Ekkuo lalk/ku fodkl ea=ky;
Ekkuo lalk/ku fodkl ea=ky;
Ekkuo lalk/ku fodkl ea=ky;
Ekkuo lalk/ku fodkl ea=ky;
Ekkuo lalk/ku fodkl ea=ky;
¼mPprj f’k{kk foHkkx½
¼mPprj f’k{kk foHkkx½
¼mPprj f’k{kk foHkkx½
¼mPprj f’k{kk foHkkx½
¼mPprj f’k{kk foHkkx½
¼jktHkk
¼jktHkk
¼jktHkk
¼jktHkk
¼jktHkk"kk ;wfuV½
kk ;wfuV½
kk ;wfuV½
kk ;wfuV½
kk ;wfuV½
ubZ fnYyh] 3 Qjojh] 2015
dk-vk- 425-—dsUnzh; ljdkj] jktHkk"kk ¼la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi fu;e 4 ds
vuqlj.k esa] ekuo lalk/ku fodkl ea=ky; ¼Ldwy f'k{kk ,oa lk{kjrk
foHkkx½ ds varxZr uoksn; fon~;ky; lfefr ds tokgj uoksn;
fon~;ky;] nknjh] xkSre cq+) uxj ¼mRrj izns'k½ dks ,sls dk;kZy; ds
:i esa] ftlds 80 izfr'kr ls vf/kd deZpkjh&o`Un us fgUnh
dk dk;Zlk/kd Kku izkIr dj fy;k gS] vf/klwfpr djrh gSA
[Lakñ 11011&3@2014&jkHkk,]
lq[kchj flag laèq] la;qDr lfpo
MINISTRY OF HUMAN RESOURCE DEVELOPMENT
(Department of Higher Education)
(O.L. UNIT)
New Delhi, the 3rd February, 2015
S.O. 425.—In pursuance of sub-rule (4) of rule 10
of the Official Languages (Use for Official Purposes of the
Union) Rules, 1976, the Central Government hereby
notifies the Jawahar Navodaya Vidyalaya, Dadri, Gautam
Budh Nagar (Uttar Pradesh) of Navodaya Vidyalaya Samiti
under the Ministry of Human Resource Development,
(Department of School Education & Literacy) as office,
whose more than 80% members of the staff have acquired
working knowledge of Hindi.
[No. 11011-3/2014-OLU]
SUKHBIR SINGH SANDHU, Jt. Secy.
917 GI/2015
(1097)
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 10]
ubZ fnYyh] ekpZ 1—ekpZ 7] 2015] 'kfuokj@iQkYxqu 10—iQkYxqu 16] 1936
No. 10]
NEW DELHI, MARCH 1—MARCH 7, 2015, SATURDAY/PHALGUNA 10—PHALGUNA 16, 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
1098
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 27 tuojh] 2015
dk-vk- 426-—dsUnzh; ljdkj] jktHkk"kk ¼la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi&fu;e
4 ds vuqlj.k esa] ekuo lalk/ku fodkl ea=ky; ¼Ldwy f'k{kk
,oa lk{kjrk foHkkx½ ds varxZr dsUæh; fon~;ky; laxBu
dsUæh; fon~;ky; laxBu
dsUæh; fon~;ky; laxBu
dsUæh; fon~;ky; laxBu
dsUæh; fon~;ky; laxBu
¼eq[;ky;½] ubZ fnYyh ds dsUæh; fon~;ky;] ÅVh] ,p
¼eq[;ky;½] ubZ fnYyh ds dsUæh; fon~;ky;] ÅVh] ,p
¼eq[;ky;½] ubZ fnYyh ds dsUæh; fon~;ky;] ÅVh] ,p
¼eq[;ky;½] ubZ fnYyh ds dsUæh; fon~;ky;] ÅVh] ,p
¼eq[;ky;½] ubZ fnYyh ds dsUæh; fon~;ky;] ÅVh] ,p
ih ,Q] banquxj] ÅVdeaM&643 005
ih ,Q] banquxj] ÅVdeaM&643 005
ih ,Q] banquxj] ÅVdeaM&643 005
ih ,Q] banquxj] ÅVdeaM&643 005
ih ,Q] banquxj] ÅVdeaM&643 005 dks ,sls dk;kZy; ds
:i esa] ftlds 80 izfr’kr ls vf/kd deZpkjh&o`~Un us fgUnh dk
dk;Zlk/kd Kku izkIr dj fy;k gS] vf/klwfpr djrh gSA
[Lakñ 11011&3@2014&jkHkk,]
lq[kchj flag laèq] la;qDr lfpo
New Delhi, the 27th January, 2015
S.O. 426.—In pursuance of sub-rule (4) of rule 10
of the Official Languages (Use for Official Purposes of the
Union) Rules, 1976, the Central Government hereby
notifies the Kendriya Vidyalaya, Ooty, HPF Indunagar,
Ootacamund-643 005 of Kendriya Vidyalaya Sangathan
(HQ), New Delhi under the Ministry of Human Resource
Development, (Department of School Education &
Literacy) as office, whose more than 80% members of the
staff have acquired working knowledge of Hindi.
[No. 11011-3/2014-O.L.U]
SUKHBIR SINGH SANDHU, Jt. Secy.
d`f"k ea=ky;
¼d`f”k ,oa lgdkfjrk foHkkx½
¼jktHkk”kk izHkkx½
ubZ fnYyh] 4 ekpZ] 2015
dk-vk- 427-—dsUnzh; ljdkj] jktHkk"kk ¼la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi fu;e
¼4½ ds vuqlj.k esa] d`f"k ea=ky;] d`f"k ,oa lgdkfjrk foHkkx ds
lkoZtfud {ks= dk midze jk"Vª~h; cht fuxe fyfeVsM] ubZ
fnYyh ds varxZr fuEufyf[kr iz’kklfud fu;a=.kk/khu dk;kZy;
dks ftlds 80% deZpkjh o`Un us fgUnh dk dk;Zlk/kd Kku izkIr
dj fy;k gS] vf/klwfpr djrh gS%&
jk"Vª~h; cht fuxe fyfeVsM
dsUæh; jkT; QkeZ] tSrlj
ftyk & Jhxaxkuxj&335785
jktLFkku
[Lakñ 3&3@2011&jkHkkuh]
vkjñchñ flUgk] la;qDr lfpo
MINISTRY OF AGRICULTURE
(Department of Agriculture & Cooperation)
(Official Language Division)
New Delhi, the 4th March, 2015
S.O. 427.—In pursuance of sub. rule (4) of rule 10
of the Official Languages (Use for Official Purposes of the
Union) Rules, 1976, the Central Government hereby
notifies the following office which is under the
administrative control of the National Seeds Corporation
Limited, New Delhi an undertaking of the Department of
Agriculture & Cooperation, Ministry of Agriculture,
whereof 80% staff have acquired the working knowledge
of Hindi.
National Seeds Corporation Limited
Kendriya Rajya Farm, Jaitsar
Distt. - Sriganganagar-335785
(Rajasthan)
[No. 3-3/2011-Official Language Policy]
R.B. SINHA, Jt. Secy.
LokLF; ,oa ifjokj dY;k.k ea=ky;
¼LokLF; ,oa ifjokj dY;k.k foHkkx½
ubZ fnYyh] 22 fnlEcj] 2014
dk-vk- 428-—nar fpfdRld vf/kfu;e] 1948 ¼1948
dk 16½ ds [k.M 10 ds mi&[kaM ¼2½ n~okjk iznRr ’kfDr;ksa dk
iz;ksx djrs gq,] dsanz ljdkj Hkkjrh; nar fpfdRlk ifj"kn ds
lkFk ijke’kZ ds ckn] ,rnn~okjk mDr vf/kfu;e dh vuqlwph ds
Hkkx&I esa fuEufyf[kr la’kks/ku djrh gS uker% %&
2- nar fpfdRld vf/kfu;e] 1948 ¼1948 dk 16½ dh
vuqlwph ds Hkkx&I esa dze la- 56 ds dkWye 2 vkSj 3 dh ekStwnk
izfof"V;ksa esa d`".kk‘MsaVy dkWyst] xkft;kckn ds lkeus
pkSñ pj.k flag fo’ofon~;ky;] esjB n~okjk iznRr nar fpfdRlk
dh fMxzh dh ekU;rk ds laca/k esa fuEufyf[kr izfof"V;ksa dks
'kkfey fd;k tk,xk uker% %&
ekLVj vkWQ MsaVy ltZjh
ekLVj vkWQ MsaVy ltZjh
ekLVj vkWQ MsaVy ltZjh
ekLVj vkWQ MsaVy ltZjh
ekLVj vkWQ MsaVy ltZjh
“(i) cspyj vkWQ MsaVy
chMh,l
ltZjh
¼;g ekU;rkizkIr nar fpfdRlk vgZrk
gksxh ;fn d`".kk MsaVy dkWyst] xkft;kckn esa
dsoy 2009&10 l= esa izf’kf{kr vkSj nkf[kyk
fd, tk jgs Nk=ksa ds laca/k esa pkSñ pj.k flag
fo’ofon~;ky;] esjB n~okjk ,d&ckjxh mik;
ds :i esa iznku dh xbZ gks ftls Hkfo"; esa iwoZ
mnkgj.k ds :i esa m)`r ugha fd;k tk,xk½**
[Qk- lañ oh&12017+@22@2004&MhbZ]
lq/khj dqekj] voj lfpo
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1099
MINISTRY OF HEALTH AND FAMILY WELFARE
(Department of Health and Family Welfare)
New Delhi, the 22nd December, 2014
S.O. 428.—In exercise of the powers conferred by
sub-section (2) of section 10 of the Dentists Act, 1948 (16
of 1948), the Central Government, after consultation with
the Dental Council of India, hereby, makes the following
amendments in Part-I of the Schedule to the said Act,
namely:—
2. In the existing entries of column 2 & 3 against
Serial No.56, in Part-I of the Schedule to the Dentists Act,
1948 (16 of 1948) pertaining to recognition of dental degrees
awarded by Ch. Charan Singh University, Meerut against
Krishna Dental College, Ghaziabad the following entries
shall be inserted thereunder:-
“(i) Bachelor of Detal
BDS
Surgery
(This shall be a recognized dental
qualification when granted by Ch. Charan
Singh University, Meerut to the students
being trained and admitted in the
academic session 2009-10 only, at
Krishna Dental College, Ghaziabad as a
one time measure not to be quoted as
precedent in future)".
[F. No. V. 12017/22/2004-DE]
SUDHIR KUMAR, Under Secy.
Je ,oa jkstxkj ea=ky;
Je ,oa jkstxkj ea=ky;
Je ,oa jkstxkj ea=ky;
Je ,oa jkstxkj ea=ky;
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 25 Qjojh] 2015
dk-vk- 429-
dk-vk- 429-
dk-vk- 429-
dk-vk- 429-
dk-vk- 429-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l- bZ- lh-
,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 20@2004½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
25@02@2015 dks izkIr gqvk FkkA
[la- ,y&22012/126/2003–vkbZvkj (lh,e-2)]
eks- tkfgn 'kjhQ] vuqHkkx vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 25th February, 2015
S.O. 429.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 20/04)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of Jamuna & Kotma Area
of SECL, and their workmen, received by the Central
Government on 25/02/2015.
[No. L-22012/126/2003 - IR(CM-II)]
MD ZAHID SHARIF, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/20/04
Secretary,
M.P.Koyla Shramik Sangh,
Branch Jamuna,
Distt. Shahdol (MP)
Workman/Union
Versus
General Manager,
Jamuna & Kotma Area of SECL,
PO Jamuna, Distt. Shahdol.
Management
A W A R D
Passed on this 6th day of February, 2015
1. As per letter dated 23-2-04 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
126/2003-IR(CM-II). The dispute under reference relates
to:
“ Whether the action of the management of SECL in
not giving pay protection to Shri Llias Ansari on his
promotion from Loader to Mining Sirdar-cum-Shot
Firer from 24-10-89 is legal and justified? If not, to
what relief he is entitled to?”
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 12/1 to 12/3. Case of workman is that he was initially
appointed as labour on 4-7-80 by IInd party. He worked
with honesty till 6-5-89. Workman obtained certificate of
Mining Sirdar. He was authorized to work as Mining Sirdar/
Shot firer as per order dated 7-5-89. In the year 1989,
INMOSSA went on strike. During strike period, services
of workman were utilized for work of Mining Sirdar/ shot
firer. It is submitted that workman was promoted as Mining
Sirdar/ Shot firer from 24-9-89 in pay scale Rs. 1272-40-
1702-66-2230. However his pay was fixed at Rs. 1272/-.
That on date of his promotion, he was received wages
Rs. 1834.30 as piece rated loader. That he was departmental
candidate promoted from post of piece rated labour to
Mining Sirdar. He submits that his pay should have been
fixed Rs.1834.30 +66= 1900.30. There was no stage of
1100
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Rs. 1900 in the pay scale. His pay should have been fixed
Rs. 1966/- that workman submitted repeated
representations but his request for correct fixation of pay
was not considered. After great efforts, IInd party agreed
to protect his pay giving him personal pay. Arrears of
Rs.72,188.48 paid to him.
3. It is submitted that Chief General Manager, SECL
issued certificate dated 17-2-95 allowing pay protection in
case of piece rated workman on conversion or regularization
to time rated , monthly rated. Since workman was promoted/
declined on basis of administrative exigencies, he is entitled
to pay protection. Management agreed to protect pay of
workman who were observed as Mining Sirdar and
deployed by management in the meeting held on 13-11-95.
However workman was not provided benefit of pay
protection. On such grounds workman is praying to direct
management to provide benefit of pay protection and
payment of arrears.
4. IInd party filed Written Statement at Page 13/1 to
13/13. Claim of workman is opposed. The pay protection
claimed by workman 14-10-89. The dispute is raised after
15 years. Claim is highly belated and not tenable. IInd
party referred to ratio held in AIR-2000-SC-839 & 2001-
LLR-1112. IInd party further submits that Coal Mines are
nationalized as per National Mines Nationalisation Act,
1973. For administrative convenience, the function is
carried through subsidiary company including SECL. The
service conditions are covered by NCWA, cadre scheme.
As per cadre scheme for mining supervisory employees
starts from T&S Grade C. The employees are selected
depending on statutory certificates called competency
certificate, Gas testing Certificate issued by DGNS.
I.I.No.33 issued on 22-6-88 prescribed experience and
qualifications for departmental candidates promotion/
selections. Candidate must be literate, have more than 5
years experience in mine working. Promotion through DPC
on unit basis sanctioned vacancies. It is reiterated that
the workman obtained competency certificate was selected
as Mining Sirdar. That as per circular dated 21-9-89,
delegation of powers of Chief General Manager/ Manager
delegated. It is reiterated that workman was not promoted
but he was selected as departmental candidate.
5. Management invited application from eligible
candidates as and when vacancies of Mining Sirdar arose.
There is selection Committee called DPC conducting
selection process. There is no compulsion on part of
departmental candidates selected to the statutory post to
join their duties. Workman cannot claim the pay scale of
piece rated post and work of Mining Sirdar. That office
orders issued dated 28-6-89 not allowing pay protection.
Such employees can be reverted back to their original post.
The decision taken in the meeting dated 27-6-94 allowed
pay protection when such employees are deployed by
management in regularization cases but in case they have
obtained/selected against advertisement, pay protection
is not allowed. The circular dated 17-2-95 provides for
payment of SPRA till employee worked on piece rated job
prior to conversion. That workman were placed in
Category/ scale SPRA applicable to the individual at the
time of fixation. In meeting between 13th Nov 95 allowed
pay protection to Mining sirdar in case of regularization
and not in case of their absence or selection. IInd party
submits that as workman was selected, he was not
promoted, he is not entitled to pay protection. Workman
was selected as Mining Sirdar. Prior to it, he was appointed
as loader in 1980. Workman is not entitled to pay
protection. His pay is correctly placed for the post of
mining Sirdar after his selection. On such ground, IInd
party prays for rejection of claim.
6. Considering pleadings on record, the points
which arise for my consideration and determination are as
under. My findings are recorded against each of them for
the reasons as below:-
(i) Whether the action of the
management of SECL in not giving
pay protection to Shri Llias Ansari
on his promotion from Loader to
Mining Sirdar cum Shot Firer from
24-10-89 is legal and justified?
(ii) If not, what relief the workman is
entitled to?”
REASONS
7. Workman is praying pay protection on his
promotion to the post of Mining Sirdar from 24-9-89. IInd
party opposed his claim on the ground that workman was
not promoted. He was selected as Mining Sirdar. The post
are as per the cadre scheme. Workman was not regularized
by management. He is not entitled to pay protection.
Workman filed affidavit of his evidence stating that he
was promoted from post of labour to Mining Sirdar from
24-9-89. The order was issued on 9-11-89 he was receiving
pay of Rs.1834.30 on post of labour. While fixing his pay,
he should have been allowed one increment for promotion.
His pay should have been fixed Rs.1834.30 +66=1900.30.
In his cross-examination, workman says he was appointed
as labour. He was working as piece rated labour till 1989.
He had not given application for post of Mining Sirdar/
Shot Firer. The post was not advertised. When he was
posted as Mining Sirdar, strike was continued. No DPC
was held. He had passed competency certificate. He was
paid wages as piece rated loader. There is cadre scheme
for promotion to Mining Sirdar. That he worked as Mining
Sirdar on direction of management. He was claiming pay
protection since beginning. The services are covered by
NCWA.
As per final
order.
In Negative
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1101
8. Management’s witness Shri P.S.Mundra filed
affidavit of his evidence supporting contentions in Written
Statement filed by IInd party. Departmental candidate who
desired selection to statutory post are required to submit
application. There is selection committee called DPC. DPC
conduct selection process successful candidates including
departmental candidates are given offer to the post. The
pay protection claimed by workman cannot be granted.
That certificate dated 17-2-95 provides- in case of piece
rated workman who applied or have been converted into
time rated against selection are not entitled to pay
protection. In his cross-examination, management’s witness
says he filed affidavit of his evidence . he knows that
workman was working during strike period. He claims
ignorance whether workman submits option form to office.
Pay of workman was protected in case management
engaged workman to other work. He admits that workman
was working as Mining Sirdar. He also admits that pay of
workman was protected by office. The documents are not
produced on record. He denies that pay of workman is
wrongly fixed.
9. The documents produced by workman Exhibit W-
1 to W-10. W-1 shows workman was authorized to work as
Mining Sirdar on 7-5-89. Exhibit W-2 order shows on
recommendation of DPC, the employees were promoted
as Mining Sirdar cum Shot firer from 24-9-89. Order refers
to recommendation of DPC. Workman was promoted. In
Exhibit w-3, office note, it is observed that management
expressed that wage protection will be given in case they
have been deployed by management i.e. in regularization
cases. That in case they have opted/ selected against
advertisement, no protection will be given to them. The
evidence of management witness shows workman was
working during strike period. Management has not
produced any documents advertising the post of Mining
Sirdar. Rather in Exhibit W-2, workman is shown promoted.
In Exhibit W-4 also workman was shown promoted and his
pay was fixed allowing personal pay at different rates.
Workman was promoted as per Exhibit W-2. He was
receiving pay Rs. 1834.30 as piece rated loader as per rules
on promotion, he was entitled to one increment. Thus pay
should have been fixed Rs. 1900.30. the wages Rs. 1834.30
needs to be rounded up to Rs. 1834/- . The submissions of
workman that there is no stage in the pay scale of
Rs. 1900.30 and therefore his pay should be fixed to
Rs. 1966/- cannot be accepted. The wages less than 50
paise needs to be rounded up to Rs. 1834 and then allowing
one increment on promotion, the pay of workman should
have been fixed Rs. 1900 on his promotion to the post of
Mining sirdar from 24-9-89. So far as pay protection claimed
by workman, workman was promoted on 24-9-89. The
circular dated 17-2-95 cannot be given retrospective effect.
The claim for pay protection is against rules is not proper.
Incidentally learned counsel for IInd party Shri Shashi
has produced copies of award in R/149/96. Said reference
was decided exparte against workman cannot be
beneficially relied.
The copies of judgments in 828/97 Award in R/263/
00 by CGIT, Nagpur. The facts are not comparable. Next
reliance is placed in case of BHEL and another versus
B.K.Vijay and others reported in 2006(2)SCC654. Their
Lordship dealing with promotion and entitlement held there
is no automatic promotion to a higher post and
consequential pay scale thereof merely because the Status
of the appointee has been enhanced for the purposes of a
particular Act. Under relevant promotion rules, manuals
etc of the appellant company before promotion to a higher
post one must hold a post next below that post for the
prescribed period.”
In present case, cadre scheme provides 5 years
experience for post of Mining Sirdar which contemplates
there are feeder post. Workman was working as tub loader
from 1980. In 1989, he acquired competency certificate from
DGMS. In Exhibit W-2, workman and others are shown
promoted to the post of Mining Sirdar/ Shot Firer.
Considering totality of the evidence, it is clear that though
workman is not entitled for pay protection as per Circular
dated 17-2-95, on his promotion, he was entitled to one
increment. His pay should have been fixed Rs. 1900/-. The
request of workman was not accepted. Therefore action
of the management is not legal and proper. Therefore I
record my finding in Point No.1 in Negative.
10.In the result, award is passed as under:-
(1) The action of the management of SECL in not giving
pay protection to Shri Llias Ansari on his promotion
from Loader to Mining Sirdar cum Shot Firer from
24-10-89 is not legal.
(2) IInd party is directed to fix pay of workman on his
promotion to the post of Mining Sirdar from 24-9-89
at Rs.1900/- per month.
IInd party is directed to pay difference of emolument
to workman within 30 days from date of publication of
award. In case of default, amount shall carry 9 % interest
per annum from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 25 Qjojh] 2015
dk-vk- 430-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,u- ,y-
lh- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
1102
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
vf/kdj.k@Je U;k;ky;] pSUubZ ds iapkV ¼lanHkZ la[;k 17]18]20
,oa 21@2012½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
25@02@2015 dks izkIr gqvk FkkA
[la- ,y&22012/159/2011–vkbZvkj (lh,e-II)
la- ,y&22012/161/2011–vkbZvkj (lh,e-II),
la- ,y&22012/156/2011–vkbZvkj (lh,e-II),
la- ,y&22012/158/2011–vkbZvkj (lh,e-II)]
eks- tkfgn 'kjhQ, vuqHkkx vf/kdkjh
New Delhi, the 25th February, 2015
S.O. 430.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 17, 18,
20 & 21 of 2012) of the Cent.Govt.Indus.Tribunal-cum-
Labour Court, Chennai as shown in the Annexure, in the
industrial dispute between the management of NLC, and
their workmen, received by the Central Government on
25/02/2015.
[No- L-22012/159/2011 - IR(CM-II),
No- L-22012/161/2011 - IR(CM-II),
No- L-22012/156/2011 - IR(CM-II),
No- L-22012/158/2011 - IR(CM-II)]
Md. ZAHID SHARIF, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, CHENNAI
Thursday, the 5th February, 2015
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 17, 18, 20 and 21/2012
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947(14 of 1947),
between the Management of Neyveli Lignite Corporation
Ltd. and their workman)
BETWEEN
ID 17/2012
The General Secretary
:
1st Party/Petitioner Union
NLC Anna Thozhilalar
Uzhiyar Sangam
D-3, Vaira Salai, Vattam-17
Neyveli-607801
AND
The Chairman-cum-
: 2nd Party/Respondent
Managing Director
Neyveli Lignite Corporation Ltd.
Neyveli.
ID 18/2012
The General Secretary : 1st Party/Petitioner
Union NLC Workers
Progressive Union
D-50, Anna Salai, Vattam-25
Neyveli-60780
AND
The Chairman-cum- : 2nd Party/Respondent
Managing Director
Neyveli Lignite Corporation Ltd.
Neyveli
ID 20/2012
1. The General Secretary
: 1st Party/1st Petitioner
NLC Workers Solidarity Union
Union
A-2, Screw Lane, Bock-11
Neyveli-607803
2. The General Secretary
: 1st Party/2nd Petitioner
NLC Mazdoor Sangh,
Union
Vishwakarma Bhawan
D-24, Perumal Koil Salai,
Block-27
Neyveli-607803
AND
The Chairman-cum- : 2nd Party/Respondent
Managing Director
Neyveli Lignite
Corporation Ltd.
Neyveli
ID 21/2012
The General Secretary : 1st Party/Petitioner Union
NLC Labour &
Staff Union, Block-24
Neyveli-607803
AND
The Chairman-cum- : 2nd Party/Respondent
Managing Director
Neyveli Lignite
Corporation Ltd.
Neyveli
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1103
C O M M O N A W A R D
The Central Government, Ministry of Labour &
Employment vide the above order of references referred
the IDs to this Tribunal for adjudication.
2. The schedule mentioned in the orders of
reference in the above IDs are as under:
ID 17/2012
“Whether the action of the management of Neyveli Lignite
Corporation Ltd., in proposing the change of increase in
working hours in Administrative Office of NLC Ltd., is
justified or not? To what relief the concerned workmen
are entitled to?”
ID 18/2012
“Whether the action of the management of Neyveli Lignite
Corporation Ltd., in proposing the change of increase in
working hours in Administrative Office of NLC Ltd. is
justified or not? To what relief the concerned workmen
are entitled to?”
ID 20/2012
“Whether the action of the management of Neyveli Lignite
Corporation Ltd. in proposing the change of increase in
working hours in Administrative Office of NLC Ltd. is
justified or not? To what relief the concerned workmen
are entitled to?”
ID 21/2012
“Whether the action of the management of Neyveli Lignite
Corporation Ltd. in proposing the change of increase in
working hours in Administrative Office of NLC Ltd. is
justified or not? To what relief the concerned workmen
are entitled to?”
3. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 17, 18, 20 and 21 of 2012 and issued
notices to the parties. The parties have entered appearance
and filed their Claim and Counter Statement as the case
may be.
4. Though the dispute was raised by different
unions of NLC Ltd. consequent to the NLC Management
issuing notice under Section-9A of the Industrial Disputes
Act, Claim Statements in all the matters are filed by the
Management since they were trying to bring some change
in the working conditions of a section of the workmen of
NLC Ltd. after giving notice under Section-9A of the Act
and wanted to justify their case for the change. Rather
than as Petitioner and Respondent or First Party and
Second Party, the parties are hereafter referred to as
Management and the Unions, the opposing party in all
the IDs being a Union the members of which will be affected
by the proposed change.
5. The averments in the Claim Statement filed by
the Management in ID 17/2012 are as below:
NLC is a Government of India undertaking engaged
in the mining of Lignite in Neyveli, Cuddalore District of
S.
I.D.
Reference No.
Name of the
Name of the
Appearance for
Appearance
No. No.
& Date
I Party S/Shri
II Party
Workman/Union(s)
for Respondent
1.
17/2012
L-22012/159/2011-
The General Secretary
The Chairman-cum-
M/s. V. Ajoy Khose,
M/s. T.S.
IR (CM.II) dated
NLC Anna Thozhilalar
Managing Director,
A.S. Manogaran,
Gopalan & Co.,
20.03.2012
Uzhiyar Sangam D-3,
NLC Ltd., Neyveli
Advocates
Advocates.
Vaira Salai, Vattam-17
Neyveli-607801
2.
18/2012
L-22012/161/2011-
The General Secretary
The Chairman-cum-
M/s. Kumbakonam
M/s. T.S.
IR (CM.II) dated
NLC Workers Progres-
Managing Director,
R. Ramamurthy,
Gopalan & Co.,
20.03.2012
sive Union D-50,
NLC Ltd., Neyveli
Advocates
Advocates.
nna Salai, Vattam-25
Neyveli-607803
3.
20/2012
L-22012/156/2011-
1. The General Secretary
The Chairman-cum-
M/s. V. Ajoy Khose,
M/s. T.S.
IR (CM.II) dated
NLC Workers Solidarity
Managing Director,
A.S. Manogaran,
Gopalan & Co.,
20.03.2012
Union A-2 Screw Lane,
NLC Ltd., Neyveli
Advocates-
Advocates.
Block-11,
Petitioner No. 1
Neyveli-607803
2. The General Secretary
M/s. G.B. Saravanabhawan,
NLC Mazdoor Sangh
N. Chinnaraj, Advocates-
Vishwakarma Bhawan
Petitioner No. 2
D-24, Perumal Koil Salai
Block-27
Neyveli-607803
4.
21/2012
L-22012/158/2011-
The General Secretary
The Chairman-cum-
M/s. Row & Reddy,
M/s. T.S.
IR (CM-II) dated
NLC Labour and Staff
Managing Director,
Advocates
Gopalan & Co.,
20.03.2012
Union, Block-24
NLC Ltd., Neyveli
Advocates
Neyveli - 607803
1104
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Tamil Nadu and is running a Thermal Station for generation
of electricity. It is carrying on mining operations in three
mines and three thermal stations. It is having a central
workshop for maintenance and repair of machinery and
for fabrication of required spare parts. It is having huge
residential colony where housing is provided to all
categories of employees. It is also having an administrative
office. Employees of NLC who answer to the definition of
“workman” within the meaning of Section-2(s) of the ID
Act are members of 15 Trade Unions of which two are
recognized as Bargaining Agents to negotiate on behalf
of the workmen. There are also staff category of employees
coming under the meaning of workmen as defined in
Section-2(s) of the ID Act. For historical reasons the
periods of work of the employees of different category are
differently fixed and observed without any serious
application of mind. The workmen employed in the mines
and factory establishments are required to come on
rotational shifts with uniform working hours of 8 hours
with half an hour lunch recess. There are administrative
non-factory and non-field staff observing less working
hours. So departmental functions could not be performed
properly. While the workmen employed in the workshop,
mines and other factory establishments are allowed only
four national holidays and five festival holidays, the
administrative staff are enjoying 16 holidays a year. Some
of the workmen in the mines and factory establishments
have to perform some work in the pre and post hours of
work for which they were enjoying special privilege of
availing two/three days of compensatory off in a month.
There is no justification for grant of this concession. Even
among the workmen who report for work in rotational shifts,
they do not work in the same group and relay. The
Corporation has been trying to bring in uniformity in the
matter of observing relay and groups of the workmen
required to work in factory establishments and mines. Basic
Pay, VDA and HRA were uniformly fixed for each category
of cadre of employees without reference to variation in
the hours of work. This has caused dissatisfaction among
the employees. Whenever charter of demands were
submitted after expiry of the long-term settlement, the
management used to list out its requirement such as
uniform hours of work and holidays for all category of
workmen, discontinuance of compensatory off and
introduction of uniform pattern of shift relay working. After
Justice Jagannatha Rao’s Committee’s report on revision
of pay and allowances, the Unions wanted the management
to revise the allowances payable to the workmen on par
with the non-unionized supervisors and executives. The
Management informed the unions that if the workmen
agreed to remove the differences in the matter of working
hours and holidays to administrative staff, withdrawal of
compensatory off and rationalization of national festival
holidays it might consider making a proposal in terms of
the order based on Justice Shetty’s report. As a result of
negotiations an understanding was reached and a
memorandum of understanding was prepared on
15.05.2010. The Unions had agreed to the proposal of the
Management regarding uniform working hours etc and a
clause was incorporated in the Memorandum of
Understanding to this effect also. However, this clause in
the draft was deleted as the Unions did not want it to form
part of the long-term settlement. A Section-12(3) settlement
was singed without this clause. The Management issued
a circular on 24.01.2011 giving effect to the changes
proposed. But this was resisted by workmen. On 05.02.2011
the Management issued a notice under Section-9A of the
ID Act giving effect to the proposed changes regarding
shift timings and paid holidays. The changes were notified
also. But the unions sought intervention of the
Conciliation Officer and so the changes could not be given
effect to. On failure of conciliation the government has
referred the dispute regarding the change proposed for
increase in working hours. The Government has omitted
to include the issue about the change of holidays to the
workmen. The three changes proposed by the
Management are fully justified and valid in law. The
Management may be permitted to give effect to the same.
6. The Union, the opposing party in ID 17/2012 has
filed Counter Statement contending as below: the Union
is one of the two recognized unions of NLC and has become
sole bargaining agent of the workmen with regard to
conditions of service. The workmen and employees
employed in the mines and thermal power stations which
are the production units are given direct incentive called
Quarterly Planned Performance Reward at the rate of
Rs. 7,200/- per quarter. The workmen and the employees
employed in the service units are given semi-direct
incentive at the rate of Rs. 5,100/- per quarter. Other
workmen and employees other than executives are given
incentive at the rate of Rs. 4,735/- per quarter. Originally
the workmen and the employees working in the production
units were paid overtime wages for reporting earlier and
leaving later than the scheduled timings. When the
overtime wages was sought to be stopped, compensatory
off was allowed to the workers. Three days compensatory
off was given to the workmen employed in the operation
work in the mines and thermal power stations and two
days off was given to the workmen involved in the
maintenance work in the mines and thermal power stations.
This has to be availed each month. The workmen employed
in the mines and thermal power stations, both in operation
and maintenance work are enjoying canteen facilities and
are getting food items at concessional rates. The workmen
and the executives working in areas other than the
production units and service units viz. Corporate Office
and Administrative Office have been working between
1000 AM and 0500 PM. The Executives are getting
performance rated payment at the rate of 5% of the profit.
When the Executives working in Corporate and
Administrative Office are getting more benefits the non-
¹Hkkx IIó[k.M 3(ii)º
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1105
executive staff of these offices were not extended similar
incentives. The staff working in Corporate and
Administrative Office are not given similar canteen facility
as available to the workmen and staff employed in the
production units. They are not given compensatory offs
as given to the workmen and staff employed in the
production units. That is why they have been extended
with 18 days of national festival and local holidays. The
working hours as it exists now was in vogue from the date
of inception of the Company. There is no reason or
justification for the change in the conditions of service.
The working hours of workmen and staff in the production
and service units is only 8 hours per day and that also
when they are getting more benefits. If the Management
wants to increase the working hours all the benefits now
payable to the workers in the production and service units
shall be made available to the other workmen also. Issues
regarding compensatory off and holidays have not been
referred for adjudication. The Management cannot insist
for such changes unless those issues are also referred for
adjudication. The Management is not entitled to implement
the proposed changes.
7. ID 18, 20 and 21 of 2012 are also disputes raised
by the different unions against the changes proposed by
the Management. In all these the Management has filed
Claim Statement in tune with the Claim Statement filed in
ID 17/2012. The respective unions have filed Counter
Statements against these Claim Statements. The
contentions in these Counter Statement are in tune with
the contentions in the Counter Statement in ID 17/2012.
8. The points to be considered in all the four matters
being the same they were tried together treating ID 17/
2012 as the main case.
9. The evidence consists of oral evidence of WW1
and MW1 and documents marked as Ext.W1 to Ext.W17
and Ext.M1 to Ext.M11.
10.The points for consideration are:
(i) Whether there is any justification in the demand
of the Management for uniform working hours ?
(ii) Whether the Management is justified in seeking
to reduce the number of holidays for a section of
the workmen?
(iii) Whether the change proposed in respect of shift
timings and numbers is justified?
(iv) What are the reliefs to which the parties are
entitled?
Point No. 1
11.NLC Limited, Neyveli is an establishment with
around 18000 employees of which 14000 are workers. It is
doing mining operations and is having thermal stations. It
is also having workshop for maintenance. The premises
of the Company include a residential colony for the major
portion of the employees. There is also the Administrative
Offices of the Company at Chennai and other major cities
of India.
12.The Company has been following 8 hours work
days for most of the sections involving a large number of
employees. There were 5 shifts, 3 shifts of 8 hours each in
rotation and 2 other shifts also. Even though the workmen
in the mines and the factory were working for 8 hours a
day, the Administrative, non-factory and non-field staff
were working for lesser hours, from the very beginning of
the establishment. The case of the Management is that in
the absence of uniformity in working hours for all the
workmen administrative inconvenience is caused. It is
further stated that this discrepancy has resulted in
dissatisfaction among a section of the employees also.
According to the Management it is on account of this a
notice under Section-9A has been issued seeking to bring
uniformity in the working hours. The proposal was to re-
fix the working hours from 09.00 AM to 05.30 PM. Along
with this, the Management also proposed to bring down
the number of holidays enjoyed by the same section of
Administrative staff. They have reasoned that though all
the employees including the administrative staff come
under the category of workmen, they alone enjoyed 16
holidays and 2 restricted holidays while the workmen
working in the mines and factory establishments enjoyed
only 9 holidays i.e. 4 national holidays and 5 festival
holidays. Uniformity was sought in this also and this was
also included in Section-9A notice. Another fact that was
referred to in the notice was uniformity in the matter of
observing relay and groups of workmen required to work
in the shifts. It is because the different unions objected to
the proposal of the Management and raised the dispute
before the Labour Commissioner the matter has reached
before this Tribunal.
13.There is a contention for the Management that
the above proposals of the Management were considered
during negotiation when the unions demanded revision
of wages based on the Presidential Order consequent to
the recommendation of revision of pay and allowances by
the committee under the Chairmanship of Justice
Jagannatha Rao. According to the Management, they have
pointed out to the Unions that only a revision of the
quantum of existing allowance and the terms thereof and
not a specified percentage of basic wages could be
allowed. Even while making this concession, the
Management is said to have informed the Unions that this
could be granted only if the workmen agree to remove the
differences in the matter of working hours to administrative
staff, withdrawal of compensatory off and rationalization
of National Festival Holidays so as to remove the disparity
between the workmen in the administrative office and those
in the factories and mines. According to the Management,
the issues were discussed as one single package and an
1106
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
understanding was reached as a result of the negotiation
and draft memorandum of understanding was also
prepared on 15.05.2010. According to the Management
Clause-29.7 was incorporated in the Memorandum of
Understanding and this has provided for dispensing with
compensatory off without working for extra hour,
withdrawal of late punch and grace time and also provided
to take steps for implementation of uniform working hours
for general shift and offices. It is stated in the Claim
Statement that the unions have pleaded with the
Management that this clause need not be made part of the
settlement as they have already accepted the proposal
and accordingly the clause was deleted from the draft.
After the settlement was implemented the Management
wanted to implement the change of service conditions
relating to uniform timings, compensatory off, etc. But the
Unions pleaded for time. Later the Management issued a
circular giving changes to the effect proposed. This was
resisted by the workmen and they approached the High
Court. It was thereafter a notice was issued under Section-
9A of the ID Act proposing the changes with regard to
shift timings and paid holidays. The changes could not be
given effect to since the Unions sought the intervention
of the Conciliation Officer.
14.The counsel for the Management has advanced
an argument that even though the particular clause
regarding uniform timings, compensatory off, etc. were
deleted from the long-term settlement it could still be
implemented since the Unions have already entered into
an understanding with the Management regarding this.
The counsel for the Management has referred to the
decision of the Andhra Pradesh High Court in
AGNIGUNDALA LEAD PROJECT, HINDUSTAN ZINC
LTD., AND OTHERS VS. HINDUSTAN ZINC WORKERS
UNION AND ANOTHR reported in 1988 2 LLJ 318 in this
respect. Here it was held that a settlement arrived in the
course of conciliation or otherwise is binding on the
parties. It was a case where the settlement was signed by
responsible Officers. In the above case the Management
has tried to withdraw from the settlement. The Andhra
Pradesh High Court has held that the Officers who signed
the settlement had signed with authorization and the
settlement is binding.
15.The attempt of the counsel for the Management
has been to make out that there was an understanding
between the Management and the Unions in this case
also. According to the counsel, from the conduct of the
parties an agreement of the kind specified by him can be
inferred from the documents and circumstances. The
counsel for the Management has referred to Ext.M1 the
minutes of the Bipartite Committee Meeting held on
02.03.2010 in this respect. He has referred to Page-2 of
Ext.M1 under the heading “Other Issues Discussed” which
mentions about uniform timings, adherence to the timings
and grace time. Page-1 of this document contains the
signature of the persons representing Management and
persons representing workman. However, Page-2 does not
contain any signature. Even assuming that this is part of
Page-1, the only assumption that can be made is that the
issue of uniform timings and adherence to the timings has
been discussed in the committee meeting and not that any
understanding or any agreement has been reached on this
account. The counsel has also referred to Ext.M2 the
minutes of understanding said to have been reached by
the Management with the two recognized unions in the
matter of wage revision. This contains Clause 29.7 which
according to the Management was incorporated based on
the understanding between the Management and the
Unions in the matter of uniform working hours, etc.
However, this document does not contain the signature
of anyone, either from the side of the Management or from
the side of the workmen. So there is nothing to show that
this is actually the minutes of understanding reached
between the Management and the Unions and it was
accordingly Clause 29.07 was incorporated in the same. In
fact MW1 examined on the side of the Management has
admitted that the document does not contain the signature
of any persons concerned.
16. Another argument that has been advanced by
the counsel in support of his case of understanding
regarding uniformity of working hours, etc. is that the
recognized union who has participated in the discussion
has not denied in its Counter Statement the case in the
Claim Statement that such an understanding has been
reached. However, there is the denial of other unions in
their Counter Statements. Even the failure of the union
who has participated in the discussion to deny the case of
understanding in the Counter Statement will not advance
the case of the Management in this respect. On the basis
of Ext.M1 and Ext.M2 one can never come to a conclusion
that an understanding has been reached in this respect.
So the contention that an understanding has been reached
between the Management and the Unions regarding the
issue involved is to be rejected.
17. Now the question is whether the change in the
time can be brought into effect even without a consensus
between the Management and the workmen. The
Management has issued Section-9A notice on 05.02.2011
and this is marked as Ext.M10. This gives the timings that
prevail in different units of the Company. It could be seen
from this that even in the same unit timings of four different
timings existed. For one Section it is 8.5 hrs, for another
Section is 8 hours and for still another Section it is 7 hours
only. The Management has proposed that the timings
should be the same for different Sections. Though the
proposed timing differs, the working hours sought to be
introduced is the same for all i.e. 8.5 hours including lunch
break.
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1107
18. The proposed change is resisted by the different
unions who have raised the dispute. Their stand is that so
far as the Administrative staff is concerned they were
having work hours of 7 hours for almost 50 years starting
from the inception of the Company itself. According to
them, by such long practice this has become the work time
of the Administrative staff even though other sections of
workmen work for a longer time. It is also the contention
of these unions that the facilities enjoyed by the workmen
who are working in the mines and service units are much
more than the Administrative staff and so there is no parity
in the monetary benefit obtained by them and the
Administrative staff and for this reason itself the
Administrative staff cannot be asked to work more. It is
stated in the Counter Statement in ID 17/2012 that the
workmen employed in the mines and the Thermal Power
Stations which are called production units are getting
Quarterly Plant Performance Reward @ Rs. 7,200/- per
quarter and the employees employed in the service units
are getting Semi-Direct Incentive at the rate of Rs. 5,100/-
per quarter while the other workmen including the
Administrative staff other than the Executives are getting
only at the rate of Rs. 4,735/- per quarter. It is also stated
that the workmen in the production and service units are
getting Canteen facility at concessional rate while other
staff are not having this concession.
19. It can be seen from the above contention of the
Unions itself that the only difference so far as the workmen
of production and service units are concerned is the
payment made towards Quarterly Plant Performance
Reward or the Semi-Direct Incentive award, apart from the
concessional canteen facility. It is not denied by the Unions
that subsequent to the latest revision of wages all the
workmen have obtained 40% of the Basic Pay as
allowances. Thus it could be seen that there is no difference
in payment of pay and allowances so far as the workmen
and staff in the production and service units and other
sections are concerned. It could be seen that Quarterly
Plant Performance Reward is meant for those workers who
are directly involved in the production and is facing
occupational hazard, they being engaged for work in
production units including mines and power stations. Thus
it could be seen that this is the reward payable to them on
account of the special nature of their work. At the same
time, the workmen on whose behalf the Unions have raised
the dispute also are getting incentive not much less than
that of what the employees in the service units are getting.
So there is no basis for the contention raised that those
working in the production and service units are getting
much more monetary benefit than that of the
Administrative staff. At the same time the Administrative
staff is working one hour less than the other workmen.
Unification in time is sought in this background.
20. The difficulty experienced because of the
difference in the timing of the Administrative staff is evident
from the admission made by WW1, the Vice President of
one of the Unions. In the Township Administration office
in which WW1 was working, for Technicians and Unskilled
Workers the working hours were from 08.30 AM to
05.00 PM. At the same Office, for the employees who attend
to cleaning and movement of files working hours were
from 09.30 AM to 05.00 PM. For Clerical Staff and Officers
the working hours was from 1000 AM to 0500 PM. He also
admitted that since the change was implemented among
the Officers, from June 2011 the Officers and Managers
were observing the working hours of 09.00 AM to
05.30 PM while the Subordinates under them were coming
to the office at 09.30 and leaving by 05.00 PM. Since the
proposed change could not be implemented so far as the
workmen coming under the Administrative staff are
concerned the Management had to revert back to the earlier
time for Officers and Managers. Certainly, there will be
difficulty when different timings are practiced in the same
office. This would certainly affect the entire concern as a
whole also.
21. It has been argued on behalf of the counsel for
the Management that in so far as the Management is not
violating any of the provisions of the labour enactments it
is within the authority of the Management to fix the timings.
The counsel has referred to the dictum laid down by the
Apex Court in the decision in OIL AND NATURAL GAS
COMMISSION VS. WORKMEN reported in 1973 1 LLJ 18.
In this case the identical issue was considered by the
Apex Court. When the workshop of ONGC at Baroda was
under construction the Administrative staff was using a
shed at a distance of about 2 kms. from the workshop. At
this time the working hours of the Administrative staff
were from 10.00 AM to 05.00 PM with interval of half an
hour. After completion of the construction of the workshop
the Administrative staff was shifted to the new building
and their working hours were fixed from 08.00 AM to
05.00 PM. A dispute was raised against this. The Industrial
Tribunal and High Court had favoured the workmen fixing
the working hours as 6.5 hours. The Apex Court observed
that the question of adverse effect of the reduced working
hours of the office staff on production is a relevant facto
to be considered. The Apex Court laid down that the
Management have full power and discretion in fixing the
working hours of the Administrative staff within the limits
prescribed by the statute. The Apex Court observed that
the view of the Tribunal that reduction in the hours of
work of the office staff did not adversely affect the working
is not supported by evidence on record but it contrary to
fact also. The counsel has also referred to the decision in
TRANSPORT AND DOCK WORKERS UNION VS.
MUMBAI PORT TRUST AND ANOTHER reported in 2011
2 SCC 575 in this respect. In the Mumbai Port Trust, Typists
and Computer Clerks who were appointed after a particular
date were to work for 7.5 hours while those who were in
service earlier were to work for 6.5 hours only. The
1108
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Management was trying to bring uniformity in the working
hours by a slow process by enhancing the working hours
of the new recruits. A dispute was raised on account of
this. Considering this the Apex Court has held that fixing
of hours of work, provided they do not violate any statutory
provision or statutory rule are really Management
functions and the Courts must exercise restraint and not
ordinarily interfere with such Management functions. Thus,
it could be seen that the Apex Court has been reluctant to
interfere in the power of the Management to fix, re-fix or
change the working hours in so far as they did not go
beyond the provisions of the statute in doing so. In the
present case also there is no case for the Unions that the
act of the Management is in violation of the provisions of
the statute. Their only contention is that the present timing
has been in existence for a long time and it has become the
time of work and it could not be increased. This has been
found against by the Supreme Court. It is in the realm of
the Management to decide what should be the working
hours and what should be the timing in so far as it does
not go beyond the provisions of the statute.
22.The increase in the working hours was made
applicable to the Officers of the NLC also. The Officers
Association has challenged the change before the High
Court of Madras by a Writ Application and this has been
dismissed and the order was challenged in Writ Appeal
No. 1221/2011. The order in this has been produced and is
marked as Ext.M11. In this order the High Court has
followed the two decisions of the Apex Court referred to
earlier. The Hon’ble High Court has stated that fixation of
working hours for the employees is purely within the
domain of the Management being taken as a policy
decision and the scope of judicial interference with such
decisions is very limited. It was further held that when a
decision has been taken by the Management regarding
the working hours by taking note of the various factors
which are within its knowledge and understanding, pattern
of work in the concern, the same cannot be interfered
unless such decision is shocking the judicial conscience
or palpably arbitrary or violative of any of the statutory
provisions. Thus the challenge of NLC Officers against
the increase in the timings has been turned down by the
High Court.
23.The dictum laid down in the above decisions are
well applicable to the facts of the present case. WW1 has
stated that the Officer’s timings have to be reverted to the
earlier position in view of the dispute raised by the Unions
in the present case. It is very clear that unless the timing
of the Administrative staff are also synchronized with the
other workmen that of the Officers and others,
administration of the Offices would become difficult. It
was because of this very reason the timing of the Officers
had to be reverted to the old one. It has become impossible
for them to start work from the newly fixed time in the
absence of the subordinate staff to assist them.
24.The attempt of the Management has been to
increase the working hours by 1.5 hours so far as the
Administrative staffs are concerned. As seen from the
admission of MW1 examined on behalf of the Management
the existing working hours of the workers other than
Administrative staff was 8 hours including lunch break.
Now there is an attempt to increase this by half an hour
more by fixing the working hours as 8 hours and half an
hour lunch break apart from this. When the practice
prevalent among the other workmen itself is 8 hours work
time, I do not find any justification in increasing it by half
an hour more. The period of 8 hours should include the
lunch break of half an hour also. The ideal timing that can
be fixed is 09.30 AM to 05.30 PM. The Management can
accept this as the time of work.
25.The one facility other workmen other than the
Administrative staff are enjoying is the canteen facility at
concessional rates. When the Administrative staffs are
asked to work one more hour it is only proper that they are
also given canteen facility at concessional rates. The point
is answered accordingly.
Point No. 2
26.Though the proposal as per the notice under
Section-9A of the ID Act was to bring uniformity in the
timings, to reduce the number of holidays and also to
have some change in the shift system, the Government
has, by the order of reference, referred the dispute regarding
the proposal for increase in the working hours only.
Though letter was written to the Government to refer the
other issues also this was not done. The counsel for the
Management has stated that a joint memo has been filed
by the Management and the Union agreeing that this
Tribunal can consider the issue regarding reduction of
holidays as well. In the written argument submitted on
behalf of the Unions in ID 17 and 20 of 2012 it is stated that
all the issues can be considered on the basis of the memo
filed by the Management. However, the memo does not
contain the signature of the advocates of any unions. The
other unions have not stated whether these issues also
can be considered.
27. In any case I do not think the demand of the
Management to reduce the number of holidays now
enjoyed by the Administrative staff need be allowed. The
contention of the Management is that while other workmen
are having only 9 holidays, the Administrative staff are
enjoying 18 holidays including 2 Restricted Holidays. It is
the case of the Management in the Claim Statement that
the workmen in the mines and factory establishments were
enjoying the special privilege of availing 2/3 days of
compensatory off each month. Though it is stated in the
Claim Statement that there is no justification for granting
of this concession there is no case for the Management
that this concession given to the workmen in the mines
and factory has been put an end to. That means those
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1109
workmen are enjoying compensatory off of 24 days or
36 days as the case may be, annually. There is no such
privilege so far as the Administrative staff are concerned.
For this reason also I am not inclined to interfere with the
privilege of more holidays enjoyed by the Administrative
staff. The point is found accordingly.
Point No. 3
28.This issue is said to have been settled between
the Management and the Union subsequently. So there is
no necessity to consider this point.
Point No. 4
29.In view of my finding on Point No. 1, the following
award is passed:
The Management is allowed to fix the working hours
as 8 hours and bring uniformity in the time of work.
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/
:
WW1, Sri G. Kuppusamy
Petitioner Unions
For the 2nd Party/
:
MW1, Sri C. Thiagaraju
Management
Documents Marked
On the Petitioner’s side
Ex.No.
Date
Description
Ex.W1
24.01.2011 Notice of Respondent
Ex.W2
01.02.2011 Order in MP No. 2 of 2011 in WP
No. 2412/2011
Ex.W3
03.11.2010 Notice of Respondent
Ex.W4
27.01.2011 Conciliation Notice
Ex.W5
29.01.2011 Petitioner letter to RLC (Central)
Ex.W6
24.01.2011 Notice of Respondent
Ex.W7
31.01.2011 Affidavit in WP No. 2412 of 2010
Ex.W8
02.02.2011 Notice of Respondent withdrawing
earlier notice dated 24.01.2011
Ex.W9
18.02.2011 Dispute raised by the petitioner
Ex.W10 26.02.2011 Notice issued by the Respondent
Ex.W11 24.03.2011 Petitioner letter to Respondent
Ex.W12 13.06.2011 Conciliation Proceedings
Ex.W13 05.07.2011 Counter filed by the Respondent
before ALC
Ex.W14 05.07.2011 Failure Report
Ex.W15 12.08.2011 Notice of Respondent
Ex.W16 01.12.2011 Order in MP 2 of 2011 in WP 19212 of
2011
Ex.W17 18.04.2012 Order in WA No. 1666 of 2011 and
batch
On the Management’s side
Ex.No.
Date
Description
Ex.M1
02.03.2010 Minutes of the Bipartite held on wage
revision and parties representing the
hearing
Ex.M2
5/2010
Draft minutes of understanding
reached between NLC Ltd. and (I)
NLC Worker’s Progressive Union
(LPF) (ii) NLC Pattali Thozhilalar
Sangam
(PTS)
representing
Workmen
Ex.M3
06.07.2010 Memorandum of Understanding
reached between the Management of
NLC and NLC Workers’ Progressive
Union (LPF) and NLC Pattali
Thozhilalar Sangam (PTS) on wage
revision for unionized category of
workmen
Ex.M4
04.09.2010 Statement u/s 12(3) of ID Act
(covering 01.01.2007 to 31.12.2011)
Ex.M5
29.06.2001 Settlement u/s 12(3) of ID Act
(covering 01.01.1997 to 31.12.2006)
Ex.M6
26.08.1995 Settlement u/s 12(3) of ID Act
(covering 01.01.1992 to 31.12.1996)
Ex.M7
03.11.1989 Settlement u/s 12(3) of ID Act
(covering 01.09.1986 to 31.12.1991)
Ex.M8
10.10.1983 Settlement u/s 12(3) of ID Act
(covering 01.01.1982 to 31.08.1986)
Ex.M9
-
Comparative Statement of allowances
of NLC employees before and after
wage revision from 01.01.2007
Ex.M10 05.02.2011 Notice under Sec.9A of ID Act – Form
E – with two Annexures and two list
of holidays dated 03.11.2010
Ex.M11 13.11.2013 Order of Hon’ble High Court of
Madras in WA No. 1221 and MP No.
1 of 2011 – in NLC Officer’s
Association Vs. Government of
India, Ministry of Coal, New Delhi
and NLC Ltd., Neyveli.
1110
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 25 Qjojh] 2015
dk-vk-
dk-vk-
dk-vk-
dk-vk-
dk-vk- 431
431
431
431
431.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l- bZ- lh-
,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k@ Je U;k;ky; tcyiqj ds iapkV ¼lanHkZ
la[;k 206@94½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
25@02@2015 dks izkIr gqvk FkkA
[la- ,y&22012/312/1994–vkbZvkj (lh-II)]
eks- tkfgn 'kjhQ] vuqHkkx vf/kdkjh
New Delhi, the 25th February, 2015
S.O. 431.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 206/94)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of Kurda Sub Area of
SECL, and their workmen, received by the Central
Government on 25/02/2015.
[No. L-22012/312/1994 - IR(C-II)]
MD. ZAHID SHARIF, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/206/94
Secretary,
Indian Black Diamond Workers Federation,
Post Bisrampur colliery,
Distt. Surguja (MP)
Workman/Union
Versus
Sub Area Manager,
Kurda sub Area, SECL,
Post Bisrampur Colliery,
Distt. Surguja (MP)
Management
AWARD
Passed on this 6th day of February 2015
1. As per letter dated 14-11-94 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
312/94-IR(C-II). The dispute under reference relates to:
“whether the action of the Sub Area Manager, Kurda
Sub Area of SECL, Bisrampur Area in terminating services
of Shri Lal Sai S/o Shri Rameshwar Cat-I Mazdoor
Balarampur mines w.e.f. August 92 is legal and justified?
To what relief the workman is entitled to?”
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
through General Secretary of Workers Federation at 2/1 to
2/7. Case of workman is that he was employed on post of
Category I mazdoor in IInd party Mine against permanent
vacant post as regular employee. The service conditions
of employees are covered by various settlements at NCWA,
standing orders. Workman is illiterate and claims ignorance
about service conditions. His services were disposed in
August 1992 without assigning reasons. No chargesheet
was issued to him. DE was not conducted. His repeated
request to the management to allow him to join duty was
not considered. Union took up the matter and raised
dispute. The dispute is referred after failure report submitted
by ALC. It is reiterated that when he repeatedly approached
Mine Manager, it was disclosed that his services were
terminated in August 1992 for unauthorized absence without
holding enquiry. That workman had not received
chargesheet or notice to enquiry. Workman was permanent
employee. His services could not be terminated without
reasons. Termination of his service is in violation of Section
25-F, g, G, H of ID act. Section 25-H of ID Act not complied.
Termination of his service is illegal and management acted
in colourable exercise of powers. On such ground, workman
prays for reinstatement with back wages.
3. IInd party submitted Written Statement at Page 5/
1 to 5/3 opposing claim of workman. It is submitted that
SECL is registered company operating many collieries in
MP including Kurda Sub Area. Ist party workman was
working as Category I General Mazdoor. Chargesheet was
issued to him for long unauthorized absence. Workman
submitted reply to chargesheet. It was not found
satisfactory. Enquiry Committee was constituted. Workman
participated in Enquiry Proceedings. He accepted charges
against him. Workman was given full opportunity for his
defence. Principles of natural justice were followed. Charge
of unauthorized absence against workman was proved as
per report submitted by Enquiry Officer. Management
submits that for proved charge of unauthorized absence,
workman was dismissed from service. His termination is
legal. Claim of workman cannot be accepted.
4. As per order dated 13-10-14, enquiry conducted
against workman is found proper and legal. Considering
pleadings on record and orders on preliminary issue, the
points which arise for my consideration and determination
are as under. My findings are recorded against each of
them for the reasons as below:-
(i)
Whether the action of the Sub Area
Manager, Kurda Sub Area of SECL,
Bisrampur Area in terminating services
of Shri Lal Sai S/o Shri Rameshwar Cat-I
Mazdoor Balarampur mines w.e.f.
August 92 is legal and justified?
In Affirmative
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1111
(ii)
If not, what relief the workman is entitled
to?”
REASONS
5. As per order dated 13-10-2014, enquiry conducted
against workman is found proper and legal. Rather I may
say that workman had failed to participate in reference
proceeding as no evidence was adduced to substantiate
his contentions. Considering the record of enquiry, it was
held that enquiry was legal and proper. Workman has not
participated in reference proceeding. No evidence is
adduced on his behalf. The record of Enquiry Proceedings
is produced by management Exhibit M-1. Workman has
admitted charge of unauthorized absence from 8-2-92. Thus
charge against workman is proved by his admission.
Workman has not participated in reference proceeding. No
evidence is adduced on his behalf. For above reasons, I
record my finding in Point No.1 in Affirmative.
6. In the result, award is passed as under:-
(1)
The the action of the Sub Area Manager, Kurda
Sub Area of SECL, Bisrampur Area in terminating
services of Shri Lal Sai S/o Shri Rameshwar Cat-I
Mazdoor Balarampur mines w.e.f. August 92 is
legal and proper.
(2)
Workman is not entitled to any relief.
R.B.PATLE, Presiding Officer
ubZ fnYyh] 25 Qjojh] 2015
dk-vk- 432-&
dk-vk- 432-&
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dk-vk- 432-&
dk-vk- 432-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w- lh-
,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k@Je U;k;ky; tcyiqj ds iapkV ¼lanHkZ
la[;k 32@2010½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
25@02@2015 dks izkIr gqvk FkkA
[la- ,y&22012/6/2010–vkbZvkj (lh,e-II)]
eks- tkfgn 'kjhQ] vuqHkkx vf/kdkjh
New Delhi, the 25th February, 2015
S.O. 432.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 32/2010)
of theCent.Govt.Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of WCL, and their workmen,
received by the Central Government on 25/02/2015.
[No. L-22012/6/2010 - IR(CM-II)]
Md. ZAHID SHARIF, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/32/2010
General Secretary,
Samyukta Koyla Mazdoor Sangh (AITUC),
CRP Camp, Iklehra,
Chhindwara
Workman/Union
Versus
Chief General Manager,
WCL, Pench Area,
PO Parasia,
Chhindwara
Management
AWARD
Passed on this 4th day of February 2015
1. As per letter dated 27-4-10 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
6/2010-IR(CM-II). The dispute under reference relates to:
“Whether the action of the management of M/S WCL
in dismissing Shri Puran from services w.e.f. 30-1-09
is legal and justified? To what relief is the claimant
workman entitled for?”
2. After receiving reference, notices were issued to
the parties. Ist party workman filed statement of claim
through General Secretary, SKMS Union. Case of Ist party
is that he was working as Trammer with IInd party for
15 years. Chargesheet was issued to him on 27-1-07. Reply
filed by workman was found not satisfactory. Management
decided to conduct enquiry. Enquiry was adjourned on
various dates. On 25-7-07, workman was present in Enquiry
Proceedings. The management’s representative produced
his evidence consisting 22 pages. Workman was directed
to produce his evidence. Workman had submitted that he
was granted bail. He was not desiring to adduce evidence.
Workman further reiterates that his services were terminated
in violation of natural justice. The workman released on
bail was not considered. Termination of service of workman
is illegal. Workman prayed for reinstatement with
consequential benefits.
3. Management filed Written Statement denying
claim of workman. Management submits that chargesheet
was issued to workman as per clause 26.8 of standing
orders. Shri O.P.Fulare was appointed Enquiry Officer.
Shri Benjamin Demello Sr. Mining Engineer was appointed
as Management’s Representative. on request of workman,
enquiry was adjourned to 30-6-07, 4-7-07, 11-7-07, 14-7-07
& 25-7-07. Workman and his co-worker remained absent.
Workman is not
entitled to any
relief.
1112
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Workman had requested to engage Sanjay Singh as his co-
worker. Management’s representative had produced copy
of judgment passed by 3rd Addnl. Judge, Chhindwara in
Criminal Case 148/01. Workman was convicted for offence
under Section 302 of IPC. Enquiry Officer submitted his
report. Considering the report, workman was dismissed
from service. IInd party reiterate that after report of Enquiry
Officer, charges against workman are proved. He was
dismissed from service.
4. The matter was fixed for evidence of workman.
Union Representative submits that workman is not inclined
to adduce evidence. He is not desiring to prosecute his
claim under reference. Management also submitted
application not to adduce evidence in the matter.
5. Both parties did not effectively participate in the
reference, no evidence is adduced in the case to
substantiate their contentions in the matter. The dispute
under reference could not be adjudicated for lack of
participation by the parties. Therefore No Dispute Award
is passed in the matter.
R.B.PATLE, Presiding Officer
ubZ fnYyh] 25 Qjojh] 2015
dk-vk- 433-&
dk-vk- 433-&
dk-vk- 433-&
dk-vk- 433-&
dk-vk- 433-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lh- ih-
MCY;w- Mh- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k@Je U;k;ky; u0 2] ubZ fnYyh ds iapkV
¼lanHkZ la[;k 38@2006½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 25@02@2015 dks izkIr gqvk FkkA
[la- ,y&42012/87/2005–vkbZvkj (lh,e-II)]
eks- tkfgn “kjhQ] vuqHkkx vf/kdkjh
New Delhi, the 25th February, 2015
S.O. 433.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 38/2006)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court No.
2, New Delhi as shown in the Annexure, in the industrial
dispute between the management of CPWD, and their
workmen, received by the Central Government on
25/02/2015.
[No. L-42012/87/2005 - IR(CM-II)]
MD. ZAHID SHARIF, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT - II, KARKARDOOMA
COURT COMPLEX, DELHI
Present:- Shri Harbansh Kumar Saxena
ID No. 38/2006
Shri Mukesh Kumar & 116 others
As represented by General Secretary
CPWD Mazdoor Union
New Delhi-110 011
.….Workmen
Versus
The Director General of Works
Central Public Works Department
Nirman Bhawan
New Delhi-110011
…..Management
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-42012/87/2005-IR(CM-II) dated
12.06.2006 referred the following Industrial Dispute to this
Tribunal for adjudication:-
“Whether the action of the management of CPWD,
New Delhi in not regularization the workmen , Sh.
Mukesh Kumar & 116 others and not paying the
wages as per the notification dated 31.07.2002 is
legal and justified? If not, to what relief the workmen
is entitled to?”
On 07.07.2006 reference was received in this
Tribunal. Which was register as I.D No. 38/06 and
claimants were called upon to file claim statement within
fifteen days from date of service of notice. Which was
required to be accompanied with relevant documents and
list of witnesses.
Claimants/workmen on 18.10.2006 filed Claim
Statement. Wherein they prayed as follows:—
a) Award regularization and also the wages in the
minimum of time scale plus all allowances from the
date of their initial employment as indicated to
against each of the workmen.
b) Award any other relief as this Hon’ble Tribunal may
kindly think fit and proper in the interest of justice.
Against claim statement management filed written
statement on 16.06.2008 through which he denied the
contents of claim statement and prayer for dismissal of
claim statement.
Against which workmen filed rejoinder on 6.10.2008.
Through which they reaffirmed the contents of claim
statement.
My. Ld. Predecessor on 6.10.2008 passed an order
on order sheet which shows that after filing rejoinder by
workmen he fixed 24.10.2008 for workmen evidence which
is in itself indicates that he proceeded further on the basis
of question of determination mentioned in schedule of
reference and my Ld. Predecessor treated question of
determination as issues in the instant case.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1113
Workmen in support of their case filed affidavit of
WW1 Sh. Joginder Singh on 9.01.2012.
Who tendered his affidavit on 8.1.2013.He was partly
cross-examined same day.
His statement of tendering of affidavit and partly
cross-examination is as follows:—
I tender in evidence my affidavit by way of
examination –in-chief. It is signed by me at points A and B
is correct. The same is Ex. WW1/A. It be read as part of my
statement.
XXXXX :— By Ld. A/R for the management.
I have not brought the resolution vide which I was
authorized on behalf of all the workmen to represent them
in this case and to make a statement in the court. I can
produce the same. (Let the witness bring this document
on the next date of hearing).
He was also cross-examined on 26.6.2013.
His cross-examination is as follows:-
XXXXX :— By Ld. A/R for the management.
I had not filed copy of my appointment letter as well
as appointment letters of other claimants. Vol. the
contractor had not issued any appointment letter either in
my favour or in favour of the other claimants. No payment
record, in respect of the claimants, is available with me. It
is incorrect that the claimants were working under control
and supervision of the contractor and not under the control
and supervision of the officers of the management. I cannot
name the contractor under whom the claimants were
working. I would produce resolution, which authorized
me to depose facts on behalf of the claimants , on the next
date. At the request of the witness, his further cross-
examination is deferred.
He was further cross-examined on 13.12.2013.
His further cross-examination is as follows:—
Q. Whether espousal /sponship closed 20.04.2003
is not resolution to file?
A. It is resolution.
It is wrong to suggest that I was not authorize to
represent the case 116 claimants vide this espousal /
sponship dated 20.04.2003.
Q. Whether you have filed any appointment letter
on behalf of 116 workmen in the court record.
A. Yes , it is on the record.
The witness has been shown to the court to show
the appointment letter.
It is incorrect to suggest that paper attached
alongwith reference are no appointment letter if workmen.
It is incorrect that no stamp of CPWD is affixed on
any paper of the list attached with the reference.
Q. M. Nagaraju, used to work under which ex-
engineer or Asst. Engineer ?
A. After seeing his record witness says that workmen
used to work under Elect Engineer, Raja Mundri.
Q. Can you tell that whether you have place on record
any document (record that this workman, Nagaraju used
to work under said Ex. Engineer?
A. I have already filed.
Q.Whether you have filed any record relating to
attendance of workmen.
A. Yes.
It is incorrect to suggest that no such record has
been filed by me.
It is correct that I have not filed salary slip of the
workmen. It is wrong to suggest that direct relationship
with the management of CPWD . It is correct that wages
were paid by contractor to the workmen. It is wrong to
suggest that workmen is not entitled to any relief from
management. I have not filed any service book of any
workmen because workmen was not provided with service.
I cannot say whether any workmen was medically examined
and his character was verified from police.
It is wrong to suggest that workmen cannot claim to
be direct employee of management. It is also incorrect to
suggest that I have filed false and frivolous affidavit and
I am deposing falsely .
His cross examination is concluded on 13.12.13.
Thereafter workman closed his evidence.
Management in support of its case filed affidavit of
Sh. O.P. Sharma, Executive Engineer who tendered his
affidavit on 13.3.2014 . He was cross-examined on same
day.
His statement of tendering of affidavit and cross-
examination is as follows:-
I tender in evidence my affidavit Ex. MW1/A which
bears my signature at point ‘A’ and ‘B’
XXXXX. by Sh. B.K. Prasad , Ld. A/R for the
workman.
I have been authorized by Dept. to file affidavit in
Evidence on behalf of the management. I have no idea
whether in conciliation proceeding any person on behalf
of department appeared or not. I cannot say. Whether
same Industrial Dispute has been sent by Labour Ministry
to this Tribunal for Industrial Adjudication . It is incorrect
to suggest that contents of Affidavit regarding rejection
of claim are false and frivolous.
1114
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Question:- Whether you are aware of the names of
the workers designations , divisions posting are mentioned
in the Annexure of reference order?
Ans. Annexure is on record.
Q-whether management got registration for employee
Contract Labour from the Ministry of Labour as required
under the provision of Contract Labour (Regulation and
Abolition Act)?
A.Contractor was registered to get it registered.
It is incorrect to suggest that management is duty
bound to get it registered.
Q. Have you seen the licence taken by contractor
from the Ministry of Labour before employing the contract
labour?
A.No.
Q. Whether contents of para 17 of W.S. are correct?
A.Yes.
Q. Whether the regular worker in work charge
category were getting all the benefits like pay scale etc.
A. Yes
Q. Whether the contract labour got such facilities
from its contractors?
A. I cannot say.
Q. Whether payment made to contract labour by the
contractor is to be certified by representatives of CPWD?
A. Yes.
Q. Have you seen notification of abolition dated
31-07-2002 u/sub-section 2 of Section 10 Contract Labour
Regulation act (Regulation & Abolition Act) circulated by
office of Director General (Works) vide their office
memorandum dated 27-12-2002 Exh. WW1/3?
A. I have seen it now. It is correct that Contract
Labour works at places where work is going on (i.e. on
work sites)
Q. Whether the sites are under control of CPWD?
A. Yes
It is incorrect to suggest that the employment of
contract labour is sham, comafledge and illegal.
It is also incorrect to suggest that the Management
is adopting unfair labour practice.
It is also incorrect to suggest that I am giving false
evidence.
His cross examination is concluded on 13.3.2014.
Thereafter workman closed his evidence.
Thereafter Ld. A/R for the workmen filed written
argument on behalf of workmen Sh. Mukesh & 116 others
workmen.
Wherein they stated as follows:—
Respectfully Showeth:
1. That the appropriate Government in the Ministry
of Labour, Government of India, New Delhi has referred
the dispute to this Hon’ble Tribunal for adjudication vide
its order No. L-42012/87/2005-IR(CM-II) dated 12.06.06
with the following terms :
SCHEDULE
‘Whether the action of the management of CPWD,
New Delhi in not regularizing the workmen, Shri
Mukesh Kumar & 116 others and not paying the
wages as per the notification dated 31-07-2012 is
legal & justified?” If not, to what relief the workman
is entitled to?.”
The corrigendum dated 10th July, 2006 was issued
by the Ministry of Labour for the list of 117 workmen as it
was not attached earlier.
2. That the details of workmen i.e. Name, Father’s
name, Designation, Status, Date of Employment, Duty
Place and name of the contractor etc. are mentioned in the
list attached with the reference and their names etc. were
mentioned in para 3 of the Statement of Claim also.
3. That 117 workmen connected with the dispute
were engaged through the contractors on a perennial
nature of job with a view to exploit these workforce, deny
the regular status and equal pay for equal work. They
have been performing their duties under the officials of
the management of CPWD like Junior Engineers, Assistant
Engineers and Executive Engineer concerned as the case
may be and the contractors have/had been performing the
duties of a Cashier.
4. That the workmen have completed more than 240
days of continuous service in each of the calendar year so
they acquire the status of a regular workman of the
management of CPWD.
5. That the contractors neither has license for
engagement of contract labourers nor the management of
CPWD being principal employer procured registration as
required under the Contract Labour (Regulation and
Abolition) Act, 1970 to engage contract labourers through
Contractor (s) thereby violated the provisions of the said
Act. So the workmen are entitled regular status and
absorbed being direct employees of the management of
CPWD, so get all benefits as that of regular and daily
rated workmen directly employed by CPWD. It is also
submitted that there was no genuine contract. Hence the
workmen on completion of 240 days are entitled to be
absorbed with the Management of CPWD.
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1115
6. That the workmen are performing the duty on a
perennial nature of job so all are direct employees of the
Management, if the veil is lifted by this Hon’ble Tribunal
will come to know how the Management of CPWD is
committing unfair labour practice and run counter to the
provisions of Contract Labour (Regulation and Abolition)
Act, 1970. Therefore, they may be absorbed being direct
employees of Management.
7. That all the workmen who are working as
unskilled, semi-skilled, skilled etc. workmen connected with
the dispute are having the technical qualifications for
regularization of their service under the management of
CPWD and for other workman working on unskilled
category are entitled for their regularization without any
technical qualification as both type of categories have
also acquire sufficient experience for working in the
different categories i.e. unskilled, semi-skilled, and skilled
with the management of CPWD.
8. That even the Ministry of Labour in exercise of
powers conferred by Sub-section (1) of Section 10 read
with Section 2(k) of Industrial Disputes Act so the Industrial
Dispute means any dispute and difference between the
employers and employers or between employers and
workmen or workmen and workmen and the Union has
raised to dispute on behalf of workman. Accordingly,
CPWD Mazdoor Union raised the dispute of the workman
before the Conciliation Officer and after reference before
this Hon’ble Tribunal also filed the Statement of Claim as
provided u/s 4 (b) of Industrial Disputes (Central ) Rules
1977 in which either President and Secretary of a Trade
Union of the workmen or by 5 representatives of the
workmen duly authorized in this behalf. It is submitted
that the Ld. Presiding Officer vide its order in proceeding
dated 12-07-2010 only allow to adduce evidence of two
witnesses i.e. Sh. Bhoop Singh on behalf of Union and
Sh. Manish and thereafter due to non-availability of Sh. Bhoop
Singh, the Ld. Presiding Officer allowed to replace
Sh. Joginder Singh as Union witness dated 8-9-2011 and
Sh. Joginder Singh adduce his evidence on behalf of the
workmen representing the Trade Union i.e. CPWD Mazdoor
Union as WW1 and another worker Sh. Manish WW/2
adduce his evidence as workman. It is also submitted that
the statement of claim filed by all the workmen through
CPWD Mazdoor Union and as common dispute. The
Hon’ble High Court of Delhi in Writ Petition (C) No. 18559/
2004 titled ‘Shakeel Ahmed Vs. New Delhi Municipal
Council’ has held that the evidence of co-workmen are
sufficient evidence and it was not necessary for the
petitioner to separately file another affidavit to show that
he was also pressing his claim under the reference. The
operative para of the judgement dated 22nd August, 2006
is reproduce as under:
“As such, the error in the award vis-a-vis the
petitioner is patent.
Reference is made to the judgment 2005(2) SCC 217
at p. 222 to plead that no delegation can be made to appear
as a witness and that whether the contested is a question
of fact. I have carefully gone through the pleas raised by
the respondent. The fact that the workman pressed his
claim is very clear from the common statement of claim as
well as common conduct of the proceedings and common
representation before the Labour Court.
In view of this patent error in the impugned order
dated 16-11-2004 and award dated 28-02-2004 are patent
to perverse as it is more than evident that the present
petitioner also contested/preferred his claim as well as
Shri Ramakant Rai did. Since there is no distinguishing
feature in the case of the present petitioner and that of
Ramakant Rai, there is no way how the present petitioner’s
claim can be decided differently from that of Ramakant
Rai.
The present writ petition is accordingly allowed and
it is held that the benefits given to Ramakant Rai in the
main award dated 28-02-2004 be given to the present
petitioner Shakeel Ahmed.”
9. That the Central Government, in consultation
with the Central Advisory Contract Labour Board,
prohibited the employment of the contract labour in the
process, operation or work specified in the Schedule, in
the office / establishment of Central Public Works
Department, Ministry of Urban Development and
Employment, New Delhi and the Notification for
prohibiting the employment of Air Conditioner Mechanic,
Air conditioner Khalasi/Helper, Electrician, Wireman,
Carpenter, Mason, Fitter, Plumber, Helper, Mechanic,
Sewerman, Sweeper, Khalasi, Foreman etc. were notified
by the Ministry of Labour Notification dated 31.07.2002 in
the Extra-Ordinary Gazette of the Govt. of India in Para II
Section 3 and Sub-Section (2). Copy of the notification is
annexed as Annexure-III with the statement of claim and
the same is exhibit WW1/1.
10.That as per notification dated 31.07.02 of Ministry
of Labour, New Delhi the employment on the following
work of the establishments are prohibited for employing
the contract labour in the office / establishment of C.P.W.D.
w.e.f. 31.07.2002 i.e. is the date of publication namely:
i. Air Conditioner Mechanic
ii. Air Conditioner Khalasi/Helper
iii. Electrician
iv. Wireman
v. Khalasi (Electrical)
vi. Carpenter
vii. Mason
viii. Fitter
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THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ix. Plumber
x. Helper/Beldar
xi. Mechanic
xii. Sewerman
xiii. Sweeper
xiv. Foreman
11. That it is proved by the evidence of Shri Joginder
Singh WW1/A that the work on which the workmen have
been performing their duties can not be handed over to
the contractors, so they have to be treated the direct
employment of CPWD and their status are of a daily rated
worker directly employed by the management. Shri
Joginder Singh appeared as witness being the office bearer
of CPWD Mazdoor Union as the reference is related to
Section 10 of I.D. Act and the Union can raise the dispute
on behalf of the workman. Shri Joginder Singh WW1 in
his cross-examination dated 26-06-2013 the workman
mentioned in the schedule employment alongwith the list
of workman in which the date, name of contractor etc. are
already mentioned. It is functioning of the Government
departments no appointment letter and termination letters
were given to the workmen working on daily wages or
through fake contractor. The extract of the cross-
examination is reproduced as under :
“I had not filed copy of my appointment letter as
well as appointment letters of other claimants. Vol. the
contractor had not issued any appointment letter either in
my favour or in favour of the other claimants. No payment
record, in respect of the claimants, is available with me. It
is incorrect that the claimants were working under control
and supervision of the contractor and not under the control
and supervision of the officers of the management. I cannot
name the contractor under whom the claimants were
working. I would produce resolution, which authorized
me to depose facts on behalf of the claimants, on the next
date. At the request of the witnesses, his further cross-
examination is deferred.
Presiding Officer
Again Sh. Joginder Singh appeared on 13-12-2013
and filed the sponsorship/espousal which is exhibit WW4
and concluded his evidence. Sh. Manish WW1 as his
name is appearing at Sl. No. 18 in the list referred by the
Ministry of Labour and he appeared also on behalf of
other workers in a common statement of claim and reference
order.
12.Shri O.P. Sharma, Executive Engineer appeared
as Management witness WW1 in a cross-examination he
admitted that the payments were made to the workman in
presence of representative of CPWD. He also admitted
that the contract labour works at places where work is
going on i.e. on work site. He further admitted that the
work sites are under the control of CPWD. The cross
examination by the A.R. of the workman is reproduced as
under:
“XXXXX:- By Sh. B.K. Prasad, Ld.A/R for the
workmen.
I have been authorized by Deptt. to file affidavit in
evidence on behalf of the management. I have no idea
whether in conciliation proceeding any person on behalf
of department approved or not. I cannot say. Whether
some Industrial Dispute has been sent by Labour Ministry
of this Tribunal for Industrial adjudication. It is incorrect
to suggest that contents of affidavit regarding rejection
for claim are false and frivolous.
Q. Whether you are aware of the name of the workers,
designation, divisions postings are mentioned in the
Annexure of reference order?
A. Annexure is on record.
Q. whether Management got registration for
employee contract labour from the Ministry of Labour as
required under the provision of contract labour(Regulation
& Abolition) Act?
A. Contractor was required to get it registered. It is
incorrect to suggest that the Management is duty bound
to get it registered ?
Q. Have you seen the license taken by contractor
from the Ministry of Labour before employing the contract
labour?
A. No.
Q. Whether contents of para 17 of WS are correct?
A. Yes
Q. Whether the regular worker in work charge
category were getting all the benefits like pay scale etc.
A. Yes
Q. Whether the contract labour got such facilities
from its contractors?
A. I cannot say.
Q. Whether payment made to contract labour by the
contractor is to be certified by representatives of CPWD?
A. Yes.
Q. Have you seen notification of abolition dated
31-07-2002 u/sub-section 2 of Section 10 Contract Labour
Regulation act (Regulation & Abolition Act) circulated by
office of Director General (Works) vide their office
memorandum dated 27-12-2002 Exh. WW1/3?
A. I have seen it now. It is correct that Contract
Labour works at places where work is going on (i.e. on
work sites)
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1117
Q. Whether the sites are under control of CPWD?
A. Yes
It is incorrect to suggest that the employment of
contract labour is sham, comafledge and illegal.
It is also incorrect to suggest that the Management
is adopting unfair labour practice.
It is also incorrect to suggest that I am giving false
evidence.
(MW has admitted in cross-examination the para 17
of written statement so the said para is reproduced which
prove that even daily rated workers have been getting the
equal pay for equal work i.e. time scale with all allowances
except increment.
“It is denied that after the said notification, all the
workmen who are covered in employment as referred
therein were to be treated as direct employment of
management of CPWD. The said gazette notification only
abolishes employment of contract labour and not directed
the management of CPWD to treat such labourers under
direct employment. Equal pay for equal work was notified
only for daily rated workers/muster roll workers who were
the directly employed workers by the department.”
13.That after the said Notification the workmen
connected with the dispute who are covered in
employment as referred herein above were to be treated as
direct employee of the management of CPWD and their
status is of a daily rated workers directly employed by the
management. Copy of the order in respect of payment of
equal pay for equal work by the CPWD are already annexed
as Annexure-I & II with the statement of claim and the
same are exhibit WW1/2 and WW1/3 respectively. The
copy of sponsorship also exhibit as WW2/4.
14.That the duties have been performed by the
workmen are of perennial in nature and the said jobs cannot
be awarded on contract basis through Contractor.
15.That Shri Joginder Singh WW1 adduces his
evidence and affirm the statement on behalf of workman
and also the documents Exhibit WW1/1, WW1/2 & WW1/
3. Another witness Sh. Manish S/o Late Sh. Anand
Swaroop also adduced his evidence as he himself
connected with the dispute and taken the same stand as
mentioned in the Statement of Claim and for engagement
of Contract Labour and the activities of the management
proves that Contract is sham and coma fledge to deny the
regularization of the workmen connected with the dispute
and the so called contract is also coma fledged being
perennial nature of work. The workmen have been
performing their duties for the last number of years. The
Management also denying equal pay for equal work w.e.f.
the date of initial employment so the workman has to be
treated as Direct Employee while setting aside the unfair
Labour Practice as the Contract was Sham & Comafledge.
Other witness relied the documents as Exhibit WW1/1,
WW1/2 & WW1/3.
It is also submitted that the service benefits of regular
employees and also daily rated workmen employed directly
by CPWD has not been extended to these workmen being
the Contract Labour and on this Ground also the work of
Contract is Sham & Coma fledge.
In the claim statement it was categorically stated
that in this case the Contract was Sham, Coma fledge and
illegal as well as unjustified.
16.That in the CPWD, the daily-rated workers in all
the categories have been getting their wages in minimum
of time scale plus DA, ADA, HRA, CCA, IR except
increment but the workman connected with the dispute
are even denied minimum wages fixed under the Minimum
Wages Act,1948 from time to time by the appropriate
Government to the different categories. Now these workers
are also entitled to the same wages paid to the daily rated
workers in CPWD i.e. fixed in the minimum of time scale
along with all allowances accept increment from the date
of their initial employment being unskilled, semi-skilled,
skilled and highly skilled workmen. Copy of the order dated
21-10-90 and 28-01-91 are annexed as Annexure 1 & 2 with
the statement of claim and the same is exhibit WW1/2 and
WW1/3 respectively.
17.That the following time scale fixed to the different
categories working in the CPWD as regular workman on
work charged establishment:
Status
Time scale
Time Scale Fixed w.e.f.
Prior to 01.01.1996
01.01.1996
with all allowances
with all allowances
_______________________________________________________________
Skilled
950-1500
3050-4590
Semi Skilled
810-1150
2650-4000
Unskilled
750-940
2550-3200
18.That the daily rated workman on muster roll/hand
receipt have been getting their wages in the minimum of
time scale i.e. Rs.950/-, 3050/-, 810/-, 2650/-, 750/- and 2550/-,
3200/- along with all allowances accept increment till their
services will be regularized but these workmen connected
with the dispute are even denied the minimum wages fixed
for unskilled, semi skilled or skilled.
19.That the workmen witnesses have affirmed that
the CPWD did not got the Registration and the Contractors
were also not having any License to employee the Contract
Labours under their establishment.
20.That the judgment of Constitutional Bench of
the Hon’ble Supreme Court of India, in the matter of Steel
Authority of India & Ors. Vs. National Union Waterfront
workers & Ors (2001) 7 SCC. The relevant paras of the
1118
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
judgment i.e. 125(5) and (6) settled the dispute between
the principal employer and the contract labour who was
employed in a camouflage manner and treated the direct
employee of the principal employer, and the same is
reproduced as under :
“125(5) On issuance of prohibition notification under
Section 10(1) of the CLRS Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract labour in regard to
conditions of service, the industrial adjudicator will have
to consider the question whether the contract has been
interposed either on the ground of having undertaken to
produce any given result for the establishment or for
supply of contract labour for work of the establishment
under a genuine contract or is a mere ruse/camouflage to
evade compliance with various beneficial legislations so
as to deprive the workers of the benefit there under. If the
contract is found to be not genuine but a mere camouflage,
the so called contract labour will have to be treated as
employees of the principal employer who shall be directed
to regularize the service of the contract labnour in the
establishment concerned subject to the conditions as may
be specified by it for that purpose in the light of para 6
hereunder.
“6. If the contract is found to be genuine and
prohibition notification under section 10(1) of the CLRA
Act in respect of the establishment concerned has been
issued by the appropriate Government prohibiting
employment of contract labour in any process, operation
or other work of any establishment and where in such
process, operation or other work of the establishment the
principal employer intends to employ regular workmen, he
shall preference to the erstwhile contract labour, if
otherwise found suitable and if necessary by relaxing the
condition as to maximum age appropriately, taking into
consideration the age of the workers at the time of their
initial employment by the contractor and also relaxing the
condition as to academic qualifications other than technical
qualification”.
21.That the workmen also produce the following
judgments in support of their claim :
i) That in SAIL(2001) 7 SCC also affirm the judgment
of Hon’ble Supreme Court in Hussainbhai Vs. Alath
Factory Thezhilali Union (1987) II-LLJ 397 and Indian
Petrochemicals Corporation Ltd. and another,
Appellants Vs. Shramik Sena and others and
observed in para 71 as under:
“71. By definition the term “contract labour” is a
species of workmen. A workman shall be so deemed
when he is hired in or in connection with the work of
an establishment by or through a contractor, with or
without the knowledge of the principal employer. A
workman may be hired91) in an establishment by
the principal employer or byhis agent with or without
the knowledge of the principal employer; or (2) in
connection with the work of an establishment by
the principle employer through a contractor or by a
contractor with or without the knowledge of the
principal employer. Where a workman is hired in or
in connection with the work of an establishment by
the principal employer through a contractor, he
merely acts as an agent so there will be master and
servant relationship between the principal employer
nad the workman. But where a workman is hired in
or in connection with the work of an establishment
by a contractor, either because he has undertaken
toproduce a given result for the establishment or
because he supplies workmen for any work of the
establishment, a question might arise whether the
contractor is a mere camouflage as in Hussainbhai
case and in Indian Petrochemicals Corporation case
etc. if the answer is in the affirmative the workman
will be in fact an employee of the principal employer,
but if the answer is in the negative, the workman will
be a contract labour”.
22.That it is matter of record that the contractors in
this case is only supplying the labour for performing the
work of principal employer i.e. CPWD within their premises
and as per the judgment of the Hussainbhai Calicult Vs.
Alath Factory Thozhilai Union (1978) II-LLJ397 , the
workmen have to be treated as the direct employees of the
SAIL. Relevant portion of the judgment is as under :
“5. The true test may, with brevity be indicated once
again. Where a worker or groupof workers labours
to produce goods or services and there goods or
services are for the business of another, that other
is in fact the employer. He has economic control
over the workers, subsistence, skill and contained
employment. If he for any reason chokes off the
worker is, virtually laid off. The presence of
intermediate contractors with whom alone the
workers have immediate or direct relationship ex
contract is of no consequence when, on lilting the
veil or looking at the conspectus of factors governing
employment, we discern the maked truth through
draped in different perfect paper arrangement that
the real employment is the Management not the
immediate contractor. Myraid devices half hidden in
fold after fold of legal form depending on the degree
of concealment needed the type of industry, the local
conditions and the like maybe resorted to when
labour legislation casts welfare obligations on the
real employer, based on Arts 38,39,42,43 and 43A of
the Constitution. The Court must be astute to avoid
the mischief and achieve the purpose of the law and
not be mislead by the maya of legal appearances.
6. If the livelihood of the workmen substantially
depends on labour rendered to produce goods and
services for the benefit and satisfaction of an
¹Hkkx IIó[k.M 3(ii)º
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1119
enterprise, the absence of direct relationship or the
presence of dubious intermediaries or the make-
believe trapping of detachment from the management
cannot map the real life bond. The story may vary
but the inference defies in grenuity. The liability
cannot be shaken off.
7. Of course, if there is total disassociation in fact
between the disowning management and the
aggrieved workmen the employment is, in substance
and in real-life terms by another. The management’s
adventitious connections cannot ripen into real
employment”
23.That the workman witnesses have admitted in
their Affidavits that the workmen have been performing
their job owned by the CPWD in their premises and log
book supervised by the Junior Engineer who checks the
log book and installation of Generator where the workman
performing his duty as Generator Operator. The Hon’ble
Supreme Court in the matter titled M/s Bharat Heavy
Electrical Ltd…..Appellant Vs. State of U.P. & anothers
……Respondents reported in 2003 LAB I.C. 2630 has held
that the test of control-Gardeners engaged through
contractor-Looking after lawns and parks inside factory
premises, campus and residential colony of company. Their
work supervised by employer of company-Attendance
recorded by an other employee of company-Concurrent
finding by Labour Court and High Court that gardeners
were under direct control and supervision of company
and were employees of company-Not liable to be interfered
with-Fact that work of gardener is not integral part of
industry of company-Does not make them any the less
employees of company when they were employed with
company to work in its premises-Non-filing of attendance
register by company also supports the concurrent finding
recorded by Labour Court and High Court-Termination of
Services of gardeners in violation of S.6N-Company liable
to pay compensation and re-employ them. Hussainbhai V.
Alath Factory, 1978 Lab IC 1264:AIR 1978 SC 1410. Neither
dissented nor diluted in Steel Authority of India Vs.
National Union Water Front, 2001 Lab IC 3653 AIR SCW
3574 AIR 2001 SC 3527.
In view of the above judgment the workmen
connected with the dispute has been performing their duty
under the supervision, control and within the premises of
the Management so the contract is a sham, coma fledge
and unjust to deny the benefits of a regular and permanent
workman under the establishment of CPWD. It is also
submitted that the contract system was abolished by the
Ministry of Labour during they have been performing their
duties as the following works prohibited for employing
the Contract Labour in the Establishment of CPWD w.e.f.
31-07-2002 i.e. the date of the Publication namely : Air
Conditioner Mechanic, Air Conditioner Khalasi/Helper,
Electrician, Wireman, Khalasi(Electrical), Carpenter,
Mason, Fitter, Plumber, Helper/Beldar, Mechanic,
Sewerman, Sweeper, Foreman.
24.The Hon’ble Supreme Court in case of Indian
Petrochemicals Corporation Ltd. Vs. Shramik Sena and
others 1999Lab. I.C.3078 have decided that when the
contract labour is treated direct employees of the
management for all purposes and the regularization was
granted by the court not as a matter of right of the workmen
arising under any status but with a view to eradicate unfair
labour practice and inequity to undo any social justice
and a measure of labour welfare. Operative portion of the
said judgment is reproduce as under :
“29. In this appeal, the workmen have questioned
the conditions that have been imposed by the High
Court while directing regularization of the workmen.
They contend that once the Court comes to the
conclusion that the workmen are in fact the
employees of the management, there is no occasion
to impose their condition. We are unable to agree
with this argument. It should be borne in mind that
the initial appointments of their workmen are not in
accordance with rules covering the appointments
or the established policy of recruitment of the
management. The said recruitment could also be in
contravention of the various statutory orders
including the reservation policy. Further the
respondent is an instrumentality of the State and
has an obligation to conform to the requirements of
Article 14 and 16 of the Constitution. In spite of the
same the services of the workmen are being
regularized by the Court not as a matter of right of
the workmen arising under any status but with a
view of to eradicate unfair labour practices and in
equity to undo social injustice and as a measure of
labour welfare. Therefore, it is necessary that in the
process suitable guidelines or conditions be laid
down at the time of Courts issuing directions to
regularize the services of the workmen so concerned
depending upon the facts of each case. The Court
has consistently followed this practice in the earlier
cases of regularization and we do not find any reason
to differ from the same. For the aforesaid reasons,
this appeal also fails and the same is dismissed but
with costs”.
25.That it proved by the evidence that one of the
major conditions for employment of contract labour i.e.
registration by the principal employer i.e. CPWD is lacking
and even the contractors are not having license for
supplying the contract labour, so the contract system was
not the genuine contract and the workmen connected with
the dispute have to be treated as direct employees of the
CPWD as per the directions of the Constitution Bench of
the Hon’ble Supreme Court decided in Steel Authority of
India Ltd. (SAIL) case. In another case, the Hon’ble
1120
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Supreme Court between the Secretary, Haryana State
Electricity Board and Suresh & others(1999-1-LLJ-1086)
also held that if the so called contractor was mere name
lender, who procured labour for appellant Board as broker,
Board was not principal employers called contract was
mere camouflage which concealed real relationship for the
employer employees.
26.That the workmen also placed the notification
31-07-2002 issued by the Ministry of Labour, Govt. of Indi,
New Delhi which prohibited the employment of contract
labour in the process/operation or work specified in the
schedule and according to the said Notification, the
employment of Generator Operator is also prohibited in
the establishment of CPWD. The Notification is published
in the Gazette of India Extraordinary PART-II Section -3
Sub section (ii) dated 31st July 2002. On the basis of
evidence adduced by both the parties, documents placed
on record and different judgment of the Hon’ble Supremem
Court.
27.That the Workmen witness WW1 & WW2 as per
the said documents, even the daily rated workers have
been getting their wages in the time scale with all
allowances including HRA, CCA,DA, Interim Relief etc.
except increment but these workman connected with the
dispute denied the said payment and only paid Minimum
wages which Act of the Management is also unjustified
and evading the payment of equal pay paying to their
casual labour/daily wages workers directly appointed by
them. The Hon’ble Supreme Court titled “Food Corporation
of India Vs. State of U.P. and others…..Respondents
reported in 2000 LAB I.C. 3323 has held in para 5 & 7.
“5. The letter of the Labour Department and the
certificate issued by the Assistant Department
Manager of the appellant at Bankura are in conformity
with Rule 25(2) (v)(a) of the Central Rules framed
under Contract Labour (Regulation and Abolition)
Act, 1970. These two materials clearly indicate that
the respondents were doing the job, which is on par
with the work of class IV employees. Further the
wages to be payable to them on daily rate would be
1/26th of the monthly wages of the class IV
employees. These materials were available before
the High Court at the time of disposal of FMAT No.
3614 of 1992 and at the time when in interim order
was granted in yet another proceeding wherein this
principle was adopted. Therefore, the grievance
sought to be made out by the learned counsel for
the appellant that there has been no inquiry as to
parity with regard to class IV employees and the
wages payable to the casual workers is palpably
incorrect and is not borne out by record at all.
7. Further, the High Court had given a finding that
since some casual workers appointed directly by
the appellant and some employed by the contractors
are working in the same godown and on the same
work, there could not be any scope for making any
difference and to deny equal pay for equal work.
Proceeding further it was stated that on the principles
set out earlier with reference to the letter of the Labour
Department, the wages will have to be paid regularly
to the respondent at the same rate at which it was
paid to the regular employees of the appellant doing
identical work which has to be worked out on daily
rate basis, from March 1989. The was the order that
was affirmed by this Court and was not interfered
with. It is difficult for us to comprehend on what
basis the appellant can make any complaint now
except to engage themselves in nit picking and being
over ingenious in making submissions before the
Court. The position is, therefore, clear to the effect
that this appeal is misconceived and deserves to be
dismissed with costs, quantified at Rs. 10,000/-.
28.That as per Section 21 of Contract
Labour(Regulation & Abolition) Act 1970 the wages
includes the balance of wages or arrears thereof - Principle
employer is statutorily responsible to ensure payment of
the wages as per the law. Titled Senior Regional Manager,
Food Corporation of India, Calcutta and Tulsi Das Bauri
& Ors reported 1997-II-LLJ-747 has held in para 5 and 6.
The operative para 5 & 6 is reproduce as under :
“5. Section 21 postulates the responsibility for
payment of wages. Under sub-section(1) a contractor
shall be responsible for payment of wages to each
worker employed by him as contract labour and such
wages shall be paid before the expiry of such period
as may be prescribed. Under sub-section(4), in case
the contractor fails to make payment of wages within
the prescribed period or make short payment, then
the principal employer shall be liable to make
payment of wages in full or the unpaid balance due,
as the case may be, to the contract labour employed
by the contractor and recover the amount so paid
from the contractor either by deducting from any
amount payable to the contractor under any contract
or as a debt payable by the contractor. That liability
has been prescribed under sub-section(2) thereof
which says that every principal employer shall
nominate a representative duly authorized by him to
be present at the time of disbursement of wages by
the contractor and it shall be the duty of such
representative to certify the amounts paid as wages
in such manner as may be prescribed.
6. Thus, it could be seen that the principal employer
is statutorily responsible to ensure payment of
wages as per the law. In case the contractor commits
default in the payment of the wages, the principal
employer is made responsible for due payment and
in case such payment is made he is entitled to have
it recovered by deducting from any amount payable
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1121
to the contractor under the contract or as a debt
payable by the contractor.
29.That it is proved that the contract is sham and
coma fledge and also the work of various categories as
mentioned in above has been abolished by the notification
of Ministry of Labour, Govt. of India dated 31-07-2002 so
all the workmen connected with the dispute are entitled to
be absorbed/regularization in the establishment of the
CPWD is legal and justified.
In view of the above, this Hon’ble CGIT-cum-Labour
Court No. II may kindly pass the Award while declaring
the Contract between the Management of CPWD and the
Contractors mentioned under Column 9 of Annexure filed
by the Union, with regard to employment of the workmen
listed under Column II of the Annexure referred by the
Ministry of Labour, Govt. of India, are Sham & bogus and
also Award the regularization of the services of the
workmen as per reference and also grant same pay &
allowances granted to atleast daily rated workers directly
employed by the CPWD from the date of their initial
employment under Rule 25(2) (v)(a) of the Central Rules
1971 framed under Contract Labour (Regulation and
Abolition) Act, 1970 and this Hon’ble Tribunal also direct
the Management to regularize their service as per their
policy framed for regularization of daily rated workers
w.e.f.11-12-2006.
Against written argument management has not filed
written argument in reply.
Ld. A/R for the management orally argued as
follows:—
That there is spousal . There is no authorization.
Nothing on record to prove. The direct relationship
of employer and employee between CPWD and
workmen.
Contractor has not been party in the instant case by
workmen.
Even name of contractor has not been mentioned in
the claim statement. Nor name of the contractor has
been disclosed by workman Sh. Joginder Singh in
his evidence when he was produce as WW1 .
No documents has been summoned by workmen.
Through, moving application u/s 11(3) ID. Act to
direct the management to produce the documents.
In want of which adverse inference shall be drawn
against workmen.
Ruling cited on behalf of workmen are inapplicable
in the instant case due to distinguishable facts.
In the light of contentions and counter contention I
perused the pleadings of claim statement , written
statement and rejoinder as well as evidence of
parties on record principles laid down in the cited
rulings including relevant provisions of law.
Perusal of evidence of record shows that workman
Sh. Joginder Singh has only been examined on behalf
of workmen.
It is relevant to mention here that no documentary
evidence has been produced on behalf of workmen.
It is also relevant to mention here that workmen have
not applied through application u/s 11(3) of I.D. Act
to direct the management to produce the original
documents which may support the case of workmen.
None moving of application u/s 11(3) ID. Act on
behalf of workmen raises adverse inference against
workmen u/s 114(g) of the Indian Evidence Act.
It is also relevant to mention here that pleadings of
any party without required evidence are useless.
On the basis of which no case of workmen is made
out.
Moreover, settled Law of Hon’ble Supreme Court in
case of Secretary State of Karnataka & Others Vs.
Uma Devi and Others 2006(4) SCC 1 is applicable in
the instant case. On the basis of which none of the
workmen are entitled to any relief.
In these circumstances, reference is liable to be
decided against workmen and in favour of
management.
Which is accordingly decided and claim statement
of workmen is dismissed.
Award is accordingly passed.
Dated : 2.2.2015
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 25 Qjojh] 2015
dk-vk- 434-&
dk-vk- 434-&
dk-vk- 434-&
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25@02@2015 dks izkIr gqvk FkkA
[la- ,y&22011/33/2008–vkbZvkj (lh,e-II)]
eks- tkfgn 'kjhQ] vuqHkkx vf/kdkjh
New Delhi, the 25th February, 2015
S.O. 434.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 51/2008)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Lucknow as shown in the Annexure, in the industrial
1122
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
dispute between the management of Food Corporation of
India and their workmen, received by the Central
Government on 25/02/2015.
[No. L-22011/33/2008 - IR(CM-II)]
MD. ZAHID SHARIF, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT
RAKESH KUMAR
PRESIDING OFFICER
I.D. No 51/2008
L-22011/33/2008-IR(CM-II) dated 24.10.2008
BETWEEN
The State Secretary
Bharatiya Khadya Nigam Karamchari Sangh
TC/3V, Vibhuti Khand, Gomti Nagar
Lucknow
AND
The General Manager
Food Corporation of India
TC/3V Vibhuti Khand Gomti Nagar
Lucknow
The Executive Director(North)
Food Corporation of India
Plot No. 2A,2B Sector 24, Gautam Budh Nagar
Noida (U.P)
AWARD
1. By order No. L-22011/33/2008-IR(CM-II) dated
24.10.2008, the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of
Section 10 of the Industrial Disputes Act. 1947 (14 of 1947)
referred this industrial dispute between The State Secretary,
Bharatiya Khadya Nigam Karamchari Sangh, TC/3V,
Vibhuti Khand, Gomti Nagar, Lucknow and The General
Manager(UP) Food Corporation of India, TC/3V Vibhuti
Khand Gomti Nagar, Lucknow and the Executive Director
(North) Food Corporation of India, Plot No. 2A, 2B, Sector
24, Gautam Budh Nagar, Noida (UP) for adjudication.
1. The reference under adjudication is:
“(I). WHETHER THE ACTION OF THE
MANAGEMENT OF FCI IN NOT ALLOWING
STEPPING UP OF PAY OF SRI S.I. IMAM W.R. TO
HIS JUNIOR NAMELY SRI SYED ALI AHMED IS
LEGAL & JUSTIFIED?
2.WHETHER
THE
ACTION
OF
THE
MANAGEMENT IN IMPOSING PENALTY OF
STOPPAGE OF TWO INCREMENTS FOR 2003 &
2004 VIDE THEIR ORDER DATED 29.05.2002 IS
LEGAL & JUSTIFIED?
3. TO WHAT RELIEF IS THE WORKMAN
CONCERNED ENTITLED?”
2. The case of the workman Sri S.I. Imam is that he
had submitted an application for stepping up of his pay at
par with his junior Sri Syed Ali Ahmad. The opposite party
no.1 returned the claim with some querry. The workman
removed the deficiencies and resubmitted the
representation. The opposite party no. 1 has forwarded it
to opposite party no.2. The opposite party no.2 has
illegally and arbitrarily not granted the relief which he is
entitled. The opposite party no.1 & 2 instead of granting
stepping up of pay to the workman reduced his pay and
started recovery. The workman has stated that opposite
party no.1 issued a charge sheet for issuing lesser quantity
to unit TAs for fumigation/spray in purposes against actual
allotment to misappropriate the same for vested interest.
The workman replied the charge sheet and explained the
factual position. But the opposite party did not agree with
the explanation of workman and imposed penalty of
stoppage of two increments for the year 2003 & 2004. The
workman stated that management has not given
opportunity of hearing to the workman. The workman has
prayed for direction to the Management to step up the
pay, to set aside punishment order dated 29.5.2002 &
appellate order dated 8.11.2006, to revise the pay fixation,
and to grant any other relief.
3. The management has filed written statement M-8
stating therein that vide Zonal Office order No. 27/07 dated
31.05.2007, pay of the workman was stepped up w.e.f.
1.12.1988, while doing so the affect of option/benefits
taken by the junior for wage revision has not been allowed
to the seniors who has not exercised such option. It has
also been stated that the case of the workman was examined
by Zonal Office (North) Noida Sri S.I. Imam was appointed
as AG-III(D) on 26.4.1972 where his pay wrongly fixed
w.e.f. 16.8.1971 on his joining on leave vacancy for which
he is not entitled. The pay of Sri S.I. Imam has been refixed
as AG-III(D) w.e.f. 26.4.1972 by Regional Office order dated
21/23.11.2006 on zonal office (North) direction vide letter
no. 2/30(1)Misc/2006-UP/E.VIII/Cat.III/NZ/1039 dated
27.10.2006.
4. The wage revision in revised scale w.e.f. 1.1.1973
was introduced with the optional scheme. Sri S.I.Imam has
not exercised any option w.e.f. 1.1.1975 at the stage 150/
330, in the revised pay scale of 1.1.1973. The case of
Sri S.I. Imam has been examined with the junior affect
Sri Swami Nath Sharma, who had exercised option at stage
150/330. The benefit of this option is not given to the
senior Sri S.I. Imam.
¹Hkkx IIó[k.M 3(ii)º
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1123
5. Sri S.I. Imam has been final legible to get the
benefit of Head Quarter circular No.29/98 dated 22.7.98
and the pay of Sri S.I. Imam has been stepped up w.e.f.
1.12.1988 vide Zonal office (N) office order no. 27.7 dated
31.5.2007. But while do so, the effect of option/benefit
taken by junior option for wage revision 1.1.73 w.e.f.
1.1.1975 has not been given to Sri S.I. Imam who has not
exercised such option.
6. The management has pleaded that the claim
statement is wrong and charge sheet was given to the
workman within rule and well reasoned and speaking order
was passed on the representation given by the workman,
there is no provision of personal hearing under Regulation
60, such demand was untenable and against the law and
rules. The management requested to reject the claim with
cost.
7. Thereafter rejoinder W-9 was filed by the workman
denying the averments of the written statement and
reiterated the claim statement. Vide list W-5, certain paper
have been filed by the workman. In rebuttal 8 papers were
filed by the management vide M-10.
8. The workman did not turn up before this Tribunal
for evidence although sufficient opportunity was given
to him. On 8.04.2011 my learned predecessor fixed another
date for management evidence. Affidavit of management
witness Sri Chanchal Kumar Trivedi M-13 was filed and
further the case was fixed for cross examination by the
workman. Several dates were given, even then none
appeared for the workman to cross examine the
management witness. Opportunity for cross examination
was closed by my learned predecessor on 15.12.2012 and
case was fixed for argument. On 17.11.2014 learned
authorized representative of both the parties appeared
before Tribunal and requested for fixing the case in the
National Lok Adalat on 06.12.2014. Learned authorized
representative of the management moved an application
mentioning therein that perhaps grievances of the
workman have been redressed and therefore the workman
has not been appearing in the court for several dates.
Learned authorized representative of the workman in
writing accepted this version of the management.
9. Under the circumstances and the facts mentioned
herein, no relief is legally required to be given to the
applicants/workmen. The reference under adjudication is
answered as NO CLAIM AWARD.
10. Award as above.
Lucknow : 6.12.2014
RAKESH KUMAR, Presiding Officer
ubZ fnYyh] 25 Qjojh] 2015
dk-vk- 435-&
dk-vk- 435-&
dk-vk- 435-&
dk-vk- 435-&
dk-vk- 435-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;w- lh-
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25@02@2015 dks izkIr gqvk FkkA
[la- ,y&22012/87/1999–vkbZvkj (lh,e-II)]
eks- tkfgn “kjhQ] vuqHkkx vf/kdkjh
New Delhi, the 25th February, 2015
S.O. 435.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 291/
99) of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial
dispute between the management of WCL, and their
workmen, received by the Central Government on
25/02/2015.
[No. L-22012/87/1999 - IR(CM-II)]
MD. ZAHID SHARIF, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/291/99
The Secretary,
RKKMS (INTUC),
PO Chandametta,
Distt. Chhindwara (MP)
...Workman/Union
Versus
General Manager,
WCL, Kanhan Area,
PO Dungaria,
Distt. Chhindwara (MP)
...Management
AWARD
Passed on this 5th day of February, 2015
1. As per letter dated 25-31/8/1999 by the
Government of India, Ministry of Labour, New Delhi, the
reference is received. The reference is made to this Tribunal
under Section -10 of I.D.Act, 1947 as per Notification No.
L-22012/87/99/IR(CM-II). The dispute under reference
relates to:
“ Whether the action of the Manager, Tandsi Project
of WCL, PO Rampur, Distt. Chhindwara (MP) in
dismissing from service of Shri Narendra Kumar
Pahade S/o Ganpat D.P.R. of Tandsi Project of WCL,
Kanhan Area is justified? If not, to what relief is the
workman entitled?”
1124
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at page 3/1 to 3/10. The case of Ist party workman is that he
was employed as piece rated workman in Tandsi Project of
WCL, Kanhan Area. In the night of 8th and 9th Sept-1997
when he went to attend his duty, Manager Manoj Pandey
instead of allowing him on duty started abusing workman.
workman without protesting returned from duty. It annoyed
Trainee Manager and he with the intention to falsely
implicate the workman, reported the matter to Police Station
for offence under Section 294, 323 and 506 of IPC. He also
submitted false complaint to higher authorities.
Chargesheet was issued to him on 9-9-97 abusing and
assaulting Manoj Pandey Trainee Manager. Before filing
of his reply, Shri N.K.Seth was appointed as Enquiry Officer
and Shri N.Rampal, Superintending Engineer (Civil) as
Management Representative. Shri N.K.Seth was Welfare
Officer. In view of provisions under Mines Act, he was not
competent for appointment as Enquiry Officer.
3. Workman submits that enquiry was adjourned
from 20-9-97 to 22-9-97 and then to 27-9-97. On 27-9-97,
Enquiry officer was informed that workman was on police
custody on 27-9-97 and unable to attend enquiry. That
enquiry will be faced after he was released on bail. Workman
has attended enquiry. That enquiry was not properly
conducted. Application for adjournment was rejected
without reasons. Principles of natural justice were violated.
Management’s Representative produced 10 documents.
Workman was not supplied copies. Workman was not given
proper opportunity for defence. He was not allowed time
to produce Defence Assistant Narendra Singh. On 7-10-97,
statements of witnesses were recorded. Defence Assistant
was not allowed opportunity to cross-examine them. On
7-10-97, workman went to call Defence Assistant. Enquiry
Officer recorded statements of other witnesses. It is
reiterated that enquiry was not properly conducted. It is
illegal. Management was committed to dismiss him from
service. On such ground, workman prays for setting aside
order of his dismissal ands prays for his reinstatement with
consequential benefits.
4. IInd party submitted Written Statement at Page
6/1 to 6/8 opposing claim of workman. IInd party submits
that on 8-8-97, workman was in 3rd shift ending at 9 AM of
next day. When workman reported duty at 1 AM, Jr.
Executive Trainee Manoj Kumar given him instructions
with regard to the work to be executed. Workman instead
of following his instructions engaged in quarrel with Manoj.
He abused, threatened and assaulted Manoj Kumar. On
complaint of Shri Manoj Kumar, chargesheet was issued to
him. Incident was also reported to police. Enquiry was
conducted on various dates. Co-worker Nagendra Singh
had represented workman. workman was arrested by Police.
He was released on 28-9-97. In Enquiry proceedings,
statements of witnesses were exhibited. Enquiry Officer
submitted his report on 7-10-97 holding charges against
workman were proved. Enquiry was conducted following
principles of natural justice. Considering the report of
Enquiry Officer and grave charges proved against workman,
punishment of dismissal was imposed. The pending criminal
case doesnot prohibit Departmental Enquiry. IInd party
referred to ratio held in various cases. All adverse
contentions of workman are denied. That witnesses were
examined in presence of co-worker. He was offered
opportunity to cross-examine. IInd party submits that
workman is dismissed for proved serious charges against
him.
5. As per order dated 9-4-2012, my predecessor held
that enquiry conducted against workman is not proper and
legal. Enquiry is vitiated. Management was given
opportunity to prove misconduct.
6. Considering pleadings between parties and order
on preliminary issue, the points which arise for my
consideration and determination are as under. My findings
are recorded against each of them for the reasons as below:-
(i) Whether the misconduct alleged
against workman is proved from
evidence in Enquiry proceedings?
(ii) Whether the punishment of
dismissal
imposed
against
workman is proper and legal?
(ii) If not, what relief the workman is
entitled to?”
REASONS
7. As stated above, enquiry against workman was
found illegal/ vitiated. Management was granted permission
to prove misconduct of workman in Court. Management
filed affidavit of evidence of witness Raj Kishore Sharma
working as clerk. Said witness of management has narrated
incident that on 8-9-97, he was working overtime in 3rd
shift. Workman Narendra Ganpat had attended 3rd shift.
He was asked to meet the Manager before marking his
attendance. Shri Manoj Kumar was distributing the work
around 1.20 AM. At that time, workman was saying that he
would not allow Manoj Kumar to distribute work. He was
called by other persons Shri B.P.Nag, shakil and Raju
Sheikhlal etc. Ist party workman separated from them and
inflicted blow by Iron Road causing bleeding from head of
Shri Manoj Pandey. Management’s witness in his cross-
examination says he had not given evidence in criminal
case. His statement was recorded in Deptt. Enquiry. He
denies suggestion that he had given false evidence.
Affidavit of evidence of Manoj Kumar is filed. Said witness
of management has also given details of the incident. That
workman was asking him why he was not allowing him to
mark attendance. That workman was always found missing
from point of his work after marking his attendance. While
Workman is
not entitled to
any relief.
In Affirmative
In Affirmative
¹Hkkx IIó[k.M 3(ii)º
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1125
the witness was going in Deposit section for grouting,
workman was found sitting at 3rd gallery. He asked workman
reasons why he was sitting there. Workman told he would
not go to work. Workman had abused, threatened and
assaulted by Iron Rod causing bleeding. Witness of
management in his cross-examination says criminal
procession was initiated against workman on his report.
He claims ignorance whether workman was acquitted in
criminal case. He denies suggestion of enmity with workman
on deposing false against him. The evidence of both
witnesses of management that workman abused,
threatened and assaulted Major Kumar is not settled. Their
evidence is sufficient to prove charges against workman.
For above reasons, I record Point No.1 in Affirmative.
8. Point No.2- Learned counsel for workman Shri
S.Pandey submits that workman was convicted by Criminal
Court, fine of Rs.1000 was imposed. In revision, fine was
reduced to Rs.500 observing offence were of petty nature.
However copies of judgments of criminal court and
judgment in revision are not produced on record. Workman
has not examined himself. Written notes of argument are
submitted by counsel for workman narrating details of
enquiry. Reliance is placed on ratio held in :
Case of Managing Director, ECIL, Hyderabad versus
B. Karunkar reported in 1994Supp(2) SCC-391. Ratio
held in the case pertains to dismissal without
supplying Enquiry Report.
Enquiry against workman is already found illegal.
Therefore ratio has no bearing to the case.
Next reliance is placed in case of management of
D.T.U versus Shri B.B.L.Hajelay and another reported in
1973-SCC(Lab) 57. Ratio held in the case is that rules and
regulations cannot override protection given by statute.
The ratio had no bearing to the case at hand as
charges of abusing, threatening, assaulting Shri Manoj
Kumar are proved from evidence of management’s
witnesses.
9. Shri A.K.Shashi for management relies on ratio
held in Case of West Bokaro Colleiry versus Ram Pravesh
Singh reported in 2009-I-LLJ-220(SC). Their Lordship of
Apex Court dealing with Section 11-A of ID Act held-
Interference by Tribunal with findings in domestic enquiry,
not warranted- standard of proof in departmental
proceedings different from that in criminal case.
Next reliance is placed on ratio held in case of Cement
Corporation of India versus State of H.P. and other reported
in 1995-II-LLJ-987. Their Lordship held when order of
dismissal has been passed in accordance with law, the
penalty of dismissal cannot be characterized as extreme or
harsh.
10. Considering proved charges against workman
assaulting, threatening and abusing his superior officers,
punishment of dismissal cannot be said harsh. No
interference is called for. For above reasons, I record my
finding in Point No. 2 in Affirmative.
11. In the result, award is passed as under:-
(1)
The action of the Manager, Tandsi Project of WCL,
PO Rampur, Distt. Chhindwara (MP) in dismissing
from service of Shri Narendra Kumar Pahade S/o
Ganpat D.P.R of Tandsi Project of WCL, Kanhan Area
is legal and proper.
(2)
Workman is not entitled to any relief.
R.B.PATLE, Presiding Officer
ubZ fnYyh] 27 iQjojh] 2015
dk-vk- 436-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bZ-lh-,y- ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 323@2000) dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@02@2015 dks izkIr
gqvk FkkA
¹la- ,y&20012@213@2000&vkbZvkj (lh&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 27th February, 2015
S.O. 436.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 323/2000)
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. ECL
and their workmen, received by the Central Government on
27/02/2015.
[No. L-20012/213/2000-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD
IN THE MATIER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT, 1947.
Ref. No. 323 of 2000
Employers in relation to the management of Rajmahal
Project, M/S ECL
AND
Their Workmen
1126
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Present:- Sri Ranjan Kumar Saran, Presiding officer
Appearances:
For the Employers
:
None
For the workman
:
Sri B. B. Pandey, Advocate
Sri R. K. Mukherjee, Advocate
State : Jharkhand
Industry : Coal
Dated 24.12.2014
AWARD
By Order No. L-20012/213/2000 -IR (C-I), dated 25/
10/2000, the Central Government in the Ministry of Labour
has, in exercise of the powers conferred by clause (d) of
sub-section (1) and sub -section (2A) of Section 10 of the
Industrial Disputes Act, 1947, referred the followihg
disputes for adjudication to this Tribunal:
SCHEDULE
“Whether the demand of the Union from the
Management of Rajmahal Project of Eastern Coalfield
Ltd. Lalmatia Godda for considering the 84 workman
(as per list) engaged under contractors for the last
13 years for permanent absorption in the company
is justified? If so, to what relief are the workmen
entitled and from what date?”
Name of the Workman
1.
Shri Seikh Mukhtar
2.
Shri Seikh Safik
3.
Shri Deo Kumar Yadav
4.
Shri Jagan Tanti
5.
Shri Chhote Lal Rajak
6.
Shri Ajay Yadav
7.
Shri Ramji Rajak
8.
Shri Upendra Tanti
9.
Shri Seikh Izrayal
10.
Shri Seikh Kalamuddin
11.
Shri Rajdeo Rajak
12.
Shri Ganauri Rajak
13.
Shri Devidayal Yadav
14.
Shri Bharat Tanti
15.
Shri Srilal Tanti
16.
Shri Md. Islam
17.
Shri Sabhapati Tanti
18.
Shri Birbal Tanti
19.
Shri Mahendra Tanti
20.
Shri Ashok Yadav
21.
Shri Dillp Ram
22.
Shri Kisan Mondal
23.
Kailash Mondal
24.
Shri Suresh Tanti
25.
Shri Makin Mansuri
26.
Shri Mahesh Tanti
27.
Shri Raja Ram Yadav
28.
Sri Bhubneshwar Yadav
29.
Shri Shoshin Yadav
30.
Shri Yamuna Tanti
31.
Shri Yogendra Kushwaha
32.
Sri Nageshwar Thakur
33.
Shri Yogendra Mondal
34.
Shri Karu Yadav
35.
Shri Sakhi Chandra Thakur
36.
Sri Sakaldeep Pashwan
37.
Shri Mahesh Yadav
38.
Shri Niro Pashwan
39.
Shri Jagdeo Yadav
40.
Shri Upendra Yadav
41.
Shri Tunna Yadav
42.
Shri Missan Tanti
43.
Shri Jai Prakash Yadav
44.
Md. Illyas
45.
Shri Jagarnath Tanti
46.
Sri Bishwakarma Thakur
47.
Shri Chaurasi Roy
48.
Shri Chhabil Yadav
49.
Shri Kailash Yadav
50.
Ranjeet Yadav
51.
Shri Shanbhu Sharan Yadav
52.
Shri Chhote Lal Yadav
53.
Shri Mahendra Pd. Yadav
54.
Shri Kokai Yadav
55.
Shri Dewal Pd. Yadav
56.
Shri Chhabi Lal Yadav
57.
Shri Rodh Rajak
58.
Shri Gore Lal Yadav
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1127
59.
Shri Birendra Yadav
60.
Shri Nirdo Yadav
61.
Shri Tileshwar Yadav
62.
Shri Billo Yadav
63.
Shri Rameshwar Tanti
64.
Shri Lal Mohan Roy
65.
Shri Bali Yadav
66.
Shri Bhutai Yadav
67.
Shri Rajendra Yadav
68.
Shri Daya Nand Yadav
69.
Shri Bibekanand Yadav
70.
Shri Dillp Yadav
71.
Shri Pankaj Kumar
72.
Shri Anil Yadav
73.
Shri Bhotali Tanti
74.
Shri Brahmdeo Yadav
75.
Shri Chulai Yadav
76.
Shri Jai Prakash Yadav
77.
Shri Shiv Kumar Sah
78.
Shri Utiam Choudhari
79.
Shri Sheo Nath Choudhary
80.
Shri Anirudh Yadav
81.
Shri Shiv Nandan Yadav
82.
Shri Upendra Yadav
83.
Shri Ram Lakhan Yadav
84.
Shri Seikh Firoj
2.
This reference is received from the Ministry of Labour
on 21.11.2000. After receipt of the reference, both parties
are noticed. The Sponsoring Union/workman files their
written statement on 12.09.2001, Thereafter the
management files their written statement on 23.08.2002.
workman’s documents marked as exhibits W-1 to W-3/1.
one witness has been examined on behalf of the workman.
3.
The short point for consideration is the concerned
workmen are required to be regularized under the ECL
management or not.
4.
Admittedly the workmen were engaged by the
contractors, but the management subsequently adopted
new type of mechanism, wanted to disengage the workman
for which a settlement was arrived by the Union of the
concerned workman and the ECL management before the
Dy. CLC Patna marked Ext. W-
5.
The workman also filed the photo copies of their I.D
cards etc, and photos being authenticated by the Union.
The management disputes the identity of the workman
and claims that the claim of the workman should be refused.
6.
One witnesses form the side of the workman
examined but on behalf of the management not a single
witness has been examined and they have not
controverted the versions of the workman.
7.
Moreover the management remained complete silent
regarding the settlement arrived by them or their
implementation. There is no dispute that the workman have
not been rendering service to the management, therefore
the case is decided as per the terms given below.
(a)
The management shall pay a sum of Rs. 80,000/-
to each of the workman within 2 month from
the publication of the award in the gazette. In
case the workman died in the meantime his
LRs be paid the said amount within the above
stipulated period, after proper identification.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 27 iQjojh] 2015
dk-vk- 437-—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
80@2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@02@2015
dks izkIr gqvk FkkA
¹la- ,y&20012@75@2005&vkbZvkj (lh&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 27th February, 2015
S.O. 437.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 80/2005)
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
27/02/2015.
[No. L-20012/75/2005-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. I, DHANBAD
In the matter of reference U/S 10 (I) (d) (2A)
of I.D. Act, 1947
Reference: No. 80/2005
1128
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Parties:
Employer in relation to the management of
Sijua Area of M/s. BCCL
AND
Their workmen
Present : Sri R. K. Saran, Presiding Officer
Appearances :
For the Employers
:
Shri D.K.Verma, Advocate
For the Workman
:
None
State : Jharkhand
Industry : Coal
Dated : 16.12.2014
AWARD
By order No. L-20012/75/2005 IR (C-I) dated 13.9.2005
the Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub -
section (1) and sub-section (2A) of Section 10 of the
Industrial Disputes Act, 1947 referred the following dispute
for adjudication to this Tribunal:
SCHEDULE
“Whether the action of the management of Tetulmari
Colliery of M/s. BCCL in dismissing Md. Sahil
M/Loader from the service of the company vide letter
dated 24/28.8.2004 is fair and justified? If not to what
relief is the concerned workman entitled?”
2.
After receipt of the reference both parties are
noticed. But appearing for centain dates, none appears
subsequently by the workman. Case remain pending. It is
felt that the disputes between the parties have been
resolved in the meantime. Hence, No disputed Award is
passed. Communicate to the Ministry.
R. K. SARAN, Presiding officer
ubZ fnYyh] 27 iQjojh] 2015
dk-vk- 438-—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
17@2010) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@02@2015
dks izkIr gqvk FkkA
¹la- ,y&20012@123@2005&vkbZvkj (lh&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 27th February, 2015
S.O. 438.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 17/2010)
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
27/02/2015.
[No. L-20012/123/2005-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO.I, DHANBAD
In the matter of reference U/S 10(1) (d) (2A)
of I.D. Act,1947
Ref. No. 17 / 2010
Employer in relation to the management of Central
Hospital, M/s. BCCL
AND
Their workmen
Appearances:
For the Employers
:
Sri D.K.Verma, Advocate
For the Workman
:
Sri Pintu Mondal , Rep.
State : Jharkhand
Industry : Coal
Dated 16.12.2014
AWARD
By order No. L-12012/123/2005-IR (C- I) dt. 05/02/
2010 the Central Government 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
“Whether the action of the Management of Central
Hospital of M/s. BCCL in dismissing Smt. Sunity
Lakra alias Singh Sister - in -charge from the service
of the company w.e.f. 31.08.2005 is justified and legal ?
(ii) To what relief is the workman concerned
entitled?”
2.
This Case is received from the Ministry on
25/02/2010. During the pendency of the case. The
representative of workman submits that workman is not
interested to contest the case. It is felt that the dispute
between parties is resolved. Hence “No dispute” award is
passed. communicate.
R. K. SARAN, Presiding officer
ubZ fnYyh] 27 iQjojh] 2015
dk-vk- 439-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch-lh-lh-,y-
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1129
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
13@2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@02@2015
dks izkIr gqvk FkkA
¹la- ,y&20012@187@2004&vkbZvkj (lh&I)º
,e- ds- flag] vuqHkkx vf/dkjh
New Delhi, the 27th February, 2015
S.O. 439.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 13/2005)
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
27/02/2015.
[No. L-20012/187/2004-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO.I, DHANBAD
In the matter of reference U/S 10(1) (d) (2A)
of I.D. Act,1947
Ref. No. 13/2005
Employer in relation to the management of Sudamdih
Shaft Mine of M/s. BCCL
AND
Their workmen
Present : Sri R.K.Saran, Presiding Officer
Appearances:
For the employers
:
Sri U. N. Lall, Advocate
For the Workman
:
Sri S.C. Gour , Rep.
State : Jharkhand
Industry : Coal
Dated 26.12.2014
AWARD
By Order No. L-20012/187/2004- IR(C-I) dated
17-12-2004 the Central Government in the Ministry of
Labour has, in exercise of power conferred by clause (d)
of sub-section(l) and sub-section (2A) of Section 10 of
the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
“Whether the action of the management of Sudamdih
Shaft Mine of M/s. BCCL, in dismissing Sri Ram
Prasad Paswan, M/Loader for the services of the
company w.e.f. 06.07.2002 is just, fair and legal? If
not, To what relief is the concerned workman is
entitled ?”
2.
The case is received from the Ministry of Labour on
03.01.2005. After receipt of reference, both parties are
noticed. They appeared through representative. The
Sponsoring Union files their written statement on
16.05.2005. The management also files their written
statement-cum-rejoinder on 10.11.2005. Thereafter
rejoinder and document filed by the parties. Both side
adduced one witness each their behalf. Management’s
document marked as Ext. M-1 to M-l0.
3.
Short point to be decided in this case as to whether
the dismissal of the workman is legal and justified.
4.
The domestic enquiry of the case held fair and
proper. The ground of dismissal was absent on duty
regularly. But MW-l admitted that during the service period
workman, he was ill and was treated in the management’s
hospital and document to that effect has been filed.
5.
The widow of the workman said in her evidence has
stated after dismissal, she was forced to come to their
native village where he breathed his last before decision
of the reference.
6.
Absenteeism, due to illness is quite natural. The
widow of the workman is young so also the workman was
young. The dismissal is this situation is the harshest
punishment. Hence the dismissal of the workman is held
illegal.
7.
Considering the facts and circumstances of this case,
I hold that the action of the management of Sudamdih
Shaft Mine of M/S BCCL, in dismissing Sri Ram Prasad
Paswan, M/Loader for the services of the company w.e.f.
06.07.2002 is not fair. Therefore her widow /LR be given
appropriate relief as awarded to the deceased workman’s
LRs as per the scheme.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 27 iQjojh] 2015
dk-vk- 440-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eqEcbZ baVjus'kuy
,;jiksVZ izk- fy- 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 64@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
27@02@2015 dks izkIr gqvk FkkA
¹la- ,y&11012@30@2013&vkbZvkj (lh,e&I)º
,e- ds- flag] vuqHkkx vf/dkjh
1130
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
New Delhi, the 27th February, 2015
S.O. 440.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 64/2013)
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 M/s. Mumbai
International Airport Pvt. Ltd. and their workmen, received
by the Central Government on 27/02/2015.
[No. L-11012/30/2013-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-2/64 of 2013
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF MUMBAI INTERNATIONAL AIRPORTS PVT. LTD.
& ANR
1.
The Vice President-HR
Mumbai International Airports Pvt. Ltd.
Terminal 1-B
Chhatrapati Shivaji International Airport
Santacruz (E)
Mumbai-400 099.
2.
The Director
M/s. Omega Enterprises
201, 1st floor, D-Wing
Ashok Nagar Housing Society
Military Road, Marol
Andheri (E)
Mumbai 400 072.
AND
THEIR WORKMEN
The General Secretary
Airport Aviation Employees Union
TerminaI1-B, Above CSI Airport
Santacruz (E)
Mumbai 400 099.
APPEARANCES :
FOR THE EMPLOYER (1)
: Ms. Mitra Das, Advocate
FOR THE EMPLOYER (2)
: No appearance.
FOR THE WORKMEN
: Mr. Chandrakant Dhadke,
Representative.
Mumbai, dated the 15th January, 2015
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No.L-11012/30/2013 IR (CM-I),
dated 24.10.2013 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 dispute as raised against M/s. Omega
Enterprises who is a contractor in the case by the
union of Contractors Labourers i.e. Airports Aviation
Employees Union lies. against the management of
M/s. Mumbai International Airport Ltd. (MIAL) who
is Principal Employer in the case? If so, what relief
the workmen are 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 Chandtakant Dhadke,
Secretary of the Union filed an application dated
24/12/2013 (Ex-5) stating that the matter has been settled
and they do not want to proceed further with the reference
and prayed to dispose of the reference’ as settled. Union
also filed copy of settlement alongwith Exhibit-6.
Management no.1 filed their Say (Ex-7) on Ex-5 & 6
contending that neither they are aware of the nexus/
connection between Omega and Hawai Karmachari Sena
nor concerned with any purported settlement reached
between Omega and Hawai Karmachari Sena and or AAEU.
Thereafter matter was adjourned for hearing on Ex-5 & 6.
But neither Union nor Management no.2 remained present.
In the circumstances the reference deserves to be
dismissed for want of prosecution. Thus I proceed to pass
the following order:
ORDER
Reference stands dismissed for want of prosecution.
Date: 15.01.2015
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 27 Qjojh] 2015
dk-vk- 441-—dsUæh; ljdkj] deZpkjh jkT; chek vf/kfu;e]
1948 ¼1948 dk 34½ dh /kkjk 91&d ds lkFk ifBr /kkjk 88 }kjk çnÙk
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¼1½
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¼4½
mä dkj[kkus@LFkkiuk dk fu;kstd ml vof/k dh ckcr
ftlds nkSjku ml dkj[kkus@LFkkiuk ij mä vf/kfu;e ¼ftls
blesa blds i’pkr mä vof/k dgk x;k gS½ çorZeku Fkk ,slh
foojf.k;ka] ,sls çk:i esa vkSj ,slh fof’kf”V;ksa lfgr nsxk tks
deZpkjh jkT; chek ¼lk/kkj.k½ fofu;e] 1950 ds v/khu mls
mä vof/k dh ckcr nsuh visf{kr gksrh Fkha
¼5½
fuxe }kjk mä deZpkjh jkT; chek vf/kfu;e dh /kkjk 45
dh mi&/kkjk ¼1½ ds v/khu fu;qä fd;k x;k dksbZ fujh{kd ;k
fuxe dk bl fufeÙk çkf/k—r dksbZ vU; in/kkjh(
¼i½ /kkjk 44 dh mi&/kkjk ¼1½ ds v/khu] mä vof/k dh ckcr
nh xbZ fdlh fooj.k dh fof’k”V;ksa dks lR;kfir djus ds
ç;kstukFkZ vFkok
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chek ¼lk/kkj.k½ fofu;e] 1950 }kjk ;Fkkvisf{kr jftLVj
vkSj vfHkys[k mä vof/k ds fy, j[ks x;s Fks ;k ugha( ;k
¼iii½ ;g vfHkfuf’pr djus ds ç;kstukFkZ fd deZpkjh] fu;kstd
}kjk fn;s x, mu Qk;nksa dks] ftlds QyLo:i bl
vf/klwpuk ds v/khu NwV nh tk jgh gS] udn esa vkSj oLrq
:i esa ikus dk gdnkj cuk gqvk gS ;k ugha( ;k
¼iv½ ;g vfHkfuf’pr djus ds ç;kstukFkZ fd ml vof/k ds
nkSjku] tc mä dkj[kkus ds laca/k esa vf/kfu;e ds
mica/k ço`Ùk Fks] ,sls fdUgha mica/kksa dk vuqikyu fd;k
x;k Fkk ;k ugha] fuEufyf[kr dk;Z djus ds fy, l’kä
gksxk %&
¼d½ ç/kku ;k vklUu fu;kstd ls vis{kk djuk fd og
mls ,slh tkudkjh ns ftls mijksä fujh{kd ;k vU;
in/kkjh vko’;d le>rk gS( vFkok
¼[k½ ,sls ç/kku ;k vklUu fu;kstd ds vf/kHkksxk/khu]
fdlh dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj esa
fdlh Hkh mfpr le; ij ços’k djuk vkSj mlds
çHkkjh ls ;g vis{kk djuk fd og O;fä;ksa ds fu;kstu
vkSj etnwjh ds lank; ls lacaf/kr ,sls ys[kk] cfg;ka
vkSj vU; nLrkost] ,sls fujh{kd ;k vU; in/kkjh ds
le{k çLrqr djsa vkSj mudh ijh{kk djus nsa ;k ,slh
tkudkjh nsa ftls os vko’;d le>rs gSa( ;k
¼x½ ç/kku ;k vklUu fu;kstd dh] mlds vfHkdrkZ ;k
lsod dh] ;k ,sls fdlh O;fä dks] tks ,sls dkj[kkus]
LFkkiuk] dk;kZy; ;k vU; ifjlj esa ik;k tk,] ;g
fo’okl djus dk ;qfä;qä dkj.k gS fd og deZpkjh gS]
ijh{kk djuk( ;k
¼?k½ ,sls dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj esa
j[ks x, fdlh jftLVj] ys[kk] cgh ;k vU; nLrkost
dh udy rS;kj djuk ;k m)j.k ysuk(
¼³½ ;Fkkfu/kkZfjr vU; ‘kfä;ksa dk ç;ksx djukA
6-
fofuos’[email protected] ds ekeys esa] çnÙk NwV Lor: jí gks tk,xh vkSj
rc u, çfr”Bku dks NwV gsrq leqfpr ljdkj dh vuqefr ysuh gksxhA
[la- ,l&38014@4@2013&,l-,l&I]
vt; efyd] voj lfpo
New Delhi, the 27th February, 2015
S.O. 441.—In exercise of the power conferred by
Section 88 read with Section 91-A of the Employees’ State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby exempts the regular employees of factories/
establishments of Nagaon Paper Mill of Hindustan Paper
Corporation Ltd., Kagajnagar, Assam from the operation of
the said Act. The exemption shall be effective w.e.f.
30.03.2015 for a period of one year.
2. The above exemption is subject to the following
conditions namely:-
(1) The aforesaid establishments wherein the
employees are employed shall maintain a register
showing the name and designations of the
exempted employees’;
(2) Not withstanding this exemption, the employees
shall continue to receive such benefits under the
said Act to which they might have become entitled
to on the basis of the contributions paid prior to
the date from which exemption granted by this
notification operates;
(3) The contributions for the exempted period, if
already paid, shall not be refundable;
(4) The employer of the said factory/establishment
shall submit in respect of the period during which
that factory was subject to the operation of the
said Act (hereinafter referred as the said period),
1132
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
such returns in such forms and containing such
particulars as were due from it in respect of the
said period under the Employees’ State Insurance
(General) Regulations, 1950;
(5) Any Social Security Officer appointed by the
Corporation under sub-section (1) of Section 45
of the said ESI Act or other official of the
Corporation authorized in this behalf by it, shall,
for the purpose of :-
(i) Verifying the particulars contained in any
returned submitted under sub-section (1) of
section 44 for the said period; or
(ii) Ascertaining whether registers and records
were maintained as required by the Employees’
State Insurance (General) Regulations, 1950 for
the said period; or
(iii) Ascertaining whether the employees continue
to be entitled to benefits provided by the
employer in cash and kind being benefits in
consideration of which exemption is being
granted under this notification; or
(iv) Ascertaining whether any of the provisions of
the Act had been complied with during the
period when such provisions were in force in
relation to the said factory to be empowered
to:
(a) require the principal or immediate employer
to him such information as he may consider
necessary for the purpose of this Act; or
(b) at any reasonable time enter any factory,
establishment, office or other premises
occupied by such principal or immediate
employer at any reasonable time and require
any person found in charge thereof to
produce to such inspector or other official
and allow him to examine accounts, books
and other documents relating to the
employment of personal and payment of
wages or to furnish to him such information
as he may consider necessary; or
(c) examine the principal or immediate employer,
his agent or servant, or any person found
in such factory, establishment, office or
other premises or any person whom the said
inspector or other official has reasonable
cause to believe to have been an employee;
or
(d) make copies of or take extracts from any
register, account book or other document
maintained in such factory, establishment,
office or other premises,
(e) exercise such other powers as may be
prescribed.
(6)In case of disinvestment/corporatization, the
exemption granted shall become automatically cancelled
and then the new entity will have to approach the
appropriate Government for exemption.
[No. S-38014/04/2013-SS-I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 2 ekpZ] 2015
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dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc
us'kuy cSad ds izca/kr= ds lac) fu;kstdks vkSj muds deZdkjks
ds chp vuqca/k esa fufnZ"V vkS?kksfxd fookn esa dsUnzh; ljdkj
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izkIr gqvk FkkA
[la- ,y&12012/88/2008–vkbZvkj (ch-II)]
jfo dqekj] MsLd vf?kdkjh
New Delhi, the 2nd March, 2015
S.O. 442.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.No. 83/2009)
of the Indus.Tribunal-cum-Labour Court, Pune as shown
in the Annexure, in the industrial dispute between the
management of Punjab National Bank and their workmen,
received by the Central Government on 02/03/2015.
[No. L-12012/88/2008 - IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE PRESIDING OFFICER, FIRST LABOUR
COURT, PUNE
Reference (IDA) No. 83/2009
Exh. No.:.
The Regional Manager,
Punjab National Bank, Arora Towers,
M. G. Road, Pune 411001)
....First Party
Versus
Mr. Shivaji Manohar Bhosale, )
C/o. Vikas Gulabrao Raut,
1/18, PMC Colony, Sambhajinagar,
Wakdewadi, Pune 411003.
......Second Party
REFERENCE UNDER SECTION 10 (1) AND 11 (A)
OF THE INDUSTRIAL DISPUTES ACT, 1947
Coram : Jayendra C. Jagdale, Presiding Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1133
Appearances :
Adv. Mr. Z. B. Attar, for the second party,
First party absent after filing Written Statement.
AWARD
(Dated 14th July 2014)
(1) The present reference has been sent by the
Central Government to this Court for the adjudication over
the demand of the second party, that whether the action of
the management of Punjab National Bank, Pune in imposing
the penalty of dismissal from bank services on Shri. Shivaji
Manohar Bhosale is legal and justified. What relief the
concerned workmen is entitled to ?
(2) The second party has filed his statement of claim
vide Exh. no. 4. It is submitted that the second party was
appointed by the Bank in the year 1986 as a peon and was
posted to Manik Dhondi Branch at Ahmednagar District.
He has rendered continuous service without any blame.
The first party is a Nationalized Banking company carrying
the business of extending the loans and finance to the
needy persons. The Bank has established various regions
for smooth functioning and his branch comes under Pune
Region. The service conditions of the employees are
governed by the settlement known as Shastri Award and
other Awards.
(3) The second party was served with a charge sheet
dated 03.06.2006 alleging that he with the help of Mr. N. R.
Shinde, misappropriated Bank’s fund by making
corresponding fictitious entries in the ledgers and the pass
book of the customers and also committed gross misconduct
under the Clause 5 (j) and 5 (i) of the By Parte settlement for
the act prejudicial to the interest of the Bank. The
explanation was called for, the second party called certain
documents for the inspection and thereafter he has
submitted the detailed say to the charge sheet and denied
the charges levelled against him.
(4) There were three employees working in that
branch viz. Branch Manager, Clerk cum Cashier and Peon/
Daftari. It is submitted that the duty cast upon the cashier
was put on the shoulder of the second party. The work
done by his was as per instructions of his seniors. In the
charge sheet it was not mentioned that he was responsible
for accepting cash, maintain the ledgers, issue the pass
book as his duty. He was just helping the cashier. There
was no complaint filed by the Branch Manager against him
prior to issuance of charge sheet.
(5) It is submitted that after filing reply disciplinary
authority appointed Enquiry Officer to conduct the enquiry
for the charges levelled in the charge sheet. Mr. S. M.
Niphadkar was appointed as an Enquiry Officer and Mr.
Vargis was appointed as the Prosecuting Officer of the
Bank. It is submitted that the Enquiry Officer has not
followed the principle of natural justice. The Enquiry Officer
has not given the specific reason as to why the defence of
the second party was not accepted and why the evidence
of the Bank was appealed to the Enquiry Officer. The
findings of the Enquiry Officer are also on hear say
evidence and without support of the documents. Therefore,
the findings of the Enquiry Officer are also perverse. He
was punished with the compulsory retirement by giving all
monetary benefits and was dismissed. Therefore, the
second party has sought for reinstatement in service along
with continuity and full back wages.
(6) The first party filed its ‘Written Statement’ vide
Exh. No.:6 and denied all the adverse allegations. It is
submitted that the service conditions of the employees are
governed by the settlement known as Shastri Award and
Desai Awards signed under provisions of Industrial
Disputes Act, 1947 applicable to all the employees. The
Memorandum of Settlement of disciplinary action and
procedure thereof in respect of workman staff has been
signed on 10.04.2002 by the Indian Bank’s Association on
behalf of 52 member banks including first party. In
accordance to these provisions disciplinary action was
taken against the second party and he was inflicted
punishment of “Dismissal without notice” vide order dated
29.06.2007 of Disciplinary Authority after affording due
opportunities in terms of principles of natural justice. The
second party has not availed the recourse of appeal within
45 days.
(7) It is submitted that the second party was
appointed in the bank as peon on 01.07.1986 and was
posted since 27.01.1998, where he was suspended on
17.01.2006 and subsequently served with charge sheet
dated 03.06.2006 under Para 5 (j) and 5 (l) of the Bipartite
Settlement dated 10.04.2002 for the following acts of gross
misconducts:
5 (j)
He made fictitious entries in Bank’s Book of
account, manipulated bank’s record, embezzled
bank’s fund and was negligent in discharging
his duties as peon-cum-daftari resulting in
serious financial loss to Bank.
5 (l)
He perpetrated fraud along with Shri. N. R.
Shinde, Cashier-Cum-CTO at the branch as cited
in the confessional statement dated 16.01.2006
of Shri. N. R. Shinde.
(8) It is submitted that after receiving the charge
sheet the second party was desiring to inspect the
documents. He was allowed to inspect but he did not avail
the opportunity. In his reply dated 28.02.2006, second party
himself stated that the entries were made in his own
handwriting. Thus, after finding his reply unsatisfactory,
departmental enquiry was initiated against him to find out
the truth in the charges levelled against the second party.
He has attended the enquiry along with the defence
1134
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
representative. During the enquiry due opportunity was
given to the second party. After concluding enquiry, the
enquiry officer has submitted his report holding that the
charges against the second party are proved. The second
party was served with the enquiry report and reply was
sought for. The second party submitted that he was falsely
implicated and used by Shri. N. R. Shinde in perpetrating
the fraud and that he was innocent.
(9) The report of the enquiry officer along with
connected record and submissions of the second party
were duly considered and confirmed the punishment of
“Dismissal without Notice” dated 29.06.2007 against which
second party did not prefer appeal. Th the second party is
not entitled to any relief such as reinstatement with full
back wages and continuity of service. Lastly it has prayed
to reject the reference.
(10) Following issues arise for my determination and
findings against them are recorded for the reasons that
follow.
ISSUES
FINDINGS
1)
Whether the enquiry held against the second
In the
party by the first party is fair, legal and
Negative
proper ?
2)
Whether the misconduct of the second party
In the
is proved by acceptable evidence in the
Negative
inquiry or in the Court ?
3)
Whether the punishment imposed is
In the
shockingly disproportionate to the
Affirmative
misconduct proved ?
4)
Whether the second party proves that the
In the
first party has illegally terminated his
Affirmative
services ?
5)
Whether the second party is entitled to get
Partly
the relief as sought ?
in the
Affirmative
6)
What Order ?
As per final
order.
REASONS
(11) In support of his case, the second party has
examined himself vide Ex. No. 12. The first party has not
adduced any evidence.
The argument advanced by Ld. Adv. Mr. Attar for
the second party is heard. The argument of first party no. 1
is treated as heard as per record.
AS TO ISSUE NOS. 1 & 2 :
(12) The second party Mr. Shivaji Manohar Bhosale
filed his affidavit in lieu of examination in chief vide Exh.:12.
Therein he has contended that he was appointed as peon-
cum-daftari in the establishment of first party. He claimed
that he had been in employment for 24 years and his entire
service record was unblemished. Moreover, his service
conditions are governed by provisions of Industrial
Disputes Act, 1947. At the time when charge sheet was
issued against him, he was working in the Manik Dhondi
Branch in district Ahmednagar. After issuance of show
cause notice to him, he was suspended since 03.06.2006.
The second party further claimed that at the branch of
Manik Dhondi he was posted along with Branch manager,
cashier-cum-clerk and he was not allowed to receive cash
from the customers as well as he was not allowed to make
payment. Moreover, he was not allowed to make entries in
cash book or relevant record maintained in the bank. Under
such circumstances, it was impossible to do any
manipulation or misappropriation. The second party
specifically asserted that in all eighteen employees of the
bank were charge sheeted on the same ground but all the
clerical staff, cashier were acquitted and action of
punishment of dismissal inflicted against second party only.
The second party further claims that enquiry conducted
against him was not in accordance to the principles of
natural justice and the findings recorded by the enquiry
officer were not based upon evidence led before him. On
the basis of perverse findings, his services were terminated.
The second party further claimed that the contentions of
the first party in its written statement is without any
substance. He further claimed that after termination he tried
for alternative employment but till the date of affidavit he
had not got any appointment and therefore, he is facing
critical financial position. On the basis of said averments
the second party claimed reinstatement with continuity
and back wages.
(13) In the light of specific contentions of the second
party, it is interesting to take note of contentions of first
party as submitted through written statement. It is
undisputed that the second party was appointed in the
bank as a peon from 01.07.1986 and at the relevant time he
was posted at the branch of Manik Dhondi. It is also
undisputed that he was suspended from 17.01.2006 and
subsequently served with charge sheet dated 03.06.2006.
He has been charge sheeted for the acts of making fictitious
entries in Bank’s Book of account, manipulated bank’s
record, embezzled bank’s fund and he was negligent in
discharging his duties as peon-cum-daftari. He perpetrated
fraud along with Shri. N. R. Shinde, Cashier Cum CTO at
the said branch. Thus there is no need to verify the
appointment order or service record of the second party;
as it is clear from the written statement itself that he was in
regular employment of the first party. Surprisingly, it has
been mentioned again and again about the enquiry
proceeding and how opportunities were given to the second
party in the entire enquiry proceeding. But the said enquiry
papers have not been produced by the first party for the
reasons best known to them.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1135
(14) Moreover, it is admitted fact that second party
was appointed as a peon and at the relevant time he was
working as a peon. It is surprising that charges levelled
against the second party is in respect of embezzlement of
bank funds and manipulation of bank record and account
books. Obviously, the duty list of a peon does not include
analyzing the bank papers or dealing with the bank funds.
He was not entitled to accept cash or maintain ledgers or
issue pass books. His only duty assigned was to help the
staff and cashier. Therefore, the first party has miserably
failed to prove the charges levelled against the second
party. Though it has been referred in the written statement
that charges have been proved against the second party
still in the absence of any details thereof, one cannot
conclude that the said charges have been proved against
the second party. Moreover, the first party cannot claim
that charges against the second party has been proved
unless and until they bring enquiry papers in the Court.
The first party has not produced any chit of paper in respect
of domestic enquiry. In view of Section 114 (g) of Indian
Evidence Act, an adverse inference can be drawn against
the first party.
(15) If the punishment is based upon finding of
domestic enquiry and thereafter matter is referred to the
Labour Court then such papers of domestic enquiry should
be presented for the perusal of Court. In the present case
the first party failed to produce original enquiry papers of
domestic enquiry conducted against the second party. No
reasons assigned on behalf of the first party as to why the
first party has not placed said domestic enquiry papers.
Though it has been referred in its written statement about
the outcome of alleged domestic enquiry as well as evidence
produced therein, still the first party has not placed the
papers of domestic enquiry as well as report of domestic
enquiry. Herein I would like to place reliance upon
observations of Hon’ble Bombay High Court in Hirenbhai
Sakharam Vs. New India Silk Mills Bombay; reported in
1950 1 CR 746 (IC) wherein the Lordship has observed that
if the record of the enquiry is not produced then the witness
should be examined to corroborate the enquiry officer that
he held the enquiry and misconduct was proved. In the
instant case the first party has neither examined enquiry
officer nor examined any other witness to prove the said
enquiry. Under such circumstances, it can hardly be said
that proper, fair and in accordance to the principles of natural
justice the enquiry was conductd against the second party.
When the enquiry is not in accordance with the principles
of natural justice, the misconduct cannot be said as proved
by acceptable evidence in the enquiry. Therefore, I answer
issue nos. 1 and 2 in the negative.
AS TO ISSUE NOS. 3 TO 6 :
(16) These issues are interlinked with each other.
Therefore, it is desirable to discuss them together for
brevity.
(17) This Court has already come to the conclusion
that the enquiry is not fair and the misconduct is not proved
by acceptable evidence. Therefore, when the misconduct
is not proved by acceptable evidence, it is shockingly
disproportionate. It caused severe prejudice to the second
party. Considering this aspect the second party proves
that he has been illegally terminated by the first party. This
Court has come to the conclusion that the punishment was
shockingly disproportionate and the second party was
illegally terminated, therefore, he is entitled to the reliefs
claimed. But so far as the quantum of back wages is
concerned, the second party has stated in his affidavit that
he has tried to get alternative employment but he was
unable to get any job. He has not filed any documentary
evidence to corroborate his oral version. Therfore,
considering his oral version and the span of near about
5 years from the dismissal, it will be just and proper to grant
50% back wages from the date of dismissal till actual
reinstatement in service. Accordingly, I answer issue nos.
3 and 4 in the affirmative and issue no. 5 partly in the
affirmative. Hence, I proceed to pass the following order.
ORDER
(1)
The reference is answered in affirmative and
accordingly it is allowed partly.
(2)
The first party Bank is directed to reinstate the
second party in his original post with continuity
of service and with 50% back wages for the
period from the date of dismissal till actual
reinstatement.
(3)
The first party shall also pay the cost of
litigation of Rs. 1,000/to the second party.
JAYENDRA C. JAGDALE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
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[la- ,y&12011/136/2008–vkbZvkj (ch-II)]
jfo dqekj] MsLd vf?kdkjh
New Delhi, the 2nd March, 2015
S.O. 443.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 5/2009)of
the Central Government Industrial Tribunal-cum-Labour
1136
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Court, Pune as shown in the Annexure, in the industrial
dispute between the management of Bank of Maharashtra
and their workmen, received by the Central Government on
02/03/2015.
[No. L-12011/136/2008 - IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
IN THE INDUSTRIAL COURT MAHARASHTRA
AT PUNE
Reference (IT) No. 5 of 2009
The General Manager,
Bank of Maharashtra,
Regional Office Solapur,
Plot No.94, Gaikwad Bhavan,
Murarji Peth, Pune Road,
Solapur - 413 002.
... First Party
And
The Joint Secretary,
Bank of Maharashtra Karmchari Sangh,
‘Vishwakarma Bhavan’, 185, Shaniwar Peth,
Pune - 411 030.
... Second Party
AWARD
( Dated : 10.07.2014 )
The parties have been absent. The demand raised is
regarding absorption of the concerned workmen on the
permanent roll of the Bank of Maharashtra. An interim
relief application was filed by the said workman, on which
some order was passed which was for a particular period.
This Tribunal on 10.04.2014 by order directed that the
reference itself would be taken up expeditiously. The union
or the concerned workman do not appear to be interested
in the claim. There is no evidence lead in support of the
averments and the claim. The demand is not substantiated
by evidence. Reference is therefore, disposed of.
D.H. DESHMUKH , Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
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FkkA
[la- ,y&12012/96/2008–vkbZvkj (ch-II)]
jfo dqekj] MsLd vf?kdkjh
New Delhi, the 2nd March, 2015
S.O. 444.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 6/2009) of the Central
Government Indus. Tribunal-cum-Labour Court, Pune as
shown in the Annexure, in the industrial dispute between
the management of Vijaya Bank and their workmen, received
by the Central Government on 02/03/2015.
[No - L-12012/96/2008 - IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE SHRI D.H.DESHMUKH, INDUSTRIAL
TRIBUNAL, AT PUNE
Reference (IT) No. 06 of 2009
Between :
Vijaya Bank,
Miraj Branch,
Miraj.
.. First Party
And
Shri Rajaram Sampati Hatekar
.. Second Party
ADVOCATES :
Shri P. M. Deshmukh,
Advocate for First Party.
Shri K. D. Shinde, Advocate
for Second Party.
AWARD
(Date : 12-08-2014)
Parties have been absent. No evidence led to
substantiate the demand. The claim, therefore, cannot be
adjudicated upon. Reference stands disposed of.
D.H. DESHMUKH, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
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esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] iq.ks ds iapkV ¼10@2007½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 02@03@2015 dks izkIr gqvk
FkkA
[la- ,y&12012/122/2006–vkbZvkj (ch-II)]
jfo dqekj] MsLd vf?kdkjh
New Delhi, the 2nd March, 2015
S.O. 445.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1137
Government hereby publishes the Award (Ref.10/2007)of
the Indus.Tribunal-cum-Labour Court, Pune as shown in
the Annexure, in the industrial dispute between the
management of Dena Bank and their workmen, received
by the Central Government on 02/03/2015
[No - L-12012/122/2006 - IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE INDUSTRIAL TRIBUNAL MAHARASHTRA
AT PUNE
Reference (IT) No. 10/2007
The Regional Manager
Dena Bank
Regional Office, Madhav Chambers
398/A, Senapati Bapat Road,
Pune 411 016
...First Party
Vs.
Kamalkar Gulabrao Salvi
27, Chandrama Nagar,
Near Mental Hospital
Yerawada, Pune 411 006
...Second Party
CORAM : Shri. D.H. Deshmukh, I/c. Presiding Officer
APPEARANCES:
None for First Party.
Shri A V Satpute, Advocate for Second Party.
AWARD
(Date : 10.03.2014)
This is a reference made by Government of India, for
adjudication of industrial dispute between Shri. Kamlakar
Gulabrao Salvi (Second Party, for short), and The Regional
Manager, Dena Bank, Pune (First Party, for short). The
demand in the schedule is as follows :—
“Whether the action of the management of Dena
Bank in not regularising Shri. Kamlakar Gulabrao
Salvi on permanent basis is legal and justified ? If
not, to what relief the concerned workman is
entitled?”
2. The Second Party has contended that he was
employed with the First Party as a peon in 1993, and had
worked there from time to time, but he has been deprived of
from the benefits of permanency. He was appointed in
1993, after following due procedure of selection. He was
interviewed by the selection panel, and he was promised
to absorb in permanent service / post within two years.
The Second Party performed the duties honestly and to
the satisfaction etc. The Second Party has contended
that initially he had worked as a Badli peon in February
1993. Thereafter, the First Party made other Junior Badli
employees permanent, but not the Second Party. The
Second Party had worked for 282 days during 15.02.2001
to 26.11.2001. It is contended that some of the Badli peons
like the Second Party have been promoted as clerks. The
Second Party was told by the First Party orally that the
Second Party should check up with the Bank every month
for the job. The Bank did not give employment to the
Second Party during July 2003 and May 2007. The Second
Party belongs to the Schedule Caste. On February 2006,
he was told that there was no vacancy in the Bank. The
legal notice was sent etc. The Second party was constantly
pursuing and persuading the First Party for job. The
Second Party called for job as a peon w.e.f. 16.05.2007, and
was initially given posting in Camp Branch, but he was
harassed. Thereafter, he was transferred to Branch at
Bhosari. The Second Party has stated about the harassment
made.
3. The First Party opposed the claim by reply Exh. C-7.
It is contended that the reference itself is not maintainable,
because it was made under the presumption that the
employer-employee relationship persists or exists. There
is total non-application of mind while making the reference.
The dispute is not an industrial dispute. Then, it is
contended that the Second Party is trying to get a back
door entry in the employment, which is not permissible.
There is no post of peon in the Bank. The employment and
the employment period is denied. The First Party has
contended that the Second Party has never gone through
prescribed / approved recruitment process as required in
law. It is denied that the Second Party has completed 240
days. It is also denied that the Second Party was working
from 1993 to 2001.
4. The Bank has contended that the services of the
Second Party were used by the Branch Manager, in his
individual capacity as a self employed person, as and when
required. The Manager had paid on per day basis, and it
was not the salary paid by the Bank. The further contention
is that, the Second Party might have been engaged for few
days for doing sweeping and other miscellaneous work.
He was paid on voucher for whatever work was done by
him. Then, it is contended that whenever there is work,
the Second Party is called in accordance with the bank,
and government policy. It is denied that any promises
were given. The contention is that, at present i.e. when
the reply was filed, there is no vacancy for Schedule Caste.
The First Party has denied the adverse allegations.
According to it, the Bank is governed by the recruitment
policy laid down by the Reserve Bank of India etc. The
First Party has pressed for rejection of the reference.
5. The issues that arise for my determination, and my
findings thereon are as follows :-
1138
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ISSUES
FINDINGS
1.
Whether the action/inaction of the
Not justified
First Party in not regularising the
Second Party in permanent service
is legal and justified ?
2.
What relief/award ?
As per final
order
REASONS
6. The Second Party has adduced oral as well as
documentary evidence. I have gone through the record,
and have heard the submissions made.
The Second Party submitted affidavit by way of
examination in chief at Exh. U-19, stating on the lines of the
case as pleaded. The affidavit indicates that in February
1993, the Second Party was appointed as a Badli Peon. He
was selected after completing due procedure and other 8
candidates were also selected. The Second party was
registered with the Employment Exchange. The First party
Bank had called candidates from the Employment Exchange,
as per the requirement. Thereafter, the Selection Board of
the Bank had interviewed the Second party. At that time,
he was assured / promised of absorption on permanent
basis within two years. The Second party worked in
various branches of the Bank. After some period, he was
discontinued for want of vacancy. However, others who
were Junior, and some direct recruitees were given job
superceding / bypassing seniority of the Second party.
The First Party has made permanent other badli persons,
who were Junior to the Second party, even though, they
were not appointed by following due procedure. The
Second Party had worked for more than 240 days during
certain period / phases. In February 2001 to November
2001 the working days were 282, from 05.01.2008 to
31.07.2009 the working days were 567. During this period,
he received the salary through Bank. From 05.08.1998 to
31.12.1998, the Second Party worked for 146 days.
7. The Second Party has stated that according to
circular of the First Party, an employee who completes 240
days has to be made permanent. The Second Party has
stated about the letter / reply dated 13.06.2006 submitted
by the First party before the conciliation officer. After
constant persuasion by the Second party, he was finally
called for the job of peon w.e.f. 16.05.2007, and posted at
Camp Branch, but only to be harassed.
8. The Second Party was cross examined by the
learned counsel - Mr. Joshi, who had appeared for the First
party. In cross examination, the Second Party stated that
he joined the Bank in 1993 as a peon. He was initially
engaged as a peon, but subsequently was told that he was
a Badli Peon. He has no documentary evidence. The First
Party is a nationalised bank. The Second party does not
know about the union. He admits that he was not appointed
in the permanent post of the peon. He further states that
he does not know if there is a procedure for making
appointment. The cross examination was adjourned on
request of Mr. Joshi, the learned counsel. Thereafter,
adjournments were given, but Mr. Joshi Advocate on
05.03.2014 passed “No Instruction Purshis” at Exh. C-14.
The learned counsel appears to have given notice to the
First Party Bank about his intention to file “No Instruction
Purshis”. The copies of relevant documents are produced
by the counsel. The First party has not appeared even
after passing “No Instruction Purshis” by the counsel.
The Second Party was ready and willing to face the cross
examination. Since the Bank itself failed to cross examine
the Second party, whatever evidence led can be said to be
virtually unchallenged.
9. The dispute referred by the Government is
regarding permanency. Therefore, whatever is stated in
the prayer clause of the statement of claim is no very much
relevant. This Court is required to consider the
regularisation or permanency for the Second party
workmen. The evidence and the documents indicate that
the Second party was duly selected by following procedure,
and he was appointed as Badli peon initially. Others were
also appointed as Badli peon. The undisputed letter dated
13.06.2006 addressed by the First Party to the Regional
Labour Commissioner, Government of India indicates that
the Second Party is in the approved panel of Badli Peon.
The letter further reads that the services of the Second
Party were used as Badli Sepoy at various branches of the
District as per need. There are 9 candidates including the
Second party in the approved panel of Badli Sepoy, and
the Second party is at Serial no.1 in the Schedule Caste
category. In the letter, it is stated that the list of approved
badli sepoy is maintained. The Badli sepoys are absorbed
in regular service of the Bank only when the permanent
vacancy arises in the category, otherwise, he continues as
badli till vacancy arises. This letter dated 13.06.2006
corroborates the oral evidence and the documents
produced by the Second Party. This particular letter is at
page 52 of document Exh.U-20 A collectively.
10.The documents indicate that the Second Party
was selected as Badli peon in 1993, and thereafter, he had
worked from time to time, but not continuously. He had
worked for 240 days during certain period. The evidence
indicates that badli peon / sepoy who are Juniors to the
Second party have been made permanent, and even
promoted as clerk. The Second party is not made
permanent. He is not being provided work regularly. There
is vacancy. By making Junior employees permanent,
injustice has been done to the Second party. This Tribunal
had passed an interim order that during the pendency of
the reference, the services of the Second party shall not be
terminated, without following due process of law. This
interim order was passed on 11.04.2008. It appears that the
Second Party was in employment during the relevant period.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1139
11.Having regard to the services put in by the
Second party,the promise given to him regarding absorption,
his initial selection by following due process of law, and
the proved fact that the Juniors have been made permanent
etc., the Second Party was entitled to be made permanent
in service as Sepoy / Peon / any other like post. The First
Party failed to regularise the services of the Second party
by not making him permanent. The Regional Manager
himself stated in the letter that Badli Sepoy is absorbed in
regular service, when there is a permanent vacancy. The
action of not regularising the services of the Second Party
is totally unjustified.
12.Having considered everything, I find that the
Second party is entitled to be regularised or made permanent
in the post of peon / sepoy or any other equivalent or like
post, and further, he is also entitled to the benefits of
permanent employment including the wages and
allowances etc. This reference was made in July 2007, and
it was received by this Tribunal on 02.08.2007. The ends
of justice would be met if the Second party is made
permanent w.e.f. 01.08.2007 and given the benefits of
permanency accordingly, with effect from that day. The
permanency benefits shall include wages, and allowances
etc., as applicable to the permanent employees.
D.H. DESHMUKH, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
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[la- ,y&12012/46/2007–vkbZvkj (ch-II)]
jfo dqekj] MsLd vf?kdkjh
New Delhi, the 2nd March, 2015
S.O. 446.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 14/2007)
of the Indus.Tribunal-cum-Labour Court, Pune as shown
in the Annexure, in the industrial dispute between the
management of IDBI Ltd and their workmen, received by
the Central Government on 02/03/2015.
[No. L-12012/46/2007 - IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
IN THE INDUSTRIAL TRIBUNAL MAHARASHTRA
AT PUNE
Reference (IT) No. 14/2007
The General Manager,
I.D.B.I. Ltd., 172/4, Raviwar Peth,
Shivaji Circle,Satara.
... First Party
AND
Shri Somnath M. Daitule
Maliwada Pargalli, House No.4824
Ahmednagar.
... Second Party
CORAM :
Shri. A.M. Tamboli, Presiding Officer
Appearances : Mr. Y.P. Vipradas, Advocate for First Party.
Mr. Malegaonkar, Advocate for Second
Party.
AWARD
( Dated : 17.09.2014 )
The Government of India, Ministry of Labour, New
Delhi, vide its order dated 23.08.2007 has referred the
dispute between one Shri Somnath Daitule and IDBI Ltd.,
to this Tribunal for adjudication in exercise of powers
conferred U/s.10 of the Industrial Disputes Act.
2. The brief facts of the present dispute are as under:
One Somnath Daitule the second party workman,
was employee working as a Peon with first party Bank at its
branch at Ahmednagar since 06.06.1983. When he was in
the employment of predecessor of the first party bank i.e.
United Western Bank, the bank on 08.02.2006 and 26.05.2006
issued him two charge-sheets alleging misconduct, and
enquiry was initiated against him regarding the said charges
on 24.07.2006 at Pune, before one Shri S.V. Joshi, Zonal
Manager, Zonal Office, Pune,the disciplinary authority.
3. The second party alleged that, on the day of the
enquiry he was not given an opportunity of being heard,
nor any time was given to him to give reply to the charges.
But about one hour prior to the actual enquiry one Ravindra
Devchakke, member of the Karmchari Sangh, Vijay Aychit
and S.V. Joshi called him in their cabin, and asked him/
threatened him that, if he does not resign from his services,
they will file criminal case against him for cheating. Under
the circumstances under coercion & undue influence the
first party asked the second party to resign from service on
24.07.2006, and there was no option for the second party
but to resign. He has further contended that, he has done
this under pressure and in order to avoid the clutches of
the criminal case against him. The second party has further
contended that, first party assured him if he resigns he
would be treated to have retired voluntary, and all charges
levelled against him would be taken back, and he would
get all retirement benefits. He has also contended that due
to the said retirement from service, he has lost his bread &
butter, and he was the only bread earner for his family.
4. He has also contended that the enquiry
proceedings was in English. Nobody explained him the
1140
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
proceedings and by doing this the first party has indulged
in unfair labour practice. He has also contended that, under
the circumstances enquiry conducted against him is not
legal, fair & proper, and thus is vitiated. He has further
contended that, on the very day the enquiry proceedings
was concluded, and on the same day final order with
proposed punishment was passed which he received after
one month. It is contended that on the very day stoppage
of increment order was passed and also his services were
terminated w.e.f. 01.08.2006. Thus it is alleged that the entire
exercise done by the first party is illegal, erroneous, malafide
and by way of victimisation amounting to unfair labour
practice. Therefore he has made an application before the
Asstt. Commissioner of Labour praying for reinstatement
with full back wages and continuity of service, and for
declaration of unfair labour practices, but nothing could
come out of it, and there was failure report of the Labour
Commissioner, and consequently the Labour Commissioner
referred the dispute alongwith failure report before this
Tribunal. Therefore the second party prayed for direction
to the first party to reinstate him in service with full back
wages and continuity of service.
5. The first party also appeared in the matter and
denied all the allegations made by the second party in their
written statement. They have denied that, the second party
is entitled for reinstatement with full back wages and
continuity of service. They have stated that, the claim of
the second party is not maintainable in law. They have
also stated that Industrial Court has no jurisdiction to
entertain and try the reference as the first party Bank has
not terminated the services of the workman, but the second
party has voluntarily submitted application for voluntary
retirement which was considered by the erstwhile United
Western Bank Ltd., which is amalgamated with the first
party IDBI Bank as per the scheme of amalgamation of the
year 2006. Under the circumstances when the erstwhile
United Western Bank has relieved the second party from
its services there is no employer-employee relationship
between the first party and the second party, and thus the
second party has no cause of action against the first party.
Under the circumstances the first party has prayed for
rejection of the claim/reference.
6. It is also stated that the reference suffers from mis-
joinder of the parties. They have denied that, the second
party was forced to resign, and he has resigned under
coercion and undue influence or under any other pressure.
It is stated that the second party did not give reply to the
charges levelled against him, and at the time of domestic
enquiry his representative was present and full opportunity
was given to him to defend himself.
7. It is denied that before one hour of commencing of
the domestic enquiry he was threatened by the officers of
the Bank to resign him otherwise they have threatened of
taking criminal action against him. It is denied that, they
have assured the second party that his resignation will be
treated as voluntary retirement and he would be entitled
for all the retirement benefits. It is stated that he was
relieved on 31.07.2006 and subsequently, the first party
has received undated application on 07.08.2006 wherein
the second party has admitted all the charges levelled
against him and expressed his desire to take back his
application for voluntary retirement, and requested for
reinstatement in service on initial basic pay as a fresh
recruited. But the same was not considered by the erstwhile
United Western Bank, since he was already relieved from
the services and as per pension regulation and service
conditions which were applicable to him does not provide
for the same. They have also stated that, they have put up
their stand before the Asstt. Labour Commissioner at the
time of conciliation proceedings. Under the circumstances
the first party has denied that, it has indulged in any unfair
labour practice, and therefore the first party has stated
that, the second party is not entitled for any of the reliefs.
8. Upon the claim & written statement, my Ld.
predecessor Shri K.W. Thakare, the then Member of the
Industrial Court, Pune framed the following issues on
11.02.2011, and I have given my findings against each of
them for the reasons mentioned below:—
ISSUES
FINDINGS
1) Does the second party proves that
No
the action of the management, in
compulsory retirement of second
party w.e.f. 24/7/2006 is illegal and
unjustified ?
2) Does the second party prove that
No
he is entitled to the relief as prayed
for ?
3) What Award ?
As per final
Award.
REASONS
9. In order to prove their case, the second party
workman has examined himself and closed his evidence.
The Bank has examined Shri Chandrakant Rajaram Patil-
Asstt General Manager, Vijaykumar Govind Aychit-clerk
working in United Western Bank and who was a defence
representative of the second party, Deochake Ravindra
Manohar-Manager Personnel of erstwhile United Western
Bank and Suhas Vasant Joshi-Zonal Manager, and closed
their evidence.
10. As to Issue No.1 : According to the second party,
the first party i.e. erstwhile United Western Bank has forced
him to resign from the services under threat of prosecuting
him, and therefore, unwillingly he was resigned on
24.07.2006 and from 01.08.2006 he was relieved from the
services, and thus according to the second party, he was
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1141
compulsorily retired and this act of the first party is illegal
and unjustified.
11. During the course of argument, it was argued
that there is a difference between compulsory retirement,
termination and voluntary retirement. It was submitted on
the part of the first party that, the second party workman
had resigned from the service on his sweet will, he was
neither threatened, nor coerced, thus it is simply a
resignation. But the reference speaks about compulsory
retirement which is not in consonance with the dispute
between the parties, and thus according to the first party
when the reference itself is defective the court cannot
entertain it or cannot extend it or travel beyond the
reference, and as there is no compulsory retirement the
reference itself is bad. As against this the Ld. Advocate for
the first party attracted my attention towards Section-10 of
the Industrial Disputes Act. Section-10(1)(b) runs as under:
“Where the appropriate government is of opinion
that any industrial dispute exists or is apprehended,
it may at any time by order in writing refer any matter
appearing to be connected with or relevant to the
dispute, to a court for enquiry”.
Thus as the controversy between the parties is
regarding bringing to an end the services of the second
party, whether it is by way of compulsory retirement or
termination or by accepting the resignation can be
considered in the present reference without giving much
importance to the nomenclature used in the reference. Thus
by entertaining the real controversy between the parties
this Tribunal is not travelling beyond the reference.
12. During the course of argument, it was also
submitted that there was no employer-employee
relationship between the parties as the second party was
in the employment of erstwhile United Western Bank which
was amalgamated into first party IDBI Bank and his services
were terminated by the United Western Bank. Thus
according to the first party as there is no relationship
between the second party and first party, the second party
is not entitled for any relief from the first party. During the
course of argument the Ld. Advocate for the second party
attracted my attention towards definition of Sec-25FF of
the I.D. Act. Section-25FF runs as under:—
“Where the ownership or management of an
undertaking is transferred, whether by agreement or
by operation of law, from the employer in relation to
that undertaking to a new employer, every workman
who has been in continuous service for not less
than one year in that undertaking immediately before
such transfer shall be entitled to notice and
compensation in accordance with the provisions of
Section-25F, as if the workman had been retrenched.
Provided that nothing in this section shall apply to a
workman in any case where there has been a change
of employers by reason of the transfer, if - (a) the
service of the workman has not been interrupted by
such transfer.
(b) ............................ (c) ......................”
And submitted that since after the amalgamation of
United Western Bank with IDBI Ltd. no compensation was
paid to him and as the dispute was pending the IDBI Bank
i.e. the first party the successor of United Western Bank is
liable for the acts and misdeeds of United Western Bank,
and therefore according to him simply by saying that IDBI
did not employ him or did not terminate his services they
cannot shrink their responsibility. To my mind IDBI bank
is successor of United Western Bank, and therefore they
are liable for the actions of the United Western Bank, and
thus though the United Western Bank has terminated the
services of the second party, if it is ultimately found that
termination of services by United Western Bank is illegal
then the IDBI bank first party is bound by the orders passed
by this court.
13. Now coming to the main controversy between
the parties as to taking of resignation application from the
second party under coercion is concern. According to the
second party on 24.07.2006 the day on which the domestic
enquiry was to be conducted, the officers of erstwhile
United Western Bank forced him to give resignation
application, and therefore he has given the resignation
application. According to second party one Vijaykumar
Aychit, Ravindra Deochake and S.V. Joshi, threatened him
that if he does not give resignation, they will prosecute
him, and therefore he had no option. When he says so, it
is clear that he has given resignation application on
24.07.2006, the only question which is to be considered is,
as to whether this resignation application was given by
him under any threat or coercion. It is pertinent to note
that, in order to refute the allegations made by second
party, the first party Bank has examined all the said three
persons named by the second party who have allegedly
coerced him. All the said three persons in cross-examination
denied that they have threatened or coerced the second
party to resign. Thus there is word against word, but the
fact remains that the resignation is signed by the second
party which is at Exh.C-14 colly. It is pertinent to note that
Exh.C-14 application dated 24.07.2006 is type written and
on the very day he has also given another letter in writing
which is hand written to the Bank Manager, that instead of
taking police action against him for his misdeeds he may
be allowed to resign. The second party has also requested
the bank to set right his dues from the retirement benefits.
Thus by reading both these letters it is clear that a hand
written letter is a letter of a common man, but the second
typed letter must have been written by a person having
official knowledge. But the tenor of both the letters is one
and the same, and therefore, simply because the type letter
cannot be in the langauge of the second party it cannot be
said that he must have been forced or coerced to sign it,
and thereby resigning from the services.
1142
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
14. During the course of argument, the Ld. Advocate
for the second party attracted my attention towards a term
locus poenitentiae and submitted that when the second
party has given the resignation, he should have given an
opportunity to withdraw it, i.e. he should have been given
an opportunity to think over his action, and his resignation
ought not to have been accepted in haste, and thus
according to him when the rules provide for three months
notice, his resignation ought not to have been accepted
within three months. Thus according to him acceptance of
the resignation forthwith is an illegal act on the part of the
first party. He has also submitted that, the second party
has given a letter dated 19.09.2006 which is also at Exh.C-
14 colly, to the Bank, wherein he has stated that he should
be reinstated in the service. The said letter is in Marathi.
In the said letter he has stated that, as he was mentally
disturbed and officers of the Bank in furtherance of their
common intention have obtained his signature over the
papers, and have obtained his so called resignation letter.
In a nutshell, by the said letter he has withdrawn the
resignation letter dated 24.07.2006. Thus according to the
Advocate for the second party, he has withdrawn his
resignation within three months from the day on which it
was given, and therefore, the said purported resignation
letter ought not to have been acted upon. In support of his
contentions he has relied upon the observations of Hon’ble
Supreme Court in Rajkumar V/s. Union of India, reported in
1969-AIR-180; Punjab National Bank V/s. P.K. Mittal,
reported in 1989-LLR-Vol.XX-194; Mool Chand Kharati
Ram Hospital & Ayurvedic Research Institute V/s. Govt of
Delhi, reported in 2002-I-CLR-617; and submitted that when
no opportunity to withdraw resignation application was
given, when there is a specific period of three months
provided in the service rules, accepting the resignation
and relieving him from the services amounts to compulsory
retirement, which is illegal and invalid.
15. During the course of argument the Ld. Advocate
for the first party bank has attracted my attention towards
the contents of the resignation letter, and pointed out that
the second party workman in the letter itself has stated
that, as per the rules in order to retire three months notice
is necessary, but he has sought for relaxation of said
condition, and asked for relieving him forthwith. To my
mind when he himself has asked for relieving him forthwith
by not waiting for three months, now it does not lie in his
mouth that the Bank should have waited for three months.
Under the circumstances the acceptance of the resignation
by the Bank and relieving him forthwith cannot be termed
as compulsory retirement, that too, illegal and unjustifiable.
Hence I answer this Issue in the negative.
16. Issue No.2 : In view of my above discussion as
to Issue No.1, I am of the opinion that the second party
workman is not entitled for relief of reinstatement and back
wages with continuity of service as prayed for. Hence I
answer this Issue in the negative.
17. Issue No.3 : In view of my above discussion, it is
clear that the Bank has accepted resignation of the second
party, and thus he is not compulsorily retired. Thus the
question of retiring compulsory by illegal way or
unjustifiably does not arise, and therefore the second party
is not entitled for any of the reliefs. Hence I propose to
pass the following award.
AWARD
1. The reference is disposed of.
2. The action of the Management IDBI, Satara is not of
compulsorily retiring the second party, but it is of
accepting his resignation.
3. The second party is not entitled to any relief.
4. Award be drawn accordingly and be communicated
to Govt of India.
Pune
Dated : 17.09.2014
A. M. TAMBOLI, Presiding Officer
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New Delhi, the 2nd March, 2015
S.O. 447.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.No. 13/2007)of
the Indus.Tribunal-cum-Labour Court, Pune as shown in
the Annexure, in the industrial dispute between the
management of Bank of India and their workmen, received
by the Central Government on 02/03/2015.
[No. L-12012/45/2007 - IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE SHRI D. H. DESHMUKH,
INDUSTRIAL TRIBUNAL AT PUNE
Reference (IT) No. 13 of 2007
Between :
The Zonal Manager
Bank of India
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1143
1162/6, Shivajinagar,
University Road,
PUNE - 411 005.
.. First Party
And
Shri Bhagwan Dhaku Patole
901, Nana Peth,
PUNE - 411 002.
.. Second party
ADVOCATES :
Shri H. D. Gokhale Advocate for First
Party
Shri Atul Dixit, Advocate for Second
Party.
AWARD
(Date : 31-01-2014)
This is a reference made by Government of India,
Ministry of Labour, for adjudication of dispute between
Bank of India, and Shri Bhagwan D. Patole. The Schedule
in the reference order contains following demand :-
“Whether the action of the management of Bank of
India, Pune in imposing the penalty of compulsory
retirement vide order dt. 3-4-2002 of Shri Bhagwan B.
Patole, without proper conducting departmental
enquiry is legal and justified ? If not, to what relief
the workman is entitled to ?”
2. According to the second party workmen, he was
employed with the first party bank as a Sepoy/Peon from
1-3-1983, and his last drawn wages were Rs.8,000/-p.m. He
had allegedly rendered unblemished service. The second
party was served with suspension order on 1-1-2002, and
was also issued subsequently a charge-sheet. It is
contended that the charges were false and frivolous, and
based on the incident, which never happened. The first
party promised not to terminate the services of second
party, and had given assurance. The second party admitted
the charges of misconduct, which he had never committed.
Thereafter, the first party did not conduct the enquiry as
required in law. The statement of the second party was
used against him. The disciplinary authority gave a finding,
in which he stated that the amount of Rs.300/- was paid
back immediately, and therefore, there is no loss to the
bank or customer. However, in spite of this, the punishment
of compulsory retirement was inflicted. The second party
had made a representation for taking a lenient view, but
that was not accepted. Thereafter, departmental appeal
was filed etc. In this way the second party prayed for all
the benefits.
3. The first party bank has resisted the claim, denying
all adverse allegations. According to the Bank, the second
party was appointed as Sub-Staff/Sepoy, and at the relevant
time he was working in Bhavani Peth Branch. On 26-12-2001
one Dhanpal Oswal of Alankar Medical Stores came in the
bank to deposit an amount of Rs.83,700/- in their account.
The receiving cashier retained loose cash with him for
counting, and handed over packets tied with rubber band
to the second party for handing over the same to second
cashier for counting. It was found that the cash deposited
by Oswal was short by Rs.300/- i.e. 3 notes of Rs.100/-
were less. Thereafter, it was revealed and found during
investigating that the second party was responsible for
pilferage of Rs.300/-. The second party admitted guilt in
writing on the same day. Thereafter, he was placed under
suspension pending enquiry, and the charge-sheet was
issued for the charge of “doing any act prejudicial to the
interest of the Bank or negligence involving or likely to
involve the Bank in serious loss.” The charge was framed
in accordance with the bipartite settlement. The second
party was directed to submit written statement in defence.
The second party submitted the statement, admitting the
charge. In view of the unconditional admission in writing,
there was no necessity to hold a domestic enquiry.
According to the bank, the pilferage of Rs.300/- by bank
employee involved dishonesty, and malafide intention. The
bank lost faith etc. The punishment was meted out in view
of the seriousness of misconduct. Denying the adverse
allegations and the claim, the bank prayed for answering
the reference in the negative.
4. The issues and my findings thereon are as
follows :
ISSUES
FINDINGS
1. Whether action of first party of compul- Yes
sorily retirement by the order dt. 3-4-2002
of Shri B. D. Patole is legal & justified ?
2. What Award ?
As per final
award.
REASONS
5. The second party has examined himself. Whereas
the bank has produced two witnesses, in addition to a
number of original documents. I have gone through the
entire record, and have heard Mr. Dixit and Mr. Gokhale,
the learned counsels.
6. The second party in his evidence has stated that
he had served for 18 years with spotless service record.
He was falsely charge-sheeted for unauthorizedly taking
away or stealing Rs.300/-. The charges were not acceptable
to him. The amount of Rs.300/-was deposited by him only
because he was falsely held responsible. None had made
complaint against him for that. The officers of the bank, on
26-12-2001, obtained from him a confession/admission,
according to their requirements, although there was no
fault or mistake on the part of the second party. The second
party was allowed to leave the premises late in the night
only after he had given the statement. The officers had
given an assurance that no action would be taken against
1144
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
him. The second party gave confession statement, relying
upon the assurance, and in view of the pressure of the
bank officers. The reply dt.25-2-2002 was also given as per
the say of the bank officers, and in view of the assurance
that no serious action would be taken. The second party
has stated about the ex-parte proceeding held against him,
breach of service rules, etc. His representation was not
considered. The second party further stated that the
punishment is extremely harsh. He is unemployed since
then etc.
In cross-examination, the second party has admitted
that whenever necessary, the concerned Peon used to take
the bundle of notes from the receiving cashier, and hand
over the same to the other cashier, and vice-versa.
Admittedly, on the relevant day, the second party gave
three packets of Rs.100/- notes of Alankar Medical Stores
to Beena Kulkarni, Cashier, after taking the same from the
receiving cashier Awaghade. He denies that Mrs. Kulkarni
found three notes short in one packet, and at that time, the
second party confessed of having taken three notes.
Admittedly, the second party was suspended and served
with a charge-sheet. The second party admits the signature
on the letter dt.25-2-2002, which is produced at Sr. No. 4 of
Exh.C-3 (Exh.C-6), and he is also aware of the contents of
that letter. Second party volunteered to state that the letter
was written as per the directions of the Branch Manager.
He also admits the letter dt. 19-3-2002, which is at Exh.C-7,
and it bears his signature. The second party then admitted
that in the enquiry, Shri Bhave acted as defence
representative on his behalf. Admittedly, the letter dt.
20-3-2002 and copy of the findings bear signature of the
second party. Admittedly, the second party gave reply to
the findings of the enquiry officer, by letter dt.28-3-2002,
which is at Exh.C-3. The second party admits that the
proceedings of the particular day were recorded and given
to him. He also admits the representation given by his
representative to the disciplinary authority. The second
party then admits that on 2-4-2002 he gave representation
to the disciplinary authority, admitting the guilt, and
requesting for minor punishment. The letter dt. 2-4-2002
produced with Exh.C-3 at Sr.No.11 also bears signature of
the second party.
7. The second party was put certain questions/
suggestions in respect of past service record. The second
party is not able to tell why he did not plead the name of
the officers, who asked him to admit the guilt.
8. The first party bank has examined Shri Maruti
Wayal, who is working as Peon. Wayal knows the second
party. Both of them were working in Bhavani Peth Branch
during the relevant period. According to Wayal, on
26-12-2001 the second party was doing the duty as Cash
Peon until Wayal reported for duty. On that day, Wayal
reported late, with permission of the superior. Wayal then
stated that the customer from Alankar Medical Stores came
to the bank, and handed over cash to Shri Awaghade,
Cashier. The Cashier kept loose notes, and passed on
bundles to Smt. Kulkarni, Receiving Cashier. Wayal was to
hand over the cash bundle to Smt. Kulkarni. However, at
that time, the second party picked up the bundles, and handed
over to Smt. Kulkarni. At that time, Wayal noticed second
party putting his hand in his pocket. Wayal then came to
know about shortage of notes etc. Wayal then stated that
before lunch break, he met and told second party casually,
that if he had taken the notes, he should give it back, because
the officer is strict, and the matter can go to the police. At
that time, second party abruptly got up, and brought notes
of Rs.300/-, and gave it to Wayal. Wayal handed over the
said notes to Smt. Kulkarni, and submitted a written report,
which is on record. According to Wayal, there was no enimity
or animosity between him, and the second party.
In cross-examination, Wayal admits that documentary
evidence about duty hours or cabin duty is not produced.
He is unable to tell how many notes were there in the cash
brought by Alankar Medical Stores. It does not take any
time to pass on the bundles of notes to back side for
counting etc.
9. The bank has examined Smt. Beena Kulkarni, who
is Administrative Manager. In the year 2001, she was
Cashier in Bhavani Peth Branch. Kulkarni has also stated
about the incident of 26-12-2001. Wayal came late, and
therefore, Patole was given the duty of cash peon. Kulkarni
was sorting cash at that time and Shri Awaghade was the
receiving cashier. Kulkarni has stated about the procedure
of the counting notes. The loose notes are counted by
receiving cashier and bundles are passed on to the other
cashier through peon for counting by machine. The
counting machine was out of order since 24-12-2001, and
therefore, she was counting the notes by hand. Kulkarni
then stated about the customer from Alankar Medical Stores,
who had come to deposit the money. Awaghade accepted
the cash and bundles were to be given to Wayal for passing
on to Kulkarni. At that time, the second party picked up
the cash bundles, and handed over to Kulkarni. At that
time, Kulkarni said that while picking up the cash, second
party had his hand in the pocket of the pant, which was
seen by Wayal etc. Statement of Kulkarni indicates that
there was some investigation/enquiry. Telephonic call was
made to Alankar Medical Stores. That customer told the
manager that if the police was called, the matter would get
complicated, and that the customer would pay the short
amount. Wayal then explained to the second party. The
second party brought three notes of Rs.100/- each at
2.30 p.m. Kulkarni has disclosed the numbers of the notes.
She had submitted a report.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1145
In cross-examination, Kulkarni admits that no
document is produced to show that on relevant day two
peons were asked to work in cash cabin. The distance
between the receiving cashier and sorting officer is 8 ft.
The currency notes brought by Alankar Medical Stores
were bound by rubber band. Kulkarni admits that she had
not actually seen the incident of removing the currency
note from those bundles. She submitted written report
after Wayal told her about the incident etc.
10. The documents produced by the first party are
very important. Admittedly, the second party on 26-12-2001
gave a statement, which is produced on record. In that
statement, the second party admits that he had taken
Rs.300/- from the cash of Alankar Medical Stores, and it
was his mistake. He also admits that he had handed over
three notes to Wayal. Second party requested for pardon,
giving assurance that the mistake will not be repeated.
The second party was given charge-sheet dt.4-2-2002,
which is at Exh.C-20. In the charge-sheet, the details of the
incident are mentioned. The charge was under Clause 19.5(J)
of the Bipartite Settlement. The charge is doing any act
prejudicial to the interest of the bank or negligence etc. In
the charge-sheet, the second party was directed to submit
written statement within seven days. Marathi Version of
the charge-sheet was also enclosed. In response to the
charge-sheet, the second party gave reply dt.25-2-2002,
which is at Exh.C-6. In the said reply also, the second party
admits that he committed the mistake inadvertently. He
admits the mistake. It is further stated that due to domestic
difficulties, his mental condition was not normal, and
therefore the mistake was committed. The second party
regreted the mistake. Second party also mentioned about
the return of cash. He requested for sympathetic
consideration.
11. The second party was given the memorandum
dated 20-3-2002 at Exh.C-8. In the memorandum given by
the disciplinary authority, it is stated that the second party
had voluntarily and unconditionally admitted the charges.
Before considering the finding prepared by the disciplinary
authority, the second party was again called upon to make
submission, if any. The second party made his submissions
by letter dt.28-3-2002, which is at Ex.C-9. In the said letter,
the second party again admits the mistake, which was
committed on 26-12-2001. He requested for taking maximum
lenient view, and assured that he would not give any cause
to the complain in future.
12. The bank has produced all original documents.
The material documents are not in dispute. In none of the
replies or explanations, the second party had stated that
he was given an assurance that no serious action would be
taken, if he admitted the guilt. There is no whisper about
any pressure or assurance. The theory of assurance or
giving confession due to assurance and pressure, is clearly
afterthought. The bank did not conduct a fulfledged
enquiry. This was because the second party repeatedly
admitted the guilt, and the charges, and therefore, there
was no requirement to conduct any further enquiry.
13. Apart from the documents, containing confession
and admission of guilt, the bank has examined two
witnesses, who were present at the relevant time. Laxman
Wayal was the Peon, who had virtually seen second party
stealing the notes. The two witnesses examined by the
bank, do not have any reason to make false statement
against the second party.
Having regard to the material on record, I find that
the charge was duly proved on the basis of admission.
The act of unauthorizedly taking away the amount of
Rs. 300/- from the cash of the customer was nothing but a
theft. The act was dishonest, and it was definitely prejudicial
to the interest of the bank. The bank is a public sector
bank. The money in the bank is public money. A bank
employee including Peon, has a duty to work honestly,
and with full integrity. In view of the attempted theft or
dishonest act, the bank claims to have lost faith in the
second party. The punishment meted out is that of
compulsory retirement. In the pleadings, there is no ground
that compulsory retirement is not the punishment provided
in the settlement. Apart from that, the bank has produced
the subsequent settlement, which contains the
punishments, and compulsory retirement is one of the
punishments, which could be imposed.
14. The present proceedings are not a criminal trial.
The degree of proof required is of preponderance of
probabilities. In this case, there is clear admission of guilt.
In view of that nothing more is required to prove the guilt.
If a public sector bank decides to compulsorily retire a
peon for a dishonest act of unauthorizedly taking away
money of the customer, the punishment, in my view, cannot
be said to be illegal or unjustified. Showing sympathy as
claimed by Mr. Dixit, is not possible in such a case, because
as held by the superior Courts, it would be a misplaced
sympathy. The fact that ultimately the bank was not put to
any loss, is also not relevant. The second party gave back
Rs.300/-. The Alankar Medical Stores had also brought
Rs.300/- to make good the shortage. That however does
not mitigate the gravity of the misconduct.
15. Having regard to the material on record, and the
submissions made, I do not find any justification in
interfering with the action of compulsory retirement.
Second Party Shri Bhagwan D. Patole is not entitled to
reinstatement, or any other relief as claimed. The reference
accordingly stands answered in the negative.
Pune
Date : 31.01.2014
D. H. DESHMUKH, Presiding Officer
1146
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
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New Delhi, the 2nd March, 2015
S.O. 448.—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, Pune as shown in the Annexure, in the
Industrial Dispute between the management of Bank of
India and their workmen, received by the Central
Government on 12/02/2015.
[No. L-12012/118/2007-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
IN THE INDUSTRIAL TRIBUNAL, AT PUNE
Reference (IT) No. 17 of 2008
Between:
Assistant General Manager,
Bank of Baroda,
Plaza Chamber,
4th F1oor, Dr. Atmaram Borkar Road,
Panji Goa - 403 10l.
And
Bank of Baroda
Shahupuri Branch
Kolhapur
...First Party
And
Shri Balasaheb Erandole
Post Sarnobat Wadi,
Taluka Karveer,
Kolhapur
...Second Party
CORAM : D. H. Deshmukh, Presiding Officer
Appearances:
Shri R. M. Samudra. Advocate for First Party
Shri Omkar Nevagi, Advocate for Second Party
AWARD
(Date: 30-08-2014)
This is a reference made by Government of India,
Ministry of Labour, New Delhi, for adjudication of industrial
dispute between The Bank of Baroda (“the first party” for
short) and Shri Balasaheb Erandole (“the second party’
for short). The dispute referred is thus :-
“Whether the action of management of Bank of
Baroda, Kolhapur in terminating the services of Shri
Babasaheb Erandole w.e.f January 2007 (as claimed
by the applicant) is legal and justified ? If not, to
what relief the concerned workman is entitled to ?”
2.
The second party has contended that he was
working with the first party in Shahupuri Branch, at
Kolhapur since 1990 as a Peon. He worked continuously
till 2007, when his services were terminated. The second
party had allegedly applied for the post of Peon pursuant
to the advertisement in the newspaper Loksatta, and
accordingly, he was appointed, and he started working
with Shahupuri Branch since 1992. In the year 1990 and
1991, the second party allegedly worked in Shivaji Chowk
Branch and Shahupuri Branch at Kolhapur for 37 and 80
days respectively. The service record was clean. The post
was permanent. There was ample work available. Services
were abruptly terminated w.e.f. 1-2-2007 after 15 years’
long service, that too without assigning any reason, and
without giving any notice. The second party had worked
for 240 days in each year as per the details shown in Para.
6 in the written statement.
3.
The second party has further, contended that there
was no practice as such, to employ a person as a casual or
daily wager. The second party was, however, continued
to deprive him of the benefits of permanency. The
provisions of the settlements were not cornplied with. The
second party was never informed that the services were
terminated, as he was not sponsored by the Employment
Exchange. The first party stated so only before Regional
Labour Commissioner. The second party has then stated
in the amended pleadings that after the termination, he is
unemployed, and could not get job. Similarly, at the time
of termination, he became age barred for other
employments etc. The second party has prayed for
reinstatement with continuity of service, and full back
wages.
4.
The first party has resisted the claim, denying the
adverse allegations. According to the first party, the
Hon’ble Supreme Court in Appeal (Civil) No. 3395-3612 of
1999 and SLP(C) No. 9103-9105 of 2001 has held that no
appointments could be made by the Government, and its
instrumentalities in contravention of statutory rules, and
even if any services are rendered under the illegal
appointment, the same do not entitle for absorption in
regular services. The contention of the first party is that
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1147
the second party was not employed in accordance with
the rules, or by following the prescribed procedure. The
second party has not stated that he was qualified to be
appointed, or was appointed procedure. According to the
first party, sometimes temporary and daily wagers are
required to be engaged for exigency of work, but such
appointees cannot be made permanent. The second party
was not recruited by following the process prescribed,
nor was sponsored by Employment Exchange. No
appointment letter was given to him. He was engaged on
daily wages, as and when the work was available. The first
party had engaged him for a day, and he was disengaged
automatically at the end of the day. Such disengagement
was not retrenchment etc. Denying the adverse allegations,
the first party has prayed for rejection of the claim.
5.
The Issues and my findings thereon, are as follows :-
ISSUES
FINDINGS
1.
Whether the action of management
No
of first party in terminating the
services of second party w.e.f.
January 2007 is legal and justified?
2.
If not, to what relief the second
Compensation
party workman is entitled?
3.
What Award ?
As per final
award.
REASONS
6.
I have gone through the record, including the written
argument of the first party, and have heard the submissions
made.
The second party has stated on oath that he had
worked in at Shivaji Chowk and Shahupuri Branch,
Kolhapur during 1990-91. He had applied for the post of
Peon, which was advertised by the first party, and was
selected. According to the second party, he worked as a
Peon since 1990 till January 2007. He had completed 240
days. The Branch Manager was paying his salary on
weekly basis on vouchers, and was making the entries to
that effect in his personal diary. The second party was the
permanent employee. He then stated about the inspection
report produced on record. Services were orally without
any notice or compensation from 1-2- 2007. The second
party has stated about the letter dt.13-10-2006 of the first
party, in which service period etc. is mentioned. The
second party has sta ed that he is 47 years old, and could
not get job despite efforts. The recruitment document
produced with Exh.C-5, is not applicable to him.
7.
In cross-examination, the second party has admitted
that in advertisement, the candidates were required to
submit education certificate, Employment Exchange Card,
domicile/proof of residence from Gram Panchayat. He had
applied to the bank along with the documents. The second
party does not remember if he has got the copies of the
above documents. The second party was engaged on daily
wage basis. He does not remember if the appointment letter
was issued to him. Admittedly, there are only vouchers to
show his services. The second party does not know
English, though he had a subject of English upto 7th Std.
According to the second party, Annexure to the letter
dt.13-10-2007 is its part and parcel. The second party
cannot tell how he got the confidential letter, which is
produced on record. He also admit that he received the
wages for the work performed by him.
8.
The first party examined Shri J. K. Gandhi, Assistant
General Manager. Gandhi has stated that he is Asstt.
General Manager of Shahupuri Branch, Kolhapur since
18-6-2013. He is serving with the first party bank for last
more than 36 years. Gandhi has gone through the available
records with the Shahupuri Branch of the first party
relating to instant dispute, and heis conversant with this
case on the basis of record. According to Gandhi, the
services of the second party were availed by the first party
only as daily wage worker, and as and when the needed
for the work which had arisen at the Shahupuri Branch of
the first party bank, and he was paid proper wages. Services
came to an end every day on which he was engaged .. The
contract was only for the day. The provisions of the
Barpartite Settlement are not applicable to to him. He was
not in continuous service. The bank has also policy
guidelines, rules, and eligibility criteria for regular
employment in bank service, which are circulated in all
branches. Copy of the said guidelines is produced. The
second party does not fulfill the eligibility criteria for regular
employment. His name was not recomrnended by
Employment Exchange. The second party is engaged in
the dairy business, and is earning income from the said
business. In short cross-examination, Gandhi denies that
he does not know the facts of the case. The daily wagers
vouchers are kept. He was shown letter dt.13-10-2006, and
he denies the contents thereof. From local enquiry, he
came to know about the occupation and earnings of the
second party. Gandhi also admits that he had heard that
the second party used to work intermittently since
1991-92.
9.
On behalf of the first party, copy of decision of the
Hon ‘ble Suprerne Court in Secretary, State of Karnaiaka
& others Vs. Umadevi & others decided on 10-4-2006 is
produced, on the proposition that for regular appointments
in public employment, it is mandatory to follow the
recruitment rules and process etc. Mr. Samudra, the learned
counsel for the first party has subrnitted written argument.
wherein he stated about Paras 2, 34 & 38 of the judgment
cited about the non-application of the settlement, Sec.
2(oo) (bb) etc. I have gone through the written argument.
10.
Mr. Nevagi, on the other hand, argued that if the
bank claims to be a State, then the State is expected to act
ideally. The letter dt.13-10-2006 was confronted on behalf
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THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
of the first party bank to the second party, during his
cross-examination, and therefore, the said letter is required
to be read in evidence. The details of working days given
in that working letter, and the details taken of during
inspection differ. This shows that the bank has suppressed
the documents etc. According to Mr. Nevgi, the second
party had worked continuously for several years, and was
sent home unceremoniously, without complying with the
provisions of law. Mr. Nevagi, the learned counsel
specifically submitted that the second party should be
given compensation, and in that regard, reliance was
placed on Management of the Lakshmi Vilas Bank Ltd. Vs.
Presiding Officer, Industrial Tribunal & Others (2013 IV
LLJ 459 Madras H.C.) B.S.N.L. Vs. Bhurumal [2013(15)
SCALE 131 S.C.], and The Divisional Forest Manager,
FDCM Ltd. Vs. Shri Vinayak Kurne & Ors. [2011 (6) MhLJ
784 Bom. H.C.], on the proposition that industrial law
should be given an interpretation, which would advance
the beneficial purpose, and defeat the mischief.
11.
The second party has produced inspection report
with Exh. U -12, which is admitted. It is therefore, marked
Exh. U -12A. Inspection report shows that vouchers were
maintained by the first party bank, and the second party
was paid on the voucher. The working days shown in the
inspection report, are of the year 2000, 2002, 2003, 2005 &
2006. Admittedly, the second party was working since 1991-
92, though intermittently as stated by witness of the first
party bank. It is clear that the bank did not produce all the
vouchers for inspection. This fact becomes clearer from
the letter dt.22-2-20 14, which is also admitted (Exh. U -17).
This letter is a reply given to the second party under Right
to Information Act. This letter gives information about
working days. The letter states that record pertaining to
1990-1999 (except August 1999) is not available. In August
1999, the second party worked for 23 days as casual
labourer. In 2000, the working days are 234, 2001 : 231 days,
2002 : 123 days, 2003 : 64 days, 2004 : 16 days, 2005 : 147 days
& 2006 : 66 days. The letter of the first party itself indicates
that the working days are much more than the working
days reflected from the vouchers shown to the second
party during inspection.
12.
The second party has produced with Exh.U-16 a
letter dt, 13-10-2006 written by Chief Manager of the First
Parry to the Assistant General Manager of the First Party
at Panji Regional Office. The subject is information relating
to the persons who worked’ on ternporary or casual basis.
Information in respect of second party is enclosed with
that letter. The letter states about two persons, including
the second party. It’s annexure is a brief biodata of the
person, containing, name of the second party, his date of
birth, and other details which show that his name was
registered with Employment Exchange. The work and
conduct is shown as satisfactory. Nature of duties shown
are of a Peon. Now, coming to the working days, details
are written in hand like other details of name etc. The
period is from 1990 to 2006. In most of the years working
days are more than 240. In 2005 the working days shown
are 291. It is a confidential letter. How the second party
got it is not clear, and he is also not able to tell the same.
Second party has denied tha the particulars of working
days mentioned in the biodata/Annexure to that letter,
were written by him. The second party, however, was not
put any suggestion that the letter is fabricated or false.
The first party bank had examined the Asstt. General
Manager after the letter wa produced on record. The said
witness however, has not challenged or denied the said
letter in his examination in chief.
13.
Having regard to the facts and circumstances of the
case, and the other evidence on record, I am inclined to
place reliance on the letter dt.13-10-2006 as well as biodata/
proforma annexed to it. The Bank was not able to produce
original vouchers, or any other documents relating to
attendance. The bank had received letter dt. 20 November,
2007, demanding reinstatement. The bank was aware of
the dispute referred to this Tribunal. The bank was
supposed to preserve the relevant record. The witness
who is examined, was not in the concerned branch at the
relevant time. He claims to have deposed on the basis of
record.
14.
Having regard to the material on record, I am inclined
to hold that the second party had worked from 1990 till
31-1-2007, and his services were terminated from 1-2-2007.
I also find that the second party had worked for more than
240 days in most of the year from 1990 to 2006. During the
year immediately preceding the date of termination) the
working days were 240 or rnore. The services were
terminated without assigning any reason, and without
complying with the provisions of Section 25-F of the I. D.
Act. Admittedly, the second party was not given notice or
compensation. Compliance of Section 25 F is a mandatory
compliance. Having regard to such a long service in
capacity of a Peon, it cannot be said that the engagement
was only for one day, and every day service were
terminated. Section 2(oo) (bb) cannot allowed to be applied
in this case.
15.
The bank has produced recruitment criteria
document with Exh.C-11. Apart from the educational and
other qualification/ conditions, it appears that there is a
some procedure for making recruitment on permanent basis.
The second party was adrnittedly the daily wager. Had he
been permanent employee, there would not have been
occasion for him to raise a dispute. The first party is a
Nationalized Bank. The employment in the first party is
public employment. The second party has not been able
to produce any document to show that he was appointed
pursuant to the advertisement. or his appointment was
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1149
against a sanctioned post etc. There is no evidence of
availability of sanctioned vacant post. Though the
termination was illegal and unjustified, reinstatement with
continuity of service and back wages, as claimed, would
not be proper. The judgment in Umadevi’s case will also
be required to be kept in mind. Mr. Nevagi, the Learned
Counsel for the second party was therefore, right in
submitting that his client should be granted some
compensation. According to Mr. Nevgi, Rs. 3,00,000/-
would be proper compensation, as granted in BSNL case
relied upon by him. In BSNL, the service period was about
15 years. The compensation granted was Rs. 3,00,000/-.
16.
The Exh.U-12 A shows that the per day second party
was paid Rs. 222/- in September 2006. The Second party
was paid Rs. 209/- per day in October 2005. The terrnination
was in January 2007. Considering the periodical rise in
wages, it could be presumed that the wages paid in January
2007 could be around Rs. 250/- per day. Monthly wage
comes to Rs.7500/-. Non-compliance of Section 25 F of
I. D. Act renders the action of termination void ab-initio.
Ordinarily, the second party would have been entitled to
be reinstated with continuity of service, and at least some
back wages. The second party appears to be in business
of selling milk. The second party originally did not plead
about non-employment & efforts etc. It was later amended.
As I said, the reinstatement with consequential benefits is
not desirable in the present case. Having regard to the
approximate last drawn wages of Rs. 250/- per day, if the
back wages are calculated, it would be more than six lakhs.
Further, services of the second party can be presumed to
have continued till today, and further, the service period
since January 1992 will have to be taken into consideration
for the purpose of retrenchment compensation. Such
compensation for about 22 years along with one month’s
notice, would also be around Rs. 90,000/-. This is on the
assumption that the daily wage was continued to Rs. 250/-
per day. Further in all probabilities, the second party might
have kept himself engaged in some work of business and
earned some money. Having regard to the possibility of
the second party having kept himself engaged, and earned
something for all these years, and taking into consideration
the facts and circumstances of the case, the compensation
of Rs. 3 lakhs would be just and proper. This is a case,
where departure from the normal rule of reinstatement with
continuity of service and back wages, is required to be
done. Having considered every thing, I proceed to pass
the following award.
AWARD
The first party Bank of Baroda shall pay to the
second party Shri Babasaheb Erandole, compensation of
Rs. 3 lakhs on account of loss of employment/ service.
Date: 30-08-2014.
D. H. DESHMUKH, Presiding Officer
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New Delhi, the 2nd March, 2015
S.O. 449.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 15/2007)
of the Central Government Industrial Tribunal-cum-
Labour Court, Pune as shown in the Annexure, in the
Industrial Dispute between the management of Bank of
India and their workmen, received by the Central
Government on 02/02/2015.
[No. L-12011/145/2006-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE SHRI D. H. DESHMUKH,
INDUSTRIAL TRIBUNAL AT PUNE
Reference (IT) No. 15 of 2007
Between :
The Zonal Manager,
Bank of India,
1162/6, Shivajinagar,
University Road,
Pune - 411 005
...First Party
And
The Zonal Secretary,
Bank of India Workers’ Organisation,
185, Shaniwar Peth,
Pune - 411 030
...Second Party
ADVOCATES :
Shri H.D.Gokhale, Advocate for First Party
Shri R.P.Shaligram, Advocate for Second Party
AWARD
(Date : 01-08-2014
This is a reference made by Government of India,
Ministry of Labour, New Delhi, for adjudication of industrial
dispute between The Bank of India, Shivajinagar,
Pune(“the first party” for short) and Bank of India Workers’
Organisation, Shaniwar Peth, Pune (“the second party”
1150
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
for short). The demand referred to this Tribunal for
adjudication is as to whether the action of the management
of Bank of India, Pune in not regularising the services of
Shri Anand Marne w.e.f. 31-1-2002 is legal and justified ?
If not, to what relief the workman is entitled ?
2.
The union has submitted a Statement of Claim at
Exh.U-4, contending that Shri Anand Dnyaneshwar Marne
(the concerned workman) is the member of the second
party union. The first party bank is a Nationalized Bank,
having branches all over India, and has employed near
about 42000 employees. The concerned workman was
employed with the first party as a badli sub-staff w.e.f.
1-12-1998, and he had continuously worked upto 31-1-2002
at Laxmi Road Branch of the first party. His duty hours
were 9 am to 6 pm. He was lastly paid Rs.130/- per day.
Though the bank was paying the wages to the concerned
worker regularly, in order to deprive him of the benefits of
regularisation, a paper arrangement was made, whereby
the Branch Manager used to pay the wages in cash every
week on voucher, and the same used to be debited to the
P & L Miscellaneous charges as being amount reimbursed
to the manager concerned towards coolie charges. It is
contended that as per Shastri Award, Clause No.508, it
was obligatory on the first party to appoint the concerned
workman in the categories of permanent employee,
probationer or part-time, etc., but the concerned workman
was engaged as a badli sub-staff. The intention was
malafide, and there was discrimination. In the past, first
party had regularised the services of the badli employee
who had worked for 240 days. The services of the
concerned workmen were not regularised, which was illegal
and unjustified.
3.
The union has contended that during the
conciliation proceeding, the first party had admitted that
there were 11 vacancies of sub-staff, but only 7 were filled.
The concerned workman was doing the indoor-outdoor
work of subordinate staff, to serve drinking water, tea etc.
to the members of the staff as well as to customers and
visitors. He used to clean the office tables, sweep the
entire branch premises, lavatory, bathroom etc. He also
used to do movement of cash vouchers, cheques, registers
from one counter to another. He used to give instruments
for posting, checking, signing etc to different officials. He
used to bring important stationery such as cash payment
book, daily cash book from Stationery Department. The
duties performed by him, are mentioned in the statement
of claim. It is contended that continuous the concerned
workman as temporary was an unfair labour practice under
the Industrial Disputes Act. The services of the concerned
workman were discontinued on 31-1-2002, though there
was clear sanctioned vacancy. The termination was
without giving notice and without notice pay or
retrenchment compensation. In this way, the second party
has prayed for regularisation of the concerned workman,
and for giving all the benefits w.e.f. 1-12-1998. The second
party has also prayed for to grant any other relief in the
interest of justice.
4.
The first party has opposed the claim, denying the
adverse allegations, including employment. According to
the first party, there was no employer employee
relationship between the first party and the concerned
workman. There is no industrial dispute as contemplated
in law. The second party has no locus-standi to raise the
dispute. It is contended that the first party is a Nationalized
Bank. The service conditions of the employees are
governed by Banking Regulations Act. There are rules,
regulations and procedures for regularisation. The
concerned workman had not gone through the said
procedure. The concerned workman cannot make back
door entry in the bank, and thereby he cannot deprive
other candidates. The concerned workman was never
employed even as a casual or badli employee. The
appointment as well as alleged termination is denied.
According to the first party, the services of the concerned
workman were utilized by the manager of the Laxmi Road
Branch occasionally in his individual capacity as a self
employed person, and, on as and when required basis.
The concerned workman was paid by the concerned
manager on per day basis, and the same was not like salary
paid to the regular staff. The first party has denied that
the service period was three years and two months as
alleged. According to the first party, there cannot be
automatic absorption in service. There are rules laid down
even by the Reserve Bank, which are binding. Denying
the adverse allegations, the first party has prayed for
rejection of the claim.
5.
The issues and my findings thereon, are as follows :-
ISSUES
FINDINGS
1.
Whether Shri Anand Dnyaneshwar
Yes
Marne is entitled to be regularised
in services w.e.f. 31-1-2002 ?
2.
Whether the demand of the second
Yes
party of regularising the services of
Anand D. Marne, is legal and
justified ?
3.
What Award ?
As per final
award.
REASONS
6.
Only the second party has adduced oral as well as
the documentary evidence. I have gone through the
record, and have heard Mr. Shaligram and Mr. Gokhale,
the learned counsels for the parties.
The second party has examined the concerned
workman as well as the General Secretary of the union.
The concerned workman, in his affidavit, has stated every
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1151
thing that is pleaded. The affidavit indicates that the first
party is a Nationalized Bank having its branches all over
India. The second party union is functioning in the first
party since October 1967, and the concerned workman is
its member. There are about 42000 employees in the bank.
The concerned workman was working with the first party
as badli sub-staff since 1-12-1998 continuously till 31-1-
2002 at Laxmi Road Branch. His duty hours were 9.00 a.m.
to 6.00 a.m. His services were discontinued w.e.f. 31-1-
2002. His last drawn wages were Rs. 130/- per day. Though
the bank was paying wages regularly, in order to deprive
him of the benefits of regularisation, the bank made paper
arrangement. The Branch Manager used to pay the wages
in cash to him every week on the voucher, and the expenses
was debited to P & L Miscellaneous Charges Account
shown as reimbursed to the manager towards the coolie
charges. The workman had worked uninterruptedly and
continuously for three years & two months. The workman
stated about Clause 508 of the Shastri Award. He had
worked for more than 240 days. He also stated that in the
conciliation proceedings of 11-7-2006, the first party bank
had admitted that actual working sub-staff were seven as
against the eleven vacancies. The concerned workman
stated about the nature of his duties which include indoor
and outdoor duties, serving water, sweeping the entire
branch premises, cleaning lavatories, movement of cash
vouchers, cheques, registers etc from one counter to
another counter, giving instrument for posting, checking,
signing etc. to different officials, bringing important
stationery from the Stationery Department etc. Duties
which are pleaded in the statement of claim are stated in
the affidavit. The concerned workman stated about the
notice of production of documents, and failure of the bank
to produce the documents. He has stated about the
documents Exh.U-6. Further that his services were
terminated without any notice, and without paying any
compensation, and thereby committing breach of Section
25 F. The concerned workman deposed as to the
documents produced.
In cross-examination, he admits that his father was
employed with the bank as a Peon, and he died while in
service. His mother gets pension. The workman had
applied for appointment on compassionate ground, but
that application was disallowed. He had requested the
bank to provide him the work as and when the same
available. He denies that the bank used to call him by
telephone whenever the work was available. He was not
required to sign the muster roll of the bank. The vouchers
do not show payment for more than a month. The workman
had filed Writ Petition in 2001, but it was disposed of etc.
7.
The second witness examined by the union is Shri
Joshi, the Zonal Secretary. Joshi in his affidavit also stated
every thing that is stated by the concerned workman. In
cross-examination, Joshi has clarified that the union did
not take steps immediately because the union was waiting
for the response from the bank. Joshi does not have any
other document to show completion of more than 240 days’
service of the concerned workman. Joshi denies the
suggestion that he did not take up the dispute for a long
time because he knew that the concerned workman had
not worked for 240 days.
8.
By notice Exh.U-18, the second party had called for
a number of documents from the first party bank. The
documents included order of the High Court, demand
reference, pursis filed in Reference 2/63 of 1992, settlement,
vouchers, minutes of the conciliation proceeding, etc.,
and order was passed to produce the available documents.
The Asstt. General Manager of the bank filed affidavit at
Exh.C-12 stating that the documents are very old, and are
not preserved. The second party has produced the copy
of the award of C.G.I.T., Mumbai in Reference No.41 of
1990 between the first party bank and some other workman.
The said workman appeares to have worked as badli
employee, and the award was made to regularise the
services. The second party has produced certain
documents with Exh.U-6. The witness has deposed as to
those documents. In-fact, the document at Sr.No.1, 8, 9
and 11 to 17 are admitted by the first party. The first
document is a copy of order of Hon’ble High Court, which
indicates that the concerned workman had initially filed a
Writ Petition No.559 of 2002 before the High Court, claiming
absorption in permanent service. Thereafter, on 25-8-2005
the writ petition was disposed of, with liberty to the
concerned workman to take appropriate remedial measures
in relation to his termination effected during the pendency
of the petition. Before that, Hon’ble High Court had passed
an order on 29-1-2002, observing that the concerned
workman was working as a sub-staff with the first party
bank, and therefore, prayer for interim relief was rejected.
However, the concerned workman was given liberty to
approach the High Court as and when his service would
be terminated. After disposal of the writ petition, in August
2005, the union raised the demand of regularisation of the
services of the concerned workman. The other documents
include minutes of the conciliation proceeding. The
concerned workman deposed as to the said documents.
Then, there is a document dt.25-2-1988 about some
understanding with the federation of the union regarding
absorption/deployment of badli Sepoys. Then, there is a
Inter Office Memorandum dt.28-12-2001 given by the first
party bank. Head Office of the Bank called for information
about the number of casual sepoys from approved panel,
who had completed 240 days in a block of 12 months, and
number of casual safai karmachari not from approved panel,
who had completed 240 days. Then, there is appointment
letter dt.15-5-1998 given to Shri R. C. Gaikwad by the first
party bank. The appointment letter indicates that Gaikwad
was initially appointed as part time. Thereafter, there was
a settlement in the conciliation proceedings, and his
appointment was converted into full time Sweeper-cum-
1152
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Sepoy. The document makes it clear that on 9-6-1991
Gaikwad was taken in regular services. Then, there are
xerox copies of the documents indicating in the name of
some customers and the persons who worked, and there
is a name of Anand, which in all the probabilities is the
concerned workman. Then, there are certain documents
like inter office memo, memos/letters, indent, etc of the
first party bank. All these documents indicate that the
first party bank had availed of the services of the concerned
workman for official working in the bank from time to time.
The concerned workman was sent as a representative or
authorized person of the bank to collect stationery etc
from time to time. Then, there are few vouchers which
indicate that the amounts paid to the concerned workman
were shown as reimbursed to the concerned Manager.
Now, it is interesting to note that the first voucher
reimbursed the expenditure incurred by Shri J. D. Pradhan,
Chief Manager. There is another voucher about
reimbursement of the expenditure of Shri Agarwal for
getting extra work done from outside person. Then, there
is another voucher about reimbursement of expenditure
of Chief Manager Mr. Gore, for getting extra work done
from outside person. Then the voucher dt.19-7-2001 is
about the reimbursement of the expenses incurred by the
some other person. These vouchers indicate that
reimbursement was done not to a particular manager but
in the names of different persons who were officers or the
managers. The evidence shows that the work performed
by the concerned workman was the work of the bank, and
not the personal work of the concerned managers. The
method of payment by way of reimbursement can really
be said to be paper arrangement, as pleaded and stated in
the evidence by the concerned workman.
9.
Then, there are minutes of the conciliation
proceeding in case of the concerned workman. In that
minutes, the concerned workman had demanded the
documents, and the first party had, at that time i.e. on
12-7-2006 stated that there were no document available.
The first party also clarified at that time that there was
sanctioned strength of 11 sub-staff but actually 7 persons
were working. The second party has produced membership
receipts and the recruitment policy etc., which are at Exh.
U-23. The two receipts establish the fact that the concerned
workman was the member of the second party union. The
recruitment policy indicates that on 29-7-2013 the zonal
office of the first party had decided to fill up 40 vacancies
of Sepoys in Subordinate Staff Cadre. There is mention
about the age limit, and further that the minimum period of
240 days should have been completed till 7-5-2012. This
was for casual workers.
10.
By Exh.U-25, the second party had called for the
ledger and the monthly statements BR 39/40 showing
details of payment made to Marne during the period 1-12-
1998 to 31-1-2002. The first party has filed an affidavit
Exh.C-12, stating that the documents are relating to very
old period, and therefore, are not preserved. The second
party has filed copy of policy of first party as maintenance
and preservation of old records with Exh.U-29. It is an
admitted document, and therefore, marked Exh.U-29A. The
said document indicates that even according to the first
party, the documents shall not be considered for
destruction irrespective of their age where suits have been
filed/legal action is pending.
11.
Mr. Gokhale, the learned counsel for the first party
referred to Kerala Solvent Extractions Ltd. Vs. A.
Unnikrishnan & Anr., 1994 II LLJ Pg. 888 SC. I have gone
through the judgment.
12.
Having considered every thing I find very clearly
that the concerned workman had served with the bank,
and not any individual persons during 1998 to January
2002. The workman had produced the documents, which
were available with him. The workman had tried to call for
the documents from the Bank on two occasions. The first
party, however, has contended that the documents are
not preserved because they are old. The second party
had called for the documents pertaining to the services of
the concerned workman during conciliation proceedings,
way back in July 2006. At that time also, the bank had said
the same thing that the documents were not available.
The service period alleged is 1-12-1998 to 31-1-2002. The
concerned workman had filed the writ petition in the year
2002, or rather in the beginning of the year 2002, claiming
absorption in service, and the first party bank had appeared
in the said writ petition. There was an interim order passed
on 29-1-2002 by the High Court. The High Court matter
was pending since January 2002 till 2005, when the petition
was disposed of with liberty to take out appropriate
proceedings as remedial measure since services were
already terminated. In view of the pending litigation, firstly
before High Court, then before Conciliation Officer, then
before this Tribunal since 2007. The first party could not
and ought not to have destroyed the record. Their own
rules of preservation of the old record indicates that the
record is required to be preserved where suit or legal action
is pending.
13.
The concerned workman and the Union Secretary
have stated on oath regarding continuous service of 3
years and two months, and completion of 240 days etc.
The available documents are produced. The documents
in the custody of the first party are not forth coming. The
first party has not examined any witness. The entire
evidence of the second party is unshaken and totally
unrebutted. The documents produced indicate that there
is or there was at the relevant time, a policy or practice to
take in regular service badlis or casual employees, who
worked for 240 days or more. Even in the last year, there
was appointment on regular basis of casual workers who
had put into 240 days. The concerned workman may not
have signed muster roll, or might have been paid on
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1153
vouchers. The fact remains that he was paid lastly @
Rs.130/- per day, and he had performed the work of the
bank continuously from 1-12-1998 till 31-1-2002, when his
services were terminated without giving any notice, and
without payment of retrenchment compensation.
Termination was in violation of Section 25-F of Industrial
Disputes Act. The termination was also unjustified.
Initially, the Hon’ble High Court did not give any interim
relief because the concerned workman was already in
employment. The Hon’ble High Court had observed that
the concerned workman would be at liberty to approach
the High Court, as and when his services would be sought
to be terminated. Thereafter, the termination took place,
and the petition was disposed of, with liberty, as said
herein above.
14.
The concerned workman had applied for
appointment on compassionate ground, and that request
was not acceded to. His mother is getting pension from
the first party on account of death of father of the
concerned workman. All that is not relevant in so far as
the present claim is concerned. In my view, the dispute as
referred, includes the issue relating to termination also.
The concerned workman had worked for more than 240
days in the bank at Pune. He was continued as temporary
or badli, which is an unfair labour practice under I. D. Act.
Then the bank is an establishment where large number of
employees were employed. The Model Standing Orders
would be applicable. The Model Standing Orders entitle
the workman to permanency after 240 days. The concerned
workman was entitled to be appointed on regular basis, or
absorbed in permanent services. But instead, his services
were terminated illegally & unjustifiably. The concerned
workman was entitled to be absorbed in permanent service
of the bank w.e.f. 31-1-2002. The concerned workman had
not actually worked with the bank after 2002. The
concerned workman has not pleaded nor proved that he is
unemployed since 2002. There is no pleading or evidence
that the concerned workman had been unemployed despite
efforts. The first party is the public sector bank. Having
regard to all these aspects, I am not inclined to grant the
benefit of actual receipt of back wages, or other monetary
benefits for the past period. The concerned workman shall
be made permanent in any suitable post in the category of
sub-staff w.e.f. 31-1-2002. His wages and other service
conditions shall be fixed treating the appointment as
permanent appointment w.e.f. 31-1-2002. The concerned
workman shall not be entitled to arrears of wages for the
entire period from 31-1-2002 till today. The wages based
on the fixation considering the appointment of 31-3-2002,
shall be payable from today i.e. from 1-8-2014. For the
service purposes, the date of appointment shall be treated
as 31-1-2002. It is needless to state that in order to give
permanent appointment, the concerned workman shall
have to be reinstated from the date of appointment with
permanency w.e.f. 31-1-2002. Having considered every
thing, I conclude with the following award .
AWARD
The workman Shri Anand Dnyaneshwar Marne shall
be absorbed in services of the first party bank in a suitable
post equivalent to the category of sub-staff w.e.f. 31-1-
2002, and paid wages etc, as said herein above.
Date : 01-08-2014.
D. H. DESHMUKH, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 450-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 45@2013)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 02@03@2015 dks izkIr
gqvk FkkA
¹la- ,y&12012@34@2013&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 450.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 45/2013)
of the Central Government Industrial Tribunal-cum-
Labour Court, Nagpur as shown in the Annexure in the
Industrial Dispute between the management of State Bank
of India and their workmen, received by the Central
Government on 02/03/2015.
[No. L-12012/34/2013-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/45/2013
Date: 19.02.2015.
Party No.1 (a)
:
The Regional Manager,
State Bank of India,
Regional Office,
Station Road, Nagpur.
(b)
:
The Branch Manager,
State Bank of India,
Industrial Estate Branch,
Warora naka square,
Nagpur Road,
Chandrapur(M.S.)
Versus
Party No. 2
:
Mohan Vasantrao Waghade,
R/o Babupeth, Ward No. 2,
Post-babupeth,
Dist. Chandrapur.
1154
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
AWARD
(Dated: 19th February, 2015)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of State Bank of India and their workman,
Shri Mohan Waghade, for adjudication, as per letter No.
L-12012/34/2013-IR (B-I) dated 08.08.2013, with the
following schedule:-
“Whether the action of the management of State
Bank of India through regional Manager, Station
Road, Nagpur and the Branch manager, SBI,
Industrial Estate branch, Chandrapur in terminating
services and ignoring Shri Mohan Waghade for
absorption in services of Bank is legal and justified?
To what relief the workman is entitled?”
2.
On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Mohan
Vasantrao Waghade, (‘the workman” in short), filed the
statement of claim and the management of State Bank of
India (“Party No. 1” in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that on 07.12.1995, he was orally
appointed by the party No.1 as a daily wager at Industrial
Branch at Chandrapur and he was doing all the duties of a
messenger/peon and arranging records and stationary and
initially he was getting Rs.25/- per day, which was
subsequently enhanced to Rs.40/- per day and after
working for some days, artificial break was given and again
he was given work on 07.02.1996 and he worked till
10.03.1997 and completed more than 240 days of work and
acquired permanency as per Rules and regulations and
on10.03.1997, all of a sudden, he was terminated from
service by party No.1 without any reason and no notice or
letter of termination was given to him by party no.1 at the
time of termination of his services and he was also not
paid the retrenchment compensation and his termination
by party no.1 was without compliance of the mandatory
provisions of section 25-F of the Act.
The further case of the workman is that after his
termination, the services of five more employees were
terminated by the party No.1 and therefore, he along with
those five employees gave a notice to the party No.1
through their advocate on 17.04.1997 and party No.1 gave
its reply on 21.05.1997, falsely claiming that compensation
was given to him and termination of his service on
10.03.1997 was nothing but arbitrariness and the is not
sustainable in the eyes of law and the work which, he was
doing is perennial in nature and available with party no.1
and as he worked continuously from 07.12.1995 to
10.03.1997 and completed more than 240 days of work, he
was entitled to the status of protected employee and
therefore, party no.1 ought to have followed the provisions
of Chapter 31 of the regulations applicable to the
employees of the party No.1 and there was also violation
of the provisions of section 25-g of the Act by the party
No.1, as one Shri Rajesh Reddy , who was appointed in
October,1996 i.e. subsequent to his appointment was retain
by party No.1, while he was terminated from service.
It is further pleaded by the workman that the service
conditions of the employees of party no.1 are governed
by the provisions of Sastry Award and according to section
IV, Chapter XXV of the said Award, if retrenchment of
more than five employees is to be effected at a time, then
giving of individual notice of two months is mandatory
along with the statement of reason for such proposed
action, but party No.1 even though in all terminated six
employees including himself, individual notice of two
months along with reasons was not given by the party
no.1and his services were terminated orally and as his
termination was illegal, he is entitled for reinstatement in
service with continuity and full back wages.
3.
Party no.1, after denying all the adverse allegations
made in the statement of claim, in the written statement
has pleaded inter-alia that the workman was engaged
purely in casual/daily wages basis in casual vacancies,
intermittently, but without continuity in service, due to
administrative exigencies for doing sundry work, such as
cleaning the Bank premises and filling water etc. and such
engagement of the workman in casual vacancies was made
only during business hours, when the regular employees
were on leave and he had not worked for 240 days in any
calendar year or in the twelve calendar months preceding
the date of his disengagement and even in his own
admission, the workman worked for 215 days in the
preceding 12 months and he is not entitled to any relief.
It is further pleaded by the party No.1 that the
workman was orally appointed on 07.12.1995 at Chandrapur
Industrial Estate branch on daily wages basis for doing
sundry work and not for doing all the work of a messenger
or peon and he was discontinued from 07.02.1996 to
31.05.1996 and he was again employed w.e..f. 01.06.1996
and the engagement of the workman was made by the
branch Manager, who had/has no authority to appoint
any person in such category and such engagement was
illegal/irregular and impermissible under the Rules of the
Bank and such illegality cannot be perpetuated for
indefinite period and the workman cannot claim
permanency in service, as his engagement is void ab initio
and the workman has no enforceable right for
reinstatement, regularization or permanent appointment
and he is not entitled to any relief.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1155
4.
No rejoinder has been filed by the workman.
5.
To prove his case, the workman has examined himself
as a witness, besides placing reliance on the documentary
evidence.
No oral evidence has been adduced by the party
No.1.
6.
In his examination in chief on affidavit, the workman
has reiterated the facts mentioned in the statement of claim.
However, in his cross-examination, the workman has
admitted that he was engaged in the bank temporarily on
daily wages basis and he was engaged by the Bank as and
when required and he did not work for 240 days in the
preceding12 calendar months of 10.03.1997 or in any
calendar year. He has further admitted that he has not
produced any document to show that Shri Rajesh Reddy
was engaged by the Bank after his engagement and Rajesh
Reddy is not working in the Bank and he did not go
through the process of selection of sub staff as provided
in the Rules of the bank.
7.
At the time of argument, the learned advocates for
the parties reiterated the facts mentioned in the statement
of claim and written statement respectively.
In support of the submissions, the learned advocate
for the party no.1 placed reliance on the decisions reported
in AIR 2006-1806(secretary, State of Karnatak Vs.
Umadevi), AIR 1996 SC-1565(State of himachal Pradesh
Vs. Suresh kumar) and 2007 I CLR-48(Indian Drugs and
Pharma ceuticals Ltd. Vs. Workmen)
8.
The claim of the workman is that he was working
with the party no.1 from 07.12.1995 to 10.03.1997 and he
had completed 240 days of work and he was entitled for
regularization in service, but he was orally terminated from
services on 10.03.1997 without compliance of the
provisions of sections 25-F and 25-G of the Act.
The party no.1 has denied the claim of the workman
and has taken the plea that the workman did not complete
240 days of work in the preceding 12 months of 10.03.1997
or in any calendar year and as such, there was no question
of compliance of the provisions of sections 25-F and 25-G
of the Act.
9.
Before entering into the arena of merit of the case, in
view of the stands taken by the parties, I think it apposite
to mention about the principles enunciated by the Hon’ble
Apex court regarding the application of provisions of
section 25-B and 25-F of the Act. The Hon’ble Apex court,
in the decision reported in AIR 1966 SC-75 (Supra) have
held that:-
“Though section 25-F speaks of continuous service
for not less than one year under the employer, if the
workman has actually worked for 240 days during a
period of 12 calendar months both the conditions
are fulfilled. The definition of “Continuous Service”
need not be read into section 25-B. The fiction
converts service of 240 days in a period of twelve
calendar months into continuous service for one
complete year. The amended section 25-B only
consolidates the provisions of section 25(B) and
2(eee) in one place, adding some other matters. The
purport of the new provisions, however, is not
different. In fact, the amendment of section 25-F of
the principal Act by substituting in clause (b) the
words “for every completed year of continuous
service” has removed a discordance between the
unamended section 25 B and the unamended Cl. (b)
of section 25-F. No uninterrupted service is
necessary it the total service is 240 days in a period
of twelve calendar months either before the several
changes or after these. The only change in the Act
is that this service must be during a period of twelve
calendar months preceding the date with reference
to which calculation has to be made. The last
amendment has now removed a vagueness which
existed in the unamended section 25-B”.
10.
In the decision reported in AIR 1981 SC-1253 (Supra),
the Hon’ble Apex Court have held that,
“Industrial Disputes Act (14 of 1947). Section 25-B
(1) and (2)- Continuous service-Scope of sub-
sections (1) and (2) is different, (words and phrases-
Continuous Service)
Before a workman can complain of retrenchment
being not in consonance with Section 25-F, he has
to show that he has been in continuous service for
not less than one year under that employer, who has
retrenched him from service. Section 25-B as the
dictionary clause for the expression “continuous”.
Both in principle and are precedent it must be held
that section 25-B (2) comprehends a situation where
a workman to not in employment for a period of
12 calendar months, but has rendered for a period of
240 days within the period of 12 calendar months
commencing and counting backwards from the
relevant date, i.e. the date of retrenchment. If he
has, he would be deemed to be in continuous service
for a period of one year for the purpose of section
25-B and chapter V-A”.
11.
The Hon’ble Apex Court in the decision reported in
AIR 2003 SC-38 (Supra) has held that:
“Industrial Disputes Act (14 of 1947) S.25-F, 10-
Retrenchment compensation-Termination of services
without payment of –Dispute referred to Tribunal-
Case of workman/claimant that he had worked for
240 days in a year preceding his termination. Claim
denied by management-Onus lies upon claimant to
show that he had in fact worked for 240 days in a
year-In absence of proof of receipt of salary workman
is not sufficient evidence to prove that he had
1156
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
worked for 240 days in a year preceding his
termination.”
12.
In the judgment reported in (2006) 1 SCC-106(supra),
the Hon’ble Apex Court have held that :-
“Labour Law-Industrial disputes Act, 1947-Ss. 25-F,
25-B, 11 and 10-Requirement of 240 days’ continuous
service-Onus to prove-Evidence to be led-
Applicability of Evidence Act, 1872-Held burden of
proof lies on workman.-It is for the workman to
adduce cogent evidence, both oral and
documentary-Mere affidavits or self serving
statements made by the workman will not suffice-
Evidence Act not applicable to proceedings under
section 10 I.D.Act.”
13.
So, it is clear from the principles enunciated by the
Hon’ble Apex Court in the decisions mentioned above
that for applicability of section 25-F of the Act, it is
necessary for the workman by leading cogent evidence,
both oral and documentary to prove that in fact he had
worked for 240 days in the preceding 12 calendar months
commencing and counting backwards from the relevant
date and the burden of such proof is upon the workman.
So, keeping in view the settled principles enunciated by
the Hon’ble Apex Court, now, the present case at hand is
to be considered.
14.
In support of his claim, except his own evidence on
affidavit, the workman has filed the documents, Exts W-IV
and W-V. Ext. W-IV shows that the workman had worked
for 215 days in the preceding 12 calendar months of the
date of his termination i.e. 10.03.1997. Moreover, the
workman himself has admitted that he did not work for 240
days in the preceding 12 calendar months of 10.03.1997.
As the workman has failed to prove that in fact he had
worked for 240 days in the preceding 12 calendar months
of 10.03.1997, the provisions of section 25-F of the Act are
not applicable to his case.
Though, the workman has mentioned that there was
violation of the provisions of section 25-G of the Act, he
has not adduced any evidence to show that Shri Rajesh
Reddy was engaged by party No.1 on daily wages for
working in the branch after his engagement and that Shri
Reddy was retain in the service, even though he was
terminated from service. So, it cannot be said that there
was violation of the provisions of section 25-G of the Act.
Hence, it is ordered:-
ORDER
The action of the management of State Bank of India
through Regional Manager, Station Road, Nagpur and the
Branch manager, SBI, Industrial Estate branch, Chandrapur
in terminating services and ignoring Shri Mohan Waghade
for absorption in services of Bank is legal and justified.The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 451-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 100@2000)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 02@03@2015 dks izkIr
gqvk FkkA
¹la- ,y&12012@3@2000&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 451.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 100/
2000) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur as shown in the Annexure in the
Industrial Dispute between the management of State Bank
of India and their workmen, received by the Central
Government on 02/03/2015.
[No. L-12012/3/2000-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/100/2000
Shri Gajraj Singh S/o Ratanlal,
R/o 22, Chobdanpura,
Bhopal
...Workman
Versus
Chief General Manager,
State Bank of India,
Local Head Office,
Hoshangabad Road,
Bhopal
...Management
AWARD
Passed on this 6th day of February, 2015
1.
As per letter dated 31-5-00 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-12012/
3/2000/IR(B-I). The dispute under reference relates to:
“Whether the action of the management of State
Bank of India in terminating the services of Shri Gajraj
Singh w.e.f. 6-1-96 is justified? If not, to what relief
the workman is entitled for?”
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1157
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 3/1 to 3/3. Case of workman is after following
selection process, he was appointed as messenger against
vacant post on 2-6-81. His service record was good. That
IInd party was giving intermittent break in work. On
6-4-96, his services were orally discontinued without
assigning any reasons. He was not served with any
chargesheet. No enquiry was conducted against him.
Workman had completed more than 240 days continuous
service during the intermittent years of his services. He
was not paid retrenchment compensation. His services
are terminated in violation of rules. Workman had submitted
repeated representations. Applications requesting IInd
party to reinstate in service were not considered. Workman
is unemployed and facing hardships.
3.
Workman further submits that after completion of
six months service, he acquired status of regular employee
as messenger. Instead of regularizing his services, he was
illegally terminated. Workman raised dispute and prays to
quash order of his termination. He also prays for his
reinstatement with back wages.
4.
IInd party submitted Written Statement in the matter
denying claim of the workman. IINd party submits that
workman was working from 2-6-81 on temporary basis. He
had worked for 41 days in 1981, 65 days in 1995, 12 days in
1996, total working days of workman- 118 days. Workman
was not continuously working. Bank had scheme for
regularizing temporary labours working during the period
1-7-75 to 14-8-91. Workman had submitted application. He
was all working only 41 days during 1975 to 14-8-91, 77
days after the cut off date. He was not found entitled for
regularization. It is reiterated that workman had not
completed 240 days continuous service during any of the
year. Workman was not engaged after completing selection
process. Workman was not appointed as regular employee.
There is no question of terminating his services. It is
submitted that services of workman ended at end of the
day. He was at liberty to working at any other place.
Workman was not entitled to work as workman has not
completed 240 days service during any of the year. There
was no question of paying retrenchment compensation or
compliance of Section 25-F of ID Act. Workman was not
found entitled for regularization as per the scheme executed
by Bank. On all such contentions, IInd party submits that
claim of workman cannot be allowed.
5.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i) Whether the action of the manage-
In Negative
ment of State Bank of India in termi-
nating the services of Shri Gajraj
Singh w.e.f. 6-1-96 is justified?
(ii) If not, what relief the workman
As per final
is entitled to?”
orders.
REASONS
6.
The terms of reference pertains to legality of
termination of services of workman from 6-1-96. Denial of
regularization of service of Ist party workman is not
referred. Workman filed affidavit of his evidence. Workman
has stated that from 2-6-81, he was working on vacant
post of messenger. He was continuously working. He relies
certificate of experience. To avoid regularization of
workman, break was given to him. That in the year 1989 as
per settlement with Union for regularization of daily wage
employees he was called for interview. His name was
appearing at Sl. No. 782 of the select list but workman was
not absorbed. Workman further says from 24-12-93, he
was engaged on daily wages. He was working till 6-1-96.
Thereafter he was discontinued without notice. He was
not paid retrenchment compensation. In his cross-
examination, workman says his name was not sponsored
through Employment Exchange. Again says in 1981, his
name was sent through Employment Exchange to the Bank.
He did not recollect registration No. in Employment office.
Employment Exchange card is not produced by him. He
was called for interview. He was interviewed in 1989.
Thereafter he was working in the Bank in 1994-95, 96. He
was unable to tell his working days during each of the
year. He requested letter from Bank prior to 1994. Date of
his appointment could not be told by workman. He was
unable to tell working days of workman in 1982.
7.
Management’s witness Shri P.Sabu filed affidavit of
his evidence supporting full contentions of IInd party in
written Statement. That in 1981, workman worked for 81
days in 95- 65 days, 96- 12 days. Workman was engaged
on daily wages as per exigencies. As per the agreement
between Union and management, workman was called for
interview but he was not found suitable for absorption as
he had worked only for 44 days during 1975 to August 91.
In his cross-examination, witness of management denies
that inn 1981, workman was appointed. Appointment letter
was not issued to workman. The witness of management
further says w.r.t. facts stated in Para-7 of his affidavit, he
could produce documents i.e. the documents relating to
working days of workman during 1975 to August 1991 and
94 to 96. Those documents are not produced. Ist party
workman has submitted application for production of
documents about attendance register during the period
2-6-81 to 7-7-81 and 93 to 96. Documents are not produced.
Documents relating to the selection and interview are also
not produced. Workman has stated in his affidavit his
name was appearing at Sl.No.782. workman has not
produced any documents regarding the same. Term of
reference doesnot include denial of regularization to the
workman. The terms of reference is restricted to legality of
termination of workman. Evidence of workman is not
1158
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
corroborated by evidence of any co-employee. Any
appointment letter is not produced. Documents Exhibit
W-1 produced by workman is certificate of disability issued
on 9-8-10 by Medical Board. Exhibit W-2 is certificate of
experience, the working period is shown 2-6-81 to 17-7-81.
Exhibit W-3 is letter dated 24-12-93 by Assistant General
Manager to contact him within 5 days. The uncorroborated
evidence of workman cannot be accepted that he had
completed 240 days continuous service during any of the
year from 1981 to 1996. Therefore workman cannot be
allowed protection of Section 25-F of ID Act. When
workman has not completed 240 days continuous service
during any of the year, the termination of his services
cannot be said illegal for violation of Section 25-F. Learned
counsel for workman Miss R.Nair relies on ratio held in
“Case of Director, Fisheries Terminal Division versus
Bhikubhai Meghajibhai Chavda reported in AIR-2010
SC-1236. Their Lordship dealing with burden of
proof about completion of 240 days continuous
service held workman hired on daily wage basis, he
would have difficulty in having access to all official
documents, muster rolls etc. Workman deposed that
he worked for 240 days, burden shifts to employer
to prove that he did not complete 240 days of service
in requisite period to constitute continuous service.”
8.
Management has not produced documents despite
the management’s witness in his cross-examination says
that the documents can be produced. After workman was
interviewed, he was engaged on daily wages during the
year 1994-96. Workman cannot have access to the muster
roll or documents about payments of wages to him.
Management has with held those documents therefore
the evidence of workman cannot be disbelieved that he
completed 240 days service after he was engaged during
94 to 96. Workman was not paid retrenchment
compensation. No notice was issued to him. The
termination of services of workman is in violation of Section
25-F of ID Act. For above reasons, I record my finding in
Point No.1 in Negative.
9.
Point No. 2- Workman was initially engaged for 41
days in 1981. He was called for interview in 1989. Workman
was engaged on daily wages during 94 to 96. Considering
short spam of working of workman for about 2 years,
workman cannot be allowed reinstatement with back
wages. In my considered view, compensation Rs. 50,000/-
would be appropriate. Accordingly I record my finding in
Point No.2.
10.
In the result, award is passed as under:-
(1)
The action of the management of State Bank of India
in terminating the services of Shri Gajraj Singh w.e.f.
6-1-96 is not proper.
(2)
IInd party is directed to pay compensation Rs.50,000/-
within 30 days from the date of publication of award.
In case of default, amount shall carry 9 % interest
per annum from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 452-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ
bankSj ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 104@2003)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 02@03@2015 dks izkIr
gqvk FkkA
¹la- ,y&12012@18@2003&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 452.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 104/
2003) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur as shown in the Annexure in the
Industrial Dispute between the management of State Bank
of Indore and their workmen, received by the Central
Government on 02/03/2015.
[No. L-12012/18/2003-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/104/03
Shri Vishwas Kumar Sharma,
R-589, Mahalakshmi Nagar, Ring Road,
Near Bombay Hospital,
Indore (MP)
...Workman
Versus
General Manager (Operations),
State Bank of Indore,
Head Office, 5, Yeshwant Niwas Road,
Indore
...Management
AWARD
Passed on this 30th day of January, 2015
1.
As per letter dated 30-5-03 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-12012/
18/2003-IR(B-I). The dispute under reference relates to :
“ Whether the action of the management of Asstt.
General Manager-I, State Bank of Indore, Indore in
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1159
dismissing the services of Shri Vishwas Kumar
Sharma w.e.f. April 99 is justified? If not, what relief
the workman is entitled for?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at page 5 to 15. Case of Ist party is that he was working as
Audit Assistant in the IInd party Bank. Chargesheet was
issued to him for the allegation that he misbehaved with
customer Mohd Yunus Khan. On 15-10-97, he misbehaved
with Head Cashier Mrs. Swarupa Rani asking objectionable
questions to her. That he submitted a forged petrol bill of
Rs. 120/- to Branch Manager. That he denied charges
against him. He was falsely implicated with ulterior motive.
DE was conducted against him. Statements of complainant
Mohd Yunus and Smt. Swarupa Rani had not identified
his voice as per her cross-examination. The incident was
not reported to police though offence was cognizable.
The copies of statements of both complainants are relied.
That Mohd Yunus had dispute with workman w.r.t. some
money matters. It is submitted that enquiry was not
properly conducted. Witnesses Mahesh, Ram Krishna,
Giri, Prem Kumar, Smt. Saraswati and Sisodia were not
examined in Enquiry proceedings. Enquiry is vitiated. That
Enquiry Officer found Sl.No.3 not proved only charge
No.1,2 were proved. Workman submits that enquiry was
conducted in short manner. Enquiry is vitiated. The
findings of Enquiry Officer are perverse. The punishment
of dismissal is illegal. Appeal preferred by workman was
mechanically disposed without offering him hearing. That
Enquiry Officer was witness to the incident. He should
not have been appointed as Enquiry Officer. It resulted in
miscarriage of justice, workman prays for reinstatement
with back wages.
3.
IInd party filed Written Statement at Page 83/1 to 83/
9. Claim of workman is opposed. IIind party submits that
workman was appointed in clerical cadre. In 96-97, he was
posted as Audit Assistant. During course of audit of
Sanyogitaganj obranch, Indore and Hyderabad branch,
workman had committed alleged misconduct abusing the
customer misbehaving with head cashier Swarupa Rani
and produced forged bill. Charge sheet was issued to
workman for misconduct under para-19.5.C of Bipartite
settlement of 1966. Workman submitted reply on 4-12-97
was not found satisfactory. Enquiry Officer Shri
S.R.Bhardwaj was appointed. Management Representative
was appointed to Shri R.S.Pareek. Enquiry was conducted
giving opportunity of defence to workman. workman was
provided Defence representative. Enquiry Officer
submitted his report after showcause notice. The
punishment of dismissal from service was imposed on
workman. punishment is proper.
4.
IInd party further submits that workman had claimed
that he belongs to SC- Nagarchi caste but his claim of
caste was found false after enquiry by District Magistrate.
Workman belong to OBC. On such ground, IInd party
submits that reference be answered in its favour.
5.
Ist party workman submitted rejoinder at Page 9/1 to
9/5 reiterating his contentions in statement of claim.
6.
As per order dated 14-9-2010, my predecessor found
enquiry conducted against workman is proper and legal.
Considering order on preliminary issue and pleadings
between parties, the points which arise for my
consideration and determination are as under. My findings
are recorded against each of them for the reasons as
below:-
(i) Whether the misconduct alleged
In Affirmative
against workman is proved from
evidence in Enquiry proceedings?
(ii) Whether the punishment of dismissal
In Negative
imposed against workman is proper
and legal?
(ii) If not, what relief the workman is
As per final
entitled to?”
order.
REASONS
7.
Enquiry conducted against workman is found legal
and proper. Question remains as to whether misconduct
alleged are proved from evidence in Enquiry Proceedings?
For deciding above questions, evidence in Enquiry
Proceedings needs to be considered. During course of
argument, learned counsel for IInd party Shri Rajnish Gupta
pointed out my attention to charge sheet issued to workman
related to abuses given by workman to Mohd. Yunus Khan
and misconduct of indecent behavior with Mrs Swarupa
Rani, Head Cashier. Enquiry Officer had held Charge No.3
related to false bill is not proved. The statement of
management’s witness Yunus Khan at Page 23 to 31 shows
that Yunus Khan has supported the management that on
10-10-97 around 1.20 PM, when he come to branch for
enquiry of his accounts, he was called by Shri H.C.Kabia
in his cabin. Workman had come and asked why witness
was sitting in chair, he should be driven out. Workman
has abused in name of his mother, sister in indecent
language. Workman was crying the witness should be
driven out. He also assaulted him holding belt in his hand.
Workman while disorderly behaving was also pulling him.
when Bank security guard came there, workman holding
his gun was asking him , said witness be driven out
otherwise he would kill him by firing the gun. The evidence
of management’s witness is not shattered in his cross-
examination. Evidence in cross-examination of
management’s witness shows that workman had strained
relations with him. workman was having strained relations
with several neighbours etc.
8.
At the time of argument, workman in person
submitted that evidence of Ist party complainant is silent
about abuses. No doubt the words uttered by workman
1160
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
abusing management witness are not clearly stated but
his evidence is clear about abusing the management’s
witness and repeatedly asking he should be driven out of
the cabin. Witness of management Yusuf Khan was a
customer visited the Bank for enquiry of his accounts.
Management’s witness Swarupa Rani in her statement at
Page 33 to 35 says that the report Exhibit 7/3 bears her
signature. She had given her statement. That the evidence
of Swarupa Rani shows that on 17-10-97, she had given
said statement. Workman had called her on telephone
asking her whether she recognized her voice. He called
him to the place near Santosh Theatre for talks with her.
Workman had also told her that she suffered loss in her
pay. She would manage restoration of her pay. However in
her cross-examination, Swarupa Rani says she could not
recognize voice of Vishwas Sharma. Her evidence that
workman had told her to restore loss of pay is not settled
in her cross-examination. Workman had also gone to her
place. He evidence of those complainants is also
supported by other witnesses. The findings of Enquiry
Officer w.r.t. Charge No.1,2 are supported by evidence.
The legal position is settled that the findings of Enquiry
Officer cannot be interfered re-appreciating evidence as
Appellate Authority therefore I donot find substance in
argument advanced by workman. For the reasons
discussed above, I record my finding in Point No.1 in
Affirmative.
9.
Point No. 2- The punishment of dismissal imposed
on workman for charge No.1, 2. Evidence of management’s
witnesses shows that complainant Yusuf Khan had
quarrels with him. He was residing in vicinity of his house.
Workman was asking that Yusuf Khan should be driven
out of the cabin. He also behaved disorderly and threatened
to kill him. so far as evidence of Mrs. Swarupa Rani, Head
Cashier is on lines that workman had talked with her. She
was asked to come to the place near Santosh Theatre.
Evidence of Smt. Swarupa Rani doesnot clearly state
indecent words used by the workman. workman had
offered to restore her loss of pay. It cannot be said indecent.
Proved charge No.1,2 against Ist party doesnot indicate
any serious act committed by workman causing any loss
to the Bank. Certainly misbehaving with the customer of
Bank and while working as Auditor’s Assistant,
unreasonable talks with head Cashier are acts of
misconduct. Yusuf Khan reported incident to police, its
outcome is not known. The evidence on record is not
clear whether Mrs Swarupa Rani had submitted report to
police. If all those circumstances are carefully considered,
the punishment of dismissal from service which results in
Civil Death would not be proportionate to the proved
charges. Workman was working as Assistant. As per
Written Statement of the IInd party, he joined service of
Bank in 1984. He was dismissed from service on 27-3-95.
Workman had completed service of about 15 years. While
imposing punishment of dismissal, the length of service
was not taken into consideration. In my considered view,
if circumstances disclosed from evidence discussed above
are considered, the punishment of dismissal imposed
against workman is excessive. The circumstances
deserved that punishment of dismissal needs to be
converted to compulsory retirement so that workman and
dependent of his family are not deprived retiral benefits.
Accordingly I record my finding in Point No.3.
10.
In the result, award is passed as under:-
(1)
The action of the management of Asstt. General
Manager-I, State Bank of Indore, Indore in dismissing
the services of Shri Vishwas Kumar Sharma w.e.f.
April 99 is not legal and justified.
(2)
Order of dismissal of Ist party workman is modified
to compulsory retirement.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 453-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 188@96)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 02@03@2015 dks izkIr
gqvk FkkA
¹la- ,y&12012@110@95&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 453.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 188/
96) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur as shown in the Annexure in the
Industrial Dispute between the management of State Bank
of India and their workmen, received by the Central
Government on 02/03/2015.
[No. L-12012/110/95-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/188/96
Shri Ravi Kumar Fekkar,
Naya Para Durga Chowk,
Baloda Bazar,
Distt. Raipur (MP)
...Workman
Versus
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1161
Assistant General Manager,
State Bank of India,
Region-I, Shankar Nagar,
Raipur (MP)
...Management
AWARD
Passed on this 27th day of January, 2015
1.
As per letter dated 1-10-96 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No. L-
12012/110/95-IR(B-I). The dispute under reference relates
to:
“Whether the action of the management of State
Bank of India in relation to their Balodabazar branch
in terminating the services of Shri Ravi Kumar Fekkar,
Messenger is justified? If not, to what relief the
workman concerned is entitled to?”
2.
After receiving reference, notices were issued to
the parties. Workman filed statement of claim at Page 8/1
to 8/4. Case of workman is that he was appointed in Bank
at Balodabazar branch as daily wage casual worker from
87 to 94. He was continuously working to the satisfaction
of the management till 2-9-94. Sometimes in 1988 and ‘1993,
he was discontinued for few days. He was taken back
again. He appeared before interview. He claimed ignorance
of the result of interview/ test. He not received any offer
letter by management but he was continued in service.
That management refused him employment from 3-9-94.
His services were orally terminated without assigning
reasons. That one Rajesh Sahu was appointed after
termination of his service. He was working till date. The
services of workman were terminated without notice. His
request for reinstatement was not considered by the
authorities. Workman reiterated that he completed
continuous service more than 240 days during each of the
year. His services were terminated by IInd party without
notice. He was not paid retrenchment compensation. On
such ground, workman prays for his reinstatement with
consequential benefits.
3.
IInd party filed Written Statement at Page 10/1 to 10/
6 opposing relief claimed by workman. preliminary objection
is raised that workman was engaged in Balodabazar Branch
in temporary capacity as badly messenger/ watchman for
75 days as stop gap arrangement. That agreement was
entered between management and SBI Staff Federation on
17-11-87. Applications were invited. Workman was called
for interview but he could not be appointed against
permanent post as his working days were less than other
candidates. It is denied that workman was continuously
working more than 240 days during each of the year. It is
reiterated that engagement of workman on daily wages
came to end every day. His discontinuation is covered
under Section 2(oo)(bb) of ID Act. Violation of Section 25-F,
G, H is denied. IInd party prays that reference be answered
in its favour.
4.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i) Whether the action of the manage-
In Negative
ment of State Bank of India in relation
to their Balodabazar branch in
terminating the services of Shri Ravi
Kumar Fekkar, Messenger is justified?
(ii) If not, what relief the workman is
As per final
entitled to?”
order.
REASONS
5.
Workman is challenging termination of service for
violation of Section 25-F, G, H of ID Act. IInd party
management denied all his material contentions. He
submitted that workman not completed 240 days
continuous service.
6.
Workman filed affidavit covering his contentions in
statement of claim that he completed 240 days service
during each year 87 to 94 that sometimes in 1998 and 1993,
his services were discontinued for some days. He appeared
for interview for permanent absorption in Bank service
but he was not knowing its result. Workman alleged
violation of Section 25-F, G. H of ID Act. He also stated
that after termination of his service, Rajesh Kumar Sahu
was appointed. He was working till date. In his cross-
examination, workman says appointment letter was not
given to him. He received interview letter. He admits that
he had worked for 42 days and 75 days as messenger. He
was unable to tell how many days Jhalaram was working
after termination of his service. He claims ignorance about
qualifications of Jhalaram. W.r.t. Rajesh Kumar Sahu also,
he claims ignorance about working period.
7.
Management’s witness Shri Tripatikar, S/o Late
Brinda Bankar in his affidavit of evidence supported
contentions of management that workman worked for
75 days from Jan 87 to Dec-87. Workman had not completed
240 days continuous service. Workman was interviewed
as per Bipartite Settlement. Considering his working days
were less than other candidates, he was not given
permanent employment. The evidence on record clearly
shows that workman was engaged as casual labour. There
is no dispute that workman worked for 75 days in 1987.
Management’s witness in his cross-examination says that
his affidavit of evidence is not based on personal
information. Any documents are not produced about daily
payment of wages. He was unable to tell how much wages
were paid to workman every month. Bank has no
documents about workman. After scrutiny of payment
vouchers, it is found that workman worked for 75 days in
1987. He had seen those vouchers in 2007. He claims
1162
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ignorance about engagement of workman on contract
basis. That he had seen payment vouchers for 1987. He
admits that workman was working in Bank from 1987 to
1994. He claims ignorance about reply filed before ALC.
The witness of management denied documents referred to
him. He further claims ignorance about the documents
relating to interview of workman. He claims ignorance
whether workman was selected after interview. He claims
ignorance about vacancy position in bank. The witness
of management was unable to tell whether workman
completed 240 days continuous service during 1990 to
1994. If evidence and witness of management is
appreciated, the management’s witness has no knowledge
about workman completed 240 days continuous service
of workman. The evidence and cross-examination of
workman shows that he was engaged on daily wages,
appointment letter was not given to him. Workman was
called for interview as per settlement dated 17-11-87 but
workman was not knowing result. The documents in that
regard are not produced. Workman submitted application
for production of documents. Document were not
produced. Order was not passed on the application but it
clearly reveals that documents were not produced by
management, documents are withheld. The workman was
not paid retrenchment compensation was paid, services
were illegally terminated. The evidence on record shows
that despite workman completed 240 days continuous
service, his services were terminated in violation of Section
25-F of ID Act. For above reasons, I record my finding in
Point No.1 in Negative.
8.
Point No.2- As per the evidence on record, workman
was working with IInd party form 1987 to 1994 for about
7 years. His services are terminated in violation of Section
25-F as workman was engaged without following
recruitment process, in my considered view, claim for
reinstatement with back wages cannot be allowed.
Compensation Rs. 1,50,000/- would be appropriate.
Accordingly I record my finding in Point No.2.
9.
In the result, award is passed as under:-
(1)
The action of the management of State Bank of India
in relation to their Balodabazar branch in terminating
the services of Shri Ravi Kumar Fekkar, Messenger
is not proper.
(2)
IInd party is directed to pay compensation
Rs. 1,50,000/- to the workman.
Amount as per above order shall be paid to workman
within 30 days from the date of notification of award. In
case of default, amount shall carry 9 % interest per annum
from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 454-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 192@2000)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 02@03@2015 dks izkIr
gqvk FkkA
¹la- ,y&12012@203@2000&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 454.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 192/
2000) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur as shown in the Annexure in the
Industrial Dispute between the management of State Bank
of India and their workmen, received by the Central
Government on 02/03/2015.
[No. L-12012/203/2000-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/192/2000
Shri Rajendra Ku. Raikwar,
C/o Shri H.P. Khajuria,
Asstt. General Secretary,
Akhil Bhartiya Adhinasth Bank Karmchari Sangh,
Central Office, Huzrat Pul
Opp Ashoka Palace, Lashkar,
Gwalior (MP)
...Workman
Versus
Dy. General Manager,
State Bank of India,
Divisional Office,
Jayenderganj,
Gwalior
...Management
AWARD
Passed on this 27th day of January, 2015
1.
As per letter dated 16-24/10/00 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section 10 of I.D. Act, 1947 as per Notification No. L-12012/
203/2000/IR(B-I). The dispute under reference relates to:
“ Whether the action of the Dy. General Manager,
State Bank of India, Zonal Office, Jyandraganj,
Gwalior (MP) in terminating the services of
Shri Rajendra Kumar Raikwar S/o Shri Tulsidas
Raikwar w.e.f. 4-11-95 is legal and justified? If not,
what relief the workman is entitled?”
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1163
2.
After receiving reference, notices were issued to
the parties. Workman submitted statement of claim at Page
4/1 to 4/4. Case of workman is that he was initially
appointed as messenger from 1-11-84. He was
continuously working till 4-11-95. He had completed more
than 240 days continuous service during each of the year.
His services were terminated without notice. Retrenchment
compensation was not paid to him. His services are
terminated in violation of Section 25-F. Provisions of
Section 25-F, G, H of ID Act and Rule 77,78 were not
followed. On such ground, workman prays for
reinstatement with back wages.
3.
IInd party filed Written Statement at Page 12/1 to 12/
9. Case of IInd party is that Ist party workman was engaged
as temporary messenger at Tikamgarh branch. During 1994-
95, workman had completed 544 days. It is also contented
that workman was engaged on contract basis as per
exigencies. The dispute raised by workman is referred by
Central Govt. It is submitted that workman had worked for
87 days in 1984. Workman was engaged on daily wages.
He not completed 240 days continuous service. His
services came to end at end of day. His dis-engagement is
covered under Section 2(oo)(bb) of the Act. The Bank
management had entered in agreement with Federation of
employees. As per agreement dated 17-11-87, 16-7-88,
28-10-88, 9-1-91 with the Staff Federation. The employees
discontinued after 1-7-75 to 31-7-88 were called for
interview. Panel of selected candidate was prepared by
the Bank. The previous temporary employees completing
prescribed period of service were considered. The working
days of workman were less than other candidates. He
could not be absorbed in that service. It is reiterated that
workman completed 87 days in 1984. He was called for
interview as per Bipartite Settlement. He was found not
eligible for permanent employment. Workman had not
completed 240 days continuous service required under
Section 25-F of ID Act. Termination of service is not
violative of Section 25-F, G, H of ID Act. On such ground,
IInd party prays that reference be answered in its favour.
4.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i) Whether the action of the Dy. General
In Negative
Manager, State Bank of India, Zonal
Office, Jyandraganj, Gwalior (MP) in
terminating the services of Shri
Rajendra Kumar Raikwar S/o Shri
Tulsidas Raikwar w.e.f. 4-11-95 is
legal and justified?
(ii) If not, what relief the workman is
As per final
entitled to?”
order.
REASONS
5.
Workman is challenging termination of his service
for violation of Section 25-F, G, H of ID Act. Management
denied material contentions of workman. Affidavit of
evidence of workman covers material contentions in
statement o claim that he was engaged as messenger from
1-11-84. He was continuously working till 4-11-95. His
services were terminated without notice. Retrenchment
compensation was not paid to him. He completed 240 days
continuous service during each of the year. His services
are terminated illegally. In his cross-examination, workman
says he was orally engaged in the Bank. The post was not
advertised by the Bank. He received information of
vacancies in the Bank. Then he approached Manager
Shri Sadana. He was orally engaged. In his cross-
examination, workman admits that he was interviewed
orally. Appointment letter was not given to him. he
continuously worked for 11 ½ years. He produced
documents about continuously working with the Bank.
He further says that copies of said documents are not
produced. He received education upto 8th standard.
6.
Management’s witness Shri Ramsharan Prajapati
filed affidavit of his evidence supporting contentions of
IInd party in Written Statement. That workman had worked
87 days in 1984, he was not continuously working.
Workman was called for interview but he could not be
absorbed as his working days were less than other
candidates. In his cross-examination, witness says as per
record available, workman has worked in the branch from
1984 to 1995 with intermittent gaps. Management’s witness
was unable to tell whether workman completes 240 days
service during each of the year. He claims ignorance
whether workman was served with notice, retrenchment
compensation was paid to him. documents produced by
workman Exhibit W-2 shows working worked 87 days as
temporary employee. Said application was submitted for
permanent absorption. It is clear that prior to said
application was submitted, workman had not completed
240 days continuous service. As per document Exhibit W-
3, workman completed 544 days working in 1994-95. His
services were terminated without notice is in violation of
Section 25-F of ID Act. For above reasons, I record my
finding in Point No.1 in Negative.
7.
Point No.2- Learned counsel for workman Shri K.B.
Singh emphasized that workman completed 11 ½ years
continuous service. Workman be allowed reinstatement
with back wages. However as per Document Exhibit W-2,
as discussed above workman was not continuously
working from 1984 to 1995. Workman was not appointed
following recruitment process. Learned counsel for
workman submitted copy of award in R/9/12. The facts of
present case are not comparable as workman was not
continuously working. In application Exhibit W-2, 87 days
working is shown. However he completed 544 days working
in 1994-95. His services are terminated in violation of
1164
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Section 25-F. Workman was engaged on daily wages
dehors selection rules. Workman cannot be allowed
reinstatement with back wages. Considering nature of
employment of workman, compensation Rs. One Lakh
would be appropriate. Accordingly I record my finding in
Point No.2.
8.
In the result, award is passed as under:-
(1)
The action of the Dy. General Manager, State Bank
of India, Zonal Office, Jyandraganj, Gwalior (MP) in
terminating the services of Shri Rajendra Kumar
Raikwar S/o Shri Tulsidas Raikwar w.e.f. 4-11-95 is
not proper.
(2)
IInd party is directed to pay compensation Rs. One
Lakh to the workman.
Amount as per above order shall be paid to workman
within 30 days from the date of notification of award. In
case of default, amount shall carry 9 % interest per annum
from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 455-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k 179@2001)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 02@03@2015 dks izkIr
gqvk FkkA
¹la- ,y&12012@227@2001&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 455.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 179/
2001) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur as shown in the Annexure in the
Industrial Dispute between the management of State Bank
of India and their workmen, received by the Central
Government on 02/03/2015.
[No. L-12012/227/2001-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/179/2001
Shri Mohanlal Sain,
s/o Shri Ram Prasad Sain,
R/o Near Shankarji Temple,
Kunti Mohalla,
PO Jawaharnagar,
Distt. Satna (MP)
...Workman
Versus
Branch Manager,
State Bank of India,
Main Branch, Semria Chowk,
Satna (MP)
...Management
AWARD
Passed on this 22nd day of January, 2015
1.
As per letter dated 26-11-2001 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-12012/
227/2001-IR(B-I). The dispute under reference relates to:
“Whether the action of the management of State
Bank of India, Main branch, Semria Chowk, Satna
(MP) in not regularizing the services of
Shri Mohanlal Sen S/o Shri Ram Prasad Sen instead
terminating his services w.e.f.4-8-2000 is legal and
justified? If not, to what relief the workman is entitled
to?”
2.
After receiving reference, notices were issued to
the parties. Workman submitted statement of claim at Page
4/1 to 4/3. Case of Ist party workman is that he was working
on vacant post of messenger with IInd party. He was
continuously working till 4-8-00. Ist party No.1 is
Controlling Authority of the Bank. Services of Ist party
workman were orally terminated from 4-8-00. Ist party
workman further submits that standing orders are binding
on establishment of IInd party after completion of six
months service. He was entitled to be classified as
permanent employee. His services were terminated without
issuing notice. He was not paid retrenchment
compensation. Pay in lieu of notice was also not paid to
him. Principles of first come last go was not followed.
Termination of his service is in violation of Section 25-F of
ID Act. He belongs to backward community. He had attained
age of 40 years. His family was dependent on him. after
termination of his service, he is unemployed. On such
ground, workman prays for his reinstatement with back
wages.
3.
IInd party submitted Written Statement at Page 8/1
to 8/7. It is submitted that after dispute raised by workman,
conciliation proceedings failed. Government referred
dispute to this Tribunal. IInd party submits that workman
was not appointed as messenger by the Bank. Workman
was running hair cutting salon at Collectorate office, Satna.
He was also doing work of cleaning, sweeping of said
office. IInd party engaged him as casual labour at Extension
counter of the Bank at Collector Office, Satna. Workman
was not appointed as messenger against vacant post. The
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1165
engagement of workman for cleaning, sweeping work was
contractual. Workman had not completed 240 days
continuous service. There was no question of his attaining
status of permanent employee. It is reiterated that workman
was running hair salon in premises of Satna office and he
was also doing cleaning, sweeping in other office.
Workman was engaged for cleaning sweeping work for ½
hour to 1 hour in its premises. As workman was not
appointed against any vacant post, there was no question
of terminating his service. The discontinuation of workman
was covered under Section 2(oo)(bb) of ID Act. Workman
was not entitled to retrenchment compensation or notice
of termination. On such grounds, IInd party prays that
award be answered in its favour.
4.
Workman was reported dead. Despite of repeated
notice, his LRs could not be substituted.
5.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i) Whether the action of the manage-
In Affirmative
ment of State Bank of India, Main
branch, Semria Chowk, Satna (MP)
in not regularizing the services of
Shri Mohanlal Sen S/o Shri Ram
Prasad Sen instead terminating
his services w.e.f.4-8-2000 is legal
and justified?
(ii) If not, what relief the workman is
Workman is
entitled to?”
not entitled
to any relief.
REASONS
6.
Though workman raised dispute challenging
termination of his services, during pendency of reference
proceedings, workman died. Copy of death certificate is
produced on record. It shows that workman died on 12-2-
2004. Despite of issuing notices to legal heirs, their
presence could not be secured. LRs failed to participate in
reference proceeding.
7.
Management filed affidavit of its witness Shri Ashok
Srivastava. Management’s witness stated that workman
was not engaged against permanent vacant post of
messenger. Workman was purely engaged as casual labour
at extension counter of the Bank in Collector office, Satna.
He was engaged only for ½ to 1 hour for cleaning,
sweeping work. That record of daily wager employee or
his family members is not maintained. For failure of LRs to
participate in reference proceeding, I record my finding in
Point No.1 in Affirmative.
8.
In the result, award is passed as under:-
(1)
The action of the management of State Bank of India,
Main branch, Semria Chowk, Satna (MP) in not
regularizing the services of Shri Mohanlal Sen S/o
Shri Ram Prasad Sen instead terminating his services
w.e.f.4-8-2000 is proper and legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 456-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fcgkj {ks=kh;
xzkeh.k 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;] iVuk ds iapkV ¹lanHkZ la[;k 06 (C)/
2009º dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 02@03@2015
dks izkIr gqvk FkkA
¹la- ,y&12011@18@2009&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 456.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award [Ref. No. 06 (C)
of 2009] of the Central Government Industrial Tribunal-
cum-Labour Court, Patna as shown in the Annexure in the
Industrial Dispute between the management of Bihar
Kshetriya Gramin Bank and their workmen, received by
the Central Government on 02/03/2015.
[No. L-12011/18/2009-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE PRESIDING OFFICER
INDUSTRIAL TRIBUNAL, PATNA
Reference Case No.:- 06 (C) of 2009
Between the management of The Chairman, Bihar
Kshetriya Gramin Bank, H.O. Bhagat Singh Chowk,
Munger ( Bihar ) and the General Secretary, Western
Railway Kamdar Sangh, 78/9-C, National Highway,
Gandhidham (kutch) and The President, Bihar Provincial
Gramin Bank Employees Asscn., 2nd Floor, Saboo
Complex, Exhibition Road, Patna (Bihar).
For the management :
Shri Sukeshwar Manjhi,
Manager (PAD), representative
of the management.
For the workman
:
Shri B. Prasad, representative
of The President, Bihar
ProvincialGramin Bank
Employees Asscn. 2nd Floor,
Saboo Complex, Exhibition
Road, Patna (Bihar).
Present
:
Shri Bipin Dutta Pathak, Presiding Officer,
Industrial Tribunal, Patna.
1166
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
AWARD
Patna, the 24th March, 2014
By adjudication order No. L-12011/18/2009-IR (B-1)
New Delhi, date 27.08.2009 the Central Government
(Government of India) Ministry of Labour/Shram
Mantralaya, New Delhi referred under clause (d) of sub-
section (1) and sub-section 2(A) of section 10 of the
Industrial Disputes Act, 1947 (hereinafter to be referred to
as ‘the Act’) the following dispute between the management
of The Chairman, Bihar Kshetriya Gramin Bank, H.O. Bhagat
Singh Chowk, Munger( Bihar ) and The General Secretary,
Western Railway Kamdar Sangh, 78/9-C, National Highway,
Gandhidham ( Kutch ) and The President, Bihar Provincial
Gramin Bank Employees Asscn., 2nd Floor, Saboo Complex,
Exhibition Road, PATNA (BIHAR) for adjudication to the
Central Government Industrial Tribunal, Patna.
SCHEDULE
“Whether the action of the management of Bihar
Kshetriya Gramin Bank, Munger in inflicting
punishment in respect of Sri Prashant Kumar Jaiswal,
Clerk-cum-Cashier i.e reduction of one increment for
two years and denial of promotion to Officer Cadre
JMG Scale I is legal and justified? If not, what relief
the workman concerned is entitled to?
Heard Mr. B. Prasad on behalf of the workman Sri
Prashant Kumar Jaiswal and Mr. Sukeshwar Manjhi,
Manager ( PAD) on behalf of the Bihar Gramin Bank and
persuerd the record.
The case was for hearing on the acceptance of the
documents for adjudication and to given award “Whether
the action of the management of Bihar Kshetriya Gramin
Bank, Munger in inflicting punishment in respect of Sri
Prashant Kumar Jaiswal, Clerk-cum-Cashier i.e reduction
of one increment for two years and denial of promotion to
Officer Cadre JMG ScaleI is legal and justified? If not, what
relief the workman concerned is entitled to?”
On 21.01.2014 the case was fixed for 3rd March, 2014.
In the mean time the tribunal received registered letter
sent by Prashant Kumar Jaiswal (workman ) in which he
has made prayer to withdraw the case because he has been
promoted from the postof clerk – cum- cashier to the post
of JMG scale-1 in officers cadre. However, this is wrong
practice to sent any petition by post.
On 3rd March, 2014 Mr. B. Prasad appeared on behalf
of the workman and Mr. Sukeshwar Manjhi, Manager (PAD)
on behalf of the management. One petition has been filed
on behalf of the workman which is dt 23.01.2014. In the
petition it has been stated that Bihar Gramin Bank has given
in promotion from clerk-cum- cashier to officers JMG scale-
1 w.e.f 09.12.2012. Now he has no more grivances from
bank so he withdraw his above said case.
Petition to the said effect has also been filed on
behalf of the management to this effect on 03.03.2014 that
Prashant Kumar Jaiswal officers of his bank has requested
to withdraw the case pending before this court. Therefore,
request has been made to withdraw the case on that
application, no objection has been made by Mr. B. Prasad,
President Bihar Provincial Gramin Bank Employees
Association.
Since promotion has been given to Mr. Prashant
Kumar Jaiswal in Officer cadre JMG scale-1 on 09.12.2012
and in his petition he has stated that no more grievances
from bank. In that view of the matter, matter under reference
doesn’t appear to continue. So award is given is “No
Dispute” between the management and the workman.
Accordingly the award is answered is “No Dispute Award.”
This is my award accordingly.
BIPIN DUTTA PATHAK, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 457-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fcykliqj
jk;iqj {ks=kh; xzkeh.k cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj
muds deZdkjksa ds chp vuqcaèk esa fu£n"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] tcyiqj ds
iapkV ¹lanHkZ la[;k 221@92º dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 02@03@2015 dks izkIr gqvk FkkA
¹la- ,y&12012@107@92&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 457.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 221/
92) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur as shown in the Annexure in the
Industrial Dispute between the management of Bilaspur
Raipur Kshetriya Gramin Bank and their workmen,
received by the Central Government on 02/03/2015.
[No. L-12012/107/92-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/221/92
Shri Mahesh Kumar Manikpuri,
S/o Shri Jagoot Das Manikpuri,
Gram Bhanpuri,
Post Birgaon,
Thana Khamatarai,
Distt. Raipur
...Workman
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1167
Versus
The Chairman,
Bilaspur Raipur Kshetriya Gramin Bank,
Dayalband,
Bilaspur
...Management
AWARD
Passed on this 28th day of January, 2015
1.
As per letter dated 27-28/10/92 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-12012/
107/92-IR(B-I). The dispute under reference relates to:
“Whether the action of the management of Bilaspur-
Raipur Kshetriya Gramin Bank in terminating the
services of Shri Mahesh Kumar Manikpuri w.e.f.
30-6-91 and not considering him for further
employment while recruiting fresh hands is justified?
If not, to what relief the workman is entitled to?”
2.
After receiving reference, notices were issued to
the parties. Ist party submitted statement of claim at Page
2/1 to 2/2. Case of workman is that during 86-87, he was
working for 89 days as temporary messenger with IInd
party Bank. Again he was engaged as messenger from
13-3-90. He was paid wages for the period 21-3-90 to 29-6-91.
He worked continuously more than 200 days. He was
discontinued without notice or without assigning any
reasons. Prior to his termination, he was working against
sanctioned post. Any misconduct was not alleged against
him. Therefore termination of his service is illegal.
3.
IInd party filed Written Statement at Page 7/1 to 7/3
opposing claim of Ist party workman. IInd party submits
that it is established under Regional Rural Bank Act 1976.
The object of said act is to provide banking facilities in
rural areas. That Central Govt. has power to regulate
service conditions of employees of the Bank. The Ministry
issued Certificate dated 20-5-81 prohibiting appointments
of peon, messengers, sweepers in the Bank. The part time
employees could be employed on daily wages and wages
proportionate to their working hours can be paid. The
employees engaged for cleaning, sweeping and drinking
water, working hours were restricted to 4 hours by issuing
circulars. Workman is not covered as workman as he was
temporarily engaged for 4 hours in a day. He not completed
240 days continuous service. Workman was not
sponsored through Employment Exchange. His
appointment is illegal. On such contentions IInd party
prays for rejection of claim.
4.
Workman submitted rejoinder at Page 6/1 to 6/3
reiterating his contentions in statement of claim. He has
contented that he was working from 9.30 to 7-8 PM. He
was paid wages only for 4 hours despite working whole
day. After termination of his services, Bank has engaged
other person as messenger. Bank has not displayed
seniority list as per Rule 77. That 60 post of messengers
are lying vacant.
5.
Considering pleadings on record, the points which
arise for my consideration and determination are as
under. My findings are recorded against each of them
for the reasons as below:-
(i) Whether the action of the manage-
In Negative
ment of Bilaspur- Raipur Kshetriya
Gramin Bank in terminating the
services of Shri Mahesh Kumar
Manikpuri w.e.f. 30-6-91 and not
considering him for further
employment while recruiting
fresh hands is justified?
(ii) If not, what relief the workman
As per final
is entitled to?”
order.
REASONS
6.
Workman is challenging termination of his service
alleging violation of Section 25-F of ID Act. Management
submits that Ist party is not covered as workman as he
was temporarily engaged. Definition of workman under
Section 2(S) of ID Act doesnot discriminate the employees
working for different working hours.
7.
Workman filed affidavit of his evidence stating that
he was continuously working in 90-91 with IInd party. He
was also working in 1986-87. He was discontinued without
any reasons. He was not paid retrenchment compensation,
no notice was given to him. He was unemployed. In his
cross-examination, workman says he was engaged
temporarily engaged on daily wages. He denies working
only 4 hours in a day. He denies that he was paid wages
every day. He denies that the Manager has no authority
to engage temporary employees beyond 90 days. He
denies that he not worked continuously for more than 240
days.
8.
Management filed affidavit of witness Shri Dilip
Kumar Soni and Shri Durga Prasad Sao. Both witness of
management supported contentions of IInd party in
Written Statement. That workman had not completed 240
days continuous service. His name was not sponsored
through Employment Exchange. Dilip Kumar Soni in his
cross-examination says he was not posted at relevant time.
Ist party was working in the branch. He denied that
workman completed more than 240 days continuous
service. He admits that he has no personal knowledge
about working of the Ist party. Witness of management
denies that workman was continuously working from
13-3-90 to 29-6-91. He did not recollect who was Branch
Manager working at Bhanpuri Branch in 1991.
9.
Management’s witness Shri Durga Prasad in his
cross-examination says that he has not brought any record
about working of Ist party. That all the documents were
with the Advocate of IInd party. He had not seen any
1168
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
document before filing affidavit of evidence. His affidavit
is based on memory. When any documents are not
produced by IInd party, what was the source of
information for filing affidavit on behalf of the management
is not disclosed therefore evidence of witnesses of IInd
party cannot be relied in preference to the evidence of
workman. I accept evidence of workman that he was
continuously working from 90-91. His services are
terminated without notice in violation of Section 25-F of
ID Act. Therefore I record my finding in Point No.1 in
Negative.
10.
Point No.2- as per my finding in Point No.1, Ist party
workman is terminated in violation of Section 25-F of ID
Act, question arises whether workman is entitled for
reinstatement with backwages.
11.
Learned counsel for IInd party submitted written
notes of argument and relies on ratio held in
Case of Bombay Gas Company Ltd. versus Gopal
Bhiva and others reported in AIR 1964-SC-752. Their
Lordship held Limitation Act doesnot apply for
rejecting claim under Section 33(C)(2). The ratio held
has no bearing to the controversy between parties.
Next reliance is placed on ratio held in case of
Mukund Ltd. versus Mukund Staff and officers
Association reported in 2004(10)SC-460. The ratio
held by their Lordship relates to status of an
employee as workman or non-workman has to be
decided on the basis of duties, responsibilities and
powers as given in Section 2(s).
Ratio held in above cited case cannot be applied to
present case as workman was working as temporary
employee on daily wages. Workman was not working in
supervisory or managerial post therefore ratio cannot be
applied to present case. Considering working days of
workman on daily wages, workman was not appointed
following recruitment process, reinstatement with back
wages would not be justified. Considering short period of
working days of workman, compensation Rs. 50,000/-
would be appropriate. Accordingly I record my finding in
Point No.2.
12 In the result, award is passed as under:-
(1)
The action of the management of Bilaspur- Raipur
Kshetriya Gramin Bank in terminating the services
of Shri Mahesh Kumar Manikpuri w.e.f. 30-6-91 and
not considering him for further employment is not
legal and proper.
(2)
Management is directed to pay compensation
Rs.50,000/- to the workman within 30 days from the
date of publication of award.
In case of default, amount shall carry 9 % interest
per annum from the date of award till its realization.
(3)
IInd party shall pay cost of Rs.5000/- to Ist party
workman.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 458-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkbZMhchvkbZ
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; la- 2] fnYyh ds iapkV (lanHkZ la[;k
111@2011) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
02@03@2015 dks izkIr gqvk FkkA
¹la- ,y&12011@55@2011&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 458.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 111/
2011) of the Central Government Industrial Tribunal-cum-
Labour Court No. 2, Delhi as shown in the Annexure in the
Industrial Dispute between the management of IDBI Bank
and their workmen, received by the Central Government
on 02/03/2015.
[No. L-12011/55/2011-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT - II, KARKARDOOMA
COURT COMPLEX, DELHI
Present : Shri Harbansh Kumar Saxena
ID No. 111/2011
Sh. Ramesh Kumar, Gen. Secy.
Readymade Garments Export Employees Union,
I-441, Karampura,
New Delhi-15
...Workman
Versus
The Manager,
IDBI Intech, IDBI Bank Zonal Office,
Hansraj Pragji Building,
Ist Floor, Dr, E. Moses Road,
Worli Naka,
Mumbai-400018
...Management
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-12011/55/2011(IR(B-I) dated
01.12.2011 referred the following Industrial Dispute to this
Tribunal for adjudication:-
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1169
“Whether the action of the management of IDBI
Intech Ltd. Mumbai in terminating the services of
Sh. Neeraj Kumar Soni, Ex-Senior Executive , w.e.f.
11.8.2010, is legal and justified? To what relief the
workman is entitled ?”
On 16.12.2014 reference was received in this
Tribunal. Which was register as I.D No. 111/11 and claimant
was called upon to file claim statement within fifteen days
from date of service of notice. Which was required to be
accompanied with relevant documents and list of
witnesses.
Claimant/workman on 6.2.2012 filed Claim Statement.
On the basis of contents of claim statement workman
Sh. Neeraj Kumar Soni, prayed that whole proceedings of
termination is illegal, contrary of provisions of Labour
Laws, proceedings be declared unjustified, workman be
reinstated with full back wages alongwith 18% Interest
on amount of back wages.
Contents of claim statement was supported by
affidavit of claim statement.
Against claim statement management filed written
statement on 9.10.12 copy of which supplied to workman.
Contents of written statement are as follows:-
1.
That unless and until the allegations made in the
plaint are not specifically admitted shall be deemed to be
wrong and denied.
2.
That the Complainant had joined to the Respondent
Company on 26th July, 2010 as a Senior Sales Executive.
3.
That on the record maintained by the Respondent it
had been marked that the Complainant joined to the
Respondent Company on 26.07.2010 as a Senior Sales
Executive and the Complainant did not report the branch
since 12.10.2010.
4.
That on 23.08.2010 and 16.09.2010 the Respondent
had sent two absenteeism letters to the Complainant , but
Complainant did not come to the branch nor gave any
reply upon the said letters also. The copy said letters are
annexed herewith an Annexure –A & B.
5.
That on the date of joining the Complainant was
given relevant training regarding the product and
processes along with other members of the team and was
informed about the desired expected from a SSE employee
and the Complainant showed reluctance regarding the
target also.
6.
That the Complainant had came to the branch right
at the time of opening and marked his attendance for the
day and did not report thereafter to anyone regarding his
daily activities pertaining to the same. And the Complainant
was also reprimanded by his line Manager for the same.
7.
That as per records maintained by the Respondent
the concerned contractual employee had attended work
for 16 days and the Respondent Company is willing to
pay to the complainant 16 days of salary as per
Complainant’s eligibility.
8.
That the Complainant has complained on the same
cause of action before the different Authorities, therefore
the said complaint should be dismissed u/s 11 of CPC as
Res-Judicata,
PRELIMINARY OBJECTIONS:-
1.
That the Complainant has not come to this Hon’ble
Court with clean hands and have suppressed and
concealed material and important facts as such the
Complainant is not entitled for any relief. The Complainant,
themselves have come before this Hon’ble Court with a
malafide intention by giving some false, frivolous and
erroneous submissions and are guilty of suppressio veri
and falsi suggestio as the Complainant have deliberately
and intentionally concealed all the material facts in order
to fulfill their gutted attitude. Hence, the complaint filed
by the Complainant is liable to be dismissed with exemplary
costs as the concealment amounts to contempt of the Court.
2.
That, the Complainant has not cause of action
against the Respondent and hence the complaint filed by
him against the Respondent is not maintainable in the eye
of law and hence should be dismissed/rejected.
REPLY ON MERITS:-
1.
That the contents of this para under reply facts are
wrong and denied. It is pertinent to mention here that the
complainant had joined to the Respondent Company on
26th July 2010 as a senior Sales Executive on contractual
basis for three years.
2.
That the contents of this para under reply facts are
wrong and denied.
3.
That the contents of this para under reply facts need
no comments.
4.
That the contents of this para under reply facts are
wrong and strictly denied. It is pertinent to submit here
that the allegation on the Respondent is only to misleading
to the Hon’ble Court.
5.
That the contents of this para under reply facts are
wrong and strictly denied. It is pertinent to submit here
that the allegation on the Respondent is fabricated and
false. It is again pertinent to mention here that on the date
of joining the Complainant was given relevant training
regarding of the team and was informed about the desired
target expected from a SSE employee and the Complained
showed reluctance regarding the target also.
6-9 . That the contents of this para under reply facts need
no comments due to matters of records.
10-11. That the contents of this para under reply facts are
wrong and strictly denied. It is pertinent to mention here
that on 23.08.2010 and 16.09.2010 the Respondent had sent
1170
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
two absenteeism letters to the complainant, but the
Complainant did not come to the branch nor gave any
reply upon the said letters also.
12.
That the contents of this para under reply facts need
no comments due to matters of records.
13-14. That the contents of this para under reply facts are
wrong and strictly denied. Therefore needs no comments.
15.
That the contents of this para under reply facts need
no comments.
Last Para is the Prayer to this Hon’ble Court which
is strongly opposed in view of the facts and circumstances
stated herein above. It is therefore, respectfully prayed
that the suit/complaint of the complainant is baseless and
without merit. Hence suit of the complainant is liable to
dismissed with heavy cost and to pass any appropriate
order as deemed fit and proper in favour of the Respondent
and against the complainant, for which such act of
kindness, the Respondent shall as in duty bound, ever
pray.
Written statement was supported with affidavit.
Against contents of written statement workman filed
rejoinder on 11.1.2013.
Through which he reaffirmed the contents of claim
statement and denied the contents of written statement.
On 3.05.2013 My Ld. Predecessor passed an order
on order sheet that no other issue is required to be framed
other than referred by appropriate government of this
tribunal for adjudication and fixed 21.06.2013 for evidence
of the parties with direction to claimant conclude first.
On 2.09.2013 workman filed affidavit in his evidence
copy of which supplied to Ld. A/R for the management.
Workman tendered his affidavit on 17.12.13. As none
turn up to cross-examine the workman on 18.06.2014. Hence,
right of cross-examination of management was closed and
fixed 30.07.2014 for management evidence.
On 30.7.2014 I fixed 12.09.2014for management
evidence. On 12.9.2014 I closed the evidence of
management because of its dormancy and fixed 20.11.2014
for arguments.
Management moved an application to set aside a
order of closing the right of cross-examination. Which
was allowed on 25.11.2014 and workman was cross-
examined and then I fixed 23.12.2014 for management
evidence. On 23.12.2014 Proxy Counsel for management
expressed desire to his Senior not to produce any evidence
on behalf of the management then, I fixed 12.1.15 for oral /
written arguments. I have heard the oral arguments of
workman on 12.11.15 and I fixed 3.2.15 for award and
permitted Ld. A/R for the management to argue before this
date.
Workman filed written arguments on 12.1.2015 in
reply to written arguments of workman management filed
written arguments on 13.1.2015.
In the light of contention and counter contentions
of workman and Ld. A/R for the management. I perused
the question of determination mentioned in schedule of
reference. Which were treated issues of the instant
Industrial Dispute as well as evidence on record and settled
law on the point.
Perusal of schedule of reference makes it crystal
clear that questions of determination mentioned in it are
as follows:-
“Whether the action of the management of IDBI
Intech Ltd. Mumbai in terminating the services of
Sh. Neeraj Kumar Soni, Ex-Senior Executive , w.e.f.
11.8.2010, is legal and justified? To what relief the
workman is entitled ?”
Out of which question of determination No.1 is as
follows:-
“Whether the action of the management of IDBI
Intech Ltd. Mumbai in terminating the services of
Sh. Neeraj Kumar Soni, Ex-Senior Executive , w.e.f.
11.8.2010, is legal and justified?
Perusal of it makes it crystal clear that burden to
prove this question of determination lies on management
but in the instant case management has adduced no
evidence. Inwant of which this question of determination
cannot be decided in favour of management simply on the
basis of pleadings of management.
It is settled law that pleading without evidence is
waste paper. So, question of determination No.1 is liable
to be decided in favour of workman and against
management .
Which is accordingly decided.
Now, it is to be determined to what relief the workman
is entitled. As per evidence on record workman has not
completed work for 240 days. He hardly worked for about
3 months only. So, Compensation U/s 25 H etc. of I.D. Act
are not payable to workman but management adopted
unfair labour practice in the instant case against workman.
So workman is entitled for amount of reasonable
compensation .
Reference is liable to be decided in favour of
workman and against management and claim statement is
liable to be allowed. Which is accordingly allowed.
In the interest of justice Rs. 10,000 are just & fair
amount of compensation liable to be awarded to workman
Sh. Neeraj Kumar Soni. Which is accordingly awarded to
workman Sh. Neeraj Kumar Soni.
Award is accordingly passed. Management is
directed to pay Rs. 10,000 to claimant Sh. Neeraj Kumar
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1171
Soni, as compensation within 2 months after expiry of
period of available remedy against this award.
Dated:-3.2.2015
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fcykliqj
jk;iqj {ks=kh; xzkeh.k cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj
muds deZdkjksa ds chp vuqcaèk esa fu£n"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] tcyiqj ds
iapkV (lanHkZ la[;k 151@91) dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 02@03@2015 dks izkIr gqvk FkkA
¹la- ,y&12012@180@91&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 459.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 151/
91) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur as shown in the Annexure in the
Industrial Dispute between the management of Bilaspur
Raipur Kshetriya Gramin Bank and their workmen,
received by the Central Government on 02/03/2015.
[No. L-12012/180/91-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/151/91
Shri Ramakant Sahu,
Gram Post Marod,
Thana Marod, Tehsil Dhamtari,
Distt. Raipur
...Workman
Versus
Chairman,
Bilaspur Raipur Kshetriya Gramin Bank,
Dayalbandh,
Bilaspur
...Management
AWARD
Passed on this 28th day of January, 2015
1.
As per letter dated 20-8-91 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-12012/
180/91-IR(B-3). The dispute under reference relates to:
“Whether the action of the management of Bilaspur
Raipur Kshetriya Gramin Bank in relation to their
Branch at Marod in terminating the services of
Shri Ramakant Sahu, S/o Motilal Sahu Daily rated
part time sweeper-cum-waterman w.e.f. 31-12-90 and
not considering him for further employment while
recruiting fresh hands under Section 25-H of ID Act
is justified? If not, to what relief the workman is
entitled?”
2.
After receiving reference, notices were issued to
the parties. Workman submitted statement of claim at Page
11/1 to 11/4. Case of workman is that he was appointed to
the post of messenger on 25-9-89 by IInd party at Bilaspur
office. He was performing duties of messenger till
termination of his services. It is further submitted that
IInd party was maintaining monthly wage register. Ist party
was shown as sweeper-cum-waterman in said register. On
his objection about the designation, IInd party informed
Ist party that post of sweeper-cum-waterman is a
sanctioned post and he will be made permanent. That the
Branch Manager Shri P.K.Gupta suddenly changed the
procedure of taking the signature in monthly register. He
started taking signatures on vouchers of weekly payment.
Ist party when asked reasons about it, he was told that his
signature on voucher were obtained as per direction of
Head office relating weekly payments. He further submits
that his service record was satisfactory. He was not
punished for any kind of misconduct. He was working as
regular employee of the Bank.
3.
That services of workman were terminated by oral
order on 1-1-1991 without assigning any reasons. For
termination of his services, he was informed that
termination of his service was according to direction of
head office. He submits that before termination of his
service, he acquired status of permanent employee of
IInd party. His termination was without notice, no
retrenchment compensation was paid to him. termination
of his service is in violation of Section 25-F of ID Act. That
he was working for 8 hours every day. However he was
forced to write 4 hours working every day on payment
vouchers under the guise of avoiding audit objections.
After terminating his services, IInd party has appointed
other persons namely Amarsingh Bhargava- BCom,
Chandrakant Sahu- 12th pass, Ravi Kumar Sahu- 12th
passed etc. has been discriminated by appointing those
persons. On such ground, workman is praying for
reinstatement with back wages.
4.
IInd party submitted Written Statement at Page 4/1
to 4/3. Claim of workman is opposed. As per IInd party, Ist
party is not covered as workman as his initial appointment
was temporary part time daily rated worker. Ist party
employee was doing work of sweeper-cum-waterman for 4
hours in Bank. He was required to clean and sweep bank
premises. For said nature of work, minimum qualification
required was 8th standard. His employment came to end
1172
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
on closing the Bank. He is not employee of the Bank as
per Staff Service Regulations framed in exercise of powers
under Section 30 of Regional Rural Bank Act 1975. The
Board of Directors of Bilaspur Raipur Kshetriya Gramin
Bank after consultation with State Bank of India has been
sponsored a previous sanction of Central Govt. as per
Para- 4 in Chapter -2, temporary staff cannot be appointed
for more than 90 days. Workman had not disclosed his
qualifications about matriculation therefore his
appointment is void-ab-initio. On such ground, IInd party
prays for rejection of claim.
5.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i) Whether the action of the manage-
In Negative
ment of Bilaspur Raipur Kshetriya
Gramin Bank in relation to their
Branch at Marod in terminating
the services of Shri Ramakant
Sahu, S/o Motilal Sahu Daily
rated part time sweeper-cum-
waterman w.e.f. 31-12-90 and
not considering him for further
employment is justified?
(ii) If not, what relief the workman
As per final
is entitled to?”
order.
REASONS
6.
The terms of reference relates to legality of
termination of services of Ist party workman Ramakant
Sahu and not considering him for further employment.
Claim of workman is totally denied by IInd party
management. workman filed affidavit of his evidence.
Workman has stated that he was appointed as messenger
in the IInd party Bank from 21-9-89. He was working as
such from 10.30 AM to 6 PM. Attendance register was
maintained. In said register, his name was shown as
sweeper-cum-waterman. Management had stopped taking
signature in said register. His signature were obtained in
the vouchers. His services were terminated from 1-1-1991.
He was orally terminated without notice, no retrenchment
compensation was paid to him. other persons Amarsingh
Bhargava, Chandrakant Sahu, Ravi Kumar Sahu etc. were
engaged by the management. In his cross-examination,
workman says he was engaged on daily wages. He denies
that he was working as per exigencies. He denied
suggestion that he was working about 4 hours per day. He
admits that he was engaged on post of sweeper cum
waterman. That he is graduate. Qualification for work of
sweeper and waterman is 8th standard. He denies that at
the time of his initial engagement, he told Manager he had
passed 8th standard. He denies that he had not worked
more than 240 days during any of the year.
7.
Affidavit of evidence of management witness
Shri Dikip Kumar Soni and Pradeep Kumar Gupta is filed.
Both supported contentions of management that
qualification of post of sweeper is 8th standard. That the
employment of workman came to end at every day and his
initial appointment was temporarily part time employee.
Both the witnesses have stated that Manager has no power
to appoint temporary employees more than 90 days. That
workman had not completed 240 days continuous service.
Dilip Kumar in his cross says that he has not brought any
document about employment of workman. He admits that
workman was working at Marod branch. During said
period, he was not working in said branch. He claims
ignorance that during what time Manager was requiring
workman to work in the branch. He claims ignorance that
workman was attending branch at 11 AM and after doing
cleaning, sweeping work, he was distributing letters.
8.
Management’s witness Pradeep Kumar Gupta in his
cross-examination says that workman was working in
Marod branch from August 90 to May 95. He also admits
that handwriting in experience certificate referred to him
which is marked as Exhibit M-2. Said documents shows
that workman had worked for 364 days from 25-9-89 to
31-12-90. Said document is sufficient to hold that workman
completed 240 days continuous service. Workman was
not terminated issuing notice, retrenchment compensation
was not paid to him. termination of services of workman is
in violation of Section 25-F of ID Act.
9.
The copy of advertisement in Daily Navbharat dated
30-11-2013 is produced on record. The witness of
management claims that he have come to know about said
advertisement only after the document was referred to
him. Evidence of workman also on the point after
termination of his services, other persons were employed
by IInd party was not challenged in his cross-examination.
However the evidence on record shows workman was
engaged on daily wages by Manager. He was not selected
by following recruitment process. Evidence shows that
termination of his service is in violation of Section 25-F of
ID Act. Therefore I record my finding in Point No.1 in
Negative.
10.
Point No.2- In view of my finding in Point No.1
termination of service of workman is illegal, question arises
whether workman is entitled for reinstatement with back
wages. The evidence on record shows workman was
engaged by IInd party for 364 days on daily wages. He
was not appointed following recruitment process.
Reinstatement of workman could not be justified.
11.
Learned counsel for IInd party submitted written
notes of argument and relies on ratio held in
Case of Bombay Gas Company Ltd. versus Gopal
Bhiva and others reported in AIR 1964-SC-752. Their
Lordship held Limitation Act doesnot apply for
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1173
rejecting claim under Section 33(C)(2). The ratio held
has no bearing to the controversy between parties.
Next reliance is placed on ratio held in case of
Mukund Ltd. versus Mukund Staff and officers
Association reported in 2004(10)SC-460. The ratio
held by their Lordship relates to status of an
employee as workman or non-workman has to be
decided on the basis of duties, responsibilities and
powers as given in Section 2(s).
Ratio held in above cited case cannot be applied to
present case as workman was working as temporary
employee on daily wages for 364 days shown in Exhibit
W-2. Workman was not working in supervisory or
managerial post therefore ratio cannot be applied to present
case. Workman was working on daily wages for 364 days
would not justify his reinstatement with back wages.
Considering his working days, compensation Rs. 50,000/-
would be appropriate. Accordingly I record my finding in
Point No.1.
12.
In the result, award is passed as under:-
(1)
The action of the management of Bilaspur Raipur
Kshetriya Gramin Bank in relation to their Branch at
Marod in terminating the services of Shri Ramakant
Sahu, S/o Motilal Sahu Daily rated part time sweeper-
cum-waterman w.e.f. 31-12-90 and not considering
him for further employment is not proper and legal.
(2)
IInd party is directed to pay compensation Rs.50,000/-
to the workman within 30 days from the date of
publication of award.
In case of default, amount shall carry 9 % interest
per annum from the date of award till its realization.
(3)
IInd party shall pay cost of Rs.5000/- to Ist party
workman.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phiQ ,XthD;wfVo
viQlj dSaVksuesaV cksMZ] vEckyk dSaV ds izcaèkra=k ds lac¼ fu;kstdksa
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paMhx<+ ds iapkV (lanHkZ la[;k 272@2013) dks izdkf'kr djrh gS]
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¹la- ,y&13012@01@2013&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 460.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 272/
2013) of the Central Government Industrial Tribunal-cum-
Labour Court No. 1, Chandigarh now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of the Chief Executive
Officer, Cantonment Board, Ambala Cantt. and their
workman, which was received by the Central Government
on 26/02/2015.
[No. L-13012/01/2013-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
Case No. ID 272 of 2013
Reference No. L-13012/01/2013-IR(DU)
dated 24.2.2014
Sh. Jag Mohan Sharma,
Resident of House No. 1F,
Ram Nagar, Ambala Cantt,
Haryana
...Workman
Versus
1. The Chief Executive Officer,
Cantonment Board,
Ambala Cantt( Haryana)
...Respondent
Appearances :
For the Workman
: Workman in person
For the Management
: Sh. Mahesh Kumar
AWARD
Dated:-20.02.2015
Government of India, Ministry of Labour vide
notification No. L-13012/01/2013-IR (DU) dated 24.2.2014
has referred the following dispute to this Tribunal for
adjudication:
Term of Reference :
“Whether the demand of the applicant Shri Jag
Mohan Sharma for non-payment of fixed medical
allowance @ Rs. 100/- per month w.e.f. 1.6.2004 to
31.08.2008 by the Chief Executive officer, Cantonment
Board, Ambala Cantt, Ambala is just ,fair and legal?
If yes to what relief the workman is entitled to and
from what date?”
2.
Today the case was fixed for settlement. Authorized
representative of the management Sh. Mahesh Kumar
today made a statement that management shall make the
payment of the claim of Shri Jag Mohan Sharma within
one month from today. The workman Shri Jag Mohan
Sharma also made a statement that he withdraws the
1174
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
present reference in the light of the statement made by the
authorized representative of the management.
3.
In view of the statement made by the representatives
of the parties, the present reference is returned as
withdrawn. Central Govt. be informed. Soft copy as well
as hard copy be sent to the Central Govt. for publication.
Chandigarh.
20.02.2015
S. P. SINGH, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wfuV ju
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¹la- ,y&14012@48@2003&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 461.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. Case No.
CGIT/NGP/67/2004) of the Central Government Industrial
Tribunal-cum-Labour Court, Nagpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of the Unit Run Canteen, Air
Force, Nagpur and their workman, which was received by
the Central Government on 02/03/2015.
[No. L-14012/48/2003-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/67/2004
Date: 12.02.2015
Party No. 1
:
The Office-Incharge,
Unit Run Canteen, Air Force,
Govt. of India, Ministry of Defence,
Vayusena Nagar, Nagpur-440007
Versus
Party No. 2
:
Shri Ramesh Shankar Reddy,
C/o Shri B.N.Kokate, Exta Apartment,
RMS Colony, Behind Police Line,
Takli, Nagpur.
AWARD
(Dated: 12th February, 2015)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Unit Run Canteen, Air Force and their
workman, Shri Ramesh Shankar Reddy, for adjudication,
as per letter No.L-14012/48/2003-IR (DU) dated 12.07.2004,
with the following Schedule:-
“Whether the action of the management of Unit Run
Canteen, Air Force Station, Vayunagar, Nagpur in
terminating the services of Shri Ramesh Shankar
Reddy w.e.f. 13.02.2002 is legal and justified? If not,
to what relief the workman is entitled?”
2.
On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Ramesh
Shankar Reddy , (‘the workman” in short), filed the
statement of claim and the management of Unit Run
Canteen, Air Force, Nagpur (“Party No. 1” in short) filed
their written statement.
The case of the workman as presented in the
statement of claim is that he was appointed in the canteen
store department w.e.f. 01.02.1998 on daily wages of Rs.
50/- per day and he was in continuous service till 13.02.2002,
when his services were orally terminated by party No.1 in
an illegal manner and he had completed 240 days of work
in a year and as such, his services should not have been
terminated, without following the prescribed Rules and in
the year 1999, he had worked for 292 days and the Hon’ble
Supreme Court in the case of the Union of India versus
M.Aslam & others decided in 2001 have held that
employees working in Unit Run Canteens of the defence
services are Government servants and are entitled to all
the benefits and the Air force canteen is an industry and
services of the said canteens are governed by the
provisions of the Act and termination of his services was
in violation of the provisions of sections 25-F and 25-G of
the Act and his termination from service was illegal,
arbitrary and against the principles of natural justice and
from the date of his termination, he is out of employment
and he is facing severe hardship and he is entitled for
reinstatement in service with consequence benefits.
3.
The party No.1 in the written statement has pleaded
inter alia that the workman is not a “workman” as defined
under the law and the claim made by him is not maintainable
and is liable to be rejected and the claim has been filed
beyond the period of Limitation with ulterior motive and
the provisions of Law under which, the workman has made
the claim are not applicable his case and the Act has no
application to Defence establishments and therefore, this
Tribunal has no jurisdiction to entertain and try the matter.
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It is further pleaded by the party no.1 that the
workman was working in the canteen on daily wages and
he was never in service of the Air force Unit Run canteen
and therefore, there was no question of termination of his
services and the workman was called to work in the canteen
on as and when required basis for offloading the
consignment or for shifting of the stores etc. and he was
never on the pay roll of the canteen and he was never
taken on attendance muster and appointment letter was
never issued to the workman and the claim of the workman
that he worked for 292 days in the year 1999 is not true and
the workman was never an employee of the Unit Run
Canteen and he was engaged only on as and when required
basis and as such, the principles enunciated by the Hon’ble
Apex Court referred in the statement of claim are not
applicable to his case and the workman is not entitled to
any relief.
4.
The workman did not file any rejoinder.
5.
The workman has examined himself as a witness in
support of his case.
In his examination-in-chief which is on affidavit, the
workman has reiterated the facts mentioned in the
statement of claim. However, in his cross-examination, the
workman has admitted that he has not filed any
appointment order as no appointment order was issued
by the management and he has not filed any document to
show that he had completed 240 days of work in any
calendar year.
6.
One Shri Sudhakar Pandey has been examined as a
witness by the party No.1, in support of the stands taken
by it. The examination-in-chief of the witness examined by
party No.1 is on affidavit is more or less in the same line of
the stands taken by party No.1 in the written statement.
In his cross-examination, Shri Pandey has stated
that at present, 12 permanent and 8 casual employees are
working in the canteen in question and the casual
employees engaged in the canteen are being paid their
wages on monthly basis for the actual days of attendance
in the canteen and a register is being maintained regarding
the payment of the wages to the casual employees. This
witness has further stated that the workman was engaged
in the years 2000 and 2001as and when required basis and
management has not produced any attendance register or
payment register in regard to the days of engagement of
the workman and payment of wages to him and he
searched for those registers, but did not find the same and
he was not working in the said canteen in 2000 and 2001
and he cannot say who was the canteen-in charge in 2000
and 2001 and he did not verify the number of days of the
engagement of the workman in the canteen in 2000 and2001
and gate passes are being issued to the casual workers
engaged in the canteen by the security department.
7.
At the time of argument, it was submitted by the
learned advocate for the workman that the workman was
appointed in the canteen store department w.e.f. 01.02.1998
on daily wages of Rs. 50/- per day and he was in continuous
service till 13.02.2002, when his services were terminated
orally by party NO.1 illegally and the workman was issued
with service/gate pass as per the Rules of the Unit Run
Canteen and the canteen store department is a part of the
Unit Run Canteen and the employees working in the
canteen are Government employees and as in the year
1999, the workman completed 292 days of work, he should
not have been terminated from service without following
the provisions of sections 25-F and 25-G of the Act as the
termination of the workman is illegal, he is entitled for his
reinstatement in service with continuity nd full back wages
and other consequence benefits.
In support of the contention, the learned advocate
for the workman placed reliance on the decision of the
Hon’ble apex Court reported in AIR 2001-526(Union of
India Vs.V.M.Aslam).
8.
Per contra, it was submitted by the learned advocate
for the party No.1 that the reference is not maintainable as
there is unexplained inordinate delay in raising the dispute
and the workman was never appointed by party No.1 as
an employee and his engagement was on casual daily wages
basis as and when required for offloading the consignment
or for shifting of stores and as there was no appointment,
there was also, no question of termination of his services
and for the application of section 25-F of the Act, it is
necessary for a workman to prove that in fact he had
worked for 240 days in the preceding 12 months of the
alleged date of termination and the burden to prove the
same lies on the workmen and mere affidavit or self serving
statement made by the workman will not suffice and in
this case, the workman except his evidence on affidavit
has not produced any other evidence in support of his
claim of working for 240 days in the 12 months preceding
the date of his alleged termination and the provisions of
sections 25-F and 25-G of the Act are not applicable to his
case and the workman is not entitle to any relief.
In support of the contentions, the learned advocate
for the party No.1 placed reliance on the decisions reported
in 2008(4) Mh.LJ-652(State of Maharashtra Vs. Anil Eknath
Kharat, (2006)2 SCC-794(Haryana State Agricultural
Marketing Board Vs. Shubash Chand), (2006)1 SCC-106
(R.M.Yellatti Vs. Asstt. Executive Engineer), AIR 2006-1971
(Anil Rishi Vs.Gurbaksg Singh), (2006)8 SCC-67(State of
M.P. Vs. Yogesh), and 2006(4) SCC-1(Secretary, State of
Karnatak Vs. Umadevi)
9
Before delving into the merit of the case, I think it
proper to mention that in view of the definition of
“workman” given in section 2(s) of the Act, an employee
employed on daily wages basis, but under the control and
supervision of the employer is an workman. In this case, it
is the admitted case by the parties that the workman was
engaged by party No.1 on daily wages. So, the workman
can be said to be a “workman” as defined in section 2(s) of
the Act.
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[PART II—SEC. 3(ii)]
10.
So far the contention raised by the learned advocate
for the party No.1 regarding the non maintainability of the
reference due to delay in raising the dispute by the
workman is concerned, it is well settled by the Hon’ble
Apex Court in a number of decisions that the Laws of
Limitation which might bar any Civil Court from giving
remedy in respect of lawful rights should not be applied
by the Industrial Tribunal. On the other hand, it is a well
accepted principle of industrial adjudication that over stale
claim should not be generally encouraged or allowed
unless there is a satisfactory explanation for the delay. In
the decision reported in 2008(4) Mh.LJ-652(supra), the
Hon’ble Bombay High Court also have held that, “Where
the workman raised the demand for reinstatement after
inordinate delay the reference must be dismissed on
account of non-existence of the dispute.”
Judging the case in hand with the touch stone of
the principles as mentioned above, it is found that the
workman raised the dispute before the Assistant Regional
Commissioner (Central), Nagpur in 2003 and the report of
failure of conciliation was submitted by the ALC on
29.07.2003. Hence there was no inordinate delay in raising
the dispute by the workman. So, the contention raised by
the learned advocate for the party No.1 in that regard fails.
11.
At this juncture, I think it proper to mention about
the principles envisage by the Hon’ble Apex Court in the
decisions cited by the learned advocate for the workman,
reported in AIR 2001 SC-526(supra). In the said decision,
the Hon’ble Apex Court have held that:-
“Administrative Tribunals Act (13 of 1985) S.14-
Goventment employee-Defence Services-Employees
in Unit Run Canteens-Are Government employees-
Cat retains jurisdiction to entertain their applications
treating them as Govt. employees, by itself ipso facto
entitle them to get all service benefits as is available
to regular Govt. servants or even their counterpart.”
It is clear from the principle enunciated by the
Hon’ble Apex Court in the decision mentioned above that
the same is regarding the regular employees employed in
the Unit Run Canteens and the jurisdiction of the
Administrative Tribunal to adjudicate the dispute in
respect of such employees. The said decision is not in
regard to employee engaged on daily wages like the
workman. Hence, with respect, I am of the view that the
said decision has no application to the case of the workman.
12.
The claim of the workman is that he was working
with the party no.1 from 01.02.1998 to 13.02.2002 and he
had completed 292 days of work in total in 1999 and he
was entitled for regularization in service, but he was orally
terminated from services on 13.02.2002 without compliance
of the provisions of sections 25-F and 25-G of the Act.
The party no.1 has denied the claim of the workman
and has taken the plea that the workman did not complete
240 days of work in the preceding 12 months of 13.02.2002
and as such, there was no question of compliance of the
provisions of sections 25-F and 25-G of the Act. Party
no.1 has also taken the plea that the workman did not
complete 240 days of work in any calendar year.
13.
Before entering into the arena of merit of the case, in
view of the stands taken by the parties, I think it apposite
to mention about the principles enunciated by the Hon’ble
Apex Court regarding the application of provisions of
section 25-B and 25-F of the Act. The Hon’ble Apex Court,
in the decision reported in AIR 1966 SC-75 (Supra) have
held that:-
“Though section 25-F speaks of continuous service
for not less than one year under the employer, if the
workman has actually worked for 240 days during a
period of 12 calendar months both the conditions
are fulfilled. The definition of “Continuous Service”
need not be read into section 25-B. The fiction
converts service of 240 days in a period of twelve
calendar months into continuous service for one
complete year. The amended section 25-B only
consolidates the provisions of section 25(B) and
2(eee) in one place, adding some other matters. The
purport of the new provisions, however, is not
different. In fact, the amendment of section 25-F of
the principal Act by substituting in clause (b) the
words “for every completed year of continuous
service” has removed a discordance between the
unamended section 25 B and the unamended Cl. (b)
of section 25-F. No uninterrupted service is
necessary it the total service is 240 days in a period
of twelve calendar months either before the several
changes or after these. The only change in the Act
is that this service must be during a period of twelve
calendar months preceding the date with reference
to which calculation has to be made. The last
amendment has now removed a vagueness which
existed in the unamended section 25-B”.
14.
In the decision reported in AIR 1981 SC-1253 (Supra),
the Hon’ble Apex Court have held that,
“Industrial Disputes Act (14 of 1947). Section 25-B
(1) and (2)- Continuous service-Scope of sub-
sections (1) and (2) is different, (words and phrases-
Continuous Service)
Before a workman can complain of retrenchment
being not in consonance with Section 25-F, he has
to show that he has been in continuous service for
not less than one year under that employer, who has
retrenched him from service. Section 25-B as the
dictionary clause for the expression “continuous”.
Both in principle and are precedent it must be held
that section 25-B (2) comprehends a situation where
a workman to not in employment for a period of
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1177
12 calendar months, but has rendered for a period of
240 days within the period of 12 calendar months
commencing and counting backwards from the
relevant date, i.e. the date of retrenchment. If he
has, he would be deemed to be in continuous service
for a period of one year for the purpose of section
25-B and chapter V-A”.
15.
The Hon’ble Apex Court in the decision reported in
AIR 2003 SC-38 (Supra) has held that:
“Industrial Disputes Act (14 of 1947- S.25-F, 10-
Retrenchment compensation-Termination of services
without payment of –Dispute referred to Tribunal-
Case of workman/claimant that he had worked for
240 days in a year preceding his termination- Claim
denied by management-Onus lies upon claimant to
show that he had in fact worked for 240 days in a
year-In absence of proof of receipt of salary workman
is not sufficient evidence to prove that he had
worked for 240 days in a year preceding his
termination.”
16.
In the judgment reported in (2006) 1 SCC-106 (supra),
the Hon’ble Apex Court have held that :-
“Labour Law—Industrial Disputes Act, 1947—Ss.
25-F, 25-B, 11 and 10-Requirement of 240 days’
continuous service—Onus to prove—Evidence to
be led-Applicability of Evidence Act,1872—Held
burden of proof lies on workman. It is for the
workman to adduce cogent evidence, both oral and
documentary—Mere affidavits or self serving
statements made by the workman will not suffice—
Evidence Act not applicable to proceedings under
section 10 I.D.Act.”
17.
So, it is clear from the principles enunciated by the
Hon’ble Apex Court in the decisions mentioned above
that for applicability of Section 25-F of the Act, it is
necessary for the workman by leading cogent evidence,
both oral and documentary to prove that in fact he had
worked for 240 days in the preceding 12 calendar months
commencing and counting backwards from the relevant
date and the burden of such proof is upon the workman.
So, keeping in view the settled principles enunciated by
the Hon’ble Apex Court, now, the present case at hand is
to be considered.
18.
In support of his claim, except his own evidence on
affidavit, the workman has not adduced any other evidence.
It is to be mentioned here that the workman had filed an
application to direct the party No.1 to produce the
vouchers regarding payment of wages to him relating to
the year 1999. However, party No.1 failed to produce the
said vouchers. According to party No.1, the said vouchers
could not be traced out. So, on 13.06.2012, order was
passed by this Tribunal for passing of appropriate order
at the time of final disposal of the reference for non
production of the documents. So, for the non production
of the documents by the party No.1, now, it is to be
considered as to whether adverse inference is to be drawn
against the party No.1.
It is clear from the principles enunciated by the
Hon’ble Apex Court that the scope of enquiry before the
Tribunal is confined to only twelve months preceding the
date of termination to decide question of continuance of
service for the purpose of Section 25-f of the Act. In this
case, there was no application from the side of the workman
to direct the party No.1 to produce documents regarding
his engagement in the preceding 12 months of the date of
his termination i.e. 13.02.2002. Moreover, there is no plea
from the side of the workman that the vouchers relating to
the year 1999 were suppressed by the party No.1. Hence
for non-production of the vouchers of the year relating to
payment of wages to the workman, no adverse inference
is required to be drawn against the party No.1.
19.
In this case, it is not pleaded by the workman that he
had in fact worked for 240 days in the preceding 12 months
of the date of his termination. Neither in the statement of
claim nor in his evidence on affidavit, the workman has
claimed of working for 240 days in the preceding 12 months
of 13.02.2002, the alleged date of his termination. He has
also not produced any other evidence except his own
evidence on affidavit in support of his claim. As the
workman has failed to plead and prove that in fact he had
worked for 240 days in the preceding 12 calendar months
of 13.02.2002, the provisions of Section 25-F of the Act are
not applicable to his case.
Though, the workman has mentioned that there was
violation of the provisions of section 25-G of the Act, he
has neither pleaded nor adduced any evidence to show
that an body else was engaged by party No.1 on daily
wages for working in the canteen store department after
his engagement and such junior was retained by the party
No.1, though he was terminated from services. So, it cannot
be said that there was violation of the provisions of Section
25-F of the Act. Hence, it is ordered:-
ORDER
The action of the management of Unit Run Canteen,
Air Force Station, Vayunagar, Nagpur in terminating the
services of Shri Ramesh Shankar Reddy w.e.f. 13.02.2002
is legal and justified. The workman is not entitled to any
relief.
J. P. CHAND, Presiding Officer
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1178
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
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New Delhi, the 2nd March, 2015
S.O. 462.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. Case No.
CGIT/NGP/85/2005) of the Central Government Industrial
Tribunal-cum-Labour Court, Nagpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of the Bharat Sanchar Nigam
Limited and their workman, which was received by the
Central Government on 02/03/2015.
[No. L-40012/68/2005-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/85/2005
Date: 16.02.2015
Party No. 1
:
The General Manager, Telecom,
Bharat Sanchar Nigam Ltd.,
PO & Distt. Akola,
Maharashtra
Versus
Party No. 2
:
Shri Salahuddin Khan S/o.
Najamuddin Khan,
C/o. Sheikh Farooque, Gaddigodam,
Quadripura, Opp: Laxman Daroga,
Nagpur- 440 001
AWARD
(Dated: 16th February, 2015)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of Section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Bharat Sanchar Nigam Ltd. and their
workman, Shri Salahuddin Khan, for adjudication, as per
letter No.L-40012/68/2005-IR (DU) dated 14.11.2005, with
the following schedule:-
“Whether the management of Bharat Sanchar Nigam
Ltd. through General Manager, Telecommunications,
Akola is justified in terminating the services of
Shri Salahuddin Khan S/o Najamuddin Khan w.e.f.
01.02.2002? If not, to what relief the concerned
workman is entitled?”
2.
On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Salahuddin
Khan, (‘the workman” in short), filed the statement of claim
and the management of Bharat Sanchar Nigam Ltd.,
(“Party No. 1” in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was appointed on 01.06.2000
on daily wages as a driver by party no.1 and he worked as
such till 01.02.2002 with artificial breaks and he has passed
tenth standard and possesses a valid license to drive heavy
motor vehicles and he is having all the requisites
qualifications for appointment to the post of driver and he
was being paid wages for the full week after working for
six days @ Rs. 106.44 Paise per day, but he was not allowed
to avail any other leave or other benefits given to regular
employees of party no.1 and wages was not being paid to
him for the day on which he was remaining on leave and
he was continued on daily wages, in order to defeat his
consequential benefits and regularisation in the post.
The further case of the workman is that he was asked
orally by party no.1 to work regularly from 01.06.2000 as a
driver, a group ‘C’ post on daily wages and one Shri Page
expired in the year 1996 due to heart attack and since then,
there was clear vacancy of the post of driver and he was
performing the duty of a driver in the said clear vacancy
and in the year 1998, driver Nikhade also expired and there
were two clear vacancies and he had also applied for the
post of driver by his applications dated 31.08.2000 and
13.10.2000, but he was orally terminated from service on
01.02.2002 without compliance of the provisions of the
Act and thus, his termination was illegal and he made a
representation dated 08.07.2002, but no action was taken
on the same, so he filed Original Application No. 2144/
2002 before the Central Administrative Tribunal, which
was listed on 18.09.2003 and he withdrew the same with
liberty to file appropriate proceedings, as the department
of communication became a Public Undertaking and he
submitted the approach notice dated 25.10.2004 to the
party no.1 to reinstate him in service and to regularize his
services and he is entitled for permanency to the post of
driver, since he had performed the duties from 01.06.2000
to 01.02.2002 and completed 240 days of continuous service
and the termination of his services orally by party no.1
dated 01.02.2002 was not justified and as the same was
without following the procedure laid down under the Act
and thus ex-facie illegal and since the date of his
termination, he is not gainfully employed and he is entitled
for reinstatement in service with continuity, full back wages
and all consequential benefits.
3.
In the written statement, after denying all the adverse
allegations made in the statement of claim, the party no.1
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1179
has pleaded inter-alia that the reference is not maintainable,
in view of the order passed by the Central Administrative
Tribunal on 25.09.2003, dismissing the Original Application
filed by the workman for want of jurisdiction and the
present reference is liable to be answered in the negative.
It is further pleaded by party no.1 that the workman
was never appointed as a driver, but his services were
availed by it as and when required and he was paid for the
services rendered by him and the workman did not fulfill
all the requisite qualifications to perform the duty of the
driver and the workman was asked to perform the duty of
the driver as and when his services were required on adhoc
arrangement and the department of Telecommunication
was run by Government of India and was guided by the
Rules and Regulations of the Department of
Telecommunication.
It is further pleaded by party no.1 that it had taken
steps for recruitment of driver on the directions of the
Corporate office and public notification was circulated in
the daily newspaper and the workman and other
candidates submitted their applications for the post of
driver, but process of recruitment of the drivers was stayed
on further instructions from its Corporate Authority and
as such, it is not possible to consider the claim of the
workman and recruitment to the post of driver is governed
by the Drivers Recruitment Rules, 1999, which was further
revised in 2001 and the workman having offered his
candidature to the said selection process, which has been
kept in abeyance for the time being has acquiesced to the
selection process and that being so, he cannot now turn
around and seek reinstatement, specifically when he was
engaged on adhoc basis and it is settled proposition of
law that adhoc engagement does not confer any right in
favour of an employee and there being no master servant
relationship between it and the workman, the reference is
liable to be answered in the negative.
4.
In support of their respective claims, both the parties
led oral evidence, besides placing reliance on documentary
evidence. The workman has examined himself as a witness
to prove his case. One Shri Ulhas Bhanudas Sutane has
been examined as a witness by the party no.1.
5.
The workman in his examination-in-chief on affidavit
has reiterated the facts mentioned in the statement of claim.
He has also proved his school leaving certificate, mark
sheet, Employment Exchange registration card, cash
receipts showing payment of wages to him by party no.1,
copies of the applications filed by him for his recruitment
as a permanent driver, copy of his application submitted
to the General Manager, Telecom, Akola for his
reinstatement, his approach notice dated 25.10.2004 and
minutes of the conciliation proceedings held on 24.06.2005
as Exts. W-II to W-X respectively.
In his cross-examination, the workman has admitted
that no appointment order was issued by the management
and his engagement by the management was on daily
wages basis and O.A. case no. 2144/2002 was filed by him
and O.A. case No. 2144/2002 was filed by Abdul Aleem
before the Central Administrative Tribunal, Mumbai Branch
at Nagpur and in response to the notification issued by
the General Manager in the newspaper regarding
appointment of drivers, he had applied for the said post
and the recruitment process of recruiting drivers was
stopped due to the ban order given by the Government.
The workman has denied the suggestions that he was not
engaged continuously and his engagement was as and
when required and that he did not complete 240 days of
work in any calendar year.
6.
The witness examined by party no.1 also in his
examination-in-chief on affidavit has reiterated the facts
mentioned in the written statement.
However, in his cross-examination, the witness for
party no.1 has stated that he does not know the workman
personally and the workman was engaged on daily wages
basis and he cannot say if the workman was engaged from
01.06.2000 to 01.02 2002 on daily wages basis as a driver
by their department and he cannot say if the workman had
completed 240 days of work in each calendar year.
This witness has further admitted that drivers
engaged on daily wages basis also maintain the log books
of the respective vehicle driven by then and such log
books are being counter signed by the concerned
authorities and the log books maintained by the workman,
which are available in the office have not been filed and
except the available log books maintained by the workman,
he did not verify any other document regarding the
engagement of the workman and he cannot produce the
log books available in the office and he also cannot say
the number of log books available in the office.
7.
During the course of argument, it was submitted by
the learned advocate for the workman that the workman
was appointed some time in 01.06.2000 on daily wages
and he worked till 01.02.2002 with artificial breaks and he
has all the requisite qualifications for appointment to the
post of driver and he was paid wages for the whole week
after working for six days and such fact shows that actually
the workman worked continuously from 01.06.2000 to
01.02.2002 and the services of the workman were illegally
terminated by party no.1 orally on 01.02.2002 and the
appointment of the workman was in clear vacancy of the
post of driver, as the regular drivers working with party
no.1, Page and Nikhade died in 1996 and 1998 respectively
and even though, the workman had completed more than
240 days of work in every calendar year, his services were
terminated without compliance of the mandatory
provisions of Section 25-F of the Act, his termination was
illegal and such facts have been amply proved from the
evidence adduced by the workman and the evidence of
the witness of the party no.1.
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[PART II—SEC. 3(ii)]
It was further submitted by the learned advocate for
the workman that an application had been filed on behalf
of the workman for a direction to the party no.1 for
production of documents regarding the appointment of
the workman, including the log book maintained by the
workman in respect of the vehicle he was driving, but
party no.1 denied the maintenance of the log books by the
workman, so this Tribunal rejected the application and it
is clear from the documents filed by the workman, the
admission of the witness examined by the party no.1 and
the suggestions given to the workman regarding the log
book in his cross-examination clearly show that on a false
plea, the party no.1 withheld the best evidence available
to decide the dispute and played fraud with the Tribunal
and for withholding vital documents and playing fraud,
adverse inference has be drawn against the party no.1
and after the termination of the services of the workman,
he has not able to get an employment and he is not gainfully
employed and the workman is entitled for reinstatement
and regularisation in service with continuity, full back
wages and all other consequential benefits.
In support of the submissions, the learned advocate
for the workman placed reliance on the decisions reported
in 2010 II CLR-1(Anoop Sharma Vs. Executive Engineer),
2012 II CLR-796(Executive Engineer Vs. Vitthal Mahapati
Kale) and 2013(2) Bom. LC -396(SC) (Director of
Horticulture Vs.H A Kumar)
8.
Per contra, in the written notes of argument, the
learned advocate for the party No.1 has submitted that
the workman was never appointed as a driver by the party
No.1 but his services were availed as and when required
and the workman did not fulfill all the requisite
qualifications to perform the duty of the driver and
recruitment to the post of driver is governed by “Driver
Recruitment rule,1999”, which was further revised in 2001
and adhoc arrangement does not confer any right in favour
of the workman and such subject matter was decided by
the CGIT, Mumbai in reference case No.06/2003 by award
dated 01.08.2006 and the workman having similarly placed
has no right to seek reinstatement and absorption.
It has been further mentioned by the learned
advocate for the Party No.1 that the workman in his cross-
examination has admitted that his engagement by the
management was on daily wages basis and he was paid
wages for the full week after working for six days and the
workman has not filed any document on record to show
that he had worked for 240 days in one calendar year and
the witness for the management has also stated that the
workman was engaged on daily wages basis and the
burden of proof that he had worked for 240 days in one
calendar year was on the workman, as per the judicial
precedents and the workman has failed to prove the same
and the engagement of a workman on daily wages does
not confer any right on him for claiming regularisation and
the reference is also for adjudication about the termination,
hence question of regularisation of the workman does not
arise and as the workman was engaged on daily wages,
the question of his termination or compliance of the
provisions of Section 25-f of the Act does not arise and
the workman is not entitled to any relief.
9.
At the outset, it is to be mentioned that original
application No.2144/2002 filed by the workman before the
CAT concededly was not adjudicated on merit. As the
said OA was dismissed by the Hon’ble CAT, on the ground
of its having no jurisdiction, the workman cannot be denied
the remedy available to him in another jurisdiction in terms
of the provisions of the statute.
10.
Perused the record including the statement of claim,
written statement, the evidence, both oral and documentary
adduced by the parties and considered the submissions
made by the learned advocates for the parties. Though at
one hand the workman has claimed that he was appointed
as a driver by the party no.1, on the other, he has stated
that his appointment was on daily wages basis. The
workman has admitted that no appointment order was
issued by the party no.1. The documents, Ext. W-II to
W-X filed by the workman and the oral evidence adduced
by the parties show that the workman was engaged by the
party No.1 as and when required. There is nothing on
record to show that the workman was appointed by party
No.1 by following the due procedure of appointment
applicable to party no.1 or that his engagement was against
any permanent vacancy.
11.
The claim of the workman is that though he had
completed 240 days of service prior to his illegal oral
termination from service w.e.f. 01.02.2002, the mandatory
provisions of Section 25-F of the Act were not complied
with. The party no.1 has denied the claim of the workman.
In view of such pleadings, I think it apposite to
mention about the principles enunciated by the Hon’ble
Apex Court regarding the application of provisions of
Section 25-B and 25-F of the Act.
12.
The Hon’ble Apex Court, in the decision reported in
AIR 1966 SC-75 (Employees, Digawadih Colliery Vs. their
workmen) have held that:-
“Though Section 25-F speaks of continuous service
for not less than one year under the employer, if the
workman has actually worked for 240 days during a
period of 12 calendar months both the conditions
are fulfilled. The definition of “Continuous Service”
need not be read into Section 25-B. The fiction
converts service of 240 days in a period of twelve
calendar months into continuous service for one
complete year. The amended Section 25-B only
consolidates the provisions of Section 25(B) and
2(eee) in one place, adding some other matters. The
purport of the new provisions, however, is not
different. In fact, the amendment of Section 25-F of
the principal Act by substituting in clause (b) the
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1181
words “for every completed year of continuous
service” has removed a discordance between the
un-amended section 25 B and the un-amended Cl.
(b) of section 25-F. No uninterrupted service is
necessary it the total service is 240 days in a period
of twelve calendar months either before the several
changes or after these. The only change in the Act
is that this service must be during a period of twelve
calendar months preceding the date with reference
to which calculation has to be made. The last
amendment has now removed a vagueness which
existed in the un-amended section 25-B”.
13.
In the decision reported in AIR 1981 SC-1253
(Mohanlal Vs. M/S Bharat Electronics Ltd.), the Hon’ble
Apex Court have held that,
“Industrial Disputes Act (14 of 1947). Section 25-B
(1) and (2)- Continuous service-Scope of sub-
sections (1) and (2) is different, (words and phrases-
Continuous Service)
Before a workman can complain of retrenchment
being not in consonance with Section 25-F, he has
to show that he has been in continuous service for
not less than one year under that employer, who has
retrenched him from service. Section 25-B as the
dictionary clause for the expression “continuous”.
Both in principle and are precedent it must be held
that section 25-B (2) comprehends a situation where
a workman to not in employment for a period of
12 calendar months, but has rendered for a period of
240 days within the period of 12 calendar months
commencing and counting backwards from the
relevant date, i.e. the date of retrenchment. If he
has, he would be deemed to be in continuous service
for a period of one year for the purpose of section
25-B and chapter V-A”.
14.
The Hon’ble Apex Court in the decision reported in
AIR 2003 SC-38 (M/S Essen Deinay Vs. Rajeev Kumar)
has held that:
“Industrial Disputes Act (14 of 1947)— S. 25-F, 10-
Retrenchment compensation—Termination of
services without payment of—Dispute referred to
Tribunal-Case of workman/claimant that he had
worked for 240 days in a year preceding his
termination—Claim denied by management—Onus
lies upon claimant to show that he had in fact worked
for 240 days in a year—In absence of proof of receipt
of salary workman is not sufficient evidence to prove
that he had worked for 240 days in a year preceding
his termination.”
15.
In the judgment reported in (2006) 1 SCC-106
(R.M.Yellatti Vs. Asstt. Executive Engineer), the Hon’ble
Apex Court have held that:-
“Labour Law-Industrial disputes Act, 1947-Ss. 25-F,
25-B, 11 and 10-Requirement of 240 days’ continuous
service-Onus to prove-Evidence to be led-
Applicability of Evidence Act, 1872-Held burden of
proof lies on workman. It is for the workman to
adduce cogent evidence, both oral and
documentary-Mere affidavits or self serving
statements made by the workman will not suffice-
Evidence Act not applicable to proceedings under
section 10 I.D. Act.”
16.
So, it is clear from the principles enunciated by the
Hon’ble Apex Court in the decisions mentioned above
that for applicability of section 25-F of the Act, it is
necessary for the workman by leading cogent evidence,
both oral and documentary to prove that in fact he had
worked for 240 days in the preceding 12 calendar months
commencing and counting backwards from the relevant
date and the burden of such proof is upon the workman.
So, keeping in view the settled principles enunciated by
the Hon’ble Apex Court, now, the present case at hand is
to be considered.
17.
In support of his claim, the workman besides placing
reliance on his own evidence on affidavit has relied on the
documents, Exts.W-II and W-X. Ext. W-X is the copy of
the minutes of the conciliation proceedings held on
24.06.2005 recorded by the Regional Labour Commissioner,
(Central), Nagpur. According to Ext. W-X, the workman
worked for 155 days from 23.07.2001 to 02.02.2002. Ext W-
X also discloses that the representative for the party No.1
disclosed before the Conciliation Officer that log book of
the vehicle, which the workman was driving for the period
from 01.01.2001 to 27.07.2001 was not available. It is to be
mentioned here that in the written statement, party no.1
has not made any specific denial that the workman did not
complete 240 days of work in the preceding 12 calendar
months of 01.02.2002. Party no.1 in the written statement
has pleaded that, “It is specifically denied that party no.2
(workman) is entitled for permanency since he has worked
from 01.06.2000 till 01.02.2002 and had completed 240 days
of continuous service in one calendar year. Rather, it can
be inferred from the said pleadings that even though the
workman worked from 01.06.2000 till 01.02.2002 and
completed 240 days of continuous service in one calendar
year, he is not entitled for claiming permanency in service.
In the specific pleadings made in the written statement
though party no.1 has stated that the workman was
engaged as and when required, it has not stated as to the
actual days of engagement of the workman and there is
also no denial that the workman did not work for 240 days
in the preceding 12 calendar months of 01.02.2002.
Admittedly, log books were maintained by the
workman during the course of his engagement on daily
wages basis. The workman had filed an application to
direct the party no.1 for production of the log books
maintained by him, but party no.1 took a false plea that
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[PART II—SEC. 3(ii)]
such log books were not maintained. Before the
conciliation officer, party no.1 furnished information about
such log books. Ext. W-X or the contents thereof have
not been disputed by party no.1. Witness for the party
no.1 has also admitted about the availability of the log
books maintained by the workman in the office. However,
without any reasonable cause, party no.1 withheld the
best evidence available for final and effective disposal of
the dispute. Hence, adverse inference has to be drawn
against the party no.1 for non-production of the log books
maintained by the workman at least for the period from
01.02.2001 to 01.02.2002. Taking into consideration the
evidence adduced by the workman and the facts and
circumstances of the case in its entirety, it is held that the
workman had in fact worked for 240 days in the preceding
12 calendar months of the date of his termination i.e.
01.02.2002.
18.
Now, the only question remains for consideration is
as to what relief or reliefs, the workman is entitled.
As already mentioned above, it was submitted by
the learned advocate for the workman that it is clear from
the evidence on record that the workman has all the
requisite qualifications including driving license to drive
light as well as heavy vehicles and even though, the
workman had completed more than 240 days of work in
the preceding 12 months of the date of his termination, the
mandatory provisions of section 25-F of the Act were not
complied with and from the date of his termination, he is
not in gainful employment and therefore, he is entitled to
instatement in service with continuity, full back wages
and all other consequential benefits.
In support of his submissions, reliance was placed
on the decisions reported in 2010 II CLR-(SC)-1(supra),
2012 II CLR-796(supra) and 2013 (2) Bom.LC-396(supra).
19.
Per contra, it was submitted by the learned advocate
for the party No.1 that the workman was engaged on daily
wages basis and his engagement was not in accordance
with the statutory rules of recruitment of drivers and even
though, it is held that the workman had infact worked for
240 days, he is not entitled to absorption, regularisation
or reinstatement in service and the workman is not entitled
to any relief.
The learned advocate for the party No.1 cited the
decision of the Hon’ble Apex Court reported in AIR 2006
SC-1806(Secretary, State of Karnatak Vs. Umadevi) in
support of the submissions.
20.
At this juncture, I think it proper to mention that in
the case of Umadevi as mentioned above, the effect of
non-compliance of the mandatory provisions of section
25-f of the Act was not under the consideration of the
Hon’ble Apex Court, which is the case in the case at hand.
Hence, with respect, I am of the view that the decision
reported in AIR 2006 SC-1806(supra) is distinguishable.
21.
In the decision reported in 2010 II CLR-(SC)-(supra),
the Hon’ble Apex Court have held that:-
“Held that (i) it is very well settled that one month’s
notice pay and compensation as per section 25-F (a)
and (b) has to be given to the workman, before he is
asked to go; (ii) finding recorded by the Tribunal
cum Labour Court on the non-compliance of section
25-f was based on correct appreciation of pleadings
and evidence on record-High Court committed
serious error by setting aside the award of
reinstatement (iii) No case pleaded by respondent
before Labour Court that appellant was engaged/
appointed without following statutory rules or Arts.
14 and16 of Constitution of India-High Court not
justified in coming to the said conclusion.”
22.
In the decision reported in 2013 (2) Bombay LC-
396(supra), the Hon’ble Apex Court have held that:-
“Industrial Disputes Act, 1947-Section 25 F-
Reinstatement-High Court reinstated respondent on
ground that respondent worked for more than 240
days in the year preceding to his termination and
that he was not given either notice or retrenchment
compensation-hence appeal-Held: there was breach
of condition under section 25 –F, hence no
interference warranted with order.”
23.
In the decision reported in 2012 II CLR-796(supra),
the Hon’ble Bombay High Court have held that:-
“Industrial Disputes Act, 1947-Ss10(1), 25-F-
Reinstatement-Challenge to award for reinstatement
with full back wages in favour of respondent-
workman-Held that (i) though the workman was
temporary-daily wager, he had worked for more than
three years, but was terminated without compliance
of procedure laid down u/s. 25-F of the Act(ii) the
Labour Court rightly held the termination of workman
unsustainable and invalid; (iii) no reason to interfere
with the conclusions drawn by the Labour Court
that the termination of service of the workman is
illegal; (iv) but there is no justification for grant of
full back wages-that part of award modified-back
wages reduced to 50%.”
24.
However, it is to be mentioned here that there are
number of conflict decisions of the Hon’ble Apex Court
including the recent decisions reported in 2103(5) SCC-
136 (Assistant Engineer, Rajsthan development
Corporation and another Vs. Gitam Singh) and 2014(1) Mh.
LJ-151(Chief Administator, Housing Board, Haryana VS.
Diwan Chand)
In the decision reported in (2013) 5 SCC-136(supra),
the Hon’ble Apex Court have held that:-
“Labour Law-Industrial Disputes Act, 1947-Ss. 25-F
and 11-A-Daily rated worker- Wrongful termination
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1183
of service-Relief-Compensation and not
reinstatement-Factors to be taken into account while
granting consequential relief-Distinction should be
drawn between daily rated worker and worker
holding regular post.”
25.
In the decision reported in 2014(1) Mh. LJ-157(supra),
the Hon’ble Apex Court have held that:-
“Industrial Disputes Act (14 of1947), S.25-F-
Respondent workman had put in more than 240 days
service in a year when his service came to be
terminated-non-compliance of section 25-F- Labour
court awarded reinstatement with continuity of
service without back wages- Respondent workman
was out of service for a very long period-order
passed by labour Court substituted by an award of
compensation of Rs. 1 lakh.”
It is well settled that where there is conflict between
decisions of co-equal benches of Hon’ble Supreme Court-
Later decision should be followed. In view of such settled
principles, the recent judgments of the Hon’ble Apex Court
are to be followed.
In this case, the workman was initially engaged as
daily wager driver by the party No.1 on 01.06.2000. His
engagement continued for about 2 years up to 01.02.2002,
i.e. about 13 years back. The engagement of the workman
was not in accordance with the Rules of recruitment of
drivers of party No.1. So, applying the principles
enunciated by the Hon’ble Apex Court in the recent
judgments as mentioned above and taking into
consideration the entire facts and circumstances of the
case, it appears to me that the relief of reinstatement cannot
be justified and instead monetary compensation would
meet the ends of justice. In my considered opinion, the
compensation of Rs.50,000/-(Rupees fifty thousand) only
in lieu of reinstatement shall be appropriate. Hence, it is
ordered:
ORDER
The action of the management of BSNL through
General Manager, Telecommunications, Akola in
terminating the services of Shri Salahuddin Khan S/o.
Najamuddin Khan w.e.f. 01.02.2002 is unjustified. The
workman is entitled for monetary compensation of
Rs. 50,000/- (Rupees fifty thousand) only in lieu of
reinstatement. He is not entitled to any other relief. The
party No.1 is directed to make the payment within one
month of the publication of the award in the official gazette,
failing which, the amount shall carry interest at the rate of
9 per cent per annum.
J. P. CHAND, Presiding Officer
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New Delhi, the 2nd March, 2015
S.O. 463.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. Case No.
CGIT/NGP/84/2005) of the Central Government Industrial
Tribunal-cum-Labour Court, Nagpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of the Bharat Sanchar Nigam
Limited and their workman, which was received by the
Central Government on 02/03/2015.
[No. L-40012/67/2005-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/84/2005
Date: 16.02.2015
Party No. 1
:
The General Manager, Telecom,
Bharat Sanchar Nigam Ltd.,
PO & Distt. Akola,
Maharashtra
Versus
Party No. 2
:
Shri Abdul Aleem S/o. Shri Abdul
Saleem, C/o. Sheikh Farooque,
Gaddigodam, Quadripura, Opp:
Laxman Daroga, Nagpur- 440 001
AWARD
(Dated: 16th February, 2015)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Bharat Sanchar Nigam Ltd. and their
workman, Shri Abdul Aleem for adjudication, as per letter
No.L-40012/67/2005-IR (DU) dated 26.10.2005, with the
following schedule:-
“Whether the management of Bharat Sanchar
Nigam Ltd. through General Manager,
Telecommunications, Akola is justified in terminating
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THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
the services of Shri Abdul Aleem S/o. Shri Abdul
Saleem w.e.f. 08.07.2002? If not, then to what relief
the said workman is entitled?”
2.
On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Abdul Aleem,
(‘the workman” in short), filed the statement of claim and
the management of Bharat Sanchar Nigam Ltd. (“Party
No. 1” in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was appointed sometime in
the year 1994 on daily wages as a driver by party no.1 and
he worked as such till 08.07.2002 with artificial breaks and
he has passed XII standard and possesses a valid license
to drive heavy motor vehicles and he is having all the
requisites qualifications for appointment to the post of
driver and he was paid wages at the rate of Rs. 40/- per
day from 1994 to 1998 and from 1998 to 1999 at the rate of
Rs.71.80 per day and from 1999 to 08.07.2002 at the rate of
Rs. 106.66 per day and he was being paid wages for the
full week after working for six days, but he was not allowed
to avail any other leave or other benefits given to regular
employees of party no.1 and wages was not being paid to
him for the day on which he was remaining on leave and
he was continued on daily wages, in order to defeat his
consequential benefits and regularisation in the post.
The further case of the workman is that he was asked
orally by party no.1 to work regularly from 06.03.1995 as a
driver, a group ‘C’ post on daily wages and one Shri Page
expired in the year 1996 due to heart attack and since then,
there was clear vacancy of the post of driver and he was
performing the duty of a driver in the said clear vacancy
and in the year 1998, driver Nikhade also expired and there
were two clear vacancies and he had been issued various
certificates from time to time since 1995 and he had also
applied for the post of driver by his applications dated
20.11.1996, 01.12.1997, 24.08.2000 and 13.10.2000, but he
was orally terminated from service on 08.07.2002, without
compliance of the provisions of the Act and thus, his
termination was illegal and he made a representation dated
15.07.2002, but no action was taken on the same, so he
filed Original Application No. 2143/2002, before the Central
Administrative Tribunal, which was listed on 18.09.2003
and he withdrew the same with liberty to file appropriate
proceedings, as the department of communication became
a Public Undertaking and he submitted the approach notice
dated 25.10.2004 to the party no.1 to reinstate him in service
and to regularize his services and he is entitled for
permanency to the post of driver, since he had performed
the duties from 1995 to 08.07.2002 and completed 240 days
of continuous service and the termination of his services
orally by party no.1 dated 08.07.2002 was not justified and
as the same was without following the procedure laid down
under the Act and thus ex-facie illegal and since the date
of his termination, he is not gainfully employed and he is
entitled for reinstatement in service with continuity, full
back wages and all consequential benefits.
3.
In the written statement, after denying all the adverse
allegations made in the statement of claim, the party no.1
has pleaded inter-alia that the reference is not maintainable,
in view of the order passed by the Central Administrative
Tribunal on 25.09.2003, dismissing the Original Application
filed by the workman for want of jurisdiction and the
present reference is liable to be answered in the negative.
It is further pleaded by the party no.1 that the
workman was never appointed as a driver, but his services
were availed by it as and when required and the workman
was paid for the services rendered by him and the workman
did not fulfill all the requisite qualifications to perform the
duty of the driver and the workman was asked to perform
the duty of the driver as and when his services were
required on adhoc arrangement and the department of
Telecommunication was run by Government of India and
was guided by the Rules and Regulations of the
Department of Telecommunication.
It is further pleaded by party no.1 that it had taken
steps for recruitment of driver on the directions of the
Corporate office and public notification was circulated in
the daily newspaper and the workman and other
candidates submitted their applications for the post of
driver, but process of recruitment of the drivers was stayed
on further instructions from its Corporate Authority and
as such, it is not possible to consider the claim of the
workman and recruitment to the post of driver is governed
by the Drivers Recruitment Rules, 1999, which was further
revised in 2001 and the workman having offered his
candidature to the said selection process, which has been
kept in abeyance for the time being has acquiesced to the
selection process and that being so, he cannot now turn
around and seek reinstatement, specifically when he was
engaged on adhoc basis and it is the settled proposition
of law that adhoc engagement does not confer any right
in favour of an employee and there being no master and
servant relationship between it and the workman, the
reference is liable to be answered in the negative.
4.
In support of their respective claims, both the parties
led oral evidence, besides placing reliance on documentary
evidence. The workman has examined himself as a witness
to prove his case. One Shri Ulhas Bhanudas Sutane has
been examined as a witness by the party no.1.
5.
The workman in his examination-in-chief on affidavit
has reiterated the facts mentioned in the statement of claim.
He has also proved his school leaving certificate, mark
sheet, Employment Exchange registration card, experience
certificates issued by the authorities of party No.1 in his
favour, copies of the applications filed by him for his
recruitment as a permanent driver, copy of his application
submitted to the General Manger, Telecom, Akola for his
reinstatement, his approach notice dated 25.10.2004 and
¹Hkkx IIó[k.M 3(ii)º
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1185
minutes of the conciliation proceedings held on 24.06.2005
as Exts. W-II to W-XXIII respectively.
In his cross-examination, the workman has admitted
that no appointment order was issued by the management
and his engagement by the management was on daily
wages basis and O.A. case no. 2143/2002 was filed by him
and O.A. case No. 2144/2002 was filed by Salahuddin Khan
before the Central Administrative Tribunal, Mumbai Branch
at Nagpur and in response to the notification issued by
the General Manager in the newspaper regarding
appointment of drivers, he had applied for the said post
and the recruitment process of recruiting drivers was
stopped due to the ban order given by the Government.
The workman has denied the suggestions that he was not
engaged continuously and his engagement was as and
when required and that he did not complete 240 days of
work in any calendar year.
6.
The witness examined by the party no.1 also in his
examination-in-chief on affidavit has reiterated the facts
mentioned in the written statement.
However, in his cross-examination, the witness for
party no.1 has stated that he does not know the workman
personally and the workman was engaged on daily wages
basis and he cannot say if the workman was engaged from
1994 to 08.07.2002 on daily wages basis as a driver by their
department and he cannot say if the workman had
completed 240 days of work in each calendar year.
This witness has further admitted that drivers
engaged on daily wages basis also maintain the log books
of the respective vehicle driven by then and such log
books are being counter signed by the concerned
authorities and the log books maintained by the workman,
which are available in the office have not been filed and
except the available log books maintained by the workman,
he did not verify any other document regarding the
engagement of the workman and he cannot produce the
log books available in the office and he also cannot say
the number of log books available in the office.
7.
During the course of argument, it was submitted by
the Learned Advocate for the workman that the workman
was appointed in 1994 on daily wages and he worked till
08.07.2002 with artificial breaks and he has all the requisite
qualifications for appointment to the post of driver and he
was paid wages for the whole week after working for six
days and such fact shows that actually the workman
worked continuously from 1994 to 08.07.2002 and the
services of the workman were illegally terminated by party
no.1 orally on 08.07.2002 and the appointment of the
workman was in clear vacancy of the post of driver, as the
regular drivers working with party no.1, Page and Nikhade
died in 1996 and 1998 respectively and even though, the
workman had completed more than 240 days of work in
every calendar year, his services were terminated without
compliance of the mandatory provisions of section 25-F
of the Act, his termination was illegal and such facts have
been amply proved from the evidence adduced by the
workman and the evidence of the witness of the party
no.1.
It was further submitted by the Learned Advocate
for the workman that an application had been filed on
behalf of the workman for a direction to the party no.1 for
production of documents regarding the appointment of
the workman, including the log book maintained by the
workman in respect of the vehicle he was driving, but
party no.1 denied the maintenance of the log books by the
workman, so this Tribunal rejected the application and it
is clear from the document, Ext. W-XXIII, the admission of
the witness examined by the party no.1, it is clear that on
a false plea, the party no.1 has withheld the best evidence
available to decide the dispute and played fraud with the
Tribunal and for withholding vital documents and playing
fraud, adverse inference has be drawn against the party
no.1 and after the termination of the services of the
workman, he has not able to get an employment and he is
not gainfully employed and the workman is entitled for
reinstatement and regularisation in service with continuity,
full back wages and all other consequential benefits.
In support of the submissions, the learned advocate
for the workman placed reliance on the decisions reported
in 2010 II CLR-1(Anoop Sharma vs. Executive Engineer),
2012 II CLR-796(Executive Engineer Vs. Vitthal Mahapati
Kale) and 2013(2) Bom. LC -396(SC) (Director of
Horticulture Vs. H. A. Kumar)
8.
Per contra, in the written notes of argument, the
Learned Advocate for the party No.1 has submitted that
the workman was never appointed as a driver by the party
No.1 but his services were availed as and when required
and the workman did not fulfill all the requisite
qualifications to perform the duty of the driver and
recruitment to the post of driver is governed by “Driver
Recruitment rule,1999”, which was further revised in 2001
and adhoc arrangement does not confer any right in favour
of the workman and such subject matter was decided by
the CGIT, Mumbai in reference case No.06/2003 by award
dated 01.08.2006 and the workman having similarly placed
has no right to seek reinstatement and absorption.
It has been further mentioned by the Learned
Advocate for the Party No.1 that the workman in his cross-
examination has admitted that his engagement by the
management was on daily wages basis and he was paid
wages for the full week after working for six days and the
workman has not filed any document on record to show
that he had worked for 240 days in one calendar year and
the witness for the management has also stated that the
workman was engaged on daily wages basis and the
burden of proof that he had worked for 240 days in one
calendar year was on the workman, as per the judicial
precedents and the workman has failed to prove the same
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THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
and the engagement of a workman on daily wages does
not confer any right on him for claiming regularisation and
the reference is also for adjudication about the termination,
hence question of regularisation of the workman does not
arise and as the workman was engaged on daily wages,
the question of his termination or compliance of the
provisions of section 25-F of the Act does not arise and
the workman is not entitled to any relief.
9.
At the outset, it is to be mentioned that original
application No.2143/2002 filed by the workman before the
CAT concededly was not adjudicated on merit. As the
said OA was dismissed by the Hon’ble CAT, on the ground
of its having no jurisdiction, the workman cannot be denied
the remedy available to him in another jurisdiction in terms
of the provisions of the statute.
10. Perused the record including the statement of claim,
written statement, the evidence, both oral and documentary
adduced by the parties and considered the submissions
made by the Learned Advocates for the parties. Though
at one hand the workman has claimed that he was
appointed as a driver by the party no.1, on the other, he
has stated that his appointment was on daily wages basis.
The workman has admitted that no appointment order was
issued by the party no.1. The documents, Ext. W-IV to
W-XVI filed by the workman and the oral evidence adduced
by the parties show that the workman was engaged by the
party No.1 as and when required. There is nothing on
record to show that the workman was appointed by party
No.1 by following the due procedure of appointment
applicable to party no.1 or that his engagement was against
any permanent vacancy.
11.
The claim of the workman is that though he had
completed 240 days of service prior to his illegal oral
termination from service w.e.f. 08.07.2002, the mandatory
provisions of Section 25-F of the Act were not complied
with. The party no.1 has denied the claim of the workman.
In view of such pleadings, I think it apposite to
mention about the principles enunciated by the Hon’ble
Apex court regarding the application of provisions of
section 25-B and 25-F of the Act.
12.
The Hon’ble Apex court, in the decision reported in
AIR 1966 SC-75 (Employees, Digawadih Colliery Vs. their
workmen) have held that:-
“Though section 25-F speaks of continuous service
for not less than one year under the employer, if the
workman has actually worked for 240 days during a
period of 12 calendar months both the conditions
are fulfilled. The definition of “Continuous Service”
need not be read into section 25-B. The fiction
converts service of 240 days in a period of twelve
calendar months into continuous service for one
complete year. The amended section 25-B only
consolidates the provisions of section 25(B) and
2(eee) in one place, adding some other matters. The
purport of the new provisions, however, is not
different. In fact, the amendment of section 25-F of
the principal Act by substituting in clause (b) the
words “for every completed year of continuous
service” has removed a discordance between the
un-amended section 25 B and the un-amended Cl.
(b) of section 25-F. No uninterrupted service is
necessary it the total service is 240 days in a period
of twelve calendar months either before the several
changes or after these. The only change in the Act
is that this service must be during a period of twelve
calendar months preceding the date with reference
to which calculation has to be made. The last
amendment has now removed a vagueness which
existed in the un-amended section 25-B”.
13.
In the decision reported in AIR 1981 SC-1253
(Mohanlal Vs. M/S Bharat Electronics Ltd.), the Hon’ble
Apex Court have held that,
“Industrial Disputes Act (14 of 1947). Section 25-B
(1) and (2)- Continuous service-Scope of sub-
sections (1) and (2) is different, (words and phrases-
Continuous Service)
Before a workman can complain of retrenchment
being not in consonance with Section 25-F, he has
to show that he has been in continuous service for
not less than one year under that employer, who has
retrenched him from service. Section 25-B as the
dictionary clause for the expression “continuous”.
Both in principle and are precedent it must be held
that section 25-B (2) comprehends a situation where
a workman to not in employment for a period of 12
calendar months, but has rendered for a period of
240 days within the period of 12 calendar months
commencing and counting backwards from the
relevant date, i.e. the date of retrenchment. If he
has, he would be deemed to be in continuous service
for a period of one year for the purpose of section
25-B and chapter V-A”.
14.
The Hon’ble Apex Court in the decision reported in
AIR 2003 SC-38 (M/s. Essen Deinay Vs. Rajeev Kumar)
has held that:
“Industrial Disputes Act (14 of 1947- S.25-F, 10-
Retrenchment compensation-Termination of services
without payment of –Dispute referred to Tribunal-
Case of workman/claimant that he had worked for
240 days in a year preceding his termination- Claim
denied by management-Onus lies upon claimant to
show that he had in fact worked for 240 days in a
year-In absence of proof of receipt of salary workman
is not sufficient evidence to prove that he had
worked for 240 days in a year preceding his
termination.”
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1187
15.
In the judgment reported in (2006) 1 SCC-
106(R.M.Yellatti Vs. Asstt. Executive Engineer), the
Hon’ble Apex Court have held that:-
“Labour Law-Industrial disputes Act, 1947-Ss. 25-F,
25-B, 11 and 10-Requirement of 240 days’ continuous
service-Onus to prove-Evidence to be led-
Applicability of Evidence Act, 1872-Held burden of
proof lies on workman. It is for the workman to
adduce cogent evidence, both oral and
documentary-Mere affidavits or self serving
statements made by the workman will not suffice-
Evidence Act not applicable to proceedings under
section 10 I.D. Act.”
16.
So, it is clear from the principles enunciated by the
Hon’ble Apex Court in the decisions mentioned above
that for applicability of section 25-F of the Act, it is
necessary for the workman by leading cogent evidence,
both oral and documentary to prove that in fact he had
worked for 240 days in the preceding 12 calendar months
commencing and counting backwards from the relevant
date and the burden of such proof is upon the workman.
So, keeping in view the settled principles enunciated by
the Hon’ble Apex Court, now, the present case at hand is
to be considered.
17.
In support of his claim, the workman besides placing
reliance on his own evidence on affidavit has relied on the
documents, Exts.W-IV to W-XXIII. Ext. W-XXIII is the
copy of the minutes of the conciliation proceedings held
on 24.06.2005 recorded by the Regional Labour
Commissioner, (Central), Nagpur. According to Ext. W-
XXIII, the workman worked for 288 days from 20.07.2001
to 08.07.2002 It is to be mentioned here that in the written
statement, party no.1 has not made any specific denial
that the workman did not complete 240 days of work in the
preceding 12 calendar months of 08.07.2002. Party no.1 in
the written statement has pleaded that, “It is specifically
denied that party no.2 (workman) is entitled for permanency
since he has worked from 1995 till 08.07.2002 and had
completed 240 days of continuous service in one calendar
year. Rather, it can be inferred the above from the said
pleading that even though the workman worked from 1995
till 08.07.2002 and completed 240 days of continuous
service in one calendar year, he is not entitled for claiming
permanency in service. In the specific pleadings made in
the written statement though party no.1 has stated that
the workman was engaged as and when required, it has
not stated as to the actual days of engagement of the
workman and there is also no denial that the workman did
not work for 240 days in the preceding 12 calendar months
of 08.07.2002.
Admittedly, log books were maintained by the
workman during the course of his engagement on daily
wages basis. The workman had filed an application to
direct the party no.1 for production of the log books
maintained by him, but party no.1 took a false plea that
such log books were not maintained. Before the
conciliation officer, party no.1 furnished information about
such log books. Ext. W-XXIII or the contents thereof have
not been disputed by party no.1. Witness for the party
no.1 has also admitted about the availability of the log
books maintained by the workman in the office. However,
without any reasonable cause, party no.1 withheld the
best evidence available for final and effective disposal of
the dispute. Hence, adverse inference has to be drawn
against the party no.1 for non-production of the log books
maintained by the workman at least for the period from
09.07.2001 to 08.07.2002. Taking into consideration the
evidence adduced by the workman and the facts and
circumstances of the case in its entirety it is held that the
workman had in fact worked for 240 days in the preceding
12 calendar months of the date of his termination i.e.
08.07.2002.
18.
Now, the only question remains for consideration is
as to what relief or reliefs, the workman is entitled.
As already mentioned above, it was submitted by
the Learned Advocate for the workman that it is clear from
the evidence on record that the workman has all the
requisite qualifications including driving license to drive
light as well as heavy vehicles and even though, the
workman had completed more than 240 days of work in
the preceding 12 months of the date of his termination, the
mandatory provisions of section 25-F of the Act were not
complied with and from the date of his termination, he is
not in gainful employment and therefore, he is entitled to
instatement in service with continuity, full back wages
and all other consequential benefits.
In support of his submissions, reliance was placed
on the decisions reported in 2010 II CLR-(SC)-1(supra),
2012 II CLR-796(supra) and 2013 (2) Bom.LC-396(supra).
19.
Per contra, it was submitted by the Learned
Advocate for the party No.1 that the workman was
engaged on daily wages basis and his engagement was
not in accordance with the statutory rules of recruitment
of drivers and even though, it is held that the workman
had infact worked for 240 days, he is not entitled to
absorption, regularisation or reinstatement in service and
the workman is not entitled to any relief.
The Learned Advocate for the party No.1 cited the
decision of the Hon’ble Apex Court reported in AIR 2006
SC-1806(Secretary,State of Karnatak Vs. Umadevi) in
support of the submissions.
20.
At this juncture, I think it proper to mention that in
the case of Umadevi as mentioned above, the effect of
non-compliance of the mandatory provisions of section
25-F of the Act was not under the consideration of the
Hon’ble Apex Court, which is the case in the case at hand.
Hence, with respect, I am of the view that the decision
reported in AIR 2006 SC-1806(supra) is distinguishable.
1188
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
21.
In the decision reported in 2010 II CLR-(SC)-(supra),
the Hon’ble Apex Court have held that:-
“Held that (i) it is very well settled that one month’s
notice pay and compensation as per section 25-F (a)
and (b) has to be given to the workman, before he is
asked to go; (ii) finding recorded by the Tribunal-
cum-Labour Court on the non-compliance of section
25-F was based on correct appreciation of pleadings
and evidence on record-High Court committed
serious error by setting aside the award of
reinstatement (iii) No case pleaded by respondent
before Labour Court that appellant was engaged/
appointed without following statutory rules or Arts.
14 and16 of Constitution of India-High Court not
justified in coming to the said conclusion.”
22.
In the decision reported in 2013 (2) Bombay LC-
396(supra), the Hon’ble Apex Court have held that:-
“Industrial Disputes Act, 1947-Section 25 F-
Reinstatement-High Court reinstated respondent on
ground that respondent worked for more than 240
days in the year preceding to his termination and
that he was not given either notice or retrenchment
compensation-hence appeal-Held: there was breach
of condition under section 25 –F, hence no
interference warranted with order.”
23.
In the decision reported in 2012 II CLR-796(supra),
the Hon’ble Bombay High Court have held that:-
“Industrial Disputes Act,1947-Ss10(1), 25-F-
Reinstatement-Challenge to award for reinstatement
with full back wages in favour of respondent-
workman-Held that (i) though the workman was
temporary-daily wager, he had worked for more than
three years, but was terminated without compliance
of procedure laid down u/s. 25-F of the Act(ii) the
Labour Court rightly held the termination of workman
unsustainable and invalid; (iii) no reason to interfere
with the conclusions drawn by the Labour Court
that the termination of service of the workman is
illegal; (iv) but there is no justification for grant of
full back wages-that part of award modified-back
wages reduced to 50%.”
24.
However, it is to be mentioned here that there are
number of conflict decisions of the Hon’ble Apex Court
including the recent decisions reported in 2103(5) SCC-
136(Assistant Engineer,Rajsthan development
Corporation and another Vs. Gitam Singh) and 2014(1) Mh.
LJ-151(Chief Administator Housing Board, Haryana Vs.
Diwan Chand)
In the decision reported in (2013) 5 SCC-136(supra),
the Hon’ble Apex Court have held that:-
“Labour Law-Industrial Disputes Act,1947-Ss. 25-F
and 11-A-Daily rated worker- Wrongful termination
of service-Relief-Compensation and not
reinstatement-Factors to be taken into account while
granting consequential relief-Distinction should be
drawn between daily rated worker and worker
holding regular post.”
25.
In the decision reported in 2014(1) Mh. LJ-157(supra),
the Hon’ble Apex Court have held that:-
“Industrial Disputes Act (14 of1947), S.25-F-
Respondent workman had put in more than 240 days
service in a year when his service came to be
terminated-non-compliance of section 25-F- Labour
Court awarded reinstatement with continuity of
service without back wages- Respondent workman
was out of service for a very long period-order
passed by Labour Court substituted by an award of
compensation of Rs. 1 lakh.”
It is well settled that where there is conflict between
decisions of co-equal benches of Hon’ble Supreme Court-
Later decision should be followed. In view of such settled
principles, the recent judgments of the Hon’ble Apex Court
are to be followed.
In this case, the workman was initially engaged as
daily wager driver by the party No1 in the year 1994. His
engagement continued for about 8 years up to 08.07.2002,
i.e. about 13 years back. The engagement of the workman
was not in accordance with the Rules of recruitment of
drivers of party No.1. So, applying the principles
enunciated by the Hon’ble Apex Court in the recent
judgments as mentioned above and taking into
consideration the entire facts and circumstances of the
case, it appears to me that the relief of reinstatement cannot
be justified and instead monetary compensation would
meet the ends of justice. In my considered opinion, the
compensation of Rs.1,50,000/- (Rupees one lakh and fifty
thousand only), in lieu of reinstatement shall be
appropriate. Hence, it is ordered:-
ORDER
The action of the management of BSNL through
General Manager, Telecommunications, Akola in
terminating the services of Shri Abdul Aleem S/o. Shri
Abdul Saleem w.e.f. 08.07.2002 is unjustified. The workman
is entitled for monetary compensation of Rs. 1,50,000/-
(Rupees one lakh and fifty thousand only), in lieu of
reinstatement. He is not entitled to any other relief. The
party No.1 is directed to make the payment within one
month of the publication of the award in the official gazette,
failing which, the amount shall carry interest at the rate of
9 per cent per annum.
J. P. Chand, Presiding Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1189
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 464-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj jk"Vªh; ikni
vuqokaf'kd laLFkku C;wjks] ih-;w-,l-,- ds izcaèkra=k ds lac¼ fu;kstdksa
vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa
dsUæh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky; ua- 1] fnYyh
ds iapkV (lanHkZ la[;k 27@2014) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 26@02@2015 dks izkIr gqvk FkkA
¹la- ,y&42011@150@2013&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 464.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 27/2014)
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 Rashtriya Padap Anuvanshik
Sansthan Bureau, P.U.S.A. and their workmen, which was
received by the Central Government on 26/02/2015.
[No. L-42011/150/2013-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. 27/2014
Shri Giriraj & 27 others
Delhi Karamchari Sangh,
Regd. Affiliated Bhartiya Mazdoor Sangh,
5239 Ajmeri Gate,
New Delhi-110 006
...Workman
Versus
Rashtriya Padap Anuvanshik Sansthan Bureau,
P.U.S.A.,
Pusa Campus,
New Delhi-110 012
...Management
AWARD
Central Government, vide letter No.L-42011/150/2013-
IR(DU) dated 19.02.2014, referred the following industrial
dispute to this Tribunal for adjudication:
“Whether the action of the management of Rashtriya
Padap Anuvanshik Sansthan Bureau in terminating
the services of Shri Giriraj and 27 others, ex-beldars
during pendency of conciliation proceedings with
effect from 24.03.2013/12.04.2013(list enclosed) is
justified or not? If not, what relief will be given to
the workman and from which date?
2.
On receipt of the above reference, notice was sent
to the workman as well as the management. None appeared
on behalf of the claimant. As such, this Tribunal ordered
issuance of fresh notice to the workman. Despite sending
notice, workman has not appeared before the Tribunal so
as to pursue his case. Thus, it is clear that the workman is
not interested in the adjudication of the reference on merits.
3.
Since the workman has neither put in his appearance
nor has he led any evidence so as to prove his cause
against the management, as such, this Tribunal is left with
no choice, except to pass a ‘No Dispute/Claim’ award. Let
this award be sent to the appropriate Government, as
required under Section 17 of the Industrial Disputes Act,
1947, for publication.
Dated : February 24, 2015
A.C. DOGRA, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2015
dk-vk- 465-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dfe'uj
E;qfufliy dkjiksjs'ku vkWiQ fnYyh ds izcaèkra=k ds lac¼ fu;kstdksa
vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa
dsUæh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky; ua- 1] fnYyh
ds iapkV (lanHkZ la[;k 197@2012) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 26@02@2015 dks izkIr gqvk FkkA
¹la- ,y&42012@137@2012&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 2nd March, 2015
S.O. 465.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 197/
2012) 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 Commissioner, Municipal
Corporation of Delhi and their workman, which was
received by the Central Government on 26/02/2015.
[No. L-42012/137/2012-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. 197/2012
The General Secretary,
Delhi Municipal Karamchari Ekta Union,
780, Bali Maran, Chandni Chowk,
Delhi
...Workman
Versus
1190
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
The Commissioner,
Municipal Corporation of Delhi,
Karkardooma Court Complex,
Town Hall, Chandni Chowk,
Delhi
...Management
AWARD
Central Government, vide letter No.L-42012/137/2012-
IR(DU) dated 07.12.2012, referred the following industrial
dispute to this Tribunal for adjudication:
“Whether the action of the management of MCD in
not granting the workman Shri Dharam Pal, S/o late
Khajan yearly increments with effect from 08.07.2003
and upgradations under ACP Scheme and MACP
scheme of the 6th Pay Commission is legal and
justified? If not, what relief the workman is entitled
to?
2.
On receipt of the above reference, notice was sent
to the workman as well as the management. Though the
claimant was represented by his authorized representative
on a few occasions and sought time for filing claim
statement, yet the same was not filed. However, later,
neither the workman nor any authorized representative
has appeared before the Tribunal so as to pursue his case.
Thus, it is clear that the workman is not interested in the
adjudication of the reference on merits.
3.
Since the workman has neither put in his appearance
nor has he led any evidence so as to prove his cause
against the management, as such, this Tribunal is left with
no choice, except to pass a ‘No Dispute/Claim’ award. Let
this award be sent to the appropriate Government, as
required under Section 17 of the Industrial Disputes Act,
1947, for publication.
Dated : February 23, 2015
A. C. DOGRA, Presiding Officer
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New Delhi, the 2nd March, 2015
S.O. 466.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. C.R. No. 51/
2008) of the Central Government Industrial Tribunal-cum-
Labour Court, Bangalore now as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of the Registrar, Manipal University
and their workman, which was received by the Central
Government on 26/02/2015.
[No. L-42012/18/2008-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIUBNAL-CUM-LABOUR COURT,
BANGALORE
Dated : 16th February, 2015
PRESENT : Shri S. N. NAVALGUND, Presiding Officer
CR No. 51/2008
I Party
II Party
Shri Suraj,
The Registrar,
S/o Shri Raghavan,
Manipal University,
Sneha Laxmi, Kaprigudda,
Manipal – 576 104.
Mangalore - 1.
Appearances :
I Party
:
Shri H. Mangalamba Rao,
Authorised Representative
II Party
:
Sh. K. S. Bhat, Advocate
AWARD
1.
The Central Government vide Order No. L-42012/18/
2008-IR(DU) dated 28.05.2008 in exercise of the powers
conferred by Clause (d) of Sub-Section (1) and Sub-
Section 2(A) of Section 10 of Industrial Dispute act, 1947
has made this reference for adjudication with following
Schedule :
SCHEDULE
“Whether Shri Suraj, Health Inspector, is a workman
under the Industrial Dispute act, 1947? If yes, then
whether the action of the management of Manipal
University in terminating his services w.e.f. 27/03/
2007 is legal and justified? If not, to what relief the
workman is entitled to?”
2.
On receipt of the reference while registering it in CR
51/2008 when notices were issued to both sides, Kum.
Mangalamba Rao, Secretary, BMS Office appeared for I
Party and filed the claim statement on 30.06.2008 and
Sh. K. S. Bhat, Advocate filed vakalat for II Party and filed
the counter statement on 26.03.2010.
3.
The brief facts leading to this reference and award
may be stated as under.
4.
The I Party who was working as Health Inspector,
Department of Community Medicine, KMC, Mangalore
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1191
was served with a letter of Dean, KMC, Mangalore dated
24.06.2006 stating that to renovate the community medicine
department the room occupied by him next to Community
Medicine Department on the 3rd Floor of KMC Building
being required he has to vacate the same and sit in the
MSFM office and handover the Attendance Register of
House Keeping Staff to GM, MSFM by 28.06.2006 and
there after the Dean by his proceedings dated 06.07.2006
directed to vacate the premises immediately and the
telephone connection provided to him may be
disconnected immediately and then on 24.07.2006 the
Registrar kept him under suspension on the ground that
he failed to vacate the premises despite the order of the
superiors and then he was served with charge sheet for
dishonoring orders of the superiors by not vacating the
office premises occupied by him amounting to willfull
insubordination of the superiors as under:
“Charge Sheet
In continuation of the above referred Memo/
Suspension order, we bring the following to your
notice:
1.
It has been alleged that, you have not vacated
the office space occupied by you in the III floor
of the college building at Mangalore even after
several verbal and written instructions given to
you.
2.
The Dean of K.M.C. mangalore has instructed
you vide letter dated 24th June 2006 to vacate
the room which was occupied by you next to
Community Medicine Department on the III
Floor of K.M.C., Mangalore building. It was
also informed to you that the room is required
to be renovated as per the Medical Council of
India guidelines.
3.
Another letter dated 06.07.2006 was issued to
you by the Dean since, even after repeated
requests & Instructions you did not vacate the
room. In this letter you were again clearly
informed that the space is required for expansion
of community Medicine to met the MCI
requirements.
4.
Again on July 13th 2006 another note has been
issued to you by the Dean clearly instructing
to vacate the office space and to move to the
new space provided to you at the ground floor
of the main college building and to hand over
the key to the Head of the Department of
Community Medicine.
5.
Even after instructions given vide above
mentioned letters and verbal requests you have
not vacated the room.
6.
Above conduct on your part is considered as
willful disobedience shown by you and a very
serious offence as per the service rules
governing your employment. By your above
act we are unable to renovate the room as per
the guidelines of MCI. Till date, you have not
vacated the room and you have locked it. This
has caused inconvenience.
7.
Further, we bring to your notice the following
irregularities in discharging your duties which
disclosed through your service records:
a) You were warned by memo dated 10.09.1998
for dereliction of duty for interference in
the departmental work of the Biochemistry
Department for having given directions to
Ms. Sunanda with regard to the duty in
variance with the standing instructions.
b) You were warned by proceedings dated
24.02.1999 for physically assaulting on Ms.
Vidya, Sanitary Worker.
c) Dr. Chira Prakash Rao, Prof and Head of
Anatomy in her letter dated 01.11.2001 to
the Dean, had stated you had marked “A”
in the Attendance Register against 2
sanitary workers on 01.11.2001 when she
was not in her room and she requested the
Dean to impress on you to stick to your job
of maintaining the cleanliness of the various
campuses and not to interfere in the smooth
working of the department. Verbal warning
were issued to this effect.
d) Dr. Ramdas Naik, Prof and Head of the
Department of Pathology, in his letter dated
04.05.2004 had reported that you were
unnecessarily
interfering
in
the
departmental affairs and instructing the
House Keeping staff not to dispatch reports
in Government Wenlock Hospital which
leads to delay. The Dean was requested to
instruct him not to interfere with the
departmental work. Verbal warning were
issued in this effect.
e) The Dean, KMC has issued a notice dated
08.09.2004 to you, informing that the
corridors were not being kept clean and tidy
and the toilets in each floor were kept very
dirty.
8.
On going through above past records, it is
found that you have indulged in gross
Indiscipline on several occasions earlier to this
and many warnings/memos have been issued
to you. In-spite of this, you have not improved
your conduct and behavior as a Health Inspector
1192
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
of Medical College and continuing to indulge
in indiscipline. Hence, Management has lost
confidence in you since you have failed to
discharge your duties, disobedient to the
superiors.
9.
The above referred conduct, behavior and
actions on your part amounts to the
Commission/omission of acts of misconduct of
the following nature, as per the service rules
applicable to our College/university:-
a) Willful insubordination or disobedience of
any lawful and reasonable order of superior.
b) Commission of any acts subversive of
discipline or good behavior.
c) Negligence or neglect of work.
d) The Unauthorised occupancy of MAHE
premises.
You are hereby directed to, show cause within seven
days of the receipt of this Charge Sheet as to why
appropriate disciplinary action should not be
initiated against you on above charges. If you fail
to respond within the stipulate time it will be
presumed that you have nothing to say in the matter
and the Management shall proceed further as
deemed fit under the circumstances.
You are also directed to vacate the room/office and
hand over the key to the Dean, K.M.C. Mangalore
which is in your custody.
REGISTRAR”
and appointing Sh. M. Purushotham Bhat as Enquiry
Officer and Sh. H. S. Bhat as Management Representative
the Domestic Enquiry was initiated. The Enquiry Officer
while securing the presence of the I Party and the
Management Representative observing the formalities of
preliminary hearing and receiving the evidence of Dr. Sujan
B. Somappa, Prof. & HOD Community Medicine and Mrs.
Anet Soans, Clerk-2 as MW 1 and MW 2 for the
management and exhibiting Ex M-1 to Ex M-21 and
recording the statement of Mrs. Violet Lobo, House
Keeping Staff, Sh. Janardhana K, House Keeping Staff,
Sh. Chandrakanth, House Keeping Staff, Smt. Cristenia
Menezes, House Keeping Staff and Sh. Sooraj/CSE as WW
1 to WW 5 and exhibiting Ex W-1 to Ex W-26 the detailed
description of which are narrated in the annexure, after
receiving the written brief from the Management
Representative and the Defence Representative by his
enquiry finding dated 05.03.2007 held CSE guilty of charges
leveled against him. Then the Disciplinary Authority while
giving a show cause notice dated 27.03.2007 after receiving
the reply affording him an opportunity of hearing passed
order dated 04.06.2007 Dismissing him from service. The
Appellate Authority while affording an opportunity of
hearing since Dismissed the Appeal by Order dated
30.06.2007, the I Party approached the ALC(C), Mangalore
and on his submission of FOC this reference came to be
made for adjudication.
5.
The I party in his claim statement asserted that
though he was appointed as Health Inspector he was not
being entrusted with Managerial Powers and not even
supervisory powers and that the Domestic Enquiry was
not conducted affording him fair and proper opportunities
and that enquiry finding being not based on the evidence
is perverse and even otherwise the punishment of
Dismissal imposed for such trivial alleged misconduct is
disproportionate etc. INTERALIA, in the counter
statement filed by the II Party it is contended that the I
Party was being Health Inspector – I was discharging
Managerial and Administrative duties and his salary was
also more than Rs. 1600 p.m., he cannot be treated as
workman and that the Domestic Enquiry being conducted
after affording all reasonable and fair opportunity and
finding of the Enquiry Officer was based on the material
placed before him, the same cannot be held as perverse
and as the I Party inspite of oral and written requests
failed to vacate the room/premises provided to him which
was necessary to extend the area for use of community
medicine department and thereby disobeyed the orders of
his superiors he was not fit to continue in the service as
such he was dismissed from service after holding enquiry,
therefore the action of the management is just and proper.
6.
After conclusion of the pleadings while raising
Preliminary Issue as to whether I Party is a workman under
Industrial Dispute Act and was posted for evidence on
the same issue both the sides under the impression that
the said issue on the fairness or otherwise of the Domestic
Enquiry adduced the evidence on the same and also
addressed their arguments. When the matter was taken
up for Orders on the said issue the same was noticed and
as the learned advocates appearing for the both sides
since submitted they being under the impression
Preliminary Issue was as to
“Whether the Domestic Enquiry held against the I
Party by the II Party is fair and proper?”
having lead evidence and also addressed arguments on
the same and the issue “Whether I Party is a workman
under Industrial Dispute act being part of the reference
issue to touching the fairness of Domestic Enquiry be
framed and answered and looking to the result of that
issue if necessary they may lead evidence on the workman
issue and proceed in the matter. Accordingly while framing
a Preliminary Issue as to “Whether the Domestic Enquiry
conducted against the I Party is fair and proper, on the
evidence already adduced by both the sides and
arguments addressed on the said issue by order dated
27.10.2011 same came to be answered in the Affirmative
holding that the Domestic Enquiry held was fair and proper
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1193
and when the parties were called upon to adduce evidence
on the workman issue as well as victimization and being
not gainfully employed, the Authorised Representative of
the I Party while filing the affidavit of the I Party examining
him on oath got marked Ex W-1 to Ex W-27 the detailed
description of which are narrated in the annexure and also
by filing the affidavit of I Party Union General Secretary
examining him on oath as WW 2 got marked Ex W-28 to
Ex W-35 the detailed description of which are narrated in
the Annexure. Since Learned Advocate appearing for the
II Party submitted that he has no rebuttal evidence the
arguments addressed by both the sides were heard.
7.
Since the Domestic Enquiry conducted by the
II Party against the I Party is held as fair and proper by
Order dated 27.10.2011, the Points that now remain for my
considerations are :
Point No. I : Whether Sh. Suraj, Health Inspector is
a workman under the Industrial Dispute act?
Point No. II : If so, whether the finding of the Enquiry
Officer that he is guilty of the charges is perverse?
Point No. III : Whether the punishment of dismissal
imposed is disproportionate to the alleged
misconduct?
Point No. IV : What Order/Award?
8.
On appreciation of the pleadings, oral and
documentary evidence placed on record by both the sides,
in the light of the arguments put forward by both the parties
my finding on Point Nos. 1, 3 are in the affirmative, Point
No. 2 in the Negative and Point No. 4 as per final order for
the following
R E A S O N S
9.
Point No. I : The II Party in its counter statement at
Para 3 alleging that since I Party was working as Health
Inspector –1, at KMC, Mangalore its constituent unit with
supervisory duties and was working as Managerial and
Administrative duties drawing salary more than
Rs. 1600.00 per month he is not a workman and reference
is liable to be rejected. The learned advocate appearing
for the II party in his arguments as well urged that since I
Party was designated as Health Inspector and his duties
were supervisory in nature with monthly salary of
Rs. 8740.00 which is admitted by him he cannot be treated
as workman and reference is liable to be rejected and in
support of this arguments he cited the decision of the
Supreme Court in the case of Burmah Shell Oil Storage
and Distribution Company of India Limited vs. The Burma
Shell Management Staff Association and other reported
in 1970(3) SCC Page 378. Since according to Section 2(s)
of the Industrial Dispute act ‘workman’ means any person
(including an apprentice) employed in any manual,
unskilled, skilled, technical, operational, clerical or
supervisory work for hire or reward, whether the terms of
employment be express or implied and for the purpose of
proceedings in this act any such person who has been
dismissed, discharged or retrenched or as a consequence,
of that dispute, or whose dismissal, discharge or
retrenchment has lead to that dispute but does not include
any person mainly in a managerial or administrative
capacity of being employed in a supervisory capacity,
draws wages exceeding one thousand six hundred rupees
per mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, functions mainly of managerial nature is ousted from
this definition. On plain reading of the definition of the
workman quoted above a person employed to do
supervisory work cannot be ousted out of the definition
of workman and only under exception (iv) if he is employed
in a supervisory capacity drawing wages exceeding
Rs. 10,000.00 p.m. and his functions are mainly of a
managerial nature. In the present case as per revised job
responsibilities of Health Inspector dated 26.08.1995 got
marked as Ex M-1 in the cross-examination of WW 1(V) by
way of confrontation I Party was to look after the sanitation
of the KMC Campuses visiting its various campuses
meeting the heads of the institutions/wardens/matrens/
manager etc. and discussing with them the problems of
sanitation to take necessary measures for correcting them
in keeping each department clean and in any case problem
is noticed the same was to be brought to the notice of the
concerned HOD. Therefore, as per the Job Responsibilities
entrusted to the I Party though it was supervisory in nature
in keeping the campuses clean he had no Managerial or
Administrative status to fall under exception (iv) to the
definition clause. Therefore, the contention of the II party
that he is not a workman has no force. In the result, I
arrive at conclusion of answering this point in the
Affirmative.
10.
Point No. II : There being no dispute that I Party
who was working as Health Inspector–1, at KMC,
Mangalore was provided with Office Space at the 3rd floor
of the said college building and that in the month of June
2006 he was issued with letter dated 24.06.2006 by the
Dean to vacate the said premises immediately on the
ground that it was required to be joined to the community
medicine premises the copy of which is produced at M-5
in the Domestic Enquiry and thereafter the Dean by his
proceedings dated 06.07.2006 directing to vacate the
premises immediately ordered for the telephone connection
provided to him may be disconnected and then on
24.07.2006 the Registrar kept him under Suspension to
vacate the premises, only because the I Party by giving a
letter dated 22.07.2006 which he got marked as W-4 in the
Domestic Enquiry as urged on his behalf he had expressed
his willingness to vacate the premises before he was kept
under suspension he was entitle for exoneration of charge
the answer is no because nowhere in this letter he has
expressed his willingness to vacate the premises or
expressed any difficulty in shifting to the premises allotted
to him and under this letter he has asked for only some
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1195
Ex M – 6
:
Fax information by HOD dated
22.07.2006
Ex M – 7
:
Proceedings dated 06.07.2006
Ex M – 8
:
Note by Dean dated 13.07.2006
Ex M – 9
:
Suspension Order dated 24.07.2006
Ex M – 10
:
Charge sheet dated 18.08.2006
Ex M – 11
:
Reply to the Chargesheet by CSE dated
28.08.2006
Ex M – 12
:
Notice of Enquiry with AD card
Ex M – 13 to
:
8 Photographs
Ex M – 20
Ex M – 21
:
Memorandum by Employer dated
05.08.2006
Documents exhibited on behalf of the CSE in Domestic
Enquiry
Ex W – 1
:
Circular by the Dean dated 25.01.2006
Ex W – 2
:
Note by Dean dated 13.07.2006
Ex W – 3
:
Letter by CSE dated 27.07.2006
Ex W – 4
:
Letter by CSE dated 22.07.2006
Ex W – 5
:
Reply to the suspension order by CSE
dated 26.07.2006
Ex W – 6
:
Letter by CSE dated 26.06.2006
Ex W – 7
:
Testimonial issued to CSE dated
11.03.2000
Ex W – 8
:
Order of Dean dated 29.04.2006
Ex W – 9
:
Directions of the Dean dated 13.07.2006
Ex W – 10
:
Directions of the Dean dated 15.06.2006
Ex W – 11
:
Memo to CSE dated 17.06.2006
Ex W – 12
:
Confidential letter to CSE dated
19.06.2006
Ex W – 13
:
Confidential letter to CSE dated
20.06.2006
Ex W – 14
:
Explanation by CSE dated 21.06.2006
Ex W – 15
:
Confidential letter to CSE dated
23.06.2006
Ex W – 16
:
Explanation letter by CSE dated
24.06.2006
Ex W – 17
:
Endorsement to CSE dated 07.07.2006
Ex W – 18
:
Letter from CSE dated 22.07.2006
Ex W – 19
:
Circular by Dean dated 24.07.2006
Ex W – 20
:
Letter to CSE dated 24.07.2006
Ex W – 21
:
Reply by CSE dated 16.08.2006
Ex W – 22
:
Photocopy of Delivery Book Page No.
105 from 24.07.2006 to 28.07.2006
Ex W – 23
:
Letter to HOD by Dean dated 06.07.2000
Ex W – 24
:
Note by Dean dated 22.07.2006
Ex W – 25
:
Proceedings of Dean dated 06.07.2006
Ex W – 26
:
Attendance of Staff KMC Page No. 7 of
July 2006
Documents exhibited on behalf of the Management on
Workman and Victimization
Ex M – 1
:
Revised Job responsibilities of Health
Inspector dated 26.08.1995
Ex M – 2
:
Eight leave letters with I Party
recommendation
Ex M – 3
:
Seven letters addressed by I Party to
Dean under I Party signature
Documents exhibited on behalf of the I Party on Workman
and Victimization
Ex W – 1
:
Pay Slip of I party for the month of
January 2006
Ex W – 2
:
Pay Slip of I party for the month of
January 2004
Ex W – 3
:
Copy of circular dated 31.03.2006
Ex W – 4
:
Letter of deployment issued to I Party
dated 29.04.2006
Ex W – 5
:
Letter of the management dated
15.06.2006
Ex W – 6
:
Memo issued by the Management dated
17.06.2006
Ex W – 7
:
Copy of letter while handing over the
keys to Dr. B S Sajjan dated 26.07.2006
Ex W – 8
:
Copy of circular dated 25.01.2006
Ex W – 9
:
Copy of the letter issued by II Party to I
Party dated 24.06.2006
Ex W – 10
:
Copy of note dated 13.07.2006
Ex W – 11
:
Copy of letter of II Party issued to Dean
dated 22.07.2006
Ex W – 12
:
Copy of Note of II party dated 22.07.2006
Ex W – 13
:
Copy of letter of I party to II Party dated
22.07.2006
Ex W – 14
:
Copy of letter from Registrar to I Party
dated 24.07.2006
Ex W – 15
:
Copy of letter from Registrar to I party
dated 24.07.2006
Ex W – 16
:
Copy of I Party to the Registrar dated
26.07.2006
1196
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Ex W – 17
:
Copy of I Party to the Registrar dated
12.08.2006
Ex W – 18
:
Copy of Charge sheet dated 18.08.2006
Ex W – 19
:
Letter of I party to Registrar dated
28.08.2006
Ex W – 20
:
Notice of Enquiry dated 25.09.2006
Ex W – 21
:
Report of Enquiry dated 05.03.2007
Ex W – 22
:
Second Show cause Notice dated
27.03.2007
Ex W – 23
:
Order of Dismissal dated 27.03.2007
Ex W – 24
:
Letter of II Party to I party to vacate
room dated 05.04.2007
Ex W – 25
:
Reply of Public Information Officer
dated 13.06.2007
Ex W – 26
:
Appeal of the I party dated 28.06.2007
Ex W – 27
:
Reply of Registrar to the application of
I party dated 20.07.2007
Ex W – 28
:
Reply of the Vice Chancellor to I party
dated 27.08.2007
Ex W – 29
:
Notarized copy of the extract of register
relating to members registration
Ex W – 30
:
Form C of I Party Union
Ex W – 31
:
Notice in Reference No. 136/2005
Ex W – 32
:
Copy of Petition filed before ALC(C),
Mangalore
Ex W – 33
:
Copy of Order passed in W P No. 43521/
2004
Ex W – 34
:
Resolution of office dated 25.01.2008
Ex W – 35
:
Resolution dated 05.07.2009 wherein the
cause of this workman was taken up.
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New Delhi, the 2nd March, 2015
S.O. 467.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 46/2008)
of the Central Government Industrial Tribunal-cum-Labour
Court, Jaipur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of the Bharat Sanchar Nigam Limited and
their workman, which was received by the Central
Government on 02/03/2015.
[No. L-40012/87/2006-IR(DU)]
P. K. VENUGOPAL, Desk Officer
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Shri Jitender Kumar Dixit S/o
Shri Madanmohan Dixit,
Vijendra Bhawan,
Khumbelo Ka Mohalla,
Thanagaji, Alwar.
V/s.
1.
The Principal General Manager,
Bharat Sanchar Nigam Limited,
Doorsanchar Bhawan,
C-Scheme Jaipur.
2.
The Sub-Division Officer,
Telecom, Bharat Sanchar
Nigam Limited, Thanagaji,
Alwar
izkFkhZ dh rjQ ls
% Jh dq.kky jkor & ,MoksdsV
vizkFkhZ dh rjQ ls
% Jh Vh-ih- ’kekZ & ,MoksdsV
iapkV
iapkV
iapkV
iapkV
iapkV
fnukad % 22- 01- 2015
1-
dsUnzh; ljdkj }kjk vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk
10 mi/kkjk 1 [k.M+ ¼?k½ ds vUrxZr fnukad 09-01-2008 ds vkns’k ls izsf”kr
fookn ds vk/kkj ij ;g izdj.k U;k;fu.kZ;u gsrq lafLFkr gSA dsUnzh; ljdkj
}kjk izsf”kr fookn fuEuor~ gS %&
2-
“Whether the action of the management of the SDO
(T), Bharat Sanchar Limited, Thanagaji Distt., Alwar/
Principal General Manager, Bharat Sanchar Nigam
Limited, Jaipur in terminating the services of their
workman Shri Jitender Kumar Dixit, w.e.f. 01/02/2006,
is legal and justified? If not, to what relief the
workman is entitled to?”
3-
LVsVesUV vkWQ Dyse esa fn;s x;s rF;ksa ds vuqlkj laf{kIrr% ;kph dk
dFku gS fd ;kph foi{kh ds laLFkku esa fnukad 01-07-2001 dks prqFkZ Js.kh
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1197
deZpkjh ds :Ik esa HkrhZ gqvk vkSj fnukad 01-07-2001 ls fnukad 31-01-2006
rd yxkrkj dk;Z fd;kA fnukad 01-02-2006 dks ekSf[kd vkns’k ls foi{kh us
izkFkhZ dks lsokeqDr dj fn;kA izkFkhZ us la;qDr Je vk;qDr ,o¡ le>kSrk
vf/kdkjh ds le{k f’kdk;r izLrqr dh ysfdu foi{khx.k dh gB/kfeZrk ds
dkj.k le>kSrk okrkZ lQy ugha gqbZA la;qDr Je vk;qDr }kjk vlQyrk ds
ckn izfrosnu dsUnz ljdkj dks Hkstk x;k ysfdu dsUnz ljdkj us U;k;fu.kZ;u
gsrq ekeys dks U;k;kf/kdj.k dks lqiqnZ ugha fd;kA dsUnz ljdkj ds ekeys dks
U;k;fu.kZ;u gsrq U;k;kf/kdj.k dks u Hkstus ds QSlys ds fo:) izkFkhZ us
ekuuh; jktLFkku mPp U;k;ky; dh t;iqj ihB ds le{k ;kfpdk izLrqr
dh tks Lohdkj dh x;h vkSj dsUnz ljdkj dks funsZf’kr fd;k x;k fd izkFkhZ
dh lsokeqfDr dk fookn U;k;fu.kZ;u gsrq Hkstk tk;A
4-
vkxs ;kfpdk esa ;g dFku gS fd foi{kh }kjk izkFkhZ dh lsokeqfDr dk
vkns’k fuEu dkj.kksa ls voS/k ,o¡ ‘kwU; gS %&
d-
D;ksafd izkFkhZ dks lsokeqDr djrs le; foi{k }kjk vkS|ksfxd fookn
vf/kfu;e dh /kkjk 25 ,Q dk ikyu ugha fd;k x;kA
[k-
izkFkhZ }kjk foi{kh ds ;gka 240 fnu ls vf/kd dk;Z fd;k x;k gSA
Xk-
izkFkhZ ds dk;Z dh izd`fr LFkk;h Fkh vkSj vkt Hkh ml dk;Z dh
vko’;drk gSA
?k-
izkFkhZ foi{kh laLFkku ds vf/kdkfj;ksa ds fn’kkfunZs’k ds vuqlkj dk;Z
djrk FkkA
p-
izkFkhZ dh lsokeqfDr vuqfpr Je O;ogkj dh ifjHkk”kk esa vkrh gSA
N-
izkFkhZ dks lsokeqDr djus ls iwoZ ofj”Brk lwph ugha rS;kj dh x;hA
t-
izkFkhZ dh lsokeqfDr fofDVekbZts’ku dh Js.kh esa vkrk gSA
K-
izkFkhZ dh lsokeqfDr izkd`frd ,oa lkekU; fu;eksa ds fo:) gSA
M-
izkFkhZ dh lsokeqfDr cnys dh Hkkouk ls izsfjr gSA
n-
izkFkhZ dh lsokeqfDr ls vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk
25 th ,oa 25 ,p dk mYya?ku gqvk gSA
;-
izkFkhZ dh lsokeqfDr ds iwoZ dksbZ uksfVl ugha nh x;h vkSj u uksfVl ds
cnys osru dk Hkqxrku fd;k x;k tcfd ,slk fd;k tkuk vkKkid
FkkA
y-
izkFkhZ lsokeqfDr ls csjkstxkj gSA
5-
mDr vk/kkj ij ;g izkFkZuk dh x;h gS fd lsokeqfDr dk vkns’k
fnukad 01-02-2006 dks voS/k ,o¡ ‘kwU; ?kksf”kr djrs gq, vkSj lsok dh
fujUrjrk dks dk;e j[krs gq, leLr ykHk lfgr izkFkhZ dks lsok esa
iquLFkkZfir djus dk vkns’k ikfjr fd;k tk;A
6-
foi{khx.k dh rjQ ls oknksÙkj izLrqr dj ;kfpdk ds izLrj 1] 2] 3]
4] 5 ds dFku dks vLohdkj fd;k x;k gS vkSj ;g dgk x;k gS fd izkFkhZ dks
foi{kh foHkkx }kjk dHkh fdlh in ij fu;qfDr iznku ugha dh x;h A izkFkhZ
dk ;g dFku xyr o eux<ar gS fd og fnukad 01-07-2001 ls fnukad
31-01-2006 rd VsfyQksu lEcfU/kr f’kdk;r nwj djus vkSj ejEer djus ds
fy, j[kk x;k FkkA ;g Hkh dgk x;k gS fd tc foi{kh foHkkx }kjk izkFkhZ
dh fu;qfDr ugha fd x;h rks mls lsokeqDr djus dk iz’u ugha mBrk gSA
7-
oknksÙkj ds izLrj 4 esa foi{k }kjk nwjHkk”k dsUnz Fkkukxkth esa izkFkhZ ls
dk;kZy; esa nks eVds ikuh Hkjus] dscy QkYV nwj djus ds mn~ns’; ls xM<+k
[kksnus vkSj vFkZ esa ikuh Myokus dk dk;Z vuqcU/k ij fy;s tkus dk rF;
Lohdkj fd;k x;k gS ftldk Hkqxrku izkFkhZ dks ifji= ,-lh-th- 17 ij
le;≤ ij fd;k tkus dk dFku Lohdkj gSA ;g Hkh dgk x;k gS fd
izkFkhZ us dsoy vuqcU/k ij dk;Z fd;k RkFkk mlus Je vk;qDr ds ;gka okn
izLrqr fd;k FkkA izkFkhZ ds ekeys esa Je ea=ky; ls ;g QSlyk vk pqdk gS
fd izkFkhZ vkSj foHkkx ds chp fu;ksDrk vkSj deZpkjh dk fj’rk ugha gSA ;g
Hkh dgk x;k gS fd foHkkx }kjk /kkjk 25 th o 25 ,p dk mYya?ku ugha
fd;k x;k gS rFkk izkFkhZ us dHkh Hkh o”kZ esa 240 fnu dk;Z iwjk ugha fd;k gSA
8-
izkFkhZ i{k }kjk fjTok;UMj izLrqr dj oknksÙkj ds izLrj 1 o 4 dks
vLohdkj fd;k gSA izLrj 2] 3 o 5 ds lEcU/k esa dgk x;k gS fd ftl
izdkj of.kZr gS og Lohdkj ugha gSA vfrfjDr dFku esa ;g dgk x;k gS fd
izkFkhZ ds dk;Z esa VsfyQksu ls lEcfU/kr dscy QkYV dh f’kdk;rsa nwj djus ds
fy, xM~<s [kksns tkrs Fks] izkFkhZ bl dk;Z dks vkWfQl ds le; esa djrk Fkk
vkSj lkFk gh ihus dk ikuh Hkjus vkSj vkWfQl ds NksVs&eksVs dk;Z Hkh djrk
FkkA izkFkhZ dh fu;qfDr VsfyQksu dh f’kdk;rksa dks nwj djus ds fy, dh x;h
FkhA ;g Hkh dgk x;k fd {ks=h; Je vk;qDr ds QSlys dh ekuuh; mPp
U;k;ky; esa pqukSrh nh x;h Fkh ftlds vk/kkj ij dsUnzh; ljdkj }kjk
U;k;kfu.kZ;u gsrq jsQjsUl Hkstk x;kA
9-
izkFkhZ dh rjQ ls ;kfpdk ds lEkFkZu esa vfHkysf[k; lk{; ds :Ik esa
izn’kZ MCY;w&1 o izn’kZ MCY;w&2 izLrqr gSA izn’kZ MCY;w&1 ¼A.C.J. 17½
vfHkys[k ds ek/;e ls izkFkhZ Jh ftrsUnz dqekj nhf{kr dks fnukad 18-1-2006
dks 300 #- dk Hkqxrku lk{kh ds le{k n’kkZ;k x;k gS tks ikuh Hkjus ds en
esa gSA izn’kZ MCY;w&2 okVj pktZ ds lEcU/k esa fd;s x;s Hkqxrku dk fooj.k
gS ftlesa fofHkUu le;ksa dk mYys[k gSA ;g Hkqxrku fdl O;fDr dks fd;k
x;k gS bldk mYys[k ugha gSA fdl O;fDr us Hkqxrku izkIr fd;k mldk Hkh
mYys[k ugha gSA ekSf[kd lk{; ds :Ik esa izkFkhZ ftrsUnz dqekj nhf{kr us viuk
‘ki= i= izLrqr fd;k gS ftlds fo:) izkFkhZ dh foi{k }kjk izfrijh{kk dh
x;h gSA
10-
foi{k dh rjQ ls dksbZ vfHkysf[k; lk{; izLrqr ugha fd;k x;k gSA
Jh ckcw yky eh.kk] mie.My vf/kdkjh rkj] dk ‘kiFk&i= lk{; esa izLrqr
fd;k x;k gS ftudh izfrijh{kk izkFkhZ i{k }kjk dh x;h gSA
11-
mHk;i{k dh rjQ ls dksbZ vU; izysf[k; ;k ekSf[kd lk{; i=koyh
ij miyC/k ugha gSA
12-
eSuas mHk;i{k ds fo}ku izfrfuf/kx.k dh cgl lquh rFkk i=koyh dk
lE;d voyksdu fd;kA foi{k dh rjQ ls fyf[kr cgl Hkh i=koyh ij
izLrqr dh x;hA
1198
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
13-
izkFkhZ ftrsUnz dqekj nhf{kr ds fo}ku vf/koDrk }kjk ;g cgl dh
x;h gS fd izkFkhZ us foi{kh ds ;gka fnukad 01-07-2001 ls fnukad 31-01-2006
rd yxkrku dk;Z fd;k gS vkSj o”kZ easa 240 fnu ls vf/kd dk;Z fd;k gS
ysfdu /kkjk 25 ,Q vkS|ksfxd fookn vf/kfu;e 1947 dk ikyu fd;s fcuk
foi{k us izkFkhZ dks lsok ls fu”dkflr dj fn;k gSA ;g cgl Hkh dh x;h gS
fd izkFkhZ ds dk;Z dh izd`fr LFkk;h Fkh vkSj vkt Hkh foHkkx dks ml dk;Z dh
vko’;drk gS fQj Hkh izkFkhZ dks lsok ls fu”dkflr fd;k x;k vkSj izkFkhZ ds
lkFk foi{k }kjk vuqfpr Je O;ogkj fd;k x;kA ;g cgl Hkh dh x;h gS
fd dksbZ ofj”Brk lwph rS;kj ugha dh x;h gS vkSj foHkkx }kjk /kkjk 25 th
o /kkjk 25 ,p vkS|ksfxd fookn vf/kfu;e ds izkfo/kku dk mYy?kau fd;k
x;k gS blds fo:) foi{k ds fo}ku izfrfuf/kx.k }kjk ;g cgl dh x;h gS
fd foi{kh foHkkx }kjk dHkh Hkh fdlh in ij izkFkhZ dh fu;qfDr ugha dh
x;hA izkFkhZ dks dsoy vkdfLed dk;Z ds fy;s vkdfLed Jfed ds :Ik esa
Bsdsnkj ds ek/;e ls vuqcU/k ij j[kk x;k Fkk] izkFkhZ dks dHkh fu;qfDr ugha
nh x;h] vr% mls lsokeqDr fd;s tkus dk iz’u ugha mBrk gSA fyf[kr cgl
esa ;g mYys[k Hkh fd;k x;k gS fd nwjHkk”k dsUnz Fkkukxkth ds dk;kZy; esa
nks eVdk ikuh Hkjus] dscy&QkYV Bhd djus ds fy;s xM<+k [kqnokus vkSj
vFkZ esa ikuh Myokus vkfn dk;Z djus ds fy;s izkFkhZ dks vuqcU/k ij j[kk x;k
Fkk ftldk Hkqxrku mls ekSds ij dj fn;k tkrk Fkk vkSj izkFkhZ us vius
c;ku esa ;g Lohdkj Hkh fd;k gS fd mlds }kjk fd;s x;s dk;Z dk lEiw.kZ
Hkqxrku izkIr gks pqdk gSA izkFkhZ us dsoy vuqcU/k ij dk;Z fd;k gSA mHk;i{k
dh mDr cgl ds lUnHkZ esa i{kdkjksa ds vfHkopuksa vkSj lk{; dh bl Lrj ij
leh{kk dh tkuh gSA
14-
tgka rd ;kfpdk ds dFku ds fl) gksus dk iz’u gS izkjEHkr% ,o¡
ewy :Ik esa ;kfpdk ds dFku dks fl) djus dk Hkkj izkFkhZ ij gSA foi{k dh
rjQ ls ;g dgk x;k gS fd izkFkhZ dks foi{k }kjk dksbZ fu;qfDr iznku ugha
dh x;h Fkh ;g dsoy vuqcU/k ij dk;Zjr FkkA foi{k ds fo}ku vf/koDrk us
ekSf[kd cgl esa ;g mYys[k Hkh fd;k gS fd nwjlapkj fuxe fyfeVsM+ Hkkjr
ljdkj dk izfrf”Br laLFkku gS tgka fdlh vf/kdkjh dks ;g vf/kdkfjrk
izkIr ugha gS fd leqfpr fu;qfDr dh izfdz;k viuk;s fcuk dksbZ vf/kdkjh
fdlh O;fDr dks fu;qDr dj ysA izkFkhZ ds ekeys esa Hkh u dksbZ fu;qfDr dh
izfdz;k viuk;h x;h gS vkSj u gh dksbZ fu;qfDr iznku dh x;h gSaA ;kfpdk
esa izkFkhZ us mYys[k fd;k gS fd foi{kh ds laLFkku eas izkFkhZ fnukad 01-07-2001
dks prqFkZ Js.kh deZpkjh ds :Ik esa fu;qDr gqvk Fkk vkSj fnukad
31-01-2006 rd yxkrkj dk;Z fd;k o fnukad 01-02-2006 dks ekSf[kd :Ik
ls lsokeqDr dj fn;k x;kA vius ‘kiFk&i= esa Hkh izkFkhZ us izLrj 1 esa mDr
mYys[k fd;k gS ysfdu izfrijh{kk esa izkFkhZ us Lohdkj fd;k gS fd mls dksbZ
fu;qfDr i= ugha fn;k x;k Fkk vkSj ftl dk;Z ij mls yxk;k x;k Fkk
mlds lEcU/k esa dksbZ foKkiu Hkh ugha fudkyk x;k Fkk rFkk mls vko’;d
dk;Z ds lEcU/k esa mls j[kk x;k FkkA ;gka ij ;g mYys[kuh; gS fd izkFkhZ
ds LVsVeSUV vkQ Dyse dk ;fn lE;d o lw{e voyksdu fd;k tk;s rks ;g
tkfgj gksxk fd izkFkhZ us ;kfpdk ds fdlh Hkh izLrj esa bl ckr dk mYys[k
ugha fd;k fd mldh fu;qfDr fdl dk;Z ds fy, gqbZ Fkh vFkok foi{kh ds
;gka vius dfFkr dk;Zdky ds nkSjku mlus fdl izd`fr ds dk;Z dk fu”iknu
fd;kA bl ckr dk Hkh mYys[k ugha gS fd mldh fu;qfDr fdl in ij gqbZ
Fkh vkSj osru D;k FkkA dsoy prqFkZ Js.kh deZpkjh ds :Ik esa HkrhZ gksus dk
mYys[k gSA vius ‘kiFk&i= esa Hkh izkFkhZ us mDr vk’k; dk dksbZ mYys[k
ugha fd;k gS vkSj izLrj 1 esa ;g dgk gS fd mlus Qksu esdsfud ds :Ik esa
dk;Z fd;k gSA izkFkhZ }kjk fd;s tkus okys dk;Z dk mYys[k igyh ckj foi{kh
ds oknksÙkj ds izLrj 4 esa feyrk gS ftlesa dgk x;k gS fd izkFkhZ ls dk;kZy;
esa nks eVds ikuh Hkjokus] dscy QkYV ds fy, xM<+s [kksnus vkSj vFkZ esa ikuh
Myokus vkfn dk dk;Z vuqcU/k ij fy;k x;k gSA izkFkhZ dh fu;qfDr RkFkk
dk;Z dh izd‘fr ds lEcU/k esa foi{kh lk{kh Jh ckcwyky eh.kk] mie.My
vf/kdkjh rkj ds lk{; ls izkFkhZ ds i{k esa dksbZ enn ugha feyrh gSA lk{kh
us izLrj 3 esa ‘kiFk&i= esa ;g mYys[k fd;k gS fd izkFkhZ dks vkdfLed
dk;Z ds fy;s Bsdsnkj ds ek/;e ls vuqcU/k ij vkdfLed Jfed ds :Ik esa
j[kk x;k FkkA izkFkhZ i{k }kjk U;k;ky; ds le{k izkFkhZ dh gktjh jftLVj]
osru jftLVj] eLVj jksy vkSj Hkqxrku okmpj foi{k ds dCts ls ryc djus
ds fy, izkFkZuk&i= izLrqr dh x;h gS ftlds fo:) vkifÙk esa ;g dgk x;k
gS fd nLrkost ryc djkus ls lEcfU/kr izkFkZuk&i= dkYifud gS D;ksafd
ftu nLrkostksa dh ekax dh x;h gS ml izdkj ds nLrkost foi{kh ds ;gka
dHkh miyC/k ugha jgs gSA U;k;kf/kdj.k ds funsZ’k ij Jh jke n;ky eh.kk
S.D.O. dk ‘kiFk&i= Hkh izLrqr fd;k x;k gS ftlesa vkifRr esa izLrqr
dFku dh iqujko`fRr dh x;h gS o ;g dgk x;k gS fd dk;Z vkdfLed
izd`fr dk gksus ds dkj.k ekaxs x;s nLrkost foi{kh foHkkx ds dk;kZy; esa
ugha gS o mDr nLrkost dHkh Hkh muds ikl ugha jgs gSA izkFkhZ i{k ds fo}ku
vf/koDrk dh rjQ ls cgl ds nkSjku ;g mYys[k fd;k x;k gS fd foi{k
}kjk vfHkys[kksa dks izLrqr u djus ds dkj.k muds fo:) izkFkhZ ds i{k esa
izfrdwy vo/kkj.kk xzg.k dh tkuh pkfg, vkSj izkFkh dk Dyse Lohdkj gksuk
pkfg;sA tgk¡ rd izfrdwy vo/kkj.kk xzg.k fd;s tkus dk iz’u gSA bl
lEcU/k esa mYys[kuh; gS fd fdlh vfHkys[k ds lUnHkZ esa fdlh i{k ds fo:)
izfrdwy vo/kkj.kk xzg.k djus ds iwoZ U;k;ky; dks bl fcUnq ij lUrq”V
gksuk fof/kd :Ik ls vko’;d vkSj vfuok;Z gS fd vfHkys[k dfFkr O;fDr ds
dCts vkSj laj{k.k esa gSA blds vHkko esa foi{kh ds fo:) izfrdwy vo/kkj.kkk
xzg.k ugha dh tk ldrhA izkFkhZ i{k dh rjQ ls ,slk dksbZ lqlaxr lk{;
ugha izLrqr fd;k x;k gS ftlls ;g tkfgj gks fd foi{kh ds ;gka izkFkhZ dh
vU; deZpkfj;ksa ds lkFk mifLFkfr iaftdk esa gkftjh yxrh Fkh vFkok osru
Hkqxrku dk fcy vU; deZpkfj;ksa ds lkFk rS;kj gksrk FkkA mDr rF; ,oa
ifjfLFkfr esa eS bl fu”d”kZ ij gwWa fd orZeku ekeys esa vfHkys[k ds lUnHkZ esa
foi{khx.k ds fo:) izfrdwy vo/kkj.kk xzg.k djus dh fLFkfr ekStwn ugha
gSA
15-
tgka rd foi{kh ds ;gka izkFkhZ dh fu;qfDr dk iz’u gS ;|fi foi{kh
us Lor% ;g Lohdkj fd;k gS fd vuqcU/k ij Bsdsnkj ds ek/;e ls foi{kh ds
;gka izkFkh dk;Zjr jgk gS vkSj izkFkhZ us Hkh izn’kZ MCY;w&1 ds ek/;e ls bl
rF; dks lkfcr fd;k gS fd foi{kh ds ;gka izkFkh us ikuh Hkjus dk dk;Z fd;k
gS ftlds cnys esa 300 :- dh /kujkf’k izkIr dh gS vr% foi{k dh Lohd`fr
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1199
vkSj izkFkhZ }kjk izLrqr izn’kZ MCY;w&1 ls bl dFku dh iqf”V gksrh gS fd izkFkhZ
us foi{kh ds ;gka ikuh Hkjus dk dk;Z fd;k gS ysfdu i=koyh ij miyC/k
leLr izys[kh; ,oa ekSf[kd lk{; ls ;g rF; lkfcr ugha gS fd izkFkhZ us
foi{kh ls dksbZ fu;fer fu;qfDr izkIr dh gS
16-
Tkgka rd foi{kh ds ;gka izkFkhZ }kjk dfFkr lsokeqfDr dh frfFk
fnukad 01-02-2006 ds Bhd iwoZ dsys.Mj o”kZ esa 240 fnu rd fu;fer :Ik ls
izkFkhZ }kjk dk;Z fd;k tkus dk iz’u gS bl lUnHkZ esa mYys[kuh; gS fd foi{k
}kjk bl rF; ls bUdkj fd;k x;k gS fd izkFkhZ us buds ;gka fu;fer rkSj ij
izR;sd o”kZ esa 240 fnu lsok dh gSA izkFkhZ i{k }kjk dsoy fu;fer :Ik ls
fnukad 01-07-2001 ls fnukad 31-01-2006 rd vkSj 240 fnu ls vf/kd
yxkrkj dk;Z djus dk mYys[k ;kfpdk ,oa ‘kiFk i= esa fd;k x;k gS
ysfdu bl lUnHkZ esa dksbZ fo’oluh; izys[kh; lk{; ugha izLrqr fd;k x;k
gSaA izkFkhZ dh rjQ ls izLrqr izn’kZ MCY;w&2 esa Hkqxrku dk fooj.k vafdr
fd;k x;k gS ftlds lEcU/k esa foi{kh lk{kh }kjk izfrijh{kk esa bUdkj fd;k
x;k gS vkSj dgk x;k gS fd izn’kZ MCY;w&2 ij foi{kh foHkkx ds vf/kdkfj;ksa
ds gLrk{kj gS ;k ugha lk{kh ugha crk ldrkA izn’kZ MCY;w&2 dks Loa; izkFkhZ
}kjk lkfcr ugha fd;k x;k gS vkSj bl vfHkys[k ds voyksdu ls ;g tkfgj
ugha gksrk gS fd vfHkys[k izkFkhZ ls gh lEcfU/kr gSA Loa; izkFkhZ us izfrijh{kk
esa izn’kZ MCY;w&2 ds lEcU/k esa ;g Lohdkj fd;k gS fd izn’kZ MCY;w&2 fdl
O;fDr }kjk tkjh fd;k x;k gS] bldk mYys[k vfHkys[k esa ugha gSA
rRi’pkr lk{kh us Loa; dgk gS fd bl vfHkys[k ij lhfu;j ckcw jkethyky
eh.kk rFkk S.D.O. ,l- Mh- ‘kekZ ds gLrk{kj gS ftuds }kjk Hkqxrku fd;k
x;k gSA ;g vfHkys[k dc] fdlus] fdl mn~ns’; ls rS;kj fd;k vkSj fdlls
lEcfU/kr gS bldk mYys[k Hkh vfHkys[k ij ugha gS] vr% izn’kZ MCY;w&2
vfHkys[k ds lEcU/k esa mHk;i{k dh lk{; ls ;g Li”V gS fd izn’kZ MCY;w&2
lkfcr ugha gS vkSj bl vfHkys[k ls lsokeqfDr ls Bhd iwoZ izkFkhZ }kjk
dsys.Mj o”kZ esa 240 fnu yxkrkj lsok djus ds rF; dh iqf”V Hkh ugha gksrh
gSA ;g vfHkys[k bl vk/kkj ij Hkh 240 fnu dh vof/k dk ewY;kadu djus
ds fy, i;kZIr ugha gS D;ksafd blesa dsoy 2005 rd ds Hkqxrku dk mYys[k
gS tcfd izkFkhZ us fnukad 31-01-2006 rd lsok djus dk mYys[k fd;k gS
vkSj vius lk{; esa Lohdkj fd;k gS fd ftruk le; mlus dk;Z fd;k gS ml
lEiw.kZ vof/k ds fy, Hkqxrku izkIr dj pqdk gSA mDr izys[kh; o ekSf[kd
lk{; dh O;k[;k o fo’ys”k.k ds vk/kkj ij eS bl fu”d”kZ ij gw¡ fd izkFkhZ
lsokeqfDr ds Bhd iwoZ dsys.Mj o”kZ esa 240 fnu yxkrkj dk;Z djus ds rF;
dks lkfcr ugha fd;k gSA
17-
tgka rd izkFkhZ ds dk;Z dh izd`fr dk iz’u gS ;kfpdk esa izkFkhZ us
vius dk;Z dh izd`fr dk mYys[k ugha fd;k gS vkSj u gh ekfld vFkok
nSfud osru Hkksxh ds :Ik esa IkzkIr gksus okyh /kujkf’k dk mYys[k fd;k gSA
izfrijh{kk esa i`“B 1 ij izkFkhZ us ;g dgk gS fd mls Hkqxrku okVj pktZ ds
:Ik esa fd;k tkrk Fkk ysfdu mls dscy QkYV fudkyus vkSj xM<+s [kqnus dk
dk;Z Hkh fy;k tkrk FkkA mYys[kuh; gS fd dscy QkYV fudkyus dk dk;Z
fo’ks”kK rdfuf’k;uksa }kjk gh fd;k tkuk lEHko gS ftUgsa rduhdh izf’k{k.k
izkIr gksrk gS vkSj muds ikl rduhdh ‘kS{kf.kd ;ksX;rk Hkh gksrh gSA izkFkhZ
us Loa; i`“B 3 ij Lohdkj fd;k gS fd og 9 oha ikl gS vr% mldk dFku
xyr o vfr’k;ksfDriw.kZ tkfgj gksrk gS fd og dscy QkYV Hkh fudkyrk
Fkk tks dk;Z dsoy ,d izf’kf{kr rduhf’k;u gh dj ldrk gSA vr% izkFkhZ
dk ;g dFku Lohdkj gksus ;ksX; ugha gS fd og dscy QkYV Hkh fudkyrk
Fkk ,o¡ ;kfpdk esa Hkh ,slk dksbZ mYys[k ugha gSA
18-
tgka rd /kkjk 25 th ,oa /kkjk 25 ,p ds mYya?ku vkSj ofj”Brk
lwph u cuk;s tkus ls lEcfU?kr fu;e 77 ds mYya?ku dk iz’u gS bl lUnHkZ
esa mYys[kuh; gS fd foi{kh ds fo}ku vf/koDrk dh rjQ ls ;g cgl dh
x;h gS fd izkFkhZ vkS|ksfxd fookn vf/kfu;e 1947 ds izkfo/kku dk ykHk ikus
dk gdnkj ugha gS vkSj /kkjk 25 ,Q ds izkfo/kku dk ykHk Hkh izkFkhZ ugha
izkIr dj ldrk rFkk og fdlh Hkh izdkj dh uksfVl vFkok uksfVl ds cnys
osru Hkqxrku dk gdnkj ugha gSA ;g cgl Hkh dh x;h gS fd izkFkhZ
vkdfLed Jfed ds :Ik esa fu;qDr Fkk blfy;s foi{k }kjk dksbZ lsokeqfDr
i= nsuk Hkh vko’;d ugha FkkA vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk
25 th fuEu O;oLFkk iznku djrh gS %&
^^/kkjk 25&N esa NaVuh ds fy, izfdz;k& tgka fd fdlh vkS|ksfxd LFkkiu ds
fdlh ,sls deZdkj dh] tks Hkkjr dk ukxfjd gS NaVuh dh tkuh gks vkSj ;g
ml LFkkiu ds deZdkjksa ds fdlh fof’k”V izoxZ dk gks] ogka] rc ds flok;
tcfd fu;kstd ,sls dkj.kksa ls] ftUgsa vfHkfyf[kr fd;k tk,xk] fdlh vU;
deZdkj dh NaVuh djrk gS] fu;kstd vkSj deZdkj ds chp bl fufeÙk gq,
fdlh djkj ds vHkko esa fu;kstd] ekewyh rkSj ls vkSj ml deZdkj dh NaVuh
djsxk] tks ml izoxZ esa fu;ksftr fd;k tkus okyk vfUre O;fDr gksA**
19-
mDr lEcU/k esa ;kfpdk esa izLrj 5 esa ;g dgk x;k gS fd izkFkhZ dh
lsokeqfDr ls /kkjk 25 th ,oa /kkjk 25 ,p dk mYya?ku fd;k x;k gSA /kkjk
25 th izkfo/kku ds vuqlkj ;fn fu;ksDrk }kjk NaVuh dh tkuh gS rks fu;ksDrk
vkSj deZdkj ds chp fdlh djkj ds vHkko esa ml O;fDr dh NaVuh igys dh
tkosxh tks lcls ckn esa fu;qDr gqvk FkkA izkFkhZ i{k }kjk viuh ;kfpdk
vFkok lk{; esa izLrqr ‘kiFk&i= esa Loa; bl ckr dk mYys[k ugha fd;k
x;k gS fd foi{kh ds ;gka fu;qDr ;kph ds ln`’k deZdkjkas esa Loa; ;kph dh
dgka fLFkfr Fkh vkSj laLFkku esa vfUre deZdkj dkSu FkkA vr% /kkjk 25 th ds
mYya?ku ds lEcU/k esa ;kph i{k }kjk dksbZ lk{; izLrqr ugha gSA
20-
tgka rd /kkjk 25 ,p ds mYya?ku dk iz’u gS /kkjk 25 ,p
vkS|ksfxd fookn vf/kfu;e 1947 dk izkfo/kku fuEuor gS %&
**/kkjk 25&t- NaVuh fd, x, deZdkjksa dk iqu% fu;kstu&
^tgka fd fdUgha deZdkjksa dh NaVuh dh tkrh gS vkSj fu;kstd fdUgha
O;fDr;ksa dks vius fu;kstu esa j[kus dh izLFkkiuk djrk gS] ogka og mu
NaVuh fd, x, deZdkjksa dks] tks Hkkjr ds ukxfjd gSa] ,slh jhfr ls] tSlh
fofgr dh tk,] ;g volj nsxk fd iqu% fu;kstu ds fy, vius dks
izLFkkfir djsa vkSj NaVuh fd, x, mu deZdkjksa dks tks iqu% fu;kstu ds
fy, vius dks izLFkkfir djsa vU; O;fDr;ksa ij vf/keku feysxkA**
1200
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
21-
mDr izkfo/kku esa ;g O;oLFkk gS fd ;fn fdlh deZdkj dh NaVuh dh
tkrh gS vkSj mlds ckn fu;kstd fdUgha O;fDr;ksa dks vius fu;kstu esa j[kuk
pkgrk gS rks ,slh fLFkfr esa NaVuh fd;s x;s deZdkj dks iqu% fu;kstu dk
volj iznku fd;k tkosxk vkSj ;fn NVuh fd;k x;k deZdkj iqufuZ;kstu
dk bPNqd gS rks mls vU; O;fDr;ksa dh rqyuk esa ofj;rk nh tkosxhA izkFkhZ
us Loa; viuh izfrijh{kk esa ;g Lohdkj fd;k gS fd 2006 ds ckn fu;qfDr
nsus lEcU/k esa dksbZ vkosnu foi{kh ds ;gka izLrqr ugha fd;k gS vkSj foi{kh us
Hkh u;h fu;qfDr ds lEcU/k esa dksbZ foKkiu ugha fudkyk gS mDr vk/kkj ij
;g Li”V gS fd izkFkhZ /kkjk 25 ,p vkS|ksfxd fookn vf/kfu;e dk mYya?ku
lkfcr ugha dj ldk gSA
22-
;kph i{k }kjk ;kfpdk esa bl rF; dk Li”V mYys[k ugha fd;k x;k
gS fd ;kph ekfld osru Hkksxh Fkk vFkok nSfud osru Hkksxh ds :Ik esa
dk;Zjr FkkA tgka rd foi{k }kjk vfHkys[k izLrqr u djus ds dkj.k izfrdwy
vo/kkj.kk xzg.k fd;s tkus dk iz’u gS vkSj izkFkhZ ds lUnHkZ esa /kkjk 25 ,Q
ds mYya?ku dk iz’u gS bl lEcU/k esa 2006] lqizhe dksVZ ¼,y-,.M ,l-½] 38
esa ekuuh; lokZsPp U;k;ky; }kjk nh x;h fof/k O;oLFkk mYys[kuh; gSA
23-
2006 lqizhe dksVZ ¼,y-,.M ,l-½] 38] lqjsUnz uxj ftyk iapk;r &
vihykFkhZ cuke ng~;kHkkbZ vej flag & izR;FkhZ esa izdj.k ds rF;kuqlkj
izR;FkhZ dh lsok 15-8-85 ds vkns’k ls lekIr dj nh x;h FkhA lsok lekfIr
ds yxHkx lkr lky ckn fnukad 01-6-92 dks izR;FkhZ us vihykFkhZ dks lsok
esa iquLFkkZiuk dh uksfVl Hksth vkSj vUrr% izR;FkhZ dh lsok lekfIr dk fookn
U;k;fu.kZ;u gsrq vkS|ksfxd U;k;kf/kdj.k dks lqiqnZ fd;k x;kA
izR;FkhZ us vius LVsVesUV vkWQ Dyse esa ;g mYys[k fd;k fd og lsok
lekfIr ds vkns’k fnukad 15-8-85 rd 10@& :i;s nSfud etnwjh ij
vihykFkhZ dh lsok esa Fkk ,oa lsok lekfIr ds vkns’k fuxZr gksus ds iwoZ
vkS|ksfxd fookn vf/kfu;e ds izkfo/kkuksa dk ikyu ugha fd;k x;kA Je
U;k;ky; ds le{k izR;FkhZ dh rjQ ls ,d vkosnu vihykFkhZ dks funsZ’k tkjh
djus ds fy, izLrqr gqbZ fd vihykFkhZ 1976 ls 1986 rd dh lsok vof/k dk
osru jftLVj ,oa eLVj jksy izLrqr djsaA vihykFkhZ us LVsVesUV vkWQ Dyse
ds fo:) ;g dFku izLrqr fd;k fd izR;FkhZ Loa; dke ij vkuk cUn dj
dj fn;k ,oa mls dksbZ LFkk;h fu;qfDr ugha nh x;h FkhA og eqrQdkZ dk;kZsa
ds fy, fu;qDr Fkk rFkk tc dke gksrk Fkk rks mls cqyk fy;k tkrk FkkA ;g
Hkh dgk x;k fd deZpkjh us lsoklekfIr ds Bhd iwoZ iwoZorhZ 12 ekgksa esa
240 fnu rd yxkrkj dk;Z ugha fd;k gSA ;g Hkh dgk x;k fd mlus lu~
82] 83 vkSj 84 esa dze’k% 114] 63 vkSj 124 fnu dk;Z fd;k gS vr% mldh
lsok,sa lekIr djus ds iwoZ /kkjk 25 ¼,Q½ vkS|ksfxd fookn vf/kfu;e esa nh
x;h izfdz;k dk vuqikyu djus dh fof/kd vko’;drk ugha FkhA
izR;FkhZ us Loa; dks lk{; esa izLrqr dj l’kiFk dgk fd og nl lky
rd 470@& :i;s izfrekg ds osru ij fu;qDr FkkA vihykFkhZ dh rjQ ls
,d deZpkjh us lk{; esa mifLFkr gksdj dgk fd deZpkjh us dHkh Hkh ,d
o”kZ esa 240 fnu dke ugha fd;kA Je U;k;ky; us izR;FkhZ ds lk{; ij Hkjkslk
fd;k vkSj eLVj jksy rFkk 1976 ls 86 rd dh osru jftLVj u izLrqr djus
ij izfrdwy vo/kkj.kk xzg.k dj ;g vo/kkfjr fd;k fd izR;FkhZ us 240 fnu
ls T;kns dk;Z fd;k vr% mldh lsokeqfDr voS/kkfud FkhA Je U;k;ky; us
/kkjk 25 ¼,Q½] 25 ¼th½ ,oa 25 ¼,p½ dh izfdz;k dk ikyu u djus ds dkj.k
deZpkjh dks iquLFkkZiuk ds fy, vknsf’kr fd;k ,oa lkFk gh fiNys osru dh
20 izfr’kr /kujkf’k vnk djus dk funsZ’k fn;kA
ekuuh; mPp U;k;ky; dh ,dyihB us Je U;k;ky; ds fu.kZ; dh
iqf”V dh rFkk Je U;k;ky; ds fu.kZ; ds fo:) vihykFkhZ dh ;kfpdk
[kkfjt dhA ,dy ihB ds fu.kZ; ds fo:) ekuuh; mPp U;k;ky; dh
[k.MihB us ysVlZ isVsaV vihy fujLr dh ,oa ;g vo/kkfjr fd;k fd Je
U;k;ky; us lgh vo/kkfjr fd;k gS fd deZpkjh us ekSf[kd lk{; ls vius
dFku lkfcr fd;k gSA ekuuh; [k.MihB us Je U;k;ky; }kjk osru iaftdk]
eLVj jksy] rFkk deZpkfj;ksa dh ofj”Brk lwph u izLrqr djus ij xzg.k dh
x;h izfrdwy vo/kkj.kk dks Hkh lgh Bgjk;kA Je U;k;ky; us ;g Hkh
vo/kkfjr fd;k fd izR;FkhZ dh rqyuk esa ,oa dfu”B deZpkjh dh lsok
fu;fer :Ik ls tkjh j[kh x;h vkSj izR;FkhZ dh lsok lekIr dj nh x;hA
ekuuh; loksZPp U;k;ky; ds le{k ekuuh; mPp U;k;ky; dh
[k.MihB ds fu.kZ; ds fo:) vihykFkhZ dh ;g cgl Fkh fd ekuuh; loksZPp
U;k;ky; us vius vusd fu.kZ;ksa esa vR;Ur Li”V :Ik ls ;g vo/kkfjr fd;k
gS fd izkjfEHkd rkSj ij fl) djus dk nkf;Ro deZpkjh ij gS fd lsok
lekfIr dh frfFk ds iwoZ ,d o”kZ esa deZpkjh us 240 fnu dk;Z fd;k gS tks
nkf;Ro fuokZg djus esa deZpkjh vlQy jgk gSA ;g cgl Hkh dh x;h fd
10 lky dk vfHkys[k izLrqr u djus ij izfrdwy vo/kkj.kk xzg.k djus dh
dksbZ otg ugha FkhA izR;FkhZ dh rjQ ls ;g cgl dh x;h Je U;k;ky; us
izfrdwy vo/kkj.kk vfHkys[kksa ds lEcU/k esa xzg.k djds Je U;k;ky; us lgh
fd;k gS D;ksafd fu;kstd ds dCts esa vfHkys[k Fks vr% Je U;k;ky; }kjk
ekWx fd;s tkus ij mls izLrqr djuk fu;ksDrk dk drZO; FkkA ;g cgl Hkh
dh x;h fd vfHkys[k fu;ksDrk ds dCts esa gS blfy, mldk nkf;Ro gS fd
og fl) djs fd lEcfU/kr vof/k esa deZpkjh us 240 fnu dk;Z ugha fd;k gSA
mHk;i{k dh mDr cgl ds ifjis{; esa ekuuh; loksZPp U;k;ky; us /kkjk 2
¼vksvks½] /kkjk 25 ¼ch½ ,oa 25 ¼,Q½ dh Li”V ,oa cks/kxE; O;k[;k djrs gq,
izLrj 8 i`“B 43 esa deZpkjh }kjk rF;ksa dks fl) djus ds nkf;Ro ds
lEcU/k esa rFkk NVuh dh oS/kkfudrk ds lEcU/k esa ;g vo/kkfjr fd;k gS]
“To attract provisions of Section 25-F, the workman claiming
protection under it, has to prove that there exists
relationship of employer and employee; that he is a
workman within the meaning of Section 2(s) of the Act;
the establishment in which he is employed is an industry
within the meaning of the Act and he must have put in not
less than one year of continuous service as defined by
Section 25- B under the employer. These conditions are
cumulative. If any of these conditions is missing the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1201
provisions of Section 25 –F will not be attracted. To get
relief from the court the workman has to establish that he
has right to continue in service and that his service has
been terminated without complying with the provisions
of Section 25-F of the Act.
The section postulates three conditions to be fulfilled by
an employer for getting a valid retrenchment, namely:-
(i)
one month’s clear notice in writing indicating the
reasons for retrenchment or that the workman has
been paid wages for the period of notice in lieu of
such notice;
(ii)
payment of retrenchment compensation which shall
be equivalent to 15 day’s average pay for every
completed year of continuous service or any part
thereof, in excess of six months;
(iii)
a notice to the appropriate Government in the
prescribed manner.”
ekuuh; loksZPp U;k;ky; us izLrj 10 esa ¼1980½ 4 ,l-lh-lh i`“B
443] lqjsUnz dqekj oekZ cuke lsUVªy xoZesaUV b.MLVªh;y fVªC;wuy de yscj
dksVZ esa vius iw.kZihB ds QSlys lfgr vusd QSlyksa dk mYys[k ,oa mudh
O;k[;k djrs gq, ;g vo/kkfjr fd;k gS fd ;g fl)kUr gS fd fl) djus dk
nkf;Ro deZpkjh ij gS fd og n’kkZ;s fd dfFkr NVuh dh frfFk ds Bhd iwoZ
,d o”kZ esa mlus 240 fnu dk;Z fd;k gS vkSj ;g nkf;Ro Hkh mlh ij gS og
Loa; ds Lkk{; esa ifjf{kr djkus ds vfrfjDr lk{; izLrqr djsaA
fu.kZ; ds iz’rj 18 esa ekuuh; loksZPp U;k;ky; us mYys[k fd;k gS
fd izR;FkhZ dh rjQ ls ekSf[kd lk{; ds vfrfjDr dksbZ lk{; 240 fnu dk;Z
djus ds lEcU/k es ugha izLrqr fd;k x;k gS] u osru ;k etnwjh ds lEcU/k esa
dksbZ jlhn] ;k vfHkys[k ;k vkns’k izLrqr gS] u dksbZ lgdeZpkjh ifjf{kr
djk;k x;k] u gh fu;ksDrk }kjk izLrqr eLVj&jksy ij dksbZ [k.M+u izLrqr
fd;k x;kA
ekuuh; loksZPp U;k;ky; us ;g Hkh mYys[k fd;k gS fd ;g vlEHko
gS fd deZpkjh tks bruh yEch lsok djus dk nkok djrk gS mlds ikl
fu;ksDrk ds v/khu lsok es yxs jgus rFkk dk;Z dh izd`fr ds lEcu/k esa dksbZ
vfHkys[kh; lk{; ugha gksxkA ekuuh; loksZPp U;k;ky; us vo/kkfjr fd;k
fd deZpkjh us 240 fnu rd dk;Z es layXu jgus ds rF; dks fl) djus ds
nkf;Ro dk fuokZg ugha fd;k gS ,oa fo}ku v/khuLFk U;k;ky;ksa us fu;ksDrk
}kjk 10 o”kZ dk vfHkys[k u izLrqr djus ds lEcU/k esa izfrdwy vo/kkj.kk
xyr xzg.k dh gSA ekuuh; loksZPp U;k;ky; us ;g vo/kkfjr fd;k fd
izR;FkhZ dh lsok lekfIr ds iwoZ izR;Fkh dks /kkjk 25 ¼,Q½ dh lqj{kk vFkok
vuqikyu dk vf/kdkj ugha FkkA
/kkjk 25 ¼th½ ,oa 25 ¼,p½ ds vuqikyu ds lEcU/k es ;g lk{; Fkk
fd nSfud osru Hkksxh dh lwph dk j[kj[kko vihykFkhZ }kjk ugha fd;k
tkrkA bl lEcu/k esa ekuuh; loksZPp U;k;ky; us ;g vo/kkfjr fd;k gS fd
deZpkjh dh fu;fer lsok ds vHkko esa vihykFkhZ ls nSfud osru Hkksfx;ksa dh
ofj”Brk lwph ds j[k j[kko dh mEehn ugha dh tk ldrh gSA vfHkys[kkas dh
ekWx ij vihykFkZhZ }kjk u izLrqr fd;s tkus ij /kkjk 114 (III) ¼th½ Hkkjrh;
lk{; vf/kfu;e ds vUrxZr U;k;ky; }kjk izfrdwy vo/kkj.kk xzg.k fd;s
tkus ds lEcU/k esa ekuuh; loksZPp U;k;ky; us ;g vo/kkfjr fd;k gS fd
,slh vo/kkj.kk xzg.k djus iwoZ U;k;ky; ds le{k deZpkjh }kjk bl ckr dk
lk{; izLrqr djuk gksxk fd dksbZ ofj”Brk lwph vfLrRo esa gS vU;Fkk
izfrdwy vo/kkj.kk xzg.k djus dh vuqrks”k ugha iznku dh tk ldrhA
U;k;ky; }kjk izfrdwy vo/kkj.kk xzg.k djus gsrq vf/kdkj iznRr gksus ds
fy, U;k;ky; dks lUrq”V gksuk vfuok;Z gS fd lk{; vfLrRo esa gS vkSj mls
fl) fd;k tk ldrk FkkA ekuuh; loksZPp U;k;ky; us rnuqlkj vihy
Lohdkj dhA
24-
orZeku ekeys ds rF; ,o¡ ifjfLFkfr;ksa dks nf`”Vxr j[k ;g Li”V gS
fd ekuuh; loksZPp U;k;ky; }kjk iznÙk mDr fof/k O;oLFkk orZeku ekeys esa
ykxw gksrh gSA izkFkhZ ds Lo;¡ ds lk{; ,o¡ dFku ds vuqlkj ;g Li”V gS fd
/kkjk 25 th ,oa /kkjk 25 ,p ds izkfo/kku mlds ekeys esa vkdf”kZr ugha gksrs
gS vkSj mDr izkfo/kku ds lqj{kk o vuqikyu ikus dk izkFkhZ gdnkj ugha gSA
;g Hkh Li”V gS fd izkFkhZ bl rF; dks fl) djus esa lQy ugha gS fd mlds
vkSj foi{kh ds chp deZdkj ,o¡ fu;ksDrk dk lEcU/k gS] vr% /kkjk 25 ,Q
vkS|ksfxd fookn vf/kfu;e ds izkfo/kku Hkh orZeku ekeys esa vkdf”kZr ugha
gksrk gSA
25-
i{kdkjksa ds vfHkopuksa] mlds leFkZu esa mHk;i{k }kjk izLrqr lk{;
rFkk lEcfU/kr rF; ,oa ifjfLFkfr;ksa dh mDr O;k[;k o fo’ys”k.k ,oa mDr
n`“VkUr esa nh x;h fof/k O;oLFkk dks n`f”Vxr j[krs gq, esa bl fu”d”kZ ij gWw
fd izkFkhZ i{k bl rF; dks fl) djus esa vlQy gS fd lsokeqfDr dh dfFkr
frfFk 01-02-2006 ds Bhd iwoZ izkFkhZ us dsys.Mj o”kZ esa 240 fnu fu;fer lsok
dh gSA foi{kh dh lsok esa fu;fer fu;qfDr ds rF; dks Hkh izkFkhZ i{k fl)
djus esa vlQy gS] rn~uqlkj ,l-Mh-vks- ¼VsfyQksu½ Fkkukxat] tuin
vyoj@fizaliy tujy eSustj] Hkkjr lapkj fuxe fyfeVsM] t;iqj }kjk
fnukad 01-02-2006 ls izkFkhZ Jh ftrsUnz dqekj nhf{kr dh lsok lekfIr dk
vkns’k fof/kd o U;k; laxr gS rFkk izkFkhZ Jh ftrsUnz dqekj nhf{kr ;kfpr
vuqrks”k ikus ds gdnkj ugha gSA izkFkhZ dh LVsVesUV vkWQ Dyse [kkfjt gksus
;ksX; gS ,o¡ rn~uqlkj [kkfjt dh tkrh gSA U;k;fu.kZ;u gsrq izsf”kr funsZ’k dk
mRrj mDr izdkj fn;k tkrk gSA iapkV rn~uqlkj ikfjr fd;k tkrk gSA
26-
iapkV dh izfrfyfi dsUnzh; ljdkj dks vkS|ksfxd fookn vf/kfu;e
1947 dh /kkjk 17 ¼1½ ds vUrxZr izdk’kukFkZ izsf”kr dh tk;A
Hkjr ik.Ms; ] ihBklhu vf/kdkjh
1202
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 468-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fØLVy
baVhxzsVsM l£olst izkbosV 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;&1] eqacbZ ds
iapkV (lanHkZ la[;k 51@2012) dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&11012@08@2012&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 468.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 51/
2012) 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 Krystal Integrated
Services Private Limited and their workman, which was
received by the Central Government on 20/02/2015.
[No. L-11012/08/2012-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-1/51 OF 2012
Parties:
Employers in relation to the management of
Krystal Integrated Services Pvt. Ltd.
And
Their workmen
Appearances :
For the first party No.1
:
Absent
Management
For the second party/
:
Mr.Tushar Rane,
Union
General Secretary
State
:
Maharashtra
Mumbai, dated the 16th day of January, 2015
AWARD
1.
The present Reference has been made by the Central
Government by its order dated 29.11.2012 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 Maharashtra General
Kamgar Mahasangh, Mumbai dated 20.1.2011 (as
per Exb.I) against the management of M/s. Krystal
Integrated Services Pvt. Ltd. Mumbai is legal and
justified? What relief the concerned workmen are
entitled to?”
2.
Pursuant to the order dated 17.12.2012 passed by
this Tribunal, notices were issued to the parties fixing
1.2.2013.
3.
On 1.2.2013, Shri Arjun Jadav, President of the
second party/Union was present. Statement of Claim on
behalf of the second party/Union was filed. However,
none was present for the first party/Management despite
service of notice.
4.
In the circumstances, by the order dated 1.2.2013,
the case was adjourned for filing Written Statement on
behalf of the first party/Management, and the next date
fixed was 1.3.2013.
5.
On 1.3.2013, none was present for the first party/
Management. Shri Arjun Jadav, President of the second
party/Union was present. As none was present on behalf
of the first party/Management in spite of service of notice,
this Tribunal by the order dated 1.3.2013, directed the
matter to proceed ex parte against the first party/
Management. Time was given to the second party/Union
for filing affidavit, and 25.3.2013 was fixed in the matter.
6.
On 25.3.2013, none was present on behalf of the first
party/Management. Shri Arjun Jadav, Presient of the
second party/Union was present. Prayer was made on
behalf of the second party/Union for further time for filing
affidavit. Thereupon, 2.5.2013 was fixed.
7.
On 2.5.2013, and thereafter on various dates fixed in
the matter, time was taken on behalf of the second party/
Union for filing affidavit. However, no affidavit was filed
on behalf of the second party/Union. Further, after
7.2.2014, none was appearing on behalf of the second
party/Union on the dates fixed in the matter.
8.
In the circumstances, the Tribunal by the order dated
29.9.2014 directed for issuance of fresh notice to the second
party/Union. Accordingly, fresh notice was issued to the
second party/Union by Registered Post AD fixing
18.11.2014. Notice so issued was duly served and
Acknowledgement Card was received back.
9.
On 18.11.2014, the Tribunal took note of the service
of the said notice and the receipt of the Acknowledgement
Card. On the said, date Shri Tushar Rane (wrongly
transcribed as Kushal Rane in the order dated 18.11.2014)
stating himself to the Secretary of the second party/Union
was present on behalf of the second party/Union. He
prayed for time for filing affidavit on behalf of the second
party/Union. Time prayed for was granted, and 16.1.2015
was fixed.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1203
10.
Pursuant to the order dated 18.11.2014, the case is
put up today. Shri Tushar Rane, Secretary of the second
party/Union is present before the Tribunal. None is
present for the first party/Management. Shri Tushar Rane
has filed today an application on behalf of the second
party/Union. It is, inter alia, stated in the said application
that the workmen concerned in the present Reference
have left the Company in question, namely, M/s.Krystal
Integrated Services Private Limited (First party/
Management), and in the circumstances, the demands
forming the subject-matter of the Reference no longer
survive.
11.
Shri Tushar Rane who is present before the Tribunal
has stated that all the concerned workmen in the present
Reference have left the Company in question, namely
M/s.Krystal Integrated Services Private Limited (First
Party/Management) and, therefore, the demands as raised
in the present Reference by the second party/Union no
longer survive.
12.
In view of the above, it is evident that the dispute
forming the subject-matter of the Reference no longer
survives.
13.
Reference is therefore, answered by stating that the
dispute forming the subject-matter of the Reference no
longer survives.
14.
Award is passed accordingly.
Justice S. P. MEHROTRA, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 469-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ Mkyfe;k
eSXuslkbV dkjiksjs'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 ,oa Je U;k;ky;] psUubZ ds iapkV
(lanHkZ la[;k 129@2014) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&27012@1@2014&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 469.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No.
129/2014) 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 M/s. Dalmia Magnesite Corporation
and their workman, which was received by the Central
Government on 20/02/2015.
[No. L-27012/1/2014-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Monday, the 19th January, 2015
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 129/2014
(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 Dalmia Magnesite Corporation and
their workman)
BETWEEN :
Sri K. Palanisamy
: 1st Party/Petitioner
AND
The Assistant General Manager : 2nd Party/Respondent
M/s. Dalmia Magnesite
Corporation (Prop: Dalmia Bharat
Sugar and Industries Ltd.)
Vellakkalpatti, Karuppur Post
Salem-636012
Appearance :
For the 1st Party/
: None
Petitioner
For the 2nd Party/
: M/s. R. Jayaprakash, Advocates
Respondent
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-27012/1/2014-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 M/s.
Dalmia Magnesite Corporation Ltd., Salem regarding
dismissal of service of Sri K. Palanisamy w.e.f.
27.09.2011 is justifiable or not? If not, to what relief
the workman is entitled?”
2.
On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 129/2014 and issued notices to both
sides. The Respondent has appeared through the Counsel.
The petitioner has received notice as early as on
03.01.2015, as seen from the Postal Acknowledgement Card.
However, the petitioner has not entered appearance. He
seems to be not interested in pursuing the matter. So the
reference is only to be closed.
3.
In view of the above the reference is closed. An
award is passed accordingly.
K. P. PRASANNA KUMARI, Presiding Officer
1204
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
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] 3 ekpZ] 2015
dk-vk- 470-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ¯gnqLrku
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;] Hkqous'oj
ds iapkV (lanHkZ la[;k 7@2008) dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&30012@35@2007&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 470.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 7/
2008) of the Central Government Industrial Tribunal/
Labour Court, Bhubaneswar now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Hindustan Petroleum
Corporation Limited and their workman, which was
received by the Central Government on 20/02/2015.
[No. L-30012/35/2007-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present
: Shri Pradeep Kumar, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 7/2008
L-30012/35/2007 -IR(M), dated 25.02.2008
Date of Passing Award – 9th Day of January, 2015
Between:
1. The Terminal Manager,
HPCL, Paradip
2. M/s. Maa Mangala Construction,
Bijayachandrapur,
Plot No. 457, PO-Atharbanki,
Paradip, Dist-Jagatsinghpur
...1st Party Management
(And)
The Organising Secretary,
Petroleum Products Handling & Carriers
Employees Union, Ex-Post Office Building,
Nuabazar, Paradip Port,
Dist-Jagatsinghpur, Odisha-754142
...2nd Party Workman
Appearances :
1. None
…
For the 1st Party-
Management No. 1
2. None
…
For the 1st party-
Management No. 2
3. Shri R. K. Swain
…
For the 2nd Party-
Workmen
AWARD
The Government of India in the Ministry of Labour
& Employment has referred the present dispute existing
between the employer in relation to the Management of
The Terminal Manager, HPCL, Paradip, Odisha, & M/s.
Maa Mangala Construction, Paradip, Odisha and their
workmen Shri Rabindra Kumar Swain in exercise of the
powers conferred under clause (d) of sub-section (1) and
sub-section 2(A) of section 10 of the Industrial Disputes
Act vide their Letter No. L-29011/23/1996- IR(M), dated
21.11.1996 to this Tribunal for adjudication. The dispute
as referred to has been mentioned under the Schedule of
the order of reference which is quoted below.
“Whether the action of the management of M/s.
Maa Mangala Construction – contractor of HPCL in
refusing the employment to Shri Rabindra Kumar
Swain from 08.01.2007, is justified? If not, what
relief the workman is entitled to?”
2.
The 2nd party workman (herein after referred to as
“the workman”) has espoused his claim through his union
namely “Petroleum Product Handling & Carrier Employees
Union”. Through his statement of claim the workman
pleaded that he was working as the Hose Handling worker
at the terminal point of HPCL, Paradip under the 1st Party
Management No. 2, M/s Maa Mangala Construction
(hereinafter referred to as “the management No. 2”). The
management No. 2 is a contractor under the 1st Party
Management No. 1, HPCL, Paradip, (hereinafter referred
to as “the management No. 1”). The workman has alleged
that the management No. 2 has terminated his services
illegally with mala fide intention and paid him the
retrenchment compensation through a cheque which he
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1205
(the workman) have not encashed as a measure of protest
against the action of the management No. 2. The workman
stated that he was fighting for the rights of the workers
against the unfair labour practice of the management
No. 2 and other irregularities. Keeping grudge upon the
workman for his such type of acts, the management No. 2
with an ill intention initially suspended him and afterwards
terminated his services. The workman has filed certain
documents to establish his contentions with a prayer to
declare his termination as illegal and unjustified and pass
orders for his reinstatement with back wages and other
consequential service benefits.
3.
The management No. 1 in their written statement
countered almost all the contentions of the workman and
stated that they are not any way liable for the termination
of employment of the workman by the management No. 2
(contractor). On the other hand, the management No. 2
contended that the disputant workman was a disturbing
element in their establishment who is always indulged in
disturbed activities leading to industrial unrest. He was
warned for several times with the showcause notices, but
he did not mend himself. Rather he involved himself more
and more with some of his co-workers with the acts of
misconduct. For such of his acts, the management No. 1
has made several complaints before the management No.
2 which forced the management No. 2 to suspend the
services of the workman. Later on finding the workman
not suitable for the establishment, the management No. 2
retrenched him with the payment of necessary
retrenchment compensations. To establish their stand,
the management No. 2 filed certain documents and made a
prayer to dismiss the application of the workman as he is
not entitle for any relief.
4.
The following issues were framed by my
predecessor.
(1) Whether the action of the management of M/s.
Maa Mangala Construction – contractor of
H.P.C.L. in refusing the employment to Shri
Rabindra Kumar Swain from 08.01.2007 is
justified?
(2) If not, what relief the workman is entitled to?
5.
The workman has examined himself as the workman
witness No. 1. He was cross examined in full. He proved
certain documents which are marked as exhibit 1 to exhibit
21/1. The management No. 2 has also examined one
witness as management witness No. 1 and proved certain
documents marked as exhibit A to exhibit S.
FINDINGS
Issue No. 1
6.
The workman in his evidence has stated the he has
no claim outstanding against the management No. 1. His
claim lies only in respect of management No. 2. It is an
admitted fact that the management No. 2 initially
suspended the workman for his misconducts prior to his
disengagement. The management No. 2 has not issued
any charge sheet and conducted any departmental
enquiry against the workman. Once, the management No.
2 has also filed an FIR against the workman. Hence, the
conduct of the management No. 2 shows that the workman
was refused employment under them as a punishment
measure imposed upon the workman. No other reason for
such refusal of employment is noticed from the record.
Since, it was not a case of termination of service of the
workman otherwise than as a punishment, the question
on payment of retrenchment compensation to the workman
will not justify the action of the management No. 2.
Moreover, the workman has not received the
compensation paid to him by the management No. 2. The
action of the management No. 2 neither satisfies Section
2(oo) nor Section 33 of the Industrial Disputes Act, 1947.
Hence, the action of the management No. 2 in refusing
employment to the workman is not legal and justified. Issue
No. 1 is answered accordingly.
Issue No. 2
7.
On the above findings, the management No. 2 (M/s.
Maa Mangala Construction, Paradip) is here by ordered
to reinstate the workman Shri Rabindra Kumar Swain in
his previous post and pay him full salary with other
allowances as applicable for the periods of his suspension.
The management No. 2 is further ordered to pay 50% of
his (the workman) monthly wages since the date of issue
of his termination letter till the date of implementation of
this award. The award is to be implemented by the
management No. 2 within a period of 03 (three) months
from the date of publication of award in the Gazette of
India failing which the management shall pay interest @
12% per annum simple interest.
8.
The reference is answered accordingly in favour of
the 2nd party workmen.
PRADEEP KUMAR, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 471-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iqjukikuh
ykbeLVksu ,oa MksyksekbV Dokjjh@LVhy vFkkWfjVh vkWiQ bafM;k 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;] Hkqous'oj ds iapkV (lanHkZ la[;k
24@2001) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@02@2015
dks izkIr gqvk FkkA
¹la- ,y&29011@23@1996&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
1206
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
New Delhi, the 3rd March, 2015
S.O. 471.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 24/
2001) of the Central Government Industrial Tribunal/
Labour Court, Bhubaneswar now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Purunapani Limestone
and Dolomite Quarry/Steel Authority of India Limited and
their workman, which was received by the Central
Government on 20/02/2015.
[No. L-29011/23/1996-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present
: Shri Pradeep Kumar, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar.
Tr. INDUSTRIAL DISPUTE CASE NO. 24/2001
L-29011/23/1996 -IR(M), dated 21.11.1996
Date of Passing Award – 9th Day of January, 2015
Between:
The Assistant General Manager,
Purunapani Limestore & Dolomite Quarry,
RMD, SAIL, PO_Purunapani,
Dist-Sundargarh, Odisha
...1st Party-Management
(And)
1.
The Secretary,
Rourkela Shramik Sangh,
At/PO-Purnapani,
Dist-Sundargarh, Odisha
2.
The Secretary,
Rourkela Mazdoor Sabha,
At/PO-Purnapani,
Dist-Sundargarh, Odisha
3.
Shri Prasanna Kumar Dash & others,
At-Baidyanathpur, PO-Hatibari,
Dist-Sundargarh, Odisha
...2nd Party-Workman
Appearances :
1.
Shri
…For the 1st Party-
Advocate
Management
2.
None
…2nd Party Union No. 1
Rourkela Shramik Sangh
3.
Shri
…2nd Party Union No. 2
Rourkela Mazdoor Sabha
4.
Shri Prasanna Kumar Dash …For the 2nd Party
Workmen No. 3
AWARD
The Government of India in the Ministry of Labour
& Employment has referred the present dispute existing
between the employer in relation to the Management of
The Assistant General Manager, Purunapani Limestone &
Dolomite Quarry, RMD, SAIL Rourkela, Odisha, and their
workmen represented through different unions as well as
a group of workers in exercise of the powers conferred
under clause (d) of sub-section (1) and sub-section 2(A)
of section 10 of the Industrial Disputes Act vide their
Letter No. L-29011/23/1996- IR(M), dated 21.11.1996 to this
Tribunal for adjudication. The dispute as referred to has
been mentioned under the schedule of the order of
reference which is quoted below.
“Whether the demand of the union to pay equal pay
to contract workers for similar and equal nature of
jon and to regularize their services in line with the
regular workmen of Purunapani Linestone &
Dolomite Quarry of Raw Materials Division, SAIL is
justified? If so, to what relief the workmen are
entitled?”
2.
During the process of adjudication, the 2nd party
union No. 2 (in short “union No. 2”) (Rourkela Mazddor
Sabha) and the group of workers represented through Shri
Prasanna Kumar Dash (in short “other workmen”) were
newly impleaded alongwith the contractors under whom
the disputant workers were working. But, later on the
newly impleaded contractors were pleaded to delete their
names from the array of parties on the ground of closure
of the Mines and termination of their contract. The
grounds were considered and the names of the newly
added parties (contractors) were deleted from the array of
parties. The 2nd party union No. 1 (Rourkela Shramik
Sangh) did not take any step in the proceedings and hence
set exparte.
3.
The 2nd party unions and other workmen have
pleaded through their statement of claims that they were
working under direct control of the management of RMD,
SAIL and the so called contractors were sham and
camouflage in order to keep the management of RMD,
SAIL away from their liability towards the so called contract
labourers. The workers were engaged in the mines to
undertook the mines operation such as raising, sizing,
transportation etc. of the limestones and dolomites which
are required for the Rourkela Steel Plant. The workers
remained unchanged with the change of contractors. The
workers were also in receipt of all the statutory dues like
leave, leave salary, gratuity, E.P.F., Bonus, medical facilities,
etc. at par with the regular employees of the management
of RMD, SAIL.
4.
The management of RMD, SAIL have regularised
the services of some of the contract labourers (co-workers)
into their permanent capacity. But, the disputant workers
were unfortunately not considered for permanent
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1207
absorption by the management of RMD, SAIL. The
disputant workers have gathered sufficient experience for
working in the prohibited site. The management of SAIL,
RMD was also supervising the works of the disputant
workers and the workers were also provided with
necessary safety requirements to undertook the job in the
prohibited site.
5.
Later on with the closure of the mines and termination
of contracts, the disputant workers have lost their jobs.
Since the disputant workers were working under the direct
control of the management of SAIL, RMD, they prayed
for salary at par with the regular employees of the
management and to regularize their services under the
management of RMD, SAIL as the work under taken by
them were of permanent and perennial in nature.
6.
The management of RMD, SAIL on the other hand
filed his written statements countering therewith all the
statement of claims filed by the unions and the workmen.
The management contended that the disputant workers
were the contract labourers and the management had
nothing to do with them except the contractors who were
engaged to provide service to the management in
consideration of money. The contractors were the real
employers of the disputant workers and contractors are
only liable for the payment of statutory benefits, etc. to
the workers and to regulate the service conditions of the
workers. The management has further contended that
since the operation of the notification issued by the
Government for abolition of contract labourers in the
industry was stayed, the management found no infirmity
in engaging contractors for the disposal of certain works
in the industry. The management pleaded that the
reference made by the Government being of general in
nature due to non-specification of the names of the
disputant workers, the same cannot be adjudicated by the
Tribunal and hence the same should be rejected.
7.
The following issues were settled by my
predecessor.
(1)
Whether the reference is maintainable?
(2)
Whether the demand of the union to pay equal
pay to the contract workers for similar and equal
nature of job is justified?
(3)
Whether the demand of the union to regularize
their services in line with the regular workmen of
Purunapani Lime Stone and Dolomite Quarry of
Raw Materials Division, SAIL, is justified?
(4)
To what relief the workmen are entitled?
8.
From the side of the 2nd party workmen/union, three
witnesses were examined and cross examined by the 1st
party as workman witness No. 1, 2 and 3. Documents as
proved by the 2nd partywere marked from Ext. 1 to Ext. 11.
From the side of the 1st party management, two witnesses
were examined and cross examined by the 2nd party as
management witness No. 1 and 2. Documents as proved
by the management were marked from Ext. A to Ext. G.
Parties have filed their written notes of submissions. I
have also heard the oral submissions made by the parties
and perused the record.
FINDINGS
Issue No. 1
9.
Admittedly, the establishment of the management is
an industry within the meaning of Section 2(j) of the
Industrial Disputes Act, 1947 (herein after referred to as
“the Act”) and the dispute on demand for equal pay for
equal work and regularization of services raised by the
2nd party workman is an industrial dispute within the
meaning of Section 2(k) of the Act. The 2nd party workmen
are also the workmen under the 1st party management
within the meaning of Section 2(s) of the Act. Upon
aggrieved with the non compliance of the demand of the
2nd party the workmen/2nd party raised the dispute before
the Assistant Labour Commissioner (Central), Rourkela
for an amicable settlement of the matter. Since no
settlement could be arrived at, the Assistant Labour
Commissioner (Central, Rourkela referred the matter to the
Ministry of Labour & Employment, Government of India,
New Delhi being the appropriate Government for
consideration and hence this reference. Hence, on the
above counts, it is a established fact that the reference is
maintainable. Issue No. 1 is answered accordingly.
Issue No. 2
10.
It is an admitted fact that the 1st party management
has provided all the statutory requirements like safety
materials, necessary trainings, medical facilities etc., to
the contract workers. The industry in which the workers
were working is a hazardous industry and to work in that
industry definitely needs grater courage and tremendous
will power to undertake the work. The 1st party
management was paying salary, perquisites to its regular
employees as per the recommendations of the NJCC.
Since the 1st party management was receiving the services
of the disputant workers directly to run the industry, the
management should have considered the plight of the so
called contract workers to pay them their wages at par
with the regular employees of the industry irrespective of
the mode of recruitment of the concerned workmen. The
disputant workmen have put in hard work to satisfy the
wants of the 1st p[arty management. They have also
worked under the direct control and supervision of the 1st
party management through name sake contractors for a
much longer period as their services were immensely
required by the management. Therefore, the 1st party
management is not justified in not paying equal pay for
equal work, which can be said otherwise as not paying
wages to the workers at par with the regular employees of
the industry. Hence, issue No. 2 is answered accordingly.
1208
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Issue No. 3
11.
It is an admitted fact that the disputant contract
workers were working in the industry of the 1st party
management against the permanent and perennial nature
of jobs without any break and that too for a much longer
period. The services of the disputant contract workers
were immensely necessary for the 1st party management.
The 1st party management had provided to the disputant
workers with all the statutory requirements as required in
that industry such as adequate safety measures, necessary
trainings, adequate medical facilities, maintenance of
provident fund acfounts and providing loans from that
P.F. accounts, etc, at par with the regular employees of
that industry. The disputant workers were working under
the direct control of the 1st party management. The
arrangements for engagement of contractors by the 1st
party management was only to safeguard the unjustified
interest of the 1st party management to exploit the services
of the disputant workmen by giving them much lesser
benefits as compared to the regular employees of the
management.
12.
The disputant workers were regularly working under
the 1st party management irrespective of the fact that the
contract for work and the contractors were changing time
and again. When the appropriate Government is notifyed
for the abolition of the contract labour system in the
industry, the 1st party management should consider for
the regular engagement of the contract workers without
terminating the services of the disputant workers on the
plea of closure of the industry and waiving of contract
labour system as the management needs services of the
workers to run the industry to achieve the very purpose
of the establishment of the industry. The management
has already absorbed some of the so called contract
workers (co-workers of the disputant workmen) into their
permanent capacity. Also, in the last line of the last but
one para of the written notes of arguments submitted on
behalf of the 1st party management, it is clearly admitted
by the 1st party management that “the 2nd party workmen
are entitled to the relief of regularization as claimed”. Thus,
the demand of the union to regularize their services in line
with the regular workmen of Purunapani Lime Stone &
Dolomite Quarry of the Raw Materials Division, SAIL is
justified. Issue No. 3 is answered accordingly.
13.
The object and scope of the Contract Labour
(Regulation and Abolition) Act, 1970 (in short “CLRA Act”)
is to improve the system of employment of contract labour
in order to avoid various abuses and to ensure payment
of wages & provision of essential amenities to the so called
contract labourers. The basic purpose of the CLRA Act is
to undertake the Industrial works through regular
employees who avails all the extendable benefits as
admissible directly from the management. Therefore, when
the appropriate Government is abolishing the contract
labour system, the principal employer/management should
absorb the contract labourers into their permanent capacity
to undertake those industrial works.
Issue No. 4
14.
The management is therefore, ordered to reinstate
the disputant workers by absorbing them into the regular
workforce working under them in a measure to regularize
their services with effect from the date of publication of
the award in the Gazette of India. The management is
further ordered to pay the differential wages at par with
the regular employees of their industry in lieu of arrear
pay and allowances for the periods the disputant workers
have worked in their establishment/industry within three
months from the date of publication of award in the Gazette
of India, failing which the management shall pay interest
@ 12% per annum simple interest
15.
The reference is answered accordingly in favour of
the 2nd party workmen.
PRADEEP KUMAR, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 472-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iznhi ekb¯ux
,oa daLVªD'ku izkbosV 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;] Hkqous'oj
ds iapkV (lanHkZ la[;k 15@2013) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&29012@49@2012&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 472.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 15/
2013) of the Central Government Industrial Tribunal/
Labour Court, Bhubaneswar now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Pradeep Mining and
Construction Private Limited and their workman, which
was received by the Central Government on 20/02/2015.
[No. L-29012/49/2012-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present
: Shri Pradeep Kumar, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 15/2013
No. L-29012/49/2012-IR(M) dated 06.02.2013
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1209
Date of Passing Award – 19th Day of January, 2015
Between :
M/s. Pradeep Mining & Construction (P) Ltd.,
Chorda Road, Jajpur,
Odisha
...1st Party Management
(And)
Shri Dhaneswar Lohar,
Village-Arodapal, PO-Chungudipal,
Thana-Kaliapani, Dist-Jajpur,
Odisha
...2nd Party Workman
Appearances :
None
…
For the 1st Party-Management
None
…
For the 2nd Party-Workman
AWARD
The Government of India in the Ministry of Labour
& Employment has referred the present dispute existing
between the employers in relation to the Management of
M/s. Pradeep Mining & Construction (P) Ltd., Jajpur,
Odisha and their workman Shri Dhaneswar Lohar, in
exercise of the powers conferred under clause (d) of sub-
section (1) and sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947 (14 of 1947) vide their Letter
No. L-29012/49/2012-IR(M), dated 06.02.2013 to this
Tribunal for adjudication.
2.
The reference was registered on 28.02.2013. The
2nd party workman has not complied the orders of the
Ministry for filing his statement of claim within the
prescribed period. He also neither appeared nor took any
step even after notice through ordinary post issued to
him on 04.08.2014 and again through registered post on
19.09.2014. On 18.7.2013, he appeared before the Tribunal
and filed a petition to adjourn the matter on the ground of
amendment of the schedule of reference. Since that date,
the workman neither appeared not has taken any step in
the matter. Since the 2nd party workman did not file his
statement of claim, there is no scope for the 1st party
management to file their written statements. Moreover, it
is not possible to adjudicate the matter in the absence of
any pleadings of the parties.
3.
It appears from the above acts of the 2nd party
workman that either they have lost their interest in the
case or they might have resolved his disputes with the 1st
party management amicably out of the court. In the given
circumstances, only a no-dispute award is required to be
passed and accordingly a no-dispute award is passed in
the case.
4.
The reference is answered in the above terms.
PRADEEP KUMAR, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 473-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ukxktqZu
daLVªD'ku 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;] Hkqcus'oj
ds iapkV (lanHkZ la[;k 14@2014) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&30012@72@2013&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 473.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 14/
2014) of the Central Government Industrial Tribunal/
Labour Court, Bhubaneswar now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Nagarjuna Construction
Company Limited and their workman, which was received
by the Central Government on 20/02/2015.
[No. L-30012/72/2013-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present
: Shri Pradeep Kumar, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar
INDUSTRIAL DISPUTE CASE NO. 14/2014
No. L-30012/72/2013-IR(M) dated 04.04.2014
Date of Passing Award – 9th Day of January, 2015
Between :
1.
Nagarjuna Construction Co. Ltd.,
EPCM-4, IOCL Reginary Site,
At-Abhaya Chandpur, PO-Jhimani,
Via-Paradip, Dist-Jagatsinghpur,
Odisha
...1st Party Management
2.
Shri Banka Bihari Singh,
Sub-contractor,
S/o Gobardhan Singh,
At-Biswali, PO-Jhimani, Via-Paradip,
Dist-Jagatsinghpur, Odisha
(And)
Shri Nalini Kanta Bhoi,
S/o Late Braja Bandhu Bhoi,
At/PO-Karanja, Via-Mahakalpara
PS-Marsaghai, Dist-Kendrapara,
Odisha
…2nd Party Workman
1210
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Appearances :
None
…
For the 1st Party-Management
None
…
For the 2nd Party-Workman
AWARD
The Government of India in the Ministry of Labour
& Employment has referred the present dispute existing
between the employers in relation to the Management of
Nagarjuna Construction Co. Ltd., & Shri Banka Bihari
Singh and their workman Shri Nalini Kanta Bhoi, in exercise
of the powers conferred under clause (d) of sub-section
(1) and sub-section 2(A) of Section 10 of the Industrial
Disputes Act, 1947 (14 of 1947) vide their Letter No.
L-30012/72/2013-IR(M), dated 04.04.2014 to this Tribunal
for adjudication.
2.
The reference was registered on 26.05.2014. The
2nd party workman has not complied the orders of the
Ministry for filing his statement of claim within the
prescribed period. He also neither appeared nor took any
step even after notice through ordinary post issued to
him on 06.08.2014 and again through registered post on
05.09.2014. Since the 2nd party workman did not file his
statement of claim, there is no scope for the 1st party
management Nos. 1 & 2 to file their written statements.
Moreover, it is not possible to adjudicate the matter in the
absence of any pleadings of the parties.
3.
It appears from the above acts of the 2nd party union
that either they have lost their interest in the case or they
might have resolved their disputes with the 1st party
management amicably out of the court. In the given
circumstances, only a no-dispute award is required to be
passed and accordingly a no-dispute award is passed in
the case.
4.
The reference is answered in the above terms.
PRADEEP KUMAR, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 474-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fVªfuVh de£'k;Yl
izkbosV 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;] Hkqous'oj ds iapkV (lanHkZ
la[;k 60@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&29012@28@2013&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 474.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 60/
2013) of the Central Government Industrial Tribunal/
Labour Court, Bhubaneswar now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Trinity Commercial Private
Limited and their workman, which was received by the
Central Government on 20/02/2015.
[No. L-29012/28/2013-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present
: Shri Pradeep Kumar, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar
Tr. INDUSTRIAL DISPUTE CASE NO. 60/2013
No. L-29012/28/2013-IR(M) dated 23.08.2013
Date of Passing Award – 9th Day of January, 2015
Between :
M/s. Trinity Commercials Pvt. Ltd.,
Contractor of M/s. Serajuddin Co.
Balda Block Iron Mines, At/PO-Baneikela,
Via-Joda, Dist-Keonjhar, Odisha
...1st Party Management
(And)
Shri Dinamani Naik,
At/PO-Balada, Via-Joda,
Dist-Keonjhar, Odisha
...2nd Party Workman
Appearances :
None
…
For the 1st Party-Management
None
…
For the 2nd Party-Workman
AWARD
The Government of India in the Ministry of Labour &
Employment has referred the present dispute existing
between the employers in relation to the Management of
M/s. Trinity Commercials Pvt. Ltd., and their workman Shri
Dinamani Naik in exercise of the powers conferred under
clause (d) of sub-section (1) and sub-section 2(A) of
section 10 of the Industrial Disputes Act, 1947 (14 of 1947)
vide their Letter No. L-29012/28/2013-IR(M), dated
23.08.2013 to this Tribunal for adjudication.
2.
The 2nd party workman has filed his statement of
claim through post which was received on 22.10.2013. He
has not filed any documents to substantiate his case.
Since, he did not take any step except sending his statement
of claim through post he was noticed through registered
post on 27.10.2014. Notice issued to him seems to have
been duly served. But, the 2nd party workman did not
appear.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1211
3.
On the other hand, the 1st party management did
not file it’s written statement, though the 2nd party
workman has served a copy of statement of claim on them
through post. Also, notice through registered post issued
to the 1st party to file it’s written statement. But, neither
the 1st party appeared nor any step taken by it.
4.
It appears from the above acts of the parties that
either they have lost their interest in the case or they
might have resolved their disputes amicably out of the
court. In the given circumstances, a no-dispute award is
required to be passed and accordingly a no-dispute award
is passed in the case.
5.
The reference is answered in the above terms.
PRADEEP KUMAR, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 475-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ v#.k
daLVªD'ku@eSllZ th- ,l- vVoky 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;] Hkqcus'oj
ds iapkV (lanHkZ la[;k 48@2012) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&29012@15@2011&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 475.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 48/
2012) of the Central Government Industrial Tribunal/
Labour Court, Bhubaneswar now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of M/s. Arun Construction/
M/s. G.S. Atwal and their workman, which was received
by the Central Government on 20/02/2015.
[No. L-29012/15/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present
: Shri Pradeep Kumar, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar
INDUSTRIAL DISPUTE CASE NO. 48/2012
No. L-29012/15/2011-IR(M) dated 13.04.2012
Date of Passing Award – 9th Day of January, 2015
Between :
1.
M/s. Arun Construction,
Sub-contractor of M/s. G.S. Atwal,
At-Kanchipur, PO-Jajpur Road,
Dist-Jajpur-755019, (Odisha)
...1st Party-Management
2.
M/s. G.S. Atwal,
Contactor of Sukinda Chromite Mines,
At/PO-Kalarangiatta,
PO-Kaliapani, Jajpur
(And)
Their Workman Shri Jayaram Mahanta,
C/o Sanatan Mahanta,
At-Rankia (Udayapur), PO-Lenboo,
PS-Sukinda, Dist-Jajpur,
Odisha
...2nd Party-Workman
Appearances :
None
…
For the 1st Party-Management
None
…
For the 2nd Party-Workman
AWARD
The Government of India in the Ministry of Labour
& Employment has referred the present dispute existing
between the employers in relation to the Management of
M/s. Arun Construction & M/s. G.S. Atwal and their
workman Shri Jayaram Mahanta in exercise of the powers
conferred under clause (d) of sub-section (1) and sub-
section 2(A) of section 10 of the Industrial Disputes Act,
1947 (14 of 1947) vide their Letter No. L-29012/15/2011-
IR(M), dated 13.04.2012 to this Tribunal for adjudication.
2.
The 2nd party workman has filed his statement of
claim through his advocate which is not permissible under
the law. He was noticed through ordinary post to appear
before the Tribunal, but he did not turn up. He was again
noticed on 31.05.2013, 05.09.2014 through ordinary post.
Finally, he was noticed on 31.10.2014 through registered
post. All the notices issued to his seems to have been
duly served. But, the 2nd party workman did not file his
statement of claim. Though the 1st party management
Nos. 1 & 2 were appearing on some dates, they failed to
appear before this Tribunal since September 2014. It is
therefore, presumed that either the parties to the dispute
have no interest in the case or they might have resolved
their disputes amicable out of the court. In the absence of
the claim statement and appearance of the parties, the
matter cannot be adjudicated.
3.
In the given circumstances, a no-dispute award is
required to be passed and accordingly a no-dispute award
is passed in the case.
4.
The reference is answered in the above terms.
PRADEEP KUMAR, Presiding Officer
1212
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 476-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fVªfuVh de£l;Yl
izkbosV 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;] Hkqous'oj ds iapkV (lanHkZ
la[;k 61@2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&29012@29@2013&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 476.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 61/
2013) of the Central Government Industrial Tribunal/
Labour Court, Bhubaneswar now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Trinity Commercial Private
Limited and their workman, which was received by the
Central Government on 20/02/2015.
[No. L-29012/29/2013-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present
: Shri Pradeep Kumar, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar
INDUSTRIAL DISPUTE CASE NO. 61/2013
No. L-29012/29/2013-IR(M) dated 23.08.2013
Date of Passing Award – 9th Day of January, 2015
Between :
M/s. Trinity Commercials Pvt. Ltd.,
Contractor of M/s. Serajuddin Co.
Balda Block Iron Mines, At/PO-Baneikela,
Via-Joda, Dist-Keonjhar, Odisha
...1st Party Management
(And)
Shri Ghanashyam Hembram,
At/PO-Balada, Via-Joda,
Dist-Keonjhar, Odisha
...2nd Party Workman
Appearances :
None
…
For the 1st Party-Management
None
…
For the 2nd Party-Workman
AWARD
The Government of India in the Ministry of Labour
& Employment has referred the present dispute existing
between the employers in relation to the Management of
M/s. Trinity Commercials Pvt. Ltd., and their workman Shri
Ghanashyam Hembram in exercise of the powers conferred
under clause (d) of sub-section (1) and sub-section 2(A)
of Section 10 of the Industrial Disputes Act, 1947 (14 of
1947) vide their Letter No. L-29012/28/2013-IR(M), dated
23.08.2013 to this Tribunal for adjudication.
2.
The 2nd party workman has filed his statement of
claim through post which was received on 22.10.2013. He
has not filed any documents to substantiate his case.
Since, he did not take any step except sending his statement
of claim through post, he was noticed through registered
post on 27.10.2014. Notice issued to him seems to have
been duly served. But, the 2nd party workman did not
appear.
3.
On the other hand, the 1st party management did
not file it’s written statement, though the 2nd party
workman has served a copy of statement of claim on the
them through post. Also, notice through registered post
issued to the 1st party to file it’s written statement. But,
neither the 1st party appeared nor any step taken by it.
4.
It appears from the above acts of the parties that
either they have lost their interest in the case or they
might have resolved their disputes amicably out of the
Court. In the given circumstances, a no-dispute award is
required to be passed and accordingly a no-dispute award
is passed in the case.
5.
The reference is answered in the above terms.
PRADEEP KUMAR, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 477-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fHkykbZ LVhy
IykaV ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
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vfèkdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la[;k
62@2007) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@02@2015
dks izkIr gqvk FkkA
¹la- ,y&43011@2@2007&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 477.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 62/
2007) of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1213
Industrial Dispute between the employers in relation to the
management of Bhilai Steel Plant and their workman, which
was received by the Central Government on 20/02/2015.
[No. L-43011/2/2007-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/62/07
The President,
Metal Mines Workers Union,
Rajhara Branch, Dalli Rajhara,
Dt. Durg (Chhattisgarh)
...Workman/Union
Versus
General Manager,
Bhilai Steel Plant,
Bhilai, Distt. Durg
...Management
AWARD
Passed on this 19th day of January, 2015
1.
As per letter dated 18-7-07 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-43011/
2/2007-IR(M). The dispute under reference relates to:
“Whether the action of the management of Bhilai
Steel Plant in promoting/ recruiting Shri R.K.Garg,
Shri H.N.Hari Viashi, Shri D.K. Tamteka, Shri Rajiv
Devdena and Shri Devanand Rasthogi from non-
executive (P-8), Mines Foreman post to Jr. Executive
(E-O) post is legal and just? If not, too what relief
the Senior (P-8) Mines Foreman workmen who have
been affected by above appointments are entitled
to?”
2.
After receiving reference, notices were issued to
the parties. Ist party workman failed to participate in
reference proceeding. He is proceeded ex-parte on 9-5-
2012. IInd party management submits that during visit to
Jharandali Mines , Director of Mines and Safety appointed
violation of Section 35 of Mines Regulation 1961. That
adequate number of Asstt. Manager having statutory
qualifications have to be posted to look after the operation
of mines was not followed. According to recruitment policy
of company, the executive posts of E-4 Grade were to be
circulated internally within the Plant/ unit concerned. If
suitable candidates was not available, same was to be
circulated on interplant basis. The internal circular was
issued for notifying application for Bhilai Steel Plant on
2-5-05. The minimum qualifications were diploma in mining
engineering, IInd class Mines master circulated in
competency. In accordance with circular, minimum 3 years
experience was required in IInd class Mines Manager.
After completion of selection process, the recruitment
section has released a panel for issuance of offer of
appointment to the 5 non-executive employees of the mines
for the post of Junior Executive Mining (E-O) namely
Devanand Rastogi, Rajeev Dandona, D.K.Ramteke,
H.S.Haribyasi and Rajendra Kumar Garg after
recommendation by DPC. The Union raised dispute as per
letter dated 18-6-05 before RLC, Raipur. The schedule
related to promotion was incorrect. IInd party submits that
management promoting R.K.Garg, H.N.Hari Viashi,
D.K.Ramteke, Rajiv Devdena and Devnand Rastogi is legal.
3.
Management filed affidavit of evidence of witness
Shri R.K.Shrivastava supporting contentions in Written
Statement. Ist party has not participated in reference.
Management’s witness was not cross-examined. I find no
reason to disbelieve in challenged evidence of
management’s witness.
4.
In the result, award is passed as under:-
(1)
For failure of Ist party in participating in reference
proceeding, the action of management is proper and
legal, the action of management is proper and legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 478-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wjsfu;e
dkjiksjs'ku vkWiQ bafM;k 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- 2] /
uckn ds iapkV (lanHkZ la[;k 18@2011) dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&43011@5@2010&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 478.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 18/
2011) of the Central Government Industrial Tribunal/
Labour Court No. 2, Dhanbad now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Uranium Corporation of
India Limited and their workman, which was received by
the Central Government on 20/02/2015.
[No. L-43011/5/2010-IR(M)]
JOHAN TOPNO, Under Secy.
1214
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD
PRESENT : Shri Kishori Ram, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D.Act.,1947.
REFERENCE NO. 18 OF 2011
PARTIES
:
General Secretary,
M/s Uranium Kamgar Union,
PO: Jadugoda, Distt. Singhbhum East
Vs.
The General Manager,
Uranium Corporation of India Ltd.,
PO:Jadugoda Mines,
Distt. Singhbhum East
Order No.L-43011/5/2010-IR (M)
dt.4.7.2011.
APPEARANCES :
On behalf of the
: Mr. S.N. Goswami, Ld. Advocate
Workman/Union
On behalf of the
: Mr. P. R. Rakshit, Ld. Advocate
Management
State : Jharkhand
Industry : Mines
Dated, Dhanbad, the 21st Jan., 2015
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-43011/5/2010-IR (M) dt.4.7.2011.
SCHEDULE
“Whether the action of the Management of Uranium
Corporation of India Ltd, in dismissing the service
of Smt.Thanushree Nayak w.e.f. 10.11..2009 is just
and fair?To what relief the concerned applicant is
entitled”?
On receipt of the Order No. L-43011/5/2010-IR- (M)
dt.04.07.2011of the above mentioned reference from the
Government of India, Ministry of Labour & Employment,
New Delhi for adjudication of the dispute, the Reference
Case No.18 of 2011 was registered on 27.07.2011 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 workwoman Smt. Tanushree Nayak as
sponsored by the Uranium Kamgar Union, Jaduguda
Mines, Distt. Singhbhum (E) is that she has been
unblemishedly working as the permanent Scientific
Assistant ‘A’ Since long. At silently but steadily
continuous protest to some corrupt at higher level, the
Higher Officials were annoyed and prejudiced against her,
always on the lookout for her removal from services.Sri
P.K.Tamrakar, Assistant Supdt, (CR &D), the actual guilty
person, motivatedly issued her a show-cause notice
dt.28.4.2008. She was coersed to admit the allegation by
giving her statement to that effect. After the forceful and
illegal confessional statement dt.29.5.2008 from her, the
Management issued her a false and frivolous charge sheet
dt.8.5.2008.The workwoman submitted her reply
dt.19.5.2008,with emphatic denial to the charges levelled
against her, by submitting about the writing of the letters
dt.28.4.2008 and 2.5.2008 under duress, coercion and undue
influence of aforesaid Assistant Superintendent (CR
&D).Despite it, she was suspended as per the Order
dt.2.5.2008.The Management also appointed a biased
Enquiry Officer for an invalid and irregular enquiry. She
by the letter dt.2.8.2008 had requested the Enquiry Officer
for supply of certain information and clarification. She
had also submitted her representation dt.15.7.2008. She
had also raised the voice of objection as per the letter
dt.29.9.2008 against the illegal manner/method of the
enquiry as well as the specific biasness of the Enquiry
Officer, who malafide and biasedly allowed neither her nor
her representative to cross-examine the Management’s
witnesses, rather it was obstructed to cross -examine on
some plea or other. The Management miserably failed to
adduce any documents to prove the alleged manipulation
of the reported result 60 to 65 % of the burnt lime sample
and alleged reporting of higher value in place of actual
result analyzed by the Laboratory Technician. Even the
allegations of extending financial benefit to the Supplier/
Vendors of burnt lime of M/s Shri Shyam Chemical as well
as the allegation of alleged financial loss of UCIL could
not be proved just as the charges levelled against the
workwoman. The finding of the Enquiry Officer not based
on evidence was perverse . The Chief Manager (Admn.)
I.R.S., P.K.Mohanty had no power to issue the charge
sheet nor to dismiss her, so the dismissal order
dt.10.11.2009 is prima facie illegal and void abinitio.Even
the appeal of the workwoman was unreasonably and
inconspicuously dismissed by the Chairman and
Managing Director. The workwoman as well as the Union
had represented before the Management against the illegal
and arbitrary order of dismissal, but till the date ineffective.
¹Hkkx IIó[k.M 3(ii)º
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1215
Finally, the Industrial Dispute raised by the Union before
the A.L.C. (C), Chaibasa, due to the failure of conciliation
for adamantacy of the Management in attitude resulted in
the reference for an adjudication. So the action of the
Management in dismissing the workwoman is not only
vindictive and anti labour policy but also illegal, unjustified
and against the principles of natural justice. It is also too
harsh and disproportionate to the alleged offence.
3.
The Union concerned in its rejoinder has specifically
denied all the allegations of the OP/Management as false,
concocted and frivolous, further stating that on the basis
of analysis report, the finance department made payment
to the supplier of Burnt Lime, and the workwoman was no
way connected with the order received of material and
payment. She was innocent. She never got any illegal gain
out of the alleged payment to the Supplier for supply of
Burnt Lime, rather the higher officials are deeply involved
in it, and they made her a scape-goat. The alleged report
was not prepared by her nor there any alleged manipulation
of the result. The non-supply of the enquiry proceeding
along with the second Show-Cause to her prejudiced her a
lot. So she is entitled to reinstatement with full back wages.
4.
Whereas challenging the maintainability of the
reference in law and on facts etc. as stated in their written
statement, the OP/Management has alleged that the
Industrial dispute (herein after referred to as I.D.) as
scheduled to the reference as referred mechanically by
the Government is no I.D. u/s 2(k) of the I.D.Act, 1947, so
the Tribunal has no jurisdiction for an adjudication. The
Uranium Kamgar Union devoid of any representative
capacity has no locus standi to raise it, as workwoman
Thanushree Nayak is not a member of it, and the Union is
not a recognized one of the O.P./Management. Moreover,
raising of the demand by the workman for any matter/
dispute firstly with the Management/Employer, and its
refusal by the management are the since quo non for the
reference. The reference devoid of it is not valid for an
adjudication. Smt.Tanushree Nayak, the Scientific
Assistant Gr. I, was working in Fiduciary position of the
Government Company. She has unequivocally accepted
the fraud so committed by her for more than once. The
Management could have summarily dismissed her, but
the Management gave her full opportunity for her defence
and for the end of justice so she was issued the charge
sheet and the Enquiry Committee was constituted wherein
both the parties have examined and cross-examined the
witnesses. On the basis of the consideration of all the
relevant documents including the Enquiry Report, the
Disciplinary Authority dismissed her legally. She was
initially employed as Graded Operational Trainee in the
Laboratory of Jaduguda Mines, Jaduguda, wherein she
was absorbed as the Scientific Assistant Gr.A w.e.f.
08.06.2001. Her normal duty interalia was to test, to analyse
the various samples to prepare analysis report under her
signature ,and to submit it to the Section- In- charge of the
Department. As the fact of the case stands CaO contents
of the samples analysis was done by the Laboratory
Assssistants and its report was sent to Smt. Nayak for
checking report and the calculation of actual findings
about the samples of Brunt lime having CaO contents as
reported by the Laboratory Assistant, as the Corporation
needs the huge quantity of Brunt lime for various
requirement at Jaudguda Mines. Brunt Lime is procured
through the suppliers on purchase orders specifying the
required level of available CaO contents in the material to
be supplied by the supplier. The payment based on the
analysis report at the terms & conditions is made to the
supplier by the Corporation. The workwoman being the
Sr.most Scientific Assistant Grade A was entrusted with
the job of checking and preparing the reports of actual
findings for CaO contents in the brunt samples taken from
the supplied brunt Lime. Accordingly, she checked and
reported the actual findings of thereof. But on final
verification of the analysis report by the officials
concerned, it was found that Smt. Nayak had manipulated
the results of about 60 to 65% samples of brunt Limes
during the period dtt. 03.12. 2007 to 18.04.2008; as such
she falsely reported of higher value by tampering with the
actual result figures of the Analysis done by the Laboratory
Assistants. Thus she had wilfully and mala fide extended
financial benefits to the supplier to M/s Shri Shyam
Chemical with a view to have her own gain causing a huge
financial loss to the Corporation .On the complaint of the
Officer concerned, she was show- caused as per the order
dt.28.04.2008 for it. She also submitted her replies dtt.
28.042008 and 02.05.2008 already accepting her misdeeds
for the wrongful gains of the suppliers and she also
begged mercy for her such grave misconducts .She was
suspended as per the order dt.2.5.2008 of the Management
in view of her grave and fraudulent misconducts as
accepted by herself. She was issued the charge sheet
dt.8.5.2008 for it. After some more time, she submitted her
written reply on 19.5.2008.Since the explanation of
workwoman was found unsatisfactory by the Competent
Authority, and the Enquiry Committee was constituted as
per the order dt.21.5.2008 of the Management whereby
the Enquiry Officer and the Presenting Officer for the
Management were appointed for the enquiry against her
in respect of the charges levelled against her. She was
given all reasonable opportunities for her own defence in
course of the enquiry from 26.05.2008 to 12.06.2009. The
domestic Enquiry was fairly and properly held in
accordance with the principle of natural justice as also
certified by the workwoman and her co-worker as well.
The Enquiry Officer submitted enquiry report to the
Authority concerned as per his letter dt.27.07.2009, holding
her the guilty of the charges. At the 2nd Show-Cause Notice
dt.7.09.2009 with a copy of Enquiry Report, she submitted
her reply. On the due consideration of all the facts, the
Authority concerned as per order dt.10.11.2009 dismissed
her from the service. As such the action of the
1216
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
Management in dismissing the workwoman is just and
fair, so she is not entitled to reinstatement or any relief.
It has been further submitted for adducing evidence
to prove the charge levelled against the workwoman on
merits, if the domestic enquiry held by the Management is
found unfair at the preliminary issue.
The OP/Management in their rejoinder has
categorically denied all the allegations of the workwoman
as false.
FINDING WITH REASONINGS
5.
In the instant reference, it is quite obvious from the
case record that after taking the evidences of WWI
Smt.Tanushree Nayak and MWI B.B Shaw, the Manager
(Pers.) of the Management at the preliminary point ,while
it was pending for hearing the arguments of both the
parties at the preliminary point, a petition Mr. S.N. Goswami,
Ld. Advocate for the Union Representative/workwoman
appears to have been filed for not contesting the fairness
of the enquiry, serving a copy of it on Mr. P.R. Rakshit, Ld.
Advocate for the Management .Accordingly, the Tribunal
as per order No.22 dt.06.03.2014 held the domestic enquiry
as fair and proper in accordance with principle of natural
justice in view of the aforesaid circumstances.Hence,it
resulted in hearing the arguments of both the parties on
merits.
Mr. P.R. Rakshit, the Learned Counsel for the OP/
Management has argued that after holding the domestic
enquiry, the Enquiry Officer submitted his enquiry report
(Ext M.17), holding the delinquent employee
Smt.Thaunshree Nayak guilty of the charges proved; on
the second Show-Cause Notice and her reply to it
(Extt.M.16 and M.18 respectively), the Disciplinary
Authority duly considered all the materials, and awarded
her the punishment of dismissal for her proved misconduct.
Even on acceptance of the enquiry as fair by the delinquent
employee as per her petition dt.6.3.2014 and the same was
upheld by the Tribunal. To Mr.Rakshit, thus the point of
interference by the Tribunal under Sec.11A of the Industrial
Dispute Act, 1947 is only now for due consideration on its
merits. The delinquent employee, the Scientific Assistant
Grade “A” was working in fiduciary position needing high
integrity, but she manipulated the figures of the analysis
reports by raising the Cao contents in the Burnt Lime
supplied by one supplier M/s Shyam Chemical for the
period from 3.12.2007 to 18.04.2008 with a view to facilitate
illegal increased financial benefits to the supplier, as she
fairly accepted her in her statements (Two letters - Extt.M.5
& 5/1).In support of his argument, Mr.Rakshit,the Learned
Counsel for the OP/Management has, relying upon the
rutities noted below, submitted that ‘role of the Court in
the matter departmental proceeding is very limited, and
that court can not substitute its own view or finding for
finding recorded by the Disciplinary Authority on detailed
appreciation of the evidence on record).In the matter of
imposition of sentence, the scope of interference by the
Court is very limited and restricted to exception cases.
The punishment imposed by the Disciplinary Authority
or the appellate Authority unless shocking to the
conscience of the Court, cannot be subjected to judicial
review. The Court has to record the reasons as to why the
punishment is disproportionate; mere statement that the
punishment is disproportionate would not suffice (Para
22), 2013 LAB IC.2810 S.C. (DB) (A), S.R.Tewari vs. Union
of India. Similar view of the Hon’ble Apex Court was held
in the case of Regional Manager,UP,SRTC Vs.Hari Lal,2003
SCC (L & S) 363(DB) as cited by Mr.Rakshit ,wherein
further holding that it is not only the amount involved but
the mental set up, the type of duty performed and similar
relevant circumstance which go into the decision making
process while considering whether the punishment is
proportionate or disproportionate… where the person
deals with public money is engaged in financial transaction
or acts in a fiduciary capacity, the highest degree of
integrity and trust worthiness is a must and unexceptional
(Para10).
Further submission of Mr. Rakshit is that where there
is sufficiency of Evidence and Correctness of conclusion
drawn in departmental enquiry, it is not for the court to
examine these facts, though it may be possible to arrive at
a different conclusion as held in the case of High Court of
Judicature at Bombay Vs. Shirish Kumar Rangrao Patil,
1997 SCC (L&S) 1486 (DB).
Lastly Mr.Rakshit has submitted, relyng upon AIR
2000 SC 3129 (DB) wherein held, in reference to Industrial
Dispute Act, 1947, Sec. 2 Item, Sec.11 A, that where charges
of breach of trust and misappropriation of goods are
established, reinstating the employee in service unjustified,
and facts that misappropriation is for small or large
amounts or the past record of employee is unblemished
are irrelevant (Para 6, 7, 8).
6.
Whereas the contention of Mr.S.N.Goswami, Ld.
Counsel for the delinquent employee is that she was the
permanent employee of M/s UCIL, Jaduguoda Mines
where she had been working as the Scientific Asstt.- A
since 1997 with full honesty and integrity as per Service
Records. She was being pressurized to perform the job
assigned as per the instructions given by Mr. P.K Tamrakar,
the Asstt. Supdt, (CR &D) of the Company. On the protest
of the delinquent employee, the High Officials got
annoyed and prejudiced towards her. For the reasons,
aforesaid Asstt Supdt. (CR &D) issued her a Show-Cause
dt. 28.04.2008 with a view to save his own skin and put the
false allegation against her. She never committed any
misconduct as levelled against her. She also replied to the
charge sheet on 19.05.2008, emphatically denying the
allegations beyond the jurisdiction under clause 2c(d) of
the Certified Standing Order of the Company. In course of
enquiry, the innocent employee had fully protested the
allegations of false reporting through manipulation of result
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1217
of Burnt Lime in the Analysis Report of the Laboratory
Assistant under his instructions. Her alleged letters of her
acceptance of her guilt was written by her under the duress
of the Asstt.Supdt. Moreover, despite the alleged
misconducts having been unestablished, the Enquiry
Officer biasedly and perversely submitted his report
against her, because the very charge sheet is itself vague,
invalid and beyond jurisdiction. Finally, it is alleged that
the action of the Management in dismissing the delinquent
employee from the service is illegal, arbitrary and forceful
and against the principle of natural justice which is too
harsh and shockingly disproportionate. Therefore she is
legally entitled for instatement in the service with full back
wages and other consequential benefits.
7.
On the perusal and consideration of the materials
available on the case records, after hearing the detailed
argument of both the Learned Counsels for the respective
parties, the indisputable facts visible to the serve eyes
appears to be as such:
(i)
Smt. Tanushree Nayak the delinquent employee
a Graduate was initially appointed as G.O.T. on
08.12.1997 in the CRD of the UCIL,had been
working as the Scientific Assistant A since
08.06.2001 after her absorbation.Though She was
not designated as the Supervisor, the Scientific
Asstt., Grade C, she as the Senior Scientific Asstt.
was assigned to the job of the Supervisor in
place of the Shunbhakar Sahu since transferred,
for working as the Analyst and Supervisor for
the last one years ( from 20.08.2007 to 14.07.2008)
as per the oral instruction of Dr.P.K.Tamrakar,
the Asstt. Supdt., (CR& D).She was accordingly
to perform the job of checking calculation of
samples of burnt Lime done by the Lab
Assistants, preparing reports of the actual
findings under her certificate and signature, and
to submit the same to the Department Head. In
both the conditions of analysis and reporting
work, the delinquent employee used to produce
the result of Analysis before the Asstt. Supdt.
(C.R.D.),the Section Divisional Head, before
whom the Registers of calculation were produced
to check the calculation of the Actual Result so
as to check ,i.e., analyze the samples for accurate
correct finding of Actual Analysis Result. There
was as usual a possibility for the Senior Assistant
Supdt. as the Final Authority to check its
accuracy in the Analysis Report of the delinquent
employee in case of any wrong.
(ii)
Acid leaching method is applied to processing
of the Uranium Ore in the Company. It daily results
in generation of acidic slurry (tailing) in lager
quantity .The tailings before their disposal to the
Tailings Ponds are neutralized by maintaining the
pH through the use of the burnt lime (containing
the desired level of Cao.)supplied by the Supplier
concerned to the Company as per the purchase
order based on its terms and conditions, and the
payment by the Company to its Supplier is based
only on the desired level of Cao existent in his
supplied Burnt Lime.
8.
In addition to it, from the perusal of the materials in
the case record, it prima facie, manifests that so far as the
acceptance /confession of the delinquent employee is
concerned, none of her two separate letters (Extt.M.5 & 5/
1= ME-8 and 9 respectively) after Show-Cause Notice
dt.28.05.2008 but prior to the chrgeesheet appears to be
free from co-ercion and undue influence of the Asstt.
Superintendent, as the expressions of the letters are
palpably vague and unnatural.
The description of charges Annexure to the charge
sheet dt May,08,2008 (Ext.M.2) alleges against the
delinquent employee to have manipulated results of about
60 to 65 % of Burnt Lime Samples higher Value than the
actual results analyzed by the Laboratory Technicians/
Assistants. Whereas the statement of the main complaint
MWI Dr.P.K.Tamrakar, the Sr.Asstt. Supdt., as the
controller , Investigator in the Development Department
of the Company in para 2 at the page 36 in the enquiry -
‘from having a look at both the reports, it turns out that
70 and 71 samples altered as 76 and 77 (in percentage)
respectively after signature’ appears to highly
contradictory to the aforesaid alleged manipulated results
of about 60 to 65%.There seems nowhere any tangible
proof of alleged damage/loss to the property of the
Company as result of aforesaid alleged manipulation.
In such circumstances, where none of the six charges
is proved against the lady delinquent employee, yet the
dismissal penalty to her for it is high shocking to the
conscience of the Labour Court and not germane to alleged
misconduct. Hence, it is liable to be set aside under Sec.11
A of the Industrial Dispute Act., 1947.The workwoman
accordingly deserves proper relief under the said provision
of the Law.
9.
In result, it is hereby, in the terms of the reference,
responded and accordingly awarded that the action of the
Management of Uranium Corporation of India Ltd., in
dismissing Smt. Thanushree Nayak from the service of
the Company w.e.f. 10.11.2009 is not only quite unjust and
unfair but also quite illegal. Hence the concerned applicant/
workwoman is entitled to her reinstatement in the service
of the Company with full back wages and all financial
concomitant benefits.
The OP/Management is directed to implement the
Award within one month from the receipt of its following
its publication in the Gazette of India.
KISHORI RAM, Presiding Officer
1218
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 3 ekpZ] 2015
dk-vk- 479-—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;] dksydkrk ds
iapkV (lanHkZ la[;k 15@2010) dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 20@02@2015 dks izkIr gqvk FkkA
¹la- ,y&17011@4@2009&vkbZvkj (,e)º
tksgu rksiuks] voj lfpo
New Delhi, the 3rd March, 2015
S.O. 479.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. I.D. No. 15/
2010) of the Central Government Industrial Tribunal/
Labour Court, Kolkata 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 22/02/2015.
[No. L-17011/4/2009-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 15 of 2010
Parties:
Employers in relation to the management of
LIC of India
A N D
Their workmen
Present : Justice Dipak Saha Ray, Presiding Officer
Appearance :
On behalf of the
: Mr. Ranjan Kumar Das, Assistant
Management
Secretary (P&IR), Eastern Zonal
Office, Kolkata.
On behalf of the
: Mr. B.N.P. Srivastava,
Workmen
Vice-President of the Union.
State : West Bengal
Industry: Insurance
Dated : the 6th February, 2015
AWARD
By Order No.L-17011/4/2009-IR(M) dated 22.10.2009
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 12 daily wage rated employees as
per list enclosed, are entitled for regularization on
the permanent and regular post of sub-staff of
Class-IV category of employees of LIC of India? If
affirmative, from what date and to what benefits they
are entitled for?”
LIST OF CONNECTED AND AFFECTED WORKMEN
Sl.
Name of the Workmen
Since
Place of
No.
when
Working
Working
1.
Shri Sheo Kumar Mishra
1980
K.M.D.O.-1
2.
” Ram Biswas
1982
Sarsuna Branch
K.M.D.O-2
3.
” Uma Shankar Prasad
1983
K.M.D.O.-1
4.
” Arun Kumar Tewari
1984
K.M.D.O.-1
5.
” Satya Narayan Yadav
1984
- do-
6.
” Bajay Shankar Prasad
1984
- do-
7.
” Satrughan Tewari
1984
- do-
8.
” Pradeep Kumar Singh
1984
CAB,
K.M.D.O.-2
9.
” Ranjeet Chakraborty
1984
- do –
10. ” Ganga Prasad Yadav
1984
Kasba Branch
K.M.D.O.-2
11. ” Gopal Roy
1984
K.M.D.O.-1
12. ” Madhusudan Das
1985
K.M.D.O.-1
2.
The management filed an application dated
10.02.2014 wherein it has been contended that as per the
order of the Hon’ble Supreme Court passed on 18.01.2011
all the 12 workmen under this reference have been absorbed
and that as per the said order of the Hon’ble Supreme
Court the said 12 workmen are not entitled to get any benefit
of their past service and accordingly they have not been
given any such benefit. It is submitted on behalf of the
management that pursuant to the order of the Hon’ble
Supreme Court passed on 18.01.2011 the issues of the
instant reference stood automatically disposed of and
accordingly this reference has come redundant.
3.
It is the case of the union that the said order dated
18.01.2011 of the Hon’ble Supreme Court is applicable to
the temporary employees of Hyderabad and Secundrabad
Divisions as they were the parties/respondents in the
concerned civil appeals. So, the said order of the Hon’ble
Supreme Court dated 18.01.2011 is not applicable in respect
of the 12 workmen of this reference as these workmen were
recruited as daily wage staff and not temporary employees.
4.
Now, on perusal of the order dated 18.01.2011 of the
Hon’ble Supreme Court passed in connection with Civil
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1219
Appeal Nos. 953 – 968 of 2005 it is found that the
management formulated the scheme for absorption of
eligible temporary Class-IV employees and the said scheme
was accepted by the respondents of the said civil appeals.
5.
It appears from the record that in compliance with
the said order of the Hon’ble Supreme Court recruitment
process was started and applications were invited from the
eligible temporary employees in Class-IV category
(Annexure-B of the application dated 10.02.2014 filed on
behalf of the management). It further appears from the
record that on 30.05.2011 one letter (Ref:Per/MPR/CL4/
2011/L040) was issued by the management clarifying the
definition of temporary employees. In that letter it has been
mentioned that “........Further, temporary Class IV employee
connotes Watchman, Sweeper, Hamal, Gardener, Guest
House Caretaker, Electrician, Plumber, daily wagers,
temporary part timers etc. .......” From the documents
available in the records it further appears that in response
to the said circulars, the concerned temporary workers as
well as 12 workmen of this reference applied for the post of
Peon. Ultimately, all the 12 concerned workmen were
selected to the post of Peon and accordingly appointment
letters were issued in their favour. In paragraph 3 of the
appointment letter it has been specifically mentioned that
“........you shall not be entitled to claim any benefit regarding
your post service rendered in any temporary capacity.”
The concerned workmen after accepting the terms and
conditions as mentioned in the appointment letter joined
the service.
6.
From the above acts of the concerned workmen it is
evident that they accepted the clarification of the definition
of temporary employee made by the management and
accordingly applied for the post of Peon. At the time of
joining the said post they also accepted the terms and
conditions of the employer that they should not claim any
benefit of past service. So, at this stage, the concerned
workmen are not entitled to claim that they were not
temporary Class-IV employees and accordingly they are
also not entitled to get the benefits of their past service.
7.
Admittedly, the concerned workmen under this
reference have already been appointed in the permanent
and regular post of sub-staff of Class-IV category of
employees of LIC of India. So, the said issue involved in
the reference is disposed of accordingly.
8.
On consideration of the facts and circumstances and
in view of the discussions made above, it is held that the
concerned workmen under this reference are not entitled
to any benefit of their past service.
An Award is passed accordingly.
Dated, Kolkata,
The 6th February, 2015.
Justice DIPAK SAHA RAY, Presiding Officer
ubZ fnYyh] 4 ekpZ] 2015
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wdks cSad ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
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¹la- ,y&12011@01@2010&vkbZvkj (ch&II)º
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New Delhi, the 4th March, 2015
S.O. 480.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 01 (C)
of 2011) of the Central Government Industrial Tribunal-
cum-Labour Court, Patna as shown in the Annexure in the
Industrial Dispute between the management of UCO Bank,
and their workmen, received by the Central Government
on 02/03/2015.
[No. L-12011/01/2010-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL, PATNA
Reference Case No.:- 01 (C) of 2011
Between :
The Chief Manager, UCO Bank,
Zonal Office, Jail Road, Jawaripur,
Bhagalpur-812001 (Bihar)
and
Their workman
Shri Vivekanand Thakur, represented by
The Oranizing Secretary,
Indian National Trade Union Congress (Bihar),
Ghantaghar, Bhagalpur (Bihar)
For the management
: Sri Rajni Kant Sinha,
Sr. Manager, UCO Bank,
Zonal Office, Bhagalpur
For the workman
: Sri N.N. Choudhary,
(Authorised Representative)
Present :
Bipin Dutta Pathak, Presiding Officer,
Industrial Tribunal, Patna
AWARD
Patna, the12th August, 2014
By notification order No. L-12011/01/2010-
IR(B.II)New Delhi, dated- 03.01.2011 the Central
Government ( Govt. of India ), Ministry of Labour and
Employment/Shram aur Rozgar Mantralaya, New Delhi
1220
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
referred under clause (d) of sub-section 2(A) of section of
the Industrial Dispute Act, 1947 ( hereinafter to be referred
to as ‘ the Act ‘ ) the following dispute between The Chief
Manager, UCO Bank, Zonal Office, Jail Road, Jawaripur,
Bhagalpur-812001 (BIHAR) and Their workman Shri
Vivekanand Thakur, represented by The Oranizing Secretary,
Indian National Trade Union Congress (Bihar), Ghantaghar,
BHAGALPUR (BIHAR) for adjudication to the Industrial
Tribunal, Patna.
SCHEDULE
“Whether the action of the management of UCO Bank,
Zonal Office, Bhagalpur in imposing the punishment
of lowering down the basic pay by two stage in the
time scale pay on Shri Vivekanand Thakur, Head
Cashier vide order dated 15/11/2008, is legal and
justified? It not, what relief the workman is entitled
to?”
2.
It appears from the reference that earlier the Central
Government after considering the said reference declined
adjudication on 17.02.2010 and the applicant aggrived with
the decision filed a C.W.J.C. No. 18116 of 2010 before the
Hon’ble High Cout of Judicature at Patna. The Hon’ble
High Cout vide order dated 08.11.2010 and set aside the
order dt. 17.02.2010 and directed to refer to Industrial
Dispute to the Industrial Tribunal, Patna in accordance
with law.
3.
Both the parties appeared and filed their respective
written statement and examined the witness. By order
dated17.09.2013 in the matter of fairness of departmental
enquiry it was found that nothing appeared from the enquiry
tha any error has been committed in the domestice enquiry.
As such it was found and hold that domestic enquiry was
fair. Direction was given to both the parties to file list of
witnesses and and documents.
4.
According to the written statement filed on behalf of
the workman on 03.02.2011 the workman Vivekanand
Thakur was initially appointed as peon at Chalna Branch
of the Bank on 28.12.1983 by the Asstt. General Manager/
Zonal Manager, Patna. Thereafter when workman passed
matriculation in Ist Division and he was appointed as clerk
on 03.03.1986 by the Asstt. General Manager/Zonal
Manager, Zonal Office and posted at Goradih branch of
the bank. Thereafter, he has been appointed as head cashier,
category-I by the Asstt. General Manager/Zonal Manager,
Zonal Office, Patna and posted him at Baijani branch on
30.09.2003. He was transferred to Belhar branch on
12.05.2008. He was appointed as head cashier category-II
on 27.09.2008. The Chairman and Managing Director, being
principal officer of UCO Bank has not appointed the Chief
Officers posted at Zonal office of UCO Bank as disciplinary
authority to take disciplinary action against the workman.
Service record of the workman remained clean and
unblemished from 28.12.1983 to 08.02.2008 for twenty four
years in the service of UCO Bank. He worked as clerk in
Goradih branch with Md. Sajjad Ahmad from 1993 to 1998
for five years without giving any opportunity to him to
complain against the workman. Md. Sajjad Ahmad lodged
a complaint with Asstt. General Manager, Zonal Office,
Bhagalpur on 06.01.2006 against the workman but the
complaint letter dt. 06.01.2006 does not bear
acknowledgement of Sri S.P.Choudhary, Asstt. General
Manager.
It has been stated that one Sri A.K.Verma joined as
Chief Officer at Zonal Office, Bhagalpur on 29.05.2006 and
he was made incharge to approve, confirm to grant
permission to the branch manager to pass T.A. and Diem
allowance bill of those workman and the officers who are
deputed to other branches for bank’s job. The branch
manager of Baijani branch presented a T.A. and Diem
Allowance bill on 05.09.2006 for Rs 56507/- for 225 days
before the Chief Officer Sri A.K. Verma who demanded a
bribe Rs. 25000/-. The workman refused to pay bribe of
Rs. 25000/- to the Chief Officer Sri A.K.Verma and the
workman approached to Asstt. General Manager who
advised the branch manager of Baijani branch to make
payment of aforesaid bill. Being frustrated, the Chief Officer
Sri A.K.Verma contacted Md. Sajjad Ahmad and then clerk
pramod Roy and Secured from him a coorked complaint in
back date- 06.01.2006 with fictitious false, imaginary, cooked
and invented allegations against the workman. Complaint
was back dated and Chief Officer of Sri A.K.Verma arbitrarily
and unauthorisedly issued a show-cause notice on
12.09.2007 to the workman proposing punishment to be
imposed upon the workman a fine of Rs. 25000/- if he
accepts false changes framed on the basis of aforesaid
complaint dt. 06.01.2006 of Md. Sajjad. As per Bipartite
Settlement dated 10.04.2002 read with para-565 of the Sastri
Award a fine can be imposed upon the peon workman but
not upon the head cashier workman.
The workman did not accept the charges disciplinary
authority without delegation of power issued a charge sheet
on 09.02.2008 constituting charge of gross misconduct
under clause 19.5 (C) which read as “Drunkenness or riotous
or disorderly or indecent behaviour on the premises of the
bank and clause 19.5 (e)” which read as “wilful
insubordination or disobedience of any lawful and
reasonable order of the management or of a superior” of
the Bipartite Settlement dated- 19.10.1966.
5.
Much details about the charges has been stated but
it has been found that domestic enquiry was fair so it
expedient to proceed further.
6.
Written statement has been filed on behalf of the
management on 23.08.2011 stating therein that Sri
Bibekanand Thakur was posted as head cashier in UCO
Bank at Baijani branch and he was served with the show-
cause notice dated 12.09.2007 for his terrifying, aggressive
and indecent behaviour with Sri Sajjad Ahmad, the then
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 7] 2015@iQkYxqu 16] 1936
1221
branch manager on 06.01.2006. Workman submitted his reply
dated- 29.09.2007 to the Chief Officer, UCO Bank, Zonal
Office, Bhagalpur wherein he denied the allegation levelled
against him. The explanation submitted by Sri Thakur was
carefully examined and found not satisfactory and as such
the Chief Officer (Disciplinary officer ) issued memo of
charge dated 09.02.2008 which was accordingly served to
Sri Thakur wherein altogether four charges were levelled
against him. Show cause was asked reply of which was
submitted on 23.02.2008. The reply was considered and
found not satisfactory. Enquiry was ordered to be
conducted. Ganga Nandan Singh was appointed as enquiry
officer and Sri Kavindra Mishra was appointed as
presenting officer, Sri Thakur was asked to give name of
defence representative. During course of enquiry several
documents were produced and exhibited. Name of the
management witness was also submitted. Enquiry was
conducted on several dates wherein Sri Thakur was
provided ample opportunity to defend his case and was
given opportunity to cross-examine the management
witnesses. Sri Thakur could not supply the name of defence
representative not he brought any onsent letter. The entire
enquiry was conducted in presence of Sri Thakur he was
provided sufficient opportunity to defend his case after
conclusion of the enquiry the presenting officer was asked
to submit written brief, which was submitted on 08.07.2008.
Sri Thakur submitted written brief on 26.07.2008 Enquiry
officer found allegation/charge no. 1, 2 and 4 as proved
and allegation /charge no. 3 as partially proved. Second
show cause notice was issued the date of personal hearing
was fixed on 27.10.2008 in Zonal office of the bank and in
response to that Sri Thakur appeared on 27.10.2008 and he
was given personal hearing and Sri Thakur was also
provided opportunity for filing reply on the enquiry report
of enquiry officer which was filed on 03.10.2008 which was
carefully examined by the disciplinary authority who after
going to entire materials, awarded the “Reduction of basic
pay by two stages in time scale of pay for a period of
punishment three year with further direction that he will
not earn increment of pay during the period of such
reduction and on expiry of such period, reduction will have
effect of postponing further increment of pay.” Sri Thakur
was found guilty on 30.03.2010 order of punishment was
passed. Sri Thakur compulsorily retired from the service of
the bank. Against the said order he preferred service appeal
before the Appellate Authority which was rejected.
7.
Rejoinder on behalf of the workman to written
statement of management has been filed on 08.09.2011
stating therein the bank has never appointed the Chief
Officer of the Zonal Office as disciplinary authority. As
such show cause notice dated 12.09.2007 was abinitio void.
(a) It has been submitted that Chief Officer of the Zonal
Office has never been appointed as disciplinary authority
in the case of workman working under the administration
of the Zonal office as such charge sheet dated- 09.02.2008
issued by the Chief officer Zonal Office Bhagalpur was
abinitio void. (b) Charge sheet framed in terms of chapter-
19 of the Bipartitle Settlement dated 19.10.1966 was
superseded, substituted and became dead and inoperative
vide new memorandum of settlement dated10.04.2002. As
such entire enquiry right from dated 09.02.2008 to the order
of punishment passed on 15.11.2008. Vitiated, abinitio void
without jurisdiction and not maintainable and sustainable
in the eye of law. (c) Charge sheet of gross misconduct is
not applicable and invocable against the workman. (d)
Enquiry officer denied to shift the venure of enquiry to
place of occurance at Baijani branch and denied to examine
proposed defence witnesses and to issue notice to the
official witness of UCO bank.(e) Enquiry officer denied to
call for defence documents in the custody of Zonal office
and branch office Baijani branch. (f) The management did
not examine villagers of Baijani and Shiv Kumar Thakur
who are said to be present on the place of occurance. (g)
The management did not change the enquiry officer who
had bias, malafide and malice against the workman. (h) The
management did not change the unauthorised disciplinary
authority the chief officer Sri A.K.Verma who had been
demanding Rs. 25000/- as bribe to pass T.A. Bill of the
workman. (i) The show cause notice dated 16.05.2008 issued
the chief officer, Sri A.K.Verma to the workman proves
personal grudge and vengeance against the workman
which disqualified to be disciplinary authority in the case
of the workman, therefore the enquiry as well as proceeding
against the workman are vitiated. (j) The finding of he
enquiry officer is complete non speaking unreasoned
beyond charge and beyond evidence on record. (k)
Punishment imposed upon the workman has not been
prescribed in the Bipartitle Settlement as such the same is
abimitio void, without jurisdiction.
FINDINGS
8.
From the documents exhibited on behalf of the
management it appears that appears from Ext.- M/1 that
Sajjad Ahmad, Branch Manager, UCO Bank, Baijani has
made complaint before Assistant General Manager, Zonal
office, Bhagalpur on 06.01.2006 stating therein that
V.N.Thakur, Head cashier, always misbehave with him
which has informed time to time to Assistant General
Manager, Zonal office. Inspite of trying to understand Sri
Thakur does not take insrest in the work of the branch and
instigate to other staff for not doing work. Sri Thakur puts
undue pressure in the matter related to loan today. On
06.01.2006 in the evening branch manager was going to
home after bank hour, then in the way Mr. Thakur, by his
motorcycle, retrained him and abuse him and was adamant
to assult him. By that time Sri Arbind Kumar Choubey @
Nanda Choubey who is friend of Sri Thakur and is advocate
in Bhagalpur Court arrived and also abused him and was
adment to assult him and abused him by tailing Miya.
Pramod Kumar Roy, clerk, was also sitting in the back to
1222
THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
motorcycle of he branch manager who is witness and on
his request he put signature on the application in the
capacity of witness. It has also been stated that Mr.
Choubey wanted loan for motorcycle and complainant
branch manager in order to asscertained his income asked
him to show return of income tax, but he was not ready
and due to that cause he with thakur wanted to assult him
and misbehaved with him. Even in Sept. 2005 Sri Thakur
abused him and threatened to assult him. It has been stated
that Mr.Thakur is local resident and always wanted to put
undue pressure in the loan matter. So it has been prayed
that action be taken against Mr. Thakur.
9.
It appears from Exts. M/2 that chief officer-cum-
disciplinary authority and sent letter on 12.09.2007 to Mr.
B.N.Thakur in respect of his indecent behaviour stating
that on 06.01.2006, while the then branch manager, Mr.
Sajjad Ahmad was goind to home on his motorcycle, then
Mr. Thakur reinstrand him and abused him and was
adamant to assult him. At the time Sri Pramod Roy the
then clerk at Baijani branch ws present there. It has been
stated that Mr. Thakur puts unude pressure in loan matter.
Sri Arbind Kumar choubey @ Nanda Choubey was taking
loan for motorcycly and Mr. Sajjad Ahmad accordingly to
rules demanded income tax return which was refused by
Mr. Choubey. Then Mr. Thakur along with Mr. Choubey
has committed the offence. Mr. Thakur did not take interest
in the work of branch and instigates other employee for
not doing the work. As such bank suffered loss in work
and image of bank has been tarnished. Further it has been
stated that punishment has been awarded as fine of
Rs. 25000/- ( Rs. Twenty Five Thousand only ) without
issuing regular charge sheet in accordance with Bipartite
Settlement dated 10.04.2002. Seven days had been given
to Mr. Thakur to file his show cause and if he does not
volountarily accept his guilt then regular charge sheet will
be issued. But show cause is not filed within the sipulated
period, then it will be deemed that he has not to file any
show cause and disciplinary action will be taken.
10.
From Ext. M/3 it appears that charge sheet has been
issued against Mr. B.N.Thakur on 09.02.2008 in respect of
the allegation made against him. It appears from Ext. M/4
that enquiry was conducted. Sri Ganga Nandan Singh was
made equiry officer and Mr. Kavindra Mishra was made
presenting officer and Mr. B.N.Thakur was delinquent
employee. There was sitting on 15.04.2008 at Bahadurpur
branch against Mr. Thakur. In enquiry against him. Charge
sheet was read over to Mr. Thakur and Mr. Thakur denied
the charge saying that it is false and concotated. Mr. Thakur
in reply to the question about defence then Mr. Thakur
replied that name of defence representative will be
submitted in next meeting. Mr. Kavindra Mishra, presenting
officer, stating that documents and list of witness will be
submitted in next meeting. Meeting was adjourned to 2nd
May, 2008.
On 2nd May, 2008 presenting officer submitted the
documents which are as follows:-
(i)
Complaint petition dt. 06.01.2006 to Assistant
(ii)
General Manager, UCO Bank, Bhagalpur by
Mr. Sajjad Ahmad.
(iii)
Photo stat of attendene register of January, 2006.
(iv)
Photo stat of extract of ledger book dt. 06.01.2006.
(v)
Photo stat of written submission of Mr. Sajjad
Ahmad.
(vi)
Photo stat of written submission of Pramod Roy.
(vii)
Photo stat of written submission of Shiv Pd.
Thakur.
(viii)
Photo stat of submission of Sri Pappu Kumar.
(ix)
Phto stat of submission of Saroj Kumar Pandey,
customer of branch Baijani.
(x)
Presenting officer stated that he will submit list
of witness and remaining documents in next
meeting. Mr. Thakur stated that defence
representative is out of Bhagalpur town so in the
next meeting he will submit his name and consent
letter. Enquiry was adjourned to 15th May, 2008.
11.
On 15.05.2008 presenting officer submitted list of
witness who were Mr. Sajjad Ahmad Ex-Manager, Baijani
branch (ii) Md. Pramod Roy who was posted at Baijani
branch and Pappu Kumar who was also posted at Baijani
branch. Presenting officer presented his case and read
over the charges. There were six charges.
Charge No. (i) : was in respect of restraining Md.
Sajjad Ahmad on 06.01.2006 after bank hour while he was
going to resisdence and Mr. Thakur abused him and was
adamant to assult him.
Charge No. (ii) : It also respect of that allegation it
has been stated that at the time of misbehave and abusing
him, Sri Pramod Roy the then clerk of Baijani branch, was
present their.
Charge No. (iii) : was Mr. Thakur always put assult
on Mr. Sajjad Ahmad for illegal loan. His one friend namely
Sri Arbind Kumar Choubey @ Nanda Choubey applied for
motorcycly loan and Mr. Sajjad Ahmad demaded copy of
income tax return to ascertain the income, which was
refused by Mr. Choubey. Then alongwith Mr. Choubey,
Mr. Thakur committed the occurance.
Charge No. (iv) : was that Mr. Thakur did not take
interest in the work of branch and used to instigate other
employees for not doing work. As such bank sustained
loss in disposal of work and customer service was affected.
In respect of Charge no. (v) & (vi) : it has been
stated that Mr. Thakur violated 19(5) of bipartite settlement
¹Hkkx IIó[k.M 3(ii)º
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dated 19.10.1966. At the time of occurance dated
06.01.2006 all the employees were present in branch.
Presenting officer stated that he will produce witness on
16.05.2008.
Mr. V.N.Thakur stated that he does not want to
appoint defence representative. He further stated that after
the statement ( evidence ) of witness on behalf of bank.
He will appoint defence representative for cross-
examination. He also stated that he will always participate
in enquiry. Mr. Thakur also stated that he has been
transferred to Belhar branch on 12.05.2008 and who
participate in the enquiry permission of branch manager is
necessary. It has been requested by him that branch
manager Belhar be directed to relieve him one day before
to prepare for enquiry because place of enquiry is 25 K.M
far from Belhar branch. It has been mentioned by the
enquiry officer that if Mr. Thakur does not submit name of
defence representative and is consent letter, then it will be
assumed that Mr. Thakur will defend himself. Further
request for time to prepare for enquiry was not found
proper. Enquiry was adjourned to 16.05.2008.
On 16.05.2008 enquiry officer, presenting officer and
delinquent charge sheeted employee were present.
Management witness no.-1 Md. Sajjad Ahmad was
examined, he stated that on 06.01.2008 he was working at
Baijani branch and on that date chief cashier namely
V.N.Thakur, after closure of cash put pressure to grant
loan to Mr. choubey. This witness told him not to put
pressure in loan matter. Then Mr. Thakur became angary
and began to abuse. This witness told him that he is not
doing good. Thereafter, this witness came out of branch
and move ahead on motorcycly. Near the house of Shiv
Singh, Mr. Thakur restrained his motorcycly and abused
him and begin to assult. It is pertinent to note that in
complaint petition (Ext.-M/1) name of the house of Sri Shiv
Singh has not been mentioned.
Further this wtiness stated that Mr. Choudhary and
one person also arrived as told this witness Miyan and
told to assult Miyan. This further stated that earlier in
September, 2005 Mr. V.N.Thakur arrived inside the cash
department and told how this manager arrived and
threatened to tie with rope and to assult. At that time
Pappu Kumar one of the staff intervened and separated
Mr. Thakur. Further witness stated that being the local
person Mr. Thakur always used to put undue pressure in
loan matter. In reply to the question put by presenting
officer this witness replied that he was posted at Baijani
branch since 09.06.2003 to 26.08.2006. Sri V.N.Thakur was
also posted there. V.N.Thakur was posted at Baijani branch
since Oct. 2003 and relation with him was general. This
witness is acquainted with Sri V.N.Thakur since March-
1993. This witness worked with Sri V.N.Thakur at Belhar
branch, from March 1993 to Nov. 1998 where this wtienss
was chief cashier. At that time V.N.Thakur was clerk at
Goradih branch. At that time there was general behaviour
of Sri Thakur with him. At Baijani branch behaviour of
V.N.Thakur with other staff was no good. V.N.Thakur used
to disturb in work of branch so that the branch manager
may be defamed. Sri V.N.Thakur did not work which
entrusted to him. This witness further stated that Ext..-
ME/4 and Ext. ME/4 was written by the then branch
manager of Baijani branch.
This witness further stated that after bank hour when
he was going to his resisdence, then Sri Pramod Roy, the
then clerk of Baijani branch was with him on his motorcycle.
This witness further stated that on 06.01.2006 when
motorcycle on this witness was restrained then Sri Shiv
Pd Thakur was with V.N.Thakur. This witness further stated
that Sri V.N.Thakur had no interest in his work and as such
customer service was much effected. Sri V.N.Thakur asked
for time for cross-examination of this witness. Presenting
officer put objection. Thereafte, Sri V.N.Thakur agreed to
cross-examine this witness. In cross-examination Mr. Sajjad
Ahmad replied that complaint petition against Sri
V.N.Thakur was written by him. This witness is acquainted
with Mr. thakur since 1993. When this witness joined at
Goradih branch. At goradih branch there was general
behaviour of Mr. Thakur with this witness. At Baijani
branch V.N.Thakur begin to put pressure in loan matter
and he got loan sanctioned in name of his brother Sajjan
Kumar Thakur. Which became NPA. He also stated that at
Baijani branch only Mr. Sajjad Ahmad, Sri Pramod Roy
was not local person. Further this witness in cross-
examination stated that Baijani branch used to open at
10.00 A.M and closed at 5.00P.M on 06.01.2006. He further
stated that inside the branch qurel began and scuffle and
began abusing infront of house of Sri Shiv Pd Singh at
5.30 P.M. This witness told that it is false to say that doctor
has advised Mr Thakur for not driving motorcycle or the
period from 03.01.2006 to 10.01.2006. This witness further
replied that once this witness gave office order to Mr.
V.N.Thakur for disposal of working Mr. Thakur did not put
his signature on office order thereafter only oral order was
given to him. This witness also replied that there was sweet
relation between this witness and customer.
12.
Thereafter M.W-2 Sri Pramod Kumar Roy was
examined. This witness stated that on 06.01.2006 there
was altercation between Mr Sajjad Ahmad ( then branch
manager ) and V.N.Thakur ( charge sheeted employee ) in
the branch. Thereafter at the time about 5.00 P.M after
closing the branch Md. Sajjad Ahmad was going to home
on motorcycle and this witness was behind him on
motorcycle. After some distance ( about ½ K.M ) Sri
V.N.Thakur over took to motorcycle of Mr. Sajjad Ahmad
and restrained him and abused him and this witness was
suffering from fracture of leg. As such after falling down
from motorcycle, he was standing with the held of Lathi.
There was scuffle between them. One advocate also arrived
and abused to Mr. Sajjad Ahmad calling him Miyan and
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THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
told to assult him because Sajjad Ahmad had not granted
him loan. Some villager arrived and saved them. This
witness advised to Branch manager to give report at police
station but Mr Ahmad was not aggree. Mr. Sajjad Ahmad
went toward home and went to Regional office and informed
about them occurance.
This witness identified his signature on Ext.- ME-1.
This witness admitted his written statement signed by
him, which are ME-1 and ME-5. In cross-examination by
charge sheeted employee this witness stated that he is
acquainted with charge sheeted employee from the period
he joined at Baijani branch. Furhter he has stated that he
had given charge of ledger to charge sheeted employee.
He has also stated that on 06.01.2006 branch was closed
at about 5.15 P.M. This witness is not acquainted as to the
facts that who had written complaint petition which was
given in Regional office.
M.W-3 Pappu Kumar is peon of the branch who had
also stated that he was on duty on 06.01.2006 at Baijani
branch as part time sweeper. Further this witness stated
that always there used to be altercation between Sri.
V.N.Thakur and Md. Sajjad Ahmad in the branch. Once
there was altercation between them and by intervention
of this witness and choukidar and matter was settled. There
also used to happen altercation between Sri V.N.Thakur
and customer when customer gave rotten notes. This
witness denied that Mr. Thakur instigated other staff for
not doing work. Only Mr. Thakur had put pressure for
grant of loan to his brother. Next date was fixed for enquiry
on 17.05.2008.
On 17.05.2008 charge sheeted employee Sri
V.N.Thakur was directed to submit list of evidences and
witness. But Sri V.N.Thakur expressed inability to submit
the same on that date. Thereafter enquiry was adjourned
to 31.05.2008, On 31.05.2008 Sri V.N.Thakur replied that he
has already sent list of documents on 27.05.2008 through
branch manager Belhar. Again he submitted photo state
of the list of document and said that it is essential and
important and prayed to call for the same. He has
demanded photo stat of those documents. He also
submitted documents which are—(1) duty of head cashier
class-1-DE-1 (2) Photo stat joining letter of Sri V.N.Thakur
dated-28.12.1983 DE-2 (3) He joinded as head cashier “C”
vide letter No.- ROP/PER/Misc./03-04/82 dated- 30.09.2003
(4) Photo stat of FIR against Pramod Roy and DE-4.
He submitted list of Nine person as defence witness
which are –(1) Sri A.K.Verma, Chief Officer, Regional Office,
Bhagalpur, (2) Sri S.P.Choudhary the then Regional
Manager, Bhagalpur, (3) Sri R.K.Jain , the then Regional
Manager, Bhagalpur, (4) Sri Subash Chandra Jha, constable
at Baijani (5) Sri Satyanand Jha, pensioner at Baijani branch,
(6) Sri Gouri Shankar Thakur, account holder of Baijani
branch, (7) Sri Abhay Kumar Jha, account holder, Baijani
branch (8) Sri B.P.Pandey, pensioner at Baijani branch,
(9) Sajjan Kumar Thakur, account holder, Baijani branch,
(10 ) Sri Digamber Singh, account holder Baijani branch. It
has been noted that all accounts holder are unable to
attend Bahadurpur branch and charge sheeted employee
is also unable call them at his own cost. He also stated
that place of occurance in charge sheet is at Baijani village.
So statement of defence witness be recorded at Baijani
branch. He also submitted list of defence documents which
was forwarded by Belhar branch. Sri V.N.Thakur was
directed to submits name of defence representative with
his consent letter. He was also requested to submit the
documents related to enquiry. He was also directed not
sent documents through post/courier. Enquiry was
adjourned to 12.06.2008. Sri V.N.Thakur did not submt the
name of defence representative with his consent letter.
Presenting officer was directed to submit the documents
called for by charge sheeted employee. Presenting officer
stated that serial no.-1 to 5 of the list of documents
submitted by Sri V.N.Thakur is not related with charge
sheet. Presenting officer also stated that defence Ext.- DE-6
( entire service book ) is not related with the charge. So it
can not be made available. If Sri Thakur demands in special
documents related to charge sheet from service book then
it will be made available. Enquiry was adjourned on
07.07.2008.
On 07.07.2008 presenting officer staed that
documents serial no.- 7,8,11 & 12 of DE-6 are not related
with charge. So it can not be produced, except the
documents at serial no.- 3 no documents is related with
charge. Sri V.N.Thakur did not submit the name of defence
representative with his consent letter. Thakur was directed
to produce the witness at Bahadurpur branch which was
refused by Sri V.N.Thakur. V.N.Thakur stated that he replied
of charges on 23.02.2008 which has been marked as DE-7
and charges against him is false and concotated. So he be
made free from the charges. Preseting officer and charge
sheeted employee were directed to submit written brief
within a week and enquiry was concluded.
It appears from Ext.- M/1 that Sajjad Ahmad has
made complain on 06.01.2006 against Sri V.N.Thakur before
Asstt. General Manager, Regional office, UCO Bank,
Bhagalpur in which place of occurance has been stated in
the way to the resisdence of Sajjad Ahmad. No specific
description place of occurance has been given. But in his
evidence at he time of enquiry proceeding. He has stated
that occrance happended near the house of Sri Shiv Singh.
In his evidence before this tribunal Sajjard Ahmad
has been examinted as management witness no.-1 in which
he has stated that V.N.Thakur had abused inside the bank
during working hour and when branch manager was going
and out sides the branch then V.N.Thakur was adamant to
assult him. He has not stated near the house of Sri Shiv
Singh. In cross- examination e had stated that occurance
happened in the year 2004-2005 the day is not remembered
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1225
by him. What word was used in abusing was written in
complaint petition or not is not remembered by him. He
further stated that what was written in the complaint is not
remembered by him. Further he has stated in para-5 that
complaint petition was written by him and again he has
stated that was written by one of the staff namely Abuzar
of Gourhatta branch. In para-6 he has stated that occurance
of adamant of assult happened near the house of Navin
Pandey. Further he has stated that in Ext. M/9 during
investigation he has stated that occurance happened
infront of house Sri Shiv Singh. In para-7 he has stated
that at Goradih branch he worked with V.N.Thakur.
From evidence of Sajjad Ahmad it appears that in
his complain he has not stated about the house of Shiv
Singh, near the place of occurance. In his evidence in
tribunal in para-6 he has stated that occurance near the
house of Navin Pandey as such there is difference in the
evidence of the main witness Mr. Sajjad Ahmad. Sajjad
Ahmad stated in para-4 that occurance happened in the
year 2004-05. Why during the enquiry has his complain
petition he has stated that date of occurance is 06.01.2006.
As such correct date of occurance has not been stated by
this witness.
Management witness no. 2 Pappu Kumar has stated
that he has not seen the occurance happened between
Sajjad Ahmad and V.N. Thakur. He has not personal
knowledge of the case. Even in the enquiry he has stated
that he had not seen the occurance.
During the enquiry name of Pappu Kumar, Sweeper
of the bank has stated by Sajjad Ahmad and it has been
stated that when quarrel happened inside the bank then
Pappu Kumar interveined and separated of both the them.
This fact has been stated by Pappu Kumar during the
enquiry. But in the tribunal here not stated anything about
the occurance.
Management witness no.03 Pramod Roy stated in
his examination in chief that always quarrel used to happen
between V.N. Thakur and branch manager for small matters
and on 06.01.2006 after bank hour this witness was going
on motorcycle with Sajjad Ahmad then in the way V.N.
Thakur and Shiv Kumar Thakur over took motorcycly of
Sajjad Ahmad and abused.
In cross-examination he has stated that he is
acquainted with Navin Chandra Pandey. He was clerk in
UCO Bank at Gourhatta branch and his residence is at
distance of one forth k.m from UCO Bank, Bainjani branch.
House of this witness at Barari and house of Sajjad Ahmad
at Bhikhanpur, Bhagalpur. This witness could not tell
infornt of whose house occurance of abusing happened.
Para-3 this witness has stated that he does not know
Sri Shiv Singh. Further in para-4 he has stated that he Shiv
Kumar Thakur is daily worker. He and one advocate he
separated the quarrel. This witness have no knowledge
what was stated by Sajjad Ahmad in his evidence. As
such this witness could not tell infornt of whose house
occurance happened. While during enquiry Pramod Roy
has stated about the occurance and has also stated that
one advocate had also abused Sajjad Ahmad and villagers
had intervained but in the tribunal this witness stated that
advocate has settled the qaurrel.
Defence witness was not produced before this
tribunal and even during enquiry. Charge against
V.N.Thakur is based on the complaint petition filed by
Sajjad Ahmad date of occurance is 06.01.2006. Charges
levelled against Sri V.N.Thakur mainly that while the then
Sajjad Ahmad was going to home on 06.01.2006 after bank
hour then in the way V.N.Thakur restrained him and abused
him and was adamant to assult. Pramod Roy was present
there. On Arbind Kumar Choubey @ Nanda Choubey
applied for motorcycly loan and Sajjad Ahmad asked for
copy of income tax return which was refused by Nanda
Choubey then Mr. Thakur and Nanda Choubey committed
the occurance. Mr. Thakur had no interest in the work and
he used to instigate for other staff for not doing the work.
The charges levelled against the workman will be
evaluated on the basis of evidence adduced in the tribunal.
In the evidence Sajjad Ahmad has not stated about loan
matter of Arbind Kumar Choubey @ Nanda Choubey and
nothing has been stated about Nanda Choubey for this
charge could not succeed.
Sajjad Ahmad in his evidence has not stated that
V.N.Thakur had no interest in the work of branch and he
used to instigate of other staff for not doing the work. So
this charge could not succeed.
Now the main charge is about the occurance
happened 06.01.2006 after bank hour while going to his
house. But years of occurance has stated by Sajjad Ahmad
in cross-examination in year 2004-05. This witness, Sajjad
Ahmad could not state what was written in his complain
because he does not remember. Further he stated in para-
6 that occurance happended near the house of Sri Navin
Pandey by during enquiry he has stated that occurance
happened the house of Sri Shiv Singh which has been
admitted by him in his evidence. Management witness
no.-2 Pappu Kumar had not seen any qural and he has no
knowledge of the case. As such he has not supported the
charge. M.W-3 Pramod Roy has stated that Navin Chandra
Pandey was posted as clerk in UCO Bank at Gourhatta
branch. But he has not stated that occurance happened
house near the Navin Chandra Pandey. Further witness
he stated that he can not say infront of whose house
occurance happened. Further he stated that one advocate
had settle the qural. As such there was no dispute with
any advocate. When the main complainant Md. Sajjad
Ahmad has not stated that date of occurance and complain
was written by one staff Abuzar who was staff of Gourhat
branch and he has not been examined. So there was serious
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THE GAZETTE OF INDIA : MARCH 7, 2015/PHALGUNA 16, 1936
[PART II—SEC. 3(ii)]
contradiction in complain petition evidence of Sajjad
Ahmad during the enquiry and evidence of Sajjad Ahmad
in tribunal. Sajjad Ahmad also not stated in examination in
chief that he was going on motorcycly with Pramod Roy
then he was restrained by Sri. V.N. Thakur. In result main
charge levelled against the V.N. Thakur could not succeed.
This contradiction have not been explained by the
management as to how this contradiction will be over
looked. As such non of the charges levelled against V.N.
Thakur has been proved and established by the
management in this tribunal.
Since the management could not produced and
establish the charges in this tribunal beyond any
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi.110064
and Published by the Controller of Publications, Delhi.110054.
reasonable doubt. So reference is answered that the action
of the management of UCO Bank, Zonal Office, Bhagalpur
in imposing punishment of lowering down the basic pay
by two stages in the time scale pay on Shri Vivekanand
Thakur, Head cashier vide order dt. 15.11.2008 is not legal
and not justified. As such when the action of the
management has been found not legal and not justified
then the workman is entitled to all consequential benefits
of which he is entitled to.
This is my award accordingly.
BIPIN DUTTA PATHAK, Presiding Officer