cross-
examination that both the canteens i.e. ARTRAC and ex-
serviceman canteen are under the control of same
management i.e. headquarter army training centre and these
canteens are not registered under the shop and Commercial
Act and he has not sure about the registration of the
canteen under the above act. He further stated that
canteens are purely private venture and he confirms the
contents of his affidavit in para No. 12 that canteens are
managed by the Central Govt. Department. He also stated
that he was not aware whether there is only post for
storekeeper and that is only available in Shimla. The
minutes of meeting appears to be correct. When the
workman was absent. he was given show cause and
warning. But he do not remember whether any charge
sheet was given to the workman or any inquiry was held
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6433
against the workman. He further submit that the
management followed the procedure as mentioned in SOP
before discharge/termination of workman. He also stated
that he does not remember whether one month pay was
given to the workman before his termination or any
compensation was given to the workman at the time of
termination.
7.
Arguments of the parties have been heard. The first
question for determination is whether the termination of
the workman w.e.f 30.09.2012/08.01.2013 without following
the procedure laid down under Section 25F of the ID Act,
1947 is legal and justified. This question has also been
mentioned in the terms of reference sent by the Central
Government for adjudication. Workman was employed on
15.06.2002. by letter of appointment. He was promoted
and confirmed on the said post vide letter of promotion
(Ex. W3). Workman was transferred from Shimla to Mandi.
Workman did not join at the transferred place at Mandi.
Thereafter the management sent notices to the workman
and for not complying with the orders, service of the
workman were terminated vide orders in question.
8.
So far the rules regarding transfer of employees are
concerned. Ex W6 the document filed by the workman are
the MINUTES OF MANAGEMENT COMMITTEE
MEETING HELD ON 21-06-2006 at headquarter ARTRAC,
Shimla. In Clause “D” under the heading Transfer
Employees is mentioned as follow :—
“Chairman reiterated that there is no change in
transfer policy of employees and status quo to be
maintained. However mutual transfer within canteen
can be considered at this headquarter.”
9.
From the perusal of document Ex. W 13 (Rules
regulating the terms and conditions of services of civilian
employees of Unit Run Canteen paid out of non Public
Fund). in para 22 of this letter. Misconduct has heen
defined. Workman submitted that these rules have not
been certified by any enforcement Government agency
like labour Department. lt is admitted by the witness of the
management MW1 Col. R.S. Mehta in cross examination
that he don’t know whether SOP has been endorced by
enforcement agency like labour department. If the orders
of transfer of the workman is not obeyed. that comes within
the perview of misconduct and for misconduct an inquiry
has to be conducted by the department wherein the proper
procedure was to be followed. Workman also submitted
that after the issue of transfer orders. Workman made two
representations to the management for consideration and
cancellation of his transfer order. The workman further
submitted that these two representations still lying
undisposed by the management.
In NOVARTIS INDIA LlMITFD VERSUS STATE OF
WEST BENGAL. AND OTHER (2009)3 Supreme Court
Cases 124, Hon’ble Supreme Court has held that Non-
joining of service at the transferred place-Dismissal of
such employees from services without holding any
domestic enquiry/disciplinary proceeding-validity of Held.
When an employee does not join at his transferred place.
he commits a misconduct-A disciplinary proceeding was
therefore required to be initiated in such a case-Hence.
the order terminating permanent private servicers of
respondents without conducting any enquiry in the said
matter was void ab initio.
10.
In the present case also workman did not join at
Mandi (the transferred place) and thereby committed an
alleged misconduct. In these circumstances it was
incumbent upon the management to initiate disciplinary
proceedings/departmental inquiry by issuing charge sheet
and appointing inquiry officer which was not done in the
case in hand. Hence the order of termination mentioned
above in the present circumstances is declared as
unjustified and illegal.
11.
As regard the relief is concerned, the workman was
working with the management from the year 2002 till his
termination and was in regular service. His services were
terminated without fallowing the proper procedure and
termination order has been declared unjustified and illegal.
The workman was transferred and he did not join at the
transferred place and after exhausting the legal remedy, it
is the case or the workman that he went to join at Mandi
but he was not allowed by the management to join and he
was informed that his services have already been
terminated. In the circumstances the end of justice would
be met if the workman is allowed 60% of the back wages.
12.
It is pertinent to mention here that the workman was
transferred to Mandi. After exhausting all legal remedies,
as pleaded by the workman in the claim statement as well
in his affidavit. he went to Mandi to join his duty at Mandi
(his transferred place) on 30.9.2012 and submitted his
joining report on 1.10.2012 but he was not allowed to join
his duty by the manager. The transfer order is still valid as
not quashed by any authority. Besides this, the transfer
order is not the subject matter or the terms or reference.
therefore, the workman can be reinstated at Mandi at his
transferred place.
13.
In view of the above discussion the action of the
managing committee of ARTRAC Canteen Shimla in
terminating the services of Shri Devki Nan Kalta w.e.f.
30.9.2012/8.1.2013 is is unjustified and illegal. The
management is directed to reinstate the workman at mandi
canteen within one month from the date of the publication
of the award alongwith 60% of the back wages. The
reference is answered accordingly. Central Govt. be
informed
Chandigarh
3.9.2014
S. P. SINGH, Presiding Officer
6434
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 15 flrEcj] 2014
dk-vk- 2542-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj izlkj Hkkjrh]
vkdk'kok.kh Hkkxyiqj ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds
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ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;&1 /uckn ds iapkV
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¹la- ,y&42012@64@2008&vkbZvkj (Mh;w)º
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New Delhi, the 15th September, 2014
S.O.
2542.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. Ref.
No. 48 of 2008) of the Central Government Industrial
Tribunal-cum-Labour Court No. 1, Dhanbad now as shown
in the Annexure in the Industrial Dispute between the
employers in relation to the management of the Prasar
Bharti Corporation of India, Akashwani, Bhagalpur and
their workman, which was received by the Central
Government on 11/09/2014.
[No. L-42012/64/2008-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD
In the matter of reference U/s 10(1) (D) (2A) of
I.D. Act, 1947
Ref. No. 48 of 2008
Employers in relation to the management of Prasar
Bharti Corp. of India, Akashwani, Bhagalpur
AND
Their workmen
Present : Sri Ranjan Kumar Saran, Presiding Officer
Appearances
For the Employees
: Sri D.K. Sinha
For the Workman
: Sri N.N. Choudhary, Rep.
Stat : Bihar
Industry : Information and
Broadcasting
Dated 25-08-2014
AWARD
By Order No. L-42012/64/2008-IR (DU), dated
14-10-2008, 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 Prasar
Bharti Corporation of India, Akashwani, Bhagalpur
in terminating the services of Shri Kishore Kumar
Singh who was working for longer period and not
regularizing him in service in the post of Production
Assistant, is proper I and justified? To what relief
the concerned workman is entitled to?”
2.
The case is received from the Ministry of labour &
Employment on 20-10-2008. After notice, both parties
appeared. The workman files their written statement on
28-01-2009. Thereafter the management files their
written statement-cum-rejoinder on 21.01.2010.
Rejoinder and document are also filed by the parties. One
witness examined on behalf of the management but two
witness examined on behalf of the workman. Document
marked as Ext. W-1 to W-17 filed by the workman but
M-1 to M-4 marked by the management.
3.
The short point to be decided in the reference is
whether the workman is to be regularized in the post of
production Assistant under the management Prasar
Bharti, Bhagalpur or not.
4.
The management in this written statement submits
that the workman does not work 72 days in any calendar
year unto 31.12.91. Besides that the workman submits
that he is worked with the management as production
Assistant more than 72 days in a calendar year, In this
regard he filed bunch of document which is marked as
W-1 to W-17.
5.
The work certificate issued by Prasar Bharti which
is marked as W-11 & 12, it appears that the workman is
working in the organization as production Assistant
which exceed 72 days in a calendar year in 1994 and
1995 respectively. As he is working in the organization
over 72 days he be regularize in the service, as per the
scheme of prasar Bharti management. To that effect CAT
Patna has also given verdict.
6.
Considering the facts and circumstance of this case,
I hold the action of the management of Prasar Bharti
corporation of India, Akashwani, Bhagalpur in
terminating the services of Shri Kishore Kumar Singh is
not justified. Hence the management is directed to
regularize his within one month from the date of
publication of award in the Gazette of India, either under
him or any Prasar Bharti Kendra.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 15 flrEcj] 2014
dk-vk- 2543-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj izlkj Hkkjrh]
vkdk'kok.kh Hkkxyiqj ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;&1 /uckn ds iapkV
(lanHkZ la[;k 47@2008) izdkf'kr djrh gS tks dsUnzh; ljdkj dks
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¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6435
New Delhi, the 15th September, 2014
S.O.
2543.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. Ref.
No. 47 of 2008) of the Central Government Industrial
Tribunal Cum Labour Court No. 1, Dhanbad now as shown
in the Annexure in the Industrial Dispute between the
employers in relation to the management of the Prasar
Bharti Corporation of India, Akashwani, Bhagalpur and
their workman, which was received by the Central
Government on 11/09/2014.
[No. L-42012/57/2008-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD
In the matter of reference U/s 10(1) (D) (2A) of
I.D. Act, 1947
Ref. No. 47 of 2008
Employers in relation to the management of Prasar
Bharti Corp. of India, Akashwani, Bhagalpur
AND
Their workmen
Present : Sri Ranjan Kumar Saran, Presiding Officer
Appearances
For the Employes
: Sri D.K. Sinha
For the Workman
: Sri N.N. Choudhary, Rep.
State : Bihar
Industry : Information & Broadcasting
Dated : 26-08-2014
AWARD
By Order No. L-42012/57/2008-IR (DU), dated
06-10-2008, 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 Prasar
Bharti Corporation of India, Akashwani, Bhagalpur
in terminating the services of Shri Ashok Kumar Jha
without complying Section 23(F) of the I.D. Act and
not regularizing him in service the post of
Announcer cum-comparer. Is legal and Justified?
To what relief the concerned workman is entitled
to?”
2.
The case is received from the Ministry of Labour &
Employment on 20-10-2008. After notice, both parties
appeared. The workman files their written statement on
28-01-2009. Thereafter the management files their written
statement-cum-rejoinder on 21.01.2010. Rejoinder and
document are also filed by the parties. One witness
examined on behalf of the management but two witness
examined on behalf of the workman. Document marked W-
1 to W-5 by the workman but M-1 to M-7 marked by the
management.
3.
The short point to be decided in the reference is
whether the workman is to be regularized in the post of
Announcer cum comparer under the management Prasar
Bharti, Bhagalpur or not.
4.
From Ext. M-3 the form of order of Prasar Bharti it
appears that CAT Patna Bench, Patna in O.A. No. 112/
2001 directed prasar Bharti to regularize the service of
workman in the post of Announcer cum Comparer.
5.
Since about 11 years, It appears ridiculous that
Prasar Bharti could not get a regular post to regularize the
workman, It appears, there is unfair labour practice. In
stead of regularizing, the management terminated his job.
6.
Considering the facts and circumstance of this case,
I hold the action of the management of Prasar Bharti
Corporation of India, Akashwani, Bhagalpur in terminating
the services of Shri Ashok Kumar Jha without Complying
Section 23(F) of the I.D. Act and not regularizing him in
service to the post of Announcer cum-comparer is not
legal and justified. Hence the management is directed to
implement the order of CAT within one month from the
date of publication of award in the Gazette and to regularize
him as per the dictum of CAT Patna, and this Tribunal, in
any Prasar Bharti Kendra.
This is my award.
R. K. SARAN, Presiding Officer
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New Delhi, the 15th September, 2014
S.O.
2544.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.257/
2004) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
6436
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
dispute between the management of State Bank of India
and their workmen, received by the Central Government
on 05/08/2014.
[No. L-12025/01/2014-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 25th day of June, 2013
INDUSTRIAL DISPUTE L.C. No. 257/2004
Between
Sri T. Saac,
S/o T. Devaiah,
R/o Pramgudipalli Village,
Chinal Irlapudu Post, Kanigiri Mandal,
Prakasam District.
C/o V. R. Aghunath, Advocate,
13/6, P.D. Colony,
Near community Hall,
Dilshukhnagar, Hyderabad -60.
..….Petitioner
AND
1.
The Assistant General Manager,
Region-I, State Bank of India,
Zonal Office, Tirupathi
2.
The Deputy Manager,
State Bank of India,
Zonal Office, Tirupathi.
….Respondents
Appearances:
For the Petitioner
: M/s. V. Raghunath,
G. Venkata Reddy &
U.D. Jai Bhima Rao, Advocates
For the Respondent : M/s. B.G. Ravindra Reddy &
B.V. Chandra Sekhar, Advocates
AWARD
This is the petition filed invoking sec.2A(2) of the
Industrial Disputes Act, 1947 by the Petitioner who has
been working as Assistant, with the state bank of India
whose services were since terminated seeking for setting
aside the impugned order No.DPC/R-1/019 dated 9.10.2003
of the Disciplinary Authority as confirmed by the order
dated 19.4.2004 of the Appellate Authority and to direct
the respondents to reinstate the Petitioner/workman into
service with back wages and all other consequential
benefits from the date of his dismissal from service till
retirement and also to grant relief of seniority and other
grants to which he is entitled to.
2.
The averments made in the petition in brief are as
follows:
Petitioner joined the State Bank of India on 11.7.1985
and was promoted as Assistant in 1993. On 3.7.2001 he
worked at receipts cash counter at Kanigiri branch of the
said bank which falls under small office of Tirupathi A.P..
At about 12.40 hours on that day, he received a phone call
from Chennai that his elder son-in-law expired there. He
informed of it to the Branch Manager and requested him
to make alternative arrangements to relive him from duty
so that he could proceed to Chennai along with his family.
Branch Manager advised him to complete the day’s work
and to go as he was not in a position to make alternative
arrangements. So he completed the work for that day,
tallied the cash and handed over the balance cash to the
head cashier and left the place in hurry. While he was
waiting for boarding bus, to go to Chennai along with his
family at the bus stand a messenger came, in a jeep,
belonging to the bank and informed him that he was
summoned by the Branch Manager. Then, he advised his
family to proceed of the journey and returned to the bank.
The Branch Manager there informed him that there was
shortage of cash of Rs.21000/- transacted by the Petitioner
on that day. Petitioner replied him that he tallied the cash
book and handed over the entire balance to the Head
Cashier and there was no shortage of cash transacted by
him. Then, the Branch Manager asked him for counter
keys so as to check it. He handed over the counter keys.
Branch Manager proceeded with Head Cashier and
accountant and also one Sri K. Brahmaiah, clerk cum
cashier. At the time of opening of counter Petitioner was
kept away from that scene. There after they informed him
that they found Rs.20000/- i.e., two sections of Rs.100/-
denominations in the cash counter and demanded him for
the balance of Rs.1000/-. Sri K. Brahmaiah gave Rs.1000/
- to the Branch Manager. As the Petitioner was kept away
from the scene he was unable to know what happened at
the counter. No panchanama was conducted and no
statements were recorded on that day. A charge memo
dated 5.3.2002 was served on the Petitioner on 13.3.2002.
His allegations that,
1.
Why the Petitioner did not hand over the counter
keys on 3.7.2001 to cash office at the time of leaving
the office.
2.
Petitioner failed to give proper explanation for the
shortage of cash which was allegedly found in the
counter at 10 PM on 3.7.2001 in the presence of the
Branch Manager and custodian? And
3.
Petitioner made good Rs.1000/- when questioned
by the branch officials about cash shortage.
Petitioner denied the truth of all these allegations
by giving his reply Dated 18.3.2002. An enquiry officer
¹Hkkx II—[k.M 3(ii)º
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6437
was appointed under letter dated 21.8.2002. Enquiry was
conducted on 19.11.2002 and 30.12.2002. Enquiry officer
submitted his report on 4.4.2003 to the Disciplinary
Authority. Copy of the same was not supplied to the
Petitioner before passing final order of punishment. The
Disciplinary Authority issued order dated 25.7.2003
proposing punishment of removal from service
mechanically and without application of mind. Petitioner
was given personal hearing on 29.9.2003. Final orders of
punishment 9.10.2002 were served on him. He presented
statutory appeal dated 22.11.2003 to the Appellate
Authority who rejected the same mechanically by order
dated 19.4.2004. The orders of the Disciplinary Authority
is highly arbitrary opposite to principles of natural justice,
equity and fair play. Punishment awarded is shockingly
disproportionate to the alleged misconduct. The enquiry
officer’s report is perverse and not basing on any legal
evidence. It is a cooked up case to make the Petitioner a
scape goat to save the influential officers who are
responsible for shortage of cash. There are conflicting
statements of PWs 1 and 2 as to the persons who were
present at the time of opening of the counter of the
Petitioner on 3.7.2001. Statements of PW1 to 3 were
obtained by the investigating officer after three days after
the incident. Statements of two award staff said to be
present at that time were not at all obtained and they were
not examined as witnesses during enquiry. It is fatal to the
case of the respondents. Only the interested witnesses
i.e., PW1-1 and 2 were produced by the respondent bank.
PWs 2 and 3 were joint custodians of cash charge who are
responsible for accounting the cash in cash sheet, where
an amount of Rs.21000/- was found to be short by the
central office on 3.7.2001 during inspection. As they are
responsible for accounting for the shortage of cash in
cash chart, PWs 2 and 3 can not act as credible witnesses
in the matter. Branch Manager appeared to have tried to
save the image of the branch and to save his co-officers
by finding the Petitioner as an easy scape goat. The
enquiry report given basing on the evidence of such
persons is perverse and invalid. There are interpolation
of figures made conspicuously in the vault register on
3.7.2001 to cover up the lapses on the part of PWs 2 and 3.
The amendment of telegram dated 4.7.2001 which shows
an inflated figure of Rs. 21000/- being the amount found in
the counter drawer of the Petitioner also is an attempt to
cover up the lapse of PWs 2 and 3. PW2 the Head Cashier
was having duplicate key of the counter. He might have
placed the amount of Rs.20000/- in the cash counter after
noticing the shortage by the Central Office. The
Inspecting Manager reported that the shortage of
Rs. 23000/- was made good. But the correspondence
speaks of shortage of Rs. 21000/- only. Bank never
followed the procedure for taking acknowledgement of
the counter cashier while handing over the balance. The
cash said to have been found in the Petitioner’s counter
is not produced before the enquiry officer for verification.
Petitioner served the bank for 26 years with clean record.
Hence, the petition.
3. Respondents filed their counter with averments in
brief as follows:
On 3.7.2001 Petitioner left the bank without
accounting for the cash transactions made by him and
without handing over the entire cash and the keys of the
cash counter. It was noticed by the branch functionaries
that there was shortage of Rs.21000/- and therefore in
the fitness of the things it was decided to search the cash
counter which was under the lock and key of the
Petitioner. Accordingly Petitioner was summoned and
the cash counter was opened with the keys brought by
him and the sum of Rs.20000/- was found in it. Petitioner
was issued with show cause notice/charge sheet dated
5.3.2002 calling upon him as to why disciplinary action
should not be initiated for the irregularities/misconduct
reported to have been committed by him. Petitioner denied
all the allegations thereon regular domestic enquiry was
ordered. The departmental enquiry was conducted in
conformity with the principles of natural justice.
Petitioner was given full and due opportunity to defend
himself. He participated in the enquiry. The enquiry is
legal and valid. The enquiry officer submitted his report
dated 4.4.2003. His findings are based on record and
accepted by the Disciplinary Authority. As per his
findings all the charges were proved accordingly
Disciplinary Authority inflicted the penalty of removal
from service. Petitioner was given personal hearing by
the Disciplinary Authority. He did not make out any
reasonable valid points for consideration. Thus,
Disciplinary Authority confirmed the punishment of
removal from service as already proposed, in previous
memorandum dated 25.7.2003 vide final order dated
9.10.2003. Petitioner made an appeal to the Appellate
Authority/ 2nd respondent after careful examination of
the appeal and all relevant records of the case. Appellate
Authority confirmed the punishment imposed by the
Disciplinary Authority. The allegation that the witnesses
examined during domestic enquiry were all interested
witnesses and that the Petitioner was made scape goat by
the officers are all not correct. Absolutely there is no
reason, necessity or motive to make the Petitioner as scape
goat. The witnesses examined are competent and direct
witnesses to the incident. Their evidence is reliable.
There is no necessity to present the cash found in the
counter in the same form as departmental enquiry is not
a criminal trial. The allegation that award staff was not
produced as witnesses and no credible evidence was not
on record is not correct. Enquiry is legal and findings of
the enquiry officer are based on record. Punishment
imposed is commensurate to the misconduct proved in
the enquiry. There are no merits in this petition. There
are no bonafides in the allegation of the Petitioner. They
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
are all after thoughts invented for the purpose making
over the present case. Respondent is a financial institution
and any financial irregularity is detrimental to the very
existence of the institution. Respondent bank imposes
lots of confidence on its employees while dealing with
financial matters. Petitioner has shattered the confidence
because of his misconduct. Respondent bank is dealing
with public money as custodian of public funds. Any
kind of misconduct by its employees by misappropriation
or fraud shatters the image of the banking institution and
it is highly detrimental to the interest of the organization.
Respondent has lost confidence in the Petitioner and he
is not entitled to any of the reliefs sought for. Petition is
liable to be dismissed.
4.
Along with their respective pleadings both parties
filed their respective documents which are marked with
the consent of counsels. For Petitioner, Ex.W1 to W7
documents viz., copies of charge sheet/show cause notice
dated 5.3.2002, reply of Petitioner dated 18.3.2004, Enquiry
Officer’s report, letter proposing punishment of removal
dated 25.7.2003, final order of punishment dated 9.10.2003,
appeal to Appellate Authority dated 22.11.2003, order of
Appellate Authority dated 19.4.2004 are filed. Whereas
respondents have filed the following documents Ex.M1 to
M14 viz, copies of memo dated 1.11.2001, suspension
order, charge sheet, letters dated 18.3.2002 and 17.2.2003,
four proceedings dated 26.4.2002, proceedings dated
25.7.2003, memorandum dated 9.10.2003 enclosing final
proceedings, appeal dated 22.11.2003, Appellate
Authority’s order dated 19.4.2004 and enquiry proceedings.
All these documents are perused.
5
During the course of the present case proceedings,
petitioner’s counsel filed a memo conceding the validity
of domestic enquiry. Basing on the same this court held
the domestic enquiry in this case as valid by virtue of
order dated 19.1.2009.
6.
Written arguments were also filed by either party
and the same were considered. Heard the arguments of
either party.
7.
The points that arise for determination are:
1.
Whether the impugned order No.DPC/R/-1/019 dated
9.10.2003 of the Disciplinary Authority which was
confirmed by the order dated 19.4.2004 by the
Appellate Authority are liable to be set aside if so
on what grounds?
2.
Whether the Petitioner is entitled for the reliefs
sought for?
8.
Point No(1):
As per the charge sheet the charges levelled against
the Petitioner are as follows:
(a)
While handling the receipts cash counter at the
branch, on 3.7.2001, Petitioner is alleged to have
committed the following irregularities:-
(i)
Petitioner did not hand over the counter keys
on 3.7.2001 to Cash Officer, as was normally
done by him, when he left the branch.
(ii)
Petitioner did not give proper explanation
when he was summoned back to the branch
along with the cashcounter keys at 10.00 pm
on 3.7.2001 and his cash counter drawers
were unlocked in the presence of the Branch
Manager and joint custodians and an amount
of Rs.20,000/-(Rupees Twenty thousand only)
in Rs.100/- denomination of 2 sections was
found in his cash counter.
(iii)
Petitioner made good an amount of Rs.1000
when questioned by the branch officials about
cash shortage.
(b)
It is alleged that Petitioner’s above acts, as
mentioned in paragraph(a), would indicate that he
had deliberately not brought to the notice of the
Cash Officer about the excess cash of Rs.21,000/-
received by him along with hand balance in cash
balance box with an idea to embezzle the excess
cash, so received.
The incident of alleged misconduct has taken place
on 3.7.2001 as per the material on record. As on that date,
Petitioner who has been working as assistant with the
Kanigiri branch of the State Bank of India attended to the
work at receipts cash counter and after completing the
day’s work he tallied the cash and he handed over balance
cash to the Head Cashier and left the bank. As far as these
aspects are concerned they are not in dispute. It is also an
admitted fact by both parties that there after, the Petitioner
was called to the bank by sending a messenger and he
was asked to hand over his counter keys to the Branch
Manager and he handed over the said keys to the Branch
Manager at that time.
9.
No doubt, admittedly, Petitioner has not handed over
his counter keys while handing over balance cash after
tallying the cash to the Head cashier, as he was supposed
to do and kept the counter keys with him. The first part
of the charge(a) leveled against him has been that he did
not hand over the counter keys on 3.7.2001 to cash office
while leaving the office. As to this charge is concerned
Petitioner can not deny the irregularity committed
by him in not handing over the counter keys to the Head
Cashier. In this regard, it is the contention of the
Petitioner in his petition that nothing prevented the
authorities to open his counter with duplicate keys
available with the Head Cashier. For this contention,
respondents have not given any reply. A careful perusal
of the domestic enquiry proceedings do not reveal that at
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6439
any point of time Petitioner has pointed out this aspect
during domestic enquiry. Therefore, much credence need
not be given to this contention raised by the Petitioner.
Thus, it can safely be held that as far as the first part of
charge(a), levied against the Petitioner is concerned, it is a
proved irregularity on his part.
10.
As far as the second part of charge(a) is concerned,
it reads as follows:
“Petitioner failed to give proper explanation for the
shortage of cash which was allegedly found in the
counter at 10 PM on 3.7.2001 in the presence of the
Branch Manager and custodian”.
The facts of the incident are to be gathered from the
contentions and counter contentions of either party
and the enquiry proceedings placed before the court.
11.
It is the contention of the Petitioner that on 3.7.2001
while he was attending to his duties he received telephonic
information that his elder son in law expired in Chennai
and asked for relieving him from duties by making
alternative arrangements, but as he could not be relieved
from duty as alternative arrangements could not be made,
he continued the day’s work, completed it, tallied the
cash and handed over the balance cash to the Head Cashier
and left the Bank in hurry, to proceed to Chennai along
with his family. He further contended that while he was
waiting for the bus to travel to Chennai along with his
family a messenger from the bank came there by a jeep,
and told him that he was summoned by the Branch
Manager and thus, he proceeded to the bank telling the
members of his family to proceed with their journey, and
he would join them later. He further claimed that the
Branch Manager, who was in the bank asked him for the
counter keys and when he handed over the keys, the said
Branch Manager together with others went to the
Petitioner’s counter but, keeping him away from that place
and sometime later they returned to him and informed him
that Rs. 20000 cash was found in his counter, but, no
panchanama proceedings were conducted at that time and
he does not know how and in whose presence the cash
was found in his counter. Respondents have not denied
the truth of these specific allegations made by the
Petitioner.
12.
Evidently, the Petitioner’s counter was not searched
in his presence, though he was very much available there.
No panchanama proceedings were conducted. As rightly
pointed out by the Petitioner, statements of the witnesses
were not recorded at that time. Record shows that three
days later statements of the workman were recorded.
When serious allegation of embezzlement of money is
being made conducting panchanama in the presence of
the alleged workman done and prompt recording of the
statement of witnesses are the fundamental proceedings/
precautions to be taken up by anybody, especially the
officers who are conducting the proceedings of search
and seizure. Non- conducting of these proceedings
certainly gives raise to prejudice to the interests of the
Petitioner. Another important aspect to be noted is that
joint-custodians formed part of the search and seizure
party.
13.
Further more, as can be seen from the evidence of
Sri Ch. Chalapathi Rao, who has been working as
officiating accountant of the Kanigiri branch of the state
Bank of India and who deposed as PW3 during the enquiry
proceedings, he was the person who maintained the vault
register which contains the entries regarding withdrawals
and deposits of the hard cash into the vault of the bank.
On 3.7.2001 the officials of the central office of the bank
have inspected Kanigiri branch and found that the vault
register does not bear the withdrawal entry and handing
over of cash of Rs. 21000 and also found that there is
shortage of the cash of Rs. 21000 in the cash chest. PW2
Sri P.C. Peddanna the then cash officer of the Kanigiri
branch of the State Bank of India has categorically deposed
during the enquiry that he handed over the cash to
Payment Cashier and handed over the hard balance box,
to the Petitioner herein and that the amount of Rs. 21000
was not entered into the vault register. Thus, the evidence
of PWs 2 as well as 3 clearly shows that there was no
entry in the vault register which can show that the amount
of Rs. 21000 was actually handed over to the Petitioner by
the cash officer. The evidence of PWs 2 and 3 is therefore
to the effect that PW2 is the person who handed over the
hard cash box to the Petitioner and PW3 is the person
who has to maintain the vault register. They both are
responsible for proper maintenance of cash account.
But, there is no account regarding the amount of
Rs.21000 maintained on 3/7/2001 prior to the inspection
of the branch. For this, the explanation given is that PW3
has forgotten to maintain the register. That means there
is no specific record to show that the Petitioner was
entrusted with the missing amount of Rs. 21000 by PW2
on 3.7.2001.
14.
Further, as can be seen from the evidence
gathered on record during domestic enquiry, after the
missing cash was recovered, withdrawal entry as well as
deposit entry were made in the vault register on 3.7.2001
and at that time the amount recovered has been
mentioned as “Rs. 23000”. PWs 2 and 3 both have spoken
so while they were under cross examination. The said
entry stands as Rs. 23000 only. Thus, as per the said entry
it has been stated in the vault register an amount of
Rs. 23000 was deposited. Whereas, as per the evidence
on record Rs. 20000 was recovered from the counter of
the Petitioner and Rs. 1000 was recovered from him. Then
where from the remaining amount of Rs. 2000 has come,
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THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
is a question which remained unanswered. Further all
these discrepancies throw reasonable doubt on the very
proceedings itself.
15.
The evidence on record is further disclosing that as
on 3.7.2001 the laid down procedure for handling of hard
cash was not being followed in Kanigiri branch. The joint
custodians of the cash have not at all followed the required
procedure while handling the cash, as can be seen from
the evidence on record. PW1 the then branch manager, of
Kanigiri branch has stated that it is not intentional on the
part of the joint custodians, in not entering the withdrawal
of the amount of Rs. 21000 during the morning of 3.7.2001
in the vault register. The material on record does not give
out the reason why he could come to such an
understanding.
16.
The above discussed evidence clearly shows that
the evidence of the joint custodians of the cash in the
given branch on the day of incident, one among whom
is the person who failed to make relevant entries in the
vault register, formed the basis for the findings in the
enquiry report. Such report has been accepted by the
Disciplinary Authority totally and he proposed for
awarding the punishment of removal of the Petitioner
from service.
17.
One important aspect to be noted is that before
accepting the finding of the Enquiry Officer, the
Disciplinary Authority has not afforded any opportunity
to the Petitioner to say his contentions/comments
regarding the various findings in the enquiry report by
supplying a copy of the same, together with the enquiry
proceedings, to the Petitioner. After receiving the enquiry
report, the Disciplinary Authority straight away proceeded
to propose punishment to be awarded to the Petitioner
and issued show cause notice to him, asking him why
such punishment shall not be awarded to him. No doubt
Petitioner has been afforded a personal hearing after
issuing such show cause notice. But that personal hearing
was confined to the quantum of punishment to be
awarded only. Thus, an opportunity to dispute with and
explain regarding the various findings of the enquiry
officer in the light of the evidence adduced on record
during domestic enquiry, has been denied to the Petitioner
by the Disciplinary Authority before considering the
findings of the enquiry officer. Thus, it can reasonably
be held that unilaterally the Disciplinary Authority has
considered the enquiry report and accepted the same
without giving any opportunity to the Petitioner. This
is one other strong ground being pleaded by the Petitioner
to consider the proceedings of the Disciplinary Authority
as arbitrary and unjust. This ground is well founded and
is acceptable.
18.
In view of fore gone discussion of the material on
record it can clearly be seen that finding fault with the
Petitioner stating that he failed to give explanation for the
shortage of cash, which was allegedly found in his counter
at 10PM on 3.7.2001 in the presence of Branch Manager
and Joint custodians can not be accepted as proper and
just. The very finding of such cash in the counter of the
Petitioner is to be viewed with doubt, in view of the
circumstances of finding of such cash and the manner in
which the same was found. As already discussed above,
the evidence shows that the other joint custodians of the
cash have become party to the search party. PW1 the
Branch Manager has categorically admitted that there was
lapse on the part of the joint custodians in handling the
cash on 2.7.2001 and 3.7.2001. Further as already observed
above, the alleged search and seizure has taken place not
in the presence of the Petitioner. He was kept away from
the scene of search and seizure, though he was very much
available in the premises. Further no panchanama has
been conducted. Further more, the making good the amount
of Rs.1000 by one Brahmaiah the joint custodian on behalf
of the Petitioner will not be sufficient proof of Petitioner’s
guilt.
19.
The other charge leveled against the Petitioner has
been that he made good Rs.1000 when questioned by the
bank officials about cash shortage. As to this aspect is
concerned it is the claim of the Petitioner that he was in
distress mood at that time and when he was asked to make
good of the amount of Rs.1000 his colleague
Mr. Brahmaiah has handed over an amount of Rs.1000 to
the authorities. As can be seen from the evidence of the
PW2 Brahmaiah is the person who opened the counter of
the Petitioner when the amount of Rs.20000 was said to be
found in it. The evidence of PW3 indicates that
Sri Brahmaiah the clerk cum cashier of the branch alone
has given a section of Rs.10 which amounts to Rs.1000 for
making good the missing amount when Petitioner could
not bring such section of the amount.
20.
Whereas it is the contention of the respondents
that as there was no reluctance on the part of the Petitioner
in making good the missing amount of Rs.1000/- he was
found to be guilty of misappropriation of that amount.
But the evidence on record shows that Brahmaiah is the
person who supplied money for making good the missing
money on behalf of the Petitioner to the bank. Thus, just
because that amount has been made good in such manner,
it can not be said that Petitioner has accepted his guilt.
Thus, the findings of Enquiry Officer on all the three
sections of charge (a) are not acceptable. Answer to
charge (b) is nothing but consequential to the answer
arrived at for charge (a). Thus, the action on the part of
the Disciplinary Authority in accepting the finding of the
Enquiry Officer that too, without even giving opportunity
to Petitioner to comment upon the enquiry proceedings
and enquiry findings, is certainly to be held as unjust,
arbitrary and illegal.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6441
21.
In view of the fore gone discussion of the material
on record it can safely be concluded that the proceedings
of the Disciplinary Authority in this case which were
confirmed by the Appellate Authority are arbitrary, unjust,
and are liable to be set aside.
This point is answered accordingly.
22.
Point No.II : In view of the finding given in Point
No.(I) above, the impugned order No. No.DPC/R-1/019
dated 9.10.2003 which was confirmed by the order dated
19.4.2004 of the Appellate Authority are liable to be set
aside.
23.
No doubt, the bank of the respondents being a public
financial institution which handles public money as
custodian of public funds must deal very strictly with the
erring employees who shattered the faith of the bank in
them. But, the said employees are human beings who
are entitled to lead their lives with all pride and respect.
Being citizens of India they are entitled for fair and proper
treatment and also the benefits of principles of natural
justice. The Disciplinary Authority, while dealing with
the incidents of this nature must not blindly accept the
findings of the enquiry officer. He has to verify the
evidence adduced on record during domestic enquiry with
open mind, give full opportunity to the charged employee
to explain the circumstances and then come to reasonable
conclusion. In the present case, the only irregularity
which appear to have been proved beyond reasonable
doubt is, the failure on the part of the Petitioner in
handing over the keys of the cash counter to the cash
officer. As to the other aspects are concerned one can
clearly see that the entire bunch of the joint custodians
are responsible for the lapses and irregularities in
handling of the cash on the given dates. There is no
proper proof as to the availability of cash in the counter
of Petitioner, as there was no panchanama conducted
regarding search and seizure and as the search was not
conducted in the presence of the Petitioner, though he
was very much available on the spot. These facts were
discussed in detail while deciding Point No.(I). Thus, if
at all Petitioner is to be awarded with punishment, it
would be for the irregularity of his not handing over the
keys of the cash counter to his higher up while leaving
the office. This is a very minor irregularity and for that
a warning to him to be careful in future is suffice.
24.
Thus, the punishment awarded by the Disciplinary
Authority to the Petitioner is totally unwarranted and is
liable to be set aside. Thus, Petitioner is to be ordered to
be reinstated into service forthwith. Considering the
circumstances of the case, Petitioner is entitled for full
back wages due to him from the date of his removal from
service 9.10.2003 till the date of his reinstatement.
Petitioner shall be entitled for all other attendant benefits
also.
This point is answered accordingly.
RESULT
25.
In the result, Petition is allowed. The impugned
proceedings of the Disciplinary Authority / first
respondent No.DPC/R-1/019 dated 9.10.2003 which was
confirmed by the Appellate Authority/the 2nd respondent
by the proceedings No.PER & HRD/9-152 dated 19.4.2004
are declared as illegal, arbitrary and are hereby set aside.
The Petitioner shall be reinstated into service forth with.
He is entitled for full back wages from the date of his
removal from service i.e., 9.10.2003 till the date of his
reinstatement. He is entitled for all other attendant benefits.
Award passed accordingly. Transmit.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
Ex.W1:
Photostat copy of memorandum No.DPC/R-
1/019 dated 9.10.2003
Ex.W2:
Photostat copy of reply of Petitioner dated
18.3.2004
Ex.W3:
Photostat copy enquiry report
Ex.W4:
Photostat copy of memorandum No.DPC/R-
1/012 dated 25.7.2003
Ex.W5:
Photostat copy of final order of punishment
dated 9.10.2003
Ex.W6:
Photostat copy of appeal before Appellate
Authority dated 22.11.2003
Ex.W7:
Photostat copy of order of Appellate
Authority dated 19.4.2004
Documents marked for the Respondent
Ex.M1:
Office copy of memo. No. DPC/R-I/011, dated
1.11.2001
Ex.M2:
Office copy of memo. No. DPC/R-I/012, dated
1.11.2001
Ex.M3:
Office copy of memo. No. DPC/R-I/019, dated
5.3.2002
Ex.M4:
Photostat copy of representation of
explanation of Petitioner dated 18.3.2002
Ex.M5:
Office copy of lr. dated 17.2.2003
Ex.M6:
Office copy lr.. No. DPC/R-I/001, dated
26.4.2002
Ex.M7:
Office copy of lr. No. DPC/R-I/002, dated
26.4.2002
6442
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
Ex.M8:
Office copy of lr. No. DPC/R-I/003, dated
26.4.2002
Ex.M9:
Office copy of lr. No. DPC/R-I/004, dated
26.4.2002
Ex.M10:
Office copy of lr. No. DPC/R-I/013, dated
25.7.2003
Ex.M11:
Office copy of memo. No. DPC/R-I/018, dated
9.10.03
Ex.M12:
Representation of Petitioner to Appellate
Authority dated 22.11.2003
Ex.M13:
Office copy of order No. Per & HRD/9-152
dated 19.4.2004
Ex.M14:
Office copy of order No. Per & HRD/9-153
dated 19.4.2004
ubZ fnYyh] 16 flrEcj] 2014
dk-vk- 2545-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Hkkjrh; LVsV
cSad izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k tcyiqj ds iapkV (lanHkZ la[;k 236@92) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 09&09&2014 dks izkIr gqvk FkkA
¹la- ,y&12012@186@92&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 16th September, 2014
S.O.
2545.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 236/
92) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of State Bank of India and their
workmen, received by the Central Government on
09/09/2014.
[No. L-12012/186/92-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/236/92
PRESIDING OFFICER : SHRI R. B. PATLE
Shri S.Z.Yezdan,
181/5, Ram Ward,
Kandeli,
Narsinghpur
.....Workman
Versus
The chief General Manager,
State Bank of India,
Local Head Office,
Hoshangabad Road, Bhopal
The Regional Manager,
State Bank of India,
Regional office,
Region-I, Shankar Nagar,
Raipur
.....Management
AWARD
Passed on this 31st day of July, 2014
1.
As per letter dated 8-12-92 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/
186/92-IR(B-3). The dispute under reference relates to:
“Whether the action of the management of State
Bank of India in dismissing Shri S.Z.Yezdan from
service w.e.f. 20-4-91 is justified? If not, to what
relief the workman is entitled to?”
2.
After receiving reference, notices were issued to
parties. Workman filed statement of claim at Page 8/1 to 8/
7. Case of workman is that he was prosecuted for offence
under Section 294 , 332 of IPC. He was convicted on
23-10-86. In appeal Session Judge found incident
unfortunate. He was acquitted of the offence under Section
294, 332 of IPC. However his convection under offence
323 was maintained. That he was extended benefit of
provision of Probation Offenders Act. His application for
reinstatement was rejected. Management issued charge
sheet to him on 25-5-89. Workman submits that
management was not authorized to reopen issue after
judgment in appeal by Sessions Court. The enquiry was
empty formality. The workman submits that charge sheet
issued to him is not legal. DE was not properly conducted.
He was not given opportunity to cross-examine witnesses
of the management. On such ground, workman prays for
his reinstatement with back wages.
3.
IInd party filed Written Statement at page 9/1 to
9/8. Management submits that on complaint of Branch
Manager Shri R.C.Chhabaria, a criminal case was
prosecuted against workman for offence under Section
332 and 293 of IPC. Workman was found guilty and
convicted in appeal. The conviction of offence under
Section 323 of IPC was maintained. It is reiterated that
charge sheet issued to workman is legal. Workman had
abused and assaulted Branch Manager. The enquiry was
properly conducted by Enquiry Officer Dubey. The
misconduct of workman is proved. The dismissal of
workman is proper. The appeal preferred by workman was
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 20] 2014@Hkkæ 29] 1936
6443
rejected. On such ground, IInd party prays for rejection
of claim.
4.
Vide order dated 12-6-2013, enquiry conducted
against workman was found proper and legal.
Considering pleadings and order passed on preliminary
issue, the points which arise for my consideration and
determination are as under. My findings are recorded
against each of them for the reasons as below:-
(i)
“Whether the action of the
In Affirmative
management of State Bank
of India in dismissing
Shri S.Z.Yezdan from
service w.e.f. 20-4-91 is
justified?
(ii) If not, what relief the
Workman is not
workman is entitled to?”
entitled to any
relief.
REASONS
5.
As discussed above enquiry conducted against
workman is found legal and proper. Workman has not
adduced evidence on other issues. Management’s witness
filed affidavit of his evidence stating that workman was
convicted for offence under Section 323 of IPC by
Sessions court in appeal. The evidence of management’s
witness remained unchallenged. The record of Enquiry
Proceedings at Page 10/32 to 10/48 shows that workman
had assaulted Branch Manager Shri R.C.Chhabaria. The
findings of Enquiry officer are supported by evidence of
management’s witnesses. The misconduct alleged against
workman is proved from Enquiry Proceedings. For above
reasons, I record my finding in Point No.1 in Affirmative.
6.
Workman is dismissed from service for assaulting
Branch Manager Shri R.C.Chhabaria. workman was
convicted for offence under Section 323 of IPC. He was
extended benefit of benefit of provision of Probation
Offenders Act. The proved misconduct of accused causing
hurt to the Branch Manager is serious misconduct.
Therefore the punishment of dismissal cannot be said
improper, disproportionate. For above reasons, I record
my finding in Point No.1 in Affirmative.
7.
In the result, award is passed as under:-
(1)
The action of the management of State Bank of
India in dismissing Shri S.Z.Yezdan from service
w.e.f. 20-4-91 is proper and legal.
(2)
Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 16 flrEcj] 2014
dk-vk- 2546-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eè; jsyos
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa
fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 243@93) dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 09&09&2014 dks izkIr gqvk FkkA
¹la- ,y&41012@128@92&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 16th September, 2014
S.O.
2546.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 243/
93) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Central Railway and their
workmen, received by the Central Government on
09/09/2014
[No. L-41012/128/92-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/243/93
PRESIDING OFFICER : SHRI R.B.PATLE
Shri Mohan,
S/o Shri Ramcharan,
Near shiv Mandir,
12 Block, Rly Colony,
Harda (MP)
...Workman
Versus
Chief Health Inspector,
Central Railway,
Itarsi
PWI(S),
Central Railway,
Harda (MP)
...Management
AWARD
Passed on this 19th day of August, 2014
1.
As per letter dated 7-12-93 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-
41012/128/92-IR(DU). The dispute under reference
relates to:
“Whether the action of the management of
Divisional Railway Manager, Central Railway,
Bhopal in terminating the services of Shri Mohan,
S/o Shri Ramcharan, Safaiwala w.e.f. 1-10-87 is
justified? If not, what relief the workman concerned
is entitled to?”
6444
THE GAZETTE OF INDIA : SEPTEMBER 20, 2014/BHADRA 29, 1936
[PART II—SEC. 3(ii)]
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of
claim at Page 4/1 to 4/3. Case of Ist party workman is that
he was engaged as sweeper by Station Master from 2nd
June 1980. He was working at Charkheda Loco Foreman
Itiarsi till October 1987. He had worked with devotion.
Certificate about his working was issued on 26-2-81 by
Foreman Harda. As per letter dated 12-3-81, workman was
directed to work with AEN, Khandwa. Service card was
not issued to him despite of repeated correspondence.
That certificate about working for 232 days was issued by
the authority that he was continuously working from 2-6-
90 to 1-10-87 for 8 years. He completed 240 days
continuous service. His services were discontinued
without notice or conducting any enquiry in violation of
the law. He raised dispute between ALC, Bhopal. Failure
report was submitted to Government. The dispute is
referred by Govt. workman submits that he is illegally
terminated by IInd party. Workman prays for reinstatement
with back wages.
3.
IInd party filed Written Statement at page 6/1 to 6/2.
IInd party submits that workman be put to strictly prove
his contentions. All material contentions of workman are
denied. It is denied that workman was promoted in violation
of provisions of I.D.Act. The dispute raised after delay is
not tenable. IInd party prayed for rejection of claim.
4.
Workman filed rejoinder at page 7/1 to 7/3 reiterating
his contentions in statement of claim. Workman submits
that he had filed original application 49/90 before CAT,
Jabalpur. IInd party had denied his contentions in
statement of claim without reasons. Workman denies that
dispute is raised after delay.
5.
After amendment in statement of claim, IInd party
filed additional Written Statement contenting that
workman himself left services. There was no question of
paying retrenchment compensation.
6.
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 Divisional
Railway Manager, Central
Railway, Bhopal in terminat-
ing the services of Shri
Mohan, S/o Shri Ramcharan,
Safaiwala w.e.f. 1-10-87 is
justified?
(ii) If not, what relief the workman
Workman is not
is entitled to?”
entitled to relief
claimed by him.
REASONS
7.
Workman is challenging termination of his service
for violation of provisions of I.D.Act. His services were
terminated without notice, no retrenchment compensation
was paid to him. Workman filed affidavit of his evidence
supporting his contentions in statement of claim. That he
failed to appear for his cross-examination therefore his
evidence cannot be considered. As the claim of workman
is not supported by cogent evidence, action of the
management cannot be said illegal. For above reasons, I
record my finding in Point No.1 in Affirmative.
8.
In the result, award is passed as under:-
(1)
The action of the management of Divisional Railway
Manager, Central Railway, Bhopal in terminating the
services of Shri Mohan, S/o Shri Ramcharan,
Safaiwala w.e.f. 1-10-87 is legal and proper.
(2)
Relief prayed by workman is rejected.
R. B. PATLE, 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.