246GI/2015
(415)
foÙk ea=kky;
(foÙkh; lsok,a foHkkx)
ubZ fnYyh] 20 tuojh] 2015
dk-vk- 179.—Hkkjrh; thou chek fuxe Js.kh 3 ,oa
Js.kh 4 deZpkjh (lsok ds fuca/u ,oa 'krks± dk la'kks/u) fu;ekoyh]
1985] ds fu;e 13 ds mi&fu;e (2) }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] ;g fu/kZfjr djrh gS
fd] Js.kh 3 vkSj Js.kh 4 ds izR;sd deZpkjh dks 1 vizSy] 2013 dks
vkjaHk gksus okyh vkSj 31 ekpZ] 2014 dks lekIr gksus okyh vof/
ds fy, cksul ds cnys esa Hkqxrku] mDr mi&fu;e esa vU; micaèkksa
ds vè;/hu] muds osru ds 15 izfr'kr dh nj ij fd;k tk,xkA
[iQk- la- ,l&11012@07@2013&chek&I]
,u- Jhfuokl jko] funs'kd
MINISTRY OF FINANCE
(Department of Financial Services)
New Delhi, the 20th January, 2015
S.O. 179.—In exercise of the powers conferred by
sub-rule (2) of rule 13 of the Life Insurance Corporation
of India Class-III and Class-IV Employees (Revision of
Terms and Conditions of Service) Rules, 1985, the Central
Government hereby determine that, subject to the other
provisions of the said sub-rule, the payment in lieu of
bonus for the period commencing on 1st day of April,
2013 and ending with 31st March, 2014 to every Class-III
and Class-IV employee shall be at the rate of 15 percent of
his/her salary.
[F. No. S.-11012/07/2013-Ins.-I]
N. SRINIVASA RAO, Director
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 5]
ubZ fnYyh] tuojh 25] 2015—tuojh 31] 2015] 'kfuokj@ek?k 5—ek?k 11] 1936
No. 5]
NEW DELHI, JANUARY 25, 2015—JANUARY 31, 2015, SATURDAY/MAGHA 5—MAGHA 11, 1936
bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds
Separate Paging is given to this Part in order that it may be filed as a separate compilation
Hkkx II—[k.M 3—mi&[k.M (ii)
PART II—Section 3—Sub-section (ii)
Hkkjr ljdkj ds ea=kky;ksa (j{kk ea=kky; dks NksM+dj) }kjk tkjh fd, x, lkafof/d vkns'k vkSj vf/lwpuk,a
Statutory Orders and Notifications Issued by the Ministries of the Government of India
(Other than the Ministry of Defence)
jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05
REGD. NO. D. L. (N) 04/0007/2003—05
416
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
LokLF; ,oa ifjokj dY;k.k ea=kky;
(LokLF; ,oa ifjokj dY;k.k foHkkx)
'kqf¼i=k
ubZ fnYyh] 15 tuojh] 2015
dk-vk- 180-—bl ea=kky; dh fnukad 23 vxLr] 2005
dh vf/lwpuk la- oh-&12018@1@2004&ih,e,l esa vakf'kd la'kks/
u djrs gq, fo'ks"kKrk ,e- ,l (vkFkksZMksafVDl) ds varxZr vksfg;ks
LVsV ;wfuoflZVh] vksfg;ks] vesfjdk }kjk iznÙk nar fpfdRlk fMxzh dks
ekU;rk nsus ds laca/ esa nar fpfdRlk vf/fu;e] 1948 (1948 dk
16) dh vuqlwph ds Hkkx&III ds Øe la- 88 ds dkWye 3 esa dh xbZ
ekStwnk izfof"V;ksa esa fuEufyf[kr vk'kks/u@izfrLFkkiu fd;k tkrk
gS%
^^,e-,llh- (vksFkksZMksafVDl)] vksfg;ks LVsV ;wfuoflZVh] vksfg;ks]
vesfjdk** 'kCnksa dks ^^,e-,l (vksFkksZMksafVDl)] vksfM;ks LVsV
;wfuoflZVh] vksfM;ks] vesfjdk** i<+k tk,A
2- fnukad 23 vxLr] 2005 dh vf/lwpuk dh vU;
fo"k;&oLrq vifjo£rr jgsxh A
¹la- oh-&12025@1@2015&MhbZº
lq/hj dqekj] voj lfpo
MINISTRY OF HEALTH AND FAMILY WELFARE
(Department of Health and Family Welfare)
CORRIGENDUM
New Delhi, the 15th January, 2015
S.O. 180.—In partial modification of this Ministry's
Notification No. V-12018/1/2004-PMS dated 23rd August,
2005, the entries made in the existing entries of column 3 of
Serial No. 88, in Part-III of the Schedule to the Dentists Act,
1948 (16 of 1948) pertaining to recognition of dental degree
awarded by Ohio State University, Ohio, USA under the
speciality M. S. (Orthodontics), the following modification/
substitution shall be made as under;
The words "M. Sc. (Orthodontics), Ohio State
University, Ohio, USA" may be read as "M. S.
(Orthodontics), Ohio State University, Ohio, USA".
2. The other content of the Notification dated 23rd
August, 2005 shall remain unchanged.
[No. V.-12025/1/2015-DE]
SUDHIR KUMAR, Under Secy.
vk;q"k ea=kky;
ubZ fnYyh] 15 tuojh] 2015
dk-vk- 181-—dsUnzh; ljdkj] jktHkk"kk (la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx) fu;e 1976 (;Fkk la'kksf/r 1987) ds
fu;e 10 ds mi&fu;e (4) ds vuqlj.k esa] vk;q"k ea=kky; ds
iz'kklfud fu;a=k.kk/hu fuEufyf[kr dk;kZy;] ftlds 80 izfr'kr
deZpkfj;ksa us fganh dk dk;Zlk/d Kku izkIr dj fy;k gS] dks
,rn~}kjk vf/lwfpr djrh gS %&
2- ^^jk"Vªh; vk;qosZn vkS"kf/ fodkl vuqla/ku laLFkku]
Hkqous'oj**
¹la- bZ-&11018@1@2013&vk;q"k (jk-Hkk-)º
jkekuUn ehuk] mi lfpo
MINISTRY OF AYUSH
New Delhi, the 15th January, 2015
S.O. 181.—In pursuance of Sub-Rule (4) of Rule 10
of the Official Language (Use for official purposes of the
Union) Rules, 1976 (as amended in 1987), the Central
Government hereby notifies the following office under the
administrative control of the Ministry of AYUSH, where
80% staff have acquired the working knowledge of Hindi.
2. "National Research Institute of Ayurvedic Drug
Development, Bhubaneswar"
[No. E.-11018/1/2013-AYUSH (O.L.)]
RAMANAND MEENA, Dy. Secy.
(ijek.kq ÅtkZ foHkkx)
eqacbZ] 7 tuojh] 2015
dk-vk- 182-—dsUnzh; ljdkj] ljdkjh ifjlj (vizkf/
d`r vf/Hkksfx;ksa dh csn[kyh) vf/fu;e] 1971 (1971 dk 40)]
dh /kjk 3 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, dsUnzh; ljdkj
,rn~}kjk fuEufyf[kr lkj.kh ds dkye (1) esa mYys[k fd, x,
vf/dkjh] tks ljdkj ds jktif=kr vf/dkjh ds Lrj ds lerqY;
vf/dkjh ds :i esa gSa] dks mDr vf/fu;e ds rgr laink vfèkdkjh
ds :i esa fu;qDr djrh gS] tks fuEufyf[kr lkj.kh ds dkWye (2)
esa fofufnZ"V ljdkjh ifjlj ds lacaf/r vius dk;Z{ks=k dh LFkkuh;
lhek ds Hkhrj mDr vf/fu;e ds }kjk vFkok blds rgr laink
vf/dkjh dks nh x;h iznÙk 'kfDr;ksa ds M~;wVh dk fuokZg djsaxs&&
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
417
lkj.kh
vf/dkjh dk inuke
ljdkjh ifjlj
1
2
Jh D;w- ,- vyh] izca/d (iz'kklu)]
rqeykiYyh vka/zizns'k esa
rqeykiYyh [kku] ;wjsfu;e dkjiksjs'ku
;wjsfu;e dkjiksjs'ku vkWiQ
vkWiQ bafM;k fyfeVsM] ,e,eMh dSail
bafM;k fyfeVsM ls lacaf/r
ds ikl] iksLV % ecqphaFkykiYyh]
vFkok iV~Vs ij fy;k x;k
foeqyk eaMy] dM~Mik ftyk]
ifjlj tks rqeykiYyh
vka/zizns'k&516349
ifj;kstuk ds iz'kklfud
fu;a=k.k esa gSA
¹iQk- la- 10@8(16)@2014&ih,l;w@308º
Vh- th- johUnzu] voj lfpo
(DEPARTMENT OF ATOMIC ENERGY)
Mumbai, the 7th January, 2015
S.O. 182.—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 appoints the officer mentioned in
column (1) of the Table given below, being an officer
equivalent to the rank of a Gazetted Officer of the
Government, to be Estate Officer for the purposes of the
siad Act, who shall exercise the powers conferred upon
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
Public premises
1
2
Shri Q. A. Ali, Manager
Premises belonging to or
(Administration), Tummalapalle taken on lease for the
Mine, Uranium Corporation of
Uranium Corporation of
India Limited, Near AMD Camp, India Limited at Tummala-
Post : Mabbuchinthalapalle,
palle, Andhra Pradesh
Vemula Mandal, Kadappa District which are under the
Andhra Pradesh-516349
administrative control at
Tummalapalle Project.
[F. No.-10/8(16)/2014-PSU/308]
T. G. RAVEENDRAN, Under Secy.
laLd`fr ea=kky;
ubZ fnYyh] 20 tuojh] 2015
dk-vk- 183-—dsUnz ljdkj] jktHkk"kk (la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx) fu;e] 1976 ds fu;e 10 ds mi&fu;e 4
ds vuqlj.k esa laLd`fr ea=kky; ds varxZr vkus okys dk;kZy;
lgk;d v/h{k.k iqjkrRofon] Hkkjrh; iqjkrRo losZ{k.k] 1857 Le`fr
laxzgky;] csyh xkMZ dkWVst] xksykxat] jsthMsUlh] y[kuÅ dks
ftlesa 80 izfr'kr ls vf/d vf/dkfj;ksa@deZpkfj;ksa us fgUnh dk
dk;Zlk/d Kku izkIr dj fy;k gS] vf/lwfpr djrh gSA
;g vf/lwpuk jkti=k esa izdk'ku dh rkjh[k ls izo`Ùk gksxhA
¹iQk- la- bZ-&13016@1@2011&fganhº
Js;k xqgk] la;qDr lfpo
MINISTRY OF CULTURE
New Delhi, the 20th January, 2015
S.O. 183.—In pursuance of Sub-rule (4) of Rule 10
of the Official Language (Use for official purposes of the
Union) Rules, 1976, the Central Govt. hereby notifies the
office of Assistant Superintending Archaeologist,
Archaeological Survey of India, 1857 Smriti Sangrahalaya,
Beli Guard Cottage, Golaganj, Residency, Lucknow under
Ministry of Culture wherein more than 80% officers/staff
have acquired working knowledge of Hindi.
This notification shall come into force from the date
of publication in the Official Gazette.
[F. No. E.-13016/1/2011-Hindi]
SREYA GUHA, Jt. Secy.
1
2
418
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
Je ,oa jkstxkj ea=kky;
ubZ fnYyh] 20 tuojh] 2015
dk-vk- 184-—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
44@2008) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@01@2015
dks izkIr gqvk FkkA
¹la- ,y&20012@75@2008&vkbZvkj (lh,e&I)º
,e- ds- flag] vuqHkkx vf/dkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 20th January, 2015
S.O. 184.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 44/2008)
of the Central Government Industrial 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 20/01/2015.
[No. L-20012/75/2008-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
Reference No. 44 of 2008
Employer in relation to the management of
E.J. Area of M/s. BCCL
AND
Their workman
Present : Sri R. K. SARAN, Presiding Officer.
Appearances:
For the Employers
: Sri Nitish Sahay, Advocate
For the Workman
: Sri S.C.Gour, Advocate.
State : Jharkhand
Industry : Coal
Dated 21/11/2014
AWARD
By order No.-L20012/75/2008-IR (CM-I), dated 24/
09/2008 the Central Govt. in the Ministry of Labour has, 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, referred the following disputes for
adjudication to this Tribunal:
SCHEDULE
“ (i) Whether the action of the management of
Bhowra (N) Colliery M/s. BCCL in dismissing the
service of Late Banshidhar Mahakuru , S. F. Mazdoor
w.e.f. 18.11.2003 is justified and legal? (ii) Whether
the demand of the United Coal workers Union from
the management of Bhowra (N) Colliery of M/s. BCCL
for providing dependent employment to the
dependant of Late Shri Banshidhar Mahakuru S.
F. Mazdoor is justified and legal? (iii) To what relief
is the concerned workman’s wife/family entitled?”
2.
The case is received from the Ministry of Labour on
10.10.2008. After receipt of reference, both parties are
noticed, the workman files their written statement on
09.02.2011. After long delay the management also files
written statement-cum-rejoinder on 27.03.2014. The
workman adduce one witness. But the management neither
adduce any witness nor marked any document.
3.
The Short point to be decided in this reference is
whether the dismissal of the workman is justified or not.
4.
The dismissal of the workman is for absenteeism .
Mostly it is seen the workman worked 71 days in the year
2000, 29 days in the year 2001 and 13 days in the year 2002.
5.
The workman died on 2/12/2003 in BCCL hospital,
as per the death certificate filed by the workman. The
workman was also ill and was treated in BCCL hospital
from 18.04.2002 and again 7.10.2003 to 11.10.2003.
6.
This being the situation, his dismissal on 18.11.2003
is totally unjustified.
7.
Considering the facts and circumstances of this case,
I hold that the action of the management of Bhowra (N)
Colliery M/s. BCCL in dismissing the service of Late
Banshidhar Mahakuru , S.F. Mazdoor w.e.f. 18.11.2003 is
not justified, Hence the applicant’s widow be given
monetary compensation in lieu of compassionate
appointment to which the widow of the workman agreed.
The reference answered accordingly.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 20 tuojh] 2015
dk-vk- 185-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dqosr ,vjost
dkiksZjs'ku 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] eqEcbZ ds iapkV (lanHkZ la[;k
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
419
50@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@01@2015
dks izkIr gqvk FkkA
¹la- ,y&11012@21@2013&vkbZvkj (lh,e&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 20th January, 2015
S.O. 185.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 50/2013)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Mumbai as shown in the Annexure in the
Industrial dispute between the management of the M/s.
Kuwait Airways Corporation, and their workmen, received
by the Central Government on 20/01/2015.
[No. L-11012/21/2013-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2,
MUMBAI
Present : K. B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/50 of 2013
EMPLOYERS IN RELATION TO THE
MANAGEMENT OF KUWAIT
AIRWAYS CORPORATION
The Sales Manager -Pax
Kuwait Airways Corporation
902, Nariman Bhawan,
9th floor Nariman Point
Mumbai-400 021.
AND
THEIR WORKMEN.
The President
Kuwait Airways Staff and Officers’ Association
3/65, Nityanand Nagar-IV
Near Railway Station Andheri (E)
Mumbai-400 069.
APPEARANCES :
FOR THE EMPLOYER
:
No appearance.
FOR THE WORKMEN
:
No appearance.
Mumbai, the 4thDecember, 2014
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No.L-11012/21/2013-IR (CM-I),
dated 29.08.2013 in exercise of the powers conferred by
clause (d) of sub-section (1) and sub-section 2 (A) of
Section 10 of the Industrial Disputes Act, 1947 have referred
the following industrial dispute to this Tribunal for
adjudication:
“Whether the Kuwait Airways Staff and Officers’
Association, Mumbai proves that Sh. Sajid F.
Kolsawala, Senior Accounts Officer is a workman as
defined under Section 2 (s) of the Industrial Disputes
Act 1947? If so, whether the action of management
of Kuwait Airways Corporation, Mumbai in
transferring of Shri Sajid F. Kolsawala, Senior
Accounts Officer vide order dated 8/2/2013 from
Mumbai to Cochin is legal and justified? To what
relief Shri Sajid F. Kolsawala is entitled to?”
2.
After receipt of the reference from Ministry of Labour
& Employment, notices were sent to both the parties. In
response to the notice, Shri Iqbal Siddiqui, Representative
of the union attended this Tribunal and requested for
adjournment. Thereafter on several dates, matter was
adjourned for filing of Statement of Claim by Union. Since
second party did not file their statement of claim, fresh
notice was issued to second party vide Ex-5. Same was
received back from postal authorities with endorsement
“Unclaimed”. Today both parties were absent. The second
party union failed to file statement of claim. Since there is
no statement of claim on record, therefore, this reference
cannot be decided on merits and the same deserves to be
rejected for want of prosecution. Thus I proceed to pass
the following order :
ORDER
Reference stands rejected for want of prosecution.
Date : 04.12.2014
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 20 tuojh] 2015
dk-vk- 186-—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- 2] /uckn ds iapkV (lanHkZ la[;k
17@2008) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@01@2015
dks izkIr gqvk FkkA
¹la- ,y&20012@144@2007&vkbZvkj (lh,e&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 20th January, 2015
S.O. 186.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 17/
2008) of the Central Government Industrial Tribunal-cum-
Labour Court No. 2, Dhanbad as shown in the Annexure
420
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
in the Industrial dispute between the management of
M/s. BCCL, and their workmen, received by the Central
Government on 20/01/2015.
[No. L-20012/144/2007-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. 17 OF 2008
PARTIES :
The Vice President
Janta Mazdoo Sangh,
Vihar Building, Jharia, Dhanbad
Vs.
General Manager,
Kusunda Area of M/s. BCCL,
PO : Kusunda, Distt. Dhanbad.
Ministry’s Order No. L-20012/144/07-IR(CM-I) dt.25.02.2008
APPEARANCES :
On behalf of the workman/ :
Mr. Pintu Mandal, Ld.
Union
Union Representative.
On behalf of the
:
Mr. U. N. Lal, Ld. Adv.
Management
State : Jharkhand
Industry : Coal
Dhanbad, the 30th Dec., 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-
20012/144/07-IR(CM-I) dt.25.02.2008.
SCHEDULE
“Whether the action of the Management of Khas
Kusunda Colliery of M/s. BCCL in dismissing
Sh.Shiv Dayal B.P., M/Loader from the services of
the Company w.e.f. 24.02.1997 is legal and justified ?
If not, to what relief is the concerned workman
entitled?”
On receipt of the Order No. L-20012/144/07-IR (CM-I)
dt.25.02.2008 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.17 of 2008 was registered on 10.03.2008 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 own
respective Representative/ Ld.Counsel appeared in, and
contested the case.
2.
The case of the sponsoring Janta Mazdoor Sangh,
for workman Shiv Dayal B.P is that he was a permanent
M/Loader of Khas Kusunda colliery. He was issued the
baseless and false chargesheet dtt; 14/16.06.94 devoid of
precise nature of misconduct for unauthorized absentism
since 6/12/92. He had submitted his plausible reply with
all materials about his absence. The domestic inquiry into
the charge was conducted without any factual basis. The
management had failed to prove the charge levelled against
him. The enquiry officer submitted his enquiry report
baseless. Accordingly, the workman was dismissed from
his service of M/s. BCCL with immediate effect as per the
order dtt. 19/24-02-97, though the chargesheet of the
misconduct was not legally maintainable. As a matter of
fact, on receipt of sudden information on 05/12/92 about
his mother’s seriously illness at his native place, the
workman rushed there to look after her, so he could not
inform of it to the office.
After a week, the workman returned back, to report
for his duty, he was not allowed to resume his duty on
account of his absence. He was newly appointed in his
service on compassionate ground , unaware of the Rules
and Regulations of the Company. Despite several times
representations to the Management, when it was
unconsidered for resumption of his duty, finally the
Industrial dispute raised by the Union before the ALC
©,Dhanbad, due to the failure in its conciliation on
14.11.2007, resulted in the reference for an adjudication.
The action of the Management in dismissing the workman
is not justified.
The Union Representation for the workman in his
rejoinder has specifically denied the allegations of the
OP/Management, further stated that the Disciplinary
Authority without application of his mind in scrutiny of
the materials on the record has wrongly and illegally
imposed on the workman the punishment of his dismissal,
as the workman had never admitted his guilt for absence.
3.
Whereas the case of the OP/Management is that
upon the chargesheet of the workman for a misconduct
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
421
of his unauthorized absence from duty under clause 26.1.1.
of the Certified Standing Orders of the Company, the
Disciplinary Authority in order to get enquired into the
matter appointed the Enquiry Officer and the Management
Representative. The notices of the enquiry were issued to
the workman and all the concerned. The enquiry was fairly
held in presence of the workman who also had given his
statement on 18.5.1996.The Enquiry Officer submitted his
enquiry report based on the evidences of both parties,
holding the workman guilty of the charge levelled against
him. The workman was fully given the opportunity for his
defence on the basis of the principle of the natural justice.
There was no complaint against the enquiry. A copy of the
enquiry report with 2nd Show Cause Notice was sent to the
workman as per the letter dt.5.12.96.The workman also
replied to it on 11.12.1996.The Disciplinary Authority
applied his mind to the proceeding of the enquiry and the
enquiry report, and justly awarded the workman with the
punishment of his dismissal from the service as per the
order No.286 dt.19/24.2.1997.In view of the aforesaid facts
of the proceeding, it is alleged that the workman had
admitted his guilt of his absentism .The final approval of
the General Manager,Kusunda Area, clearly manifested
the absence of the workman for more than 4 (four) years.
So the punishment of dismissal to the workman is just, fair
and quite reasonable in view of the gravity of his
misconduct.
Simultaneously the OP/management in their rejoinder
has categorically denied all the allegations of the Union/
workman as incorrect, further stating that no cogent reason
was justified by the workman for his aforesaid long
absence. The order of dismissal towards the workman was
quite reasonable with a view to maintain the discipline in
the Industry. After dismissal, the workman had never
preferred an Representation/Appeal before the Appellate
Authority.Thus,the action of the Management seeing the
gravity of the misconducts is quite justified.
FINDING WITH REASONS
4.
In the instant reference, while the proceeding was at
the preliminary point as to the fairness of the domestic
enquiry, the Union Representative for the workman filed
the petition dt.24.12.2013 that the workman had accepted
the fairness of the enquiry ; accordingly the Tribunal as
per the Order No.26 dt.5.2.2014 held the domestic enquiry
fair,proper and in accordance with the principles of natural
justice. It resulted in hearing the arguments of both the
parties on merits.
According to the Union representative Pinto
Mandal,the charge of absentism devoid of precise nature
of misconduct is not legally maintainable, nor proved, and
that the Project Officer is not the Disciplinary authority to
pass an order of the dismissal towards the workman, as
per the Certified Orders of the Company, because the
workman was appointed as M/Loader by the letter
dt.24.4.1981 of the General Manager,Kusunda Area, the
photocopies of his I.D. Card and Service Excerpt (Extt.W.1
to 3 respectively).In view of that, the dismissal of the
workman is legally bad and unjustified.
In response to it, Mr.U.N.Lal,Learned Counsel for
the O.P./Managment,has contended that workman Shiv
Dayal B.P. in the enquiry had accepted his guilty for his
unauthorized absence from duty, and on the second Show
Cause Notice dt.5.12.96 (Ext.6), the reply to it (Ext.M.7)
was given by the workman, but in view of grave nature of
his misconduct of absentism, the Disciplinary Authority
had imposed on him the punishment of dismissal which
is just, and reasonable, so the workman is not entitled to
any relief.
5.
On perusal and consideration of the materials,
available on the Case record, there is no doubt that the
workman was a permanent M/Loader since 08.07.1981,
the date of his Appointment, and he appears to have been
in the continuous service of the Company’s aforesaid
colliery till the charge sheet was issued to him on
06.02.1995.The order of dismissal all of a sudden as a
punishment to the illiterate workman for his absentism
from June,1992 appears to highly shocking and
disproportionate to the nature of the said misconduct in
the instant case. Hence the dismissal order of the OP/
management dt.19/24.2.1997 towards the workman is set
aside. The workman is entitled to a relief under the
provision of Sec.11 A of the Industrial Dispute Act,1947.
In result, it is hereby awarded that the action of the
Management of Khas Kusunda Colliery of M/s BCCL in
dismissing Shri Shiv Dayal B.P., M/Loader from the services
of the company w.e.f. 24.2.1997 is no not legal and justified.
Therefore, the workman concerned is entitled to his
accordingly reinstatement in the services of the Company,
but without back wages. The OP/Management is directed
to implement the order within a month from the receipt of
it, following its publication in the Gazette of India.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 20 tuojh] 2015
dk-vk- 187-—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- 2] /uckn ds iapkV (lanHkZ la[;k
78@2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@01@2015
dks izkIr gqvk FkkA
¹la- ,y&20012@36@2005&vkbZvkj (lh,e&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 20th January, 2015
S.O. 187.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
422
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
Government hereby publishes the Award (Ref. No. 78/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court No. 2, Dhanbad as shown in the Annexure
in the Industrial dispute between the management of
the M/s. BCCL, and their workmen, received by the Central
Government on 20/01/2015.
[No. L-20012/36/2005-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. 78 OF 2005
PARTIES :
The Exec. Member,
Bihar Colliery Kamgar Union ,
Block -E,C.11, Bhuli Qr. No. 483,PO:Bhuli D Block,
Distt : Dhanbad
Vs.
Project Officer,
Braree Colliery of M/s BCCL,
P : Bhulan Baaree, Dhanbad.
Ministry’s Order No L-20012/36/2005-IR(C-I) dt.26.7.2005
APPEARANCES :
On behalf of the workman/
:
Mr. A. K. Sharma Ld.
Union
Adv.
On behalf of the
:
Mr. D. K. Verma,
Management
Ld. Adv.
State : Jharkhand
Industry : Coal
Dated, Dhanbad, the 29th Dec., 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-20012/36/2005-IR(C-I) dt. 26.7.2005
SCHEDULE
“Whether the action of the Management of Bararee
Colliery of M/s BCCL in dismissing Sri Ratu be read
as Rathu Mahato, Loader w.e.f. 14.2.1997 is justified?
If not, to what relief is the workman concerned
entitled.”
On receipt of the Order No. L-20012/36/2005-IR(C-I)
dt.26.7.2005 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 of 2005 was registered on 19.08.2005 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 own
respective Ld.Counsels appeared in, and contested the
case.
2.
The case of sponsoring Bihar Colliery Kamgar Union
for workman Ratu be read as Rathu Mahato is that he was
the permanent employee as the Loader of Bararee Colliery
of M/s BCCL, Distt; Dhanbad. He was very sincere,
punctual and devoted to his duty. But he could not attend
and perform his duty w.e.f. 19.2.1996, so he was issued
charge- sheet dt.12.9.1996 for his unauthorized absence
for 18th Feb., to 3rd Spt,1996.The workman had replied to it
that he had been suffering from mental illness
(Depression),so it was impossible for him to perform his
duty. Being dissatisfied with the reply of the workman, the
Project officer of the Colliery set up an enquiry into it, by
appointing Sr.Personnel Officer, T.S.C. Rao and Sri B.
Prasad as the Enquiry Officer and the Management’s
Representative respectively. On receipt of the enquiry
notice, the workman appeared in the enquiry; the enquiry
was not properly and fairly conducted in accordance with
the law and rules of the Company. It is alleged that the
Enquiry Officer instructed the workman to plead guilty of
it so that he might be appointed and allowed to resume his
duty. As such the domestic enquiry was unfair. The
workman had by the post dt.10.9.996 informed the
management of his mental illness as a cause of his absence
from the duty. But the Management did not accept it, and
dismissed him wrongly. The workman had though
appeared in the enquiry, neither knowledge of it or of his
any co-worker,when he knew of his co-worker who might
give evidence in support of his case, for which the workman
prayed for time, he was not allowed to produce his witness,
nor any other co-worker for it.Desipte the pleading of his
quilt under the inducement of the Management for
providing him the employment, he was not employed. The
workman is illiterate so he unthought of the legal proceeding
and the result of his forceful confession. He had produced
the Medical Certificate dt.28.8.1986 of his medical treatment
and fitness for the duty. But it was disbelieved by the
Management. Even the representation of the Union to the
Management in respect of the starvation situation of his
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
423
entire family and his treatment at the Ranchi Medical
Hospital was not sympathetically considered by the
Management. Hence the industrial dispute has been
referred by the Government of India, New Delhi for an
adjudication. The action of the Management in dismissing
the workman is illegal and unjustified.
No rejoinder whatsoever filed on behalf of the Union
Representative for the workman.
3.
Whereas challenging the maintainability of the
reference, the case of the OP/Management is that since
the dismissal of the workman on 14.02 1997, he had never
raised any Industrial Dispute till 7.6.2004.But after a lapse
of eight years, the Union raised the stale dispute without
any justification. Although no time limit is fixed, it confers
no right on him to raise the dispute at any point of time.
The inordinate delay without any justification for the
delay was not liable to be condoned. The workman was
not regular in his service since his appointment on
5.10.1986. He began to unauthorisedly absent from his
duty which amounted to an misconduct as per the C.O.
No. 26.1.1 of the Certified Standing Order of the Company.
So he was issued the charge- sheet dt.12.9.1996 for it. The
reply of the workman to it was found unsatisfactory. Hence,
the enquiry into it was set up by the Managment, by
appointing Sri T.S.C. Rao, Sr. P.O. as the Enquiry Officer
for conducting it. On notice of the enuiry,the workman
also appeared in it wherein the Enquiry Officer fairly
conducted the domestic enquiry in presence of the
workman giving full opportunity for his defence in
accordance with the principles of the natural justice. The
Enquiry officer submitted his enquiry report, holding the
workman guilty of the charge levelled against him.
Thereafter, the copy of the enquiry report was supplied
by the Disciplinary Authority to the workman for his
explanation. His previous record of attendances was
169,103 and 53 days in the last three years 1993 to 1995
respectvely. The uninterestedness of the workman from
his such previous attendances stood established.
Considerng the enquiry report and the past record of the
workman, the workman was dismissed from the service
which is legal and justified. He is not entitled to any relief.
It has been prayed for permission to adduce afresh
evidence to prove the charge, in case the enquiry is found
unfair at the preliminary issue.
Moreover, the OP/Management in their
simultaneous rejoinder has categorically denied at the
allegations the workman.
4.
In the instant case, after due consideration of the
statement of MWI T.S.G.Rao on the preliminary point, at
which no evidence of the workman could be produced,
the Tribunal as per the order No.30 dt.22..5.2013 held the
domestic enquiry quite fair, proper and in accordance to
the principles of natural justice.Thereafter, it has come for
hearing the final arguments of both the parties on merits.
Despite giving ample opportunity, when the Union
Representative did not appear for his final argument on
merits, it was reserved for an award.
Having considered the materials as produced by
the OP/Management on the case record, I find no dispute
that the workman was a permanent Loader at the Bararee
Colliery of M/s BCCL since his appointment from
05.10.1986.There is no dispute in the case that the workman
had not faced such enquiry for his previous any
misconduct for such unauthorized absentism.The
workman in his statement before the Enquiry Officer vividly
appears to have straight forward justified his inevitable
situation of his mental illness owning to which he was too
incapable to attend his duty on time. The enquiry
proceeding nowhere expressly or impliedly by reveals
the alleged confession of the workman about his
absentism, on the appraisal of all the facts of both the
parties under Sec.11 A of the Industrial Dispute Act,1947,
I find that the dismissal of the permanent workman for his
single absentism during the entire tenure of his service is
not only shocking but also quite disproportionate to the
nature of his misconduct of absentism.Hence the dismissal
of the workman is liable to be set aside.
In result, it is hereby awarded that the action of the
Management of Bararee Colliery of M/s BCCL in
dismissing Sri Ratu be read as Rathu Mahato, Loader w.e.f.
14.02.1997 is quite unjustified in the eye of law and facts
as well. Hence, the workman is entitled to reinstatement in
his service accordingly, but without any back wages.
The OP/Management is directed to implement the
order within one month from the receipt of it following its
publication in the Gazette of India.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 20 tuojh] 2015
dk-vk- 188-—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- 2] /uckn ds iapkV (lanHkZ la[;k 138@2001) dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@01@2015 dks izkIr
gqvk FkkA
¹la- ,y&20012@56@2001&vkbZvkj (lh&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 20th January, 2015
S.O. 188.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 138/
2001) of the Central Government Industrial Tribunal-cum-
Labour Court No. 2, Dhanbad as shown in the Annexure
in the Industrial dispute between the management of
424
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
the M/s. BCCL, and their workmen, received by the Central
Government on 20/01/2015.
[No. L-20012/56/2001-IR(C-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. 138 OF 2001.
PARTIES :
The Organizing Secretary,
Rashtriya Colliery Mazdoor Sangh,
Rajendra Path, Dhanbad
Vs.
General Manager,
Western Washery Zone of M/s. BCCL,
PO: Moonidih, Dhanbad.
Ministry’s Order No L-20012/56/2001(C-I) dt. 30.04.2001
APPEARANCES :
On behalf of the workman/:
Mr. D. Mukherjee, Ld.
Union
Advocate.
On behalf of the
:
Mr. D. K. Verma Ld.
Management
Advocate.
State : Jharkhand
Industry : Coal
Dated, Dhanbad, the 31st Dec., 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-20012/56/2001(C-I) dt. 30.04.2001.
SCHEDULE
“Whether the action of the Management of
M/s. BCCL in demoting S/Sh. N. N. Pandey, Hazrat
Ali Ansari and S.K. Bhattacharjee from their previous
grades is justified and proportionate to the offence,
if any, committed by them? If not, to what reliefs are
the workmen concerned entitled?”
On receipt of the Order No. L-20012/56/2001(C-I) dt.
30.04.2001 the above mentioned reference from the
Government of India, Ministry of Labour & Employment,
New Delhi for adjudication of the dispute, the Reference
Case No.138 of 2001 was registered on 01.06.2001. 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 own
respective Ld.Counsels appeared in, and contested the
case.
2.
The case of thee workmen N.N.Pandey, Hazrat Ali
Ansari and S.K.Bhattacharjee as sponsored by the Union
concerned is that Hazrat Ali Ansari as Clerical Grade I and
rest aforesaid both workmen as Clerical Grade II have been
unblemishedly working since long. The local Management
was biased against the workmen for their Union activities
about the grievances of other co-workers, so they were
malafide unauthorisedly issued by the Project Officer a
false and frivolous charge sheet dt.18/21.6.97 for allegedly
marking attendance of an allegedly dead workman. Though
the workman had replied to the charge explicitly explaining
enough, the anti labour Management /the Project officer
appointed the biased Enquiry Officer, who against the
principles of natural justice illegally conducted the enquiry
without giving them full opportunity for their due
defence.The finding of the Enquiry Officer was perverse
and the charge was not proved against the workman. Even
the Management as per the Order dt.18/20.5.1998 inflicted
upon them the punishment of their demotion from clerical
Grade II to III which was ipso facto illegal and void
abinitio.The workmen were not supplied the enquiry report
and proceedings prior to the imposition of their punishment
They had represented before the Management, but
ineffective result. At last the Union raised the Industrial
Dispute before the ALC(C), Dhanbad, but the failure in its
conciliation due to adamant attitude of the Management
resulted in the reference for an adjudication, so the action
of the Management for the demotion of the workmen
inproportion to their alleged offence is unjustified and
illegal as well as vindictive and anti labour.The workmen
are entitled to the respective original Grades with wage
arrears and other consequential benefits.
In the rejoinder on behalf of the workmen, all the
allegations of the OP/Management have been specifically
denied.
3.
Whereas challenging the maintainability of the
Industrial Dispute, the case of the OP/Management is that
all the three wokmen, the permanent employees of
Mahuda Coal Washery, had been working as the
Attendance Clerks. But they had falsely marked the
attendances of Late Ram Pujan Bhuia for 5 days in the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
425
month of Nov., 1996 to April,1997, though Late Ram Pujan
Bhuia had expired on 24.10.1996. The acts of the workmen
were their misconduct, for which they were issued a
chargesheet dt. 21.6.1997. They replied to the charge,
denyng the allegation levelled against them. On the
appointment of the Enquiry Officer by the Management
for conducting a domestic enquiry into the charge against
workmen, the Enquiry Officer conducted the domestic
enquiry into it in the presence of the workmen, giving
them full opportunity for defence. The domestic enquiry
was held fair, proper and in accordance with the principles
of natural justice,and submitted his enquiry report holding
them guilty of the charge. After considering the enquiry
report and the enquiry proceeding, the Disciplinary
Authority leniently passed the order of their demotion
from Clerk Grade II to III as a punishment. The action/
order of the Management in demoting the workmen to
Clerk Grade III is legal and justified.
The OP/Management in their simultaneous rejoinder
has categorically denied all the allegations of the Union/
workmen as false, further stating that the Project Officer is
a competent person to issue the chargesheet, and marking
attendances for a dead person by the workmen is a serious
misconduct.
4.
In the instant reference, on examination of MW-I
A. K. Sethi and WWI Nityanand Pandey at preliminary
issue, the Tribunal as per Order No.47 dt.30.12.2013 has
held the domestic enquiry as fair and according to the rule
of natural justice. Hence, it came up for hearing the final
arguments of both the parties on merits.
Mr. D. Mukherjee, Learned Senior Counsel for the
Union/workmen has submitted that out of three workmen,
only Sri N.N.Pandey has contested the case by stating his
unrebutted statement that he had not marked the
attendances on 26.11.1996 and 01.04.97 for which no
wages were paid to Ram Pujan Bhuia,so the punishment
of demotion to Mr.Pandey was highly major for no fault
proved.Mr.Mukherjee has, relying upon the ruling : 1989
LAB.I.C. 1043 = AIR 1989 SC 149 Scooter India Ltd.,
Lucknow Vs. Labour Court, wherein held ,as submitted
that ‘in the case of termination of service, the Disciplinary
Authority found to be fair and lawful and its findings were
not vitiated in any matter. That by itself would not be
ground for non interference with order of termination of
service by Labour Court, the direction by Labour Court
for reinstatement of employee with 75 % back wages on
the ground of reformation to the erring workman should
be given opportunity to reform and prove to be loyal and
disciplined employee of the Company’.(Para 1.2.7.)
Whereas Mr.D.K.Verma, Ld.Advocate for the O.P./
Management has contended that no other two workmen
S/Shri Hazrat Ali Ansari and S.K.Bhattacharjee than the
sole instant workman N.N.Pandey have contested the case,
so presumably aforesaid uncontesting aforesaid two
workmen accepted their faults. All the three workmen were
charge sheeted for their misconduct of making false
attendances of deceased other employee Ram Pujan Bhuia
for a few specified days in the year 1996 and 1997 for
which after due enquiry, they were found guilty of it, so
on the consideration of the Enquiry Report and other
relevant matters, the Disciplinary Authority awarded the
workmen with punishment of their demotion for the proved
charges which was quite just. Mr. Verma raised another
point that since it is not a case of dismissal under Sec.11 A
of the I.D. Act, the Tribunal has no power to modify the
punishment of demotion in the case.
5.
On perusal and consideration of the materials
available on the case record, after hearing of the arguments
of both learned Counsels on merits, there seems no dispute
that due to the negligence of workmen concerned following
the very failure of the Authority concerned to delete the
name of Late Ram Pujan Bhuia from the wages sheets, the
attendances of the deceased workmen were marked for a
few days in the month of 11th Dec. 1996 to 10th Jan,1997,for
which period though the bill was cancelled, the issuance
premium of Rs.411.80 was credited to the deceased
workmen resulting in the financial loss of the Management.
Where there is admitted the negligence of the Authority
concerned to delete the name of the deceased workman
concerned from the wage sheets, there no charge of
dishonesty in connection with the Company’s business
can not attributed to the negligence of the instant workmen
N.N.Pandey and two other ones Hazarat Ali Ansari and
S.K.Bhattachargee similarly situated workmen, nor such
charge appears to be proved against the workmen in view
of their similar cases together. No misappropriation of any
single farthing by any of the workmen appears from the
materials on the case record, nor does such question
warrant the nature of the misconduct alleged.
In the instant reference, in lack of the proof of the
charges under clause 26.1.11 and 26.1.13 of the Certified
Standing Orders of the M/s. BCCL, the punishment of
demotions to workmen S/Sh. N.N. Pandey, and two other
similarly situated ones Hazrat Ali Ansari and S.K.
Bhattacharjee from the post of Clerk Gr. II, I and II to their
Grades III,II and III respectively with immediate effect for
these appear to be quite unjustified and disproportionate
to the alleged offences. The punishments to the workmen
seem to be highly vindictive. Therefore, it is liable to set
aside under Sec.11 (1) of the Industrial Dispute Act, 1947.
In such circumstances, these workmen are entitled
to their reliefs of their restoration to the original Clerical
Grades II,I and II respectively with all the financial benefits
with effect from their demotions concerned.
KISHORI RAM, Presiding Officer
426
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 22 tuojh] 2015
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fnYyh uxj
fuxe 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; ua-&1] fnYyh ds iapkV (lanHkZ la[;k
164@2012) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
21@01@2015 dks izkIr gqvk FkkA
¹la- ,y&42012@36@2012&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 22nd January, 2015
S.O.
189.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 164/
2012) of the Central Government Industrial Tribunal-cum-
Labour Court No.-1, Delhi as shown in the Annexure in
the Industrial Dispute between the management of the
Municipal Corporation of Delhi, and their workmen,
received by the Central Government on 21/01/2015.
[No. L-42012/36/2012-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
IN THE COURT OF SHRI AVTAR CHAND DOGRA,
PRESIDING OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT NO.1, KARKARDOOMA
COURT COMPLEX, DELHI
ID No.164/2012
Shri Sanjeev Kumar,
S/o Late Shri Roop Chand,
Through Nagar Nigam Karamchari Sangh,
Delhi Pradesh,
P-2/624, Sultanpuri Delhi
...Workman
Versus
The Commissioner,
Municipal Corporation of Delhi
Town Hall, Chandni Chowk, Delhi
...Management
AWARD
A reference was received by this Tribunal under
section 10(2)(a) read with clause 1(d) of the Industrial
Disputes Act, 1947 from the appropriate Government to
answer the following:
“Whether the action of the management of
Municipal Corporation of Delhi (MCD) in denying
the ‘Compassionate Appointment’ to Shri Sanjeev
Kumar, S/o Late Shri Roop Chand in place of his
deceased mother, Smt. Parbati, W/o Late Shri Roop
Chand, ex-Safai Karamchari is justified or not? If
not, what relief the workman is entitled to and from
which date?
2.
It transpires from the record that Smt. Parwati, widow
of Shri Roop Chand, safai karamchari had expired on
238.03.2008 and after a period of about six years, here son,
i.e Shri Sanjeev Kumar, herein above, approached the
management for seeking employment on compassionate
grounds.
3.
After receipt of the above reference from the
appropriate Government, notices were sent to Shri Sanjeev
Kumar and Municipal Corporation of Delhi calling upon
them to file reply to the above reference. It is clear in the
reply that the management had taken certain objections
inter alia that reference is bad in the eyes of law and the
present dispute is not an industrial dispute and as such,
reference is liable to be rejected. It has also been alleged
in the reply that no demand notice has been served upon
the management. Reference has also been made to the
judgement of the Apex Court in the case ‘Eastern Coal
Fields Ltd. Vs. Anil Badyakar & Others, Civil Appeal
No.3957/2009 dated 15.05.2009, wherein it has been
observed that ‘compassionate employment cannot be
claimed and offered after a lapse of time and after crisis is
over’.
4.
In para 6 of the reply, management has also alleged
that as per rules and regulations laid down by the
Government of India for appointment on compassionate
grounds, there is only a limited quota of 5% and there is
huge backlog waiting for such appoints. No appointment
can be made beyond the fixed quote of 5% on
compassionate Grounds. It is also settled proposition of
law that appointment on compassionate grounds cannot
be claimed as a matter of right. It is also alleged that as per
aforesaid Government of India instructions, appointment
on compassionate grounds is to be given to one of the
family members of the deceased regular employee, subject
to the condition that family of such deceased employee
should be in distress.
5.
Since in the instant case, the claimant had applied
for employment on compassionate grounds, his application
was duly considered by the Compassionate Appointment
Committee’ consisting of Shri Janak Digal, the then
Additional Commissioner (Labour), alongwith other
members in its meeting held on 28.04.2009 and the same
was rejected as the claimant had zero points in terms of
criteria laid down by the Labour Welfare Department. The
relevant minutes of the meeting has also been annexed
with the reply. There is reference to circular No.LWD/HQ/
2009/450 dated 18.06.2009 of the Labour Welfare
Department, laying down the criteria for appointment on
compassionate grounds and Annexure B alongwith
corrigendum as Annexure C.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
427
6.
Since the workman Shri Sanjeev Kumar had not
appeared before the Tribunal despite service of valid
notice, as such it is apparent that the workman is not
interested in prosecution of the present case. Moreover,
it is crystal clear from the minutes of the meeting held
on 28.087.2009–Annexure A, that the meeting of the
Compassionate Appointment Committee was held on
the above date in the chamber of Shri Janak Digal, the
then Additional Commissioner (Labour), which was
attended by Shri A. K. Sharma, Chief Law Officer-
Member, Shri Deepak Hastir, Director(Personnel)-
Member and Shri M. K. Bhardwaj, Administrative
Officer(Esstt.)-I Member Secretary, that there were as many
as 133 cases received for appointment on compassionate
grounds, which were duly considered by the Committee
against vacancies of LDC-03 posts, Peon-01 post,
Chowkidar-02 posts, Assistant Sanitary Inspector-05 posts
and Driver-01 post. All these posts have accrued in 5%
quota for compassionate grounds in 2008. To eliminate
possibility of any kind of subjective-ness as well as
arbitrariness, Labour Welfare Department of MCD issued
parameters/criterion in terms of numerical grading based
on various socio-economic factors.
7.
After taking into consideration, the above criteria,
the Committee has considered the case of the workman
hereinabove, along with other applications and the
workman scored zero points on the basis of criteria
mentioned above, details of which are fully contained in
Annexure A.
8.
There is another aspect of the matter which cannot
be altogether ignored. IIT has also been held by the
Hon’ble Apex Court in the case of ‘Eastern Coal Fields
Ltd. Vs. Anil Badyakar & others, Civil Appeal No.3957/
2009 dated 15.05.2009 that compassionate appointment is
not a vested right which can be exercised at any time in
future. Compassionate employment cannot be claimed and
offered after a lapse of time and after the crisis is over.
Purpose of providing compassionate employment to a
dependent of Government servant or person working in
any private undertaking dying in harness is to mitigate
the financial hardship caused to the family of the deceased
employee on account of his unexpected death while in
service. None of these considerations can operate when
there is considerable time in approaching the employer for
employment. Thus, delay is always fatal to the
compassionate appointment. In view of the ration of the
law discussed above, case of the workman, in the case in
hand cannot be legally considered for appointment on
compassionate grounds more so when the workman has
not cared to pursue the claim/reference before this
Tribunal throughout the proceedings.
9.
As a sequel to the aforesaid discussion, it is held
that the workman is not entitled for being considered for
compassionate appoint. An award is accordingly passed.
Let this award be sent to the appropriate Government, as
required under Section 17 of the Industrial Disputes Act,
1947, for publication.
Dated : the 9th January, 2015
A. C. DOGRA, Presiding Officer
ubZ fnYyh] 22 tuojh] 2015
dk-vk- 190-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fnYyh uxj
fuxe 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; ua-&1] fnYyh ds iapkV (lanHkZ la[;k
1@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 21@01@2015
dks izkIr gqvk FkkA
¹la- ,y&42011@137@2012&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 22nd January, 2015
S.O.
190.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 1/2013)
of the Central Government Industrial Tribunal-cum-Labour
Court No.-1, Delhi now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Municipal Corporation of Delhi,
and their workmen, which was received by the Central
Government on 21/01/2015.
[No. L-42011/137/2012-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
IN THE COURT OF SHRI AVTAR CHAND
DOGRA, PRESIDING OFFICER, CENTRAL
GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT NO. 1, KARKARDOOMA
COURT COMPLEX, DELHI
ID No.1/2013
The General Secretary,
Hospital Employees Union,
Agarwal Bhawan,
GT Road, Tis Hazari,
Delhi 110054
...Workman
Versus
The Commissioner,
Municipal Corporation of Delhi
Town Hall, Chandni Chowk, Delhi
...Management
AWARD
Smt. Madhu Mittal and Smt. Ranjal Munjal working
as Dieticians at RBTB Hospital and Kasturba Hospital.
428
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
They were not treated at par with the nurses by the
competent authorities of the 6th Central Pay Commission
while recommending their pay scales. Hence, they
approached the Hospital Employees Union, (in short the
union) for redressal of their grievances. The union raised
a dispute before the Conciliation Officer. Since the claim
was contested by the Municipal Corporation of Delhi (in
short the Corporation), conciliation proceedings ended
into a failure. On consideration of failure report, so
submitted by the Conciliation Officer, the appropriate
Government referred the dispute to this Tribunal for
adjudication, vide order No.L-42011/137/2012-IR(DU) New
Delhi dated 17.12.2012, with following terms:
“Whether action of the management of Municipal
Corporation of Delhi in not granting same pay and
allowances to Smt. Madhu Mittal and Ms.Ranjan
Munjal, Dieticians at par with the nurses employed
by Municipal Corporation of Delhi with effect from
01.01.2006 is legal and justified. If not, what relief
the concerned workmen are entitled to?
2.
Claim statement was filed by the union that there are
only 63 dieticians working in various Government NCT,
MCD and NDBC hospitals of Delhi and handling diet
management of about 15000 indoor patients. Besides, they
are also dealing with outdoor patients. In addition, the
dieticians also attend Diet Clinics and referred cases from
OPD. Step-motherly treatment meted out to them vis-à-
vis Nurses by the 6th Pay Commission while recommending
their pay scales is unjustified. Doctors and Nurses are
paid non-practising allowance and Nursing Care
Allowance, but Dieticians are not paid any such allowance.
Non-grant of pay scale to Dieticians equivalent to that of
the Nurses is bad, unjustified and mala fide. Various
communication sent to their higher authorities yielded no
results.
3.
Government of NCT of Delhi vide its order bearing
No.F-24(174)/ND/130/2011/LAB/2570-2574 dated
09.01.2012 has also referred the same dispute to the
Presiding Officer, Industrial Tribunal (now presided over
by Shri Mahavir Singhal), Karkardooma Courts, Delhi and
is now at the stage of cross-examination.
4.
Written statement was filed by the management
pleading that the dispute is not espoused by massive
majority of the same category of workers or by any trade
union, no demand notice has been served upon the
management and reference has been made mechanically
without application of mind. The workmen have mislead
the Government of India by concealing the fact that the
they have already raised the same dispute before the State
Government. They are also not entitled for any relief from
the Hon’ble Tribunal as each and every post as its own
separate recruitment regularities having some specific
qualification, experience etc. prescribed by experts. Hence,
Dieticians cannot be equated with Staff Nurses or Doctors,
as duties of Dietician involves to prescribe diets to patients
and to supervise the Dietary Department, whereas duties
of Staff Nurse and Doctors involved extensive and
tremendous job of patients’ care with high risks for which
they are technically qualified. Even otherwise management
has no role to play in revision of pay scale/pay band/
grade pay of the posts ad the same is the sole prerogative/
domain of Pay Commission constituted by Government of
India.
5.
The case was listed for filing of rejoinder for
09.01.2015. However, on the said date Shri Surender
Bhardwaj deposed that he would like to withdraw the
dispute since the same matter is pending before Shri
Mahavir Singhal, Presiding Officer, Industrial Tribunal of
State Government.
6.
Shri Surender Bhardwaj, A/R for the claimant, vide
separate statement has stated that the same is pending
before Shri Mahavir Singhal, Presiding Officer, Industrial
Tribunal of State Government and as such, does not want
to pursue the present petition before this Tribunal. In
view of the above, the reference petition is permitted to be
withdrawn inasmuch as the same matter is pending for
adjudication before Industrial Tribunal of State
Government. An award is accordingly passed. Let this
award be sent to the appropriate Government, as required
under Section 17 of the Industrial Disputes Act, 1947, for
publication.
Dated : the 9 January, 2015
A. C. DOGRA, Presiding Officer
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 191-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ
bafM;k ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua-&2] /uckn ds iapkV (lanHkZ la[;k
300@1999) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
23@12@2014 dks izkIr gqvk FkkA
¹la- ,y&12012@136@99&vkbZvkj (ch-&II)º
jfo dqekj] MsLd vf/dkjh
New Delhi, the 23rd January, 2015
S.O.
191.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 300/
1999) of the Central Government Industrial Tribunal-cum-
Labour Court No.-2, Dhanbad as shown in the Annexure
in the Industrial Dispute between the management of the
Bank of India, and their workmen, received by the Central
Government on 23/12/2014.
[No. L-12012/136/99-IR(B-II)]
RAVI KUMAR, Desk Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
429
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 300 OF 1999
PARTIES :
Sh.Surendra Singh
C/O Sh.Ramjee Singh,
LIC-98, Housihg Colony, Dhanbad,
Vs.
The Manager,
Bank of India,Giridih Region,Giridih,
Order No.L -12012/136/99-IR (B-II) dt.05.10.1999.
APPEARANCES :
On behalf of the workman/ :
Mr. K. Chakrabotry, Ld.
Union
Advocate
On behalf of the
:
Mr D. K. Verma, Ld.
Management
Advocate
State : Jharkhand Industry :
Banking
Dated, Dhanbad, the 11th June, 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 -12012 /136/99-IR (B-II) dt.05.10.1999.
SCHEDULE
“Whether the action of the Management of Regional
Office of Bank of India Giridih in terminating the
service of Sh.Surendra Singh Sepoy/Peon from the
bank is justified? If not, what relief the workman is
entitled to”.?
2.
Neither workman Surendra Singh nor his
representative Advocate appeared nor any witness nor
his witness produced despite last chance and more than
ample opportunity for it. But Mr.D.K.Verma, the Ld.
Advocate for the O.P./Management is present.
On perusal of the case record, I find that the case
has been pending for the evidence of the workman since
8.11.2005 but despite Regd.notices to the workman by his
name and addresses noted in the reference itself, he has
been all along absent and never produced any witness on
his behalf. The workman by his conduct appears to be
quite unwilling to contest the case. In such circumstances,
the case is closed as no Industrial Dispute existent.
Accordingly, it is passed an Award of ‘No Industrial
Dispute existent’.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 192-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ
bafM;k ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua-&2] /uckn ds iapkV (lanHkZ la[;k
41@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 23@12@2014
dks izkIr gqvk FkkA
¹la- ,y&12012@14@2012&vkbZvkj (ch&II)º
jfo dqekj] MsLd vf/dkjh
New Delhi, the 23rd January, 2015
S.O.
192.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 41/2013)
of the Central Government Industrial Tribunal-cum-Labour
Court No.-2, Dhanbad as shown in the Annexure in the
Industrial Dispute between the management of the Bank
of India, and their workmen, received by the Central
Government on 23/12/2014.
[No. L-12012/14/2012-IR(B-II)]
RAVI KUMAR, 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 41 OF 2013.
PARTIES :
Shri Pintu Rajak,
R/O Jalpura, Noorsarai,
PO: Noorsarai, Distt: Nalanda, Bihar
Vs.
Zonal Manager,
Bank of India, Zonal Office,
Patna Zone, R-Block, Patna-1
Ministry’s Order No L-12012/14/2012-IR(B-II) dt.06.02.2013.
APPEARANCES :
On behalf of the workman/Union :
None
430
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
On behalf of the Management
:
Mr. B. B. Saran,
Ld. Advocate
State : Bihar
Industry : Banking
Dated, Dhanbad, the 15th 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-12012/14/2012-IR(B-II) dt.06.02.2013.
SCHEDULE
“Whether the action of the Management of Bank of
India in terminating the service of Shri Pintu Rajak,
Daily Wager w.e.f. 26.11.2010 is legal and justified?
What relief the workman is entitled to?”
2.
Neither workman Pintu Rajak appeared nor any
written statement along with any documents filed on his
behalf despite the last chance for it. Mr. B.B. Saran, the
Ld.Advocate for O.P./Management is present.
On perusal of the case record, I find that in spite of
three Regd.Notices having been issued to the workman
on his addresses as noted in the reference itself, he could
not respond to it in a positive manner. The workman by
his conduct clearly appears to be quite uninterested or
reluctant in pursuing his case for its finality. Under these
circumstances, it seems not any Industrial Dispute existent
as raised relating to his alleged termination of his service
as a Daily Wager.Hence, the case is closed as ‘No Industrial
Dispute’. Accordingly an order is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 193-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc us'kuy
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua-&2] /uckn ds iapkV (lanHkZ la[;k
21@2003) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 23@12@2014
dks izkIr gqvk FkkA
¹la- ,y&12012@114@2002&vkbZvkj (ch-&II)º
jfo dqekj] MsLd vf/dkjh
New Delhi, the 23rd January, 2015
S.O.
193.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 21/2003)
of the Central Government Industrial Tribunal-cum-Labour
Court No.-2, Dhanbad as shown in the Annexure in the
Industrial Dispute between the management of the Punjab
National Bank, and their workmen, received by the Central
Government on 23/12/2014.
[No. L-12012/114/2002-IR(B-II)]
RAVI KUMAR, 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 21 OF 2003.
PARTIES :
Kishor Prasad,
NC/4-B, Lohia Nagar,
Kankarbagh, Patna.-800001,
Vs.
The Zonal Manager,
Punjab National Bank, Zonal Office,
Chanaky Place, “R” Block, Patna,
Order No.L-12012/114/2002-IR (B-II) dt.27.01.2003.
APPEARANCES :
On behalf of the workman/Union :
Workman (himself)
On behalf of the Management
:
Mr. Arshad Ilyas,
Management
Representative
State : Bihar
Industry : Banking
Dhanbad, the 27th May, 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-12012/114/2002-IR (B-II) dt.27.01.2003.
SCHEDULE
“Whether the domestic enquiry conducted by the
Punjab National Bank, Ara Branch, Bihar in the case
of Shri Kishor Prasad, Part Time Sweeper was free
and fair, and the punishment order of termination
form Banks services was justified ? If not, what
relief the workman is entitled to?
On receipt of the Order No. L-12012/114/2002-IR
(B-II) dt. 27.01.2003 of the above mentioned reference from
the Government of India, Ministry of Labour &
Employment, New Delhi for adjudication of the dispute,
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
431
the Reference Case No. 21 of 2003 was registered on
06.03.2003 and accordingly an order to that effect was
passed to issue notices through the Registered Posts to
the parties concerned, directing them to appear in the Court
on the date fixed, and to file their written statements along
with the relevant documents. In pursuance of the said
order, notices by the Registered Posts were sent to the
parties concerned.
Both the parties made their appearances and filed
their pleadings and photocopies of their documents. The
workman and the O.P./Management himself and through
their own Representatives appeared in, and contested the
case.
2.
The case of workman Kishore Prasad is that though
he was originally appointed as a permanent sweeper on
01.01.1984, he was designated as part time Sweeper. He
had been continuously working satisfactorily. The alleged
theft of Rs.3, 63,975.80 on 27.03.1991 after the closure of
business at 5.30 p.m. was committed by the actual guilty
officials who had hatched a plan to falsely implicate the
poor workman in order to save their skin. The interested
official lodged a police case GR No. 271/91/T.R.501/96
against the workman/petitioner for the alleged theft. To
utter surprise, he was also issued a false and frivolous
chargesheet dt.15.9.1994 during the pendency of the
criminal case, in which he was acquitted by an order/
judgment dt. 29.11.1996, even against which the Cri.Rev.99/
947 filed by the anti-labour Management was also
dismissed as per order dt.23.7.1997 of the Hon’ble High
Court, Patna.When the Writ petition of the petitioner in
challenge to his termination dt.10.5.999 before the same
Hon’ble High Court was disposed of directing him to file
an appeal, challenged his termination before the
A.L.C.(C),Patna, but the same ended in failure due to the
adamant attitude of the Management, finally resulting in
the reference for an adjudication. Not only the domestic
enquiry conducted but also the action of the Management
on terminating his service is illegal and unjustified, as it
was vindictive and anti- labour policy of the Management.
His termination was too harsh and disproportionate to the
alleged offence. So he urges for his reinstatement with full
back wages and other incidental benefits.
3.
The Union Representative in his rejoinder for the
workman has specifically denied all the allegations of the
O.P./Management, alleging that no question of handing
over the keys of the collapsible Gate and wooden door of
the Branch to the workman, a part time sweeper, on the
ground of the permanent guard’s leave arses. The
Management appreciated it impossible to prove the
charges in a criminal case, so a false and frivolous charge
sheet was issued after the lapse of three years during the
pendency of the criminal case despite the protest of the
workman for it. Though the workman was acquitted in the
criminal case in the year 1996, he was illegally inflicted
with punishment by the Management.
4.
On other hand, the contra pleaded case of the O.P./
Management with categorical denials is that the service
conditions of the workman Staff in the Banking Industry
are governed by the provisions of the Sastry Award, Desai
award and various Bipartite Settlements. Chapter 19 of the
1st Bipartite Settlement as amended up-to-date prescribes
the procedure for taking disciplinary action against a
workman employee. Sri Kishor Prasad was working as the
Part Time Employee (Sweeper)at BO:Amaon. He was
served with the charge sheet dt.15.9.1994 for the allegation
of taking out Rs.3,63,975.80 (Rupees three lacs sixty three
thousand nine hundred seventy five and paisa eighty only)
by breaking open the Strong room between March 27
and 30,1991 (Closing and opening hours the Bank
respectively) with the keys of the collapsible gate and
wooden door of the Branch which were handed over to
him by the permanent guard of the Branch going on leave
so as to facilitate the opening and cleaning of the Bank
premises on the next working day. Earlier, the workman
was also placed under suspension and an FIR was also
lodged with the police on 30.03.1991. In respect of the
chargehseet dt.15.9.1994 served upon the workman, the
Disciplinary Authority ordered the departmental enquiry
as per order dt.16.5.1996.The Enquiry Officer submitted
his report dt.8.8.1996 to the Disciplinary authority, holding
the changes alleged as proved.
Having agreed with the findings and reasoning of
the Enquiry Officer, the Disciplinary Authority after giving
the workman an opportunity for personal hearing over his
proposed punishment of termination of Bank Service with
three months’ pay and allowance confirmed the
punishment of his termination as per the order
dt.10.5.1999.The Appeal dt.10.5.2000 as preferred by the
workman against the final order of the Disciplinary
Authority was also dismissed by the Appellate Authority
as per the Order dt.07.08.2000.
5.
Further alleged that the Disciplinary action was taken
against the workman according to the provision under
clauses 19.3(C), 19.11 and 12 of the Bipartite Settlement
open to the employer to proceed against workman
employee departmentaly, the punishment inflicted upon
the workman is commensurate with the gravity of allegation
established against him. In fact, the workman was acquitted
of the criminal charges at benefit of doubt in the criminal
proceeding as per the Judgment dt.29.11.1996, against
which the Revision Petition filed by the OP/Management
before the Hon’ble High Court was also dismissed. The
criminal proceedings and department proceeding stand
entirely on different footings; the offence in the criminal
proceedings is required to be proved beyond all
reasonable doubts, but the level of proof in the
departmental proceedings acts upon the preponderance
of the evidence. The action of the Bank against the
workman has been taken in accordance with the provisions
of the Bipartite Settlement after holding fair and proper
432
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
enquiry, and accordingly the punishment of his termination
is proportionate to the gravity of the allegation proved
against him. The O.P./Management has urged for
substantiating the charge against the workman at the
preliminary issue, if the enquiry found unfair.
6.
Categorically denying the allegations of the
workman, the OP/Management has pleaded that workman
Kishor Prasad had joined on 01.09.1981 as a part time
sweeper on consolidated wages of Rs.60/- per month sub-
sequentially enhanced at 1/3rd of the scale wage of
subordinate staff w.e.f. 01.07.1984 at the BO:Amaon. The
charge sheet of the theft was based on evidences. He was
suspended 28.02.1992. Despite all Registered Letters sent
to the workman returned with Service Report “LENE SE
INKAR KIYA”, he neither appeared nor cooperated in
the enquiry before the Enquiry Officer, the enquiry was
concluded ex-parte;thereafter,as per the enquiry report
dt.17.03.1999 by the Enquiry Officer, the charge was
held to have been proved against the workman. The
W.P. No. 1502/98 filed by the workman before the
Hon’ble Patna High Court was disposed of as per the
Order dt. 11.1.1999.
FINDING WITH REASONS
7.
On perusal of the evidences of MWI Rajeev Kumar
Saxena, the Sr.Manager, Circle Office, P.N.B at the
preliminary issue, the Tribunal has held the domestic
enquiry quite fair and proper as per the Order No.35
dt.26.2.2013.In resulted in hearing the final Argument of
both the parties on merits.
Mr. Kishor Prasad, the workman himself as per his
written argument has to submit that at the trial of the
alleged theft charge against him in the Civil Court,
Bhabhua, in regard to Chainpur Police case concerned,
he was acquitted of it as per the judgment of the Court
concerned (not any Certified or plain copy of any
document filed by the workman as evident from the instant
case record) which remained intact upto the Hon’ble High
Court concerned, yet neglecting the judgment of the
workman’s innocence and whereas the allegation of the
theft, the very basis of the department proceeding, had
ended, even then the O.P./Management by holding ex-parte
enquiry against him without principle of natural justice,
illegally punished him with termination of his service for the
theft in the Punjab National Bank, Branch:Araon (Distt:
Kaimur), so he is entitled to his reinstatement in service.
Whereas Mr. Arshad Ilyas, the Manager as the
Representative for the O.P./Management has to contend
that Kishor Prasad, the Part-time Sweeper of the Bank
Branch, had committed the theft about 36 Lacs and odd
thousands from the Cash Safe by breaking open the gate
of Strong Room of the Bank during the closing and opening
of the Business of the Bank on 27th & 30th March,1999 with
the Bank keys kept in the filing Cabinet, the aforesaid
misconduct was highly prejudicial to the interest of the
bank, putting the Bank in serious loss; the charges as per
the chargesheet (Ext.M-2) levelled against him were
established against the workman in the course of the
Departmental enquiry, which proceeded ex-parte on the
repeated refusal of the workman to receive the several
enquiry notices (Extt.M.5 Series) for his appearance though
he had submitted his reply to the chargesheet (Ext.M.3). It
is also submitted on behalf of the O.P./Management that
despite ample opportunities for his defence, the workman
also failed to appear before Disciplinary Authority to
respond to the Show Cause Notice (Ext.M.8) against the
proposed punishment of termination from his service. On
due consideration of the Enquiry Report and other relevant
materials on the records as well as the circumstances, the
Disciplinary Authority concluded that the workman must
not allowed to continue in the service of the Bank. So in
view of the grave nature of the misconduct of the workman,
the Disciplinary Authority as per Order dt.10.5.1999
(Ext.M.9) has rightly terminated his services with three
months Pay and Allowances in lieu of the Notice as per
clause 19.3(3) of the Bipartite Settlement (as
amended).Where an employee of the Bank dealing with
public money has no good conduct and integrity, no Bank
can keep the person on its employment as held in the case
of Managing Director Vs. United Commercial Bank Vs. P.
C. Kakkar reported in AIR 2003 (SC) 1571. So the Ld.Bank
Representative has underlined the punishment of
termination to the workman for his grave misconduct is
quite proportionate to the gravity of the aforesaid
allegation proved against him, as such in view of the
justified act of the Bank in terminating him as per the
aforesaid provision of the Bipartite Settlemetnt,the
workman having lost his integrity towards the Bank is not
entitled to any reinstatement in any service.
On perusal and consideration of the materials
available on the case record, I am of the opinion as also
submitted by the Ld.Repesentative for the O.P./
Management holds that it is well settled legal position
that acquittal in Criminal Case is not a bar to proceeding
departmentally against the workman for his aforesaid
misconduct. As in the both types of proceedings, the
standard of proof and mode of enquiry are quite different.
It is settled law that in case of criminal proceedings, the
acquittal is based on positive findings of innocence or on
merits, no defects can be found in the Disciplinary
proceedings initiated against the acquittal. The
Departmental proceedings act on the preponderance of
the evidences, whereas the offence in the criminal
proceedings needs to be proved beyond reasonable
doubts. In the instant case, the non-appearance of the
workman either in the departmental enquiry or before the
Disciplinary Authority even after second Show Cause
appears to be prima facie his willful evasion from his liability
toward the charge. The Banking service is a public service
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
433
highly sensitive which requires good character and
integrity of the workman who lacks it in the instant case.
Under these circumstances, it hereby, in the terms
of the Reference responded and accordingly awarded, that
the domestic enquiry conducted by the Management of
Punjab Nation Bank, Ara Branch, Bihar, in the case of Shri
Kishor Pasad, Part-time Sweeper, was quite free and fair,
and the punishment order of his termination from the
Bank services was not only justified but also legal.
Hence, the workman is not entitled to any relief.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 194-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj xkMZu jhp f'ki
fcYMlZ ,aM bathfu;lZ fyfeVsM 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;] dksydkrk
ds iapkV (lanHkZ la[;k 08@2002) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&32011@5@99&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O. 194.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 08/2002)
of the Central Government Industrial Tribunal/Labour Court,
Kolkata as shown in the Annexure in the Industrial Dispute
between the management of the Garden Reach Ship Builders
and Engineers Limited, and their workmen, which was
received by the Central Government on 12/01/2015.
[No. L-32011/5/99-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL-
TRIBUNAL AT KOLKATA
Reference No. 08 of 2002
Parties: Employers in relation to the management of
Garden Reach Ship Builders and Engineers Ltd.
A N D
Their workmen
Present: Justice DIPAK SAHA RAY, Presiding Officer
Appearance:
On behalf of the
:
Mrs. K. Bhattacharyya,
Management
Ld. Counsel
On behalf of the Workmen
:
None
State : West Bengal
Industry : Railways
Dated: the 6th January, 2015
AWARD
By Order No.L-32011/5/99-IR(M) dated 27.02.2002
the Government of India, Ministry of Labour in exercise of
its powers under Section 10(1)(d) and (2A) of the industrial
Disputes Act, 1947 referred the following dispute to this
Tribunal for adjudication:
“Whether the action of the management of Garden
Reach Ship Builders & Engineers Ltd. in dismissing
Sh. Basudev Mitra from service w.e.f. 30.6.94 is legal
and justified? If not, what relief the workman is
entitled?”
2.
When the case is taken up for hearing today, none
appears on behalf of the workmen though the management
is represented by its Ld. Counsel. It appears from the record
that the concerned union is not appearing inspite of service
of notice.
3.
Considering the facts and circumstance, it appears
that the union is not at all willing to proceed with the case
further. So, no fruitful purpose will be served in keeping
the matter pending.
4.
In view of the above facts and circumstances, present
reference is disposed of by passing a “No Dispute Award”.
Dated, Kolkata,
The 6th January, 2015
Justice DIPAK SAHA RAY, Presiding Officer
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 195-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj foosdkuank dsanz
,u- vkj- ,y- gkWfLiVy] uqekyhx<+ 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;] xqokgkVh ds
iapkV (lanHkZ la[;k 07@2012) dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&30012@36@2011&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O.195.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 07/2012)
of the Central Government Industrial Tribunal/Labour
Court, Guwahati now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
434
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
the management of the Vivekananda Kendra NRL Hospital,
Numaligarh and their workmen, which was received by
the Central Government on 12/01/2015.
[No. L-30012/36/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
GUWAHATI, ASSAM
Present :
Shri L. C. DEY, M.A., LL.B, Presiding Officer,
CGIT-cum-Labour Court, Guwahati
Ref. Case No.07 of 2012
In the matter of an Industrial Dispute between :-
The Management of Vivekananda Kendra NRL
Hospital, Numaligarh, Golaghat, Assam
Vrs.
Their workman Sri Jibon Jyoti Borah, Lab. Tech. Emp.
No. 2008, Kahilipara, Guwahati
Appearances :
For the Workman.
:
Mr. S. Chamoria, Advocate
Mr. N.Konwar, Advocate
Mr. M.Das, Advocate
For the Management
:
Mr. S.N. Sarma, Sr. Advocate
Mr. S.C. Keyal, Advocate
Miss. K. Hazarika, Advocate
Date of Award : 14.11.2014
AWARD
1.
This Reference is arising out of an Industrial Dispute
exists between the employers in relation to the
Management of Vivekananda Kendra NRL Hospital,
Numaligarh and their workman Shri J.J. Borah on account
of his dismissal from service by the Management after
discharging his duties for 11 years, which was referred to
by the Ministry of Labour and Employment vide their Order
No.-L-30012/36/2011-IR(M) Dated: 31/01/2012. The
Schedule of the Reference is as under.
SCHEDULE
“Whether the NRL, VKNRL authority have adopted
right step in dismissal Shri J. Jyoti Borah, from this
services of 11 years standing. If not whether the
management could be directed to reinstate Shri Borah
with all back wages or from the date of such order as
may be issued by the appropriate authority.”
2.
On receipt of the order of Reference from the Ministry
of Labour and Employment, Government of India, New
Delhi, this Reference Case was registered and notices were
also issued upon both the parties with direction to file
their Claim Statement/Written Statement and documents
and to exchange their respective copies of Claim Statement/
Written Statement and documents between them.
Accordingly both the parties appeared and submitted their
Claim Statement/Written Statement.
3.
The case of the workman, as it appears from the
claim statement submitted by him, in brief, is that he was
appointed as a Laboratory Technician in the Hospital of
Vivekananda Kendra NRL Hospital, ( hereinafter called
VKNRL Hospital) through the Selection Committee of NRL
Authority on 02.04.99; and on 01.05.1999 he joined the
service. On completion of one year probation period he
was confirmed on 01.05.2000 by the Authority. On 16.5.09
the Secretary of VKNRL Hospital issued a show cause
notice against him intimating him that an enquiry would
be held against him on the charge of misconduct on three
articles of charges disclosing the acts alleged to have
been committed by him amounts to misconduct under the
Standing Order 3(A), (1) and (j) with instruction to explain
by 3 P.M on 26.05.09 as to why he should not be dismissed
or otherwise punished. In response to the said show cause
notice he submitted reply on 26.05.09 denying all the
charges levelled against him with explanation that due to
acute headache he could not attend the call duty of
26.05.09; and as he was not in a position to move to the
hospital which he informed Sri Promode Dutta, the Driver
of the vehicle who came to his residence, to intimate the
Doctor in-charge about his indisposition. The workman
mentioned that he was on leave for few days and he joined
his duty on 1.06.09 while the Enquiry Officer conducted
the enquiry on 02.06.09. The Enquiry Officer being the
Trustee Member of VKNRL Hospital, himself cross-
examined the workman being himself a Disciplinary
Authority. He added that sufficient opportunity was not
provided to him by the Enquiry Officer to furnish the
evidence and documents by him and that the Enquiry
Officer allowed him half an hour time to call the witnesses.
The Secretary of VKNRL Hospital, issued the second
show cause notice on 27.06.09 intimating him that having
been satisfied with the findings of the enquiry officer the
Disciplinary Authority proposed to dismiss him from
service. Upon which the workman submitted reply on
22.7.2009 refuting all the finding of the enquiry report as
the Enquiry Officer had failed to substantiate the charges
levelled against him. Subsequently by a letter dated 11.8.09
the Secretary VKNRL Hospital informed him the decision
of the management to discharge him from service and asked
him to vacate the quarter provided to him within 15 days.
Thus the decision of the management to discharge him
from service is arbitrary and unjust and in violation of
principle of natural justice, equity and good conscience.
No reasonable opportunity of hearing was given to him
and the management was pre determined to dismiss him
from service. The workman further stated that as regards
the charge against him for his failure to attend the call
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
435
duty on 28.3.09 he had explained the circumstances for
which he failed to attend the call duty and the witnesses
in their evidence have clearly stated about the physical
condition of the workman on that particular date but this
evidence was not appreciated in proper perspective. He
again stated that he is suffering from migraine which causes
recurrent throbbing headache which affect one side of the
head often accompanied by nausea and disturbance of
vision and on that date he was suffering from migraine
headache for which he explained to the authority to perform
the pathological examination in such a condition is
unreasonable and unjustifiable. The workman said that he
was charged of committing misconduct mentioned in the
item No.3(a), (1) & (j) of the Standing Order but there is no
mention in the enquiry report that he was found guilty
under the Standing Order; and that the management has
imposed the harsh punishment of charge from service
without any clear findings of the Enquiry Officer that he
had been habitually negligent in his work; and that
physical unfitness can not be constructed as willful
insubordination or disobedience. Thus the allegation of
habitual negligence towards the duty is purely based on
whims and caprice of the management of VKNRL hospital.
He further contended that except the aforesaid unfortunate
day he never failed to attend his duty and no previous
instance have been cited or discussed in the enquiry report.
and also there is no evidence at all in support of the charge
of the habitual negligence against him. Hence, the workman
prayed to direct the management as to why the dispute
raised out of the above mentioned fact and it shall not be
settled amicably by haring both the parties to the dispute
and also to direct the management of VKNRL hospital not
to alter the condition of the service of the workman and
allow the workman to stay in the quarter provided to him.
4.
The management of VKNRL contested the
proceeding filing written statement stating inter-alia that
the appropriate government has referred this dispute
mechanically without application of mind, without
verifying the facts, materials and circumstances of the
matter as well as the terms of reference is absolutely vague
and a stale dispute as admittedly the workman was
discharged long ago on 11.8.09 was referred. As such, the
order of reference is liable to be rejected. The management
pleaded that the workman was in the habit of committing
misbehavior during the working hours and he was earlier
charge sheeted and was found guilty, however, on his
assurance not to commit such misconduct in future the
management took lenient view and in stead of dismissing
him warned him and was suspended for four days. On
28.3.2009 he was on call duty and when a serious patient
was admitted in the hospital he was immediately asked to
attend the Hospital and to bring him to the hospital
ambulance was sent to his residence but the workman
refused to come and sent back the ambulance. The
authority having no other option but to call a specialized
Doctor who was not on duty at that time, as the patient
was in very serious condition. Thus the act of the workman
was that of not only inhumanitarian but also disobedience
to the order of his superiors while on call duty.
Accordingly the workman was asked to show cause and
finding his show cause not satisfactory he was charge
sheeted wherein it was specifically mentioned that his
earlier misconduct would also be taken into consideration
in deciding the instant misconduct. Thereafter a full
fledged enquiry was held in compliance of natural justice.
The Enquiry Officer found the workman guilty of the
charges and accordingly he forwarded his enquiry report
to the workman for his representation if any, and after
receipt of his explanation management took into account
the charges, his explanation, the enquiry proceeding,
findings of the enquiry officer as well as representation of
the workman against the findings; and on perusal of the
above documents the management found the workman
not fit for the service of the hospital and accordingly
decided to discharge him from his service.
Further case of the management is that the workman
committed misconduct under clause 3(a),(i) & (J) and as
such the Management on being not satisfied with the reply
of the workman charges were framed vide order dated
16.5.2009 and issued to the workman asking him to submit
his reply within 10 days.
“No.1
That on 28.3.2009 when Ambulance Driver Sri
Promod Dutta went to your residence at 11 P.M.
with call Book sent to you by G.D.M.O. on duty
for some urgent investigations of a patient
admitted in causality, you refused to attend the
call despite being on “call duty on 28.3.2009”,
which speaks of your negligence to your work
and duty.
No.2
Not only did you decline to attend the duty, you
also failed to give any intimation to the Doctor
on duty, or your Head of the Department and
hospital Administrative Officer which clearly
reflects your utter lack of responsibility and
negligence and your disrespect to a noble
profession that too in a Hospital founded on the
philosophy of Swami Vivekananda based on noble
moto to serve affected patient coming to the
Hospital for treatment under emergent physical
condition.
No.3
It is also brought to your notice that you have
been warned previously for similar lapses and
derelictions, copies of which are enclosed at
exhibit-H,I,J,K,L,M,N, which will be taken into
consideration when deciding your case.”——
Accordingly the workman submitted his reply to
the said charge sheet vide his letter dated 25.5.09 but
finding the replies/explanation of the workman
unsatisfactory it was decided to hold an enquiry and
436
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
accordingly Sri Bharat Baruah was appointed as Enquiry
Officer by the management. The Enquiry Officer by his
letter dated 28.5.09 informed the workman about the date
and venue of the enquiry along with the information that
the workman can take help/assistance of his co-worker. In
the enquiry commenced on 2.6.09 the workman duly
participated in the proceeding and both the sides adduced
evidence and documents. After recording of the
proceeding the workman was explained and read over the
same which he acknowledged by putting his signature.
The copies of the proceeding were supplied to the workman
and the enquiry was held in cordial environment where
there was no complaint from either side and the Enquiry
Officer also has acted most impartial and unbiased manner
by giving ample opportunities to the workman to cross-
examine and re-examine the witnesses for the management
and led his evidence in support of his defence. There was
also no violation of principle of natural justice. On
conclusion of domestic enquiry the Enquiry Officer
submitted his report on 17.6.09 with his findings that all
the 3 charges against the delinquent workman were found
established beyond doubt. The copy of the enquiry report
was also forwarded to the workman vide letter dated 27.6.09
while the workman duly received and replied to the same
on 22.7.09. Thereafter the management considering all the
materials on record concurred with the findings of the
Enquiry Officer and also found that there are no extenuating
circumstances to mitigate the offence and hence, it was
decided to dismiss him but taking a lenient view he was
not dismissed and he was discharged from service by order
dated 11.8.09. It is mentioned by the management that the
workman has been gainfully employed since the date of
his discharge from service i.e. 11.8.09, and being an ex-
laboratory Technician of a prestigious Institution like
VKNRL Hospital, the workman is now deriving substantial
income from various nursing homes and having other
source of income also. The management also denied all
the allegations raised by the workman in his claim statement
except which are admitted as well as on record. Hence, the
management prayed to declare that the domestic enquiry
is valid and proper and to upheld the discharge of the
workman deciding the reference in favour of the
management with cost.
5.
The workman examined himself as W.W.1 in order to
establish his case while the management examined three
witnesses including Dr. Ranjan Kumar Mahanta, the
Medical Superintendent of Management of VKNRL
Hospital, Numaligarh (MW.1), Sri Promode Dutta, the
Driver of the Ambulance of VKNRL Hospital, Numaligarh
(MW.2) and Dr. Barnali Deuri, SMO pathology of VKNRL
Hospital, Numaligarh (MW3.). Both the parties have
proved the documents in support of their respective
evidence and they have also argued at length.
6.
The workman Witness No.1, Sri Jibon Jyoti Borah,
the claimant stated that he was appointed as Laboratory
Technician in the VKNRL Hospital, Numaligarh on 2.4.99
vide Exhibit-1 and he joined his duty on 1.5.99, and after
successful completion of one year probation period his
service was confirmed vide letter dated 1.5.2000 marked as
Exhibit-2 issued by the VKNRL Hospital. On 16.5.09 the
Secretary of VKNRL Hospital issued a show cause notice
along with statement of charges to him intimating that an
enquiry would be held against him on the charges of
misconduct under Standing Order 3(a), i & j vide Exhibit-3,
while the workman submitted his reply dated 25.5.09 vide
Exhibit-4 denying all the charges levelled against him and
explained that due to acute headache he could not attend
the call on 28.03.09 as he was not in a position to move to
Hospital which he informed Sri Promode Dutta the Driver
of the Ambulance who came to his residence with call
Register. The workman also said that another person was
engaged by Doctor In-charge to perform the pathology
examination of the patient. Lateron he came to know that
nothing serious was detected in the pathological
examination. He also mentioned that he was on leave for
few days and joined his duty on 01.06.09 and the enquiry
was conducted on 2.6.09, but the Enquiry Officer himself
cross-examined him as he himself was the disciplinary
authority i.e. a Trustee Member of VKNRL Hospital. He
added that sufficient opportunity was not provided to
him by the Enquiry Officer to furnish evidence and
documents on his behalf and that the Enquiry Officer
allowed him only half an hour time to call the witnesses if
any but no opportunity was given to furnish the
documents. The workman further mentioned that the driver
of the Ambulance and the then Doctor In-charge during
their examination stated before the Enquiry Officer about
his health condition on that night and also affirmed that it
was intimated to the Enquiry Officer by the Driver of the
Ambulance. He has proved the copy of letter dated 18.07.09
vide exhibit-5 along with the statement made by the Enquiry
Officer vide Exhibit-5(1) issued by Capt. R.Joshi, Secretary
of VKNRL, along with the statements of Exhibit-5(2), 5(3)
and 5(4). The W.W.1 stated that on 27.6.09 the Secretary
VKNRL Hospital, Numaligarh issued second show cause
notice (Exhibit-6) enclosing the enquiry report marked as
Exhibit-7 intimating him that the Disciplinary Authority on
being satisfied with the findings of the Enquiry Officer,
proposed to dismiss the workman from service vide
Exhibit-6, whereupon he submitted his reply refuting all
the findings of the Enquiry Officer vide Exhibit-8.
Subsequently the Secretary, VKNRL informed him the
decision of the management to discharge him from service
and asked him to vacate the quarters within 15 days vide
Exhibit-9. The workman contended that the decision of
the management to discharge him from service is arbitrary,
unjust and in violation of principle of natural justice since
no reasonable opportunity was given to him. He also
added that he was a patient suffering from migraine and
on that date he was suffering from migraine headache and
it was not at all possible for him to perform the pathological
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437
examination in such a condition and as such, expectation
to the authority to perform the pathological works is
unreasonable and unjustifiable. In support of his medical
ground he has proved medical certificates and
prescriptions vide Exhibits-10,11,12,13& 14. He further
contended that although he was charged of committing
misconduct narrated in clause No.3(a), (i) & (j) of the
Standing Order in the enquiry report nothing has been
stated to indicate to prove that he was found guilty of
committing misconduct under Standing Order. Rather the
management has imposed major punishment of discharge
from service without any clear findings of the Enquiry
Officer to the effect that he had been habitually negligent
in working; and that the sole incident of failure to attend
the call on duty on 28.03.09 occurred due to physical
unfitness can not be construed as willful insubordination
or disobedience. In course of his cross-examination the
workman stated that at present he is residing at his own
residence at Kahilipara, Guwahati and the quarter allotted
to him has not been vacated in spite of issuing him repeated
order to vacate the same. He admitted that on 22.12.03 he
was suspended for 4 days for misconduct vide Exhibit-A
whereupon Exhibit-B is his explanation to the Medical
Superintendent, VKNRL admitting his guilt in reply to show
cause issued by the management; and on receipt of his
explanation the management took a lenient view and
awarded a final warning vide their letter dated 21.4.2004
proved as Exhibit-C. He also admitted that Doctor B.Deuri,
Head of Department, VKNRL issued a letter to the Medical
Superintendent, VKNRL Hospital regarding not joining
by him after expiry of his leave; and thereafter a show
cause notice was issued against him vide Exhibit-E
whereupon he submitted his explanation vide Exhibit-F.
On receipt of his explanation a formal show cause notice
was issued against him vide Exhibit-G and he replied to
the said show cause vide Exhibit-H and then the workman
vide his letter dated 4.6.2005 (Exhibit-I) admitted the charges
framed against him vide Exhibit-G, while the management
imposed punishment of break of service and loss of pay
and allowance for the period of his absence vide their
letter marked as Exhibit-J. The workman also admitted that
there is rule in their hospital that all the medical staff are
allotted one week call duty when they can stay at their
own quarter/resident and they are to attend the hospital
on call in case of emergency; and on 28.3.09 when he was
on call duty the hospital authority sent one Ambulance
along with an order through the Driver for attending
emergency call. Accordingly the driver handed over the
call Register which he read over but he refused to attend
the duty and informed the driver to inform the Doctor that
he is not feeling well. The workman further mentioned that
he was suffering from migraine and he was using medicine
occasionally but he can not say the name of the said
medicine and he was also treated in VKNRL Hospital
sometime for migraine but he could not produce any
document in support of this statement. He again admitted
that VKNRL hospital maintain a Register entering the name
of the patient before starting treatment and VKNRL hospital
individual medical file is maintained for each and every
medical employee and his family but he did not call for
that file. He also admitted that an enquiry was held against
him wherein he was present and he had examined his
defence and also cross-examined the management
witnesses; and the findings of the Enquiry Officer was
forwarded to him Vide Exhibit-6. He denied the suggestion
tendered by the management that on 28.3.09 he was not
feeling well and suffering from headache, and that he has
been working now in a pathological centre at Guwahati.
He again stated that on 29.3.09 when he attended his duty
he did not get examined himself for his disease i.e. migraine,
but he was treated as out door patient at International
Hospital, Guwahati for fever once and he did not take any
leave in the month of March, 2009.
The management witness No.1 Dr. Ranjan Kr.
Mahanta, the Medical Superintendent of management of
VKNRL Hospital, Numaligarh stated that on 28.3.09 a
serious patient was admitted in their hospital when the
workman was on call duty was asked to attend the hospital
and to bring him, the hospital ambulance was sent to his
house driven by Promode Dutta, the Ambulance Driver
but the workman refused to come to the hospital to attend
emergency call and sent back the ambulance. Thereafter
he called Dr. B.Deuri, In-charge, Pathology Department of
the Hospital who was not on call duty on that day. The
MW.1 further mentioned that the act of the workman was
not only in-humanitarian but also dereliction of the duty
and disobedience of the lawful order of the superior. The
workman also did not make any intimation to the Doctor
and/or his department on duty. As such, the workman
committed misconduct of 3(a),(i) & (j) of the Standing
Order. Thereafter a show cause notice was issued against
the workman asking him to submit his reply on 3.4.09 but
the management was not satisfied with the reply and hence,
charge sheet dated 16.5.09 was issued against the workman
mentioning that his past conduct would also be taken into
account in deciding the present misconduct. Accordingly
a full fledged enquiry was held in compliance of the
principle of natural justice. He added that the Enquiry
Officer had acted in a most impartial and unbiased
providing amble opportunity to the workman to cross-
examine and re-examine the witnesses and allowed his
evidence in support of his defence. He again said that the
Enquiry Officer after conclusion of the domestic enquiry
submitted his report on 17.6.09 with finding that all the 3
charges framed against the workman were established
beyond doubt and the enquiry report was forwarded to
the workman who on receipt of the same submitted his
reply on 22.7.09. The management also found that the
findings of the Enquiry Officer was based on evidence
and materials on record and accordingly concurred to the
findings of the Enquiry Officer. As the charges proved
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against the workman were serious in nature and the
management lost of faith and trust deposed upon him
decided to dismiss. However, taking lenient view the
workman was dismissed from service vide order dated
11.8.09. The MW.1 witness also mentioned that the
workman was found guilty on misconduct on many
occasion and was punished for the same; and that the
workman by his letter dated 12.04.2004 apologised for his
misconduct in refusing to sign holiday duty roster when it
was brought to him by the Security Guard. Thereafter the
workman was given final warning for his misconduct and
subsequently admitted by him taking lenient view therein.
Besides the workman was in the habit of not attending
duty in time and in this way he failed to join his duty on
02.05.2005 after his leave and as such, show cause notice
was issued to the workman on 10.05.2005 while the
workman submitted his explanation. Thereafter a formal
show cause notice was issued to him on 24.05.2005 and
the workman submitted his explanation on 27.5.05.
However the workman admitted his guilt on 4.6.2005 and
accordingly punishment of breaking in service with effect
from 2.5.05 to 4.5.05 and loss of pay and allowance for the
period of his absence was imposed against the workman
vide order dated 18.7.05 vide Exhibit-J. It is also mentioned
by the management witness that Mr. A.Boarh , Asstt.
Manager (operation) of NRL lodged a complaint against
the workman of misbehaving his wife and the matter was
enquired into and the workman was advised to use official
language and not to indulge in such type of unacceptable
behavior and use of bad language. The MW.1 categorically
stated that the workman never complained before the
management about his suffering from migraine nor he was
treated in VKNRL Hospital ever for such ailment. The
management witness has proved the written complaint
submitted against the workman by Sri A Borah, Asstt.
Manager (operation), NRL, vide Exhibit-K.
During his cross-examination the MW.1 stated that
for the purpose of attending call duty they maintain roster
about one month earlier and the copy of the said roster
was supplied to the workman and in case of absence of
any Laboratory Technician on call duty due to unavoidable
circumstances they contact the remaining Laboratory
Technicians for attending call duty and even in absence
of Laboratory Technicians on the date of his call duty
they inform the Head of Department. He also said that on
the basis of reply/remarks of Laboratory Technician due
to failure to attend call duty they consider the same and
take appropriate action on the following day. He confirmed
that on 28.3.09 Driver of the Ambulance which was sent to
the residence of the workman, reported to him that the
workman had refused to attend the call duty and thereafter
the Head of the Laboratory Dr. B. Deuri came and performed
the work of Laboratory Assistant on that day. He was one
of the witnesses in the enquiry proceeding against the
workman while he stated that he had no knowledge about
the behaviour and misconduct of the workman and after
taking over the charge of Medical Superintendent of
VKNRL Hospital he came to know that the workman was
earlier suspended by the authority with effect from 23.12.03
to 26.12.03 and he could not say if the workman was placed
under suspension due to the cause of the Union as a
whole, but he also came to know that due to unauthorised
absence of the workman from 2.5.05 to 4.5.05 the
management had cut the pay of the workman. He again
mentioned that there is no ENT Doctor in their hospital
but there are some visiting Doctors of ENT Department
on weekly basis and this system has been continuing till.
However, there is no precedent regarding dismissal of the
workman due to failure of the workman to attend call duty.
He again said that the Enquiry Officer Mr. B.Baruah, retired
IAS Officer who is a member of the Governing Body. In
course of the suggestion tendered by the learned
Advocate for the workman he denied that Exhibits-D,K
and L are not genuine. With a view to cause harassment to
the workman; and that due to his illness the workman
could not attend the call duty for his punishment of
dismissal is not proper and legal. He further denied that he
had made some false and concocted statement in order to
harass and to dismiss the workman and that the punishment
imposed by the management is not proper, just and legal.
The MW.2 Sri P. Dutta, the Driver of the Ambulance
of VKNRL Hospital stated that on 28.3.09 the workman
was on call duty and on that day a serious patient was
admitted in their hospital. While the workman was
immediately called to attend the hospital and for bringing
the workman the hospital Ambulance was sent to the house
of the workman, and when he pushed the calling bell the
wife of the workman opened the door and then he asked
whether the workman was present. Then the wife of the
workman informed that the workman was at home, while
the workman came out he showed the call book but after
going through the call book the workman refused to attend
the emergency call and then MW.2 returned to the hospital.
In course of his cross-examination the MW.2 stated
that since 2006 he has been working as Driver of VKNRL
hospital. He mentioned that he went to the residence of
the workman along with a call register of VKNRL hospital
on 28.3.09 and on enquiry the wife of the workman told
him that the workman had been suffering from headache
and then he went to the room and saw the workman sitting
on his bed tying a gamocha on his head. Then the workman
told him to inform the Doctor In-charge that the workman
had been suffering from illness. Accordingly he reported
the matter to the Doctor In-Charge but on production of
the call register the workman did not write any remarks /
reply in the call register.
The MW.3, Dr. B.Deuri, the SMO, Pathology of
VKNRL hospital, Numaligarh said that on 28.3.09 the
workman was on call duty and on that day a serious patient
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439
was admitted in their hospital while the workman was asked
to attend the hospital to do some emergency laboratory
test as per advice of the attending Doctor; and to bring
the workman the hospital ambulance was sent to his house
but the workman refused to come to the hospital and sent
back the ambulance thereafter the MW. 3 who was not on
call duty on being called by Dr. R.K. Mahanta, came to the
laboratory and did the work. She also mentioned that on
the next morning she informed in writing Medical
Superintendent and Medical Director that the workman
did not inform her about inability to come and the fact that
she offered her service to the patient on that particular
day as directed. She added that the act of the workman
was not only inhumanitarian but dereliction of duty and
disobedience the lawful order of the superior and that the
workman also failed to intimate the Doctor or his
department on duty. She has proved the letter written by
her to the Medical Superintendent of the hospital vide
Exhibit-D.
During her cross-examination the MW. 3 stated that
the pathology Department of VKNRL Hospital was under
her supervision at that time, and call duty register for
calling any of the Technician or Doctor was sent through
the driver of the Ambulance but she could not say if any
remark was made on this register by the Technician in the
event of his failure to attend the call. She added that since
she was the In-charge of Pathology Department of VKNRL
she found no such case of dismissal from service of the
Technician due to his failure to attend the call duty. She
also said that she could not say without going through
the record if there was any ENT Doctor in their hospital
during 2009 nor could say whether the workman ever
refused to attend call duty. She also mentioned that on the
following day of 28.3.09 the workman did not submit any
letter/representation to her due to his failure to attend the
call duty on 28.3.09.
7.
On careful scrutiny of the evidence along with the
documents adduced by both the sides it is found admitted
that the workman Sri J.J.Borah had been working as
Laboratory Technician in the VKNRL hospital on 28.3.09
and on that day he was on call duty was called to attend
call duty, and the Ambulance of the said hospital was sent
to his residence along with call duty register through the
driver of the Ambulance and that the workman failed to
attend the duty and thereafter the management of VKNRL
started enquiry proceeding against him and show cause
notice was issued against the workman framing 3 numbers
of charges against him and accordingly enquiry was held
and on conclusion of the enquiry, the Enquiry Officer
submitted his report forwarding a copy of the same to the
workman before the Management of the VKNRL which on
being satisfied with the findings of the enquiry held by
the Enquiry Officer according to the law, concurred to the
findings of the Enquiry Officer and proposed to impose
punishment. Thereafter the 2nd show cause notice was
issued against the workman allowing him an opportunity
to represent himself against the proposed punishment
whereupon the workman submitted his representation and
the management of VKNRL, Numaligarh rejecting the
representation of the workman imposed punishment of
discharge from service with immediate effect.
8.
The workman both in his W.S. and evidence on
Affidavit took the plea that due to his illness he was not in
a position to attend the duty on the fateful day i.e. on
28.3.09 and he explained about his inability to attend the
call duty before the driver of the Ambulance of VKNRL to
intimate the same to the SMO. From the evidence of the
MW. 2 Sri P. Dutta the driver of the Ambulance of VKNRL
it appears that he went to the house of the workman and
showed the call book while the workman refused to come
to the hospital to attend emergency duty. In his cross-
examination the said MW-2 stated that on his appearance
at the residence of the workman the wife of the workman
told him that the workman had been suffering from
headache and the workman also told him (MW-2) to inform
the Doctor In-Charge that he had been suffering from
illness. In course of his cross-examination the workman
also admitted that on 28.3.09 the hospital authority had
sent one Ambulance along with an order for attending
emergency call through the driver and accordingly the
driver handed over the call letter which he read but he
refused to attend the duty and told the driver to intimate
the Doctor that he was not feeling well. He also said that
he was treated in VKNRL sometimes for migraine but he
could not produce any documents in support of his
statement. He further mentioned that VKNRL maintain a
register of entries the name of the patients before starting
treatment and in their hospital individual medical file is
maintained for each and every medical employee and his
family members but he has not called for the said medical
file nor did he produce any document nor could he say the
name of the medicine which he used. Further the workman
himself stated that on the following day i.e. on 28.3.09 he
attended the duty but there is nothing on record to show
that he had made any remark on the call order produced
before him by the driver of the Ambulance nor did he
submit any written intimation to his controlling officer/
HOD informing that he could not attend the call duty on
28.3.09 due to his illness. Mr. S. Chamaria the Learned
Advocate for the workman, in course of argument,
mentioned that the workman in course of the enquiry
proceeding mentioned that the intercom phone was not
functioning on the fateful day for which he could not
inform his inability to attend call duty. But the workman in
course of his cross-examination before the Enquiry Officer,
stated that he had mobile phone but he could not contact
Dr. B.Dewri over his mobile phone inspite of his efforts.
But it is not understood as to why he failed to inform the
Head of Department or any other Officers of the VKNRL
Hospital in writing on the following day. The workman
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THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
also filed to produce any documentary evidence to the
effect that he was suffering from migraine the relevant
period. The document i.e. the medical certificate/
prescription submitted by the workman vide Exhibit-11,
Exhibit-12, Exhibit-13 & Exhibit-14 are found not regarding
the relevant period. As such, this plea of the workman is
found to be not believable because the workman has been
holding a responsible post of Laboratory Technician
entrusted to the emergency duty and it is his duty to
inform his controlling authority as to the cause of his
inability to attend the duty forthwith with all sincerity.
9.
Mr. Chamaria, Learned Advocate for the workman
further submitted that the departmental enquiry held by
the management is not proper and legal since no Presenting
Officer was appointed by the management and the Enquiry
Officer himself acted as Presenting Officer who cross-
examined the workman which is not permitted by law. He
also mentioned that the Enquiry Officer Mr. B. Baruah IAS
(retired) being one of the member of the Board of Trustee
of VKNRL as well as the Disciplinary Authority hold the
enquiry in gross violation of principle of law as well as
natural justice. As such, the findings of the Enquiry Officer
is illegal & perverse & hence the action of the Management
in discharging the workman from service is not according
to the principles of law as well as natural justice. Learned
Advocate for the workman also pointed out that the
Enquiry Officer has not given sufficient opportunity of
hearing to the workman which is a gross violation of the
constitutional provisions & the principles of natural
justice, and hence the order of discharge of the workman
from service is liable to be set aside & the workman is
entitled to be re-instated with back wages.
In support of his contention Mr. Chamoria, Learned
Advocate for the workman relied upon the decision held
in the State of Manipur & Ors. Vs. Chongtham Homendro
Singh reported in 2005(3) GLT 154, wherein it was held
that it is settled law that the Enquiry Officer while sitting
as a judge he can not also be sitting as the prosecution to
examine the witness by himself.
The Enquiry Officer cannot assume the role of judge
and also the prosecution. Even there is no such provision
under Rule 66 for appointment of the Presenting Officer,
the simple question is that who is to present the case of
the department when there is no presenting officer,
therefore, absence of presenting officer will make the
inquiry totally vitiated as the inquiry officer can not assume
the role of the judge as well as prosecution. Mr. Chamoria
also referred the case of Union of India through its
Secretary, Ministry of Railway and ors…Vs… Mohd.
Naseem Siddiquit, reported in MANU/MP/0481/2004
wherein it has been observed as under:-
“ As absence of a Presenting Officer by itself will
not vitiate the inquiry and it is recognized that the
Inquiry Officer can put questions to any or all
witnesses to elicit the truth, the question whether
an Inquiry Officer acted as a Presenting Officer, will
have to be decided with reference to the manner in
which the evidence is let in and recorded in the
inquiry. Whether an Inquiry Officer has merely acted
only as an Inquiry Officer or has also acted as a
Presenting Officer depends on the facts of each case.
To avoid any allegations of bias and running the
risk of inquiry being declared as illegal and vitiated,
the present trend appears to be to invariably appoint
Presenting Officers, except in simple cases.”
Mr. Chamaria further referred the case of Ajay Kr.
Paswan—Vrs.— Union of India and Ors. published in 2013
(4) GLT 802 wherein it was observed:-
“However, it needs to be mentioned here that no
service Rules require appointment of enquiry officer as a
matter of compulsion. The disciplinary authority itself may
hold the enquiry and punish its employee. In the event,
the disciplinary authority himself holds an enquiry can a
question arises that there should be a Presenting Officer?
So far as, the issue as to putting question to the witnesses
by the enquiry officer is concerned, the same is not
unknown even under the law of evidence. Section 165 of
the Evidence Act deals with judge’s power to put question.
The relevant part of the section goes as below:
165. Judge’s power to put question or order production.-
The Judge may, in order to discover or to obtain proper
proof of relevant facts, ask any question he pleases, in
any form, at any time, of any witnesses or of the parties,
about any fact relevant or irrelevant;……
If the law of evidence permits a Judge to put
questions to the parties or to the witnesses in order to
discover or obtain proper proof of relevant facts, and this
being widely used by the Judges throughout the country,
it is not clear as to how an enquiry officer after being
equated with a Judge in a judicial proceeding be denied
that privilege. However, question shall be different if a
specific case of personal bias is made out against a
particular Judge. The same analogy must apply in case of
disciplinary proceeding as well. After all, the very purpose
of the disciplinary proceeding is to reach the bottom of
the fact while affording adequate opportunities to the
affected party.”
Mr. Chamaria Learned Advocate for the workman
raised another point that the punishment of discharge from
service imposed against the workman is disproportionate
and having without any basis. In this connection Mr.
Chamoria, Learned Advocate relied upon the ratio laid
down in M.D.Balasaheb Desai Sahakari S.K.Ltd.—Vrs.—
Kashinath Ganapati Kambale reported in (2009) 2SCC 288
wherein it was observed as :
“15.
Indisputably, the Labour Court while exercising its
jurisdiction under Section 11 A of the Industrial Dispute
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441
Act was entitled to consider as to whether the punishment
awarded is wholly disproportionate to the delinquent
employee or not but it is well known that the discretion
vested in it must be exercised in a judicious manner. The
Labour Court ordinarily should not be interfere with the
discretion exercised by the employer unless the same is
found to be inconsistent with the provisions of a statute
or otherwise perverse or unjust. It may be true that in
terms of the Model Standing Order framed under the
Industrial Employment Standing Orders Act, 1946,
ordinarily fine for wrongful absence was to be imposed
but in this regard the number of occasions on which the
workman had remained on unauthorized absence was also
required to be taken into consideration.
Mr. Chamaria referred the case of Sri Bhagwan Lal
Arya—Vrs.—Commissioner of Police Delhi and Ors.
published in AIR 2004 SC 2131, wherein it was held that
although the disciplinary action initiated against the
appellant was in accordance with the law, the punishment
was totally disproportionate to prove misconduct of
appellant, since absence of appellant on medical grounds
with application for leave as well as sanction of leave
could not be termed as grave misconduct or misconduct
rendering him unfit for police service since appellant was
not a habitual absentee, and since he had to proceed on
leave under compulsion because of his grave condition of
health, held that punishment of removal from service was
excessive and disproportionate and ultra vires Rule 8(a)
and 10 of Delhi Police ( Punishment and Appeal Rules,
1980).
Mr. S.C.Koyal, Learned Advocate for the
management, on the other hand, assailing the submission
of the Learned Advocate for the workman cited the ratio
of the case being W.P(C) 316-/2010 of the Hon’ble Gauhati
High Court decided on 04.09.2014 wherein it was observed:
“As regards non appointment of any Presenting
Officer, apart from the fact that the petitioner never
insisted and/or prayed for the appointment of the
same, throughout the writ petition there is no
averment made in respepct of the said aspect. Law
is well settled that if a procedural safeguard is
insisted upon or is denied in a departmental enquiry,
there must be specific pleading to that effect in the
writ petition, coupled with specific pleading
regarding prejudices because of non-compliance of
the said procedure. However, Mr. Bora, learned
counsel for the petitioner referring to the aforesaid
decisions has submitted that the said plea is required
to be entertained by this Court irrespective of
whether the same was raised in the enquiry
proceeding or has been raised in the writ petition in
as much as the same is a point of law.”
Mr. Koyal also referred the judgment of Ajay Kumar
Paswan—Vs.—Union of India & Ors reported in 2013(4)
GLT 802 which was already referred by Mr. Chamaria,
Learned Advocate for the workman wherein it was held
that :
“ All procedural irregularities and/or violation may
not ipso facto render a decision of the disciplinary
authority vitiated unless the alleged violation of
procedure is a substantive one and more particularly
of the nature of ‘no hearing’, ‘no opportunity’ and
‘no notice’ categories. It is true that substantive
provision has normally to be complied with and
substantive compliance of such provision may not
be sufficient.; One line extract of all these
requirements is that there should be full
opportunities to the delinquent employee for
presenting its defence and to cross-examine the
evidence led by the prosecution side. If there is any
shortcoming in this aspect, obviously the proceeding
would be vitiated but mere technical violations of
procedural safeguards would not be sufficient to
hold a proceeding bad. This is the law as settled by
the Hon’ble Supreme Court in the case of State Bank
of Patiala—Vs.—S.K. Sharma reported in MANU/
SC/0438/1996.”
Mr. Koyal, learned Advocate for the management
relying upon the ratio of the cases as mentioned above
contended that due to non-appointment of Presenting
Officer will not vitiate the enquiry proceeding since the
delinquent i.e. the workman was given proper notice and
he participated in the proceeding. In course of enquiry,
the Enquiry Officer had rightly read over and explained
the charges framed against the workman who categorically
made his statement without being suggested any leading
question by the Enquiry Officer and the workman was
given sufficient opportunity of hearing as such, there is
no major procedural lapse nor any violation of principle of
law as well as principle of natural justice and as the Enquiry
Officer rightly submitted his findings considering all the
aspects of the case as well as the materials on record. As
such, the enquiry is not at all vitiated and perversed.
On careful scrutiny of the enquiry report along with
all other relevant documents produced by both the parties
and also having regard to the submission made by both
the sides together with the ratio of the cases referred to by
both the sides it is found that there is no case of “no
notice”, “no hearing” and “no opportunity” nor there is
any apparent illegality or irregularity in holding the
departmental enquiry. The workman himself made his
statement in chief without being suggested any question
by the Enquiry Officer. However the Enquiry Officer cross-
examined the workman on the basis of the charge sheet
and as well as the documents produced before the Enquiry
by the management. Further there is no whisper as to the
allegation of prejudice due to non appointment of
Presenting Officer in course of enquiry proceeding. The
workman was also given sufficient opportunity to adduce
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[PART II—SEC. 3(ii)]
his evidence. He was also given sufficient scope to cross-
examine the management witnesses. The workman appears
to have participated in the enquiry proceeding without
any complaint and as a token of his cooperation the
workman put his signature on every page of the enquiry
proceeding. Further the findings of the Enquiry Officer
and the copies of the enquiry proceeding was duly
furnished to the workman by the Disciplinary Authority
after accepting the findings of the Enquiry Officer and
proposed to impose punishment against the workman.
While the workman submitted his representation for
consideration by the Disciplinary Authority. The
Disciplinary Authority, considering the nature and gravity
of the offence of misconduct as well as having regard to
the objective of the Establishment of VKNRL Hospital on
the ideal of Swami Vivekananda in order to render medical
aid to suffering humanity; and also taking into
consideration the previous conduct of the workman as it
reveals from the documents such as Exhibit-A by which
the workman was suspended for 4 days with effect from
23.12.2003 to 26.12.2003; the Exhibit-B the document by
which the workman admitted his guilt i.e. his refusal to
sign Holiday Duty Roaster; the Exhibit-C the order of
punishment in the form of final warning issued by the
management against the workman on 21.4.04; the Exhibit-
E the show-cause notice issued against the workman for
remaining absent from duty without any authority with
effect from 2.5.05 to 4.5.05; the Exhibit-F the expressing of
the workman to the show cause notice explaining his regret
that he was unable to produce the extension P/L form in
time; the Exhibit-I the undertaking given by the workman
dated 4.6.05 before the Medical Superintendent, VKNRL
Hospital assuring not to repeat such incident in future,
the Exhibit-K the complaint against the workman for using
slang words to a woman submitted by Mr. A.Borah, Asstt.
Manager (operation), NRL and the Exhibit-L the report on
the complaint given by Mr. A.Borah, Asstt. Manager
(operation) along with the remarks there on passed by
Mr. S.K. Chakrabarty, the Medical Superintendent, VKNRL
Hospital (Exhibit-L(1) with warning not to indulge such
unacceptable adjective while in duty in future; imposed
punishment of discharge of the workman from service of
VKNRL Hospital.
10.
In the instant case the workman has failed to
establish his plea that he could not attend the call duty on
28.3.09 on medical ground rather the contention of the
management that the workman refused to attend the call
duty which is evident from his actions such as not making
any correspondence with the hospital authority/his Head
of Department nor did he make any remarks on the call
register or sent any written information through the Driver
of the Ambulance who was sent to his residence for
picking him up. The workman also failed to represent his
cause of his inability to comply with the order of his
superior on 28.3.09 on the following day whereas in his
evidence he categorically admitted that on 29.3.09 he
attended his duty. It is also found well established that
the workman committed misconduct for similar lapse and
dereliction of his duty previously on different occasions
which was brought to the notice of the workman in the
memorandum of charges framed against the workman by
the management. The documents namely Exhibit-
A,B,C,E,I,K and L proved by the Management as discussed
above are sufficient evidence to support the charge of
misconduct against the workman. The VKNRL is a Holly
Institution established with objective to fulfill the ideal of
Swami Vivekananda to render medical aid to suffering
humanity, and the workman being a Laboratory Technician
play a vital role in the overall functioning of the hospital in
regard to the proper treatment of the patient who should
render his service with honesty, sincerity and devotion
and should also attend emergency duty even at the hour
when he was not on duty. As such, the act of the workman
done on 28.3.2009 & the acts of his previous misconduct
reflected his gross negligence & responsibility &
disrespect to a noble profession that to in a Hospital
founded on the philosophy of Swami Vivekananda. In this
connection I am inclined to rely upon the decision laid
down in Hempant –vrs—Presiding Officer, Industrial
Tribunal and another reported in 2014 LLR 1187 (Uttar)
wherein it was held that when unauthorized and habitual
absent is established there is no scope to take a lenient
view of such misconduct. In 2014 LAB & IC 1740 (Mad) it
was held that dismissal from service on the charge of
misconduct is proper where findings of the Enquiry Officer
not arbitrary or based on extraneous consideration.
In view of the above circumstances and having
regard to the ratio of the cases as discussed above I am of
the opinion that the charges framed against the workman
were established and the domestic enquiry held against
the workman is not perverse and vitiated.
11.
Thus it is clear that the management has taken the
right step imposing proportionate punishment to discharge
the workman from his service taking into consideration
the previous misconduct of the workman along with the
gross misconduct committed by the workman on 28.3.09
and also having regard to the principle and ideology of
the Holly Institution of VKNRL in which the workman has
been holding such an important and responsible post.
12.
In view of my discussion and the findings as above,
I find no scope to interfere with the findings of the domestic
enquiry as well as punishment of discharge imposed by
the management. Accordingly this reference is decided in
affirmative holding that the VKNRL Hospital Authority
have adopted right steps in discharge/dismissal of Sri J. J.
Borah, the workman from his service and hence, the
workman is not entitled to any relief.
Given under my hand and seal of this Court on this
14th day of November, 2014.
L. C. DEY, Presiding Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
443
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 196-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr isVªksfy;e
dkjiksjs'ku fyfeVsM 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;&2] eqacbZ ds iapkV
(lanHkZ la[;k 01@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&30025@1@2015&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O. 196.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 01/2013)
of the Central Government Industrial Tribunal/Labour
Court-2, Mumbai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of Bharat Petroleum Corporation Limited,
and their workman, which was received by the Central
Government on 12/01/2015.
[No. L-30025/1/2015-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
LABOUR-COURT NO. 2, MUMBAI
PRESENT : K. B. KATAKE, Presiding Officer
APPLICATION IESO/ LC-2/1 of 2013
Parties:
Petroleum Karmachari Navnirman Union
137/9, Prem Sankalp
Sher-E-Punjab Society
Mahakali Road Andheri (E)
Mumbai 400 093.
...Applicant
V/s.
Bharat Petroleum Corporation Ltd.
Bharat Bhavan, 4 & 6 Currimbhoy Road
Ballard Estate Mumbai 400 001.
...Opponent
APPEARANCES :
FOR THE APPLICANT
:
Mr. J. H. Sawant,
Mr. Ravindra Kadu,
Representatives.
FOR THE OPPONENT`
:
Mr. R. S. Pai, Advocate.
Mumbai, dated the 10th September, 2014.
JUDGEMENT
1.
This application is filed by the applicant union under
Section 13-A of Industrial Employment (Standing Orders)
Act, 1946 praying to decide the question as to the
applicability and interpretation of the Standing Order
no.29.4 to the effect that the Opponent cannot appoint
the outside person as Inquiry Officer to hold the
departmental inquiry and for necessary relief in accordance
with the provisions of law.
2.
Opponent resisted the application by filing their
Written statement at Ex-6. According to the opponent the
application is not maintainable under Section 13-A of the
IESO Act inasmuch as the union has already raised an
industrial dispute and subsequently accepted the
settlement dated 9/1/2014 wherein they have agreed to
withdraw all the pending disputes including the above
application. Therefore they pray to dismiss the application
with costs.
3.
Applicant filed application Ex-7 stating to dispose
of the application for want of prosecution as the applicant
is not interested in pursuing the application. In the
circumstances, application deserves to be dismissed for
want of prosecution. Hence the order:
ORDER
The application stands dismissed with no order as
to cost.
Date: 10/09/2014
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 197-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ykbiQ bU'kqjUl
dkjiksjs'ku 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 ,oa Je U;k;ky;] pSUubZ ds iapkV
(lanHkZ la[;k 125@2014) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&17012@129@2013&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O. 197.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 125/
2014) of the Central Government Industrial Tribunal/Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of Life Insurance Corporation of India,
and their workman, which was received by the Central
Government on 12/01/2015.
[No. L-17012/129/2013-IR(M)]
JOHAN TOPNO, Under Secy.
444
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM - LABOUR
COURT, CHENNAI
Tuesday, the 23rd December, 2014
Present : K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 125/2014
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947(14 of 1947),
between the Management of Life Insurance Corporation
of India and their workman)
BETWEEN :
Sri M. Selva Sathish
:
1st Party/Petitioner
AND
The Zonal Manager
:
2nd Party/Respondent
LIC of India,
Chennai Division-I
102, Anna Salai
Chennai-600002
Appearance:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Respondent :
None
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-17012/129/2014-IR (M)
dated 05.12.2014 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the management of Life
Insurance Corporation of India in terminating the
services of Sri M. Selva Sathish w.e.f. 31.08.2013 is
legal and justified? If not, to what relief the workman
concerned is entitled to?”
2.
The petitioner herein has filed ID 81/2014 before
this Tribunal directly challenging the order of termination
against him. The petitioner does not want to proceed with
this reference in view of this. He has endorsed stating that
he is not proceeding with the reference because of the
pendency of the other case. Therefore the reference is
closed.
An award is passed accordingly.
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Documents marked:
On the petitioner’s side
Ex.No.
Date
Description
N/A
On the Management’s side
Ex.No.
Date
Description
N/A
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 198-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ykbiQ bU'kqjsUl
dkjiksjs'ku 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 ,oa Je U;k;ky;] pSUubZ ds iapkV
(lanHkZ la[;k 124@2014) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&17012@135@2014&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O. 198.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 124/
2014) of the Central Government Industrial Tribunal/Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Life Insurance Corporation of India,
and their workman, which was received by the Central
Government on 12/01/2015.
[No. L-17012/135/2014-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM - LABOUR
COURT, CHENNAI
Tuesday, the 23rd December, 2014
Present : K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 124/2014
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947(14 of 1947),
between the Management of Life Insurance Corporation
of India and their workman)
BETWEEN :
Sri T. Kalaiarasan
:
1st Party/Petitioner
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
445
AND
The Zonal Manager
:
2nd Party/Respondent
LIC of India,
Chennai Division-I
102, Anna Salai
Chennai-600002
Appearance:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Respondent
:
None
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-17012/135/2014-IR (M)
dated 05.12.2014 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the management of Life
Insurance Corporation of India in terminating the
services of Sri T. Kalaiarasan w.e.f. 31.08.2013 is legal
and justified? If not, to what relief the workman
concerned is entitled to?”
2.
The petitioner herein has filed ID 86/2014 before
this Tribunal directly challenging the order of termination
against him. The petitioner does not want to proceed with
this reference in view of this. He has endorsed stating that
he is not proceeding with the reference because of the
pendency of the other case. Therefore the reference is
closed.
An award is passed accordingly.
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Documents marked:
On the petitioner’s side
Ex.No.
Date
Description
N/A
On the Management’s side
Ex.No.
Date
Description
N/A
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 199-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ykbiQ bU'kksjsUl
dkjiksjs'ku 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 ,oa Je U;k;ky;] pSUubZ ds iapkV
(lanHkZ la[;k 123@2014) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&17012@137@2014&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O. 199.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 123/
2014) of the Central Government Industrial Tribunal/Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Life Insurance Corporation of India,
and their workman, which was received by the Central
Government on 12/01/2015.
[No. L-17012/137/2014-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM - LABOUR
COURT, CHENNAI
Tuesday, the 23rd December, 2014
Present : K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 123/2014
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947(14 of 1947),
between the Management of Life Insurance Corporation
of India and their workman)
BETWEEN :
Sri S. Vinoth Kumar
:
1st Party/Petitioner
AND
The Zonal Manager
:
2nd Party/Respondent
LIC of India,
Chennai Division-I
102, Anna Salai
Chennai-600002
Appearance :
For the 1st Party/Petitioner
:
None
For the 2nd Party/Respondent
:
None
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-17012/137/2014-IR (M)
dated 05.12.2014 referred the following Industrial Dispute
to this Tribunal for adjudication.
446
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
The schedule mentioned in that order is :
“Whether the action of the management of Life
Insurance Corporation of India in terminating the
services of Sri S. Vinoth Kumar w.e.f. 31.08.2013 is
legal and justified? If not, to what relief the workman
concerned is entitled to?”
2.
The petitioner herein has filed ID 85/2014 before
this Tribunal directly, challenging the order of termination
against him. The petitioner does not want to proceed with
this reference in view of this. He has endorsed stating that
he is not proceeding with the reference because of the
pendency of the other case. Therefore the reference is
closed.
An award is passed accordingly.
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Documents marked:
On the petitioner’s side
Ex.No.
Date
Description
N/A
On the Management’s side
Ex.No.
Date
Description
N/A
ubZ fnYyh] 23 tuojh] 2015
dk-vk- 200-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fganqLrku
isVªksfy;e dkjiksjs'ku fyfeVsM 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; ua-&1] eaqcbZ
ds iapkV (lanHkZ la[;k 13@2003) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&30015@5@2003&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O.
200.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 13/2003)
of the Central Government Industrial Tribunal/Labour
Court No.-1, Mumbai now as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of the Hindustan Petroleum
Corporation Ltd., and their workman, which was received
by the Central Government on 12/01/2015.
[No. L-30015/5/2003-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO.1,
MUMBAI
Present : Justice S. P. MEHROTRA, Presiding Officer
REFERENCE NO.CGIT-1/13 OF 2003
Parties: Employers in relation to the management of
Hindustan Petroleum Corporation Ltd.
And
Their workmen
Appearances :
For the first party/
:
Ms. Nandini Menon, Adv.
Management
:
Ms. Dipti Kucheria, Law Officer
For the second party
:
Mr. R. D. Bhatt, Adv.
workman
State
:
Maharashtra
Mumbai, dated the 28th day of November, 2014
AWARD
1.
The present Reference has been made by the Central
Government by its order dated 7.3.2003 passed in exercise
of the powers conferred by clause (d) of sub-section (1)
and sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947. The terms of Reference as per the
Schedule to the said order are as under:
“Whether the demand of Petroleum Employees’
Union for declaring that the workmen as mentioned
in exhibit A (attached) are the regular employees of
Hindustan Petroleum Corporation Ltd. Justified? If
so, to what relief the concerned workmen are
entitled?”
2.
Pleadings were exchanged between the parties.
Evidence on behalf of the second party/Union concluded.
Thereafter, evidence on behalf of the first party/
Management commenced. The case is being fixed for cross-
examination of the Management Witness MW-1.
3.
Today, when the case is taken up, Shri R.D. Bhatt,
learned counsel for the second party/Union is present.
Ms. Dipti Kucheria stating herself to be Law Officer in
Hindustan Petroleum Corporation Ltd. (first party/
Management) is also present.
4.
A joint application on behalf of the first party/
Management and the second party/Union has been filed
today. The application has been signed by Shri R. D. Bhatt,
learned counsel for the second party/Union as well as by
Ms. Nandini Menon, learned counsel for the first party/
Management. The application also bears the signature of
Mr. K. S. Shetty, Head – HR (Marketing) of the first party/
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
447
Management and Shri D.N. Vidhate, Vice-President of the
second party/Union.
5.
It is, inter-alia, stated in the application that the
parties to the present Reference have entered into a
Settlement by consent of and with all the parties therein.
It is, inter-alia, prayed in the application that the Reference
may be disposed of and an Award be passed in terms
thereof. Along with the application, Consent Terms signed
by the learned counsel for both the parties as well as by
the aforesaid Mr. K. S. Shetty and the aforesaid Mr. D. N.
Vidhate, have been filed.
6.
Memorandum of Understanding annexed as Exhibit
A-1 to the Consent Terms, as mentioned in paragraph 1of
the Consent Terms, has also been filed along with the
Consent Terms.
7.
Mr. R. D. Bhatt, learned counsel for the second
party/Union and Ms. Dipti Kucheria, Law Officer of the
first party/Management state that in view of the averments
made in the aforesaid application, the Reference be
disposed of in terms of the Settlement as contained in the
Consent Terms and Memorandum of Understanding, filed
along with the aforesaid application, and the Award be
passed in terms thereof.
8.
Having regard to the averments made in the aforesaid
application and keeping in view the statement made, as
mentioned above, on behalf of the second party/Union
and the first party/Management, Industrial Dispute forming
subject-matter of the Reference is decided in terms of the
Settlement as contained in the Consent Terms and
Memorandum of Understanding filed along with the
aforesaid application.
9.
The Reference is, therefore, answered by stating
that Industrial Dispute forming the subject- matter of the
Reference is decided in terms of Settlement as contained
in the Consent Terms and Memorandum of Understanding
filed along with the aforesaid application.
10.
Award is passed accordingly. The Consent Terms
and Memorandum of Understanding filed along with the
aforesaid application, will form part of the Award.
Justice S. P. MEHROTRA, Presiding Officer
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1
MUMBAI
REFERENCE NO. CGIT -1/13 of 2003
BETWEEN :
EMPLOYERS IN RELATION TO
THE MANAGEMENT OF
HINDUSTAN PETROLEUM
CORPORATION LTD.
...FIRST PARTY
AND
THEIR WORKMEN REPRESENTED
BY PETROLEUM EMPLOYEES’
UNION
...SECOND PARTY
CONSENT TERMS
May it please the Hon’ble Tribunal:
1.
The parties to the above reference respectfully
submit that the parties have arrived at an amicable
settlement in respect of the 24 workmen represented by
the 2nd party covered in the instant reference and the terms
of which are annexed hereto and marked as Exhibit Al.
2.
The 2nd Party is filing the authority granted to them
by these 24 workmen to sign these consent terms and get
the Reference disposed of in terms thereof.
3.
The first party has no employer-employee nexus or
relationship with the 24 workmen represented through the
second party and is thus not liable under any law, in any
respect to provide work and payment of any compensation
to them. However, in order to amicably resolve the present
dispute expeditiously in the large interest of all concerned,
including the first party and the 24 contract workmen
represented through the second party, in principle it has
been agreed to continue the services of these 24 workmen
through contractor(s) for performing the contractual
obligation at USAR LPG Bottling Plant of First Party, till
attaining the age of their superannuation, save and except
misconduct. The second party as’ well as the 24 Contract
workmen, on whose behalf the second party had espoused
the case, agree to withdraw their claim of regularization in
connection with the pending reference case CGIT-I 13/
2003 and to relinquish the claim of regularization on behalf
of the workmen.
4.
The First Party after adhering to the purchase
procedures of the Corporation would appoint independent
contractors and agree to specify in the tender conditions
the mutual agreed terms for continuation of these 24
contract workmen under the respective contractors in
various handling jobs/incidental operational activities
inside the Plant for performing the contractual obligations
as detailed in the above mentioned Exhibit.
5.
In the event of indiscipline or misbehavior or any
misconduct committed by these 24 workmen, the
respective contractor engaged at the relevant point of time,
would have the right to take disciplinary action including
discontinuation of these workmen, after adhering to due
process of law.
6.
It is agreed that the 24 contract workmen would be
paid an additional fixed allowance of Rs. 7020/- p.m. over
and above the applicable minimum wages payable in their
respective category. The aforesaid fixed allowance would
be revised on 1st January of each calendar year and
incremental revision @ 3% of such additional allowance
448
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
paid as of 31st December of the previous calendar year,
would be paid to the contract workmen which would be
deemed to be the revised fixed additional allowance for
the particular calendar year, subject to minimum attendance
of 180 days during the preceding year.
7.
It is also mutually agreed that irrespective of the
fact of the respective contractor having their independent
code under PF, the contribution in respect of these 65
contract workmen would be deposited through the
Corporation’s separate code allotted for the contract
labourers engaged across Corporation’s locations.
8.
It is also agreed upon that consequent to the
additional fixed allowance of Rs. 7020/- per month, the 65
contract workmen would be entitled to receive applicable
bonus amount @ 8.33% of Rs. 3,500/- (bonus ceiling limit
for calculation, as applicable), irrespective of the fact that
the gross wages exceeds Rs. 10,000/- per month or the
limit as declared by the Appropriate Authority under
Payment of Bonus Act, 1965 from time-to-time.
9.
It was also agreed upon that since the location USAR
LPG Bottling Plant does not fall within notified area under
ESI Act, a comprehensive Workmen Compensation Policy
as well as Medical Insurance Policy would be taken by the
First Party as a Principal Employer on behalf of these
workmen for covering them along with their dependent
family members (dependent parents, spouse & children)
whereby the Contractor, as the Employer would contribute
an amount equivalent to 4.75% of the wages payable to
these workmen and the workmen would contribute 1.75%
of their wages which would be deducted from the wages
payable to the workmen towards coverage under
Comprehensive Medical Insurance Scheme.
10.
It is also agreed that upon attaining the age of
superannuation (60 years), the applicable gratuity, would
be disbursed to the respective contract workmen, for their
services through various contractors in the Corporation’s
location. For the purpose of calculating gratuity, the date
of joining the services would be reckoned effective the
date of filing of the Writ Petition before the Mumbai High
Court as detailed in Exhibit-A of the Settlement.
11.
The second party as well as the 24 contract workmen
agree that in future no dispute/claim/demand of whatsoever
nature, monetary or non-monetary shall be raised by them
or their member/workmen before any court of law under
issue of permanency/regularization in the services of the
Corporation (first party).
12.
The 24 contract workmen also agree and undertake
to irretrievably forgo their claim for regularization/
permanency in the services of the Corporation and/or
wages at par with regular workmen with consequential
benefits.
13.
The 24 contract workmen agree and accept that with
these consent terms all their claims in respect of their
employment have been resolved and the said workmen
accept the same.
14.
The 24 contract workmen and the Petroleum
Employees’ Union agree to indemnify and keep indemnified
and save harmless the First Party, its Directors and Officers
from any claim of nature whatsoever from any of these
workmen against the First Party.
15.
The second party as well as the 24 contract workmen
covered under the present case shall not cite the present
settlement and consent terms, arrived at between the
parties under the present facts and circumstances of the
case in order to amicably resolve the matter, before any
competent court of law/tribunal/authority for seeking
wages and benefits at par with regular employees or
otherwise, for present or in future at any stage or in any
proceedings involving any other ernployee/s or contract
employees.
16.
It is agreed and understood by and between the
parties that the 24 contract workmen, to whom the benefit
of continuity as contract workmen under the respective
contractors at USAR LPG Bottling Plant of the First Party,
has been extended, shall not resort to any agitation, stage
demonstration/coercive picketing or indulge in any other
act against the First Party or its officers affecting the
working of the First Party in support of their any or alleged
demands of permanency/regularization in the employment
of the Corporation/parity of wages along with regular
workmen of the First Party or whatsoever nature and indeed
no such demand shall hereinafter be made in future.
17.
The financial benefit arising out of settlements
would be paid effective 1/4/2011 onwards. However, while
calculating the arrears, the incremental revision @ 3% of
additional fixed allowance would not be calculated and
such incremental revision would be payable with
prospective effect, i.e. effective January 2015 onwards.
18.
It is further mutually agreed upon that the benefit
accruing out of the settlements entered between the first
party and 24 contract workmen shall be binding as to full
and final settlement of all claims/demands of whatsoever
nature as may be conceived under any law arising out of
their engagement/non-engagement in the establishment
of the First Party through the contractors or otherwise.
19.
It is therefore, prayed that an Award be passed in
terms of the consent terms. In the circumstances of the
case, there shall be no order as to costs.
Mumbai
Dated : This 28 day of November, 2014
-Sd- Illegible
Advocate of First Party
For and on behalf of
K. S. SHETTY, Head-Hr (Mktg.)
Hindustan Petroleum Corp. Ltd.
First Party
¹Hkkx IIó[k.M 3(ii)º
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449
-Sd- Illegible
Advocate of Second Party
For and on behalf of
-Sd- Illegible
Second Party
Petroleum Employees' Union
Memorandum of Understanding dated 20/11/2014
arrived between the Management of Hindustan
Petroleum Corporation Limited and the 24 contract
workmen engaged in Security activities at
USAR LPG Bottling Plant.
Present :
Representing Management of Hindustan Petroleum
Corporation Limited:
(1)
Shri K. S. Shetty, Head - HR (Mktg.)
(2)
Shri B. N. Rao, Sr. Manager - HR, West Zone
(3)
Shri Sunil Sanas, Sr. Manager HR (Mktg.), HQO
(4)
Shri Ashutosh Awade, Sr. Plant Manager, USAR
LPG Plant
(5)
Shri D. Mukherjee, Manager (l/C) HR Legal Cell,
PH-7
(6)
Shri Mahendra Singh, Dy. Manager-Law, HR Legal
Cell, PH-4
The contract workmen engaged in Security Activity:
(1)
Shri Vasant Narayan Gondhali, Son of Shri Narayan
Gondhali, aged about 45 years (DOB : 01.06.1969),
resident of 43-Ba, Khanav, 1 Mauje Khanav Mauje,
Mudakhanav Velavali, Khananv, Alibaug, Raigad,
Maharashtra-402204.
(2)
Shri Sadanand R. Patil, Son of Shri Ramchandra
Patil, aged about 42 years (DOB 01.06.1972),
resident of Velavali, Nagaon, Nagaon Alibaug,
Raigad, Maharashtra-402204.
(3)
Shri Umesh Janardan Thale, Son of Shri Janardan
Thale, aged about 40 years (DOB : 01/09/1974),
resident of 80, E Velavali, Nagaon, Nagaon Alibaug,
Raigad, Maharashtra - 402204.
(4)
Shri Prashant H. Mhatre, Son of Shri Harishchandra
Mhatre, aged about 35 years (DOB: 01/02/1979),
resident of Tal Kawir, Bamangaon, Raigad,
Maharashtra-402204.
(5)
Shri Sudhir D. Rane, Son of Shri Dattatrey Rane,
aged about 42 years (DOB: 21/05/1972), resident
of Tal Kawir, Bamangaon, Raigad, Maharashtra-
402204.
(6)
Shri Balkrishna N. Rane, Son of Shri Narayan
Rane, aged about 44 years (DOB: 19/01/1970),
resident of Tal Kawir, Bamangaon, Raigad,
Maharashtra-402204.
(7)
Shri Anil V. Varsolkar, Son of Shri Vasant Varsolkar,
aged about 35 years (DOB: 21/12/1979), resident
of 121, Vadhav Budruk, Velhavali, Raigad,
Maharashtra-402204.
(8)
Shri Chandrakant N. Shinde, Son of
Shri Nathuram Shinde, aged about 39 years (DOB
: 01/12/1975), resident of Usar, Alibaug, Raigad,
Maharashtra- 402203.
(9)
Shri Ramkrishna R. Shinde, Son of Shri Ragho
Shinde, aged about 51 years (DOB : 09/10/1963),
resident of 121, Usar, Mauje Khanav Mauje
Mulakhanav, Velavali, Khanav, Alibaug, Raigad,
Maharashtra - 402204.
(10)
Shri Harishchandra K. Shinde, Son of Shri Kalu
Shide, aged about 52 years (DOB : 20/04/1962),
resident of 88, Usar, Mauje Khanav Mauje
Mulakhanav, Velavali, Khanav, Alibaug, Raigad,
Maharashtra - 402204.
(11)
Shri Jaywant K. Varde, Son of Shri Kashinath Varde,
aged about 40 years (DOB : 10/08/1974), resident
of 33-A-l, Mali Bherase, Mauje Belavali, Betalvadi
Mali Bherase, Velhavali, Alibaug, Raigad,
Maharashtra - 402204.
(12)
Shri Anil N. Kavale, Son of Shri Narayan Kavale,
aged about 42 years (DOB : 01/06/1972), resident
of 43, Mali Bherase, Mauje Belavali, Betalvadi Mali
Bherase, Velhavali, Alibaug, Raigad, Maharashtra-
402204.
(13)
Shri Dilip R. Patil, Son of Shri Ramchandra Patil,
aged about 39 years (DOB : 05/12/1975), resident
of 43, Velavali, Nagaon, Alibaug, Raigad,
Maharashtra - 402204.
(14)
Shri Mangesh B. Thakur, Son of Shri Balu Thakur,
aged about 39 years (DOB : 16/06/1977), resident
at Khannav, Usar, Alibaug Khannav, Chaul, Raigad,
Alibaug, Maharashtra - 402203.
(15)
Shri. Ramchandra C. Topale, Son of Shri Changu
Topale, aged about 47 years (DOB : 13/03/1967), resident
of 43, Khanav, Usar, Raigad, Maharashtra - 402203.
(16)
Shri. Vinod G. Raul, Son of Shri Gajanan Raul, aged
about 42 years (DOB : 01/06/1972), resident of 41,
Mali, Bherase, Mauje Belavali, Betalvadi, Velhavali,
Alibaug, Raigad, Maharashtra - 402203.
(17)
Shri. Ramakant N. Shinde, Son of Shri Nathuram
Shinde, aged about 43 years (DOB : 26/01/1971),
resident of 53 A , Usar, Alibaug, Raigad,
Maharashtra-402203.
(18)
Shri. Suhas M. Gurav, Son of Shri Madhukar Gurav,
aged about 37 years (DOB : 25/07/1977), resident
of 53 A, Nagaon (Hatale), Alibaug, Raigad,
Maharashtra-402204.
(19)
Shri. Anant K. Karmat, Son of Shri Kashinath
Karmat, aged about 47 years (DOB : 19/06/1967),
resident of H. No. 594, Barud Ali, Nagaon, Alibaug,
Raigad, Maharashtra-402204.
(20)
Shri. Kishor B. Shelke, Son of Shri Baraku Shelke,
aged about 54 years (DOB : 16/08/1962), resident
of Usar, Alibaug, Raigad, Maharashtra-402203.
450
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
(21)
Shri. Vinod E. Bhagat, Son of Shri Eknath Bhagat,
aged about 41 years (DOB : 14/07/1973), resident
of Behind Prathmik Shala, Bamangaon, Alibaug,
Raigad, Maharashtra-402204.
(22)
Shri. Sanjay D. Shelke, Son of Shri Dattatrey Shelke,
aged about 51 years (DOB : 18/11/1963), resident
of H. No. 636 A, Sahan, Kavir 2, Alibaug, Raigad,
Maharashtra-402204.
(23)
Shri Indrajit R. Magar, Son of Shri Ramesh Magar,
aged about 38 years (DOB : 06.06.1976), resident
of 69, Sahanagothi, Sahan, Thakurvadi, Kavir,
Alibaug, Raigad, Maharashtra-402204.
(24)
Shri Rajendra G. Mankar, Son of Shri Gajanan
Mankar, aged about 41 years (DOB : 10/11/1973),
resident of Bamangaon, Alibaug, Raigad,
Maharashtra- 402204.
Short recital
1.1.
Petroleum Employees Union had filed WP No. 4720
of 1999 before Hon’ble Bombay High Court on behalf
31 Contract Labourers engaged in Security activity
at USAR LPG Bottling Plant for regularization into
the services of the Corporation. Vide Interim Order
dated 27/03/2000 in WP No. 4720 of 1999, Hon’ble
High Court admitted the Petition for hearing and
restrained HPCL from terminating the services of
the workmen as Contract Labour till further orders.
Further, Vide Order dated 24/01/2003, Hon’ble
Bombay High Court disposed of WP No. 4720 of
1999 directing the Petitioner to approach the
Appropriate Government for referring the dispute
for adjudication. Hon’ble Court also directed that in
the event of dispute between the petitioner and
respondent Corporation being referred by the
appropriate Government, the petitioner herein shall
be at liberty to apply to the concerned Industrial
Tribunal for continuation of the interim order and if
such an application is made before the concerned
Industrial Tribunal, appropriate order shall be passed
after hearing the parties.
1.2.
Subsequently, Petroleum Employees Union raised
an Industrial Dispute before Assistant Labour
Commissioner (Central), Mumbai with regard to their
demand of regularization. Upon failure of conciliation
proceeding, Conciliation Authority submitted Report
of Failure of Conciliation to Ministry of Labour,
Government of India, New Delhi. Thereafter,
Government of India, Ministry of Labour, vide
notification No. L-30015/5/2003-IR(M) dated
07/03/2003, referred the matter for adjudication before
the CGIT Mumbai which has been numbered as
CGIT-1/13 of 2003. The terms of the reference are as
under:
“Whether the demand of Petroleum Employee’s
Union for declaring that the workmen as mentioned
in Exhibit A (attached) are the regular employees of
Hindustan Petroleum Corporation Ltd. Justified? If
so, to what relief the concerned workmen are
entitled?’’
3.
Out of the 31 contract workmen engaged in Security
Activity at USAR LPG Bottling Plant, covered in the
said WP No. 4720 of 1999 and ID Case No. CGIT-l/
13 of 2003, 02 contract workmen are expired and 05
contract workmen have left the jobs on their own
accord and at present only 24 contract workmen are
continuing under the contractor.
4.
The Petroleum Employees Union espousing the
cause of the aforesaid contract workmen as well as
the contract workmen themselves have in the interim
during pendency of the above CGIT case expressed
their willingness of arriving at an out of Court
Settlement and accordingly submitted a Charter of
Demands before the Corporation. subsequently, a
series of discussions were held between the
mangement and the aforesaid Contract employees
and in furtherance of the same execute this
settlement and in principle have accepted the terms
of the settlement applicable to these 24 contract
workmen engaged by the contractors at USAR LPG
bottling Plant, in security services and to minimise
litigation on the subject, so as to maintain Industrial
peace and harmony in the establishments of the
Corporation. The terms and conditions of the
settlement arrived at between the parties are recorded
hereunder :
TERMS AND CONDITIONS OF THE SETTLEMENT
APPLICABILITY :
The terms of the settlement would be applicable to
the signatories of the present settlement and the 24
contract workmen as mentioned above, engaged in
security services at USAR LPG Bottling Plant & presently
working under the Contractor.
TERMS :
1.
The Corporation has no employer-employee nexus
or relationship with the 24 contract workmen, who are
signatories to the present settlement and is thus not liable
under any law, in any respect to provide work and payment
of any compensation to them. However, in order to
amicably resolve the present dispute expeditiously in the
large interest of all concerned, including the Corporation
and the 24 contract workmen represented through the
Union, in principle, have agreed to continue the services
of these 24 contract workmen through contractor(s) for
performing the contractual obligation at the Corporation’
establishment at USAR LPG Bottling Plant, till attaining
the age of their superannuation i.e. 60 years, save and
except misconduct. Petroleum Employees’ Union as well
as the 24 Contract Workmen, on whose behalf the Union
had espoused the case, agree to withdraw their claim of
regularization in connection with the pending reference
case CGIT-l/13/2003, and to relinquish the claim of
regularization on behalf of the Contract Workmen.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
451
2.
The Corporation, after adhering to the purchase
procedures of the Corporation, would appoint independent
contractors and agree to specify in the tender conditions,
the mutually agreed terms for continuation of these 24
contract workmen under the respective contractors at its
establishment at USAR LPG Bottling Plant till attaining
the age of superannuation. In the event of indiscipline or
misbehavior or any misconduct committed by these 24
workmen, the respective contractor engaged at the
relevant point of time, would have the right to take
disciplinary action including discontinuation of these
workmen, after adhering to due process of law.
3.
It is agreed that said 24 contract labourers who are
at present being engaged by security contractor for
performing security jobs at the USAR LPG Plant, shall be
engaged by the contractor(s) who will be awarded contract
for performing various handling jobs/incidental
operational activities inside the Plant as per job requirement
at the Plant. Accordingly, the said 24 contract labourers
would be paid applicable minimum wages of unskilled
category and other applicable statutory benefits i.e. PF,
Bonus and leave with wages by the concerned
contractor(s) and they shall not be demand any allowance/
wages which are applicable to DGR Security guards and
being presently paid to them. It is also agreed that till the
time, the said 24 contract labourers are engaged by one/
different contractor(s) in handling activities / incidental
operational activities at the Plant, they will continue to
perform the jobs under the security contractor as earlier
and till such time they will continue to be paid DGR wages
in accordance with DGR circular/guidelines.
4.
It is agreed that the 24 contract workmen would be
paid an additional fixed allowance of Rs. 7,020/- p.m. over
and above the applicable minimum wages payable in their
respective category. The applicable statutory payments
viz. EPF, leave with wages etc. would also be payable with
regard to the aforesaid additional fixed allowance. The
aforesaid fixed allowance would be revised on 1st January
of each calendar year and incremental revision @ 3% of
such additional allowance paid as of 31st December of the
previous calendar year, would be paid to the contract
workmen which would be deemed to be the revised fixed
additional allowance for the particular calendar year, subject
to minimum attendance of 180 days during the preceding
year. In the event of absenteeism of any contract workman,
the aforesaid additional fixed allowance will be calculated
on pro-rata basis while determining the’ monthly additional
fixed allowance. It is also clarified that the additional fixed
allowance would be payable over & above the applicable
minimum wages as declared by the appropriate government
(State/Central whichever is higher) payable for their
respective category of scheduled employment and in the
event, if the Corporation desires to implement the concept
of payment of fair wages for the contract workmen in future,
the benefits of the same would not be extended to these
contract workmen covered under the present settlement.
5.
It is also mutually agreed that irrespective of the
contractor having their independent code under PF, the
contribution in respect of these 24 workmen would be
deposited through the Corporation’s separate code allotted
for the contract labourers engaged across Corporation’s
locations.
6.
It is agreed that upon attaining the age of
superannuation (60 tears), the applicable gratuity, would
be disbursed to the respective contract workmen, for their
services through various contractors. for the purpose of
calculating gratuity, the date of joining the services would
be reckoned effective the date of filing of the Writ Petition
No. 4720 of 1999 before the Bombay High Court referred
to above, in which the respective workmen were covered
as detailed in targment I.
7.
It is also agreed upon that consequent to the
additional fixed allowance of Rs. 7020/- per month, the 24
contract workmen would be entitled to receive applicable
bonus amount @ 8.33% of Rs. 3,500/- (bonus ceiling limit
for calculation, as applicable), irrespective of the fact that
the gross wages exceeds Rs. 10,000/- per month or the
limit as declared by the Appropriate Authority under
Payment of Bonus Act, 1965 from time to time.
8.
It was also agreed upon that since the location USAR
LPG Bottling Plant does not fall within notified area under
ESI Act, a comprehensive Workmen Compensation Policy
as well as Medical Insurance Policy would be taken by the
Corporation as a Principal Employer on behalf of these
workmen for covering them along with their dependent
family members (dependent parents, spouse & children)
whereby the Contractor, as the Employer would contribute
an amount equivalent to 4.75% of the wages payable to
these workmen and the workmen would contribute 1.75%
of their wages which would be deducted from the wages
payable to the workmen towards coverage under
Comprehensive Medical Insurance Scheme.
9.
The 24 contract workmen also agrees to forgo their
claim for regularization/permanency in the services of the
Corporation and / or wages at par with regular workmen
with consequential benefits.
10.
The 24 contract workmen agree that in future no
dispute/claim/demand of whatsoever nature, monetary or
non-monetary shall be raised by them or through any other
Union espousing their cause before any court of law under
issue of permanency/regularization in the services of the
Corporation.
11.
The 24 contract workmen covered under the present
cases shall not cite this settlement arrived at between the
parties under the present facts ana circumstances of the
case in order to amicably resolve the matter, before any
competent court of law/tribunal/authority for seeking
wages and benefits at par with regular employees or
otherwise, for present or in future at any stage.
452
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
12.
It is agreed and understood by and between the
parties that the 24 contract workmen, to whom the benefit
of continuity as contract workmen under the respective
contractors at USAR LPG Bottling Plant, has been
extended, shall not resort to any agitation, stage
demonstration/coercive picketing or indulge in any other
act against the Corporation or its officers affecting the
working of the Corporation in support of their any or alleged
demands of permanency/regularization in the employment
of the Corporation/parity of wages along with regular
workmen of the Corporation or whatsoever nature and
indeed no such demand shall hereinafter be made in future.
13.
It is further mutually agreed upon that the benefit
accruing out of the present settlement shall be binding as
to full and final settlement of all claims/demands of
whatsoever nature as may be conceived under any law
arising out of their engagement/non-engagement in the
establishment of the Corporation through the contractors
or otherwise.
14.
The financial benefit arising out of this settlement
would be paid effective 1/4/2011 onwards. However, while
calculating the arrears, the incremental revision @ 3% of
additional fixed allowance would not be calculated and
such incremental revision would be payable with
prospective effect, i.e. effective January, 2015 onwards.
15.
It has been agreed upon that both the parties would
implement the terms of understanding in true spirit and
the present MOU would be filed before Hon’ble High Court/
Tribunal for disposal of the pending case in terms of this
MOU.
This Memorandum of understanding signed at
USAR on 20th day of November, 2014.
For and on behalf of
The contract workers
HPCL
-Sd- Illegible
-Sd- Illegible
Shri K. S. Shetty,
1. Shri Vasant Narayan
Head-HR (Mktg.)
Gondhali
-Sd- Illegible
-Sd- Illegible
Shri B. N. Rao,
2. Shri Sadanand R. Patil
Sr. Mgr. HR-WZ
-Sd- Illegible
-Sd- Illegible
Shri Sunil Sanas,
3. Shri Umesh Janardan Thale
Sr. Manager HR (Mktg.)
-Sd- Illegible
-Sd- Illegible
Shri Ashutosh Awade, 4. Shri Prashant H. Mhatre
Sr. Plant Manager
-Sd- Illegible
-Sd- Illegible
Shri D. Mukherjee,
5. Shri Sudhir D. Rane
Manager (I/c) HR Legal
Cell
-Sd- Illegible
-Sd- Illegible
Shri Mahendra Singh,
6. Shri Balkrishna N. Rane
Dy. Manager-Law
-Sd- Illegible
7. Shri Anil V. Varsolkar
-Sd- Illegible
8. Shri Chandrakant N. Shinde
-Sd- Illegible
9. Shri Ramkrishna R. Shinde
-Sd- Illegible
10.Shri Harishchandra K. Shinde
-Sd- Illegible
11.Shri Jaywant K. Varde
-Sd- Illegible
12.Shri Anil N. Kavale
-Sd- Illegible
13.Shri Dilip R. Patil
-Sd- Illegible
14.Shri Mangesh B. Thakur
-Sd- Illegible
15.Shri Ramchandra C. Topale
-Sd- Illegible
16.Shri Vinod G, Raul
-Sd- Illegible
17.Shri Ramakant N. Shinde
-Sd- Illegible
18.Shri Suhas M. Gurav
-Sd- Illegible
19.Shri Anant K. Karmat
-Sd- Illegible
20.Shri Kishor B. Shelke
-Sd- Illegible
21.Shri Vinod E. Bhagat
-Sd- Illegible
22.Shri Sanjay D. Shelke
-Sd- Illegible
23.Shri Indrajit R. Magar
-Sd- Illegible
24.Shri Rajendra G. Mankar
¹Hkkx IIó[k.M 3(ii)º
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453
Witnesses from Management :
-Sd- Illegible
1.
Shri Sachin Kushabrao Warghane
-Sd- Illegible
2.
Shri Prakash Wasudeo Alpe
Witnesses from Union:
-Sd- Illegible
1.
Shri D. N. Vidhate, Vice President, Petroleum
Employees’ Union
Attachment-1
Sr.
Name
Covered under
Date of filing
No.
Original WP
of the WP for
the purpose
of calculating
gratuity
1
2
3
4
1
Shri Vasant Narayan
WP No. 4720
17/08/1999
Gondhali
of 1999
2
Shri Sadanand R. Patil
WP No. 4720
17/08/1999
of 1999
3
Shri Umesh Janardan
WP No. 4720
17/08/1999
Thale
of 1999
4
Shri Prashant H. Mhatre WP No. 4720
17/08/1999
of 1999
5
Shri Sudhir D. Rane
WP No. 4720
17/08/1999
of 1999
6
Shri Balkrishna N. Rane
WP No. 4720
17/08/1999
of 1999
7
Shri Anil V. Varsolkar
WP No. 4720
17/08/1999
of 1999
8
Shri Chandrakant
WP No. 4720
17/08/1999
N. Shinde
of 1999
9
Shri Ramkrishna
WP No. 4720
17/08/1999
R. Shinde
of 1999
10 Shri Harishchandra
WP No. 4720
17/08/1999
K. Shinde
of 1999
11 Jaywant K. Varde
WP No. 4720
17/08/1999
of 1999
12 Anil N. Kavale
WP No. 4720
17/08/1999
of 1999
13 Dilip R. Patil
WP No. 4720
17/08/1999
of 1999
14 Mangesh B. Thakur
WP No. 4720
17/08/1999
of 1999
15 Ramchandra
WP No. 4720
17/08/1999
C. Topale
of 1999
16 Vinod G. Raul
WP No. 4720
17/08/1999
of 1999
17 Ramakant N. Shinde
WP No,. 4720
17/08/1999
of 1999
l8
Suhas . M. Gurav
WP No. 4720
17/08/1999
of 1999
19 Anant K. Karmat
WP No. 4720
17/08/1999
of 1999
20. Kishor B. Shelke
WP No. 4720
17/08/1999
of 1999
21. Vinod E. Bhagat
WP No. 4720
17/08/1999
of 1999
22 Sanjay D. Shelke
WP No. 4720
17/08/1999
of 1999
23 Indrajit R. Magar
WP No. 4720
17/08/1999
of 1999
24 Rajendra G. Mankar
WP No. 4720
17/08/1999
of 1999
ubZ fnYyh] 23 tuojh] 2015
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ,xkWu
jsyhxsj ykbiQ bU'kqjUl daiuh fyfeVsM 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;] pSUubZ ds
iapkV (lanHkZ la[;k 93@2013) dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 12@01@2015 dks izkIr gqvk FkkA
¹la- ,y&17012@19@2013&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 23rd January, 2015
S.O. 201.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 93/
2013) of the Central Government Industrial Tribunal/
Labour Court, Chennai now as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of the M/s. Aegon Religare Life
Insurance Company Limited, and their workmen, received
by the Central Government on 12/01/2015.
[No. L-17012/19/2013-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM - LABOUR
COURT, CHENNAI
Friday, the 19th December, 2014
Present : K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 93/2013
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
1
2
3
4
454
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
Section 10 of the Industrial Disputes Act, 1947(14 of 1947),
between the Management of M/s Aegon Religare Life
Insurance Ltd. and their workman)
BETWEEN :
Sri N. Suresh Kumar
:
1st Party/Petitioner
AND
1. The Manager
:
2nd Party/1st
M/s Aegon religare Life Insurance Ltd.
Respondent
4th Floor, Kalluveetil Teenu Centre
Court Road, Nagercoil
2. The State Head
:
2nd Party/2nd
M/s Aegon Religare Life Insurance
Respondent
Co. Ltd.
3rd Floor, Prabha Complex,
2/1, L.B. Road,
Adyar Chennai-600020
Appearance :
For the 1st Party/Petitioner
:
M/s S. Arunachalam
Associates, Advocates
For the 2nd Party/1st& 2nd
:
M/s Pass Associates,
Respondents
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-17012/19/2013-IR (M)
dated 25.10.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the Management of M/s
Aegon Religare Life Insurance Ltd. in terminating
the services of Sri N. Suresh Kumar w.e.f. 02.12.2010
is legal and justified? What relief the workman is
entitled to?”
2.
On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 93/2013 and issued notices to both
sides. Both sides have entered appearance through their
counsel and have filed their claim and counter statement
respectively. The petitioner has filed rejoinder in answer
to the Counter Statement.
3.
The averments in the Claim Statement filed by the
petitioner in brief are these:
While the petitioner was working in the office of
M/s Aegon Religare Life Insurance Co. Ltd., the first
Respondent herein in the designated post of Business
Manager, Agency Distribution in the Nagercoil Branch,
he was terminated from service on 02.12.2010. Though the
nomenclature of the post of the petitioner was Business
Manager, his duty was to canvass business of Life
Insurance Policies as per the target fixed by the Company
with the assistance of part-time insurance agencies
approved by the Company. The petitioner was a worker
coming under the definition of Section-2(s) of ID Act. The
petitioner was appointed as regular employee by order
dated 10.08.2010, by placing him on probation for a period
of 6 months and prescribing his date of superannuation
as at the age of 60. Even before he could complete 6 months
period of service, he was issued a Show Cause Notice
alleging misconducts like using abusive language in front
of lady employees. A Show Cause Notice was issued to
the petitioner and he has offered his explanation also. But
the Respondent terminated the petitioner from service
without considering the explanation and without
conducting any enquiry. There is no substance in the
charges made against the petitioner by the Show Cause
Notice. They are flimsy and ill-motivated. In fact the
Respondent was irked by the Trade Union activities of
the petitioner. The petitioner was terminated without any
notice before completing the period of probation, paying
him 15 days pay in lieu of notice. The cheque sent by the
Respondent in final settlement was not accepted by the
petitioner. The petitioner has given a representation on
31.01.2011 seeking reinstatement in service. But there was
no response from the Management to this request. The
petitioner has raised the dispute accordingly. An order
may be passed directing the Respondents to reinstate the
petitioner in service with back wages, continuity of service
and other attendant benefits.
4.
The Respondents filed Counter Statement
contending as follows:
The dispute is not maintainable before the Industrial
Tribunal. The petitioner is not a workman as defined under
Section-2(s) of the Industrial Disputes Act. The petitioner’s
service was terminated during the period of probation for
non-satisfactory performance. The petitioner has accepted
the termination in writing. The petitioner was appointed
as Business Manager, Agency Distribution on probation
by letter dated 05.08.2010. The duty of the petitioner was
to recruit and support and manage the activities of Life
Advisors for sourcing insurance policies. It was the
petitioner’s responsibility to check the relevant documents
of the candidates recommended by him as Life Advisors.
The recommendation used to be accepted by the
Respondents. The petitioner was drawing salary of Rs.
27,407/- per month. Thus he was working in a managerial
and administrative capacity. So the petitioner is not a
workman within the meaning of Section-2(s) of the
Industrial Disputes Act. The petitioner has not completed
240 days of service with the Respondents. The
Respondent received complaints from the Life Advisors
as well as the employees of the Respondents about the
behaviour of the petitioner. He was warned for using
abusive language against Life Advisor. The Respondents
continued to get complaints against the petitioner against
his using abusive language against the lady employees.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
455
By e-mail dated 23.11.2010 the petitioner was asked to
give his explanation. He sent a reply that he is not part of
the complaints and in future also he will not be a part of
any such activities. He did not give proper explanation for
his behaviour. So it was deemed that he has admitted the
facts stated in the e-mail. Considering his non-satisfactory
services the Respondent came to the conclusion that
allowing him to continue him in employment is not
desirable. His service was terminated w.e.f. 02.12.2010 with
payment of 15 days salary in lieu of notice. He has accepted
the termination letter. This shows that he has admitted
guilt. The petitioner is not entitled to any relief.
5.
The petitioner has filed rejoinder denying the
allegations in the counter statement and reiterating his
case in the Claim Statement.
6.
The evidence in the case consists of oral evidence
of WW1 and MW1 and documents marked as Ext.W1 to
Ext.W13 and Ext.M1 to Ext. M29.
7.
The points for consideration are:
(i)
Whether the action of the Respondents in
terminating the service of the petitioner from
their service is legal and justified?
(ii)
What, if any, is the relief to which the petitioner
is entitled?
The Points
8.
The petitioner was admittedly appointed as
Business Manager, Agency Distribution in the Nagercoil
Branch of the Respondent by letter of appointment dated
10.08.2010 which is marked as Ext.W2. As per the terms of
appointment the petitioner was to be on probation for a
period of 6 months w.e.f. the date of joining. As seen from
the appointment order the petitioner is to undergo a
probation appraisal at the end of 6 months and based on
the appraisal report a decision would be taken to confirm
the petitioner in service. By letter of termination dated
02.12.2010 the petitioner was terminated from service 20
days prior to the date of expiry of the period of probation.
The petitioner is challenging this order of termination and
is seeking reinstatement in the service of the Respondents.
9.
Before adverting to the question of legality of the
termination of the petitioner itself, the question whether
the petitioner is an employee coming under the definition
of worker as per Section-2(s) of Industrial Disputes Act is
to be considered. It has been contended by the
Respondents in the Counter Statement that the petitioner
was appointed as Business Manager and he was working
in a managerial and administrative capacity and therefore
he is not a workman within the meaning of Section-2(s) of
the Act. This contention seems to have been raised by the
Respondents even during the conciliation proceedings.
Probably on account of this, in the Claim Statement, the
petitioner has specifically stated that he is a workman
coming under Section-2(s) of the Act. According to him,
his designation as Business Manager is only a
nomenclature given to attract the public and to fetch
business for the company. According to the petitioner, his
duty was only to canvass the business of Life Insurance
policies with the assistance of Insurance Agencies. He
was actually not working in a managerial or administrative
capacity and has no supervisory authority or control over
the staff also.
10.
There is the evidence given by the petitioner that in
spite of the attractive name given to his position in the
Respondent Company he was actually only canvassing
policies and has nothing to do with the administration or
management of the Company. MW1 examined on behalf
of the Respondents has of course has stated in his affidavit
of examination that the petitioner was working
independently and the Life Advisors were tagged to him.
He has further stated that it was the responsibility of the
petitioner to check the relevant documents of the
candidates recommended by him as Life Advisors and
certify the same. He further stated that the petitioner was
resolving the doubts of the Advisors and was also
assessing the work performed by the Life Advisors.
11.
It is clear from the evidence that the so called Life
Advisors are only the agents of the Insurance Company
and not the direct employees of the Company. According
to the petitioner his duty was only to identify the agents
and approval and recognition was being done by his
superior Officers. His main activity was to canvass policies
with the help of the Life Advisors.
12.
It is seen from the admission made by MW1 during
his cross-examination that the petitioner does not have
any managerial or administrative capacity. The
appointment orders are issued by the Human Resources
Department of the Company. Issue of Charge Memo taking
disciplinary proceedings, etc. are also done by the
Department He admitted that the petitioner is not entitled
to take any policy decision with reference to the branch.
However according to him all administrative decisions
pertaining to Life Advisors can be taken by the petitioner.
However, this ‘decision’, it has turned out from evidence,
is to check the details in the recruitment forms, the samples
of which are marked as Ext.M1 to Ext.M8. Yet these forms
are not seen attested by the petitioner. He has only verified
the original documents, MW1 has admitted. Even the
sending of the recruitment forms for approval is done by
someone other than the petitioner. As admitted by MW1,
the available documents would not show that the
Business Manager has got any administrative powers.
Thus against the evidence given by the petitioner that in
spite of his attractive nomenclature as Business Manager
his work is not supervisory in nature, there is no evidence
available on the part of the Respondents to show that he
has managerial and supervisory capacity.
456
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
13.
In the decision in ANAND BAZAR PATRIKA PVT.
LTD. VS. THE WORKMAN reported in 1970 3 SCC 248 the
Apex Court has held that even minor duties of supervisory
character will not convert the Office of Senior Clerk in
charge to that of Supervisor and he continues to be the
workman. In the decision in ARKAL GOVINDRAJRAO
VS. CIBA GEIGY OF INDIA LTD., BOMBAY reported in
1985 2 LLJ 401 the Apex Court has held again that the test
to find out whether an employee is a workman is what is
the primary basic or dominant nature of duties for which
the person whose status under enquiry was employed.
The words like managerial or supervisory may have to be
understood in their proper connotation and their mere use
should not detract from the truth, it was further held.
14.
It has come out in evidence that the duty of the
petitioner was only to canvass insurance policies with the
help of Insurance Agents called Life Agents. He had
nothing to do with the management or administration of
the company and was not having any supervisory capacity
also. So the position of the petitioner in the Respondents
Company as Business Manager is only that of a workman.
15.
Now it is to be seen whether there was any
justification for the termination of the petitioner from
service. It is not in dispute that the petitioner was
terminated while he was still on probation. As seen from
the Counter Statement, considering the non-satisfactory
services of the petitioner the Respondents came to the
conclusion that continuing him in employment was not
desirable and so his service was terminated w.e.f.
02.12.2010. Ex.W3 is the Show Cause Notice served on the
petitioner. The reasons for issuing the notice are as below,
as seen from Ext.W3.
(i)
Using abusive language in the branch in front
of lady employees.
(ii)
During review with the Manager and Area
Manager, the petitioner behaved badly and
again used abusive language.
(iii)
Indecent actions in the branch, also in front
of lady employees.
(iv)
The petitioner never reports to the Branch in
the evening.
(v)
He reports late in the morning.
(vi)
The policies sourced by the petitioner were
not getting issued since many times the
cheques of the customers were not honoured.
The Show Cause Notice continues that the petitioner
was found to have breached his code of conduct and
contract of employment with the Company on the above
mentioned grounds and he is to show cause as to why
action should not be taken against him, including but not
limited to termination of his services from the Company
with immediate effect. Ext.W5 is said to be the explanation
given by the petitioner to the Show Cause Notice.
However, this does not bear any date. According to the
Respondent, they did not receive this explanation. Ext.W8
is an explanation given later, after the termination.
However, it could be seen from the Counter Statement
itself that Show Cause Notice dated 23.11.2010 was sent
to the petitioner by e-mail communication. The petitioner
has sent a reply to this on 29.11.2010. He has stated in his
reply that he is not part of the complaints and in future
also he will not be a part of any such activities. This is in
effect a total denial of the allegations made against him in
the Show Cause Notice communicated to him through e-
mail. The grievance of the Respondents is that this could
not be taken as an explanation, probably because it is an
answer in one single sentence. It was because this was
found unsatisfactory he was terminated from service.
16.
Ex.W4 is the letter of termination served on the
petitioner. The letter states that the petitioner has not
provided any explanation to the Show Cause Notice. It is
further stated that in view of this it is concluded that the
complaints of misbehaviour against him are true. It is also
stated that the action of the Respondents are in serious
violation of code of conduct amounting to breach of
employment contract. Thus it could be seen from Ext.W4
that it was not because his work for which he was
appointed was unsatisfactory during the period of
probation, he was terminated from service. On the other
hand he was terminated from service for the reason that
he had used abusive language in front of lady employees,
he had misbehaved and used abusive language with the
Manager and Area Manager, made indecent actions again,
in front of lady employees, he failed to report at the branch
in the evening and reported late in the morning and also
because the cheques given by the customers sourced
through the petitioner were not honoured. There is not
even an indication in Ext.W3 that his work at the end of
the probation period was not satisfactory. On the other
hand, it was on account of misconducts alleged against
him as per Ext.W3, the petitioner was terminated from
service. This was done without conducting any enquiry
in spite of his denial of the allegations made against him in
the Show Cause Notice, by his e-mail communication.
17.
The Respondents seem to be harping on the terms
of the letter of appointment (Ext.W2) to justify their action.
As per Clause-IV of Ext.W2 the employer is to make an
appraisal of the work of the petitioner at the end of 6
months and a decision is to be taken to confirm him in
service or to extend the probation period or to terminate
him from service. There is also a further condition in the
clause that during the probation period either side will be
at liberty to terminate the contract of employment by giving
to the other 15 days notice in writing or salary in lieu
thereof without assigning any reason for termination of
the contract.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 31] 2015@ek?k 11] 1936
457
18.
However, the legal position is such that the action
of the Respondent could not be justified in law. If the
motive for the termination is punitive, an enquiry should
have been conducted before termination even if the
employee was undergoing probation. This is the dictum
laid down by the Apex Court in DIPTI PRAKASH
BANERJEE VS. SATYENDRANATH BOSE NATIONAL
CENTRE FOR BASIC SCIENCES, CALCUTTA AND
OTHERS reported in 1999 3 SCC 60. It was held here that if
findings are arrived at in an enquiry as to misconduct
behind the back of the Officer or without a regular
departmental enquiry simple order of termination is to be
treated as “founded” on the allegations and will be bad. It
was further held that the material which amounts to stigma
need not contain in termination order of a probationer but
might be contained in documents referred to in the
termination order or its annexures. Such documents can
be asked for or called for by any future employer of the
probationer and in such case employee’s interest would
be harmed and therefore termination order would stand
vitiated on the ground that no regular enquiry was
conducted. In Ext.W4 the allegations against the petitioner
are not reproduced, however, it is clear from the order that
the termination was on the basis of the charges of
misbehaviour against him. So certainly it would act as a
stigma upon the petitioner when he tries for future
employment. Before such termination, enquiry should
have been conducted by the Respondents.
19.
The counsel for the Respondents had produced a
plethora of judgments of the Apex Court as well as different
High Courts, all regarding termination of employee during
the period of probation. One of the them is PARAMJEET
VS. DIRECTOR OF PUBLIC INSTRUCTION (SCHOOLS)
AND OTHERS reported in 2010 14 SCC 416. It was a case
where a probationer was terminated from service on
account of his non-satisfactory performance. In this
judgment also the Apex Court has indicated that the
termination is penal in nature it will be bad in law. In the
above case, the termination having been on account of
non-satisfactory performance of the probationer alone it
was held that departmental enquiry was not required before
termination. I do not propose to refer to other judgments
relied upon by the counsel for the Respondents for the
reason that all these are relating to cases where termination
was on account of dissatisfactory performance and not
because of allegations of misconduct which will attract
stigma on termination. It is apparent from the dictum laid
down by the Apex Court that in case the termination is
penal in nature an enquiry should have been conducted
prior to the termination.
20.
One contention that has been raised on behalf of
the Respondents is that subsequently the petitioner has
accepted the termination. Ext.M23 is relied upon in this
respect. In this undated letter the petitioner has stated
that he is accepting the termination, that he understands
his mistakes and that further issues will not happen from
his side. According to the Respondents, on account of
this letter also the petitioner has no right to challenge the
termination. It is in fact idle for the Respondents to raise
such a contention. There is Ext.W7 by which the petitioner
has raised his protest stating that he is not accepting the
termination which is not legal, moral or ethical and he is
returning the cheque forming part of the letter received by
him. Even assuming that the petitioner has accepted the
termination by Ext.M23, the termination having been
against the legal norms he has every right to challenge the
same. I find that the termination is not legally justifiable.
The petitioner is entitled to be reinstated in service.
Accordingly an award is passed as follows:
The Respondents are directed to reinstate the
petitioner in service within one month of the award with
25% back wages, continuity of service and all other
attendant benefits. If back wages is not paid within one
month of the award it will carry interest @ 9% per annum
from the date of the award. ‘
The reference is answered accordingly.
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined
For the 1st Party/Petitioner :
WW1, Sri N. Suresh Kumar
For the 2nd Party/
:
MW1, Sri Jitin Parekh
Management
Documents Marked
On the Petitioner’s side
Ex.No.
Date
Description
Ex.W1
22.06.2010
Letter of offer
Ex.W2
10.08.2010
Letter of appointment of the
petitioner
Ex.W3
23.11.2010
Show Cause notice to the
petitioner
Ex.W4
02.12.2010
Termination letter to the
petitioner
Ex.W5
-
Explanation given by the
petitioner to the Show Cause
Notice and termination letter
Ex.W6
31.01.2011
Letter of full and final
settlement given to the
petitioner
Ex.W7
23.02.2011
Refusal letter of the petitioner
to the full and final Settlement
Ex.W8
31.01.2011
Detailed explanation given by
the
petitioner
to
the
Respondent
Ex.W9
08.11.2011
Letter from Respondent to the
Assistant Commissioner of
Labour, Nagercoil
458
THE GAZETTE OF INDIA : JANUARY 31, 2015/MAGHA 11, 1936
[PART II—SEC. 3(ii)]
Ex.W10
30.06.2012
Conciliation failure letter
issued by the Assistant
Labour
Commissioner
(Conciliation), Nagercoil
Ex.W11
30.07.2012
Reply of the management
before the ALC (C), Madurai
Ex.W12
12.12.2012
Reply filed by the management
before the ALC (C), Madurai
Ex.W13
-
Letter from the petitioner to the
Respondent
On the Management’s side
Ex.No.
Date
Description
Ex.M1
-
Recruitment form of Felix
Sterling
Ex.M2
-
Recruitment form of Paul Singh
Ex.M3
-
Recruitment
form
of
Rajasekaran
Ex.M4
-
Recruitment form of Selva
Kumar
Ex.M5
-
Recruitment form of Prakash
Ex.M6
-
Recruitment form of Siva
Ex.M7
-
Recruitment form of Anil
Ruban
Ex.M8
-
Recruitment form of Chenthil
Ex.M9
05.08.2010
Letter of appointment on
probation petitioner was
appointed
as
Business
Manager–Agency Distri-
bution –Nagercoil)
Ex.M10
25.09.2010
E-mail communication from
Respondent to petitioner with
a warning
Ex.M11
18.11.2010
Internal e-mail communication
of the Respondent regarding
the conduct of the petitioner
Ex.M12
19.11.2010
Letter from K. Rajasekaran, Life
Advisor to the Respondent
complaining
the
non-
cooperative
attitude
of
petitioner
Ex.M13
19.11.2010
Internal E-mail Communication
Ex.M14
20.11.2010
Internal e-mail communication
from Gandhimathy, Asstt.
Training Manager complaint
about petitioner’s indecent
behavior and non-participation
in the office activities
Ex.M15
20.11.2010
Internal E-mail Communication
from S. Santhiya Rani, CSE
Operations regarding the
attitude of petitioner
Ex.M16
20.11.2010
Internal E-mail communication
from VS Mohan Kumar
Ex.M17
23.11.2010
Internal E-mail communication
of the Respondent regarding
the
various
complaints
received against the petitioner
and warning issued to
petitioner
Ex.M18
23.11.2010
Internal e-mail communication
from VS Mohan Kumar
Ex.M19
23.11.2010
E-mail communication from the
Respondent
regarding
unsatisfactory performance of
the petitioner
Ex.M20
29.11.2010
Internal e-mail communication
from Nicholas P. Delphin to
Respondent regarding the
humiliation that he suffered
with petitioner
Ex.M21
29.11.2010
Reply e-mail from the petitioner
to Respondent
Ex.M22
02.12.2010
Letter of termination of
petitioner during the period of
probation on account of his
non-satisfactory performance
Ex.M23
-
Letter from petitioner to
Respondent accepting his
mistakes and termination and
also declaring that he has no
issues against respondent;
and receipt of payment
Ex.M24
Set., Oct.
Pay slips of the petitioner
& Nov. 2010
Ex.M25
30.07.2012
Letter from Respondent to
Asstt. Labour Commissioner
Ex.M26
12.12.2012
Letter from Respondent to
Asstt. Labour Commissioner
of Labour
Ex.M27
23.08.2012
Office Memorandum from
Ministry of Labour
Ex.M28
23.10.2012
Letter from petitioner to
Ministry of Labour
Ex.M29
23.07.2011
Proof of encashment of 15 days
salary towards salary in lieu of
notice.
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