dkfeZd] yksd f'kdk;r rFkk isa'ku ea=ky;
¼dkfeZd vkSj izf'k{k.k foHkkx½
ubZ fnYyh] 9 vizSy] 2015
dk-vk- 767-—dsUnz ljdkj ,rn~}kjk naM izfØ;k lafgrk] 1973
¼1974 dk vf/kfu;e lañ 2½ dh /kkjk 24 dh mi&/kkjk ¼8½ }kjk
iznÙk 'kfDr;ksa dk iz;ksx djrs gq, paMhx< fLFkr iatkc ,oa gfj;k.kk
mPp U;k;ky; esa fnYyh fo'ks"k iqfyl LFkkiuk ¼lhchvkbZ½ }kjk
tkap fd, tk jgs ekeyksa vFkok muls mRiUu vU; ekeyksa esa vfHk;kstu]
vihy ,oa iqujh{k.k dk lapkyu djus ds fy, Jh lqehr xks;y]
vf/koDrk dks fnYyh fo'ks"k iqfyl LFkkiuk ¼dsUnzh; vUos"k.k C;wjks½
ds fo'ks"k yksd vfHk;kstd ds :i esa fu;qDr djrh gSA
[Qkñ lañ 225@3@2011&,ohMh&II]
vftr dqekj] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS
(Department of Personnel and Training)
New Delhi, the 9th April, 2015
S.O. 767.—In exercise the powers conferred by sub-
section(8) of section 24 of the Code of Criminal Procedure,
1973 (Act No. 2 of 1974), the Central Government hereby
appoints Shri Sumeet Goel, Advocate as Special Public
Prosecutor for the Delhi Special Police Establishment
(Central Bureau of Investigation) in the Punjab and Haryana
High Court at Chandigarh for conducting the prosecution,
appeals, revisions or other matters arising out of the cases
investigated by the Delhi Special Police Estblishment (CBI).
[F. No. 225/3/2011-AVD-II]
AJIT KUMAR, Under Secy.
ubZ fnYyh] 11 vizSy] 2015
dk-vk- 768-—dsUnz ljdkj] ,rn~}kjk fnYyh fo'ks"k iqfyl
LFkkiuk vf/kfu;e] 1946 ¼1946 dk vf/kfu;e lañ 25½ dh /kkjk 6
ds lkFk ifBr /kkjk 5 dh mi/kkjk ¼1½ ds }kjk iznÙk 'kfDr;ksa dk iz;ksx
djrs gq, dukZVd jkT; ljdkj dh fnukad 06-04-2015 dh
vf/klwpuk lañ ,pMh 65 lhvkbZMh 2015 ds ek/;e ls Jh Mhñdsñ jfo]
Hkkñizñ lsok tks okf.kT; dj izorZu] dukZVd ljdkj] csaxyq: esa vij
vk;qDr ds in ij dk;Zjr Fks] dh vizkd`frd e`R;q ls lacaf/kr naM
izfØ;k lafgrk dh /kkjk 174 ds varxZr fnukad 16-03-2015 dks
ekMhokyk Fkkuk] casxyq: dukZVd esa ntZ ;wMhvkj lañ 47@2015 dh
tkap djus ds fy, fnYyh fo'ks"k iqfyl LFkkiuk ds lnL;ksa dh 'kfDr;ksa
jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05
REGD. NO. D. L. (N) 04/0007/2003—05
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 16]
ubZ fnYyh] vizSy 12—vizSy 18] 2015] 'kfuokj@pS=k 22—pS=k 28] 1937
No. 16]
NEW DELHI, APRIL 12—APRIL 18, 2015, SATURDAY/CHAITRA 22—CHAITRA 28, 1937
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)
1533 GI/2015
(1673)
1674
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
vkSj {ks=kf/kdkj dk foLrkj leLr dukZVd jkT; esa djrh
gSA
[Qkñlañ 228@15@2015&,ohMh&II]
ehjk eksgarh] mi lfpo
New Delhi, the 11th April, 2015
S.O. 768.—In exercise the powers conferred by sub-
section(1) of section 5 read with Section 6 of the Delhi
Special Police Establishment Act, 1946 (Act No. 25 of 1946),
the Central Government with the consent of the State
Government of Karnataka vide Notification No. HD 65 CID
2015 dt. 06.04.2015 hereby extends the powers and
Jurisdiction of the members of the Delhi Special Police
Establishment to the whole of the State of Karnataka for
investigation of a case registered vide UDR No. 47/2015
U/S 174 of Cr P.C. on 16.03.2015 at Madiwala Police Station,
Bengaluru, Karntatka into the unnatural death of Shri D.K.
Ravi, IAS officer, who was working as Additional
Commissioner of Commercial Tax Enforcement, Government
of Karnataka, Bengaluru.
[F.No. 228/15/2015-AVD-II]
MEERA MOHANTY, Dy. Secy.
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 10 vizSy] 2015
dk-vk- 769-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj fot;k cSad ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] pSUubZ ds iapkV ¼lanHkZ la[;k 29@2015½
dks izdkf'kr djrh gS] tks dsUæh; ljdkj dks 10@4@2015 dks izkIr
gqvk FkkA
[lañ ,y&12011@93@2014&vkbZvkj ¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 10th April, 2015
S.O. 769.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 29/2015) of the
Central Govt. Indus. Tribunal-cum-Labour Court, Chennai
as shown in the Annexure, in the Industrial Dispute between
the Management of Vijaya Bank and their workmen,
received by the Central Government on 10.04.2015.
[No. L-12011/93/2014-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Thursday, the 26th March, 2015
Present:
K. P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 29/2015
(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 Vijaya Bank and their workman.
Between
The Regional Secretary
: 1st Party/Petitioner Union
Vijaya Bank Workers' Organization
60/2, Big Street, Triplicane
Chennai-600 005
and
The General Manager (Personnel) : 2nd Party/Respondent
Vijaya Bank, Head Office, 41/2
M.G. Road, Jaya Nagar,
Bangalore
Appearance
For the 1st Party/Petitioner Union
: In Person
For the 2nd Party/Respondent
: Nil
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12011/93/2014-IR (B.II)
dated 18/24.02.2015 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 Vijaya
Bank, Chennai regarding not allowing the applicant
Smt. Delsy Pramila to attend interview for the post of
"Peon" is justifiable or not? What relief the workman
is entitled to?"
2. On appearance on receipt of the notice the petitioner
has filed a memo stating that the union is not proceeding
with the adjudication and that the matter is not pressed.
Accordingly the ID is dismissed as not pressed.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 26th March, 2015)
K. P. PRASANNA KUMARI, Presiding Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1675
Witnesses Examined:
For the 1st Party/Petitioner Union
: 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] 10 vizSy] 2015
dk-vk- 770-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wfu;u cSad
vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] dkuiqj ds iapkV ¼lanHkZ lañ 48@09½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 10-04-2015 dks izkIr
gqvk FkkA
[lañ ,y&12011@83@2009&vkbZvkj ¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 770.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 48/09) of the Cent.
Govt. Indus.Tribunal-cum-Labour Court, Kanpur as shown
in the Annexure, in the industrial dispute between the
management of Union Bank of India and their workmen,
received by the Central Government on 10/04/2015.
[No. L-12011/83/2009-IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE SRI RAM PARKASH, HJS, CENTRAL
GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT, KANPUR
Industrial Dispute No. 48/09
BETWEEN
The President,
Union Bank Employees Union (UP), Kanpur Unit, C/o Union
Bank of India, Swaroop Nagar,
Kanpur. U.P.
AND
The Assistant General Manager,
Union Bank of India,
Regional Office,
Pandu Nagar,
Kanpur. 208005
AWARD
1. Central Government, Mol, New Delhi, vide notification
No. L-12011/83/2009-IR(B-Il) dated 24.11.2009, has referred
the following dispute for adjudication to this tribunal.
2. Whether the action of management of Union Bank of
India in making deductions from the salary of Sri D. P.
Gupta on account of loan limit enhanced by the
management, from Rs.1,00,000/- to Rs.1.5 Lacs without
obtaining his signature as earlier limit of 1 lac was already
adjusted in the year 1996, is justified & legal? To what relief
workman concern is entitled to?
3. Briefly stated facts of the case are—
4. It is stated that M/s Anurag Udyog was granted CC
Limit for Rs.1 Lac on 13.10.95, wherein Sri D. P. Gupta the
concerned workman stood as guarantor along with one
Mr. Balkrishna Gupta. It is further alleged that subsequently
the above loan was adjusted by the opposite party in May
1996. The opposite party after adjusting the above cash
credit limit, again enhanced the limit up to 1.5 lacs in the
same account i.e. M/s Anurag Udyog against the guarantee
of Sri Bal Krishna Gupta. It is also alleged by the union that
after the adjustment of the above loan the concerned
workmen automatically relinquished as guarantor at the
enhanced cash credit limit allowed by the bank in favor of
M/s Anurag Udyog.
5. The union has further stated that the workman has
submitted a representation dated 08.10.04, mentioning
therein that it is not understood to him as under what
circumstances a deduction for Rs. 5000/- per month is being
made by the opposite party for adjustment of enhanced
limit of Rs.1.5 lac in the account of M/s Anurag Udyog.
The concerned workman submitted repeated representation
on the matter stating that he is neither judgment debtor nor
guarantor therefore the attachment of his salary for the
purpose of adjusting the enhanced limit in the account of
M/s. Anurag Udyog is highly illegal and Arbitrary. When
no fruitful result on the representation of the workman
came out then the Union took up the matter with the
opposite party vide its communication dated 31.05.2005
and in reply to the same the opposite party vide its
communication dated 08.06.2005 intimated the Union that
the bank is justified to make deduction from the salary of
the workman, It may be pointed out here that while reply
the representation of the union, the opposite party has not
whispered even a single provision of rule under which the
opposite party is empowered to make such deduction from
the salary of the concerned workman who never stood as
judgment debtor or guarantor. Thereafter the union again
represented the matter before the opposite party making a
clear request to stop the illegal deduction and refund the
1676
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
same to the workman otherwise it will take suitable legal
action against the opposite before appropriate forum of
law. Again on 17.09.07, the workman represented the matter
before the opposite party making a clear request not to
effect the illegal deduction from his salary. It is further
stated that the then Branch Manager vide his letter dated
08.10.04 addressed to AGM of the opposite party has clearly
mention that Sri D. P. Gupta has never signed any document
as mentioned as S-1 i.e. Letter of Guarantee for enhanced
limit allowed in favor of M/s. Anurag Udyog.
6. It is also submitted that the action of the bank in
effecting deduction from the salary of the workman is highly
illegal and against the provisions prevailing in the bank
inasmuch if it is assumed that some amount is payable the
nature of liability is of civil and the salary of the workman
could not be attached for any reason whatsoever, without
obtaining a decree from Civil Court against the concerned
workman; that the action of the opposite party is illegal,
arbitrary and without jurisdiction as the loan papers alleged
to be in possession of the opposite party relating to
M/s. Anurg Udyog is barred by time; that the action of the
opposite party is bad in law as the workman has never
owed any responsibility for enhanced limit in favor of
M/s. Anurag Udyog by signing any document at any point
of time as such the bank is not authorized to attach the
salary of the workman for the purpose of adjustment of
enhanced limit granted to the above firm; that as the
workman is an active trade union worker and is ventilating
the grievances of co-workers before the management,
therefore, the bank has taken a vindictive action against
the workman; lastly it is alleged that the amount that has
been deducted from the salary of the workman is a hard
earned money and the workman is having a right over the
same as a right of property therefore, he is entitled to get
back the same from the bank.
7. On the basis of the above, it has been prayed by the
union that the amount already deducted by way of illegal
attachment of the salary of the workman be directed to be
refunded by the opposite party with pendentelite interest
@ 24% per annum. The union has further requested that
since the action of the bank is illegal therefore, the bank be
directed not to effect any further deductions from his salary
and cost of Rs.5000/- has also been claimed by the union.
8. The opposite party has filed its reply stating therein
that the workman is an employee of the bank and a loan of
Rs.1 lac was sanctioned by the bank in favor of M/s. Anurag
Udyog on 12.10.95, in which the workman and one Sri Bal
Krishna Gupta stood as a guarantor. Subsequently the limit
was enhanced to Rs.1.5 lac and the letter of guarantee was
signed alone by Mr. Bal Krishna Gupta. The bank has sent
notices to the borrower repeatedly on different dates and
copy of the same was marked to the workman. Since the
account has turned into NPA and neither the borrower nor
the guarantor were paying banks dues, Sri D. P. Gupta
being one of the guarantor and after sending notice to him
on 17.04.2004, bank started recovery from his salary which
was the available source of recovery. It is also alleged that
the concerned workman made request on humanitarian
ground for less deduction from his salary and the deduction
was reduced from Rs.5000/- to Rs.2000/- per month. It is
also pleaded that under the provisions of Indian Contract
Act, the Bank is competent to deduct the amount from the
salary of the workman. The claim of the worker that he is
released from the guarantorship for enhanced limit is no
correct on the ground that the enhanced limit on the strength
of second guarantor does not exonerate Sri D. P. Gupta
from his existing liability to repay the loan arising out of
guarantee of Rs.1 lac and interest thereon. It is also
submitted that the workman was also guarantor of
M/s. Kushmanda Tools and Castings Pvt. Limited and the
borrower of the said loan account was the wife of Sri D. P.
Gupta and the Guarantor of M/s. Anurag Udyog Sri Bal
Krishna Gupta is one of the Director in Kushmanda Tools
and Castings Pvt. Limited. This account had also become
NPA and the amount of Rs.20774/- along with excluding
interest of Rs. 147301. Hence, after putting a notice upon
Sri D.P. Gupta a sum of Rs.5000/- from his salary was
deducted and now the said account has been fully adjusted.
It is also pleaded that the workman cannot be allowed to
have become absolved from the liability of loan amount
granted to M/s. Anurag Udyog in view of his letter dated
05.11.2005.
9. Therefore from the contents of the said letter it is
amply clear that it is a clear cut admission of cash credit
limit granted to M/s. Anurag Udyog hence the claim of the
workman that he stood relinquished from the recovery of
the amount is absolutely devoid of merit. The workman
neither replied the letter of the bank nor legal notice of the
bank; therefore, he cannot be allowed to claim that he stood
relinquished from the loan account of M/s. Anurag Udyog.
10. The provisions of Payment of Wages Act cannot be
invoked by the claimant in the facts and circumstances of
the bank. It is further alleged that the very nature of
reference and claim falls outside the ambit and scope of
Industrial Disputes Act, as defined under section 2(k) of
the Act, inasmuch as the demand of the union and the
grievance of the workman is not with the relation of
employment or term of employment or condition of
employment or non employment, therefore, Sri Gupta cannot
raise any grievance against the bank concerning the legal
deduction. His remedy at the best can be before the
appropriate Civil Court and not before this tribunal.
11. Lastly it is prayed that the claim of the union is
devoid of merit and is liable to be rejected.
12. The Union has further filed rejoinder in the case
stating therein that the reply made by the bank is totally
misleading and not convincing, therefore, is denied
absolutely on the ground that a cash credit limit was initially
granted in favor of M/s. Anurag Udyog in the year 1995
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1677
and in the month of May 1996 the bank allowed the
enhanced limit 1.5 lacs and earlier limit of Rs.1 lac was
adjusted by depositing money and by executing fresh
documents against the enhanced limit one Shri Bal Krishna
Gupta came forward as guarantor who signed the bank
guarantee papers. It has further been pleaded by the union
that when a party comes in to new agreement the earlier
agreement stands automatically vitiated and no cognizance
can be taken on the earlier agreement.
13. It is further stated by the union that the bank has
never sent any notice to the workman at any point of time
and by simply endorsing on the notice that a copy of the
same has been sent to the workman would not amount to
believe the fact that in any such notice was ever sent by
the bank on the workman. He has further pleaded that he
cannot be held liable as a guarantor for making payment of
enhanced loan amount granted by the bank in favor of
M/s. Anurag Udyog.
14. The union has also contended that the workman has
no concern or liability about the loan granted to M/s
Kushmanda Tools Pvt. Limited.
15. Therefore the workman at any rate cannot be held
responsible for repayment of the loan amount favored by
the bank to M/s Anurag Udyog Kanpur in the absence of
any relationship in between M/s. Anurag Udyog. On the
basis of above it has further been prayed by the union that
the claim be allowed against the opposite party and in
favor of the workman.
16. In this case the Union along with claim statement
has filed documents paper Nos. 3/7-3/17 and thereafter
vide application paper No.4/1 has also filed documents
paper No.4/2-4/13.
17. The opposite party has also filed documents vide
list dated 11.01.2013 bearing paper No. 22/1-22/23. Again
the opposite party vide list dated 02.05.2011 has further
filed paper No. 17/2-7.
18. The opposite party has further filed a document
paper No. 16/2 per list dated 11.03.2011.
19. Apart from filing the above documents by the parties
in support of their respective claim, where as the Union
has examined the concerned workman Sri D P Gupta as
w.w.1 and on the other hand the opposite party bank has
examined Sri B. P. Gupta as W.W.1.
20. I have heard the arguments of the parties at length
and have also perused the whole records carefully. I have
also anxiously gone through the schedule of reference
order.
21. By a bare perusal of the terms of reference order it is
quite clear that the Ministry of Labour, New Delhi, has
posed a simple question before the tribunal to answer the
reference as to whether the action of the management of
Union Bank of India in making deductions from the salary
of Sri D. P. Gupta on account of Loan limit enhanced by the
management from Rs. 1 lac to 1.5 lac without obtaining his
signature as earlier limit of 1 lac was already adjusted in the
year 1996 is justified and legal.
22. To answer the above points I would like to mention
the actual factual position emerging from the pleadings of
the parties.
23. It is argued by the Union that the opposite party has
sanctioned a cash credit limit in favor of M/s Anurag Udyog
for Rs.1 lac in which the workman and one Sri Bal Krishan
Gupta stood as a guarantors. According to the workman
the said cash crelit limit was adjusted in the year May 1996.
Thereafter, in the said -account the cash credit limit was
enhanced to Rs.1.5 lac in which the sole guarantor was
Mr. Bal Krishna Gupta as per record of the opposite party.
But the bank on arbitrary considerations has started
recovery of the enhanced cash credit limit from the salary
of the workman without any legal authority or right.
24. As against this arguments the authorized
representative for the opposite party has laid much
emphasis on paper No. 3/13, 17/7 and 16/2 respectively
and on the strength of these papers he has argued that the
workman cannot be absolved from the recovery of the
enhanced cash credit limit granted in favor of M/s Anurag
Udyog.
25. I have carefully examined the documents referred to
by the opposite party. Paper No.3/13 is a reply dated
08.06.2005 of the bank to the Union duly signed by Chief
Manager, which is on the subject of unlawful attachment
of salary of Mr. D.P. Gupta, wherein the bank has informed
that we have sought comments from Law Department of
our bank. We have been advised that the bank is justified
to make deductions from the salary of its employee who
stood as a guarantor to recover banks dues; hence
attachment of salary of Mr. Gupta is not unlawful.
26. Paper No. 16/2 is an application of workman wherein
by referring representation dated 08.10.2004 and
subsequent reminders requested to consider his request
regarding deductions.
27. Paper No.17/7 is letter dated 17.05.2004 in the form of
notice addressed to the workman wherein the chief
manager of the bank intimating the workman that in case
he fails to adjust these accounts immediately, the bank has
no other alternate except to recover the same from the
1/3rd salary payable to workman with effect from June 2004.
28. In the light of the above I have also examined the
document paper No.3/16, in the light of the arguments
advanced by the representative of the management in which
the branch manager General Ganj Branch informed to the
Assistant General Manager, Regional Office, Kanpur, that
no S. l has been obtained from Sri D.P. Gupta concerned
1678
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
workman (staff) for said enhancement of cash credit limit in
the account of Anurag Udyog.
29. On the other hand in paragraph No.12 i.e. paper
No.3/4 which is the statement of claim filed by the union, it
has been clearly mentioned that S.1 (which is the letter of
guarantee) for enhanced cash credit limit in the account of
Anurag Udyog has never been signed by the workman
Sri D. P. Gupta.
30. On the contrary the bank has also not filed S.1 letter
of guarantee for enhanced limit so as to find out by the
tribunal as to actually the workman can be held liable for
adjustment of enhanced limit.
31. I, therefore, considering the facts and circumstances
of the case as referred to in Para 12 of the statement of
claim of the union, confirmed by paper No.3/16 filed by the
union as admitted by the bank in para 2 (paper No.12/1) in
the light of the reference order, it is held that no letter of
guarantee ( S.1 ) was ever signed by the concerned workman
for enhanced cash credit limit in the account of M/s Anurag
Udyog up to the extent of Rs.1.5 lacs.
32. The Union has next argued that the bank is not
competent to attach the salary of the workman for
adjustment of enhanced limit in the account of M/s Anurag
Udyog in the absence of any decree passed by Civil Court
and also in the absence of his being a guarantor of the
enhanced limit.
33. Union has also argued that as per the provisions of
Section 62 of Indian Contract Act that if a parties to contract
agree to substitute a new contract for it, or to rescind or
alter it, the original contract need not to be performed
therefore, any new documents in the shape of letter of
guarantee in respect of M/s Anurag Udyog cannot bind
the workman in the absence of his signature over the same.
34. It has also been argued by the union by referring the
provisions of the Payment of Wages Act, 1936, that the
nature of deductions that can be made from the salary of
any employee has been mentioned under section 7 of the
Act, which no where gives right to an employer to deduct
or attach the salary of his employee beyond the scope and
ambit of deduction referred therein. The nature of
deductions made from the salary of the workman do not
fall within the provisions of section 7 of Payment of Wages
Act, 1936.
35. After hearing the arguments of the Union, I inquired
from the authorized representative for the bank to advance
his arguments on the points raised by the union in the
shape of reply ariving the tribunal at a definite conclusion.
I am afraid how the representative for the bank could not
reply the legal argument that has been advanced by the
Union.
36. As against it the consistent arguments of the banks
representative was that the reference is not valid in the eye
of law, reference is not maintainable before this tribunal
and is liable to be rejected and that the claim of the union is
not an industrial dispute. I have given my consideration to
the above arguments of the bank and I have come to the
conclusion that these are merely mechanical and technical
arguments in its very nature and if at all the bank was
aggrieved by the present reference or on the point that the
present claim is not an industrial dispute under the
provisions of Industrial Disputes Act, 1947, it was open for
the management to have challenged the same before some
higher court but at any rate the bank cannot be allowed to
raise hue and cry at this belated stage. I therefore, do not
find any force or merit in the arguments advanced by the
bank and thereby reject the same.
37. Sri D. P. Gupta, concerned workman has appeared as
w.w.1 in the witness box and has stated on oath that in the
Month of May 1996 cash credit limit in the account of
M/s Anurag Udyog was enhanced to Rs.1.5 lac whereas
the old cash credit limit in the said account was adjusted.
He goes on to state that for enhanced limit he never stood
guarantor. He has further deposed in his evidence after
perusing paper No.3/16-17 which is the photocopy of bank's
letter, filed by the union, which is admitted by the opposite
party. After going through these papers he has deposed
that he has never signed any document in the shape of S.1
i.e. letter of guarantee. He has further stated that the
authorities of the bank did not take any sincere efforts to
recover the loan from the original borrower and guarantor
and allowed the loan to become time barred. He stated that
he cannot be fastened any liability for repayment of the
loan account. He has further stated that in case there is
any dispute regarding guarantee of there must be a decree
from the civil court.
38. The witness has further stated the fact that the bank
has forged the document showing that Rs.5000/- on
27.09.2005 to the effect that the same is deposited by the
workman himself, whereas the hard fact remains that the
amount of Rs.5000/- was transferred from my salary into
the sundry account and later on transferred to in cash
credit limit account by falsely stating therein that the
amount has been deposited by Sri D. P. Gupta.
39. In his cross examination, the witness after perusing
paper No.3/7 stated that the limit was already enhanced on
01.05.96 and between 06.5.96 to 25.05.96 pervious loan
amount was adjusted and has further stated that according
to Clayton rules the money deposited first would be deemed
to have been deposited for adjustment for the first loan.
40. According to the statement of M.W.1, the witness
has stated that the account of M/s Anurag Udyog was
opened in October 1995 with a limit of Rs. 1 lac. In which
the concerned workman and Sri Bal Krishna Gupta stood
as a guarantor. Witness further goes on to state that on
03.06.96 limit was enhanced to Rs.1.5 lac in the account of
M/s Anurag Udyog. During the examination in chief a
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1679
specific question was put by the representative for the
bank from his witness on the point that according to the
claimant the limit was adjusted in May 1996. The witness
replied that on the basis of record no limit was adjusted. He
goes on to state that till June 96 a total sum of Rs.99666.50
was outstanding.
41. Witness of the bank has clearly admitted in his cross
examination that no guarantee bond or agreement duly
signed by the workman has been filed on the record of the
present case before the tribunal on behalf of the bank.
42. The witness of the bank during the course of his
cross examination has specifically admitted that he has not
gone through the averments of the written statement and
is not able to state that ary guarantee bond for enhanced
limit duly signed by Shri D. P. Gupta was obtained or not
and that is not filed on record. Regarding statement made
by the bank in para 2 of their written statement the witness
kept mum.
43. To a specific question put before the witness of the
bank on behalf of the workman to the effect that whether
the bank is competent to attach the salary of his workman
or to deduct any amount from his salary. To this specific
question the witness expressed his ignorance on the point
by stating that he has never come accorss from any such
legal provision under which the salary of an employee of
the bank can be attached without the decree of competent
court of law.
44. From a overall consideration of the facts and
circumstances of the case coupled with the evidence of
the parties, the tribunal is of the opinion that the action of
the management of Union Bank of India in making
deductions from the salary of Shri D.P. Gupta on account
of loan limit enhanced by the management from Rs.1 lac to
1.5 lac without obtaining his signature as earlier limit of
Rs.1.1ac was already adjusted in year 1996 is neither
justified nor legal. Moreover, in the given circumstances,
the salary of the workman cannot be attached by the bank
suo motto without adopting due process of law.
Consequently, the workman is held entitled for recovery of
the amount deducted from his salary on above grounds
with pendentelte and future interest at the rate of 10% per
annum.
45. Cost of the case at Rs.1000/- is also awarded to the
workman.
46. Reference is therefore answered in favour of the
Union and against the opposite party.
Dt. 15.04.2014
RAM PARKASH, Presiding Officer
ubZ fnYyh] 10 vizSy] 2015
dk-vk- 771-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc uS'kuy cSad
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;] dkuiqj ds iapkV ¼lanHkZ lañ 47@99½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 10-04-2015 dks izkIr gqvk FkkA
[lañ ,y&12012@213@98&vkbZvkj ¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 771.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 47/99) of the
Cent.Govt.Indus.Tribunal-cum-Labour Court, Kanpur 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
10/04/2015 .
[No. L-12012/213/98-IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE SRI RAM PARKASH, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, KANPUR
Industrial Dispute No. 47 of 99
Between
Sri Vijai Shanker Savita,
C/o Sri B P Saxena,
426 W-11 Basant Vihar,
Kanpur.
And
The Regional Manager,
Punjab National Bank,
Regional Office,
Birhana Road,
Kanpur.
AWARD
1. Central Govt, MoL, New Delhi vide notification No.
L-12012/213/98-IR B-II dated 09.03.99, has referred the
following dispute for adjudication to this tribunal—
2. Whether the action of the management of Punjab
National Bank Kanpur, in terminating of Sh. Vijai Shanker
Savita, from service with effect from 22.11.96 is justified? If
not what relief the workman is entitled to?
3. It is common ground that the workman while working
as cash peon at Banks Pandu Nagar Branch Kanpur was
found to have pick pocketed an amount of Rs.150/-
comprising of Rs. 50/- of three note from the bundle of
Rs.50/- on 05.09.95 vide paper No.21/2. The workman has
not replied the charges. Based on the enquiry he was
1680
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
removed from the service of the bank vide order dated
05.02.97 passed by the disciplinary authority.
Appeal preferred by the applicant also stands dismissed
vide order dated 09.07.98.
4. There is no dispute about the factual dispute as
narrated hereinabove.
5. Now the case of the claimant is that the charge sheet
has not been issued by the competent disciplinary
authority; there was no evidence in support of the charge;
that the entire enquiry has been conducted by the enquiry
officer against the rules of natural justice, as such the
dismissal order passed by the bank is liable to be set aside
and the workman is liable to be reinstated in the service of
the bank with full back wages and continuity of service
and all consequential benefits.
6. The opposite party bank has filed their written
statement wherein they have stated that the whole inquiry
has been conducted in accordance with the rules of natural
justice and the workman was given adequate opportunity
for his defense. He was provided with all the documents
during the course of departmental inquiry. The defense
representative has never objected to the course of inquiry
before the inquiry officer, therefore, the inquiry has been
conducted in accordance with the rule of natural justice
and having regard to the provisions of the Bipartite
Settlement. Lastly it has been pleaded by the opposite
party that the workman's claim is not maintainable and he
is not entitled for any relief as claimed by him, therefore the
claim is liable to be rejected.
7 Rejoinder has also been filed by the claimant but
nothing new has been asserted by him.
8. Both the parties have filed documents.
9. Opposite party has filed all the original documents
pertaining to inquiry including copy of charge sheet, inquiry
proceeding register in original, inquiry officer report, show
cause notice, final order of the disciplinary authority dated
05.02.97, dismissing the employee, order of the appellate
authority etc. Photocopies of these documents have been
filed by the workman also.
10. I have perused and considered the whole record and
find that vide order dated 28.11.2001 a preliminary issue
regarding the fairness of the inquiry was framed.
11. On the preliminary issue none parties have adduced
any evidence.
12. I have heard the arguments in the case at length and
considered the records of the case.
13. On the date of the arguments it has been conceded
by the authorized representative for the workman that the
enquiry held by the management was fair and proper.
14. I have also observed from the inquiry proceedings
that fair and proper inquiry has been conducted by the
inquiry officer. The star witness is Sri Shiv Kumar Verma
who is eye witness and has seen the employee pick
pocketing the three notes of Rs. 50/- from the bundle of
Rs.100/-. These three notes having specific numbers which
have been produced during the inquiry proceedings in the
presence of witnesses that have been recovered from the
pocket of the employee. The management witness Sri Verma
has not been cross examined by the D.R. during the inquiry
proceedings. Other witnesses from the side of the bank
were also available who were examined and cross examined
and nothing has come out from their mouth to disbelieve
the allegations of the charges.
15. Therefore, after having anxious consideration to the
whole inquiry conducted by the management it is concluded
that the inquiry conducted by the management do not suffer
from any infirmity and this fact has also been admitted by
the representative of the workman.
16. Therefore the preliminary issue is decided in favaur
of the management.
17. The main argument of the representative for the
management is that since there is no financial loss to the
bank and considering the fact that the punishment is harsh
having regard to the gravity of the charges, therefore, in
exercise of powers conferred upon this tribunal under
section 11-A of the Act, the punishment of dismissal from
service may kindly be modified.
18. In the given facts and circumstances of the case the
contention of the AR of the workman is not tenable in as
such kind of matter like pocketing the public fund by an
employee of reputed financial bank does not permit to
reduce the sentence of dismissal that has been given by
the disciplinary authority and confirmed by the appellate
authority. Therefore, under the given circumstances of the
case the tribunal is not of the opinion to give any sympathy
to the workman in exercise of powers under section 11-A of
the Act as the act of the workman is of grave nature and the
punishment given to him by the disciplinary authority is
just and fair.
19. Having concluded that the departmental inquiry
conducted by the bank against the workman is just and fair
and also having considered his case under section 11-A of
Industrial Disputes Act,1947, in the light of the gravity of
misconduct proved against him, I am of the view that since
the workman has pocketed three notes of Rs.50/- from a
bundle of Rs.50/- while working as cash peon at Currency
Chest of the bank and these notes were subsequently
recovered from his pocket by manager of the branch,
therefore, the misconduct committed by the workman is of
very serious nature and under these circumstance of the
case, the tribunal is not inclined to interfere with the
punishment awarded by the disciplinary authority and up
held by the appellate authority.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1681
20. As such on the basis of findings recorded above,
the workman is not entitled for any relief pursuant to his
claim statement and the referance decided against the
workman and in favor of the management.
Dt. 1.01.2014
RAM PARKASH, Presiding Officer
ubZ fnYyh] 10 vizSy] 2015
dk-vk- 772-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc ,.M fla/k cSad
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;] dkuiqj ds iapkV ¼lanHkZ la- 38@2007½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10-04-2015 dks izkIr gqvk FkkA
[lañ ,y&12012@121@2006&vkbZvkj ¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 772.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 38/2007) of the
Cent.Govt. Indus.Tribunal-cum-Labour Court, Kanpur as
shown in the Annexure, in the industrial dispute between
the management of Punjab & Sindh Bank and their workmen,
received by the Central Government on 10/04/2015.
[No. L-12012/121/2006-IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE SRI RAM PARKASH, HJS, PRESIDING
OFFICER, CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, KANPUR.
Industrial Dispute No. 38 of 2007
Sri Pradeep Kumar Tiwari, son of Sri Ram Shanker Tiwari,
resident of 236/6 Juhi, Lal Colony, Kanpur.
And
The Branch Manager,
Punjab & Sindh Bank,
Katariya Complex,
Sarojini Nagar, Kanpur.
Award
1. Central Government, Mol, New Delhi, vide notification
No. L-12012/121/2006-IR-B-II, dated 29.08.2007, has referred
the following dispute for adjudication-
2. Whether the action of the management of Punjab &
Sindh Bank Kanpur in terminating the services of
Sri Pradeep Kumar Tiwari, with effect from 20.07.05, without
following the prescribed procedure under 25F of the
Industrial Act, 1947, is legal and justified? If not to what
relief the workman concerned is entitled to?
3. Brief facts are—
4. Claimant has a filed his claim statement making a prayer
that the action of the opposite party in terminating his
services w.e.f. 20.07.05 was not justified and he should be
reinstated with all consequential benefits.
5. It is alleged that in search of employment the claimant
approached the chief manager Punjab & Sindh Bank Gumti
No. 5 Kanpur. The manager was kind enough to appoint
him as temporary peon from 15.02.89. In proof of his
employment a certificate issued by the bank is enclosed as
annexure. 1. He was required to work for full hours of work.
He was being paid Rs.25/- per day excluding Sunday's and
holidays which was gradually ,raised to Rs. 50/-per day. He
worked continuously at the branch of the bank in the year
1989 to 1995, when in Jan 95 he was called for interview at
New Delhi. This interview was however cancelled. Later in
June 95 he was again called for interview on 15.06.95, the
applicant appeared for interview.
6. Letter for calling for interview is enclosed.
7. After the interview the applicant was continued to
work as temporary peon and he continued to work in the
year 95-99, when the applicant received a letter dated
21.07.99 from Zonal Office Lucknow, appointing the
applicant a temporary peon at Kataria Complex Sarojani
Nagar and he joined over there and he joined on 22.07.99.
Upon joining the manager of the bank wrote a letter to the
Zonal Office Lucknow of the bank inquiring about the
emoluments to be paid to the workman. In reply Zonal
office vide its letter dated 06.08.99 advised that the applicant
be paid emoluments admissible to as fresh appointee, a
copy is annexed as annexure IV. Again he was called for
interview on 20.07.2000 by the Zonal Office and he again
appeared for interview. It is stated by the claimant that at
the Katariya Complex Branch he was being paid prescribed
salary admissible to a regular peon of the bank. He was
also required to sign the attendance register.
8. As such it is alleged that he worked continuously
from 22.07.99 up till 19.07.05 at Kataria Complex Sarojini
Nagar Branch when his services were abruptly and verbally
terminated by the bank. At the time of dispensation of the
services of the claimant the management has neither issued
any notice, notice pay or retrenchment compensation nor
have shown any reason for retrenching the services.of the
workman. The provision of the Act has been badly breached
in the case of the workman therefore he is entitled for his
reinstatement.with full back wages and all consequential
benefit.
9. The opposite party has filed reply against the
staternent of claim refuting all the allegations made by the
1682
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
workman. it has been denied by the opposite party that the
claimant was employed as a temporary peon by the Chief
Manager of the bank on 15.12.89. He has no such power to
appoint any person on any post. It has been stated that
the alleged and so called services were purely on temporary
basis on daily basis. It is also denied that at any point of
time he was paid any salary by the opposite party. At no
point of time the claimant completed 240 days continuously
in one calendar year during the period of his casual
employment.
10. It has been stated that it appears that there is a
manipulation and malafide intention on the part of the
claimant, who since inception have been trying to
manufacture the documents for filing the false claim seeking
his employment. The documents filed by the applicant are
not admitted. Lastly it has been alleged that since the
applicant has never been appointed in the bank therefore,
provisions of I.D. Act are not applicable in his case and
thereby he is not entitled for any relief pursuant to the
present reference order.
11. Both the parties have adduced oral evidence.
Claimant has adduced himself as w.w.1 Pradeep Kumar
Tiwari, opposite party has adduced Sardar Amarjet Singh,
M.W.1.
12. Claimant has produced several documents with the
claim statement which are Annexure 1 to 8. He has also
filed one carbon copy of letter dated 20.07.05.
13. I have examined the entire documentary as well as
oral evidence led by the parties.
14. Claimant has claimed through his claim staternent
that he had been interviewed by the opposite party and
after, interview he got an appointment letter for the post of
temporary peon which is annexure 3. The opposite party
,has challenged the authenticity and veracity of all these
documents alleging that all these documents , have been
manufactured with the purpose to file the claim.
15. I have given due thought to this appointment letter
annexure 3. It is a photocopy and the signature of the
Zonal Manager over it is not visible. This copy is addressed
to the claimant himself. It shows that the original of this
was given to the claimant. In such situation why, the
original of this letter has not been filed by the claimant. He
has not explained any reason for not filing the original of
this letter.
16. Therefore, no reliance can be placed on this letter.
17. Similarly he has filed annexure 6 alleging to be the
original. In this leter it has been written that Sri Pradeep
Kumar Tiwari, is working at extension counter since 22.07.99.
He is being paid the emoluments admissible to fresh peons
as per bank's norms. Now a question arises that had the
claimant been appointed as a temporary peon and he was
being paid the prescribed salary for the temporary peon,
then it was very easy for the claimant to get the record
summoned for his salary or wage being paid to him
through the salary register or through the voucher. He
summoned several other records but he did not summon
the relevant and important records like the salary register
or the vouchers which could have shown that he had
actually been employed and paid his wages by the
opposite party.
18. He has filed, several annexure either photocopies or
someone in original like annexure 1 and annexure 6, when
he could procure such documents from the custody of the
opposite party he could have easily procured the copy of
the salary register or the vouches which could show that
he was being paid exchequer of the opposite party.
19. He has moved an application for summoning such
records for which the opposite party has alleged that these
documents are not in their custody as these documents
appears to be manufacture one for the purpose of filing the
present claim.
20. It is alleged that he was terminated on 20.07.05, but
the photocopy of the attendance register which is claimed
to be of the opposite party shows that the same is of April
2000. There is no stamp of the opposite party on these
documents. The claimant did not file the attendance relating
to the period of July 2005, of before that.
21. I have examined the evidence of both the witnesses.
In the cross examination claimant stated that when he joined
on 22.07.99 as temporary peon he was not interviewed for
this post. He also admitted that whenever he had worked
he was being paid in hs capacity as a casual worker.
22. Therefore considering all the facts and
circumstances of the case, it is found that the claimant was
never appointed against any regular or sanctioned post of
peon as alleged by him.
23. He was engaged as a casual worker as alleged by,
the opposite party and he was being paid as a casual labor.
There is no such evidence that the claimant has completed
more than 240 days within 12 months preceding the date of
his termination, which is 20.07.05. As the initial burden lies
on the claimant to prove his case that he had actually worked
for more than 240 days preceding 12 calendar, months from
the date of his termination, but since the claimant has failed
to discharge his obligation in the present case, therefore,
this tribunal is of the opinion that the claimant has failed to
discharged his primary obligation to prove his case.
24. Consequently reference is answered against the
claimant and in favor of the opposite party holding that the
claimant is not entitled for any relief as claimed by him.
25. Reference is answered accordingly.
Date : 21.01.2014
RAM PARKASH, Presiding Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1683
ubZ fnYyh] 10 vizSy] 2015
dk-vk- 773-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u cSad 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; pSUubZ ds iapkV ¼lanHkZ la- 67@2013½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 10-04-2015 dks izkIr gqvk
FkkA
[lañ ,y&12011@25@2013&vkbZvkj ¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 773.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 67/2013) of the
Cent.Govt.Indus.Tribunal-cum-Labour Court, Chennai as
shown in the Annexure, in the industrial dispute between
the management of Indian Bank and their workmen, received
by the Central Government on 10/04/2015.
[No. L-12011/25/2013-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIALES TRIBUNAL- CUM - LABOUR
COURT, CHENNAI
Wednesday, the 25th March, 2015
Present :
K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 67/2013
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of Indian Bank and their workman)
BETWEEN
The General Secretary
:
1st Party/
Indian Bank Employees'
Petitioner Union
Association (Tamil Nadu)
17, Ameerjan Street
Choolaimedu
Chennai-600094
AND
The Asstt. General Manager (HRM)
: 2nd Party/
Indian Bank, Corporate Office,
Respondent
HO HRM Department
254-260, Avvai Shanmugham Salai,
Royapettah, Chennai-600014
Appearance:
For the 1st Party/Petitioner
: Sri K. Krishnan,
Union
Authorized
Representative
For the 2nd Party/
: M/s T.S. Gopalan & Co.,
Respondent
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12011/25/2013-IR(B.II)
dated 23.05.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the Indian Bank management
in respect of introducing Sorting Machine at
Currency Chest without adequate manpower is
justified or not? To what relief the workmen are
entitled?"
2. On receipt of Industrial Dispute this Tribunal has
numbered it as ID 67/2013 and issued notices to both sides.
Both sides have entered appearance through their counsel
and have filed their claim and counter statement
respectively.
3. The averments in the Claim Statement filed by the
petitioner in brief are these:
The petitioner is a Union registered under the Trade
Union Act. It has substantial following among workmen in
the Respondent Bank. Initially there were no currency
counting and sorting machines for the Respondent Bank.
These works were performed manually by the Clerical Staff
attached to Currency Chest. When note counting machines
were introduced in Currency Chest the quantum of work to
be performed was fixed bilaterally between the Management
and recognized union on 01.03.2002. Now this settlement
is in vogue. An Office Order was issued to the staff attached
to Currency Chest in Coimbatore Main Branch on 23.11.2010
arbitrarily fixing the quantum of notes to be counted as 90
bundles per sorting machine. A team of three persons are
allotted to each machine. This was done without any
scientific study and without any bilateral arrangement fixing
the quantum. When the members of the Petitioner Union
expressed reservation regarding the order they were
transferred to different places. In the absence of a bilateral
settlement the quantum fixed by the Management should
not be implemented. The staff at the Currency Chest
attached to Coimbatore could count and sort only 54 to 60
bundles a day even on sitting late for 20 minutes. The
Management should determine the staff strength of the
Currency Chest keeping into account the volume of cash
handled and the number of branches serviced by a
particular Currency Chest. It should also have alternate
arrangement for making leave vacancies on day to day
basis. There is no justification for the quantum unilaterally
1684
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
fixed by the Management. Direction may be issued to the
Management to arrive at a new bilateral settlement on the
issue and they should be asked to withdraw unilateral action
of the Management of Currency Chest, Coimbatore Main
Branch.
4. The Respondent has filed Counter Statement
contending as below:
The issue involved in the dispute was raised after an
alternative sorting machine with more number of stackers
for holding currencies was introduced in the Currency Chest
attached to the Coimbatore Main Branch in 2010. As a
statutory obligation the Respondent is required to maintain
cash reserve ratio requirements at the Currency Chest. The
Currency Chest of the Respondent is controlled by the
Reserve Bank of India and the Respondent has to carry
out the directions issued by the RBI from time to time. The
remittances made to the Currency Chest are to be sorted
out as soiled, re-issuable and fake or rejected notes. Loose
currencies have to be made into sections of 100 pieces and
10 sections make out one bundle. Remittances to RBI should
be made only in bundles. Before remittances made to the
Currency Chest is acknowledged it will have to be sorted
out. At one stage both the counting and sorting of notes
were done manually. Later counting machines were
introduced. Only in 2005 automatic counting-cum-sorting
and fake detection machine came to be used. The capacity
of the machine according to the manufacturer is 720
currencies per minute and this will come to 250 bundles
during the office period of 6 hours. There are two types of
machine, one with 4 stackers and another with 8 stackers.
The Currency Chest at Coimbatore being one that receives
maximum inward flow of currencies the Currency Chest
attached to Coimbatore Main Branch has been given
sorting machine with 8 stackers. In Coimbatore Main Branch
with 8 staff and 8 stacker sorting machine 300 bundles
were to be made on a full working day. A representation
was made against the quantum fixed and accordingly on
19.11.2010 an exercise was conducted by the staff of the
Currency Chest in the presence of Officers and Others and
it was agreed that 90 bundles per machine per day
irrespective of the denomination is achievable. This was
recorded and seven staff of the Currency Chest had affixed
their signatures showing that such an exercise was carried
out. Six Clerical Staffs used to be posted by rotation by the
Currency Chest. Even though the staff at the Coimbatore
Currency Chest agreed to sort out 90 bundles per machine
they refused to give this output. Sorting machines which
are functioning in other branches are giving. Output of 90
bundles per day. It is for the Management to decide the
manpower requirement for operating currency sorting
machines. The demand of the Petitioner Union is totally
unjustified. It is incorrect to state that the members of the
Petitioner Union were transferred to far off places when
they refused to work as per the norms of 90 bundles per
sorting machine. The present issue is raised only to show
protest against the transfer which has been done as per
the transfer policy. The petitioner is not entitled to any
relief.
5. The averments in the case consists of oral evidence
of WW1 and documents marked as Ext.W1 to Ext.W5 and
Ext.M1 to Ext.M10.
6. The points for consideration are:
(i) Whether the Management is justified in fixing the
quantum of output for the sorting machine
unilaterally as alleged?
(ii) What is the relief to which the petitioner is
entitled?
The Points
7. The controversy has arisen consequent to the
introduction of a new Currency Sorting Machine in
Coimbatore Main Branch of the Respondent Bank to which
there is a Currency Chest attached. An Office Order has
been issued by the Respondent specifying that each sorting
machine should sort and count 90 bundles of currency on
a full working day. The petitioner is alleging that this is a
unilateral decision on the part of the Respondent and the
quantum of work to be carried out by the machine has been
fixed without making an assessment of the capacity of the
machine in a scientific manner. According to the petitioner
it is impossible for a machine to sort 90 bundles of
currencies on a day even if three employees are allotted for
a machine. The petitioner has stated in the Claim Statement
that in order to comply with the order of the Management
to sort 90 bundles of notes on a day the staff had been
forced to sit in the office beyond the office hours.
8. Ex.W4 the Memorandum of Settlement entered into
on 01.03.2002 shows that it was on the basis of an agreement
between the Management and the workmen the capacity
of a worker to sort and count currency notes manually has
been fixed. It was only subsequently machines were
introduced to ease the work. Initially it was only counting
machine. Sorting had to be done manually even then. Later
more sophisticated machine with capacity for counting,
sorting and detecting soiled, re-issuable and fake notes
were introduced. Two types of machines seems to have
been brought into operation, four stacker as well as eight
stacker. As could be seen from the Counter Statement two
8 stacker machines were put into operation at the Currency
Chest attached to Coimbatore Main Branch.
9. The case of the Respondent is that the new machines
have got very high capacity as claimed by the manufacturers
of the machines and the quantum of output fixed by the
Bank for each machine is much lower than the actual
capacity of the machine. According to the Respondent
there was no question of the machines failing to bring out
the output as fixed by the Respondent with three employees
working on each machine. One employee has to feed the
¹Hkkx IIó[k.M 3(ii)º
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1685
currencies to the machine, one is to pick up the currency
from the stacker and third one is to put the paper flap on
the Section.
10. The Respondent has produced Ext.M3-the catalogue
of the machine put into use at the Currency Chest. The
catalogue contains the photograph of the two types of
machine, the four stacker as well as the eight stacker. As far
as ,the eight stacker is concerned the manufacturer claims
that the counting speed of the machine is approximately
720 notes per minute. It is on the basis of this it is claimed
by the Respondent that the machine can in fact carry out
more work than the quantum that is fixed at the Coimbatore
Currency Chest. As could be seen from the Counter
Statement itself initially the quantum fixed for the 8 stacker
machine was 150 bundles per day with three staff to do the
work. The order to this effect was issued on 10.11.2010.
However this seems to have been objected to by the Staff.
It is the case of the Respondent that in view of the objection
an exercise was carried out on 19.11.2010 by the Staff of the
Currency Chest in the presence of Assistant General
Manager, Chest Officer, Chief Manager and others. WW1
has stated that he has knowledge that a representative of
the manufacturer of the machine was brought to the chest
for demonstration. He has further stated that he was aware
of Ext.M5 order. Ext.M5 states that an exercise was
conducted on 19.11.2010 by the Circle Office, Coimbatore
and the quantum of at least 90 bundles per machine per
day irrespective of the denomination has been agreed
upon. The staff are instructed to complete the sorting of at
least 90 bundles per day per machine with three persons
for each machine. At the bottom of this order there are the
signatures of Chest Officer, Chief Manager, Assistant
General Manager and 7 others purported to be members of
the staff.
11. It could be seen from the manner in which the
Respondent has fixed the quantum of currencies to be
sorted by the machine that the claim of the manufacturer
regarding the capacity of the machine was not accepted by
the Respondent itself. The claim of the manufacturer is
that 720 notes could be counted within a minute. The
quantum fixed earlier was 150 bundles per day. This was
later brought down to 90 bundles on objection by the staff.
Of course, a demonstration seems to have been conducted
in the presence of some staff members. But the
representatives of the workmen were not there. As referred
to earlier, the quantum of sorting to be done manually was
fixed by the Management and the workmen together and
an agreement was entered into. But when the machines
were introduced the Respondent seems to have forgotten
to take the workmen into confidence before fixing the
quantum. It is only proper that a demonstration which is
acceptable to the Management as well as the workmen is
carried out before fixing the quantum of work to be done
by each machine. The Respondent can take into confidence
the representatives of the Unions for this purpose. A
demonstration should be carried out by the manufacturer
in the presence of the Management and the representatives
of the recognized unions and also representative of the
petitioner. The quantum of work to be carried out by the
machine should be fixed on the basis of the result of the
demonstration.
Accordingly, the Respondent is directed to fix the
quantum of work for each machine based on demonstration
to be carried out by the manufacturer in the presence of the
representatives of the Respondent, the petitioner and other
recognized unions, within a month.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 25th March, 2015)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
: WW 1, Sri, C.
Union
Sethuramachandran
For the 2nd Party/Management
: None
Documents Marked
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
16.12.2010
Notice of strike issued by
Petitioner Union against the
unilateral workload increase in
Currency Chest, Indian Bank,
Coimbatore
Ex.W2
21.02.2011
Letter by HO:HRM Deptt. Indian
Bank, Chennai as reply to ALC,
Chennai letter dated 05.01.2011
Ex.W3
07.03.2011
Letter I BEA/GEN/53/2010-13 as
reply to the above letter by
HO:HRM Deptt., Indian Bank
Ex.W4
01.03.2002
Memorandum of Settlement
between
Indian
Bank
Management and the recognized
federation regarding sorting of
notices in Currency Chests in
Indian Bank
Ex.W5
09.11.2010
Letter I BEA/GEN/36/2010-13 by
Petitioner Union to Indian Bank,
HO:HRM Deptt. Seeking review of
norms for sorting of notes in
Currency Chests
On the Management's side
Ex.No.
Date
Description
Ex M1
—
Indian Bank work flow at currency
chest consequent to provision of
sorting machine
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THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
Ex.M2
—
Extract — manual cash handling
and Management 2005
Ex.M3
—
Currency Sorter — catalog
manufactured by Glory Ltd.
U-600 with 8 Stackers 2 Reject
Stackers and UW-500 with 4
Stackers and
2 Reject Stackers
Ex.M4
10.11.2010
Office Order No. 20 signed "Chest
Officer" "Chief Manager"
Asstt. General Manager and
signed and acknowledgement by
6 staff — work norms
Ex.M5
23.11.2010
Office Order No. 21 — Proceeding
of exercise conducted on
19.11.2010 signed by Chest Officer
"Chief Manager; and Asstt.
General
Manager
—
signed
and
acknowledged by 7 staff
Ex. M6
—
Attendance Register for month of
22-30 November 2010
Ex.M7
10.05.2013
Reserve Bank of India! CEO of all
banks on clean note policy —
enclosing 07.11.2001 letter from
RBI to all Commercial Banks
Ex.M8
—
Currency Chest on chest balance
limit (CBL) Extract of Page 4.17
(Clause-9) Page 4.20, 4.25, 4.26,
4.27, 4.28, 4.29, 4.30, 4.31, 4.36, 4.37,
4.38, 4.39, 4.40 clauses 13.01.4 to
22.5
Ex.M9
—
Statement — Clericals — Transfer
Order under periodical — centre
seniority
Ex.M10
—
Conciliation Failure Report Page -1
only
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New Delhi, the 10th April, 2015
S.O. 774.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D No.63/2014) of the Central
Government Industrial Tribunal Cum Labour Court, Chennai
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
the Post Master General & others, Chennai and their
workman, which was received by the Central Government
on 09/04/2015.
[No. L-42025/03/2015-IR (DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Tuesday, the 31st March, 2015
Present :
K. P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 63/2014
(In the matter of the dispute for adjudication under Sub-
Section 2A of Section-10 of the Industrial Disputes Act,
1947 (as amended by Act-24 of 2010 w.e.f. 15.09.2010).
between the Management of Post Master General and Two
Others and their workman)
BETWEEN
Sri M. Pandiyan
:
1st Party/Petitioner
AND
1.
The Post Master General
:
2nd Party/1st
Chennai City region
Respondent
Chennai-600002
2.
The Director of Postal
:
2nd Party/2nd
Services Chennai City
Respondent
Region Chennai-600002
3.
The Superintendent
:
2nd Party/3rd
of Post Offices
Respondent
Vellore Division
Vellore -632001
Appearance:
For the 1st Party/Petitioner
: M/s Balan Haridas,
Advocates
¹Hkkx IIó[k.M 3(ii)º
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1687
For the 2nd Party/Respondents
: Sri M. Liagatali,
A.S.G.C.
AWARD
This is an Industrial Dispute taken on file under
2(A)(2)(1) of the Industrial Disputes Act, 1947 (as amended
by Act-24 of 2010 w.e.f. 15.09.2010).
1. The averments in the Claim Statement filed by the
petitioner in brief are these:
The petitioner joined the service of the Respondent
as Extra-Departmental Branch Post Master at
Marudavallipalayam Branch Post Office coming
under Virinjipuram Sub-Post Office, Vellore Post
Division on 25.05.1994. The petitioner had been
discharging his duties without room for any
complaint. While so the petitioner was put off from
duty w.e.f. 04.07.2002. A Charge Memo dated
19.03.2003 was issued to the petitioner by the Third
Respondent. In the Charge Memo three charges
were leveled against the petitioner. The First Charge
is that he had mis-utilized funds to the tune of Rs.
1100/- in the RD Account of Smt. Thangammal. The
Second Charge related to mis-utilizing a sum of Rs.
7,500/- from the SB A/c of one Rajammal. The Third
Charge is that certain transactions in the account
of one Nagaraj were not brought on record. The
petitioner was put off from duty from 04.07.2002 to
31.10.2011, the date on which he was removed from
service. A criminal proceeding had been launched
against the petitioner in respect of the allegation
for which disciplinary proceedings were initiated.
The criminal proceedings was tried as CC 31/2003
by the Judicial Magistrate No. 4, Vellore and the
petitioner was acquitted of the charges by judgment
dated 10.08.2007. The Respondent commenced the
departmental enquiry against the petitioner in
respect of Charge Memo dated 19.03.2003 after
conclusion of the criminal proceedings. In the
enquiry, the department dropped the third Charge.
On analyzing the entire materials placed before him
the Enquiry Officer held that Charges 1 and 2 are
not proved and that the Third Charge has been
treated as dropped by the department. Alongwith
the report of the Enquiry Officer forwarded to the
petitioner by the Third Respondent there was a
disagreement note in respect of Charges 1 and 2
and the petitioner had been asked to give his
comments on the disagreement. The petitioner had
submitted his comments stating that disagreement
has been arrived at on the basis of presumption
and assumption. However, without considering the
objection raised by the petitioner the Third
Respondent imposed the punishment of removal
from service on the petitioner by order dated
30.10.2011. The appeal preferred by the petitioner
to the Third Respondent was rejected. The
petitioner has raised Industrial Dispute thereafter.
The conciliation proceedings ended in failure and a
report was submitted to the Government to this
effect. However, the Govt. of India declined to refer
the dispute to the Industrial Tribunal. The petitioner
has made the claim here consequently. None of the
charges against the petitioner are proved in the
enquiry proceedings. There is no justification for
the order removing the petitioner from service. An
order may be passed setting aside the order of the
Third Respondent removing the petitioner from
service and directing the Respondents to reinstate
the petitioner with back wages, continuity of service
and other attendant benefits.
2 The Respondents have filed Counter Statement
contending as below:
The petitioner who was working as Branch Post
Master at Marudavallipalayam has committed
misappropriation of a total amount of Rs. 66,697/. He
was proceeded under Rule-10 of GDS (C&E) Rules,
2001 and on finalization of the case he was awarded
the penalty of removal from service. The claim of the
petitioner that he has been discharging his duties
without any complaint is denied. The fraud committed
by the petitioner was detected on 22.06.2002 while
the Assistant Superintendent of Post Offices, Vellore
East Division was carrying out verification of the
Pass Books. Further enquiries and investigations
revealed that he had committed misappropriation of
a total amount of Rs. 66,697/-. Disciplinary action
was initiated against the petitioner after he was
placed under put off duty on 04.07.2002. While on
duty the petitioner had accepted a total sum of
Rs. 1,100/- on different dates from Thangammal, an
RD Account Holder and he has utilized the said
amount for his personal use and has failed to issue
counterfoils of pay-in-slip to the depositor. He has
accepted Rs. 7,200/- on different dates from Rajammal
for depositing them in her account and failed to
account for them under SB Deposits in the journal of
the Post Office or in the account of the office on the
day of acceptance or on subsequent dates and
utilized the amount for the medical expenses of his
daughter. He failed to issue counterfoils of the pay-
in-slips to the depositor and instead obtained thumb
impression of the depositor on a white paper on three
dates for the deposits and failed to maintain integrity
and devotion to duty. The petitioner also accepted a
total of Rs. 580/- from SB Account Holder, Nagarajan
by five different dates but did not bring the
transactions under the SB Account Journal and
utilized the amount for his personal use. The
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THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
transactions which are the subject matter of the
criminal case are different from those in the
departmental proceedings. Since the disciplinary
authority observed that evidence adduced in the
enquiry proceedings is satisfactory, he has disagreed
with the findings of the Enquiry Officer with reference
to Charges 1 and 2 and this was communicated to
the petitioner for his comments. After considering
the comments of the petitioner, the Disciplinary
Authority had taken the decision to impose the
penalty of removal from service on the petitioner.
The appeal submitted by the petitioner against this
order has been dismissed. The case against the
petitioner was satisfactorily established in the
domestic enquiry. The disciplinary authority has
ordered removal of the petitioner from service based
on sufficient material. The petitioner is not entitled
to any relief. The claim is liable to be dismissed.
3. The petitioner has filed rejoinder denying the
allegations made in the Counter Statement and reiterating
his case in the Claim Statement.
4. The evidence in the case consists of documents
marked as Ext.W1 to Ext.W59. No oral evidence was
adduced on either side. No documents were marked on the
side of the Respondent also.
5. The points for consideration are:
( i) Whether the action of the Third Respondent in
removing the petitioner from service is justified?
(ii) What if any is the relief to which the petitioner is
entitled?
The Points
6. The petitioner who was working as Extra Departmental
Branch Post Master now re-designated as Gramin Dak
Sevak Branch Post Master. The petitioner is alleged to
have committed misappropriation of amounts from the
accounts of three different account holders. He was
removed from service on the basis of the departmental
enquiry conducted against him. Within the date of issue of
charge sheet and the date of removal from service of the
petitioner there was a gap of 9 years, 3 months and
27 days. He was put off from duty on 04.07.2002 and he
was removed from service on 31.10.2011 based on the
charge memo issued on 19.03.2003. In the meanwhile the
criminal case that was initiated against him was tried before
the Judicial Magistrate, Vellore and had ended in acquittal.
Ext.W20 is the copy of the judgment which is in Tamil. It is
claimed by the petitioner that the subject matter of the
criminal case is the matter regarding which charge memo
had been issued and domestic enquiry had been
conducted. It is stated on behalf of the Respondent that
those are totally different transactions. However, both sides
have not cared to place a translated version of the judgment
before this Tribunal. In any case even assuming that the
criminal case and the departmental enquiry are in respect
of the same transactions, acquittal of the criminal case need
not absolve the petitioner from the charges in the domestic
proceedings. Only on the basis of the material available in
the domestic enquiry it is to be decided whether the
petitioner has committed the misconducts alleged against
him by the Charge Memo dated 19.03.2003.
7. The Third Charge against the petitioner has been
dropped by the Enquiry Officer as the Presenting Officer
himself dropped it. It is seen from the order of the
Disciplinary Authority marked as Ext.W14 that in the
absence of the depositor having been examined in the
enquiry proceedings and in the absence of identification
of the concerned Pass Book the article of charge was
dropped by him also. So there is no necessity to consider
the third charge against the petitioner in this ID.
8. The First and Second Charge against the petitioner
as found in the Charge Memo issued to the petitioner runs
like this:
ARTICLE-I
That Sri M. Pandian while working at BPM,
Marudavallipalayam BO a/w Virinjipuram SO 632104
accepted the following amounts on the date noted against
each from Smt. Thangammal, W/o Late Vajiram for
depositing them in her RD Account No. VRM 10691303 but
did not bring them under RD Deposits in BO RD Journal of
M.V. Palayam BO or in the account of the office on the date
of acceptance or on subsequent date contravening the
provisions of Rule-I and Rule 31(2) (iv) 106 of Section I & II
of SB Manual Volume I and Rule 124 and Rule 133(2) of
Rules for BOs and utilized the said amount of Rs. 1,100/-
for his personal use and also failed to grant counterfoils of
pay-in-slip to the depositor.
Date of
Amount in
Date of
Amount
Deposit
Rs.
Deposit
09.07.2002
100.00
24.11.2002
100.00
17.07.2002
200.00
28.12.2002
100.00
24.08.2002
100.00
28.01.2003
100.00
25.09.2002
100.00
14.03.2003
100.00
22.10.2002
100.00
29.04.2003
100.00
Thus he failed to maintain absolute integrity and
devotion to duty as required of him under Rule-21 of Gramin
Dak Sevaks (Conduct and Employment) Rules, 2001
¹Hkkx IIó[k.M 3(ii)º
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1689
ARTICLE-II
That Sri M. Pandian, while working as BPM,
Marudavallipalayam BO a/w Virinjipuram SO 632104 on
23.02.2000, 01.03.2000, 01.00.2000, 21.07.2001, 25.08.2001 and
12.02.2002 had accepted a sum of Rs. 1,500/-, Rs. 1,000/-, Rs.
500/-, Rs. 100/-, Rs. 100/-, Rs. 4,000/-, respectively from
Smt. Rajammal, W/o Late Kullan Gounder, depositor of SB
account no. VRM 1742601 for depositing them in the said
account and failed to account for them under SB deposits
in BO SB Journal of Marudavallipalayam BO or in account
of the office on the date of acceptance or on subsequent
date contravening the provisions of Rule-1 and Rule-
31(2)(iv) of Section-I of SB Manual, Volume-I and Rule 124
and 133(2) of Rules for BOs (Seventh Edition) and utilized
the entire amount of Rs. 7,200/- for the medical expenses of
his daughter and also failed to grant counterfoil of the pay-
in-slips to the depositor instead he obtained the thumb
impression of the depositor in a white paper on three dates
for the above said deposits and thus failed to maintain
absolute integrity and devotion to duty as required of him
under Rule-21 of Gramin Dak Sevaks (Conduct and
Employment) Rules, 2001.
9. It is to be seen whether the above two charges are
proved through the material placed before the Enquiry
Officer by way of oral and documentary evidence. The
concerned account holder, Thangammal has been examined
before the Enquiry Officer as SW1. The statement dated
26.06.2002 purportedly given by Thangammal to ASP
Vellore, East Sub-Division has been marked as a document
during the chief-examination of this witness. She was asked
if the fingerprint in the statement belongs to her and she
has answered that since her name is found written below
the fingerprint it must be her fingerprint. She has stated
that she used to pay Rs. 100/- monthly in the RD Account
that was opened by her at Marudavallipalayam Post Office.
After this a Pass Book was shown to her and she has
stated that if her name is there in the Pass Book it must be
her Pass Book. The witness has stated during her cross-
examination that she is illiterate. Yet the purport of the
statement said to have been given by her was not put to
her before the document was marked. The witness has
stated that she has given her statement to a person having
some impairment in hand. Then she has stated that there
was a person with bald head also alongwith the other one.
She then categorically stated that she does not know
anything about the contents of the statement which is
marked as Ext.SE1. She had then stated in answer to the
question whether she had dictated the contents of Ext.SE1
that it was written by the scribe of the document himself.
She stated that she has put her thumb impression in the
statement without knowing the contents of the same. She
then stated that she had received the entire amount that
she had deposited in the Marudavallipalayam Post Office.
Regarding the Pass Book marked as SE-2, she had stated
that she does not know whether it belongs to her but it
must be if her name is there. During cross-examination a
revised SB Card in the name of the witness was put to her
to bring out that there was difference in the finger
impressions in the two documents. On one occasion she
has stated that the statement was read out to her after it
was recorded. Again she shifted her stand and stated that
she was asked to affix her finger impression and she has
affixed the same. According to her, the statement was
obtained from a spot near her house.
10. SW2 is examined to prove that it was in his presence
the statement of Thangammal, SW1 was recorded. He has
stated that he has signed as a witness to the statement.
However, according to him while he was going home, a
man has asked him to sign as witness for his visiting the
village and accordingly he has signed. He did not make
any enquiry as to why he was made to put his signature.
According to him, Thangammal the alleged giver of the
statement was not in the vicinity at all when he put his
signature. The statement was not written in his presence
also. He does not know who has written the statement.
According to him, there was no one alongwith the person
who made his sign as witness to the statement. He had put
his signature without knowing the reason or knowing
anything about the circumstances under which the
statement was recorded
11. SW5 is the one who has purportedly recorded SE1
statement. The version of SW1 that she was made to sign
a statement by a person having some impairment in hand
was brought to the notice of SW5 to bring in that he is not
the one having any impairment in hand. This witness has
stated that the petitioner was also was there when the
statement was obtained but this is not spoken to by SW1
or SW2. When it was put to this witness that the petitioner
was on duty on the date on which the statement was
allegedly recorded, he has stated that he does not remember
if the petitioner was there. It was also brought out from this
witness that when cent percent verification of the records
were done he was also there and his colleague had recorded
"satisfactory' in many of the documents. These documents
were marked through this witness also.
12. What is the evidence regarding Charge No. 2 which
is in respect of Rajammal examined as SW3? The charge is
that the petitioner had received different amount on
different dates from Rajammal for deposit in her SB Account
but he failed to account for them under SB Deposits in the
SB Journal or in the accounts of the office and utilized the
amounts which comes to a total of Rs. 7,200/- for his own
personal purpose. A Pass Book was shown to SW3-
Rajammal and she had admitted it to be her Pass Book and
it was marked. Then a statement was put to the witness
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THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
and she had stated that it contained her finger impression
and this was also marked. However, during cross-
examination it was revealed that she knew nothing about
the details of the statement purportedly containing her
finger impression. She does not know who recorded the
statement. She stated that it was not recorded in her
presence at all. She does not know who else were there
when she had put her thumb impression in the statement.
She remembered that she had affixed thumb impression
from Marudavallipalayam Post Office. She stated that she
would not be able to identify the person who wrote the
statement. She does not know who asked to put her thumb
impression in the statement.
13. One Suguna examined as SW4 has purportedly
signed as witness to the statement said to be containing
the finger impression of Rajammal. She stated that a person
from the Post Office told her to sign and thus she has put
signature. The person never told her for what purpose she
was made to put her signature. She does not know who
wrote the statement. The statement was not written in her
presence at all. The finger impression in the statement said
to be that of Rajammal was not put in her presence. She
does not know of whose finger impression is there in the
statement. Rajammal was not there at all when she signed
the statement. She does not know anything about the
contents of the statement. It was not read over to all at all.
She stated that since somebody from Post Office had asked
her she has put her signature.
14. SW6 had worked as Mail Overseer in Vellore (West)
Sub-Division. According to him under the orders of ASP
Vellore (East) SD he had accompanied the ASP to
Marudavallipalayam Post Office for verification. According
to him, it was at that time on 16.08.2002 the statement of
Rajammal was recorded. He stated that he is the person
who recorded the statement of Rajammal. When he was
asked if he had written the details on his own accord he
stated that he wrote the same since the depositor is illiterate.
He did not say that it was as dictated by Rajmamal or even
as per the details given by Rajammal he has recorded the
same. According to her, he wrote the statement himself and
read it over to Rajammal and obtained her finger impression.
It was brought to the notice of this witness that Rajammal
had deposed that she does not know anything about the
details in the statement and that the statement was written
by him on his own accord. He agreed with this. He has then
stated that it was not written in the presence of Rajammal
at all. According to him the statement was recorded from a
place near the Branch Post Office. When it was put to the
witness that Rajammal had given evidence that the
statement was not read over to her he agreed with that
also. He does not know who all were there when the
statement was recorded. Even though SW4 Suguna stated
that she has signed as a witness to the statement of
Rajammal though not in the presence of Rajammal and
unaware of the contents, according to SW6 he has not
taken the signature of Suguna at all in the statement of
Rajammal as a witness. He had only written the statement,
obtained the finger impression of Rajammal and handed it
over to ASP. There was no signature of Suguna in the
statement when he handed it over to ASP. He has stated
that the petitioner was not there when the statement was
recorded.
15. The above is the oral evidence available in respect
of the two charges. Even a reading of the evidence would
show that the version of the witnesses are contradictory
to each other. Both account holders concerned are illiterate
and their statements were recorded by somebody else but
there is not even a case for those who recorded the
statements that the details for the statement were given by
the concerned account holders and the statements were
written on the basis of this. The concerned statement givers
do not know anything about the statements. They were
not able to give any details regarding the statements at the
time of evidence. The Presenting Officer did not make any
attempt to elicit from them any details regarding the charges
also.
16. Apart from the inherent lacunae in the oral evidence
regarding the statements which is very basis of the charges,
it has been pointed out by the counsel for the petitioner
that since the statements were not read over to the alleged
statement givers also those could not be accepted. This
was one reason given by the Enquiry Officer to enter a
finding that Charges 1 and 2 are not proved. The
Disciplinary Authority also was aware of the rule that the
statement should have been read over to the witness. In
his disagreement note marked as Ext.W12 he has referred
to Govt. of India Decision No. 23 to Rule 14 of CCS, CCA
Rules where it is mentioned that instead of recording the
evidence of prosecution witnesses denovo, wherever it is
possible the statement of witnesses already recorded
during preliminary investigation may be read over to the
witness at the oral enquiry. On going through the evidence
of Thangammal and Rajammal it could be seen that during
the enquiry proceedings the statements were not read over
to them at all. In fact if they had been read over, these
illiterate witnesses would not have been put in such a
helpless position. During cross-examination on behalf of
the petitioner, the Disciplinary Authority has merely stated
in his disagreement note that the witnesses have stated
that the statements contained their thumb impression.
When they do not know anything about the details of the
statements it is impossible that they would have been able
to identify the thumb impression. It would not have been
possible even for an illiterate person to identify finger
impression. What the witnesses have stated is that they
were made to put their thumb impression to some or other
statement about which they do not know anything. This is
not compliance of the decision to Rule-14 referred to earlier.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1691
17. The counsel for the Respondent has submitted notes
of argument to justify the case. However, except referring
to the disagreement note of the Disciplinary Authority to
be considered as part of the argument he has not given
any aspect which justifies the case of the Respondent. He
has been submitting during his argument that the
documents which are before the Tribunal would show that
the case of the Management is sufficiently established.
18. The documents referred to by the counsel for the
Respondent could now be examined. The documents were
marked in the enquiry proceedings through SW7 who had
retired as Superintendent of Post Offices and had worked
as Assistant Superintendent of Post Offices in Vellore (East)
Sub-Division during the concerned period. The SB Journals
and BO Accounts of the relevant period were marked
through this witness. These are intended to show that
though amounts that were given by Thangammal and
Rajammal, the details of which are shown in the charge
were entered in the concerned Pass Books, the payments
are not reflected in the SB Journal or BO Account. Certainly,
a perusal of the journals and account would show that
though entries of receipt of amounts are there in the Pass
Books which are marked through Thangammal and
Rajammal, there are no corresponding entries in the journals
and the Branch Office Accounts. However, it would not be
possible to decipher misconduct on the part of the petitioner
from this also. It is stated in the statement of imputations
of misconduct in support of Articles of Charge that when
ASP, Vellore East Sub-Division was campaigning at
Annachipalayam Village served by Marudavallipalayam BO
on 22.06.2002 he had collected some of the Pass Books for
verification and had noticed certain signs of having
removed the middle pages of the Pass Books of
Thangammal and Rajammal and replaced by other pages
and having thoroughly checked the table drawer of
Marudavallipalayam BO he had found original sheets with
deposit entries of the Pass Books of Thangammal and
Rajammal. Thus it could be seen that this is the foundation
for the charge itself. However, nothing was stated in the
evidence during the enquiry proceedings regarding the
removal of original sheets from the Pass Books or
replacement of the sheets. Though, SW7 is the one who
worked as Assistant Superintendent of Post Offices, one
does not know if he is the one who detected the removal
and replacement. He has not stated anything about this
during his evidence. He has merely referred to the journals
and the accounts. The statement of Thangammal and
Rajammal were put to this witness and he has stated that
he does not know who were present when the statements
were recorded. No other question was put to the witness
regarding the recording of the statements. One does not
know whether the copies of Pass Books that were marked
through Thangammal and Rajammal are the original ones
or those in which sheets were replaced. In any case what
happened to the other sheets? There is no evidence
regarding all these. Thangammal and Rajammal have merely
stated that if their names are there in the Pass Books those
must belong to them. They, as could be expected, are not in
a position to state anything about the contents of the Pass
Books or about the malpractices carried out in the Pass
Books. It was for the officials who detected the malpractice
to give evidence regarding that. Though there is reference
to it in the statement of imputations of misconduct, they
have kept silence regarding the same during their evidence.
19. It is further stated in the statement of imputations
that the petitioner has admitted his guilt and has given
statement to this effect. The Management has tried to mark
the statements through SW7, the same witness through
whom journals and BO accounts were marked. The witness
had stated that he had obtained the statements from the
petitioner. However, there was stiff opposition from the
petitioner's side to mark the documents and the Enquiry
Officer seems to have accepted the objection and refused
to mark the statements. There was no further attempt on
the part of the Management to prove these vital documents.
20. It has been brought out on cross-examination of
SW7 that SW5 Munuswamy and Vijayakumar examined as
DW1 who were Overseers have done cent percent
verification of all types of Savings Account in
Marudavallipalayam Branch Office during the period from
04.03.2002 to 16.03.2002. SW7 as the superior officer has
signed the report and sent it to his superior officer.
Munuswamy is the one examined to prove the statement
of Rajammal. He has admitted during his examination that
cent percent verification was done by him and DW1 jointly
and the report that everything was "satisfactory' was
recorded by DW1. Neither SW5 nor DW1 were able to
state which were the Pass Books verified by them each.
However, at the time of verification they have not noticed
anything untoward. According to DW1, Pass Books were
collected from depositors and were verified. He has given
the verification result as "satisfactory". He did not notice
any irregularity committed by the petitioner during his visit
to the Post Office. Thus it could be seen that materials are
lacking to prove the charges alleged against the petitioner.
21. It has been argued by the counsel for the Respondent
that in the case of departmental enquiry it is enough that
the charges are substantiated by circumstantial evidence.
The counsel argued that available material is sufficient to
prove the charges. In answer to this, the counsel for the
petitioner has referred to the decision in UNION OF INDIA
AND OTHERS VS. GYAN CHAND CHATTAR reported in
2009 12 SCC 78 where the Apex Court has held that a serious
charge of corruption requires to be proved to the hilt as it
brings civil and criminal consequences upon the employee
concerned. A grave charge of quasi-criminal nature was
required to be proved beyond any shadow of doubt and it
cannot be proved on mere probabilities, it was further held.
1692
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
22. In the present case even if probabilities only are
taken into account the charges against the petitioner could
not be said to be established. The Disciplinary Authority
has found the charges proved without any foundation of
law or facts. It is a case where the Management has
mishandled the case. The petitioner could not be penalized
on such hap hazard and non-existing evidence. I find that
the punishment imposed by the Disciplinary Authority is
without any justification. The petitioner is entitled to be
reinstated in service. However backwages is restricted to
25%.
Accordingly, the Respondents are directed to reinstate
the petitioner in service within a month of the award with
25% back wages, continuity of service and other attendant
benefits. If the back wages are not paid within a month of
the award, the amount will carry interest @ 9% per annum.
An award is passed accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 31st March, 2015)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/1st, 2nd and 3rd
:
None
Management
Documents Marked
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
19.03.2003
Charge Memo
Ex.W2
26.05.2007
Letter to produce additional
documents
Ex.W3
06.06.2007
Reply letter given by the
Respondent
Ex.W4
11.06.2007
Letter to produce additional
documents
Ex.W5
23.07.2007
Reply letter given by the
Respondent
Ex.W6
30.07.2007
Review application
Ex.W7
08.09.2008
Reply letter given by the
Respondent
Ex.W8
-
Enquiry proceedings
Ex.W9
26.04.2011
Presenting Officer's brief
Ex.W10
11.05.2011
Defence brief
Ex.W11
14.05.2011
Enquiry Report
Ex.W12
10.08.2011
Disagreement of Enquiry Report
Ex.W13
09.09.2011
Comments on disagreement of
enquiry report
Ex.W14
31.10.2011
Order of the 3rd Respondent
Ex.W15
21.12.2011
Appeal petition to Appellate
Authority
Ex.W16
05.01.2012
Continuation petition of appeal
Ex.W17
01.06.2012
Letter of personal hearing
Ex.W18
21.06.2012
Enquiry Proceedings
Ex.W19
06.07.2012
Order of the 2nd Respondent
Ex.W20
10.08.2007
Judgement in CC No. 231/2003
Ex.W21
02.10.2012
Petition filed by petitioner before
ACL
Ex.W22
-
Counter filed by Respondent
before ACL
Ex.W23
-
Rejoinder filed by petitioner
before ACL
Ex.W24
Application for opening an
account of Thangammal (DEX-I)
Ex.W25
-
Specimen signature book of M.V.
Palayam (DEX-2)
Ex.W26
-
Verfication report of M.V.
Palayam (DEX-3)
Ex.W27
-
Verfication report of M.V.
Palayam (DEX-4)
Ex.W28
-
Verfication report of M.V.
Palayam (DEX-5)
Ex.W29
-
Verfication report of M.V.
Palayam (DEX-6)
Ex.W30
-
Visit remarks (DEX-7)
Ex.W31
-
Ledger Card of Thangammal
(DEX-8)
Ex.W32
-
Ledger Card of Thangammal
(DEX-9)
ExW33
-
Copy of Ledger Print Out (DEX-
10)
Ex.W34
-
Statement of Thangammal (SEX-
1)
Ex.W35
-
RD Pass Book of Thangammal
(SEX-2)
Ex.W36
-
SB Pass Book of Rajammal (SEX-
3)
Ex.W36(A) -
Statement of Rajammal (SEX-4)
Ex.W37
-
RD Journal
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1693
Ex.W38
-
Branch Office Daily Account on
23.06.2001 (SEX-6)
Ex.W39
-
Branch Office Daily Account on
27.10.2001 (SEX-7)
Ex.W40
-
Branch Office Daily Account on
15.01.2002 (SEX-8)
Ex.W41
-
Branch Office Daily Account on
26.02.2002 (SEX-9)
Ex.W42
-
Branch Office Daily Account on
18.04.2002 (SEX-10)
Ex.W43
-
Branch Office Daily Account on
20.06.2002 (SEX-11)
Ex.W44
-
Branch Office Daily Account on
09.07.2001 (SEX-12)
Ex.W45
-
Branch Office Daily Account on
17.07.2001 (SEX-13)
Ex.W46
-
Branch Office Daily Account on
24.08.2001 (SEX-14)
Ex.W47
-
Branch Office Daily Account on
25.09.2001 (SEX-15)
Ex.W48
-
Branch Office Daily Account on
22.10.2001 (SEX-16)
Ex.W49
-
Branch Office Daily Account on
24.11.2001 (SEX-17)
Ex.W50
-
Branch Office Daily Account on
28.12.2001 (SEX-18)
Ex.W51
-
Branch Office Daily Account on
28.01.2002 (SEX-19)
Ex.W52
-
Branch Office Daily Account on
14.03.2002 (SEX-20)
Ex.W53
-
Branch Office Daily Account on
29.04.2001 (SEX-21)
Ex.W54
-
Branch Office Daily Account on
21.07.2001 (SEX-22)
Ex.W55
-
Branch Office Daily Account on
25.08.2001 (SEX-23)
Ex.W56
-
Branch Office Daily Account on
12.04.2001 (SEX-24)
Ex.W57
-
Branch Office SB Journal (SEX-
25)
Ex.W58
-
Branch Office SB Journal (SEX-
26)
Ex.W59
-
Branch Office Account (SEX-28)
On the Management's side
Ex. No.
Date
Description
Nil
ubZ fnYyh] 10 vizSy] 2015
dk-vk- 775-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dk /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iwokZsÙkj {ks=h; d`f"k
foi.ku fuxe ¼NERAMAC½ xqokgkVh ds izca/kr= 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 ,o Je U;k;ky;
xqokgkVh ds iapkV ¼lanHkZ la[;k 23@2012 vkSj 24@2012½ izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 09@04@2015 dks izkIr gqvk FkkA
[la- ,y&42011@35@2012&vkbZ vkj ¼Mh;w½]
ih-ds- os.kqxksiky] MsLd vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 775.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D Ref No. 23/2012 & 24 of
2012) of the Central Government Industrial Tribunal Cum
Labour Court, Guwahati now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of the North Eastern Regional Agricutural
Marketing Corporation Limited (NERAMAC), Guwahati
and their workmen, which was received by the Central
Government on 09/04/2015.
[No. L-42011/35/2012-IR(DU)]
P.K. VENUGOPAL, Desk Officer
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI, ASSAM
Present: Shri L.C. Dey, M.A., LL./B.
Presiding Officer,
CGIT-cum-Labour Court, Guwahati.
Ref. Case No. 23 of 2012 & 24 of 2012
In the matter of an Industrial Dispute between:-
The workmen represented by the President, NERAMAC
Workers' Union, Tripura State Committee, Tripura.
-Vrs-
The Management of North Eastern RegionalAgricultural
Marketing Corporation Limited, (NERAMAC), Guwahati.
APPEAR ANCE :
For the Workman:
Mr. G.S. Bhattacharjee, Advocate,
Mr. P. Bhattacharjee, Advocate.
For the Management:
Mr.P.K. Tiwari, Advocate.
Mr. R.J. Das, Advocate.
Mr. T. Wangcha, Advocate.
1694
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
Date of Award: 01.04.2015
AWARD
1. This Reference has been initiated on an Industrial
Dispute between the Management of North Eastern
Regional Agricultural Marketing Corporation Limited,
(NERAMAC), Guwahati and their workmen represented
by the President, NERAMAC Workers' Union Tripura State
Committee, Tripura, which was referred by the Ministry of
Labour, Government of India, New Delhi vide their order
No. L-42011/35/2012-IR(DU) dated 12.07.2012. The Schedule
of this Reference is as under.
SCHEDULE
"Whether the action of the management of
NERAMAC by not regularizing the services of 32
Nos. of casual/contingent workers (as per list in
Annexure-A) or not granting equal pay for equal
work at par to the regular employee instantly are
legal and justified? What those group of casual
workers/contingent workers are entitled to?"
It will not be out of context to mention here that the
Ministry of Labour, Government of India vide their order
No. L-42011/35/2012-IR(DU) dated 4.7.2012 referred the
similar dispute raised by the NERAMAC Workers Union
and the same was registered as Reference Case No. 23 of
2012. Simultaneously the instant reference was registered
on receipt of the order of the Ministry of Labour,
Government of India vide their even No. dated 12.7.2012
and both the cases had been proceeding separately.
Thereafter, the matter was brought to the notice of this
Tribunal and hence, at the instance of both the parties
both the reference cases have been amalgamated together
vide order dated 22.4.2013 passed in Ref. Case No. 23 of
2012.
2. The case of the Union namely North Eastern Regional
Agricultural Marketing Corporation Limited (in short
NERAMAC) Workers' Union, Tripura State Committee,
Tripura, in brief, is that altogether 32 casual employees
were appointed in various zonal as well as Head Office and
DFJCP, Nalkata on various dates from 1989 to 2001 against
various posts such as, Typist, Steno, Electrical works and
workers (A/C, worker (MD), worker (Admn), Worker (Gate),
on casual basis, following due procedure for engagement
of those personnel under the said Union as given in the list
of employees in their claim statement. Out of the said 32
casual employees 7 left the organization due to their
personal causes and some of them expired during their
service and hence, 25 employees have been working
without any break continuously with the Organisation full
time basis and with the full satisfaction of the Management.
Some of them completed 22 year of their service in the said
post of casual worker though some facilities were attributed
to them at par to the facility given to the regular employees
such as, CPF, Leave, Gratuity and medical benefit etc.
However, they are getting paltry amount of daily wages
although they are working on full time basis since 1988. In
1990 the Union placed their demand for regularisation of
the casual employees who are working at par with the
regular employees with full satisfactions of the Management
but without any result except assurance. The Board of
Directors had taken the view in the year 2003 that the
demands of regularisation on non formal way; and the said
demand of regularisation of the casual employees though
accepted by the Management in course of various
agreement but all are in vain. At last the Union took the
endeavour to place their demand before the Management
in a formal manner and to agitate the matter for regularisation
of the existing casual workers who were engaged against
the sanctioned post and the Management on several
occasions assured for regularisation of those workers but
failed to materialized the same. Thereafter the Union raised
the dispsute before the ALC(C), Silchar who held a
proceeding after hearing both the parties in the matter and
examining the statements of the parties proposed to hold a
joint discussion/conciliation. Accordingly a Tripartite
meeting was held on 29.11.11 amongst the Management,
Union and the Assistant Labour Commissioner but no
settlement could be arrived at. The Union mentioned that
the Management in their note sheets page-61,62 and 63
which were collected under RTI Act, wherein the
Management clearly stated that the 32 casual labourers
would be regularized on 3 phases as per seniority which is
reproduced below:
"Nsp-61
The committee's recommendation regarding
regularisation of Casual Employees has not be avoided.
Since there are 32 (thirty two) casual employees, it is
suggested that those employees who had put in 10 (ten)
years of service in NERAMAC may be considered suitably
for regularization. As per the committee report, those who
had completed 4 (four) years and above may be regularized.
In this context, casual employees may be regularized in
phased manner keeping in view with the financial burden
on the corporation. 5 (five) employees i.e. 2 (two) casuals
form H.O. and another 3 (three) from FJCP, Nalkata had
been regularized in 1996 (Ref. P & A/14/1995-App-II at
NSP-80). It is suggested that 32 (thirty two) cassual
employees may be regularized for 3 (three) phases as per
their seniority which is furnished below:
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1695
Phas-I
Designation
Date from which
scale
JDA'87.
working
1.
Shri Ashish Acharjee
Worker
28.7.89
1935-1345
2.
Shri Swapan Debnath
Worker
16.8.89
1035-1345
FJCP Nalkata
1.
Shri Somesh Chand
Typist
19.7.89
1135-1707
2.
Shri Thaingya Mog
Worker
13.6.89
1035-1345
3.
Shri Paritosh Bhowmik
Electrician
28.07.89
1095-1475
4.
Shri Babul Ch. Deb
Worker
1.09.89
1035-1345
5.
Ms. Dipti Garh
Worker
1.08.92
1035-1345
6.
Shri Meghmohan Tripura
Worker
14.8.89
1035-1345
(Watch & Ward staff)
(Reinstated)
7.
Shri Rabiu Debbarma
Worker
01.08.89
1035-1345
(Watch & Ward staff)
Phase-II
1.
Ms. Lakshmi Deka
typist (Hindi)
03.07.95
1135-1707
2.
Shri Bijoy Baruah
Worker
13.5.96
1035-1345
ZO/Assam
1.
Shri Ananta Saikia
Worker
3.7.95
1035-1345
2.
Shri R.K. Singh
Typist
2.5.96
1135-1707
3.
Shri Dilip Kalita
Worker
6.5.96
1035-1345
ZO/Agartala
1.
Ms. Seema Debnath
Typist
21.7.94
1135-1707
2.
Shri B.K. Deb
Typist
20.5.96
1135-1707
3.
Shri Kanan Bala Deb
Worker
1.10.94
1035-1345
FJCP, Nalkata
1.
Shri Situ Chakraborthy
Steno/Typist
22.9.94
1135-1707
2.
Shri Manas Bhowmik
Typist
1.2.96
1135-1707
Phase-III
1.
Ms Sukla Goswami
Typist
14.11.96
1135-1707
2.
Shri Haran Medhi
worker
4.11.96
1035-1345
3.
Shri G. Baruah
worker
1.9.99
1035-1345
4.
Shri L.P. Singh
worker
17.11.97
1035-1345
NSP 63
Place of posting
Designation
Date from which working
Scale FDA:89
ZO/Assam
1.
Shri Ramesh Likson
worker
21.9.96
1035-1345
2.
Shri Bijoy Sharma
Worker
5.7.96
1035-1345
3.
Shri Shivnath Barua
Worker
9.8.96
1035-1345
4.
Shri Manik Barman
Worker
21.5.98
1035-1345
5.
Shri Joseph R.H. Zuva
Worker
17.6.99
1035-1345
ZO/Agartala
1.
Shri B. Debnath
Typist
2.7.96
1135-1707
2.
Shri K. Laskar
Worker
12.9.96
1035-1345
3.
Shri Chandan Paul
Worker
14.9.96
1035-1345
4.
Shri Seema Das
Worker
1.8.98
1035-1345
1696
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[PART II—SEC. 3(ii)]
Shri Pralay Sinha has been engaged on 17.06.2003 as
General Worker, but the committee has recommended not
to engage casual worker after the year 2000 for the period
of more than 90 days. In this regard, competent authority
may kindly take a decision. In the corporation, regularization
of above members may be absorbed against the existing
sanctioned posts in a phased manner as proposed above
and the date of effect may kindly be decided by the
competent authority.
Submitted for perusal and decision please.
Manager (P&A)
16.10.2003
Is Sl. 6 and 7 at NSP-62 to be considered from 1989 or
2001
Give clarity as per rule.
Since both Shri Meghmohan Tripura and Shri Rabi
Debbarma had been acquitted by Sessions Court, the date
of their joining at Nalkata is from 14.08.89 to 1.9.89
prospectively will be considered for regularization purpose.
FFO
Can you please address A with relevant to X at NSP…."
The ALC(C), Silchar tried his best to settled the dispute
but failed. Thereafter the matter was referred to the
Government of India, Ministry of Labour who referred the
dispute to this Tribunal for adjudication. Hence, the Union
prayed to hear the parties and after appreciating the
document and record would pass the appropriate order/
orders directing the Management to comply their accepted
recommendation of the Committee dated 16.10.03 as
mentioned in NHP 61 to 63 and to pass any other order/
orders which deem fit and proper for the ends of justice.
The Union by filing an Addl. Claim Statement pleaded
that financial help of the Corporation demonstrating weak
is not true, and the Management tried to suppress the
truth with design to deprive the workmen from their
legitimate demand for regularization. The actual scenario is
that the NERAMAC is running on huge annual profit from
2001 to till 2012-13 financial years which would be clear
from the annual report published by the NERAMAC from
20th Annual Report to 30th Annual Report wherein it has
been shown that the NERAMAC is doing net profit and
the financial structure of NERAMAC is good and stable.
Hence, the statements made by the Management that the
financial health of the Corporation does not permit it to
regulars these casual employees, as it would not be prudent
to incur additional burden by regularizing the service of
these casual employees, are totally false and incorrect. The
Union added that from 1987 to 1996 the similar situated
persons were regularized in phases and it was the normal
practice of the Management to regularize the casual
employees in course of their service on the basis of
experience and eligibility. In support of their contention
the union enclosed a statement showing the workers who
were regularized.
The Management of NERAMAC, on the other hand,
admitting the engagement of around 32 numbers of casual
employees during the period of 1989-2001 and the break up
of these employees, their designation and respective dates
of engagement as shown in the claim statement submitted
by the Union; pleaded that these employees were engaged
without any selection process on purely pick and choose
basis due to administrative exigency at the relevant time
and they were not engaged against any sanctioned post.
In most of the cases the circumstances which necessitated
the engagement of these casual employees ceased to exist
long time ago but on purely humanitarian ground their
engagement was not terminated. It is also mentioned that
as per the instruction of the Government of India,
NERAMAC has to generate its own revenue for meeting
the recurring expenditure, but the Corporation was incurring
loss from its inception. It was referred to the BIFR during
1995-96 as its net worth was eroded because of continuous
loss and as on date it has accumulated loss of Rs. 4.81
crores. In order to ascertaining the feasibility of the
regularization of these casual employees, a Committee
headed by Mr. L. Rahman, General Manager (Finance and
Accounts) was formed, which submitted its report on
22.9.03 recommending the regularization of these casual
employees who had completed 4 years and above in 3
phases as per seniority. The then Managing Director
considered the report of the committee and accepted its
recommendation in principle subject to availability and
requisite financial resources. In view of the poor financial
position the regularization of these casual employees could
not be possible and the then Managing Director of
NERAMAC himself put the matter on hold till the
improvement in the financial condition of the corporation.
It is pleaded by the Management that the regularization of
the casual employees is a matter of policy decision which
can only be taken by the Board of Directors of the
Corporation and hence, the recommendation of the
Committee and acceptance of its report by the Managing
Director can not make it mandatory for the Corporation for
regularization of the service of the casual employees unless
decision to that effect are taken by the Board of Directors.
The Management denied that the casual employees are
working at par with the regular employees and that the said
casual workers were engaged against the sanctioned post.
Their engagement was in a pick and choose manner purely
on contingency basis and exigencies. It is mentioned by
the Management that in FJCP, Nalkata the nature of work is
only seasonal and it consequently remains operational only
for w/e months in a year. Thus the casual employees of
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FJCP, Nalkata remains idle for the rest of year and due to
poor financial health it would not be prudent in incur
additional financial burden by regularizing the service of
those casual employees. The Management also contended
that the casual employees in question are not working
against the sanctioned posts in the Corporation against
which these casual employees can be adjusted. It is also
denied by the management that the continuous engagement
of the casual employees is essential for the smooth running
of the Corporation.
3. Both the parties examined their witnesses and have
proved the documents in order to establish their respective
pleadings. The Union examined altogether 3 witnesses while
the Management examined only one.
Accordingly to the workmen witness No. 1, Shri Manas
Bhowmik, who is working as Store In-Charge (Casual) under
the Management of NERAMAC from 12.2.96 posted at
Nalkata under Dhalai, Tripura District and holding the post
of Vice President, NERAMAC Workers' Union, Tripura State
Committee, Tripura, he is aware of the fact that Union on
several occasions pursued the demand for their
regularization by the Management as the NERAMAC has
the need of essential work force to run the projects and
established in the North Eastern States. He also mentioned
that out of 32 casual employees 7 numbers of them left the
organization due to their personal causes and some of them
expired during in service while the total approved strength
of employees of NERAMAC is more than 266, but presently
only more than 91 to 99 workers are working at NERAMAC
including regular casual and contractual workers; and he
also knows that the NERAMAC is running on profit from
2002 and onwards and they have shortage of manpower to
run smoothly the manufacturing unit at Agartala, Nankata,
Burnihat and Mankachar etc. The W.W. 1 also stated that
he has been working as Store In-Charge from 1996 having
requisite qualification and experience but till date he has
not been regularized although he was assured that he
would be absorbed against regular vacant post which is
existing with the Management. The Management have
regularized 18 casual workers in phase from 1987 to 1996
and hence, being similarly situated persons it is his
legitimate expectation that he might be absorbed in regular
post but no fruitful result has yet come forth. The demand
of their Union was forwarded to the ALC(C), Silchar for
amicable settlement but due to rigid attitude of the
Management the dispute could not be settled and the same
was referred to the Central Government by the ALC(C),
Silchar.
The W.W. 1 again mentioned that initially the
Management accepted the Rahman Committee's report and
the Board of Directors also consented to act as per the
Rahman Committee's report and to regularize the 25 casual
employees in three phases as per NHP 61 to 65 (Note Sheet
Presented before the Assistant Labour Commissioner), but
the Management has taken a stand of maintaining silence
on the matter taking a volt face of prior consent and
decision. He added that he along with other casual
employees are discharging their duties at par with the
regular employees and receiving the meager wages which
are not adequate to maintain their families; and their demand
is legitimate. He has proved the report of the L. Rahman
Committee regarding regularization of the casual
employees; the Note Sheets containing six pages prepared
by the Management regarding regularization of casual
employees on the basis of the L. Rahman Committee report;
the information regarding the regularization of the casual
employees given by the Assistant Manager (A/C), Nankata,
Agartala; the letter from the Assistance Labour
Commissioner (C), Silchar addressed to Managing Director,
NERAMAC, Guwahati regarding regularization of the
casual employees; the recruitment Rules of NERAMAC;
the details of sanctioned strength existing post in
NERAMAC's various units vide Exhibit-1 to Exhibit-6
respectively. He has also proved the Balance Sheet for the
years 2005-06; 2006-07; 2007-08; 2008-09; 2009-10; 2010-11
and 2011-12 vide Exhibit-7 to Exhibit-13 respectively.
In course of his cross-examination the W.W. 1 stated
that he applied for the post of Typist in response to an
advertisement made by NERAMAC and on being called
he appeared for the speed test and viva voca test before
the appointing authority and ultimately he was selected
and appointment letter was issued to him by post and
thereafter he joined on 12.2.96 as Typist. He also mentioned
that about 10 years of his service as Typist he was appointed
as Store In-charge, and considering the volume of works
as well as the position of the strength of the workers in
various Project under NERAMAC as it gathered in course
of his due discharge of duty he felt the need of work force
to run the essential works of the project. He again mentioned
that as Store In-Charge he has to maintain the accounts
regarding spare parts of the machineries, machineries,
furniture, electrical goods, mechanical equipment, etc. of
the Nankata project and all machineries, spare parts are
being used in the project whole year. He also said that he
has been drawing wages on daily basis and enjoying annual
increment, EL,CH (availed against the over time
duties),medical leave etc. and they are drawing medical
allowance annually of Rs. 2400. However, he denied the
suggestion tendered by the learned Advocate for the
Management that he was not given any call letter nor any
interview was held including speed test and viva voce,
that he was appointed on pick and choose manner, that the
NERAMAC is running at profit from 2002 onwards, that
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[PART II—SEC. 3(ii)]
the Management have acquit shortage of manpower to run
its functioning smoothly that he is not discharging his
duty at par with the regular employees from 1996; that the
works of NERAMAC is purely seasonal in nature and
continues for 2 to 3 months in a year; and that he was
never assured by the Management for regularization against
the vacant post.
The W.W. 2, Sri Somesh Chanda being one of the
members of the claimant Union posted at Agartala under
the Management of NERAMAC, stated that on several
occasions the Union persuaded the demand for
regularization that the Management has the need for
essential work force to run the project and the
establishment in the North Eastern States. He was working
under the Management since 1989 onwards including other
32 casual employees. Out of whom 7 numbers of the
employees left the organization due to their personal causes
and some of them expired during in service. He said that
total project strength of employees of NERAMAC is more
than 266 but at present only not more than 91 to 92 workers
are working in NERAMAC including regular and
contractual workers and that their organization is running
on profit from 2002 onwards. He added that he has been
working as Accounts Assistant under NERAMAC with
full integrity, honesty and devotion and discharging his
duty at par with the regular employees from 1989 having
the requisite qualification but he has not been regularized
in spite of assurance for his absorption in the regular vacant
post given on different occasions. The W.W.2 again
supporting the statement of W.W. 1, deposed that the
Management of NERAMAC already regularized 18 casual
workers on phases and as such, being similarly situated
persons which is his legitimate expectation that he might
be absorbed on regular post, but till date no fruitful result
has come forth. He added that the Management initially
accepted the Rahman Committee Report and the Board of
Directors also consented to act as per the Rahman
Committee report regarding regularization 25 employees in
three phases as per NHP 62 to 65 (Note Sheets presented
before the Assistant Labour Commissioner) but
subsequently the Management remained silent on the
matter as such, he felt that the demand of their Union is
their legitimate right of survival.
In course of his cross-examination the W.W. 2
mentioned that originally he was working under National
Building Construction Corporation as Typist and the said
National Building Construction Corporation was assigned
the job of construction of building owned by NERAMAC
and on completion of works he left the project. In the mean
time the NERAMAC made an advertisement for the post of
typist and finding no suitable person he was called by a
letter by the Office of the NERAMAC and appointed him
as typist (casual) he also mentioned that after 7 years of
his service as Typist he was promoted to the post of
Account Assistant (casual). He said that he has got
appointment letter which he has not produced before the
Court. From the verbal statement as well as the assurance
given by their Senior Officers of the Management he came
know that there are need of workers to run the essential
works of the Project. He categorically denied the suggestion
advanced by the Management that NERAMAC was not
running on profit, that there was no need for engaging the
workers afresh to run the work of the project smoothly;
that the casual workers were entrusted with the exigency
jobs as and when required; and that the report submitted
by the L. Rahman Committee was not accepted by the Board
of Directors of NERAMAC.
The W.W.3, Mrs. Laxmi Deka Sikdar who being the
member of the claimant union working under the
Management of NERAMAC at Guwahati as Typist since
1995 made similar statements those adduced by the W.W.
1 & W.W. 2. She has submitted documents on behalf of the
Union vide Exhibit-14, the application for appointment
submitted by the workman Manash Bhowmik; Exhibit-15,
the call letter issued by the Manager, NERAMAC to the
workman Manash Bhowmik for appearing in the interview;
the Exhibit-16 the appointment letter issued by the Manager
Administration, FJCP, NERAMAC, Nalkhata; Exhibit-17
engagement order dated 22.9.94 issued by the Management
in favour of the workman Situ Chakrabarty; Exhibit-18 is
the joining report submitted by Situ Chakrabarty; Exhibit-
19, engagement order dated 29.12.94 issued by the
Management in favour of the workman Situ Chakrabarty;
Exhibit-20 the office order dated 19.8.94 regarding
engagement of workman Miss Sima Debnath; Exhibit-21,
the engagement order dated 19.7.96 issued by the
Management in favour of the workman Bikram Debnath;
Exhibit-22 the order dated 14.8.89 issued by the Management
regarding engagement of the workman Megamohan Tripura
as Security Assistant; Exhibit-23 the engagement order
dated 8.3.90 issued in favour of the workman Rabi Deb
Barma; Exhibit-24 the engagement order dated 30.12.93
issued by the Management in favour of workman Dipti
Garh; Exhibit-25 is the engagement order dated 8.3.90 issued
by the Management in favour of the workman Babul
Ch. Deb; Exhibit-26 is the engagement order dated 14.8.89
issued by the Management in favour of the workman
Somesh Chandra; Exhibit-27 is the order of engagement
issued by the Management of favour of the workman
Chandan Paul; Exhibit-28 is an official communication issued
by the CMD of NERAMAC asking the workman Swapan
Debnath to go to Agartala on official duty and by this
letter Sri Swapan Debnath was entrusted to work in the
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Zonal Office, Agartala instead of sending him back to
Calcutta and he was allowed to work in office for a monthly
pay amounting to Rs. 750/- on daily wage basis; Exhibit-29
is a office order dated 28.7.89 issued by the Management
regarding appointment of Sri Ashish Acharjee as night
Guard; Exhibit-30 is the office order dated 11.11.87 issued
by the Management appointed Sri Kiran Bala Deb as Casual
Worker; Exhibit-31 is a certificate issued by the
Management in favour of the workman Paritosh Bhowmik
regarding his experience as Electrician on casual basis;
Exhibit-32 is No Objection Certificate issued by the
management in favour of the workman Smti Laxmi Deka
expressing their no objection to register her name in the
Employment Exchange; Exhibit-33 is the certificate issued
by the management stating that the workman Laxmi Deka
has been working in their office as Hindi Typist/Assistant
on daily wage basis.
During her cross examination the W.W.3 stated that in
the year 2004 the Management completed all the process
for regularisation of the employees in their establishment
and a list has already been prepared and approved but it
was not published and she has been translating all the
Annual Reports and Balance Sheets of the NERAMAC
since after her joining till date and from this document she
came to know that the Management is running on profit.
She also added that since her joining till 2008 she was
entrusted ofter to the works regarding administration and
from the record she came to know that there is shortage of
staff in their establishment; and that in course of meeting
between the Union and the Management she came to know
that the Management has accepted the Rahman
Committee's Report. She also denied the suggestion
tendered by the Management that the Exhibit-14, Exhibit-
15, Exhibit-20, Exhibit-22, Exhibit-23, Exhibit-28, Exhibit-29,
Exhibit-32, and Exhibit-33 are not issued by the
Management.
4. The Management examined one witness Sri K.C.
Sasidhara Kurup, the General Manager (Marketing) of
NERAMAC Ltd (MW.1) who stated that during the year
1989 to 1999 around 32 numbers of casual employees were
engaged by the NERAMAC and out of the said 32 casual
employees 8 were engaged in 1989, 1 in the year 1992, 3 in
the year 1994, 2 in the year 1995, 13 in the year 1996, 2 in the
year 1997, 2 in the year 1998, and 1 in the year 1999 on
contingency basis. Out of these casual employees 9 were
engaged as Typist and 1 was given the work of Electrician
and the remaining 22 casual employees were engaged as
manual labours who undertaking various duties of Grade-
IV employees like security, watch and ward and other
ancillary works like that of attendants and peons. But the
nature of works for which these employees were engaged
was not perennial, and they were engaged depending upon
the nature of scheme of the Government of India and the
additional works which would be undertaken by the
Corporation during the aforesaid period. It is mentioned
that the engagement of these employees was not against
any sanctioned post, nor selection process under the Rules
were followed in engaging them, but was purely on
administrative exigencies which had arisen on account of
additional works. The MW.1 further stated that as per the
instruction of the Government of India, the Corporation is
to generate its own revenue for meeting the recurring
expenses and during the period from 2003 to 2007 due to
various factors of economies of scale the Corporation
incurred losses and it was reduced to a loss marketing unit
accumulating loss of Rs. 4.81 crores for which the
Corporation was even referred to BIFR. In the year 2003
when the Corporation was reduced to a loss making unit
and its financial fortunes were showing a downward trend.
The management of the Corporation dealt with the issue of
regularisation of casual employees and in this regard a
Committee headed by Mr. L. Rahman, GM (F & A) was
constituted which submitted its report on 30.9.03. In its
report the Committee recommended the regularisation of
these casual labourer for NERAMAC who have completed
4 years and even in 3 phases as per seniority. However the
Committee in its report subjected such regularisation to
the availability of requisite financial resources. Accordingly
the then Managing Director considered the report and
accepted its recommendation in principle but the
regularisation of casual employees was not done due to
poor financial state of Corporation. It is added that
regularisation is a matter of policy decision which can be
taken by the Board of Directors of the Corporation and
hence, the recommendation of the Committee and
acceptance of its report by the Managing Director can not
ipso facto make it mandatory for the Corporation to
regularize the service fo the casual employees unless
decision to this effect are taken by the Board of Directors.
The MW.1 again mentioned that out of the said 32 casual
employees 6 have already left the Corporation and the
remaining 26 are spread over in the various offices of the
Corporation; and 8 out of the said 26 casual employees in
FJCP, Nalkata normally remain without work in a long time
because the nature of work therein is only seasonal as the
Nalkata Project is remain in operational only for 2-3 months
in a year. Likewise, the work of remaining casual employees
of the other units is also not perennial. Even though the
Corporation is continuing the service of these casual
employees purely on humanitarian ground and as such,
the Corporation can ill afford to regularize their services. In
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[PART II—SEC. 3(ii)]
view of the poor financial health of the Corporation it would
not be prudent to incur the additional financial burden by
regularisation of the service of these casual employees. He
has proved the order dt. 25.6.2014 issued by the Company
Secretary & I/C P & A authorizing him to depose in this
reference case vide Exhibit-A.
During his cross-examination the MW.1 stated that he
has been working in NERAMAC for last 30 years and
initially he joined there as Secretary to the Chairman-cum-
MD, NERAMAC. He availed promotion to the present post
after getting 2 promotions. The workers of NERAMAC are
availing medical reimbursement to the extent upto Rs. 2400/-
per year and the Managing Director, NERAMAC is also
availing medical reimbursement at the same rate. He aslo
said that the casual worker involved in this case are availing
medical leave, gratuity, annual increment at per with the
regular employees and as regards annual leave the workers
are getting annual leave one day in every 20 working days.
He denied the suggestion tendered by the learned counsel
for the workman that the statement made in para-2 in his
evidence on Affidavit that out of the casual employees 9
were engaged as Typist and 1 as Electrician, and the
remaining 22 casual employees were engaged as manual
labours for undertaking various duties of grade-IV
employees like security, watch & ward and other ancillary
works like that of attendants and peons, concludes that
the nature of these employees are at par with the work of
regular employees and that the nature of work of the said
casual labours is perennial. He also denied that the present
workmen performing their duties at par with the regular
employees as they were not retrenched, they became part
and parcel of the NERAMAC and without them NERAMAC
can not run its function. MW1 further denied the
suggestion of the Union that the present workmen were
engaged against the sanctioned post and that selection
process was followed in engaging them; and that during
the period 2003 to 2007 the Corporation incurred losses
and it was reduced to a loss making Unit and as on date its
accumulated loss of Rs. 4.81 Crores. He also said that since
they have not submitted any document in support of this
statement he can not say whether the subsidies received
from the Government of India by the NERAMAC till date
has been submitted or not. He further denied that the profit
and loss account submitted by the NERAMAC vide
Exhibit-7 to Exhibit-13 for the period 2005-06 to 2012-13 are
prepared in collusion with the management of NERAMAC
and private Auditors, and that due to preparation of the
said collusive profit and loss statement the CAG has passed
several comments on different occasion. The Management
withness concerned added that prior to reference to the
BIFR (Board of Industrial and Financial Reconstruction)
the NERAMA never declared any closure or lay off even
after that also there was no occasion of lay off or closure.
He admitted that one of the casual employees namely
Shyamal Chandra Dey was regularized in the year 2002 to
the post of Junior Assistant to NERAMAC even after
reference to the BIFR and altogether 18 numbers of
employees were regularized from 1987 to 1996. However,
he denied the suggestion that since they are regularizing
the employees as mentioned above even after reference to
the BIFR their Industry is not a sick industry. The MW.1
further mentioned that the Management was represented
by their authorized persons before the L. Rahman Committee
and he was one of the members of Mr. L. Rahman Committee.
However, he denied the suggestion that the said L. Rahman
Committee has passed its report after consulting the records
of the management and financial aspects of the Industry
as well as the information/documents submitted by the
Union. He also admitted that he being one of the members
of the Committee he signed on every page of the report of
the Committee as he agreed to the same; and at the time of
preparation of the report of the Committee they have
considered the recent judgement pronounced by various
Court including the Apex Court regarding regularistation
of the casual employees. He also said that the Exhibit-2
(6 pages), the Note Sheets Pages from 61 to 66 which were
processed by the Senior Manager (P & A), Mr. D. Sarma
and submitted the same to the Executive Director who again
put up the same before the General Manager (F & A), who
in his turn put up the same before the Executive Director
who again put up the same before the Managing Director
and thereafter the said matter was discussed between the
Managing Director and the General Manager of the
NERAMAC and then it was sent to the Executive Director
who again re-marked the same to the Managing Director
and lastly the Managing Director approved the proposal
marked at the portion of "X" NHP page-61. He again denied
the suggestion that the Management of NERAMAC has
taken the decision regarding regularisation of the present
casual employees in consultation with the Exhibit-1 i.e. the
report of the Rahman Committee, financial position of the
Industry feasibility of regularisation of casual employees
and the nature of job undertaken by the casual employees;
and that after acceptance of the recommendation of the
L. Rahman Committee by the Managment his statement
"since regularisation of the casual employees was subject
to the available requisite financial resources in view of the
poor financial state of the Corporation the regularisation
of these casual employees would not be possible" is false.
The M.W. 1 admitted that the word "discussed" as
mentioned page-66 of NHP 65 means discussion between
General Manager and the Managing Director; but he denied
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the suggestion that the word 'discussed' as mentioned in
66 of NHP 65 includes the discussion between the
Management and the Board of Directors. He said that as
per document marked as Exhibit-6 the existing strength of
sanctioned post of NERAMAC is 272 and the existing
position of the regular appointees is 42 and the present
casual employees 26 i.e. total 68 numbers.
5. Both the parties submitted their written arguments.
They also made oral arguments at length. I have gone
through the entire C.R. along with the case record and the
written agrument submitted by both the parties.
Mr. G.S. Bhattacharjee, learned Advocate for the
NERAMAC workers Union, Tripura State Committee,
Tripura, submitted that the NERAMAC is a Central
Government Organisation being 100% financed by the
Central Government, having its Board of Directors duly
empowered by the Central Government to manage and run
the organization. The NERAMAC have spread their
established at different zones in North Eastern States
wherein 32 casual employees under various zones, as well
as Head Office and DFJP, Nalkata were appointed at different
dates from 1989 to 2001 against the sanctioned post such
as Typist/Steno, Electrician, and some of them were
appointed to discharge the works of A/C MD,
Administration Class-IV employee, Night Guards etc.
following the due procedure i.e. interview the written test,
type writing test as required against the posts. Among the
said 32 casual employees some of them have expired and
some of them have left the organization and only 25 casual
employees are now contesting this case; and the said 25
workers were working without any break in service
continuously still with the organization full time basis and
to the full satisfaction of the Management at par with the
regular employees. Some of these workmen completed 22
years of their services in their respective posts and some
facilities were attributed to them at par with those given to
the regular employees such as CPF. Leave, Gratuity and
legal benefit, etc. but they are deprived of regular pay scale
though some of them are holding the charge of cash and
authorized signatory of cheques as DDO of the various
units of the NERAMAC since 1989 to 2001.
Mr. Bhattacharjee, further submitted that the sanctioned
strength of the posts in NERAMAC is 272 and at present
altogether 42 numbers of workers including the said 25
casual workers who are performing the perennial nature of
work at par with the regular employees, in the organization.
He also mentioned that the Union raised their demand for
regularisation from the year 1990 and in the year 2003 the
Management placed the matter of regularisation before the
L. Rahman Committee for scrutiny the entire facts and
circumstances and also the financial involvement on the
issue for examining the viability of the demand for
regularisation. Accordingly the learned L. Rahman
Committee after hearing both the sides submitted its report
recommending regularisation of all the employees
working on daily wage basis prior to 2000 in phases.
Mr. Bhattacharjee, learned Advocate for the Union added
that the management after having the report accepted the
same and necessary notes were put up before the various
authorities of the managment and all consented to the said
notes putting their signatures for regularisation of 25 casual
employees, and lastly financial mathematics were prepared
for involvement of the fund and the matter was placed
before the Board of Directors which accepted the proposal
and sanctioned the proposal for regularisation vide note
sheet page Nos. 61-66 marked as Exhibit-2. But the
management did not regularize the said casual employees.
Learned Advocate for the Union again pointed out that
the stand of the management that the aforementioned
casual workers have no right to be regularized as they are
employed seasonally, they are not doing the works of
regular employees, that they were not appointed by the
Management following the due process of appointment
but only engaged for temporary purposes of the
management, that the said workers were not appointed
against the sanctioned posts, that the financial capacity of
the management is not feavourable for regularisation of
these workmen; and that the management never accepted
the proposal of regularisation of the said workers; and that
the Board of Directors did not allow the same is not at all
true and is against the principles of law as well as the
decision of the Hon'ble Apex Court on the matter. In support
of his contention Mr. Bhattacharjee, Learned Advocate for
the Union relied upon the case of Secretary, State of
Karnataka and Ors—vrs—Umadevi(3) and Ors. reported
in (2006) 4 SCC. Mr. Bhattacharjee, Learned Advocate for
the Union also referred the ratio of the cases in (1) Ajmeer
Vidyut Vitaran Nigam and Ors—vrs—Robin Kr. Sainee and
Rajasthan State Electricity Board and Ors.—vrs—Shyamlal
reported in (2010) 15 SCC 17, (3) Secretary to the
Government, School Education Department, Chennai—
vrs—R. Govindaswami and Ors. published in (2014) 4 SCC
769 and (4) in State of Karnataka and Ors.—vrs M.L. Kesari
and Ors. published in (2010) 9 SCC 247.
6. Mr. R.J. Das. Learned Advocate for the management
of NERAMAC submitted that the NERAMAC is a central
government organization which is managed and controlled
by the Board of Directors appointed by the government
and the said organization was formed with the objective to
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THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
purchase the marketable surplus fruits and vegetables in
the North Eastern Region to the maximum possible extent
through a network of centers and to make necessary
arrangement for its processing and marketing; under the
administrative control of Ministry of Development of North
Eastern Region; and as per the instruction of the Government
of India; the Corporation has to generate its own revenue
for meeting the recurring expenses. He added that the
NERAMAC engaged 32 numbers of casual employees and
out of the said 32 employees 9 were engaged as Typists and
one was given the work of Electrician and remaining 22 casual
employees were engaged as manual labourers for
undertaking various duties of Grade-IV employees like
Security, watch & ward and other ancillary works like that of
porter and peons; but the nature of work for which those
casual employees were engaged was not perennial and they
were engaged depending upon the nature of scheme of the
Government of India and the additional works which were
to be undertake by the NERAMAC. He also mentioned that
there employees were not engaged against any sanctioned
post, nor any selection process under the rules was followed.
Mr. Das, Learned Advocate for the Management further
stated that the above mentioned casual employees placed
their demand for regularisation since long and in the year
2003 the Management constituted a committee to took into
the demand for regularisation of the said casual employees,
headed by Mr. L. Rahman. According the L. Rahman
Committee submitted its report vide it letter dated 22.9.2003
recommending that all the workers on daily basis prior to
2000 may be regularized and the service of those, if any, who
joined after 2000 may be disposed off with immediate effect
no workman be engaged on casual basis for duration of
more that 90 days. The then Managing Director on receipt
of the recommendation of the L.R. Committee, considered
the report and accepted its recommendation in principle.
But in view of poor financial state of the Corporation the
regularisation of these casual employees could not be
possible. The then Managing Director of the Corporation
himself put the matter on hold till the improvement of the
financial condition of the Corporation, and hence, the
recommendation of the Committee was not given effect too.
Mr. Das, Learned Advocate for the Management pointed
out that only 14 out of the 25 casual employees have
produced their engagement letter vide Exhibit-14 to Exhibit-
31; and the remaining claimants have not been able to
produce their appointment letters. He also submitted that
the Union claiming regularisation of the said 25 casual
employees on the basis of approval to the recommendation
of the Mr. L. Rahman Committee by the Managing Director
of NERAMAC; but the then M.D. mooted the proposal for
regularisation in phase manner but with a rider that the
regularisation be effected keeping in view with the financial
burden on the NERAMAC. But the Union has not been
able to prove that out of the total sanctioned strength of 242
the existing position is 42 excluding the casual employees;
and that the NERAMAC has financial capacity and they can
regularize the said 25 casual employees in phase for smooth
running of the Units, the Union also failed to establish that
they were appointed following the due procedure of selection
and the appointment was made against the sanctioned post.
As such, the appointment of the said casual workers is illegal
and cannot be regularized. Mr. Das, Learned Advocate also
pleaded that exhibit-2. i.e. the NSP 61 demonstrate the then
Managing Director, NERAMAC accepted the
recommendation of the L. Rahman Committee in principle
and mooted a proposal for regularisation of casual employees
in a phase manner but with a rider that the regularisation be
effected keeping in view with the financial burden of the
NERAMAC with the following endrosement.
"In this context, casual employees may be regularized
in phase manner keeping in view with the financial
burden on the corporation."
NSP 65 which is part of the Exhibit-2 wherein it is quoted.
"Keeping in view the above aspect, the competent
authority may consider to regularse the casual
employees of the Corporation in a phased manner."
Thus the then Managing Director along with some other
officials/employees had discussed the recommendation of
the L. Rahman Committee and its practical implementation
and the said reflection in the Exhibit-2 (NSP 61-NSP 65) can
not replace the statutory requirement of passing a Board
resolution in a prescribed manner for taking a decision by
the Board of Directors on behalf of the Company. As such,
the recommendation of the said in house Committee can not
vest any legal right of the 25 casual employees.
Mr. R. J. Das again pointed out that the NERAMAC is
running on loss and it was referred to the Board of Industrial
and Financial Reconstruction. Further the audited balance
report for the year 2003 to 2007 reflects that due to various
factors of economics of scale, NERAMAC incurred losses
and an on date it has accumulated loss of 4.81 crores which
is evident from the document marked as Exhibit-7 to Exhibit-
13 which shows the deteriorating financial health of the
Corporation. As the engagement of the said casual workers
was not done under due procedure of law in conformity with
the recruitment rules of NERAMAC and as they were
engaged only in a pick and choose manner to perform the
job which were not perennial in nature, but they were
engaged in times of exigency and hence, the engagement
was not against any sanctioned post, as such, they cannot
claim the right of regularisation as it would violative of
Articles 14 and 16 of the Constitution. Mr. Das placed reliance
in Umadevi (3) case (2006) 4 SCC 1, Hindustan Aeronautics
Ltd.—vrs—BB Singh (2007) 6 SCC 207. He also mentioned
that this Court may not take a sympathetic view while
deciding the claim of the workers and in this connection he
has draw my attention to the case of Executive Engineer-vrs-
Digam Bara Rao reported in (2004) 8 SCC 262.
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7. In order to arrive at a just and reasonable decision of
this dispute the following pertinent questions are required
to be answered.
(i) Whether the appointment of the workmen
involved in this reference was illegal?
(ii) Whether the said workmen were appointed
against the sanctioned posts?
(iii) That the workmen are discharging similar nature
of works done by the regular employees of the
Management.?
(iv) Whether the financial position of the NERAMAC
does not permit regularisation of the workmen
raising the dispute.
The evidence of the workmen witness No. 1, shows that
he has been discharging his duties under the Management
of NERAMAC with full integrity, devotion and honesty at
par with the regular employees since 1996 having the
requisite qualification and experience and he was working
as Store Incharge under NERAMAC at Nalkhata and he
applied for the post of Typist in response to an
advertisement by the NERAMAC; and that he was called
for speed test as well as viva-voce test. Accordingly the
faced both the speed test and viva-voce test before the
appointing authority and he joined as typist & after
10 years of his continuous service he was appointed as
Store-In-charge by the NERAMAC and he was performing
the duties at par with those discharge by the regular
employees since 1996 and has been enjoying EL, Casual
Holiday, which can be availed against over time duty,
medical leave, etc. They are also drawing medical allowance
annually @ 2400/- and getting annual increment.
The evidence of W.W.2, one of the casual employees
working as Account Assistant under the NERAMAC since
19.7.89 shows that he was appointed in 1989 on the basis
of an advertisement of NERAMAC, having requisite
qualification (B.Com) and experience but till date he was
not regularized although the Management, on several
occasion assured for his regularisation against the existing
vacant post. He further said that the management already
regularized 18 casual workers in phases since 1987 to 1996;
and that the management initially accepted the L.R.
Committee report and the Board of Directors also consented
to act as per the L.R. Committee's report and to regularize
the 25 casual employees in 3 phases as per the NSP 62 to 65
(Exhibit-2) and 7 years of his due discharge of his duty he
was promoted to the post of Account Assistant. Thus it is
clear that the evidence of the W.W.1 & W.W.2 is
corroborating as regards their claim that the said 25 casual
employees were appointed by the Management after
holding interview both written and viva-voce. Although
they could not produce the appointment letters in respect
of all the claimants, their testimony is found untwisted &
unshaken in course of their cross-examination. Further, plea
of the Union that against 272 permanent vacancy of
NERAMAC only 68 employees including the said 25 casual
employees are working at present is admitted by the
Management vide Exhibit-6.
8. From the evidence of management witness No. 1, it is
found admitted fact that from the year 1989 to 1999, 32
numbers of casual employees were engaged by the
NERAMAC as casual employees on contingency basis in
various capacities from time to time; and in the year 2003
the management in order to deal with the issue of
regularisation of these casual employees constituted
Mr. L.R. Committee for examining the matter. It was also
admitted that the Commitee headed by Mr. L. R Rahman,
General Manager, (F & A) submitted his report on 30.9.03
recommending regularisation of these casual employees
who had completed 4 years and above in three phases as
per seniority and the recommendation of the said committee
was accepted by the Managing Director. The M.W. 1 also
admitted that the said casual workers are getting medical
reimbursement to the extent upto Rs. 2400/- per year and
they are also availing medical leave, gratuity, annual
increment, Government holidays and the annual leave at
par with the regular employees. He also admitted that the
said casual employees were engaged in various jobs as
Typist, Electrician, Security, Watch and Ward, Attendants
and Peons and the nature of these employees are at par
with the works of regular employees, although he denied
that the nature of the work of the said employees is not
perennial. He further admitted that one of the casual
employees namely Sri Shyamal Ch. Dey has been
regularized in the year 2002 to the post of Junior Assistant
and even after reference to the Board of Industry and
Financial Reconstruction (BIFR) altogether 18 employees
of NERAMAC were regularized.
In Secretary, State of Karnataka and Ors.vrs-Umadevi
(3) and others reported in (2006) 4 SCC 1, the Hon'ble
Supreme Court has been pleased to examine the matter in
details, regarding regularisation of temporary, contractual,
casual, daily wage or ad-hoc employees and it was held :
"merely because an employee had continued under
cover of an order of the Court, under "litigious
employment" or had been continued beyond the term
of his appointment by the State or its
instrumentalities, he would not be entitled to any
right to be absorbed or made permanent in service,
merely on the strength of such continuance, if the
original appointment was not made by following a
due process of selection as envisaged by the relevant
rules—It is further not open to the court to prevent
regular recruitment at the instance of such
employees—Unsustainability of claim to
permanence on basis of long continuance in irregular
or illegal public employment."
* * * * * *
"Union and State Government and their
instrumentalities directed to set in motion the process
for regular recruitment in cases where temporary or
daily-wagers were employed against vacant
sanctioned posts, within six months of the date of
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[PART II—SEC. 3(ii)]
this judgment. Further, cases of irregular
appointments (not illegal appointment) of duly
qualified persons in duly sanctioned vacant posts,
who had continued to work for ten year or more, but
without the intervention of orders of courts or
tribunals, may have to be considered for
regularisation on merits in light of the principles laid
down in this case, as a one-time measure, within six
months of the date of this judgment"* * * * * * * *
* * * "Equality of opportunity is the hallmark, and
the Constitution has provided also for affirmative
action to ensure that unequals are not treated as
equals. Thus, any public employment has to be in
terms of the constitutional scheme, Central and State
Governments have made Acts, rules and regulations
for implementing the guarantees provided under
Arts. 14,16,309,315,320 and 335 and any recruitment
to service in the Union, States or their instrumentalities
is governed by such Acts, rules and regulations.
Due to the mandate of Art, 309 the entire process of
recruitment for services is controlled by detailed
procedures which specify necessary qualifications,
mode of appointment, etc."
The Hon'ble Supreme Court also observed that "it is
necessary to keep in mind the distinction between
regularisation and conferment of permanence in
service jurisprudence. The words " regular" or
"regularisation" do not connote permanence and can
not be construed so as to convey an idea of the
nature of tenure of appointment; they are terms
calculated to condone any procedural irregularities
and are meant to cure only such defects as are
attributable to methodology followed in making the
appointments."
Subsequently the Hon'ble Apex Court in U.P. State
Electricity Board -vrs-Pooran Chandra Pandey and
Ors reported in (2007) 11 SCC 92 held that "Earlier,
the Electricity Board had taken decision to regularize
the services of its employees working on daily wage
basis from before 4-5-1990 on the existing vacant posts,
the petitioner also claiming regularisation on the
ground that they are working in the Society from
before 4-5-1990 and their services stood transferred
to the Electricity Board, the benefit can not be ignored
and hence, regularisationis justified on the basis of
Article 14 when they have put long period of service
(about 22 years)".
9. In the instant case the Union has been able to
establish that they were appointed by the Management of
NERAMAC as per the offer for appointment of the casual
employees was made by the Management and the
witnesses concerned have categorically mentioned that
their selection test was held and appointment letters were
also issued to them vide Exhibit-14, Exhibit-15, Exhibit-16,
Exhibit-17, Exhibit-18, Exhibit-19 to Exhibit-27, Exhibit-29
and Exhibit-30. Exhibit-6 (admitted by the management)
and that the sanctioned strength of NERAMAC is 272
against which only 42 employees are working at present as
it is proved vide Exhibit-6 on admission by the Management,
which establishes the fact that against strength of
sanctioned posts of 272 of NERAMAC the regular
appointees are 42. Thus it is crystal clear that although the
Union failed to produce the advertisement for appointment
to the post of the said casual employees made by the
NERAMAC and the appointment letter in respect of the all
the casual employees, for argument shake if it is accepted
that the appointment of the present workmen was made
without following the regular process and according to the
law, rules and regulation it cannot be said legal but the
facts & circumstances as mentioned above made it very
clear that the appointment is irregular. Such irregularities
are curable in view of the ratio of the Umadevi (3) case. It is
also found that the sanctioned strength of the NERAMAC
is 272 and altogether 42 regular employes are working. Thus
there is vacant sanctioned posts of 230 are lying.
The Hon'ble Apex Court in State of Karnataka and Ors.-
vrs-M.L. Kesari and Ors. reported in (2010) 9 SC 247 decided
that "only irregular appointees are entitled to
regularisation in terms of para 53 of Umadevi (3) case".
The evidence on records shows that the present workers
have been working in NERMAC since long period of more
that 22 years as Typist, Electrician, Accounts Assistants,
Grade-IV employees, Attendants, Security personnel, Porter
etc. and some of them have been promoted to Store Keeper,
Accountants etc. It is also found that they are rendering
their services without any interruption, and that some of
the casual employees were regularized. It is also found that
those casual employees are doing the job of perennial
nature at per with the regular employees of the NERAMAC.
As such it is clear that the casual employees are not working
to meet the urgency, seasonal, exigency & in need but
continuously for such a long period as regular employees.
10. In view of my above discussion & having regard to
the ratio of the Umadevi (3) Case & the State of Karnataka
& other-vrs- M.L.Kesari as mentioned above it can safely
be held that the appointment of workmen involved in this
reference is irregular & they have been discharging similar
nature of duties those performing by the regular employees,
and they are working against the vacant sanctioned posts.
Accordingly the question Nos. 1, 2 & 3 as aforesaid are
answered.
The plea of the Management that the present 25 casual
employees could not be regularized due to financial crunch
of the NERAMAC and in support of their contention the
management has proved the profit and loss account/
balance sheet of the NERAMAC for the period 2005-2006
to 2012-13 which was prepared by NERAMAC through
private Auditor. But it is found well established that the
MERAMAC was established by the Central Government
¹Hkkx IIó[k.M 3(ii)º
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1705
and provided subsidies to the said Origanisation and the
Management has not been able to show the quantum of
subsidies they received. Further the balance sheet of
NERAMAC for the period 2005-06 to 2012-13 vide Exhibit-
7 to Exhibit-13 while they have not been able to apprise the
Court as to the financial position of their organization for
the periods prior to 2005-06 during which the claim for
regularisation was raised by the aforesaid 25 casual
employees. The documents marked as Exhibit-7 to 13
(balance sheets) shows that the same were prepared on
the same date on 21.6.2013 as such, the allegation raised
by the union in course of cross-examination of the
Management Witness No. 1 that the said balance sheets
were prepared by the management in collusion with a private
Auditor for which several objections had been raised by
the CAG, can not be rulled out. On perusal of the
recommendation of Mr. L. Rahman Committee (Exhibit-1) it
appears that the said in House Committee recommended
that all the employees working on daily wage basis prior to
2000 may be regularized and the service of others, if any,
joined after 2000 may be disposed with immediate effect
and no workers be engaged on casual basis for duration of
more than 90 days. The documents marked as Exhibit-2
(proved on admission) containing Note Sheet Page (NSP)-
61 NSP-65 shows that the recommendation of Mr. L.
Rahman Committee was placed before the Executive
Director and the same was routed through the Manager (P
& A), GM (P & A), Board of Directors and the M.D. and it
was decided by the Management of NERAMAC to
consider regularisation of the workers/employees who have
completed 4 years service. But after accepting the
recommendation of the said Mr. L. Rahman Committee as
well as accepting the recommendation of the said Committee
by the Board of Directors including the M.D. in the Month
of April, 2004, the Management of NERAMAC has not
regularized the said employees till date. The said internal
documents (Exhibit-2) shows that the management has
examined the financial involvement in regularizing the said
casual employees, in details and there is nothing to show
on record that at the time of arriving at the decision of the
Board of Directors including the M.D. that the NERAMAC
was runnig in loss and it was not in a position to bear the
financial involvement consequent upon the proposed
regularisation, as such, the stand of the management that
due to financial stringency the aforesaid casual employees
who had been rendering the services to the NERAMAC
spending their prime time of their life span of more than 20
years can not be accepted. Therefore, I find, no ground to
entertain the argument of the learned Advocate for the
Management that the Management has been running a
loss which accumulated to Rs. 4.81 crores during the period
from 2003 to 2007.
The testimony on record shows that prior to reference
to the BIFR the NERAMAC never declared any closure or
lay off even after that there was no occasion to lay off or
closure. It is also found evident that the casual employees
namely Shyamal Ch. Dey was regularized in the year 2002
to the Post of Junior Assistant and after reference to the
BIFR altogether 18 numbers of employees were regularized
from 1987 to 1996. The report of the L. Rahman Committee
shows that the said Committee at the time of preparing the
report has gone through some of the resent judgments
pronounced by various Courts including Hon'ble Supreme
Court on the matter of regularisation of Casual Employees.
In this connection I am inclined to refer the case of Ajmer
Vidyut Vitran Nigam and Qrs. — vrs — Navin Kumar Saini
published in (2010) 15 SCC 17 wherein it was observed
that:
"However, services of other similarly placed workmen
who were junior to respondents regularized as Junior
Clerks w.e.f. 1-4-1982 and given regular pay scale but
cases of respondents not considered on the ground
that they had already been appointed as LDCs—
Held, cases of respondents ought to have been
considered for regularisation as LDC as cases of
other persons similarly situated were considered by
Selection Committee — Therefore, appellants
directed to consider cases of respondents for
regularisation as Junior Clerks with effect from
1.4.1982 and in case they were found fit therefore,
grant them pay scale thereof from said date."
11. The record shows that some of the casual employees
have been working since 1987 and they are continuing
their duties uninterruptedly, without any break and are
entrusted with some perennial nature of works such as,
Clerical, Account keeping, Stores Management, electrical
works, typing, A/C operation, messenger, attendant duty
such as, Peon, Chowkidar, Porter, etc. and in spite of their
due dedication in discharging the duties for such a long
period of about 20 years, as the case of other similarly
situated persons i.e. the regularized employees. Therefore,
it is crystal clear that the services of the aforementioned 25
casual employees in the NERAMAC can not be ignored
and as such, their claim for regularisation is found to be
reasonable and justified as per provision of Article-14 of
the Constitution of India as well as the principle of Natural
Justice.
In view of my above discussion and having regard to
the ratio of the cases as well as the findings arrived at as
above, it can safely be held that the plea of the management
that the financial position of NERAMAC does not permit
to regularize of the said 25 casual employees is not
maintainable. Therefore, the question No. - iv, as mentioned
above, is decided in negative against the Management.
In the result, I am constrained to hold that the action of
the Management of NERAMAC by not regularizing the
services of the 25 Casual/Contingent Employees who are
contesting the reference (as mentioned in the claim
statement submitted by the Union) or not granting equal
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THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
pay for equal works at par to the regular employees
instantly are not legal and justified. Accordingly, the said
25 casual/contingent workers are entitled to regularisation
with financial benefits with effect from 23.4.2004 the date
on which the M.D. has accepted the recommendation of
Mr. L. Rahman Committee. This reference is disposed of on
contest without any cost.
Send the Award to the Ministry as per procedure.
Given under my hand and seal of this Court on this 1st
day of April, 2015, at Guwahati.
L.C. DEY, Presiding Officer
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New Delhi, the 15th April, 2015
S.O. 776.—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/LC/R/42/
03) of the Central Government Industrial Tribunal-cum-
Labour Court, Jabalpur now as shown in the Annexure in
the industrial dispute between the employers in relation to
the management of the General Manager, Telecom, Gwalior
and their workman, which was received by the Central
Government on 13/04/2015.
[No. L-40012/231/2002-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/42/2003
Shri Mohan Kushwah,
S/o Shri jalim Singh Kushwah,
R/o Goshpura No. 2 Talaiya,
Nr. Man Mandir Talkies,
Gwalior.
...Workman
Versus
General Manager,
Telecom, O/o GMTD,
Jayendraganj, Lashkar,
Gwalior.
...Management
AWARD
Passed on this 20th day of March 2015
1. As per letter dated 25-2-05 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-40012/231/2002-IR(DU). The dispute under reference
relates to:
"Whether the action of the management of General
Manager, Telecom, Gwalior in terminating the services
of Shri Mohan Singh Kushwah w.e.f. 8-2-96 is
justified? If not, to what relief the workman is entitled
for?"
2. After receiving reference, notices were issued to the
parties. Ist party workman submitted statement of claim at
Page 2/1 to 2/3. Case of workman is that he was appointed
as Driver by IInd party from 23-8-91. However appointment
order was not given to him. His services were terminated
from 7-2-96. Termination order was not issued. That he was
continuously working from 23-8-91 to 6-2-96. His service
record was satisfactory. His services were discontinued
without assigning reasons. The dispute between parties is
covered by provisions of ID Act 1947. That his services
were terminated without notice, he was not paid
retrenchment compensation. Provisions of Section 25-F, G
of ID Act violated by IInd party. Permission of appropriate
Government was not taken for terminating his services. It
amounts to illegal retrenchment. Notice was not issued
before terminating services. Action of management is by
way of victimization. On such grounds, workman is praying
for his reinstatement with back wages.
3. IInd party filed Written Statement at Page 9/1 to 9/3
opposing claim of workman. Preliminary objection is raised
that reference is not tenable as workman had filed petition
before CAT on same ground. The order passed by CAT in
CCP 62/01 was rejected. Provisions of ID Act are not
applicable as IInd party is Government undertaking is not
an Industry. IInd party denied workman was appointed as
Driver. It is reiterated that workman did not work under
IInd party. Provisions of ID Act are not applicable to it.
There is no question of complying provision of Section 25-
F, G of ID Act as those provisions are not applicable to
IInd party. On such ground, IInd party prays for rejection
of claim.
4. Ist party workman filed rejoinder at Page 10/1 to 10/3
reiterating his contentions in statement of claim. IInd party
filed rejoinder at Page 13/1 to 13/2 reiterating its contentions
in Written Statement.
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1707
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
management of General
Manager, Telecom, Gwalior
In Affirmative
in terminating the services
of Shri Mohan Singh
Kushwah w.e.f. 8-2-96
is justified?
(ii) If not, what relief the workman
Workman is not
is entitled to?"
entitled to any
relief.
REASONS
6. Workman challenged termination from service for
violation of Section 25-F, G of ID Act. He was not issued
notice, retrenchment compensation was not paid to him.
7. Workman filed affidavit of his evidence supporting is
contentions in Statement of claim. However workman failed
to appear for his cross-examination. Therefore evidence of
workman cannot be considered deciding the matter.
8. IInd party filed affidavit of his witness Shri S.K.
Sharma. Management's witness stated in his affidavit that
workman was never employed on daily wages. No work
order was issued in his name. The contempt petition CCP
62/2001 was decided against workman. IInd party is
Government undertaking is not covered as an Industry.
That workman did not work continuously for 240 days in
any calendar year. Management's witness cross-examined
at length. The witness of management says he is working
in deptt. from 1985. Presently he is working on the post
since 3 months to the management's witness decided to
identify signature on document P-2. He denied that workman
was appointed since 30-8-91. He admits to know the entries
in log book. The officer used to sign last column of log
book. Regular driver used to sign it. Witness shown his
inability to produce rules in that regard. He claims ignorance
whether matador MP04 ES20 was driven by workman. He
denied that workman was driver matador from 23-8-91 to
23-2-96. The suggestion is denied that deliberately log book
is not produced by management. When workman failed to
appear for his cross-examination, his evidence could not
be accepted for deciding the matter. Management's witness
has denied suggestions w..t. the log book or workman was
driving Matador owned by department. The workman has
failed to adduce cogent evidence about his continuous
work more than 240 days therefore workman cannot be
extended protection under Section 25-H.G. of ID Act.
9. The counsel for IInd party Shri R.S. Khare has relied
on citation in 2014(1) SCC 536, 2013, 2014(III)MPWN103,
2013-II SCC L&S 369. I am not inclined to discuss ratio held
in all those cases in details as workman has failed to prove
that he worked continuously more than 240 days during
any of the calendar year. For back of evidence on part of
workman, I record my findings in Point No. 1 in Affirmative.
10. In the result, award is passed as under:—
(1) The action of the management of General Manager,
Telecom, Gwalior in terminating the services of
Shri Mohan Singh Kushwah w.e.f. 8-2-96 is legal
and proper.
(2) Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 777-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj egkizca/kd lqj{kk
isij fey gks'kaxkckn 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 ,o Je U;k;ky; tcyiqj ds iapkV
¼lanHkZ la[;k Case No. CGIT/LC/R/162/95½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 13@04@2015 dks izkIr gqvk FkkA
[lañ ,y&16011@03@94&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] MsLd vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 777.—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/LC/R/
162/95) of the Central Government Industrial Tribunal Cum
Labour Court, Jabalpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of the General Manager, Security Paper
Mill, Hoshangabad and their workmen, which was received
by the Central Government on 13/04/2015.
[No. L-16011/03/94-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/162/95
The President,
S.P. Mazdoor Sangh,
Hoshangabad
...Workmen/Union
Versus
General Manager,
Security Paper Mill,
Hoshangabad
...Management
1708
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
AWARD
Passed on this 13th day of March 2015
1. As per letter dated 4-9-95 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 Notfication No.L-16011/3/94-IR(DU).
The dispute under reference relates to:
"Whether the action of the management of Security
Paper Mill, Hoshangabad in transferring the
applicants named as per list attached from the
Machine House of Production Deptt. to other
departments w.e.f. 16-11-92 and depriving them of
the benefits as per the NPC report w.e.f. 21-10-92 is
justified or not? To what relief, the workmen are
entitled to?"
2. After receiving reference, notice were issued to the
parties. Ist party Union filed statement of claim on behalf
of 10 workmen. The case of Union is that notice dated
29-6-83 was issued inviting application for filling post of
machine operator Grade III on transfer from other sections.
It was mentioned in said notice that persons who joined as
machine Assistant Grade III in the production department
on transfer in pursuance to the aforesaid notice will stand
junior to the existing employees. In pursuance of said
notice, 10 employees related to the dispute submitted
application. They were appointed as Machine Assistant
Grade III in Revised Pay Scale 250-350 in production
department in machine House Section. They were
appointed in 1983 as Attendant Grade III. They were
designated as Bobinmen for 9 years. They were not
deployed for any other work. Earlier the pay scale of
Bobinman was Rs. 210-290. After IBCON study report, the
pay was revised to Rs. 250-350. They were excessively
performing duty of Bobinman in Machine House Section.
Government appointed NPC job study team. The pay scale
of Rs. 1320-2040 as they were working as Bobinman. That
they were transferred to other sections to deny said pay
scale. Other persons without having experience of work of
Bobinman were transferred under the guise of common
seniority. That on implementation of NPC report the grade
of Bobinmen was revised from 950-1400 to 1320-2040 from
21-10-92.
3. IInd party filed Written Statement at Page 6/1 to 6/2
opposing claim of Ist party union. It is submitted that SPM
was commissioned in 1967 with co collaboration with M/S
Portals Ltd., United Kingdom. The Mill produces Security
papers for printing currency and Bank Notes has in its
organization Group-A,B,F,D employees Classified B and
unclassified industrial workers working in the Mill. NPC
recommendations were approved by Government and
implemented from 21-10-92 after Tripartite Agreement was
signed. It is reiterated that there is no post of Bobinman
claimed by workman. Some skilled person were designated
as machine attendant Grade III in Pay Scale Rs. 950-1400
were posted in machine house in production department.
Their work was related to operation of insertion of security
thread from bobbin in the paper is undertaken. On
recommendation of NPC recommendations, considering
common seniority of employees working in various
sections. The common seniority was result of
Implementation of Mehta Committee Recommendation w.e.f.
1-3-89 as per demand for majority Union. After NPC
recommendations, new openings arose due to upgradation
of sanction of various cadres. The persons who were juniors
in pay Scale 950-1400 were upgraded in Pay Scale 1200-
1800. It is reiterated that workman related to dispute were
granted Rs. 1200-1800 revising Pay Scale 950-1400. They
are not deprived in benefits as per recommendations of
NPC.
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 10 employees related to the
management of Security
dispute are illegally denied
Paper Mill, Hoshangabad pay scale of Rs. 1320-2040
in transferring the
as per recommendation of
applicants named as per
NPC.
list attached from the
Machine House of Pro-
duction Deptt. to other
departments w.e.f. 16-11-92
and depriving them of the
benefits as per the NPC
report w.e.f. 21-10-92 is
justified or not?
(ii)If not, what relief the
As per final order.
workman is entitled to?"
REASONS
5. Union raised dispute alleging workman related to
dispute are illegally transferred to deny the benefit of NPC
recommendations. The affidavit of evidence in support of
claim of Ist party is filed by Shri Mithulal Raikwar & Shri
M.S. Lohar supporting contentions in statement of claim.
As per ordersheet dated 11-6-08, management's right to
cross-examine said witness is closed. Thus evidence of
witness of Ist party remained unchallenged.
6. Management filed affidavit of witness Shri S.
Mahapatra supporting contentions of IInd party in Written
Statement. That some employees junior in pay scale
Rs. 950-1400 were allowed pay scale of Rs. 1200-1800 from
21-10-92. Management's witness in his cross-examination
says that he was working in Security Paper Mill in
September 2002. He has no personal knowledge of the
matter in the case. He was not concerned in submission of
NPC report, Tripartite Agreement. Those employees were
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1709
transferred on the basis of NPC report and settlement. He
claims ignorance about procedure of entering into the
settlement. The employees related to dispute were Operator
Grade III appointment letter was not given to them. As per
record, he says that they were working as Operator Grade
III. He had not seen their service book. The witness was
unable to tell whether they were working in Machine House.
He admits that all of those workers were working for 9
years in machines section. There is no noting about their
transfer. Management's witness further says there is no
post of Bobinmen. That those employees were transferred
on their application. In next breath, he says that he has not
seen application. He claims ignorance about transfer of
those employees. Those workmen were not included in
pay sacle 1320-2040. The evidence of management's
witness is not cogent. He has no personal knowledge.
7. During course of argument, counsel for IInd party
Shri Anand Nayak pointed my attention to document
Annexure NA-1 i.e. Tripartite Agreement dated 21-10-92
which relates to grant of incentives and the conditions
required to be considered. Annexure NA-2 is copy of
common seniority. NA-3 is copy of order dated 26-10-92
revising pay scale on recommendations of NPC. The pay
scale of machine attendant is 950-1400. 3 post were allowed
in pay scale Rs. 1320-2040, in same scale of 950-1400. 36
posts were given revised scale of 1200-1800. The report of
NPC Recommendation is not produced by IInd party. There
is no dispute of discriminating workman working as
Machine Assistant Cat-III in pay scale 950-1400 revising
pay scale Rs. 1200-1800 allowing only 3 machine attendant
in pay scale 1320-2040. Discrimination made in NA-3 is
clearly illegal and therefore I record my finding in Point No.
1 in Negative.
8. In the result, award is passed as under:—
(1) The action of the amanagement of Security Paper
Mill, Hoshanagabad in transferring the applicants
named as per list attached from the Machine
House of Production Deptt. to other departments
w.e.f. 16-11-92 and depriving them of the benefits
as per the NPC report w.e.f 21-10-92 is not legal.
(2) IInd party is directed to give benefit of Revised
Pay Scale of Rs. 1320-2040 as per NPC
recommendations to the workers as per list
annexed with reference order.
(3) IInd party is directed to pay arrears to those
workmen 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] 10 vizSy] 2015
dk-vk- 778-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,y ds
izca/kr= ds lac) fu;kstdkas vkSj muds deZdkjkas ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uñ 2] /kuckn ds iapkV ¼lanHkZ la[;k 86/04½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10@04@2015 dks izkIr gqvk FkkA
[lañ ,y&20012@38@2004&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 778.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 86/04) of the Cent.
Govt. Indus. Tribunal-Cum-Labour-Court No. 2, Dhanbad
as shown in the Annexure, in the Industrial Dispute between
the magagement of M/s. BCCL and their workmen, received
by the Central Government on 10/04/2015.
[No. L-20012/38/2004-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), DHANBAD
PRESNET :
Shri Kishori Ram,
Presiding Officer.
In the matter of an Industrial Dispute under
Section10(1)(d) of the I.D. Act., 1947.
REFERENCE NO. 86 OF 2004
PARTIES
:
The General Secretary
Jharkhand Janta Mazdoor Union,
Qr. No. 1A, 373, PO: Koyla
Nagar, Distt; Dhanbad.
Vs. The General Manager,
Pootki Balihari Colliery of M/s. BCCL,
PO: Kusunda, Dhanbad
Order No. L-20012/38/2004-IR(C-I)
DT. 28.06.2004.
APPEARANCES:
On behalf of the workman/Union
:
Mr. N.M. Kumar
Ld. Advocate
On behalf of the Management
:
Mr.U.N. Lal
Ld. Advocate
State : Jharkhand
Industry : Coal
1710
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
Dated, Dhanbad, the 12th Feb., 2015
AWARD
The Government of India, Ministry of Labour, in exercise
of the powers conferred on them under Section 10(1)(d) of
the I.D. Act., 1947 has referred the following dispute to this
Tribunal for adjudication vide their Order No. L-20012/38/
2004-IR(C-I) DT. 28.06.2004.
SCHEDULE
"Whether the demand of the Jharkhand Janta Mazdor
Union from the Management of M/s. BCCL for
promoting and regularizing S/Shi Prakash Chandra
Mehta, Manoj Kumar Paswan, Balram Mahato as
Sub-section Attendant Cat. IV w.e.f. 15.11.1994 is
justified? If so, to what relief are the concerned
workmen entitled?"
On receipt of the Order No. L-20012/38/2004-IR(C-I) DT.
28.06.2004 of the above mentioned reference from the
Government of India, Ministry of Labour & Employment,
New Delhi for adjudication of the dispute, the Reference
Case No. 86 of 2004 was registered on19.07.2004 and
accordingly an order to that effect was passed to issue
notice 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 docuemnts. In pursuance of the said order,
notices by the Registered Posts were sent to the parties
concerned.
Both the parties made their appearances and filed their
pleadings and photocopies of their documents. The Union
and the O.P./Management through their own respective
Ld. Counsels appeared in, and contested the case.
2. The case of sponsoring Jharkhand Janta Madoor
Union for workmen S/Shri Prakash Chandra Mehta, Manoj
Kumar Paswan and Balram Mahato is that S/Shri Prakash
Chandra Mehta, Manoj Kumar Paswan and Balram Mahato
had got their appointment as M/Loader on 09.05.1983,
Geneal Mazdoor Cat. I in Balihari Colliery and as Switch
Board Attendant in South Balihari Colliery on 02.07.1990
respectively. The Management had engaged them
from11.05.1994 to work as a Switch Board attendant Cat. II
in the Cadre Scheme as per the NCWA which provides for
the designation as Sub Station Attendants/Switch Board
Attendant. These workmen had continuously rendered their
services from 15.11.1994 accordingly by dealing with 11,000
Volts as in Cat. IV in spite of it, the workmen were illegally
and arbitraily given their wages of Cat. III. It is alleged that
when a workman of Cat. III is posted at Main Switch of a
Sub Division, his designation is changed as Sub Station
Attendant, but not as a Switch Board Attendant. Thus the
workmen are entitled to their regularization in Cat. IV w.e.f.
11.05.1994 and accordingly to their upgradation in Cat. V.
The workman have been working against the aforesaid
posts still vacant for many years to the satisfaction of the
Management, so their is no need of the DPC for their
regularization. The action of the Management is alleged to
be entirely illegal, arbitrary and malafide. As such the
demand of the workman is justified.
3. Whereas the contral pleaded case of the OP/
Management that the claim of the workmen for promotions/
regularizations not a subject-matter of Industrial Dispute
as the promotion is allowed as per the Cadre Scheme
formulated by JBCCI on the basis fo the vacancies available
as per the sanctioned strength of the manpower. These
workman were asked to work of electrical job against very
temporay vacancies due to Leave/Sick vacancies. They
were regularized subsequently to the post of Switch Board
Attendant in Cat. I w.e.f. 21.11.98, 24.12.1996 and 21.11.1998
respectively. They were also paid their wages of Cat. III
rightly since then. But so far as the Cat IV is concerned,
employees must posses the Wiremanship Statutory
Certificate for their eligibility for the selection/
recommendation by the Dapartment Promotion Committee
(DPC) of the Trade Test etc. These workmen have no
grounds/merits for thiir claim for Cat. IV in this case, as
they are handling the job of eleven thousand Volts Switch.
As such the demand of the Union concerned as represented
before the ALC , Dhanbad for their promotion/
regularization is unjustified and unreasonable. Thus they
are not entitled to any relief in the matter.
The OP/Management in their written simultaneous
rejoinder has categorically denied the allegations of the
workmen as incorrect and baseless.
FINDING WITH REASONS
4. In the instant reference case, WWI Prakash Chandra
Mehta, one of the workmen for the Union and MWI Rakesh
Kumar Kar, the Personnel Officer, P.B. Area of BCCL;
Dhanbad for the OP/Management have been examined
respectively.
On perusal of the pleadings and evidences of both the
parties it appears to be no dispute that one workman Prakash
Ch. Mehta (P. C. Mehta) as per the office order dt.
3.5.1995(Ex. W.1) was deputed to work as the surface Sub
Station Attendat at 10/12 Pit in place of Shri A. Sarkar since
retired. Likewise it is beyond a controversy that other
workman Majoj Kumar Paswan, the General Mazdoor on
the recommendation of Supdt./Manager, 10/12 Pits as per
officer order dt. 24.12.1996 (Ex. W.1) was regularized as
Attendant in Cat. III with immediate effect. Aforesaid
Prakash Chandra Mehta and other co-worker Balram Mehta
were regularized as Switch Board Attendant w.e.f.
21.11.1998, and accordingly they got their wages since then,
the aforesaid P.C. Mehta had got SLU in the year 2005-06
perhaps, and got his retirement on1st June 2011, though
he had the payment of wages for Cat. IV.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1711
The argument on behalf of three workmen is that
workmen P.C. Mehta, Manoj Kumar Paswan and Balram
Mahto as per the office orders dt. 3.5.1994, 24.12.1996 and
28.06.1992 have been respectively working as the Sub-
Station Attendant, so they are legally entitled to their
regularization accordingly with the wages in Category IV
as also admitted by the Management in regard to Balram
Mahto and M.K. Paswan as Sub Station Addendant, In
response to it, the contention of Mr. U.N. Lal, Ld. Counsel
for the OP/Management is that according to the statement
of MWI Rajesh Kumar Kar, the Personnel Officer, out of
the three workmen, Shri Prakash Chandra Mehta is now
retired as the Sub Station Attendant Cat. III on 31.05.2011,
Shri Manoj Kumar Paswan has been promoted through the
DPC to the post of the Switch Board Attendant Category
IV w.e.f. Oct., 2008, but Shri Balram Mahto was given his
SLU w.e.f. 01.01.2007 after completion of his service for
eight years under Category III he had come w.e.f. 21.11.1998
(but w.e.f. 09.10.1998 as per the Extt. M 3 and 4, the Project
Officer's statement before the ALC, Dhanbad, and the
Seniority List of the S.B. Attendant respectively). Mr. Lal,
the Learned Counsel for the OP/Managment further
submits that though the Sub-Station Attendant Cat. III
and IV are the same post under the Cadre Scheme (Ext.
M.2) according to which the Cat. IV presupposes the
workmen's entry into Cat. I as General Mazdoor, then into
Cat III with the Matriculation/its equivalent qualification,
and the wireman's permit (H.T./L.T) having completion of
fours years as the General Mazdoor against the sanctioned
vacancies, so the claim of the Union for promotion/
regularization of these workmen as Sub-Station Attendant
Cat. IV w.e.f 15.11.1995 is unjustified and baseless.
In view of the aforesaid existing facts, I find that the Op/
Management appears to be right in observing the Cadre
Scheme in regard to the due regularization/promotion of
Sri Manoj Kumar Paswan at due time, but not in respect of
to the due regularization/promotion of Sri Manoj Kumar
Paswan at due time, but not in respect of other two workmen
Prakash Chandra Mehta and Balram Mahato being not
qualified for ity as per the Cadre Scheme, though Sri Balram
Mahato has got his S.L.U. for it.
In result, it is, hereby, awarded that the demand of the
Jharkhand Janta Madoor union from the Management of
M/s. BCCL for promoting and regularizing S/Shri Prakash
Chandra Mehta, Manoj Kumar Paswan, and Balram Mahato
as Sub-Station Attendant in Cat. IV w.e.f. 15.11.1994 is not
justified and baseless Hence, the workmen are not entitled
for any relief as claimed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 10 vizSy] 2015
dk-vk- 779-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,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;y;] uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 44@13½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10@04@2015 dks izkIr gqvk FkkA
[lañ ,y&20012@51@2013&vkbZvkj¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 779.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 44/13) 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 workman,
received by the Central Government on 10/4/2015.
[No. L-20012/51/2013-IR(CM-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD
In the matter of reference U/S 10 (1) (d) (2A) of I.D. Act.,
1947.
Reference: No. 44/13
Employer in relation to the management of North Tisra
Colliery M/s. BCCL and
Their workmen.
Present:Shri R.K. Saran
Presiding Officer.
Appearances:
For the Employers
Sri U.N. Lall, Advocate
For the workman :-
Shri S.C. Gour Adv.
State: Jharkhand
Industry-Coal
Dated 19/12/2015
AWARD
By order No. L-20012/51/2013 IR (CM-I) dated
23.09.2013, 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 North
Tisra Colliery of M/s. BCCL in anomaly in fixation of
tramming rate of Trammers in fair and justified? to
what relief the concerned workers are entitled?"
1712
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
2. This case of received from the Ministry on
09/02/1992. During the pendency of the case, The
representative of 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] 10 vizSy] 2015
dk-vk- 780-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,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;y;] uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 45@08½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10@04@2015 dks izkIr gqvk FkkA
[lañ ,y&20012@77@2008&vkbZvkj¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 780.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 45/08) 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 10/4/2015.
[No. L-20012/77/2008-IR(CM-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/S 10 (1) (d) (2A) of I.D.
Act, 1947
Ref. No. 45 of 2008
Employer in relation to the management of Jairampur
Colliery M/s. BCCL
AND
Their Workmen
Present:-
Sri Ranjan Kumar Saran,
Presiding Officer.
Appearances:
For the Employers
:
Sri. D.K. Verma, Advocate
For the workman
:
Sri S.C. Gour, Rep.
State : Jharkhand
Industy : Coal
Dated 20/2/2015
AWARD
By Order No. L-20012/77/2008-IR (CM-I), dated 30/09/
2008, the Central Government in the Ministry of Labour
has, in exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 10 of the Industrial
Disputes Act, 1947, referred the following disputes for
adjudication to this tribunal.
SCHEDULE
"Whether the action of the management of Jairampur
Colliery of M/s. BCCL in not removing the anomaly
in fixation of pay of Shri Habulal Das, Haulage
Operator is justified and legal? To what relief is the
concerned workman entitled?
2. This Case is received from the Ministry of Labour &
Employment on 10.10.2008. After receipt of reference, both
parties are noticed. The Sponsoring Union files their written
statement on 27.01.2009. The management files their written
statement on 16.04.2010. One witness examined on behalf
of the workman. And two document marked as W-1 and
W-2.
3. The workman has claimed that his pay though has
been fixed, there are anomalies, in various stage of fixation.
From the written statement and rejoinder it appears, there
may be anomalies.
4. This Tribunal unabal to know the entire facts unless
the seniority list as well as there scale of pay is produced
here.
5. Therefore the only direction given to the management
to clear the anomalies amongst the workmen after strict
observance of standardization committee and
implementation instruction No. 42 dated. 19.3.1985.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 10 vizSy] 2015
dk-vk- 781-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZñlhñ,yñ 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;] uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 38@93½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10@04@2015 dks izkIr gqvk FkkA
[lañ ,y&20012@310@1991&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 781.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1713
hereby publishes the Award Ref. No. 38/93 of the Cent. Govt.
Indus. Tribunal-cum-Labour, Court No. 1 Dhanbad as shown
in the Annexure, in the industrial dispute between the
management of M/s. ECL and their workmen, received by
the Central Government on 10/04/2015.
[No. L-20012/310/1991-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/S 10 (1) (d) (2A) of
I.D. Act, 1947
Ref. No. 38/93
Emploer in relation to the management of Mandman
Colliery M/s E.C.L.
AND
Their Workmen
Present:-
Sri R. K. Saran, Presiding Officer
Appearances:
For the Employers
:
Sri. D.K. Verma, Advocate
For the workman
:
Sri D. Mukherjee
State : Jharkhand
Industry : Coal
Dated 18/2/2015
AWARD
By Order No. L-20012/310/1991-IR (C-I), dated
04/01/1993, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of
section 10 of the Industrial Disputes Act, 1947, referred the
following disputes for adjudication to this tribunal.
SCHEDULE
"Whether the demand of Bihar Colliery Kamgar Union
for regularization of Shri Arun Kumar Bishwakarma
and six others a Black smithes by the management of
M/s. Eastern Coalfields Ltd. Kapasara Area in relation
to their Mandaman colliery is justified? If yes, what
relief the concerned workmen are entitled?"
Note:— List of workmen is not enclosed with order of
reference.
2. This case is received from the Ministry on
09/02/1992. 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] 10 vizSy] 2015
dk-vk- 782-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj fVLdks 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;] uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 43@93½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10@04@2015 dks izkIr gqvk FkkA
[lañ ,y&20012@270@1991&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 782.—In pursuance of Section 17 of the Industrial
Dispute Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award Ref. No. 43/93 of the Cent.
Govt. Indus. Tribunal-cum-Labour, Court No. 1, Dhanbad
as shown in the Annexure, in the industrial dispute between
the management of M/s. TISCO and their workmen, received
by the Central Government on 10/04/2015.
[No. L-20012/270/1991-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/S 10 (1) (d) (2A) of
I.D. Act, 1947
Ref. No. 43/1993
Employer in relation to the management of
M/s. TISCO Ltd.
AND
Their Workmen
Present:-
Sri R. K. Saran, Presiding Officer
Appearances:
For the Employers
:
Sri. D. K. Verma, Advocate
For the workman
:
Sri D. Mukherjee
State : Jharkhand
Industry : Coal
Dated 17/2/2015
AWARD
By Order No. L-20012/270/1991-IR (C-1), dated
05/01/1993, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause (d)
of sub-section (1) and sub-section (2A) of section 10 of
the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this tribunal:
1714
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
SCHEDULE
"Whether the action of the management M/s TISCO
Ltd. Jamdoba Distt. Dhanbad in denying the
employment of Smt. Jhabu Mahatain W/o Late Govind
Mahto, Ex-employee of Jamadoba colliery of M/s
TISCO Ltd. As dependent is justified? If not, to what
relief the workman are entitled?"
2. This case is received from the Ministry on
11/02/1993. 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] 10 vizSy] 2015
dk-vk- 783-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZlh,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;]
uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 51@92½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 10-04-2015 dks izkIr gqvk FkkA
[lañ ,y&20012@257@1991&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 10th April, 2015
S.O. 783.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award Ref. No. 51/92 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
10.04.2015.
[No. L-20012/257/1991-IR (C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/s 10(1)(d)(2A) of I.D. Act,
1947
Reference : No. 51/1992
Employer in relation to the management of Kapasara
Area of M/s ECL.
AND
Their workmen
Present:
Sri R. K. Saran, Presiding Officer
Appearances:
For the Employers: None
For the workman: None
State: Jharkhand
Industrial : Coal
Dated 18.2.2015
AWARD
By order No. L-20012/257/1991 IR (C-1) dated 22.07.1992,
the Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub-
section (1) and sub-section (2A) of section 10 of the
Industrial disputes Act, 1947 referred the following dispute
for adjudication of this Tribunal:
SCHEDULE
"Whether the action of the management, Kapasara
Area of M/s Eastern Coalfields Ltd. In denying
promotion to Shri Manohar Das, Special Grade clerk
to the post of office superintendent in Technical and
supervisory Gr. 'A' is justified? If not, what relief the
workman is entitled"?
2. After receipt of the reference, both parties are noticed.
But none appears on behalf of the workman inspite of regd.
Notice. Case remain pending. It is felt that the disputes
between the parties have been resolved in the meantime.
Hince No Dispute Award is passed, Communicate.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 1 vizSy] 2015
dk-vk- 784-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,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;] uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 28@2008½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 01-04-2015 dks izkIr gqvk FkkA
[lañ ,y&20012@23@2008&vkbZvkj ¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 1st April, 2015
S.O. 784.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award Ref. No. 28/2008 of the Central
Government Industrial Tribunal-cum-Labour Court No. 2,
Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. BCCL and their
workmen, received by the Central Government on
01.04.2015.
[No. L-20012/23/2008-IR (CM-I)]
M.K. SINGH, Section Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1715
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. 28 of 2008
Parties
:
The Secretary,
Bahujan Mazdoor Union,
Mines Rescue Station, PO: Dhansar,
Dhanbad
Vs. General manager,
C.V. Area of M/s BCCL, PO: Barakar,
Burdwan-713301 (W.B.)
Ministry's Order No. L-20012/33/2008-IR(CM-1)
dt. 28.04.2008
Appearance:
On behalf of the workman/Union:
Mr. R. R. Ram,
Ld. Advocate
On behalf of the Management
:
Mr. S.N. Ghosh,
Ld. Advocate
State
:
Jharkhand
Industry
:
Coal
Dated, Dhanbad, the 19th Feb., 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.20012/23/
2008-IR (CM-I) dt. 28.04.2008.
SCHEDULE
"Whether the action of the Basantimata Colliery of
M/s BCCL in not allowing Shri Satyanarayan Singh,
UG M/Loader to join his duty in the Company w.e.f.
17.05.2006 is legal and justified? if not, to what relief
is the concerned workman entitled?"
On receipt of the Order No. L-20012/33/2008-IR(CM-1)
dt. 28.04.2008 the above mentioned reference from the
Government of India, Ministry of Labour and Employment,
New Delhi for adjudication of the dispute, the Reference
Case No. 28 of 2008 was registered on 05.05.2008, and
accordingly an order to that effect was passed to issue
notices through the Registered Posts to the parties
concerned, directing them to appear in the Court on the
date fixed, and to file their written statements along with
the relevant documents. In pursuance of the said order,
notices by the Registered Posts were sent to the parties
concerned.
Both the parties made their appearances and filed their
pleadings and photocopies of their documents. The Union
and the O.P./Management through their own respective
Ld. Counsels appeared in, and contested the case.
2. The case of the workman Stayanarayan Singh as
sponsored by the Bahujan Mazdoor Union is that he was a
permanent workman as Ex. U/G M/Loader in Basantimata
Colliery under C.V. Area of M/s. BCCL. He was always
punctual to his duty. He was on sick leave from 16.05.2005.
When he was declared fit for work on 17.05.2005, he reported
for his duty and he accordingly joined his service.
Unfortunately he again seriously fell ill. The Management
referred him to the Central Hospital, Dhanbad, on 19.07.2005
on the same day. He was admitted on the Hospital and
thereafter he was discharged from there on 13.12.2005. The
authority concerned accepted the workman to be under
the Medicare of the Company's Hospital from 21.07.2005 to
13.12.2005. Before his hospitalization in the Central Hospital
in Dhanbad, he was under the treatment of Dr. J.K.
Bhattacharya from 15.02.2005 at Matari Railway Station,
Dhanbad. He was also medically examined on 13.06.2005 at
his native locality at Giridih where his blood was checked
at Sanjivini Janch Ghar. Meanwhile the Management issued
him the chargesheet on 14.05.2005 for his unauthorized
absent from his duty. He also replied to the chargesheet
and it was found satisfactory. The workman was advised
by the management to appear before the Medical Board as
several time represented by him for it but he was not referred
by the Management to the Medical Board. Thus he was
victimized by the Management. Lastly, he raised the
industrial dispute through the sponsoring Union on
26.04.2007.
Further alleged on behalf of the workman is that he was
illegally dismissed by the Management 0n 25/27.06.2008 in
violation of the Sec. 25(T) and 33 of the industrial dispute
Act, so the action of the Management is not allowing the
workman to join his duty is unjustified and illegal, as he
was illegally stopped from working without proper domestic
enquiry. He being sole earner of his family comes of a very
weaker section of the Society. Hence, he is entitled to join
his duty with full back wages from 17.05.2006 upto the
date.
The Union in its rejoinder on behalf of the workman has
categorically denied the allegations of the OP/Management,
further stating the Enquiry Officer about his suffering from
T.B. He appeared before the Medical Board for his medical
examination, but it was not set up, he was medically
examined. Despite the charges having been unproved, he
was dismissed from his service.
3. Whereas the contra pleaded case of the OP/
Management is that in fact the workman was working as
U/G M/Loader at Basantimata Colliery, but he was a habitual
absentee as per his attendance Record. He remained absent
from 15.02.2005, so he was issued the Show Cause on
1716
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
14.05.2005. When his reply to the Show Cause was found
unsatisfactory, the Departmental enquiry was held in his
presence and wherein he was given full opportunity for his
defence before the Enquiry Officer. In course of the enquriy,
the workman had submitted that he was suffering from
Tuberculosis (T.B.) and on sympathetic ground, he was
allowed to join his duty subject to the medical fitness and
clearance directing for his appearance before the Medical
Board for assessment of seriousness of the disease, but
the workman did not turn up before the Medical Board on
repeated requests. Even at another Show Cause in respect
of it, when the workman did not appear before the Medical
Board, the Management accordingly set up another enquiry
informing of it to the workman, yet he did not attend the
enquiry. It resulted in the an ex-parte enquiry wherein the
Enquiry officer found him guilty of the charges, levelled
against him. The Competent Authority on due
consideration approved for the dismissal of the workman
and accordingly he was dismissed from the service of the
Company as per the letter dt. 25/27.06.2008.
The Management in its simulaneous rejoinder has
categorically denied all the allegations as baseless, further
alleging that the instant industrial Dispute was raised after
one year.
FINDING WITH REASONS
4. In the instant reference, it is found that in course of
hearing at the preliminary point about the fairness of the
enquiry, at the acceptance of the enquiry as fair and proper
by the Ld. Cousnels for the Union/workman concerned as
per petition dt. 03.04.2003, the Tribunal as per order No. 31
dt. 09.06.14 held the domestic enquiry fair, and proper. In
result, it came up for hearing the final arguments of other
the parties on merits.
Mr. R.R. Ram, the Ld. Advocate cum Joint General
Secretary of the Union has submitted that despite the
acceptance of the Management about the workman having
been admitted in the Regional Hospital of the Company
from 21.07.2005 to 13.12.2006, the workman was issued the
charge sheet for his alleged unauthorized absentism.
Though the workman had satisfactory replied to the
chargesheet, the Management set up an enquiry in which
the workman had participated and had submitted his
Medical certificate as also accepted by the Enquiry Officer,
after the enquriy, the Management neither dismissed nor
allowed him to join his service but after the order of the
present Reference; it is an unfair labour practice under Sec.
25(T) of the industrial Dispute Act, 1947. Further it has
been submitted on behalf of the workman that it is not a
case of dismissal, rather a case of victimization and
harassment of the workman at hands of the Authority; as
such the action of the Management in not allowing
workman Satyanarayan Singh U/G M/Loader to join his
duty in the company is illegal and unjustified; hence the
workman is entitled to reinstment in his service with full
back wages.
5. Whereas Mr. S.N. Ghosh, the Ld. Advocate for the
OP/Management had contended that the workman was
issued the chargesheet dt. 14.05.2005 for his unauthorized
absence for duty w.e.f. 15.02.2005; three notices were issued
to the workman for his appearance in the enquriy to be
held by Mr. J.N. Banerjee, Sr. Personnal Officer as the
enquriy Officer, meanwhile, at the transfer of aforesaid Mr.
J.N. Banerjee, Mr. N.R. Chatterjee Sr. Personnel Officer was
appointed as Enquiry officer who had also issued two
notices dt. 21.06.2006 and 06.07.2006, then workman fully
participated in the enquiry wherein the charge levelled
against him under clause of 26.1.1 of the Certified Standing
Order was proved against him beyond any doubt. It is also
submitted on behalf of the Management is that seeing the
tender age of the workman, the OP/Management allowed
him to join his duty subject to the declaration of his fitness
by the Area Medical Board (AMB). Despite repeated letters
of the AMB (Area Medical Board) through the Medical
Officer, the workman did not appear before the medical
Board. Again the chargesheet dt. 10/11.03.2007 under clause
6.1.1 of the certified Standing Order was issued to the
workman for his willful disobediance to lawful order of the
Higher Authority; meanwhile the workman raised the
industrial Dispute at the ALC(C) Dhanbad, resulting in the
present reference. Further contention of Mr. Ghosh, the
Ld. Advocate for the Management is that when the
workman began to regularlly absent, after his first presence
in the enquiry proceedings as even in the enquiry even for
the 2nd Chargesheet, the enquiry was held exparte;
moreover, in course of the preliminary point, the workman
has accepted the enquiry as fair and proper. According to
Mr. Ghosh, Ld. Advocate for the OP/Management, once a
domestic Tribunal based on evidence comes to a particular
conclusion, normally it is not open to the Appellate Tribunal
and the Court to substitute their subjective opionion in
place of the one arrived at by the domestic Tribunal, there
is no scope for the judicial review of its under Sec. 11A of
the Industrial Dispute Act. 1947 (Divisional Constroller,
KSRTC (NWKRTC) Vs. A.T. MANE., 2005 SSC (L&S) 407
(DB). The fact of the cited ruling directly relates to
termination of the workman for his misconduct as a
conductor resulting in financial loss to the appellant/
Management concerned. Further plea of the Mr. Ghosh in
reference to Sec.11-A of the Industrial Dispute Act, is that
in dismissal for 'misconduct under Mining Disciplinary
Organization, it can never be interference by the Tribunal
under the said Sec. to reduce the punishment to something
less than dismissal as held in the case of Muraidih Colliery
of M/s BCCL vs. Bihar Colliery Kamgar Union (BCKU),
2005 SSC(L&S) 412 (DB). This ruling relates to the penalty
of dismissal to the workmen concerned for their grave
misconduct of assault with deadly weapons upon their
colleagues by causing them injuries. Whereas the instant
Reference refers to the misconduct of unauthorized absence
only. So the ruling seems in applicable to the factum of the
case.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1717
7. In the instant reference, on the perusal of the materials
available on the case record, it stands evidently and
incontroversially that the workman, N/G Loader was sick
with fever at the relevant time, during which he was also
admitted in the Central Hospital, Dhanbad, followed by his
futher private treatment upto 13.05.2006 as per his
documents (Ext. W.1 Series). It also clearly appears that on
the repeated instructions of the Agent of the Colliery as
per his letter dt. 10.3.2007 and 06.01.2007 (Ext. W.2 series)
to the workman, the latter did appear and submit his
documents before the Colliery Medical Officer/the Apex
Medical Board, but left the M.O. Hospital without filling
his form but thereafter he did not appear before them. For
this disobedience, the workman was dismissed from service
with immeidate effect as per the letter dt. 25/27.06.2008 of
the Management (Ext.W.3). It also seems beyond dispute
that against two chargesheets No. 288 dt. 14.05.2005 and
No. 577 (sometimes as 572) dt. 10/11.08.2007 for two
misconducts of the workman under clauses 26.1.1. and
28.1.10 of the Certified Standing Order of the Company for
his absentism and disobidence respectively. But the second
Show Cause (Ext. M.6) relates to the latter chargesheet
only, whereas the dismissal order dt. 25/27.06.2008 (Ext.M.7)
refers to absentism only. The allged claused 28.1.10 of the
Certified Standing Order of the alleged disobedience has
not been brought in existence till now.
In view of the aforesaid facts and cirsumstances, that in
view of the nature of the absentism misconduct which was
due to his unavoidable sickness, none of the aforesaid
rulings as cited by Mr. Ghsoh. Ld.Advocate for
Management holds good with factum of the case. The
penalty of the disobedience to the workman for his
absentism harsh and shockingly disproportionate to the
nature of his misconduct of absentism. The order of
dismissing is liable to be set aside under Sec. 11 A of the
Industrial Dispute Act., 1947.
In result, it is hereby responded and accordingly
awarded that the action of the Management of Basantimata
Colliery of M/s BCCL is not allowing Shri Satyanarayan
Singh U/G M/Loader to join his duty in the Company w.e.f.
17.05.2006 is not legal and justified. Hence the concerned
wokman is entitled to reinstatement in his service with his
50% back wages and financial benefits as well as his
"Khoraki" for his sickness period.
The OP/Managements directed to implement and Award
within one month from the date of its receipt following its
publication in the Gazette of India.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 785-—vkS|ksfxd fookn vf/kfu;e] ¼1947 1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV c®d 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
dksydrk ds iapkV lanHkZ la[;k ¼22@2013½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 15@04@205 izkIr gqvk FkkA
[lañ ,y&12011@77@2012&vkbZ vkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 785.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref.22/2013) of the Cent.Govt.
Indus.Tribunal-cum-Labour Court, Kolkata 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 15/04/2015.
[No. L-12011/77/2012-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVTERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 22 of 2013
Parties:
Employers in relation to the management of
Circle Welfare Committee
A N D
Thier workmen
Present: Justice Dipak Saha Ray,
Presiding Officer
Appearance:
On behalf of the
:
Mr. Susanta Pal, Ld.
Management
Counsel for Local
Implementation
C ommittee, State Bank of
India, Kharagapur IIT
Branch.
On behalf of the
:
N o n e.
Workmen
State: West Bengal.
Industry: Banking
Dated: 6th April, 2015.
A W A R D
By Order No. L-12011/77/2012-IR(B-I) dated 11.04.2013
the Government of India, Minisitry of Labour in exercise of
its powers under Section 10(1)(d) and (2A) of the Industrial
Disputes Act, 1947 referred the following dispute to this
Tribunal for adjudication:
"Whether the action of the management of the Ex-
Officio of Local Implementation Committee, State
Bank of India, Kharagpur IIT Branch in terminating
1718
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
the services of 3 canteen employees namely S/Shri
Shanti Ghosh, Amarendranath Das and Indrajit
Rakshit is legal and/or justified? If not, to what relief
the workmen are entitled to?
2. When the case is taken up today for hearing, Ld.
Counsel of the Ex-officio President, Local Implementation
Committe, State Bank of India, Kharagpur IIT Branch,
Kharagpur appears: but none appears on behalf of the Ex-
officio President, Circle Welfare Committee, State Bank of
India, Local Head Office, Kolkata; Chief General Manager,
State Bank of India, Local Head Office, Kolkata and the
General Secretary, SBI Canteen Employees' Union (Bengal
Circle), Kolkata, inspite of service of notice. It appears from
the record that the concerned union at whose instance the
instant reference has been initiated has not turned up since
09.12.2013.
3. From the above facts and circumstances it may
reasonably be presumed that the concerned union is not at
all interested to proceed with the case further. So, no fruitful
prupose will be served in keeping the matter pending.
4. In such view of the matter, present reference is
disposed by passing a "No Dispute Award".
Dated, Kolkata,
The 6th April, 2005
Justice DIPAK SAHA RAY, Presiding Officer
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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
dksydrk ds iapkV lanHkZ la[;k ¼23@2013½ dks izdkf'kr djrh gS]
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[lañ ,y&12011@76@2012&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 786.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref.23/2013) of the Cent. Govt.
Indus.Tribunal-cum-Labour Court, Kolkata 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 15/04/2015.
[No. L-12011/76/2012-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVTERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 23 of 2013
Parties:
Employers in relation to the management of local
implementation Welfare Committee
A N D
Thier workmen
Present :
Justice Dipak Saha Ray,
Presiding Officer
Appearance:
On behalf of the
:
Mr. Susanta Pal, Ld. Counsel
Management
for Local Implementation
Committee, State Bank of India,
Hatibagan IIT Branch.
On behalf of the
:
None
Workmen
State: West Bengal.
Industry: Banking
Dated: 6th April, 2015.
AWARD
By Order No.L-12011/76/2012-IR(B-I) dated 11.04.2013 the
Government of India, Minisitry of Labour in exercise of its
powers under Section 10(1)(d) and (2A) of the industrial
Disputes Act, 1947 referred the following dispute to this
Tribunal for adjudication.
"Whether the action of the management of the Ex-
Officio of Local Implementation Committee, State Bank
of India, Hatibagan Branch in terminating the services
of Shri Biswanath Mitra, canteen employee is legal
and/or justified? If not, to what relief the workmen are
entitled to?
2. When the case is taken up today for hearing, Ld.
Counsel of the Ex-officio President, Local Implementation
Committee, State Bank of India, Hatibagah Branch, Kolkata
appears; but none appears on behalf of the Ex-officio
President, Circle Welfare Committee, State Bank of India,
Local Head Office, Kolkata Chief General Manager, State
Bank of India, Local Head Office, Kolkata and the General
Secretary, SBI Canteen Employees' Union (Bengal Circle),
Kolkata inspite of service of notice. It appears from the
record that the concerned union at whose instance the
instant reference has been initiated has not turned up since
12.2013.
3. From the above facts and circumstances it may
reasonably be presumed that the concerned union is not at
all interested to proceed with the case further. So, no fruitful
purpose will be served in keeping the matter pending.
4. In such view of the matter, present reference is disposed
by passing a "No Dispute Award".
Justice DIPAK SAHA RAY, Presiding Officer
Dated, Kolkata,
The 6th April, 2015.
¹Hkkx IIó[k.M 3(ii)º
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1719
ubZ fnYyh] 15 vizSy] 2015
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dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkSn~;ksfxd fookn esa dsUnzh; ljdkj vkSn~;ksfxd vf/kdj.k
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lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 787.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref.124/2013) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court No-2, Dhanbad
as shown in the Annexure, in the industrial dispute between
the management of State Bank of India and their workmen,
received by the Central Government on 10/04/2015.
[No. L-12011/07/2013-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD.
PRESENT
Shri Kishori Ram,
Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act, 1947
Reference No 124 of 2013.
Parties: Dy. General Secretary,
State Bank of India Staff Association, State Bank
of India, L.H.O., Patna.
Vs.
The Chief General Manager,
State Bank of India, Local Head Office, Patna.
Order No. L-12011/07/2013-IR(B-I) dt. 21.05.2013.
Appearances :
On behalf of the workman/Union : Mr. Vijay Kumar Roy,
Workman's
Representative,
On behalf of the Management
: Mr. Noor Alam,
Management's
Representative
State
:
Bihar Industry :
Banking
Dated, Dhanbad, the 23rd Feb., 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-12011/07/
2013-IR(B-I) dt. 21.05.2013.
SCHEDULE
"Whether the action of the Management of State
Bank of India to propose the punishment of removal
of Sh. Rupak Kumar was proportionate? If not, to
what relief the workman concerned is entitled for?
On receipt of the Order No. L-12011/07/2013-IR(B-I) dt.
21.05.2013 of the above mentioned reference from the
Government of India, Ministry of Labour & Employment,
New Delhi for adjudication of the dispute, the Reference
Case No. 124 of 2013 was registered on 12.06.2013 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 Ld. Counsels
appeared respectively, and contested the case.
2. The case of workman Rupak Kumar as sponsored by
the State Bank of India Staff Association is that a bilateral
settlement between India Banks Association and the
Representatives of workman come under Secs. 2(p) and
18(1) of the Industrial Dispute Act, 1947 read with Rule 58
of the Central Disputes Rules, 1957. It is an binding on
both the parties. The workman was served upon the charge-
sheet dt. 14.05.2009 by the Disciplinary Authority.
Thereafter, it was brought one stage lower in the scale of
the workman as per the Order Memo No. DPS/AGM/
(Admin)/09 dt. 29.05.2009 of the Disciplinary Authority.
But the Management arbitrarily but directly intervened not
only the punishment by withdrawing the Order as per the
Letter No DPS/AGM/(Admn)/No. 65 dt. 22.01.2010,
violating the Memorandum of the Settlement, but also in
not letting the Disciplinary Authority independently work
as inferable from the letter No. AGM(Admn)./P/Das/34 dt.
06.06.2009. The initiation of fresh enquiry on the same
charge after the order of the Disciplinary Authority was
forcible and against the principle of natural justice, as the
workman's witness was not allowed for defence/witness
as also agreed and communicated by the management in
the conciliation proceeding before the A.L.C.(C) Patna. At
last, workman Rupak Kumar was removed from the Bank
Service as per Memo No. G/2.1 dt. 20.03.2013. The
established rule is that there can not be two punishments
1720
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
for the same chargesheet. So the action of the Management
of the SBI is vindictive and against all forms of justice.
3. The Association concerned for the workman in its
rejoinder has alleged that according to the policy of the
Bank as per the Corporate Centre/Apex Office letter No.
CDO/IR/SPL/418 dt. 05.10.2007 where employees suppressed
their already qualification of graduation at the time of
appointment will not be given the benefit of additional
marks as compared to those who have completed their
graduation after graduation would get it. It relates to the
promotion policy for the additional marks to the Subordinate
Staff having got higher qualification at the time of the
promotional examination. But it prescribes not any penal
action except the credit for such higher qualifications is
negated for those who have suppressed at the time of
appointment. The workman concerned had appeared at
the Matriculation Examination afresh to avail his career
progress opportunities The workman having realized his
guilt had not protested the proposed punishment. The act
of the Bank Management initiating another round of
disciplinary exercise amounted to "Double jeopardy" as
incorporated in the Memorandum of Settlement dt.
10.04.2002, as it formulates "A workman found guilty of
miconduct, whether gross or minor, shall not be given more
than one punishment in respect of any one charge".
Moreover, the Memorandum of Settlement under para 12
does not warrant for holding an enquiry, if the employee
makes a voluntary admission of his quilty in reply to the
Show Cause Notice. The subsequent enquiry proceeding
is contrary not only to the aforesaid Memorandum of
Settlement but also to the Fundamental rights of the
workman under the Article 20(2) of the constitution of India.
Further alleged by the Association concerned for the
workman is that the observation of the Hon'ble High Court
"Law is well settled that disciplinary authority is always
entitled to recall a part of whole of disciplinary proceeding
and commence afresh" was based on the impression
continuity of the enquiry as represented by the Learned
Counsel concerned for the Bank Management, the right of
the workman was acknowledged by the Hon'ble High Court
to agitate the matter before an appropriate forum.
4. Whereas challenging the maintainability of the
reference in law and facts, the contra case of the OP/
Management is that the workman fraudulently entered into
the employment of the Bank and subsequently got
promotion accordingly. He had, at the time of appointment,
submitted a School Leaving Certificate dt. 16.09.1996 from
High School Bharwari, Distt: Muzaffarpur for studying in
class IX, despite already passing Matriculation Examination
from Bihar High School Examination Board, Patna, in 1992.
Again having concealed it at the time of promotion to the
Clerk Grade, he produced a Certificate of passing
Matriculation Examination from High School, Bansbigha,
Dhanurua, in 2002. The aforesaid acts of the workman
constituted his misconduct, so he was issued the charge
sheet dt. 14.5.2009 by the Management. The workman
submitted his reply to it before the Disciplinary Authority.
But without initiation of a domestic enquiry in regard to
the chargeheet, the Disciplinary Authority had issued him
the Second Show Cause Notice and proposed to inflict a
penalty of "reduction of one increment in scale of pay.
"Thereafter, in view of the principle of natural justice, the
Disciplinary Authority decided to hold the domestic enquiry
related to aforesaid chargesheet, recalling the 2nd Show
Cause Notice, and the Enquiry Officer was appointed by
the Disciplinary Authority to conduct the domestic enquiry
in consonance with the principle of natural justice. On
notice of the enquiry, the workman did not appear before
the Enquiry Officer on 12.03.2010, the date for the enquiry,
rather he submitted a representation before the Enquiry
Officer with a request to pass an order as per the direction
of Hon'ble High Court, Patna, in the CWJC No. 4390/2010,
the subsequent enquiry proceeding was contrary to the
Memorandum of Settlement dt, 10.04.2002. On the
attendance of the workman in the enquiry on 5.5.2010, the
Enquiry Officer instructed him to participate in the enquiry
on the date fixed 22.6.2010. The workman filed the CWJC
No. 12045 for quashing the disciplinary proceedings
initiated by the Disciplinary Authority. But the same was
disposed of by the Hon'ble High Court as per the Order dt.
29.07.2010 with liberty to the workman to raise his
submission before the Chief General Manager. In the Appeal:
LPA No. 1345/2010 preferred by the Management against
it, the Hon'ble High Court was pleased to allow the Appeal
as per the order dt. 4.4.2011, holding as such "disciplinary
proceeding has to be conducted according to the Rule and
prescribed procedure it invariably lays down the hierarchy
of authorities for the purpose. In such a situation, the
Learned Single Judge erred in creating a new authority in
the matter which is inconsistant with the rule and prescribed
procedure" Further more, law is settled that Disciplinary
Authority is always entitled to recall a part or whole of
disciplinary proceeding and commence afresh. The
impugned action of the Appellant Authority recalling the
second Show Cause notice is, therefore, fit to be upheld."
5. Consequently the Enquiry Officer fairly and properly
conducted the domestic enquiry in accordance with
principle of natural justice in presence of the workman, and
submitted his enquiry report, holding the charges levelled
against him proved. On the second Show Cause Notice by
the Disciplinary Authority, the workman submitted his reply
to it, but after hearing the workman in person and on due
consideration of all facts and circumstances, and gravity
of nature of his misconduct, the Disciplinary authority
awarded him with the punishment of 'removal from service
with superannuation benefit (Pension, Provident Fund and
Gratuity) which is legal and justified. The punishment
inflicted upon the workman is fully proportionate to the
grave nature of his misconduct. The Management also
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1721
sought a permission to prove the charge on merits, in case,
the enquiry held unfair at the preliminary point.
The OP/Management in its simultaneous rejoinder has
categorically denied all the allegations of the workman,
further stating to have fairly conduced the domestic enquiry
under clause 12 (a) of the Memorandum of Settlement
dt. 10th April, 2002 on disciplinary action for workman.
Finding with Reasons
6. In view of the nature of the reference, at the direct
contest of the workman on merits, WW Rupak Kumar, the
workman himself, WW2 Sachchidanand Sinha, Retd. Asstt.
G.M. of the Admn. Officer, Patna, on behalf of the
Association concerned and MW1 Sunil Kumar Singh, the
Manager (H.R.,) for the OP/Management have been
respectively examined.
On perusal of the pleadings and evidences, oral and
documents of both the parties, it appears to be no dispute
that workman Rupak Kumar, already a Matriculation in the
year 1992, entered into the service of the Bank as the
Messenger in the year 2000 on the basis of its requisite
minimum qualification on non-Matric by concealing it at
the time of his appointment. Further in order to get his
career progression through the Departmental Examination
for his promotion, he again passed the Matriculation for
his promotion in the year 2002 from Higher School, Bans
Bigha, Dhanarua, after taking the permission from the Bank
Management, and he got promotion to the post of the
Assistant as per the S.B.I letter dt. 24.1.2008 (Ex.W.7)
following his success in the department Examination. The
indisputable fact is that on the charge sheet dt. 14.05.09
(Ext.W.2) to him for his aforesaid misconduct, the delinquent
employee replied to it and accepted his guilt of the
misconduct as stated in the chargesheet. In the face of it,
there are some important facts at variances with others on
mode of the enquiry. It evolves the main issue for a proper
adjudication in the terms of the reference:
Whether the enquiry was held afresh by the OP/
Management for the same misconduct of the delinquent
employee.
At the point, Mr. Vijay Kumar Roy, the Union
Representative for the workman has to submit that on the
acceptance of his quilt/misconduct by the delinquent
workman as per his statement (Ext. W.4) in response to the
chagesheet dt. 14.05.2009 (Ext.W.2), once the Show Cause
Notice dt. 29.05.2009 to be replied within 10 days (Ext.W.3)
was issued/served upon him for the proposed punishment
of lowering down one stage in the scale of pay, its recalling
for holding a De novo on fresh enquiry into the charge
sheet as per the Memo No. dt.22.01.2010 (Ext.M.5) is
violative of the Memorandum of Settlement dt. 10.04.2002
(Ext.W.1) as covered under Sec 2(p) and 18(i) of the I.D.
Act, 1947 read with the Rule 58 of the Industrial Disputes
(Central) rule, 1957 which prohibits it and De novo trial as
well. Further the Learned Union Representative has
emphatically argued that there was no need to hold the
enquiry, in case at the outset at the chargesheet, the
workman had prima facie accepted his quilt of the
misconduct, and twice infliction of his removal from the
service for the same misconduct is violative of the
Fundamental Rights is enshrined under the Article 20(2) of
the Constitution of India, as well as the prevailing rules.
The workman, against whom penalty of lowering one stage
in his pay scale was awarded and implemented, is entitled
to his re-instatement in service with full back wages and
consequential benefits. In support of his argument, the
learned Union Representative relied upon the ruling (2013)
12 SCC 372, Lucknow Vs. Gramin Bank Vs. Rajendra Singh,
and submitted, as held therein, that 'When it is found that
the employee concerned and the co-delinquent are equally
placed and there is complete parity between the two, and if
co-delinquent accepts the charges indicating remorse with
unqualified apology, lesser punishment to him could be
justified. But the reference has not any co-delinquent with
the present workman, so the ruling appears to be
inapplicable to the case.
7. Whereas in view of grave nature of the admitted
misconduct of the workman for fraudulently getting his
employment firstly as a Messenger then as the Assistant
on promotion in the employment of the OP/management,
Mr. Noor Alam, the Representative of the Management
has contended that in course of response of the workman
to the Show Cause Notice dt. 29.05.2009 (Ext. M.3) about
the proposed penalty of lowering down one stage in his
pay scale which was based on the summary proceedings
only, the Disciplinary Authority as per the Memo No. 65 dt.
22.01.2010 (Ext. W. 5) withdrew it and ordered for holding a
proper Departmental Enquiry in the terms of Clause 12(a)
of the Bipartite Settlement dt. 10.04.2002 but the workman
though evaded his appearance yet submitted a
representation before the Enquiry Officer A.K. Mishra,
AGM, that he had filed the CWJC No. 12045/2010 for
quashing the departmental proceeding; The writ was
disposed of by the Hon'ble High Court, Patna, as per the
order dt. 29.07.2010 (Ext. M.1) with liberty to the workman
to raise his submission before the Chief General Manager;
therefore, in the LPA No. 1345/2010 preferred by the OP/
Management against it, the Hon'ble High Court as per the
order dt. 14.04.2011 (Ext. M. 1/2) was pleased to upheld the
impugned action of the Appellate/Management recalling
the second Show Cause Notice. It is also submitted on
behalf of the OP/Management that after holding the
domestic enquiry in presence of the workman, the Enquiry
Officer submitted his report to the Disciplinary authority,
before whom the workman also appeared and made his
submission on 04.03.2013, and after hearing the workman
in person and considering all the facts and circumstances
of the grave misconduct of the workman, the Disciplinary
Authority inflicted upon him the punishment of his removal
1722
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
from service with superannuation benefits (Pension,
Provident fund and Gratuity) as per the relevant Rules and
Regulations, but without disqualification from future
employment; as such the punishment of his removal from
service was just and proportionate to the grave nature of
his gross misconduct as prescribed in the Bipartite
Settlement; hence, he is not entitled to any relief.
8. In the light of aforesaid facts of the case, Mr. Alam, the
OP/Management's Representative has argued that a quasi
Judicial authority will become functus officio only when its
order is pronounced or communicated to the Party concerned,
When an order is made in office noting, but is not
pronounced, published on communicated, nothing prevents
the authority for correcting it or altering it for the full reasons
as held in the case of State Bank of India & Ors V.S.N. Goyal
reported in (2008) 8SCC 92 (DB); and that in the instance
case, the Disciplinary Authority had not passed the final
order, rather issued the Second Show Cause for proposed
punishment of lowering down one stage in his pay scale
based on summary proceeding and no response to it from
the workman; meanwhile the Disciplinary Authority recalled
the 2nd Show Cause for holding a proper enquiry into the
charge sheet against the workman, the Authority had not
become functus officio, as he was well within his legal right
to proceed with the proceeding properly, as the aforesaid
Bipartite Settlement rules under Para 12 (e) (ii) was not
complied with by the workman through is any reply to the
2nd Show Cause, which was, meanwhile recalled by the
Competent Authority for a proper enquiry into the charge
sheet against the workman.
On consideration of the a foresaid materials available
on the case record, I find recalling of the 2nd Show Cause
Notice by the Disciplinary Authority which was neither
served upon nor responded by the Workman, was virtually
in the continuity of the Departmental proceedings for the
gross misconduct. The delinquent employee could neither
produce nor prove his any receipt of the Memo
dt. 29th May, 2009 related to his proposed punishment of
lowering down one stage or its implementation prior to its
recall for proper enquiry. So the enquiry was continued for
ends of justice. Thus the enquiry was not held up afresh
by the OP/Management for the same misconduct of the
delinquent employee. In such situation, no question arises
for double punishments for a single misconduct.
9. So far as quantum of punishment is concerned, since
the charges as leveled against the workman for his gross
misconduct under Para 5(m) was proved against him in
respect of his knowingly making a false statement with
regard to his employment in the Bank. Hence infliction of
removal penalty upon him from his service with
superannuation benefits under Para 6 (b) of the aforesaid
Settlement for his aforesaid gross misconduct is quite
proportionate to the grave nature of it.
In result, it is hereby responded and accordingly
awarded that the action of the Management of the State
Bank of India to propose the punishment of removal of the
workman Rupak Kumar was undoubtedly proportionate to
the grave nature of his gross misconduct at the time of his
employment in the Bank. Therefore the workman is not
entitled to any relief.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 15 vizSy] 2015
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[la- ,y&12012@111@2006&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 788.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 6/2007) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Bangalore as
shown in the Annexure, in the industrial dispute between
the management of State Bank of Mysore and their
workmen, received by the Central Government on
10/04/2015.
[No. L-12012/111/2006-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
DATED
:
18th March, 2015
PRESENT
:
SHRI S. N. NAVALGUND,
Presiding Officer
C.R. No. 06/2007
I Party
II Party
Sh. K V Nagendra,
The Assistant General
Manager,
S/o late Sri Venkatappa,
State Bank of Mysore,
Bhovi, Nr Bhovi Katte Mn Rd,
Regional Office,
KONANDUR-577 422
HASSAN.
Appearances
I Party
:
Shri D Leelakrishnan,
Advocate
II Party
:
Shri R Narayan,
Advocate
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1723
AWARD
1. The Central Government vide Order No. L-12012/111/
2006-IR (B-I) dated 31.01.2007 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 the management of State Bank of Mysore
is justified in imposing the punishment of compulsory
retirement from service on Sri K. V. Nagendra w.e.f.
30.04.2003? If not, what relief Sri K. V. Nagendra is
entitled?"
2. On receipt of the reference while registering it in C R
No. 06/2007 when notices were issued to both the parties,
I party entered his appearance through Sh. D. Leelakrishnan,
advocate and filed his claim statement on 09.07.2007 and
II Party entered its appearance through Sh. R. Narayan,
advocate and filed its counter statement on 17.12.2007.
3. The brief facts lead to this reference and award are as
under.
4. Sh. K. V. Nagendra (hereinafter referred as I Party)
while working as Cashier Clerk at the N. R. Pura Branch of
the State Bank of Mysore (hereinafter refferred as II Party)
was issued with charge sheet dated 18.02.2002 as under:
"Charge Sheet
It is alleged that on 29.10.2001 while you were working
as Acting head Cashier at around 12.45 p.m. you have
forcibly snatched away four (4) sections of Rs. 100/-
denomination notes from Sri Edwin, Deftary from out of
the cash given to him for stitching by Sri B. T. Sheshadrivasa,
Cashier Clerk. It is also reported that thereafter you returned
only two (2) sections of Rs. 100/- denomination notes to
daftary in front of Sri Sheshadrivasa. As such you have
not returned the other two (2) sections of Rs. 100/-
denomination notes and the same was misappropriated by
you. Thereafter the said amount of Rs. 20000/- (Rupees
Twenty Thousand only) was remitted by you on 22.11.2001
towards repayment of the amount misappropriated by you.
You have remitted a sum of Rs. 210/- towards the interest
for the same on 07.02.2002.
The above act of misappropriation on your part, if
proved, would amount to Gross Misconduct under clause
19.5 (j) of the 6th Bipartite Settlement. You are, therefore,
directed to show-cause within 15 days from the receipt of
this charge sheet as to why disciplinary action should not
be taken against you for gross misconduct. In case you fail
to submit your explanation within the time specified above,
it will be presumed that you have no explanation to offer
and necessary action would be taken without any further
reference to you.
Sd/-
Assistant General Manager II
And Disciplinary Authority"
being not satisfied with this reply dated 23.04.2002, the
Disciplinary Authority by appointing Sh. T.N.
Chandrashekaraiah, Branch Manager as Enquiry Officer
and Sh. M. B. Suryanarayana, Deputy Manager as
presenting Officer directed the I Party to face the enquiry.
The Enquiry Officer while observing the formalities of
preliminary hearing receiving the evidence of Sh. Sunder
M. R. Branch Manager of N. R. Pura Branch; Sh. Sheshadri
Vasa B. T. Cashier Clerk; Sh Edwin, Daftary and Sh. B. D.
Kamble, Assistant Manager Advances, Shedbal Branch as
BW 1 to BW 4 and exhibiting Attendance Register for the
month of October 2001; Key Register; Accountant Scroll
dated 29.10.2001; Branch Manager's Scroll dated 29.10.2001;
Rough Vault Register dated 29.10.2001; Vault Register
(copy) maintained by Accountant/Joint Custodian;
Operative Vault Register (copy) deposit and withdrawals
from 24.10.2001 to 29.10.2001; Suspense Account debit
voucher; credit voucher dated 22-11-2001; Transfer debit
voucher dated 07.02.2002; report of Branch Manager dated
02.11.2001 regarding cash shortage on 29.10.2001; letter
addressed to AGM, R2, MZ dated 29.10.2001 regarding
cash shortage on 29.10.2001; copy of the complaint letter
dated 29-10-2001 given by Sh. B. T. Sheshadri Vasa to
Branch Manager; copy of the complaint about the incident
occurred on 29.10.2001 given by B. T. Sheshadrivasa to
Branch Manager on 30.10.2001; copy of the complaint about
the incident occurred on 29.10.2001 given by B. T.
Sheshdrivasa to Branch Manager on 13.11.2001; letter of
Sh. Edwin addressed to Branch Manager about the incident
of 29.10.2001; letter addressed by Sh. Edwin to the Branch
Manager dated 29.10.2001; letter dated 10.11.2001
addressed by Sh. Edwin to Branch Manager, N. R. Pura,
regarding incident on 29.10.2001; letter dated 13.11.2001
addressed by Sh. Edwin to Branch Manager; letter of
Sh. B. D. Kamble, Assistant Manager Advances to Branch
Manager on 29.10.2001 and letter dated 29.10.2001 with
reference to the cash shortage on 29.10.2001as BEx-1 to
BEx-21 on behalf of the management and Smt. Nagalakshmi
A. S., Typist and Sh. Jinachandra, Cashier/Clerk and
exhibiting letter of Sh. B. D. Kamble to the Manager regarding
cash shortage dated 13.11.2001; letter of Smt. Prathibha M. G.
regarding the incident dated 29.10.2001 to the Manager
dated 10.11.2001; copy of cashier's receipt book dated
29.10.2001 and copy of Head Cashier receipt book a DEx-1
to DEx-4 on behalf of the defence, after submission of
written brief by both the sides, the Enquiry Officer gave
his enquiry report dated 20.12.2002 that in the light of
doctrine of Preponderance of probability the CSE is
considered as Guilty of Charges. On submission of the
enquiry report the Disciplinary Authority issued show-
cause notice dated 10.01.2003 and after receipt of the reply
from the I Party dated 06.03.2003 the Disciplinary Authority
vide order dated 24.04.2003 imposed the punishment order
of Compulsory Retirement from Service and then the I Party
vide his letter dated 15.03.2004 made an appeal to the Deputy
General Manager/Appellate Authority which came to be
1724
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
rejected by order dated 05.12.2004 and the I Party approached
ALC (C), Mangalore, in conciliation which ended in failure
vide his report dated 30.06.2006 which resulted in this
reference.
5. Having regard to certain allegations made in the claim
statement touching the fairness of the Domestic Enquiry
while raising a Preliminary Issue as to "Preliminary Issue"
after receiving the evidence adduced by both the sides the
said issue has been answered in the affirmative i.e., the
Domestic Enquiry conducted by the II Party is fair and proper
by order dated 11.08.2001. Thereafter, opportunity was given
to the I Party to lead evidence on victimization if any and
being not gainfully employed but no evidence is given and
submitting that he has no evidence on the same written
arguments was filed on merits.
6. Since the Domestic Enquiry conducted by the II Party
against the I Party has been held as Fair and Proper by order
dated 11.08.2011, the points that now arises for my
consideration are:
Point No. I: Whether the finding of the Enquiry Officer
charge is proved is perverse necessitating the interference
of this Tribunal?
Point No. II: If not, whether the punishment of
Compulsory Retirement from Service imposed by the
Disciplinary Authority affirmed by the Appellate Authority
is disproportionate?
Point No. III: What Order/Award?
7. On appreciation of the pleadings, oral and documentary
evidence placed on record in the Domestic Enquiry, in the
light of arguments put forward by both the sides my finding
on Points No. 1 and II are in the negative and Point No. III is
as per the final order for the following.
REASONS
8. In the written arguments filed on merits nothing has
been highlighted as to how the enquiry finding could be
held as perverse and much is discussed about the Domestic
Enquiry which has already been held as fair and proper. The
Charge against the I Party was being that while he was
working as Acting Head Cashier at N. R. Pura Branch at
around 12.45 p.m. he forcibly snatched 4 sections of
Rs. 100/- denomination notes from Sh. Edwin, Daftary from
out of the cash given to him for stitching by Sh. B. T.
Sheshdrivasa, Cashier Clerk and thereafter he returned only
two sections of Rs. 100/- denomination notes to daftary in
the presence of Sh. Sheshadrivasa and failed to return other
two sections of Rs. 100/- denomination notes and later on
22-11-2001 he remitted the said amount of Rs. 20000/- and
subsequently a sum of Rs. 210/- remitted towards interest
on 07.02.2002 and thereby committed gross misconduct under
clause 19.5 (j) of 6th Bipartite Settlement. It is seen from the
enquiry file after service of the charge sheet wherein he was
directed to show cause within 15 days of receipt of the charge
sheet after getting extended time twice by filing application
on 23.04.2002 he gave his reply just stating that the
allegations are totally false and baseless. Though on the
allegations of charges the very daftary Sh.Edwin examined
as BW 3 has deposed to and with regard to hue and cry by
Sh. Edwin and by his interference two sections of Rs. 100/-
denomination being returned by CSE is affirmed by the
cashier clerk Sh. B. T. Sheshadrivasa, Cashier Clerk examined
as BW 2 nothing has been elicited in their cross-examination
to disbelieve their version. Further the documentary evidence
produced at BEx-8 since do disclose he having remitted a
sum of Rs. 20000/- on 22-11-2001 alleged to have been
retained by him out of the amounts snatched from Sh. Edwin,
daftry and Rs. 210/- as interest on the said amount on
07.02.2002, absolutely, I find no reason to say the finding of
the Enquiry Officer charge is proved being perverse. Under
the circumstances, I have arrived at conclusion of answering
this point in the Negative.
9. Now coming to the aspect of punishment imposed for
the alleged misconduct, when a responsible Bank Employee
like I Party who was acting as Head Cashier on the day of
incident snatching away four section of Rs. 100/-
denomination notes entrusted to Daftry Sh. Edwin and after
he raised hue and cry at the intervention of other bank
employees by returning two sections of Rs. 100/-
denomination notes and by retaining the remaining two
section of Rs 100/- denomination of Rs. 20,000/- over a period
of 22 days and remitting the same and later interest on the
said amount do amount to a gross misconduct, there is no
reason to say the punishment of compulsory retirement
imposed being disproportionate. Under the circumstances,
having arrived at conclusion of answering second point as
well in the Negative, I pass the following.
ORDER
The management of State Bank of Mysore is justified in
imposing the punishment of compulsory retirement from
service on Sri K. V. Nagendra w.e.f. 30.04.2003 and that he is
not entitle for any relief.
(Dictated to UDC, transcribed by him, corrected and
signed by me on 18th March, 2015)
S. N. NAVALGUND, Presiding Officer
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 789-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh 17 ds vuqlj.k esa dsUnzh; ljdkj Oghy ,.M ,dly iaykV
izca/kra= ds lc) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] cSaxyksj ds iapkV lanHkZ la[;k ¼149@2007½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10@04@2015 izkIr gqvk FkkA
[lañ ,y&41012@183@2003&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1725
New Delhi, the 15th April, 2015
S.O. 789.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 149/2007) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Bangalore as
shown in the Annexure, in the industrial dispute between
the management of Wheel and Axle Plant and their
workmen, received by the Central Government on
10/04/2015.
[No. L-41012/183/2003-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
:
11th February, 2015
Present
:
Shri S N Navalgund,
Presiding Officer
C R No. 149/2007
I Party
II Party
Sh. E Mahesha,
The General Manager,
S/o Late Sh. Eshwar Rao,
Wheel and Axle Plant,
No. 59, Gavipuram Post,
Yelahanka,
Hanumanthanagar Post,
Bangalore- 560 064
Bangalore- 560 018
Appearances.
I Party
:
Shri B S Venkatesh
Advocate
II Party
:
Shri S R Khamroz Khan
Advocate
A W A R D
1. The Central Government vide Order No. L-41012/183/
2003-IR (B-1) dated 16.11.2007 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:
S C H E D U L E
"Whether the action of the management of
M/s. Wheel & Axle Plant, Ministry of Railways, in
not reinstating and regularizing services of
Shri E. Mahesha, is justified? If not, what relief
Shri E Mahesha is entitled to?"
2. On receipt of the reference while registering it in C R
149/2007 when notices were issued to both the parties, I
Party entered his appearance through Sh. B S Venkatesh,
Advocate and filed his claim statement, on 25.01.2008 and
II Party entered its appearance through Sh. S.R. Khamroz
Khan, advocate and filed counter statement on 10.02.2010
by post.
3. The I party in his claim statement asserts that he who
has studied upto 8th std. was engaged by the II party as
Substitute Emergency Peon on Pay scale of Rs. 2550 to
Rs. 3200 through an order dated 15.06.1988 and thereafter
by order dated 18.11.1998 he was conferred with status of
Temporary Peon having completed 120 days of services
and abruptly he was issued with letter of termination dated
23.05.2000 stating that he was engaged as Substitute
Emergency Peon by Sh. P K Chaterjee Ex-CME and as he is
transferred his services is no more required. It is further
asserted that he was engaged by the II Party and not by
Sh. P K Chaterjee and that he having worked continously
from 1988 to 2000 without any break his termination without
notice and compensation is illegal and unjustified and that
he is entitle for reinstatement with full backwages and all
other consequential benefits. Inter alia, in the counter
statement filed for the II Party it is conternded Rail Wheel
Factory being a production unit of Indian Railways the
Administrative Grade Officers being entitle to have one
emergency Peon in Group D of their choice
Sh. P.K. Chaterjee who was working as chief Mechanical
Engineer in Senior Administrative Grade was provided with
the services of the I Party by giving an offer of engagement
and on acceptance of the said offer his services were
engaged as Substitute Emergency peon in the scale of Rs.
2550 to Rs. 3200 w.e.f. 24.06.1998 and was attached to work
under Sh. P K Chaterjee then working as Chief Mechanical
Engineer and the averments of the claim statement that he
was engaged as Substitute Emergency Peon since 1988 is
not correct. It is further contended since the I Party
completed 120 days of service as Substitute Emergency
Peon he was granted a temporary status w.e.f. 18.11.1998
and was given all benefits admissible to temporary railway
employees which does not confer any permanent status
and consequent to transfer of Sh. P.K. Chaterjee to South
Eastern Railway, Kolkata and his successor or any other
Grade Officers did not wish to avail his services his services
came to be terminated w.e.f. 23.05.2000 as per clauses 4 and
5 of the offer of the appointment. Thus, it is contended the
I Party having accepted the terms and conditions of offer
of appointment wherein it is stated his services could be
terminated within 3 years in the event of his services not
being required by the Officer to whom he is attached or in
case the officer to whom he is attached is transferred his
contention that his termination is illegal and oppose to the
1726
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
natural justice etc. is not acceptable. It is also contended
that in O A 896/1995 read with OA 1764/1992 and O A
817/1994 between Sham Sundar, Bungalow Peon vs.
Northern Railways and other before the Principal Bench of
Central Administrative Tribunal, the termination of
Substitute bungalow Peon/Khalasi who has acquired
temporary status being held not bad or illegal for want of
notice before termination the assertion that his termination
without notice is bad has no force. Thus, it was prayed for
rejection of the reference. Later by way of amendment it is
contended that I Party is not workman within in the meaning
of Section 2(s) of the ID Act as such the reference is not
maintainable.
4. With the above pleadings when the matter was posted
for evidence the learned advocate appearing for the II Party
while filling the affidavit of Sh. R Narasimha Murthy, Chief
Staff and Welfare Inspector reiterating the contents of the
counter statement examining him on oath as MW 1 got
marked Authorisation letter given in his favour by the Chief
Personnel Manager dated 30.08.2010; Offer of appointment
and Acceptance of I party dated 24.06.1998; Officer Order
dated 24.06.1998 for engagement of I Party; Memorandum
confirming with temporary status in respect of I Party and
two others dated 18.11.1998; copy of office order dated
23.05.2000 regarding termination of service of I Party as Ex
M-1 to Ex M-5 and closed his side. Inter alia, the learned
advocate appearing for the I Party while fiting the affidavit
of I Party reiterating the contents of the claim statement
examining him on oath as WW 1 closed his side and when
the matter to be posted for arguments, whereas, counsel
appearing for the II Party addressed his oral arguments.
5. On appreciation of the pleadings, oral and
documentary evidence brought on record by both the
parties in the light of the arguments put forward by them,
I have arrived at conclusion that the II Party being justified
in not reinstating and not regularising the services of the I
Party and that he is not entitle for any relief for the following.
REASONS
6. There is no material to substantiate the allegation of
the claim statement the I party having worked from 1988.
On the other hand he having categorically admitted in his
cross-examination that he was appointed as per Ex M-2
dated 24.06.1998 his appointment as Substitute Emergency
peon w.e.f. 24.06.1998 and not from 15.06.1988 as contended
by the II Party is correct. When he categorically admits
that his appointment was as per Ex M-2 which is an offer of
appointment accepted by him and as per this documentary
evidence i.e. offer appointment produced at Ex M-2 it was
proposed to engage him as Substitute Emergency Peon/
Group D on pay of Rs. 2550.00 in scale Rs. 2550 to Rs. 3200
for attaching to Sh. P K Chaterjee, Ex- CME/G and that his
engagement will not confirm upon him any right to claim
for further continuance in the Railways and is liable to be
discharged without notice when his services will not be
requred by the Administration or on expiry of the currency
for the post against which he was employed and can be
discharged by giving 15 days notice in case his working is
found unsatisfactory and that he will not be considered for
transfer as substitute Emergency Peon from One Railway
to another Railway in case of the transfer of Officer to
whom he is attached and his service at Emergency peon
stands terminated automatically he that he has no right for
asborption. Since the I party accepted these terms and
conditions and put his signature marked as M-2(a) the
contention of the II Party has to be accepted. Since there
is no dispute that Sh. P K Chaterjee, CME was being
transferred to South Eastern Railways, Kolkatta the
termination of the services of I Party being as per the terms
and conditions of the appointment the II Party is justified
in not entertaining his request/claim for reinstatement and
regularising his services. In the result, I pass the following.
O R D E R
The action of the management of M/s. Wheel and Axle
Plant, Ministry of Railway, in not reinstating and regularizing
services of Shri E Mahesha, is justified and legal and that
he is not entitle for any benefits.
(Dictated to UDC, transcribed by him, corrected and
signed by me on 11th February, 2015)
S. N. NAVALGUND, Presiding Officer
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 790-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ eSlwj
izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkSn~;ksfxd fookn esa dsUnzh; ljdkj vkSn~;ksfxd vf/kdj.k]
cSaxyksj ds iapkV ¼lanHkZ la[;k 54@2005½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 10@04@2015 dks izkIr gqvk FkkA
[la- ,y&12012@160@2000&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 790.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 54/2005) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Bangalore as
shown in the Annexure, in the industrial dispute between
the management of State Bank of Mysore and their
workmen, received by the Central Government on
10/04/2015.
[No. L-12012/160/2000-IR (B-I)]
SUMATI SAKLANI, Section Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1727
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
: 8th April, 2013
Present
: SHRI S. N. NAVALGUND,
Presiding Officer
CR No. 54/2005
I Party
II Party
Sh. A Ramesh,
The Managing Director,
S/o P Appaji Gowda,
State Bank of Mysore.
Madapura Doddi
Head Office,
(Colony), Nidghatta Post,
Kempegowda Road.
Athakura
Bangalore-560 009.
Hobli, Maddhur Taluk,
Mandya District
Appearances
I Party
:
Sh. A J Srinivasan
Advocate
II Party
:
Sh. R Narayana
Advocate
A W A R D
1. The Central Government pursuant to the Order of
Hon'ble Court of Judiciary for Karnataka, Bangalore in W P
No. 33999/2001 dated 17.08.2005 wherein it set aside the
Order of the Ministry declining the reference and directed
to refer the dispute vide its Order No. L-12012/160/2000-
IR(B.1) dated 05.12.2005 made this reference for adjudication
on the following schedule:
SCHEDULE
"Whether the demand of Shri A Ramesh, former casual
workman of State Bank of Mysore, Bangalore is
justified in re-employment and regularization of
services by the management of State Bank of
Mysore? If so, what relief the workman entitled to?"
2. On receipt of the reference registering it in C R
54/2005 when the notices were issued to both the sides
both appeared through their respective advocates and I
party filed his Claim Statement on 24.4.2006 whereas II party
its Counter Statement on 07.07.2006.
3. The I party in its Claim Statement asserts that he
started working as an Attender at Gangenahalli Branch of
the II party from 15.12.1992 and worked till 01.03.1994 for
about 15 months against a Permanent Vacancy and was
working from 09.00 a.m to 04.00 p.m. but he was called as a
Temporary Peon and the II Party which on several occasions
called for applications for regularisation under various
schemes did not regularise his service and that he was not
allowed to work from 01.03.1994 in the said branch saying
that he had already worked for 250 + 42 days and they
cannot allow any person to work for more than 240 days
and there after he approached Manager of Jayanagar
Shopping Complex of the II party to provide him
employment and he was allowed to work there from
12.12.1994 to 03.01.1995 and the payment of salary was
made through S B Account bearing No. 11589 and that his
Attendance was maintained in Book No. 4086 in pages 84,
85, 86 and that the Branch Manager of that Branch denied
him work and thereafter he approached the Manager of the
Seshadripuram Branch and then he was given work from
06.04.1994 and in the year 1996 one Sh. B S Dayanand,
Field Officer who came on transfer to that branch for
extraneous reasons refused him employment from
01.10.1997, thereafter, he sent a representation to the higher
officers and as it did not yield any result he made a
representation to the Regional Office of the II Party Bank
to permit him to resume duty and as that also did not yield
any result as a last resort he approached the Labour and
Conciliation officer and as the II Party did not co-operate
it ended infailure and thereafter as Government refused to
refer the matter for adjudication for untenable grounds on
his challenge before the Hon'ble High Court of Karnataka
it quashed the order of the government and directed to
reconsider and thereafter the government on reconsidering
the matter referred this dispute for adjudication. Inter alia,
the II party in its counter Statement contends that the I
party was being employed on a Temporary/Casual basis
on need basis whenever Permanent Workmen either
proceed on leave or remain absent as such he cannot have
any claim for absorption or permanent employment and
further denying all other averments of the claim statement
contended I party having worked in its Gangenahalli Branch
during December 1993 to March 1994 for a period of 88
days and in no year he has worked for 240 or more than 240
days there is neither Termination nor Illegal Retrenchment.
Thus, it is contended the I Party is neither entitle for re-
employment nor regularisation of service as claimed by
him.
4. After completion of the pleadings when the I party
was called upon to lead evidence, he filed his affidavit in
lieu of his evidence reiterating the Claim Statement and
examined himself on oath as WW 1 and got exhibited
Photostat copy of a letter submitted by him to General
Manager, State Bank of Mysore on 15.12.1992 seeking
employment; Photostat copy of a letter by Gangenahalli
Branch Manager of the II party to the Manager of its Service
Branch dated 24.12.1993 deputing the I Party to collect
clearing charges; Photostat copy of a certificate issued by
Manager, Shopping Complex, Branch Jayanagar, of II Party
1728
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
certifying I Party having worked in that branch during
August 1994 to April 1995 for a period of 178 days as
Temporary Peon; Photostat copies of 35 vouchers
regarding payments received by him; Photostat copy of
the Attendance of the I party for the period from 06.04.1996
to 18.09.1997; a Certificate issued by Manager, Gangenahalli
Branch of the II party dated 17.03.1994 certifying I party
having worked in that branch as Temporary Peon for
87 days between December 1993 to February 1994; a letter
received by I party from General Secretary, Bank of Mysore
Employees Union calling upon him to appear and explain
in detail to the II party with reference to his letter dated
09.03.1995; a Letter received by the I party dated
05/21.01.1998 from Investigating Officer of the II Party Bank
advising him to meet him in connection with his request for
appointment as Ex W-1 to Ex W-8 respectively. Inter alia,
on behalf of the II Party while filing the affidavit of G
Ganganaik, Manager II Party Ganganagar Branch examined
him on oath as MW 1 and got exhibited Certified extract of
daily wages paid to I Party from December 1993 to March
1994; Statement showing the number of days worked by
the I Party from October 1994 to February 1995; Statement
of Temporary appointment during Oactober 1994 and bonus
paid to I Party workman; extract of daily wages paid to I
Party from 06.04.1996 to 18.09.1997 with the statement
regarding appointment of temporary peons (Sub-staff);
General Circular No. 182/2002-03 dated 29.01.2003 regarding
management of Records — Policy and Procedure as Ex
M-1 to Ex M-4 respectively.
5. With the above pleadings, oral and documentary
evidence the argument addressed by both the sides were
heard.
6. There being no dispute that service of I party was
availed in different branches of the II Party on his request
as a Temporary Peon and he failed to place on record any
evidence having worked in any block period of 12 months
for a period of 240 days or more than 240 days and the
learned adovcate appearing for the I Party either in the
claim statement or in the evidence or in his arguments
pointed out any provision/basis under which such a
Temporary/Casual Workman is entitled for Re-employment
and Regularisation of Services. It is only under Section
25(f) of Industrial Disputes Act, 1947 no workman employed
in any industry who has been in continuous service for
240 days can be terminated from service without giving
one months' notice in writing indicating the reasons for
termination and the period of notice has expired or the
workman has been paid in lieu of such notice, wages for
the period of notice and compensation equivalent to 15
days average pay for every completed year of service or
any part thereof in execess of six months and termination
without such compliance amounts to Retrenchment. In view
of the provisions of the Section 25(f) of the Industrial
Disputes Act whenever the provisions of the same are not
complied with it would amount to illegal retrenchment and
the workman would get a right to ask for reinstatement,
backwages etc., but it does not confer any right on the
workman for being permanently absorbed in the
establishment. In the present case as already adverted to
by me above there being no evidence the I party workman
having worked continuously for 240 days in any 12 months
block period the provisions of Section 25(f) are not attracted
in the present case, therefore, the I party workman failed to
make out any case either for his re-employment/
reinstatement or for regularization of services in the II
party bank. Since the Service of the I Party workman was
availed by the II party on need basis whenever the Regular
Employees proceed on leave or remain absent for any
reasons or the post lie vacant due to transfer not providing
him work whenever there is no necessity it does not amount
to termination or retrenchment as it is a purely temporary
service. In the result, I have arrived at conclusion the
demand of Sh. A Ramesh, former casual workman of State
Bank of Mysore, Bangalore is justified re-employment and
regularisation of service by the management of State Bank
of Mysore is not justified and that he is not entitle for any
relief. Hence, I pass the following Order:
ORDER
The reference is rejected holding that the demand of Sh.
A Ramesh, former casual workman of State Bank of
Mysore, Bangalore is justified re-employment and
regularisation of service by the management is not justified
and that he is not entitle for any relief.
(Dictated to UDC, transcribed by him, corrected and
signed by me on 8th April, 2013)
S.N. NAVALGUND, Presiding Officer
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 791-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
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izca/kr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
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lqehr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 791.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 112/2013) of the
Central Government Industrial Tribunal-cum-Labour Court,
No-1, Delhi as shown in the Annexure in the Industrial
Dispute between the management of the Prathma Bank,
and their workman, received by the Central Government on
10/04/2015.
[No. L-12011/75/2013-IR(B-I)]
SUMATI SAKLANI, Section Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1729
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. 112/2013
Shri Rakesh Kumar Verma,
R/o Katghar Mehbulla Ganj,
Near Saini Dharamshala,
Moradabad, Uttar Pradesh
...Workman
Versus
The Chairman,
Prathma Bank,
Head Office,
Ramganaga Vihar,
Phase II,
Moradabad, Uttar Pradesh
... Management
AWARD
Relevant facts necessary for disposal of the reference
petition received under Section 10 of the Industrial Disputes
Act, 1947, are that the workman herein joined services of
Prathma Bank on 01.10.1985 and became permanent on
31.12.1986. Later on, he was dismissed from services by
the Chairman of the bank vide order dated 17.07.1991, which
reads as under:
"For the gross misconduct committed by Shri Ramesh
Kumar Verma, Messenger (under suspension) Lal
Bagh branch be and is hereby dismissed from
services of the bank with immediate effect."
2. As per averments, there were two unions in the bank;
one was affiliated to AIBEA and the other was sponsored
by the bank as a puppet union. The claimant herein was a
member of AIBEA, which represents the employees of all
nationalized Banks (except SBI). Due to inter union rivalry,
the claimant herein was made a scapegoat by the employer
on account of so called misbehaviour due to malafide
transfer from Lal Bagh Branch, Moradabad to Chander
Nagar branch, Moradabad. Claimant, due to illness of his
wife, met the Chairman and requested for cancellation/
withdrawal of the said order of tranfer, which was termed
as misbehaviour by the bank.
3. It is also alleged in the statement of claim that
misbehaviour comes under the category of 'minor
misconduct' and for such misbehaviour, harsh punishment
of dismissal cannot be inflicted by the employer on the
workman. There was no independent evidence to prove
the charge of misbehaviour. Findings of the disciplinary
proceedings were recorded and the order of dismissal was
passed without affording any opportunity to the claimant.
Thereafter, the claimant sent notice dated 17.09.2012 to the
employer, through speed post, for his reinstatement.
However, no reply was given by the bank. Resultantly, a
dispute has been raised by the claimant. The claimant also
preferred an appeal against the order of dismissal before
the Board of Directors of the bank, which was presided;
over by the Chairman of the bank, who in a jugglery manner
upheld the order of dismissal. It is also alleged that the
Assistant Labour Commissioner, Dehradun closed the case
in the absence of the claimant on 17.08.2009 and the claimant
herein was not properly advised and also sought relief
through Civil Court, Moradabad. Thereafter, a writ was
also filed before the Hon'ble High Court of Allahabad and
an SLP was filed before Supreme Court of India, which was
dismissed on 23.04.2012.
4. The Hon'ble Apex Court condemned the delay and
held that the claimant is entitled to raise an industrial dispute
before the Assistant Labour Commissioner, Dehradun.
Wrongful order of dismissal passed by the management is
purely arbitray, punitive and bad in law, which was not
trailed in the provisions of the Industrial Disputes Act.
Lastly, the claimant has made a prayer for his reinstatement
and setting aside the order of termination dated 17.07.1991
with all consequential benefits.
5. Reply was filed to the above petition on behalf of the
bank, wherein specific preliminary objections were raised
regarding raising earlier industrial dispute as well as filing
of various appeals by the claimant herein, have been taken.
It is alleged that the claimant challenged order of dismissal
dated 17.07.1991 before the Hon'ble High Court of
Allahabad vide Writ Petition No. 34751 of 1992 titled 'Rakesh
Kumar Verma vs. Prathama Bank, Moradabad' and the
Hon'ble High Court dismissed the writ petition vide
judgement dated 27.09.2004. Special Appeal was also filed
against the said judgement before the Division Bench of
Hon'ble High Court vide Special Appeal No. 1521 of 2004,
which was also dismissed vide judgement dated 21.09.2011,
holding that no prejudice has been caused to the petitioner
nor there is any violation of principles of natural justice.
Thereafter, the claimant filed an SLP before the Hon'ble
Apex Court, which was dismissed on 23.04.2012. Claimant
also attempted to re-open the issue before the Assistant
Labour Commissioner, Dehradun vide reference No. F-D-
8(82)/2012-ALC, and failed there also. Thus principle of res
judicata is applicable in the case and it would not be proper
to re-open and re-adjudicate the issue which has already
been decided by the Hon'ble High Court as well as Hon'ble
Apex Court.
6. Against this factual background, this Tribunal vide
order dated 15.10.2013 framed the following issues:
1. Whether order dated 27.09.2004 passed by High
Court of Allahabad, which has been reaffirmed in
special appeal as well as special leave application
operates as res judicata?
2. As in terms of reference.
1730
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
7. Since issues were purely legal in nature, as such both
the parties were directed by my learned predecessor to file
written arguments, which are now on record.
8. I have heard Shri D.K. Santoshi, A/R for the claimant
and Shri N.K. Thakur, A/R for the management.
Findings on issue Nos. 1 and 2
9. Both these issues are being taken up together for the
purpose of discussion as they are inter-related and can be
conveniently disposed off. It is clear from the record that
reference has been made by the appropriate Government
to this Tribunal and the same are thus:
"Whether the action of the management of Prathma
Bank in terminating the services of Shri Rakesh Kumar
without complying with provisions of 25F, G, H of
the ID Act, is justified? If so, what relief the workman
is entitled to?
10. It is apperent from perusal of the record that the
claimant herein was charge sheeted for commission of
misconduct and was dismissed from service by Chairman
of the bank vide order dated 17.07.1997. Order of dismissal
clearly shows that the claimant herein was a person who
does not want to improve and as such cannot be trusted
with any responsibility. He is a subordinate staff member
and does not obey orders of his superiors and disregards
the same. It is an example of extreme indicipline and
highhandedness. It was on account of these circumstances
that extreme order of dismissal was passed against the
claimant.
11. It is also evident from the pleadings as well as
documents on record that the claimant herein filed appeal
against order of dismissal and the same was also not
accepted.
12. Claimant also challenged order of dismissal passed
by the bank by way of writ petition before the Hon'ble
High Court of Allahabad titled 'R.K. Verma Vs. Prathma
Bank, Moradabad etc.' vide Civil Miscellaneous Writ
Petition No. 34751 of 1992 and the said writ petition was
dismissed on merits by the Hon'ble High Court on
27.09.2004. In the above writ petition, claimant has
specifically taken the plea that he was not supplied with
copy of the enquiry report or findings of the Enquiry Officer
before passing of the order of dismissal. Secondly,
submission was also raised that order of dismissal if very
harsh in nature. Both these pleas raised by the claimant
were rejected by the Hon'ble High Court vide judgement
dated 27.09.2004. Thereafter, the claimant filed special
appeal bearing No. 11521 of 2004 against the judgement of
the Single Judge of Hon'ble High Court of Allahabad titled
'Rakesh Kumar Verma vs. Prathma Bank Management and
others' and the said appeal was also dismissed by the
Division Bench of Hon'ble High Court of Allahabad by
observing as under:
"Admittedly, the petitioner being class IV employee
in the bank, amenable to the jurisdiction of the Special
Act know as 'Industrial Dispute (Banking &
Insurance Companies) Act, 1949. The suit filed by
him was not maintainable in so far as domestic enquiry
is concerned. It is settled law that civil court has no
jurisdiction in such matters being special Act. Hence
the cases cited above by learned counsel for the
petitioner, are not applicable in the present facts and
circumstances of this case as they pertain to service
law.
In the facts and circumstances, the Court is of the
view that neither prejudice has been caused nor any
violation of principles of natural justice has been
committed due to non supply of such inquiry report.
For all reasons stated above, the appeal is,
accordingly, dismissed."
13. Lastly, the claimant filed SLP under Article 135 of the
Consititution of India, which was also dismissed by the
Hon'ble Apex Court on 23.04.2012, wherein it was held as
under:
"Delay condoned.
Having heard the learned counsel for petitioner and
after perusal of the record, we are not inclined to
interfere with the impugned judgement.
Special Leave Petition is, accordingly, dismissed."
14. Thus, it is clear that the action of the management is
dismissing the claimant herein from service has been upheld
by the Hon'ble High Court of Allahabad and SLP against
the said judgement also was dismissed by the Hon'ble Apex
Court.
15. Now, the question which services for consideration
is as to whether the Tribunal can re-open those issues
which have already been adjudicated. Doctrine of res
judicata provides that no court shall try any suit or issue in
which matter or substantially in issue in a former suit has
been adjudicated by a court of competent jurisdiction.
Admittedly, claimant herein was dismissed from service on
17.07.1991 and appeal filed by the claimant before the
Appellate Authority of the bank was also dismissed on
29.02.1992. Not only this, as discussed above, writ petitions
filed by the claimant was also dismissed by the Hon'ble
High Court of Allahabad and finally SLP against the
judgement of the Hon'ble High Court of Allahabad filed by
the claimant was dismissed on 27.09.2004.
16. It is settled principle in law that when a matter has
been decided by a court of competent jurisdiction on merits
and the same has attained finality, such matters cannot be
re-opened by filing fresh petition before the Tribunal.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1731
17. During the course of arguments, reliance was placed
on behalf of the claimant upon the case of Sarva Shramik
Sangh vs Indian Oil Corporation & others (AIR 2009 SCC
2355). It was case where the first petition was filed under
Section 10 of the Industrial Disputes Act seeking relief of
evolution of contract labour system in operation of canteen
and for absorption of the canteen workers. The said
reference was dismissed on merits and thereafter second
petition seeking fresh reference under Section 10 of the
Act was sought on the grounds as to whether contract
between the principal employer and the canteen contractor
was sham, nominal and a mere camouflage. It was against
this background that the Hon'ble Apex Court held that
relief in both the petitions were different and when the
parties are different, issues are different and relief sought
in both the petitions are different, there is no question of
res judicata. It also clear that the Hon'ble Apex Court in the
above case held that writ of mandamus would be issued to
the appropriate government to reconsider the refusal to
make a reference. Circumstances in the case in hand are
entirely different. Relief which is being claimed here has
already been claimed by the claimant by filing writ petition
before the Hon'ble High Court of Allahabad. Thereafter,
the claimant herein also filed special appeal, as mentioned
above, before the Hon'ble High Court of Allahabad seeking
same relief, i.e. regarding setting aside of order of dismissal.
Finally, the Hon'ble Apex Court also upheld the judgements
of the Allahabad High Court and did not grant any relief to
the claimant. Under such circumstances. I am of the
considered view that issues which have already been
adjudicated and findings regarding the same have been
given by the Hon'ble High Court, in that eventuality, this
Tribunal is not competent to take a contrary view inasmuch
as all these issues are covered by the principle of res
judicata. Consequently, it is held that the order passed on
22.09.2004 of the Hon'ble High Court of Allahabad are re-
affirmed in the appeal as well, operates as res judicata
between the parties.
18. As a sequel to my discussion hereinabove, it is held
that decision of the Hon'ble High Court, Allahabad as
affirmed in S.LP. by Hon'ble Apex Court operate as res
judicata. Therefore, there is no question of compliance of
provisions of Section 25F, G and H by the bank inas much
as Section 25F and 25G as well as Section 25H has no
application when an employee has been charge sheeted
and finally dismissed from service. It is not a case of notice
of one month as required under Section 25F of the Act.
Resultantly, provisions of Section 25G and Section 25H
which deal with procedure for retrenchment and re-
employment of claimant are not attracted so far as the case
of claimant herein is concerned. Finally, no relief can be
granted to the claimant. An award is accordingly passed.
Let this award be sent to the appropriate Government, as
required under Section 17 of the Industrial Disputes Act,
1947, for publication.
A.C.DOGRA, Presiding Officer
Dated: March 13, 2015
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 792-—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k]
eqEcbZ ds iapkV lanHkZ la[;k ¼49@2009½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 15@04@2015 dks izkIr gqvk FkkA
[lañ ,y&12011@68@2008&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 15th April, 2015
S.O. 792.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 49/2009) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, No. 2, Mumbai
as shwon in the Annexure, in the industrial dispute between
the management of State Bank of India and their workmen,
received by the Central Government on 15/04/20015.
[No. L-12011/68/2008-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL
NO. 2, MUMBAI
PRESENT
K. B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/49 OF 2009
EMPLOYERS IN RELATION TO THE
MANAGEMENT OF STATE BANK OF INDIA
The Dy. General Manager (I)
State Bank of India
H-18, Block-B, Madhuli Building
Dr. Annie Besant Road
Shivsagar Estate
Worli, Mumbai-400 018
AND
THEIR WORKMEN
The General Secretary
State Bank of India Staff Union (Mumbai Circle)
'Synergy' State Bank of India
Bandra Kurla Complex
Kurla (W), Mumbai
1732
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
APPEARANCES:
FOR THE EMPLOYERS
:
Mr. M. G. Nadkami
Advocate.
FOR THE WORKMAN
:
Mr. M. B. Anchan,
Advocate.
Mumbai, dated the 31st January, 2015
AWARD PART-II
The Government of India, Ministry of Labour &
Employment by its Order No. L-12011/68/2008-IR (B-I), dated
20.5.2009 in exercise of the powers conferred by clause (d)
of sub-section (1)and sub-section 2 (A) of Section 10 of
the Industrial Disputes Act, 1947 have referred the
following industrial dispute to this Tribunal for
adjudication:
"Whether the action of Dy. General Manager, State
Bank of India, Worli, Mumbai imposing the
punishment of removal from services with
superannuation benefit on Shri P.M. Sumara, is legal
and justified? If not, what relief the workman is
entitled to?"
2. The second party workman was an employee of the
first party Bank. It is alleged that the workman has
withdrawn more amount than the o/d limit of Rs. 53,500/-
Therefore workman was charge-sheeted for overdrawing
the amount than the sanctioned o/d limit. The Inquiry Officer
held the workman guilty for overdrawing the amount more
than the sanctioned limit. On the basis of his report
Disciplinary Authority awarded punishment of removal from
services with spurannuation benefit to the workman. The
workman raised industrial dispute. As conciliation failed
the Ministry sent the reference to this Tribunal. In Part-I
Award, the inquiry was held fair and proper and the findings
of the Inquiry Officer declared as not perverse. Thereafter
I heard arguments of both the parties on the point of
punishment.
3. In this Part-II award following are the remaining issues
my determination. I record my findings thereon for the
reasons to follow:
Sr.
Issues
Findings
No.
2.
Whether punishment of removal
No.
from services is shockingly
disproportionate to the proved
misconduct?
3.
If not, what relief the workman
is entitled to?
No relief.
4.
What order?
As per order
below.
REASONS
Issue no. 2 & 3:
4. On the point of punishment the Id. adv. for the second
party submitted that, it is the first misconduct of the
workman and there were no allegations of his previous
misconduct. He further submitted that the second party
workman has not withdrawn amount from the account of
any customer of the Bank. On the other hand he has
withdrawn the amount under bona-fide belief that o/d limit
is upto Rs. 3 lakhs when it was much less than that. He
further pointed out that it has also come on record that
there was some problem in the software due to which
extended o/d limit was shown. The MW-1 (Ex-30) Mr. D.M.
Chavan who was the IO has admitted in his cross that
workman has withdrawn the amount by cheque and cash
also. He has also admitted that cheque was passed as limit
was there in the system. The Id. adv. further submitted that
the same witness has admitted in his cross that the
workman has returned the alleged excess amount before
the inquiry started. He has also further admitted in his
cross that there is no loss to the Bank. In this backdrop the
Id. adv. for the second party workman submitted that the
punishment of removal for services is shockingly
disproportionate.
5. As against this the Id. adv. for the first party submitted
that, once the misconduct is proved, nature of punishment
to be imposed is the power of disciplinary authority. Further
he submitted that though there were no allegations of
previous misconduct, it is not sufficient to take any lenient
view. In support of his argument, Id. Adv. resorted to Apex
Court ruling in N. Rajarathinam V/s. State of T. N. & Anr.
(1996) 10 SCC 371. In para 3 of the judgement the Hon'ble
Court on the point observed that:
"While making decision to impose punishment of
dismissal from service, if the disciplinary authority
had taken the totality of all the facts and
circumstances into consideration, it is for the
authority to take the decision keeping in view the
discipline in the service. Though this Court is
empowered to go into the question as to the nature
of the punishment imposed, it has to be considered
in the peculiar facts and circumstances of each case.
No doubt, there is no allegation of misconduct
against the officer during his earlier career. But is
does not mean that proved allegation is not sufficient
to impose the penality of dismissal from service."
6. The Id. adv. for the first party further submitted that
employees in the banking business should be devoted to
his work and his integrity should be beyond doubt and he
must be honest. Otherwise confidence of public would be
imparied. He further submitted that dishonest element
should not be allowed to continue in the employment of
the Bank. In support of his argument the Id. adv. resorted
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1733
to Apex Court ruling in Union Bank of India v/s
Vishwamohan (1998) 4 SCC 310 wherein on the point
Hon'ble court observed that:
"It needs to be emphasized that in the banking
business absolute devotion, diligence, intergrity and
honesty need to be preserved by every bank
employee and in particular the bank officer. If this is
not observed, the confidence of the public depositors
would be impaired."
7. In this respect the Ld. Av. for the second party pointed
out that in both the above referred cases the workman
therein were found guilty of serious misconduct. Whereas
in the case at hand the workman was found guilty merely
for overdrawing the amount of o/d than the sanctioned
limit. He pointed out that it was due to some fault in the
software and the workman has repaid the entire amount.
Therefore the ratio in the above cases will not be attracted
to the set of facts of the present case.
8. In this respect the Ld. Adv. for the first party submitted
that one misappropriation is proved, it is immaterial whether
it was of large or small amount and the punishment of
dismissal cannot be interfered with. In support of his
argument he referred Appex Court rulling in Municipal
Corporation Bharadurgarh V/s. Krishnan Bihari and Ors.
AIR 1996 SC 1249 wherein on the point in para 4 of the
judgment the Hon'ble Court observed that;
".....in case involving corruption there cannot be any
other punishment than dismissal. Any sympathy
shown in such ases is totally uncalled for and
opposed to public interest. The amount
misappropriated may be small or large, it is an act of
misappropriation that is relevant.".
9. On the point Ld. Adv. for the first party also cited
another Apex Court ruling in Ganesh Santa Ram Sirur V/s.
State Bank of India and Anr. AIR 2005 SC 314. In para 33 of
the judgement Hon'ble Court referred its earlier judgement
2003(3) SCC 605 and reiterated the observations:
"If the charged employee holds a position of trust
where honesty and integrity are inbuilt requirements
of functioning, it would not be proper to deal with
the matter leniently. Misconduct in such cases has
to be dealth with iron hands. Where the person deals
with public money or is engaged in financial
transactions or act in a fiduciary capacity, the highest
degree of integrity and trustworthiness is a must
and unexceptionable.
10. The Ld. Adv. also referred another ruling of Apex
Court in State Bank of Bikaner and Jaipur V/s. Nemi Chand
Nalwaya (2011) 4 SCC 584 wherein in para 8 of the judgement
Hon'ble Court on the point of termination of services of
Bank Employee observed that:
"Whether the punishment of "termination from
service" imposed upon a bank employee is
shockingly excessive or disproportionate to the
gravity of proved misconduct, loss of confidence in
the employee will be an important and relevant
factor."
In this case Apex Court further observed that;
"A Bank is justified in contending that not only
employees who are dishonest but those who are
guilty of negligence are not fit to continue in its
service."
11. The Ld. Adv. for first party also cited another Apex
Court ruling in Janatha Bazaar South Canara Central Co-
operative Wholesale Stores Ltd. and Ors. V/s. Secretary,
Shahakari Noukarana Sangh and Ors. 2000 II LLJ 1395
wherein the Hon'ble Apex Court reiterated it's earlier view
taken in Punjab Dairy Development case (1997) 6 SCC 159.
Wherein the Hon'ble Court has observed that;
"In view of proof of misconduct a necessary
consequence will be that management has lost
confidence that the workman would truthfully and
faithfully carry out his duties and consequently the
Labour Court rightly declined to exercise the power
under Section 11-A of the I.D. Act to grant relief with
minor penalty."
12. The Ld. Adv. also cited following ruling on the point
of punishment. They are:
(1) Suresh Pathrella V/s. Oriental Bank of Commerce
(2006) 10 SCC 572.
(2) State Bank of India V/s. Bela Bagchi and Ors.
(2005) 7 SCC 435.
(3) Regional Manager, Rajasthan State Road
Transport CorporationV/s. Sohanlal (2004) 4 SCC
218.
13. In all these judgements the Hon'ble Court has held
that the Bank employee should discharge his duties with
utmost integrity, honesty, devotion and diligence and to
do nothing which is unbecoming of a bank official. In respect
of dishonest employee the Hon'ble Court also held that to
continue such an employee in the mployment of
Corporation by virtue of judicial verdict would be an act of
misplaced sympathy which can find no foundation in law
of equity.
14. In the light of above cited ruling the Ld. Adv. for the
first party further submitted that the disciplinary authority
has already shown leniency to the workman and had
imposed punishment of removal with all superannuation
benefits. Therefore though services of workman are
terminated he can get all the superannuation benefits. In
the light of these rulings, the request of the workman to
take lenient view and to reinstate him in service does not
1734
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
stand to reasons. In this back drop I decide the issues Nos.
3 and 4 in the negative and proceed to pass the following
order:
ORDER
The reference stands dismissed with no order as to cost.
Date: 31st January, 2015
K.B. KATAKE, Presiding Officer
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 793-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ banksj
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]
tcyiqj ds iapkV ¼lanHkZ la[;k 186@98½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 15@04@2015 dks izkIr gqvk FkkA
[lañ ,y&12012@336@97&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 793.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 186/98) 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 15/04/2015.
[No. L-12012/336/97-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM -LABOUR COURT,
JABALPUR
No. CGIT/LC/R/186/98
PRESIDING OFFICER: Shri R.B. PATLE
General Secretary,
Daily Wages Bank Employees Association,
9, Sanwer Road,
Ujjain
...Workman/Union
Versus
Managing Director,
State ABank of Indore,
Head Office, 5, Yeshwant Niwas Road,
Indore
...Management
AWARD
Passed on this 23rd day of March, 2015
1. As per letter dated 10.08.98 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-12012/
336/97-IR(B-1). The dispute under reference relates to:
"Whether the action of the management of State bank
of India in terminating the services of Shri Chandrapal
Kaushal w.e.f. 05.12.96 and not regularizing him is
justified? If not, to what relief the workman is entitled
for?"
2. After receiving reference, notices were issued to the
parties Statement of claim is submitted by General Secretary
of Daily Wage Bank employees Union. Case of Ist party
Union is that workman Chandrapal was working at residence
of Managing Director Shri M.K. Sinha on wages Rs. 14/-
per day for cleaning etc. work for 15.04.1989. The workman
was also working at residence of Managing Director Shri
Shivshankar, S. Rajgopal and D.C. Sadhi after N.K. Sinha
was transferred. Workman was paid weekly wages.He was
continuously working from 1989 to 23.9.94. Since 24.09.94
to 30.11.94, workman was appointed on part time basis.
The orders were issued time to time. That he was
continuously working from 1989 to 11.11.94. Workman was
called for interview. A proposal for his appointment was
also submitted on 11.11.94 for appointment as sub
staff.Workman was examined by Medical officer in Gokuldas
Hospital Indore. Workman submits that he paid Rs. 200/-
for distribution of sweets for appointment as peon. He
further submits that after appointment letter was issued,
he was paid Rs. 30/- per day. That 24 daily wage employees
working in IInd party Bank are paid Rs. 50/- per day.
Workman had submitted application for enhancing his
wages. IInd party terminated his service without notice on
05.12.96. He was not paid retrenchment compensation.
Termination of his service is in voilation of Section 25-F of
ID Act, IInd party did not followed policy of last come first
go. List of daily wage employees was not displayed. Work
of sweeping, cleaning is entrusted to contranctors by IInd
party. After discontinuation of workman, other persons are
engaged. He is not provided employment. Workman is paid
bonus for the period 1989 to December, 96. On such ground,
Union prays for reinstatement of workman with backwages.
3. IInd party filed Written Statement at page 6/1 to 6/8
opposing relief claimed by Union, Preliminary objection is
raised that Shri Ram Nagwanshi so called General Secretary
of Union is not working in the Bank. He is not competent to
raise dispute. Statement of claim is not filed in prescribed
manner rether it is filed in the form of petition is not tenable.
IInd party denied that workman was working on daily wages
for cleaning sweeping work at residence of Managing
Director from 15.04.89, IInd party also denied that workman
was working at residence of Managing Director with
devotion. It is denied that workman was engaged on daily
wages and payment was made to him. It is denied that
workman was engaged on daily wages and payment was
made to him. It is denied that workman engaged on part
time daily wages from 30.11.94 onwards. It is denied that
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1735
workman was continuously working with IInd party. It is
denied that workman had completed 240 days serivce.
Workman was called for interview for post of sub staff.
Interview call was issued to workman out of good faith.
Workman could not be appointed. It is denied that workman
was medically examined or he paid Rs. 20/- for distribution
of sweets, workman is not entitled to protection under
Section 25-F of ID Act. There was no question of paying
retrenchment compensation. IInd party denies violation of
Section 25-G, N of ID Act. It is denied that daily wage
employees were working in the Bank in different names
have been regularised. IInd party submits that workman is
not entitled to any relief.
4. Workman filed rejoinder at Pages 8/1 to 8/2 reiterating
its contentions in statement of claim.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
"(i)
Whether the action of the
In Negative
management of State Bank of
India in terminating the services
of Shri Chandrapal Kaushal
w.e.f. 05.12.96 and not
regularizing him is justified?
(ii)
If not, what relief the workman
As per final
is entitled to?"
orders
REASONS
6. Workman filed affidavit of his evidence. In his
affidavit, workman have stated that he was initially engaged
on daily wages Rs. 15/- per day by Management Shri R.N.
Matkar. That he was working at residence of Managing
Director Shri M.K. Sinha. Shri Shivshankar, S. Rajagopal
and D.C. Sadhi was paid wages Rs. 14/-, 30/-, 35/- per day.
He received interview call on 11/11/94. Interview was
conducted by Shri Ramesh Chand and other officers. He
was examined by Medical Officer. He was terminated
without notice from 05.12.96. He was not paid retrenchment
compensation. After termination of his service, he was
unemployed. In his cross-examination, workman says he
worked in the Bank from 15.04.90 to December, 1996. He
was working at Bunglow of Managing Director. In 1994,
appointment letter was given to him. Post was not
advertised. He not submitted application for job. Proposal
for appointment of other persons was also submitted as
per proposal for appointment, he was not given
appointment letter. He was working on daily wages. He has
not submitted any application for issuing appointment
letter. Workman has reiterated in his cross-examination he
was working from 1990 to 1996. Workman corrected that he
was working from 15.04.89 to 1996. His family consists of
his wife and two children. He is doing labour work getting
payment of Rs. 3000 per month. In 1996, he was kept wages
Rs. 30/- per day.
7. Evidence of management's witness Deepak Kothari is
on the point that workman was not appointed as employee
of the Bank. As per record, workman was working in Head
office of the Bank doing cleaning, sweeping, etc. work one
hour morning, one hour evening. Workman was paid wages
for the work done by him. Workman had not completed 240
days on vacant post. Workman was called for interview
out of sympathy. Any appointment letter was not issued to
him. When it is noticed that workman not completed 240
days work, management's witness in his cross-examination
admitted document management's witness in his cross-
examination admitted document Exhibit W-1 to W-8. As per
Sastri Award and Bipartite Settlement after appointment
letter is issued the signature of employees are taken in
muster roll. No attendance register is maintained of the
daily wage employees. Workman was paid bonus. When
workman was called for interview, witness claims ignorance
that his affidavit is based on the documents. Any
documents are not produced alongwith his affidavit.
Management's witness admits contents of para-4 of his
affidavit are correct. In para 4 of his affidavit, witness has
stated that workman has engaged for one hour morning
one hour evening for cleaning sweeping etc. work. Witness
of management denies that though workman was successful
in interview, he was not given appointment letter.
Managment's witness claims ignorance about medical
examination of workman in Gokuldas Hospital. He also
admits that workman was not issued notice. He was not
paid retrenchment compensation. Evidence of workman
and management's witness is on oath. Management's
witness admits work of Ist party in the bank for cleaning
sweeping work. Payment of bonus is also admitted by
management's witness. Evidence of management's witness
is based on document. However management has not
produced any documents about working of Ist party in the
Bank. As such the management is withholding the material
documents from Court. If evidence of workman is
considered in the light of evidence in cross-examination of
management's witness, I find no reason to disbelieve that
workman was working with Bank, his services are terminated
without notice. Workman was not paid retrenchment
compensation. Therefore I record my finding in Point No. 1
in Negative.
8. Point No. 2 in view of my finding in Point No. 1,
termination of workman is illegal for violation of Section
25-F of ID Act, question arise whether he is entitled for
reinstatement with back wages. Workman in his cross-
examination says he not submitted any application for the
post, the post was not advertised. It is shows that workman
was not appointed following selection process. Therefore
workman is not entitled for regularization.
9. Shri Ram Nagwanshi submitted copies of awards
passed in R/180/00, R/205/03 & 27/04 passed by this
1736
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
Tribunal. Each matter is required to be decided on facts
and evidence proved by parties. In present case though
workman established that he was working with IInd party
from 1990 to 1996. Merely as he completed 240 days
continuous service reinstatement with backwages could
not be allowed. Considering the period of working and
wages paid to him, compensation of Rs. 75,000/- would be
appropriate. Acoordingly 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
Chandrapal Kaushal w.e.f. 5.12.96 and not
regularizing him is not proper.
(2) IInd party is directed to pay compensation
Rs. 75,000/- to the 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] 15 vizSy] 2015
dk-vk- 794-—vkS|ksfxd fookn vf/kfu;e] ¼1947 1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]
pSUubZ ds iapkV ¼lanHkZ la- 21@2015½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 15@04@2015 dks izkIr gqvk FkkA
[lañ ,y&12012@87@2014&vkbZvkj ¼ch&I½]
lqefr ldykuh ] vuqHkkx vf/kdkjh
New Delhi, the 15th April, 2015
S.O. 794.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 21/2015) of the Cent.
Govt. Indus.Tribunal-cum-Labour Court, Chennai as shown
in the Annexure, in the industrial dispute between the
management of State Bank of India and their workmen,
received by the Central Government on 15/04/2015.
[No. L-12012/87/2014-IR (B-I)]
SUMATI SAKLANI1, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM -
LABOUR COURT, CHENNAI
Thursday, the 19th March, 2015
Present
:
K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 21/2015
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of State Bank of India and their workman)
BETWEEN
Ms. E. Antony Mary
:
1st Party/Petitioner
AND
The Regional Manager
:
2nd Party/
State Bank of India
Respondent
Regional Business Office
Sundari Complex, 24, Nagercoil Road
Tirunelveli-627005
Appearance:
For the 1st Party/Petitioner
:
M/s Balan Haridas,
Advocates
For the 2nd Party/Respondent
:
None
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12012/87/2014-IR (B.I)
dated 17.02.2015 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
'"Whether the dismissal of service of E. Antony Mary
by the Management of State Bank of India, Tirunelveli
w.e.f. 31.12.2011 is legal and justified? If not, to what
relief the workman is entitled to?"
2. On receipt of the Industrial Dispute thisTribunal has
numbered it as ID No. 21/2015.
3. The same petitioner has filed ID 18/2015 before this
Court directly regarding the same subject matter. So she
does not want to proceed with the referred matter. The
counsel for the petitioner as made endorsement stating
that the matter may be closed in view of the pendency of
ID 18/2015. Accordingly the reference is closed. An award
is passed accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 19th March, 2015)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined :
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management :
None
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1737
Documents Marked
On the Petitioner's side
Ex.No.
Date
Description
Nil
On the Management's side
Ex.No.
Date
Description
Nil
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 795-—deZpkjh jkT; chek vf/kfu;e] 1948 ¼1948
dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk iznÙk 'kfDr;ksa dk iz;ksx
djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 ebZ] 2015 dks ml rkjh[k ds
:i esa fu;r djrh gS] ftudks mDr vf/kfu;e ds v/;k;&4¼44 o
45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6
[/kkjk&76 dh mi /kkjk&¼1½ vkSj /kkjk 77]78]79 vkSj 81 ds flok;
tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k NÙkhlx<+ jkT; ds
fuEufyf[kr {ks=ksa ds izo`Ùk gksaxs] vFkkZr~%
^^ftyk cykSnkcktkj dh rglhy HkkVkikjk esa fLFkr jktLo
xzke&rjsaxk] isaMjh] lwek] [kksyok] dSFkh] nsojh] lsefj;k]
lwjtiqjk] Vsgdk] nrjsaxh] nrjsaxk] e/kqcu] vdyrjk] ijlokuh]
dkyehMhg] lqj[kh] [kijkMhg] fctjkMhg] fVdqfy;k] <kckMhg]
/kkSjkHkkaVk] xk<+kMhg] ea>xko] cksjlh] cksMrjk dksMkikj] eq<hikj]
[kks[kyh xksfx;k] vkyslqj] lsefj;k] chtkHkkV] jktk<kj] [ksjh]
cksjlh] lsanjh rFkk uxj ikfydk HkkVkikjkA**
[lañ ,l&38013@31@2015&,l,l&I]
vt; efyd] voj lfpo
New Delhi, the 15th April, 2015
S.O. 795.—In exercise of the powers conferred by sub-
section (3) of Section 1 of the Employees State Insurance
Act, 1948 (34 of 1948) the Central Government hereby
appoints the 1st May, 2015 as the date on which the
provisions of Chapter IV (except Sections 44 and 45 which
have already been brought into force) and Chapter-V and
VI [except Sub-Section (1) of Section 76 and Sections 77,
78, 79 and 81 which have already been brought into force]
of the said Act shall come into force in the following areas
in the State of Chhattisgarh namely:—
"Revenue villages of Tarenga, Pendri, Suma, Kholwa,
Kaithi, Devari, Semariya,Surajpura, Tehaka,
Datarenga, Datarengi, Madhuban, Akaltara,
Paraswani, Kalamidih, Surakhi, Khaparadih, Bijaradih,
Tikuliya, Dhabadih, Dhaurabhatha, Gadadih,
Manjhagao, Borasi, Bodtara, Kodapar, Mudipar,
Khokhali, Gogiya, Aalesur, Semariya, Beejabhat,
Rajadar, Khairi, Borasi, Sendari and Nagar Palika
Bhatapara in the Tehsil Bhatapara, District
Balaudabazar."
[No. S-38013/31/2015-SS.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 796-—deZpkjh jkT; chek vf/kfu;e] 1948 ¼1948
dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk iznÙk 'kfDr;ksa dk iz;ksx
djrs gq,] dsUnzh; ljdkj ,rr~}kjk 01 ebZ] 2015 dks ml rkjh[k ds
:i esa fu;r djrh gS] ftudks mDr vf/kfu;e ds v/;k;&4¼44 o
45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6
[/kkjk&76 dh mi /kkjk&¼1½ vkSj /kkjk 77]78]79 vkSj 81 ds flok;
tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k NÙkhlx<+ jkT; ds
fuEufyf[kr {ks=ksa ds izo`Ùk gksaxs] vFkkZr~%
^^ftyk fcykliqj dh rglhy eLrwjh esa fLFkr jktLo
xzke&[kS[kkjikjk] mlykiqj] [ktqjh] gjnkMhg] ep[kaMk] ikSMh]
cEguhdyk] HkkSjkMhg] cfu;kMhg] tqgyh] dSHkkMhg] gjdiqj]
fgaMkMhg] yjxksMk uokxko] >yeyk] dkSokrky] cjsyh] lhir]
xqM+h] djkZ] nouMhg] [kkaMk] ijlkgh] njkZHkkBk] dkSfM;k] tkath]
iaNh] nsojh] jkad] rsanqvk] eqM+ikj] ,jelkgh] dNkj] csynqdjh
ijlnk fdlku A**
[lañ ,l&38013@32@2015&,l,l&I]
vt; efyd] voj lfpo
New Delhi, the 15th April, 2015
S.O. 796.—In exercise of the powers conferred by sub-
section (3) of Section 1 of the Employees' State Insurance
Act, 1948 (34 of 1948) the Central Government hereby
appoints the 1st May, 2015 as the date on which the
provisions of Chapter IV (except Sections 44 and 45 which
have already been brought into force) and Chapter-V and
VI [except Sub-Section (1) of Section 76 and Sections 77,
78, 79 and 81 which have already been brought into force]
of the said Act shall come into force in the following areas
in the State of Chhattisgarh namely:—
"Revenue villages of Khaikharpara, Usalapur, Khajuri,
Haradadih, Machakhanda, Podi Bahmanikala, Bhauradih,
Baniyadih, Juhali, Kaibhadih, Harakpur, Hindadih, Largoda,
Navagaon, Jhalmala, Kauvatal, Bareli, Sipat, Gudi, Karra,
Davandih, Khanda, Parasahi, Darrabhatha, Kaudiya, Janji,
Pandhi, Devari,
Rank, Tendua, Mudpar, Eramsahi,
Kachhar, Beltukari, Parasada kisan in the Tehsil Masturi,
District Bilaspur."
[No. S-38013/32/ 2015-SS-I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 797-—deZpkjh jkT; chek vf/kfu;e] 1948 ¼1948
dk 34½ dh /kkjk&1 dh mi/kkjk&¼3½ }kjk iznÙk 'kfDr;ksa dk iz;ksx
1738
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 ebZ] 2015 dks ml rkjh[k ds
:i esa fu;r djrh gS] ftldks mDr vf/kfu;e ds v/;k;&4 ¼44 o
45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6
[/kkjk&76 dh mi /kkjk&¼1½ vkSj /kkjk&77] 78] 79 vkSj 81 ds
flok; tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k rfeyukMq jkT; ds
fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr~%
dsUn
{ks= ds varxZr vkus okys
fuEu jktLo xkao
fr:usyosyh ftys esa ukaxqusjh rkyqd
1- dMacksMq ok"koq
ukaxqusjh ds miuxj
[lañ ,l&38013@33@2015&,l,l&I]
vt; efyd] voj lfpo
New Delhi, the 15th April, 2015
S.O. 797.—In exercise of the powers conferred by sub-
section (3) of Section 1 of the Employees' State Insurance
Act, 1948 (34 of 1948) the Central Government hereby
appoints the 1st May, 2015 as the date on which the
provisions of Chapter IV (except Sections 44 and 45 which
have already been brought into force) and Chapter-V and
VI [except Sub-Section (1) of Section 76 and Sections 77,
78, 79 and 81 which already been brought into force] of the
said Act shall come into force in the following areas in the
State of Tamil Nadu namely:—
Centre
Area Comprising the Revenue
Villages of
Subrubs of Nanguneri
1. Kadambodu Vazhvu
Nanguneri Taluk
Tirunelveli District
[No. S-38013/33/2015-SS.I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 798-—deZpkjh jkT; chek vf/kfu;e] 1948 ¼1948
dk 34½ dh /kkjk &1 dh mi /kkjk&¼3½ }kjk iznRr 'kfDr;ksa dk iz;ksx
djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 ebZ] 2015 dks ml rkjh[k ds
:i esa fu;r djrh gS] ftudks mDr vf/kfu;e ds v/;k;&4 ¼44 o
45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6
+[/kkjk&76 dh mi /kkjk&¼1½ vkSj /kkjk&77] 78] 79 vkSj 81 ds
flok; tks igys gh izo`Rr dh tk pqdh gS] ds mica/k NRrhlx<+ jkT;
ds fuEufyf[kr {ks=ksa esa izo`Rr gksaxs] vFkkZr~%
^^uxj fuxe ifj"kn fHkykbZ&pjkSnk rFkk mi&rglhy fHkykbZ&3
ftyk nqxZ esa vkus okys lHkh {ks=A**
[lañ ,l&38013@34@2015&,l,l&I]
vt; efyd] voj lfpo
New Delhi, the 15th April, 2015
S.O. 798.—In exercise of the powers conferred by sub-
section (3) of Section 1 of the Employees' State Insurance
Act, 1948 (34 of 1948) the Central Government herby
appoints the 1st May, 2015 as the date on which the
provisions of Chapter IV (except Sections 44 and 45 which
have already been brought into force) and Chapter-V and
VI (except Sub-Section (1) of Section 76 and Sections 77,
78, 79 and 81 which have already been brought into force)
of the said Act shall come into force in the following areas
in the State of Chhattisgarh namely:—
"All the areas falling within the Muncipality Council
Bhilai-Charoda and all the areas falling within the
Sub-Tehsil Bhilai-3, District Durg."
[No. S-38013/34/2015-SS-I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 15 vizSy] 2015
dk-vk- 799-—deZpkjh jkT; chek vf/kfu;e] 1948 ¼1948
dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk iznÙk 'kfDr;ksa dk iz;ksx
djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 ebZ] 2015 dks ml rkjh[k ds
:i es fu;r djrh gS] ftldks mDr vf/kfu;e ds v/;k;&4 ¼44 o
45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6
[/kkjk&76 dh mi /kkjk&¼1½ vkSj /kkjk&77] 78] 79 vkSj 81 ds
flok; tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k vkU/kz izns'k jkT;
ds fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr%µ
^^vkU/kz izns'k jkT; ds vuariqj ftys ds fgUnqiqj eaMy esa vkus
okys jktLo xkao dh lhek ds vUrxZr {ks=&eyqxq# ¼gSeysV
xkao ,eñ chjiYyh] isíxqMiYyh] fpUuk xqMaifYy] jaxkiqje
vkSj uaneqjh uxj½ vkSj eusleqnze A**
[lañ ,l&38013@35@2015&,l,l&I]
vt; efyd] voj lfpo
New Delhi, the 15th April, 2015
S.O. 799.—In exercise of the powers conferred by sub-
section (3) of Section 1 of the Employees' State Insurance
act, 1948 (34 of 1948) the Central Government hereby
appoints the 1st May, 2015, as the date on which the
provisions of Chapter IV (except Sections 44 and 45 which
have already been brought into force) and Chapter-V and
VI [except Sub-Section (1) of Section 76 and Sections 77,
78, 79 and 81 which have already been brought into force]
of the said Act shall come into force in the following areas
in the State of Andhra Pradesh namely:—
"All the areas falling within the limits of the revenue
villages of Maluguru (Hamlets M. Beerapalli,
Peddagudempalli, Chinna Guddampalli, Rangapuram
and Nandamuri Nagar) and Manesamudram of
Hindupur Mandal of Ananthapur District in State of
Andhra Pradesh."
[No. S-38013/35/2015-SS-I]
AJAY MALIK, Under Secy.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1739
ubZ fnYyh] 15 viSzy] 2015
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djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 ebZ] 2015 dks ml rkjh[k ds
:i es fu;r djrh gS] ftldks mDr vf/kfu;e ds v/;k;&4 ¼44 o
45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/;k;&5 vkSj 6
[/kkjk&76 dh mi /kkjk&¼1½ vkSj /kkjk&77] 78] 79 vkSj 81 ds
flok; tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k vkU/kz izns'k jkT;
ds fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr~%µ
^^vkU/kz izns'k ds izdk'ke ftys ds jktLo lhek ds flaxkjk;dksaMk
eaMy ds xkao iqjkuk flaxkjk;dksaMk] dYdhok;k] idkyk]
eqyxqaVikMq] duqeYyk] lueiqMh] fcafxukiYyh] lksejktqiYyh
v/khu vkus okys lHkh {ks=**
[lañ ,l&38013@36@2015&,l,l&I]
vt; efyd] voj lfpo
New Delhi, the 15th April, 2015
S.O. 800.—In exercise of the powers conferred by sub-
section (3) of Section 1 of the Employees' State Insurance
Act, 1948 (34 of 1948) the Central Government hereby
appoints the 1st May, 2015, as the date on which the
provisions of Chapter IV (except Sections 44 and 45 which
have already been brought into force) and Chapter-V and
VI [except Sub-Section (1) of Section 76 and Sections 77,
78, 79 and 81 which have already been brought into force]
of the said Act shall come into force in the following areas
in the State of Andhra Pradesh namely:—
"All the areas falling in the limits of revenue village
of old Sinarayakonda, Kalkivaya, Pakala,
Mulaguntapadu,
Kanumalla,
Sanampudi,
Binginapalli, Somarajupalli in Singarayakonda
Mandal of Prakasam District of Andhra Pradesh."
[No. S-38013/36/2015-SS-I]
AJAY MALIK, Under Secy.
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 801-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj us'kuy bafLVV~;wV
vkWQ QkekZL;wfVDy ,tqds'ku fjlpZ fcgkj ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa vkS|ksfxd vf/kdj.k] eqtQjiqj ds iapkV ¼lanHkZ la[;k
03/2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 16@04@2015
dks izkIr gqvk FkkA
[lañ ,y&42025@04@2015&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] MsLd vf/kdkjh
New Delhi, the 16th April, 2015
S.O. 801.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No.03/2013) of the
Industrial Tribunal, Muzaffarpur now as shown in the
Annexure in the Industrial Dispute between the employees
in relation to the management of the National Institute of
Pharmaceutical Education and Research, Bihar and their
workman, which was received by the Central Government
on 16/04/2015.
[No.L-42025/04/2015-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
OFFICE OF THE INDUSTRIAL TRIBUNAL,
MUZAFFARPUR
Present:
Shri Braj Kishore Pd. Gupta,
Presiding Officer,
Industrial Tribunal, Muzaffarpur
Industrial Dispute Case No. 03 of 2013
Santosh Kumar Mishra S/o Late Ram Nagina Mishra,
resident of Village-Bidupur, P.O. Rampur (Bind Lal), P.S.
Ekma Distt.- Chapra (Saran), Bihar
.....Applicant/Workman
Versus
1. M/s. Management of M/s. National Institute of
Pharmaceutical Education and Research, Office
situated at EPIP Campus, Industrial area (Hajipur),
P.O.+P.S. Hajipur, Dist,.-Vaishali-844101, (Bihar).
Through
2. Registrar, M/s National Institute of Pharmaceutical
education and research, office situated at EPIP
Campus, Industrial Area (Hajipur), P.O+P.S.-
Hajipur, Distt Vaishali-844101, (Bihar).
3. Director M/s Rajendra Memorial Research
Institute of Medical Sciences, Agankuan, Patna-
800007, (Bihar).
....Management/Opposite Parties
The 27th February, 2015
AWARD
(1) This case has been brought by the worker Shri
Santosh Kumar Mishra, for quashing and setting
aside the order dated 22.04.2013 passed by the
management OP's by which he has been
terminated from the service of National Institute
1740
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
of Pharmaceutical Education and Research, EPIP
Campus, Industrial Area, Hajipur, Vaishali. (In
short (NIPER).
(2) The brief history of this case is that NIPER
published an advertisement in employment News
Paper of 03.09 May, 2008 for the post of Store
Keeper besides other posts. In pursuance of
advertisement the petitioner workman applied for
the post of Storekeeper, as he is an ex-serviceman
of Indian Air Force. After interview he had been
selected for the post of the storekeeper on the
fixed salary of Rs. 12,000/- (Twelve Thousand) on
a contractual basis for a period of one year, which
can be renewed every year depending upon
performance and mutual consent. Accordingly
he join on the post of Store Keeper at NIPER,
Hajipur on 23.01.2009.
(3) On the day of his joining he also entered into a
contract of service on the stamp paper of Rs. 10/-
(Ten) with director of the Institute (NIPER) and
started working from the post of the Storekeeper
of the Institute and worked till 21.04.2013.
(4) It is further case of the workman is that the
management started discriminating with him in
enhancement of his increment of wages, than he
raised objection against the management, which
made annoince to the management and they
started targeting him. Lastly to victimige and
harass him, with malafied intention and ulterior
motive, illegally terminated him from the service
of the NIPER on 22/23-04-2013, without any
compliance of the statutory provisions of the I.D.
Act 1947 and rules and Regulations framed their
under, which is also against the natural justice.
(5) It is further stated that before termination of his
service no any charges of misconduct or any other
charges every leveled against him, nor he has
been given one month notice or equivalent to
one month pay at the time of termination of his
service. Which was mandatory and one fine
morning he has been terminated. Therefore against
his illegal termination he raised objection before
conciliation officer cum Regional Labour
Commissioner (Central), Patna on 15.05.2013, but
the said conciliation officer did not taken any step
for reconciliation of the dispute with the
management OP's and after waiting more than
forty five days, finding no alternative filing this
case to set aside the illegal order of termination
and consequential relives before this Industrial
Tribunal having competent jurisdiction to
adjudicate his dispute.
(6) On the other hand the OP's appeared and filed
their written statement alleging therein that NIPER
does not come under the perview of and under
the jurisdiction of this Tribunal, because the
educational institutions scientific research or
training institutions are exempted in the meaning
of Industries of Section 2 (J) of the I.D. Act 1947.
This institute was constituted by the ministers of
chemical and fertilizers, presently department of
Pharmaceutical of the Government of India to
impart education to post graduate Courses, MS.
Pharma & M. Pharma by Extra ordinary Gazette
notification No. S.O.—1633(E) dated 6th
September, 2007. After establishment of NIPER
Hajipur in the year 2007, no post of any employee
teaching or non-teaching have been sanctioned
save and except the post of Director as yet. The
institute is running under the mentorship of
Rajendra Memorial Research Institute of Medical
Sciences, Agamkuan, Patna. As an interim
arrangement, the Govt. of India permitted the
institute to employee skeleton staff contractully
for the work.
(7) The petitioner workman was appointed
contractually on a fixed pay of Rs. 12,000/-(Twelve
Thousand) per month for one year on 23.01.2009.
This tenure of engagement was subject to
extension with mutual consent and based on
performance. Accordingly the service of the
worker/petitioner was extended till 22.04.2013.
On expiry of the extended period of extension/
engagement, the petitioner was relieved from the
service of the Institute (NIPER) on 22.04.2013
which was accepted by him and on the same day
an application has been filed by the petitioner
workman for extension of his service on
compassionate ground before the Director of the
institute, in which it is urged that his son and
daughter are pursuing B.Tech. and B.B.A at
New Delhi and to facilitate in payment of their
fees his service tenure may be extended till his
joining in Bihar Jail service. The said prayer of the
petitioner was turn down by the director NIPER.
(8) It is further submitted that the petitioner was never
terminated from the service of the institute; rather
he was relieved from the institute on completion
of his tenure. Therefore no question arisen for
payment of terminal benefit and reinstatement
because he was not relieved or terminated
prematurely.
(9) It is further submitted that the petitioner filed this
case after concealment of the relevant fact. The
petitioner raised his dispute before the Assistant
Regional Labour Commissioner (Central), Patna.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1741
On notice this OP's institute appeared and filed
his reply, but the petitioner workman did not
appear to contest the case then the Assistant
Regional Labour Commissioner disposed of the
claim of the petitioner without any relief, but this
fact has not been disclosed by the petitioner in
his petition.
(10) Hence, this petition (case) has no merit and fit to
be dismissed.
(11) from the pleadings of the parties following issues
shall arises for consideration of this Tribunal—
(i) Whether this Tribunal has jurisdiction to
entertain and adjudicate thid dispute raised
by the petitioner workman or not?
(ii) Whether the institute of the OP's comes under
the perview of the I.D. Act 1947?
(iii) Whether the petitioner workman is entitled
to reinstatement and also entitled to his back
wages?
(iv) To what relief or relieves the petitioner is
entitled?
Findings
Issue No.-(i)
(12) Before entering into the finding I would like to
mention the evidence adduced by the parties oral
and documentary. The applicant examined A.W.-1
as himself and supported the case and claim as
made by him. He also ehibited six documents in
support of his cas and claim Ext. A is the letter of
the OP's NIPER, dated 16th December, 2008, by
which he had been directed to appear for interview.
(13) EXt. A/1 is the letter of the OP's NIPER, dated
09th January, 2009, by which the applicant was
offered to join as a store keeper.
(14) Ext. A/2 is the letter of the OP's NIPER dated 23rd
January, 2009, which is the appointment letter of
the applicant Shri Santosh Kumar Mishra.
(15) Ext. A/3 is the office order of the OP's NIPER dated
05th June, 2012, by which Mishra was allowed
additional 20% D.A.
(16) Ext. A/4 is the letter dated 23rd April, 2013 of the
OP's NIPER by which Shri Mishra was relived
from the duty of the NIPER.
(17) Ext. A/5 is the letter of Shri Mishra dated 15th
May, 2013 addressed to Regional Labour
Commissioner (Central), Maurya Lok Complex,
2nd Floor, Room No. 16-17, Dakbangla Road,
Patna, by which Shri Mishra requested the
regional Labour Commissioner or conciliation and
other action.
(18) The OP's NIPER also adduced one witness namely
Shri Vijay Kumar Karn, in support of his case and
claim as O.W.-1 and also exhibited four
documents. Out of whom Ext.-1 is contract paper
of service of Shri Mishra dated 23rd January, 2009,
by which he entered into a contract with the OP's.
(19) Ext. 2 is the letter dated 22nd April, 2013 sends to
the OP's NIPER by Shri Mishra for extension of
his tenure of service on compassionat grounds.
(20) Ext. 4 is the letter of appointment dated 23rd
January, 2009 by which Shri Mishra was appointed
as storekeeper of the OP's NIPER.
(21) Ext. 3 is the letter dated 09th January, 2009 by
which Shri Mishra was offered to join on the post
of storekeeper of the NIPER.
(22) Now coming to the above formulated issue No.1,
whether this Tribunal has power and Jurisdiction
to entertain the present case or not?
(23) The learned counsel of the NIPER raised this
quesion very strongly by submitting that
according to definition of the Industry U/s Section
2 (J) of the I.D. Act 1947.
Industry means any business trade, undertaking,
manufacture or calling of employers and includes
any calling service, employment, handicraft or
industrial occupation or avocation of workman
but the OP's is the educational institution runs
under the direction and order of the Central
Government for Pharmaceutical education and
research to impart education to Post Graduate
course M.S. Pharma & M. Pharma in Bio-
technology, Pharmacy Practice etc. Therefore it is
clear that the NIPER does not produces any goods
or business and from the plane reading of the
definition of Industry the educational, scientific,
research or training institutions are excluded.
Hence the provisions of I.D. Act. 1947 does not
come into play. Hence the present dispute is not
an industrial dispute. Therefore this Tribunal
which was constituted for adjudication of
Industrial dispute but the present dispute is not
the industrial dispute. Hence this tribunal has no
jurisdiction to entertain and adjudicate the present
case of the worker Santosh Kumar Mishra.
(24) On the other hand the learned Counsel of the
worker submitted that It is settled Principle of Law
by the Constitution bench of our Hon'ble Apex
Court in Bangalore water supply and sewerage
board's case, reported in AIR 1978 S.C. 548 in
which our lorsdhips of Hon'ble Apex Court made
a comprehensive and elaborate definition of the
meaning of Industry. The more teaching staff of
1742
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
an educational institution were declared workman
within the I.D. 1347.
(25) It is relevant to mention here that the term industry
was defined by our lordships as defined under
section 2 (J) of I.D. Act 1947. It has a wide
important and if they fulfill the triple test (i)
systematic activities, (ii) Organized by co-
operation between the employer and employee,
(iii) for production and distribution of goods,
services calculated to satisfy human want and
wishes on a large scale, it comes within the preview
of industry. Absence of profit motive or gainful
objective is irrelevant even the venture of the
public, Joint private or other sector. The decisive
test is the nature of activity with special emphasis
on the employer and employee relation.
(26) Now moving to a consideration that educational
institutions are an industry. If the triple test of
systematic activity co-operation between
employer and employee and production of goods
and services were alone to be applied to a
University, a college, a research institue or
teaching institution will be an industry.
(27) From the discussion made above and as decided
by our Lordship of Hon'ble Apex Court, I am of
the clear view that the non teaching staff of an
educational institution are worker within the
meaning of section 2(J) of the I.D. Act. 1947, and
they have full right to knock the door of an
Industrial Tribunal. Therefore I have no hesitation
to hold that this tribunal has full jurisdiction to
entertain and adjudicate the dispute raised by any
worker of an educational and research institution.
Hence this issue is decided in favour of the
petitioner worker and against the OP's.
Issue No. - (ii)
(28) Whether the institute of the OP's comes under
the preview of the I.D. Act 1947, I would like to
refer that while deciding the issue no. (i) I have
discussed this fact also as to the educational
institutions and research institute are also comes
within the preview of an Industry, specially the
non teaching staff. Who have rendering
supportive services. The teachers are indulge in
educating the students and researchers but the
non teaching staffs are managing the other affairs
of the institutions, obviously they are not
delivering lectures but without management the
institutions could not run and achieve their goals,
Our Apex Court very elaborately considered this
aspect of the employees (non-teaching) of an
educational institutions and cames to a conclusion
that the non-teaching staff of the educational
institutions are very much coming within the ambit
of industry.
(29) Hence I have o hesitation to hold, that the present
petitioner (workman) was rendering service in the
institution of NIPER as a storekeeper which is a
non-teaching staff was in the management of the
institute. Therefore, the institute of the OP's is an
industry within the meaning of I.D. Act. 1947 and
comes under the ambit of I.D. Act 1947.
Issue No. (iii)
(30) Whether the petitioner workman is entitled to
reinstatement with full back wages is concern. It
is admitted fact of both the parties that the
petitioner was appointed as a Store keeper on a
fix salary of Rs. 12,000/- (Twelve thousand) for a
period of one year and he join on the post of
Store keeper of the NIPER on 23.01.2009. His
appointment was for one year i.e. up to 22.01.2010
but the petitioner was given extension up to
22.04.2013 and relived on 23.04.13.
(31) The learned counsel of the applicant very much
gave emphasis that after rendering service for a
period of 240 days the workman cannot be
retrenched without giving prior notice of one
month or in-lieu of notice one month salary and
also the applicant is entitled to benefit of Section
25(F) of the I.D. Act. 1947. But in the instant case
the OP's retrenched the applicant without giving
any notice prior to retrenchment or giving one
month salary in-lieu of the notice and the
provisions of the 25 (F) of the I.D. Act. 1947 has
also not been complied. Hence the applicant is
fully entiled to his back wages with benefit of 25
(F), an his retrenchment was wrong illegal and
against the provisions of the I.D. Act, 1947.
(32) As against this the learned counsel of the OP's
fairly submitted that the appointment of the
petitioner was conditional one. He was appointed
on a fix salary for one year to manage the work of
Store Keeper of the NIPER, but due to exigency
his tenure was extended up to 22.04.13. It is
relevant to submit that no post of Store Keeper is
sanctioned by the Govt. of India neither any post
of Store keeper is still running in the institute.
The petitioner himself executed a bond on the
date of his joining that he never claim permanent
employment and abide the provisions of Rule and
Regulations of the institute as enforce time to
time and he can be terminated by the institute
during the period of contract by giving one
month's notice at any time during service without
any cause assigned. Therefore when the institute
(NIPER) was not in the need of the petitioner he
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1743
was relived as a contract period was expired long
ago. Hence there was no need to give any notice
prior to releasing of the petitioner. It is also relevant
to note that after reliving the present petitioner
no one was or is appointed on the post of
storekeeper, as there is no sanction post of
storekeeper in the NIPER. Not only this the
present petitioner had accepted his reliving gladly
and gave an application to the director of the
NIPER on the very day of the relieving on
compassionate ground to extend his tenure till he
join on the post of assistant jailor in Bihar Jail
Service, as he has been selected for that post.
Hence the NIPER had not committed and vilated
any term and condition of the petitioner. Therefore
the petitioner is not entitled to any relief by this
tribunal.
(33) Now I would like to enter into the definition of the
word "Retrenchment" as per I.D. Act, 1947 which
runs as follows:—
"Retrenchment means the termination but the
employer of the service of a workman for any
reason what so ever, otherwise than as a
punishment inflicted by way of disciplinary action
but does not include.
(a) Voluntary retirement of a workman.
(b) Retirement of a workman on reaching the age
of superannuation if the contract of
employment between the employer and the
workman concerned contains a stipulation
in that behalf.
(bb) Termination of the service of the workman as
a result of the non renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated unfer a stipulation
in that behalf contained therein.
(c) Termination of the service of a workman on
the ground of continued ill health."
(34) From the above definition of the retrenchment as
defined in the I.D. Act, 1947. It is clear that when
the workman will be presumed to be retrenched.
As per proviso (bb) it is clear that a workman
cannot be treated retrenched or terminated. When
the contract of employment was denied to be
renewed or after expiry of the service contract
held between employer and employee.
(35) In the present case the workman was appointed
on the post of Store keeper for a term of one year
on a fixed salary of Rs. 12,000/- i.e. for 23.01.2009
to 22.01.2010. In proof of the contract a contract
paper was also signed by the workman on the
same date of joining but the workman was
continued in service upto 22nd April, 2013. On
that day he was relieved. The workman claiming
that he was retrenched from his service without
any notice or in-lieu thereof one month salary
and also without giving any relief U/s 25(F) of the
I.D. Act. 1947.
(36) In this respect I have gone through with Ext. 1 to
4 of the OP's Management. From perusal of the
opening line of Ext. 2 the petitioner workman
himself admitted that.
"My tenure of service is expiring on 22nd April,
2013". This admission of the workman clearly
denotes that he had not been retrenched or
terminated. Here one thing is also important, that
the post of storekeeper was created for one year
without any sanction for the convenience of the
NIPER, which may be renewed for subsequent
years subject to the suitability and mutual
consent' on a fixed salary of Rs. 12,000/- (Twelve
Thousand) and this fact was clearly mentioned in
the advertisement and appointment letter of the
workman dated 23.01.2009. The workman
petitioner after read over and accepted the term
applied for the post and at the time of appointment
executed a bond on stamp paper. Therefore the
submission of the workman that he had been
terminated from the service by the OP's by forcibly
cannot be accepted.
(37) Here one thing is also apparent, that the workman
was appointed for one year and as per terms of
appointment had to be relieved on 22.01.2010, but
he was allowed to continued upto 22nd of April,
2013, without any document of contract in black
and white. If it is supposed that on expiry of the
contract of the petitioner on 22.01.2010 his service
tenure was extended for further one year and latter
on likewise, then he shoud be relieved on
22.01.2013, but he was allowed to continue his
service further and suddently he was relieved on
22nd of April, 2013, as per contract paper executed
by the petitioner workman on 23rd of January,
2009, at Para number 7 (seven), it has been clearly
assigned that—
"The service of appointee may, during the period
of contract, be terminated by the institute at any
time by one calender month's notice in writing
given at any time during service under this
contract withou any cause assigned. Provided
always the institute may in-lieu of the notice herein
provided give the appointee a sum equivalent to
the amount of pay fixed for one month."
1744
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
But this term of the contract was not abide by the
management at the time of the relieving of the
workman. It is true that after completion of one
year, the workman was relieved then this term has
no leg to stand but when the management allowed
the workman to continue for further period
without any written contract then it was the duty
of the management to abide the term and condition
of the contract. The workman was not releaved
after completion of one year rather he was relieved
in the middle of the year.
(38) Hence from the discussion made abvoe and from
the evidence of the OP's W-1 Para-6 Shri Vijay
Kumar Karn it also apparent that the tenure of the
workman Shri Mishra was extended for one year
after completion of one year. This also show that
the tenure of Shri Mishra was extended for one
year on 22.01.2013, but he was relieved during
continuation of his service without any notice or
one month salary in lieu thereof. This fact was
also accepted by the workman in his deposition
at Para no. 1. None of the parties filed any iota of
document to show that the workman petitioner
was appointed otherwise or any other terms and
condition.
(39) Therefore I am of the opinion that the petitioner
workman was not terminated or retrenched
forcibly, by the management of NIPER, rather he
has been relived from his pots as per term and
condition precedent in the advertisement, contract
paper and appointment letter, but it is also true
that he had been relieved in the middle of extended
tenure without any prior notice, which is against
the term and conditions agreed between the
parties and also as per clause (a) of 25 (F) of the
I.D. Act. 1947.
(40) Hence it is ordered to the OP's to pay one month's
salary (lst drawn) in-lieu of notice to the workman
Shri Shantosh Kumar Mishra within one month from
the date of pronouncement of this award along with
10% interest thereon from the date of relieving.
Failing which the law will take its own course.
Issuue No. (iv)
The petitioner workman is not entitled to any other relief
or relieves accordingly this issue is decided.
Written and corrected by me.
BRAJ KISHORE PD. GUPTA, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
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chp vuqca/k esa fufnZ"V vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; caxyq#
ds iapkV ¼lanHkZ la[;k C.R.No. 04/2015) dks izdkf'kr djrh gS] tks
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[lañ ,y&42011@117@2014&vkbZvkj ¼Mh;w½]
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New Delhi, the 16th April, 2015
S.O. 802.—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. 04/2015) 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 HMT Watch Factory, Bangaluru and
their workmen, which was received by the Central
Government on 16/04/2015.
[No. L-42011/117/2014-IR (DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
DATED
:
8th April, 2015
PRESENT
:
Shri S. N. Navalgund,
Presiding Officer
C R No. 04/2015
I Party
II Party
The President,
The General Manager,
HMT Watch Factory
HMT Watch Factory,
Employees Union, No 1, D-1,
Jalahalli,
HMT Watch Factory Colony,
BENGALURU-560 013
HMT Post, BENGALURU-13
Appearances
I Party
:
Shri M. S. Siddaraju,
President
II Party
:
Shri C. S. Eshwar Kudi,
Deputy Manager (HR)
AWARD
1. The Central Government vide Order No. L-42011/117/
2014-IR(DU) dated 02.01.2015 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
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1745
made this reference for adjudication with following
Schedule:
SCHEDULE
"Whether the action of the management of HMT
Watch Case Factory, Bangalore, postponing the
promotion of 11 workman detailed in Annexure A-2,
to the Industrial Dispute dated 15.05.2013 raised by
the HMT watch Factory Employees Union is legal
and justified? If not, what relief the workmen are
entitled for ?"
2. On receipt of reference while registering it in CR 04/
2015 when notices were issued today Sh. C. S. Eshwar
Kudi, Deputy Manager (HR) for II party appeared and filed
a Memo the dispute in respect of promotion relating to the
11 workmen involved in this dispute being amicably
resolved the matter be closed. Similarly, the President of
the I Party Union as well filed Memo this dispute in respect
of 11 workmen relating to their promotion being settled by
the management the reference may be closed. In view of
the Memo filed by both the sides reporting amicable
settlement the reference is liable for rejection as settled out
of court. Accordingly, I pass the following :
ORDER
The reference is rejected by virtue of the memo of
Settlement filed by the I Party as well as the II Party.
(Dictated to UDC transcribed by him, corrected and
signed by me on 8th April, 2015)
S. N. NAVALGUND, Presiding Officer
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deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;&2] MsYgh ds iapkV
¼lanHkZ la[;k 75/2013) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
16@04@2015 dks izkIr gqvk FkkA
[lañ ,y&42011@165@2012-vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] MsLd vf/kdkjh
New Delhi, the 16th April, 2015
S.O. 803.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 75/2013) of the Central
Government Industrial Tribunal-cum-Labour Court No. 2,
Delhi now as shown in the Annexure in in the Industrial
Dispute between the employers in relation to the
management of the Commissioner, Municipal Corporation
of Delhi and their workmen, which was received by the
Central Government on 16/04/2015.
[No. L-42011/165/2012-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II
KARKARDOOMA COURT COMPLEX, DELHI
Present : Shri Harbansh Kumar Saxena
ID No. 75/13
Sh. Gangey
North Ghonda,
Delhi-110053
Versus
The Commissioner,
MCD, Delhi-110006.
EX-PARTE AWARD
The Central Government in the Ministry of Labour vide
notification No. L-42011/165/2012-IR(DU) dated 07.03.2013
referred the following Industrial Dispute to this Tribunal
for adjudication:—
"Whether the Workman Sh. Gangey, S/o Late
Sh. Chhajjan is entitled to benefits of the ACP Scheme
at par with his counterparts working in DDA and if
so to what relief is he entitled and what directions
are necessary in this respect?
On 19.07.2013 reference was received in this Tribunal.
Which was register as I.D. No. 75/13 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.
Workman filed claim statement on 23.12.2013. Where-in
he alleged as follows:—
BACK GROUND OF THIS DISPUTES:—
1. That the workman Sh. Gangey S/o Sh. Chhajjan Mason
was joined into the employment of Delhi Development
Authority w.e.f. 4.12.1976 into the pay scale 210-290 & was
given higher pay scale of Rs. 225-350 w.e.f. 17.7.1984 which
was revised w.e.f. 1.1.1986 into the pay scale of Rs. 950-
1500 under IVth Pay Commissioner Report & the services
of workman aforesaid was transferred from DDA to MCD
w.e.f. 20.05.1995 & was posted under ZE(W), Sh. S. Zone.
2. That the workman aforesaid is entitle 1st ACP w.e.f.
9.8.1999 into the pay scale of Rs. 5000-7000 after completing
12 years. But the Management of MCD granted IInd ACP
into the pay scale of Rs. 3200-4900 w.e.f. 4.12.2000 & denied
1746
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
to grant 1st ACP into the proper pay scale, which is illegal
& with malafide intentionally.
3. That the action as taken by the Management is wholly
illegal, bad, unjust with malafide intentionally amongst
other reasons thereof:
i. That the workman hostile with discrimination as
juniors were granted demanded pay scale but the
workman aforesaid did not get benefits which were
privileged to the same categories to others inspite
serveral requests to the Senior Officials but they
completely denied to grant 1st ACP w.e.f. 9.8.99 &
IInd ACP after completing 12 Years Services.
ii. That it is amounts to sheer exploration of labour.
iii. That the Management violative Articles 14, 16 &
39(d) of the constitution of India.
iv. That the Management of MCD total violative
Rules and Regulations under which workman
placed lower pay scale in place as DDA & also
MCD granted higher pay scale under ACP scheme
to same categories.
v. That the MCD granted same categories workmen
vide letter dated 16.10.2003 as 1st ACP 4000-6000
& IInd ACP 4500-7000.
vi. That the Management of MCD granted ACP to
workmen which were comes into the Categories
'C' for Rs. 3250-4590 & 4000-6000 in 1st & IInd.
ACP which was received vide order dated
21.2.2005, 12.04.2005, 21.10.2003, 14.12.04 &
23.09.2003 respectively into the Ist. ACP Rs. 4000-
6000 & IInd ACP Rs. 4500-7000 to other workmen.
vii. That the Delhi Development Authority granted
higher pay scale under ACP Scheme to same
categories vide office order dated 11.8.2006 which
are higher pay scale in place of MCD workmen.
viii. That the workman requested several time to
officials of MCD but they did not considered my
grievance which was completely denied.
4. That the workman Sh. Gangey is entitled 1st. ACP
into the pay scale of Rs. 4000-6000 & IInd ACP under pay
scale of Rs. 5000-8000 from 9.8.99 & 04.12.2000 along with
all consequential benefits.
5. That a demand notice was given vide communication
dated 5.8.09 by Regd. Post to the Commissioner, MCD,
Town Hall, Chandni Chowk, Delhi-110006 which was duly
received but no reply was given in that case the dispute
was file before the authority to start conciliation
proceedings and same refer to this Hon'ble Court for
adjudication.
It is therefore, prayed to this Hon'ble Court to called
upon to the management to granted proper pay scale to
the workman Shri Gangey on 1st ACP Rs. 4000-6000 from
9.8.99 & IInd ACP of Rs. 5000-8000 without further delayed
if the managemeni failed to granted proper pay scale the
Award in favour of workman may kindly be granted along
with interest.
It is further prayed kindly granted litigation under
Section 11(7) under the Rules.
When management has not filed W.S. inspite of serveral
opportunities. Then this tribunal on 18.6.2014 closed the
right fo filing W.S. by management and passed order to
proceed Ex-parte against management. As well as fixed
4.08.2014 for Ex-Parte evidence of workman.
Workman in support of his case filed his affidavit on
3.02.2015. Wherein he mentioned as follows:—
1. That the despondent was join into the employment
of DDA 04.12.1976 as Mason into the pay scale of
Rs. 210-290 which was revised into the pay scale
Rs. 225-350 w.e.f. 17.7.1984. The same scale was
revised under IVth pay commission report w.e.f
01.01.1986 into the pay scale of Rs. 950-1500 with
usual allowances.
2. That services of workman was transferred from
DDA to MCD w.e.f. 20.05.1995 and the workman
was posted in Shahadra, South Zone under
Z.E. (W).
3. That the management of MCD granted ACP on
first financial up gradation was given into the pay
scale of Rs. 3200-4900 which was lesser rumination
while the workman was entiltted 1st up gradation
was due into the pay scale of Rs. 4000-6000. And
IInd up.gradation was due Rs. 5000- 8000 w.e.f.
09.08.1999 and 04.12.2000 respectively.
4. That Management also revised to ACP to same
category into the pay scale of Rs. 4000-6000 and
Rs. 5000-8000 but same-was denied to the deponent.
5. That the Management of Delhi Development
Authority have been given on 1st ACP Rs. 4000-
6000 and on IInd ACP Rs. 5000-8000.
6- That I'm entitled 1st ACP w.e.f. 09.08.1999 into the
pay scale of Rs. 4000-6000 and Rs. 5000-8000 on
IInd ACP w.e.f. 04.12.2000 alongwith all
consequential benefits either monitory or non-
monitory as are privileged by the Management of
MCD and also by the DDA alongwith market int.
from the due date on the due amount.
7. That the deponent has been given legal demand
notice to the Commissioner, MCD on dated
05.08.2009 vide Regd. AD post which was duly
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1747
received in his Office is Ex. W.W. 1/1, The
Management replied demand notice is Ex. W.W.
1/2. The copy of Statement filed before the C.O. is
Ex. W.W. 1/3, copy of Replied filed by the
Management is Ex. W.W. 1/4, The copy of Re-
joinder filed before the C.O. is Ex. W.W. 1/5. The
copy of orders which were issued by the
Management for granting ACP are Ex. W.W. 1/6,
The copy of order under which the MCD rectified
same scale by issuing fresh orders under which
higher scale granted the same categories like
Masons, Fitters Pump Operators etc. Ex.
W.W. 1/7. The management of DDA issued Orders
from ACP to all employees as 1st. ACP for
Rs. 4000-6000 and IInd. ACP for Rs. 5000-8000 are
Ex. W.W. 1/8. The copy of services under which
was transferred to the DOA to MCD is Ex. W.W. 1/9.
It is therefore, prayed to the Hon'ble Court to passed an
Award in favour of Deponent with Holding that on the 1st
ACP from 9/8/99 in to the pay scale of Rs. 4000-6000 & on
IInd, ACP from 4.12.2000 into the pay Scale of
Rs. 5000-8000 alongwith 18% simple inst. On the due
amount may kindly be given in the law of Ilnd for natural
justice. It is prayed accordingly.
Workman tendered his affidavit on 3.2.15. His statement
is as follows:—
I tender may affidavit in evidence which is exhibit Ex.
W.W. 1/A and which bears my signature at point A & B. I
rely my documents which are Ex. W.W. 1/1 to Ex. W.W. 1/9.
XXXXX None on behalf of Management present to
cross-examined the witness. Hence cross-examination is
marked nil.
Thereafter, Ld. A/R of Sh. Gangey, closed the evidence
of workman on the instruction of workman. As case was
proceeded ex-parte against management so I fixed 25/2/15
for ex-parte arguments of workman.
On 25.2.2015 I have heard the 'Oral arguments of
Sh. R.M. Sharma, Ld. A/R for the workman.
In the light of contention of Ld A/R for the workman I
perused the pleadings of claim statement as well as evidence
by way of affidavit of workman exhibit W.W. 1/A and
annexed documents Ex. W.W. 1/1 to Ex. W.W. 1/9.
Perusal of contents of para 5 of Claim statement. Which
are as follows:—
"That a demand notice was given vide communication
dated 5.8.09 by Regd. Post to the Commissioner, MCD,
Town Hall, Chandni Chowk, Delhi -110006 which was duly
received but no reply was given in that case the dispute
was file before the authority to start conciliation
proceedings and same refer to this Hon'ble Court for
adjudication.
It is therefore, prayed to this Hon'ble Court to called upon
to the management to grated proper pay scale to the workman.
Sh. Gangey on 1st ACP Rs. 4000-6000 from 9.8.99 & IInd
ACP of Rs. 5000-80d0 without further delayed if the
management failed to granted proper pay scale the Award in
favour of workman may kindly be granted along with interest.
It is further prayed kindly granted litigation under
Section 11(7) under the Rules".
Which makes it crystal clear that though aforesaid
contents workman alleged that management has not replied
his notice dated 5.8.2009. So, aforesaid allegation of
workman is contrary to his doumentary evidence as
workman placed reliance on annexed documents of affidavit:
Which is exhibit Ex.1/2. This document is reply dated
9.9.2009 of demand notice of Sh. Gangey. which contains
following contents:—
Subject: Reply of demand notice served by Sh. Gangey,
Mason through Sh R.M. Sharma.
Kindly refer to legal demand notice served upon
Commissioner MCD by you on behalf of Sh. Gange,
Mason, Point wise reply is as under:
1. The workman Sh. Gange was appointed as mason
in DDA on 04.12.1976 in pay scale of
Rs. 210-290. He was given higher pay scale of
Rs. 225-350 w.e.f. 17.07.1994 which was revised in
the 4th CPC to Rs. 950-1400 & Rs. 3050-4590 under
5th CPC 2nd Financial up-gradation has been
given in the pay scale of Rs. 3200-4900 w.e.f.
04.12.2000 duly approved by Competent Authority
and order issued by A.O./Engg./HQ(Copy
enclosed). M.C.D. has nothing to do with the scale
being given the DDA.
2. The claim of employee cannot be entertained as
he has been given two financial up-gradation.
3. No comments.
4. No comments allowances are being given as per
rules prevailing in M.C.D.
5. He was granted:—
1st Financial up gradation w.e.f. 17.7.1984.
2nd Financial up gradation w.e.f. 04.12.2000.
With all financial benefits which are due as per rule
prevailing in M.C.D.
E.E.M.I Sh.S.
Workman also placed reliance on annexed documents
of affidavit in evidence of workman. Which is WW1/4.
It is written statement on behalf of management/MCD
before conciliation officer, Govt. of India, 4th Floor, Jeevan
Deep Buildirrg, Parliament Street. Which contains following
contents:—
1748
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
1. That workman Sh. Gangey was appointed as
mason in DDA on 04.12.1976 in pay scale of Rs.
210-290. He was transferred in MCD on 20.05.1995
and he was given higher pay scale of Rs. 225-350
w.e.f. 17.07.1984 which was revised in the 4th CPC
to Rs. 950-1400 & 3050-4590 under 5th CPC 2nd
financial up-gradation has been given in the pay
scale of Rs. 3200-4900/- w.e.f. 04.12.2000 duly
approvaI by Competent Authority and order
issued by A.O./Engg./HQ(copy enclosed). MCD.
has nothing to do with the scale being given in
DDA.
2. The claim of employee can not be entertained as
he has been given two financial up-gradation.
3. No Comments.
4. No. Comments, allowances are being given as par
rules prevailing in M.C.D.
5. He was granted.
1st Financial up-gradation w.e.f. 17.7.1984.
2nd Financial up-gradation w.e.f. 04.12.2000.
Instant Industrial Dispute has been referred to this
Tribunal for adjudication by Ministry of Labour on 7.3.2013.
Schedule of reference contains following questions of
determination:—
"Whether the Workman Sh. Gangey, S/o Late Sh.
Chhajjan is entitled to benefits of the ACP Scheme at par
with his counterparts working in DDA and if so to what
relief is he entitled and what directions are necessary in
this respect?"
Which in itself indicates that burden to prove aforesaid
questions of determination lies on workman. In support of
his case workman only adduce his evidence alongwith few
Photostate copies of the documents. Moreover, he is
alleging that he served demand notice on management but
management has not replied but he relies on reply of demand
notice sent by managemeni to workman which exposes the
falsehood of workman on the aforesaid point workman also
relies on the contents of Written statement filed by
management before Conciliation Officer. Which in itself
disentitling the workman to any relief. In this background
evidence of workman is short of required evidence. Rather
evidence of workman supports to the case of management.
In this background this tribunal has no option except to
decide the reference against workman and in favour of
management. Which is accordingly decided and claim
statement is accordingly dismissed.
Ex-parte award is accordingly passed.
Dated: 20.3.2015.
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
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New Delhi, the 16th April, 2015
S.O. 804.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (ID. No. 13/2014) of the Central
Government Industrial Tribunal-cum-Labour Court No. 2,
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 16/04/2015.
[No. L-42011/138/2013-IR (DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GROUND FLOOR,
KARKARDOOMA COURT COMPLEX, DELHI
Present: Shri Harbansh Kumar Saxena
ID No. 13/2014
The President, MCD General Mazdoor Union,
C/o Room No. 95,
Barrack No. 1/10, Jam Nagar House, New Delhi-110011.
Versus
The Commissioner,
MCD/Civic Centre, Minto Road, New Delhi.
EX-PARTE AWARD
The Central Government in the Ministry of Labour vide
notification No. L-42011/138/2013-IR(DU) dated 07.02.2014
referred the following industrial dispute to this Tribunal
for adjudication:
"Whether Sh. Rajinder S/o Late Sh. Ram Sahai is
entitled to the status of Chaudhary in the pay scale
of Rs. 3050=4590 w.e.f 01.01.1991 revised from time
to time alongwith all consequential benefits? If so,
what directions are necessary in this respect?
On 18.2.2014 reference was received in this Tribunal.
Which was register as I.D. No. 13/2014 and calimant was
called upon to file claim statement with in fifteen days from
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1749
date of service of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
After service of notice workman/claimant filed claim
statement on 6.6.2014. Wherein he stated as follows :
1. That the appropriate Govt. i.e. National Capital
Territory of Delhi referred the following dispute for
industrial adjudication before the industrial Tribunal :
"Whether Sh. Rajinder S/o Late Sh. Ram Sahai is
entitled to the status of Chaudhary in the pay scale
of Rs. 3050-4590 w.e.f. 01.03.1991 revised from time
to time alongwith all consequential benefits? If so,
what directions are necessary in this respect?
2. That Sh. Rajinder S/o Sh Ram Sahai has been allotted
the work of Chaudhary with effect from 01.03.1991 by the
competent officer(s) of Horticulture Department and was
posted under Green Park Zone to work under Dy. Director
of Horticulture, but he has been denied the pay scale of
Chaudhary revised from time to time. His qualification is
5th. It is also submitted that qualification is not prescribed
for the promotion of Chaudhary.
3. That the management of MCD has fixed the different
pay scales to their employees including Mali, Chaudhary
etc. in accordance to their job and non-grant of proper pay
scale of Chaudhary to Sh. Rajinder is forced labour and the
management is indulging in unfair labour practice.
4. That the workman Sh. Rajinder has got the payment
in lower pay scale of Mali Rs. 2550-3200 revised from time
to time but he is denied the pay scale of Rs. 3050-4590 with
effect from 01.03.1991 and revised from time to time and
this action of the management is also illegal as well as
unjustified.
5. That the duty of Mali is presently of an unskilled
workman (according to the Award the duty to Mali is
classified with semi-semi skilled workman) but the duty of
a Chaudhary is a skilled nature of job being a Group "C"
employee and there are different pay scales for both the
categories. Copy indicating the names of officiating
Chaudhary issued by the officer of Horticulture concerned
is annexed as Annexure—A and he name is appearing at
Sl. No. 19 of Annexure-A. The said list was duly prepared
by the concerned zone of the Horticulture and submitted
the same to the officer of Director (Horiticulture), MCD.
6. The Hon'ble High Court of Delhi in the matter of Jai
Chand Vs. MCD (CW 6514/2001) has disapproved the non-
payment vide order dated 2.5.2003 for the post of Chaudhary
for taking the work from him for the said post.
7. That in compliance of orders of Hon'ble High Court
dated 2.5.2003 the management of MCD. Horticulture
Department, New Delhi has also issued the implementation
of the said order vide its office order No. ADC (Hort.)/AO
(Hort.)/DA-VII/05/457 dated 4.3.2005. Copy of the said order
issued by the management is annexed as Annexure-B.
8. That the recent judgment of Division bench of Hon'ble
High Court of Delhi have settled the matter by the recent
judgment of Hon'ble Division bench of Hon'ble High Court
in the matter MCD Vs. Sultan Singh & Ors. W.P. (C) No.
7947/2010 and the same stand has been taken by the Hon'ble
High court in Writ-Petition No. 5550 of 2010 titled MCD Vs.
Mahipal S/o Late Dalel Singh C/o MCD General Mazdoor
Union and reiterated the decision of Division Bench in the
matter MCD Vs. Sultan Singh vide its judgment on
27.07.2011. The same is reproduced as under:—
"Mr. Varun Prasad, counsel appearing for the
respondent submits that the present petition filed
by petitioner is squarely covered by the recent
judgment of the Hon'ble Division Bench of this Court
in MCD Vs. Sh. Sultan Singh & Oprs W.P. (C) No.
7947/2010.
Mr. Amita, Counsel appearing for the petitioner/MCD
submits that the present petition the petitioner has
challenged the order dated 4th February, 2010 passed by
the Industrial Tribunal held that the workman who was
performing duties on the post of Garden Chaudhary is
entitled to the pay scale of Garden Chaudhary in force from
time to time w.e.f. June, 1987. Learned Tribunal also took a
view that respondent would not be entitled to regularization
as he lacked requisite qualification. The operative para of
the said judgment in Sultan Singh's case (Supra) of the
Hon'ble Division Bench is reproduced as under:
“28. Considering the entire facts and circumstances it is
apparent that the claim of the respondents have always
been that they should be paid the difference in pay of
Mali/Chowkidar and the Garden Chaudhary as they were
made to work on the post of Garden Chaudhary whereas
the petitioner had first denied that they worked the Garden
Chaudhary, then took the plea that the Assistant Director
(Horticulture) was not competent to ask the respondents
to work as Garden Chaudharies and that the respondents
cannot be appointed to the post of Garden Chaudharies
and that the respondents cannot be appointed to the post
of Garden Chaudharies in accordance with the recruitment
rules. There is no doubt that respondents are not claiming
appointment to the post of Garden Chaudhary contrary to
rules or that some of them not having the requisite
qualifications are entitled for relaxation.
29. In the entirely of facts and circumstances therefore,
the learned counsel for the petitioner has failed to make
out any such grounds which will impel this Court to exercise
it jurisdiction under Article 226 of the Constitution to set
aside the orders of the Tribunal dated 29th January, 2010
1750
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
and 7th October, 2010 as no illegality or unsustainability or
perversity in the orders of the Tribunal has been made out.”
30. The writ petition is, therefore, dismissed. Parties are
left to bear their own cost"
"Since the issue involved in the present case is
squarely by the aforesaid judgment of the Hon'ble
Division Bench of this Court, therefore, the present
petition filed by the petitioner does not subsist and
is accordingly dismissed.
The impugned order dated 4.2.2010 is accordingly
unheld and the petitioner MCD is directed to comply with
the directions passed by the Tribunal in he said order."
9. The Hon'ble High Court of Delhi followed the
judgment of Sh. Sultan Singh as mentioned hereinabove
and dismissed the Management W.P.(C) No. 5550/2010 titled
Municipal Corporation of Delhi Vs. Mahipal S/o Late Dalel
Singh.
10. That many of the similar situated workmen (Mali &
Chowkidar) who were performing their duty as acting
Chaudhary and they were granted the pay scale of
Chaudhary from the date when they were asked to perform
the duty of higher post and industrial Tribunal awarded
the higher wages for the work of Chaudhary from the date
of their initially acting and performing the duty of
Chaudhary.
11. That the Management challenged the order dated
27.07.2011 of Division Bench of Hon'ble High Court in Writ
Petitioner (C) No. 7947/2010 in the matter MCD Vs. Sultan
Singh & Ors. before the Hon'ble Supreme Court of India by
Special Leave to Appeal (C) No. S20069/2011 and the said
Special Leave Petition has dismissed and withdrawn on
9.4.2012. This workman is also similarly situated doing the
work of Chaudhary is entitled similar benefits. Copy of the
order of Hon'ble Supreme Court dated 9.4.2012 is also
annexed as Annexure-C.
12. That the Division Bench of Hon'ble High Court in
the matter of MCD Vs. Sultan Singh & Ors. Decided all the
doubts and allegations made by the management of MCD
in their detailed judgment holding the grant of higher wages
of Chaudhary to those Mali/Chowkidar who have been
performing the responsibility of the higher post from the
date when they were directed to work the work of
Chaudhary and treated them as Ad-hoc Chaudhary.
13. That after dismissal of said Special leave Petition the
management did not comply the order of payment of higher
post salary to the malis who had been discharging the
duty of Garden Chaudhary. The Division bench of Hon'ble
High Court of Delhi in Writ-Petition (Civil), 53/2012 titled
Sultan Singh & others vide its order dated 15.03.2013
directed the management to pay the wages for higher post
of salary to be paid who were performing the duty of Garden
Chaudhary. Copy of the said order is annexed as
Annexure—E.
14. That in compliance of the order of Hon'ble High
Court of Delhi dated 15.3.2013 in the matter of Sultan Singh
and Ors. Vs. W.P. (C) No. 5453/2012 the management of
MCD allowed the equal pay for equal work attached to the
post of Garden Chaudhary in compliance of the order of
Hon'ble High Court of Delhi dated 15.3.2013 and the
applicants were allowed the payment the payment when
they were discharging the duty of higher post (Garden
Chaudhary).
15. That the action of management in not granting the
pay scale of Garden Chaudhary of Rs. 3050-4590 w.e.f.
16.06.1997 and revised from time to time alongwith all
consequential benefits to Sh. Rajinder is unfair, illegal as
well as unjustified.
16. That the management is duty bound to pay the scale
to Sh. Rajinder in the scale of Chaudhary with effect from
01.03.1991 alongwith all consequential benefits.
17. The copy of sponsorship is annexed as Annexure-D
with the statement of claim as the workman is the Member
of MCD General Mazdoor Union (Regd. & Recognized)
and copy of the Registration is annexed a Annexure-E,
copy of the letter of negotiate with the management is
annexed as Annexure-F and copy of the list of Office bearers
is annexed as Annexure-G.
In view of the above, this Hon'ble Tribunal may kindly
allow the salary of Garden Chaudhary as the workman has
been performing their duty in the pay scale of Rs. 3050-
4590 w.e.f. 01.03.1991 alongwith all consequential benefits.
When, management has not filed W.S. inspite of several
opportunities. Then this Tribunal on 31.07.2014 closed the
right to filing W.S. by management and passed order to
proceed Ex-parte against management. As well as fixed
3.09.2014 for Ex-parte evidence of workman.
Sh. Rajinder in support of his case produce himself as
WW1 and tendered his affidavit on 3.9.2014. His statement
is as follows:—
I tender my affidavit for evidence which is Ex.WW1/A.
My signature is appearing at point A and B alongwith
documents Ex.WW1/1 to WW/1/5.
XXXXX None on behalf of Management present to
cross-examined the witness. Hence cross-examination is
marked nil.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1751
Thereafter, Ld. A/R of Sh. Rajinder, closed the evidence
of workman on the instruction of Sh. Rajinder. As case was
proceeded ex-parte against management. So, I fixed
30.10.2014 for ex-parte arguments of Sh. Rajinder.
On 30.10.2014 I have heard the oral arguments of
Sh. B.K. Prasad, Ld. A/R for the workman.
In the light of contentions of Ld. A/R for the workman I
perused the pleadings of claim statement questions of
determination mentioned in the schedule of reference and
uncontroverted ex-parte oral evidence of workman
including contents of documents Ex.WW1/1 to WW1/4
which shows that burden to prove question of
determination No. 1 lies on workman. I also perused the
contents of citations submitted on behalf of the workman.
Out of aforesaid citations following principle laid down
by their Lordship of Hon'ble Supreme Court in case of
Selva Raj Vs. Lt. Governor of Island, Port Blair 1999 LAB.
I.C. 598 applies with full force in the instant case:—
"Employee ordered to look upon duties of higher post
employee worked on higher post though temporarily and
in an officiating capacity is not entitled to salary attached
to higher salary, however, shall not amount to promotion."
On the basis of aforesaid discussion I am of considered
view that workman could not prove that he is entitled to
the status of Chaudhary in the pay scale of Rs. 3050-4590
w.e.f. 01.03.1991. He could prove only that workman worked
on higher post of Chaudhary though temporarily since
01.03.1991 till now. So, he is entitled to salary attached to
Chaudhary post since 01.03.1991 till he continued as
Chaudhary as he had actually worked.
On the basis of aforesaid discussion I am of considered
view that reference is liable to be partly decided in favour
workman and against management and claim statement is
liable to be partly allowed. Which is accordingly decided.
Award is accordingly passed and Management is directed
to pay aforesaid difference of pay to workman Sh. Rajinder
within two months after expiry of available remedy against
this Award.
Dated : 31.1.2015
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 805-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dfe'uj E;qfufliy
dkjiksjs'ku vkWQ fnYyh ds izcaèra= lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 2] fnYyh ds iapkV
¼lanHkZ lañ 14@2014½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
16-04-2015 dks izkIr gqvk FkkA
[alañ ,y&42011@139@2013&vkbZvkj ¼Mh;w½]
ih-ds- os.kqxksiky] MsLd vf/kdkjh
New Delhi, the 16th April, 2015
S.O. 805.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (I.D. No. 14/2014) of the Central
Government Industrial Tribunal-cum-Labour Court No. 2,
Delhi now as shown in the Annexure, in the industrial
dispute between the employers in relation to the
management of the Commissioner, Muncipal Corporation
of Delhi and their workmen, which was received by the
Central Government on 16/04/2015.
[No. L-42011/139/2013-IR (DU)]
P. K. VENUGAPAL, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II, KARKARDOOMA COURT
COMPLEX, DELHI
Present: Shri Harbansh Kumar Saxena
ID No. 14/2014
The President, MCD General Mazdoor Union,
C/o Room No. 95,
Barrack No. 1/10, Jam Nagar House,
New Delhi-110011.
Versus
The Commissioner,
MCD, Civic Centre, Minto Road,
New Delhi-110006.
Ex-Parte Award
The Central Government in the Ministry of Labour vide
notification No. L-42011/139/2013(IR(DU) dated 07.02.2014
referred the following industrial Dispute to this Tribunal
for adjudication:—
"Whether Sh. Radha Charan S/o Late Jaidev is
entitled to the status of Chaudhary in the pay scale
of Rs. 3050-4590 w.e.f. 01.04.1990 revised from time to
time alongwith all consequential benefits? If so, what
directions are necessary in this respect?
On 18.2.2014 reference was received in this Tribunal.
Which was register as I.D. No. 14/2014 and claimant was
called upon to file claim statement with in fifteen days from
1752
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
date of service of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
After service of notice workman/claimant filed claim
statement on 6.6.2014. Wherein he stated as follows:—
1. That the appropriate Govt. i.e. National Capital
Territory of Delhi referred the following dispute for
Industrial adjudication before the industrial
Tribunal:—
"Whether Sh. Radha Charan S/o Late Sh. Jaidev is
entitled to the status of Chaudhary in the pay scale
of Rs. 3050-4590 w.e.f. 01.03.1990 revised from time to
time alongwith all consequential benefits? If so, what
directions are necessary in this respect?
2. That Sh. Radha Charan S/o Late Sh. Jaidev has
been allotted the work of Chaudhary with effect from
01.04.1990 by the competent officer (s) of Horticulture
Department and was posted under Green Park Zone
to work Under Dy. Director of Horticulture, but he
has been denied the pay scale of Chaudhary revised
from time to time. His qualification is 8th Pass and
belongs to OBC category. It is also submitted that
qualification is not prescribed for the promotion of
Chaudhary.
3. That the management of MCD has fixed the
different pay scales to their employees including
Mali, Chaudhary etc. in accordance to their job and
non-grant of proper pay scale of Chaudhary to
Sh. Radha Charan is forced labour and the
management is indulging in unfair labour practice.
4. That the workman Sh. Radha Charan has got the
payment in lower pay scale of Mali Rs. 750-940
revised from time to time but he is denied the pay
scale of Rs. 950-1500 and revised to Rs. 3050-4590
with effect from 01.04.1990 and revised from time to
time and this action of the management is also illegal
as well as unjustified.
5. That the duty of Mali is presently of an unskilled
workman (according to the Award the duty to Mali is
classified with semi-semi skilled workman) but the
duty of a Chaudhary is a skilled nature of job being
a Group "C" employee and there are different pay
scales for both the categories. Copy indicating the
names of officiating Chaudhary issued by the officer
of Horticulture concerned is annexed as Annexure-A
and he name is appearing at Sl. No. 32 of Annexure-
A. The said list was duty prepared by the concerned
zone of the Horticulture and submitted the same to
the officer of Director (Horticulture), MCD.
6. The Hon'ble High Court of Delhi in the matter of
Jai Chand Vs. MCD (CW 6514/2001) has disapproved
the non-payment vide order dated 2.5.2003 for the
post of Chaudhary for taking the work from him for
the said post.
7. That in compliance of orders of Hon'ble High Court
dated 2.5.2003 the management of MCD. Horticulture
Department, New Delhi has also issued the
implementation of the said order vide its office order
No. ADC (Hort.)/AO (Hort) DA-VII/05.457 dated
4.3.2005. Copy of the said order issued by the
management is annexed as Anneuxre-B.
8. That the recent judgement of Division bench of
Hon'ble High Court of Delhi have settled the matter
by the recent judgement of Hon'ble Division bench
of Hon'ble High Court in the matter MCD Vs. Sultan
Singh & Ors W.P.(C) No. 7947/2010 and the same
stand has been taken by the Hon'ble High Court in
Writ-Petition No. 5550 of 2010 titled MCD Vs. Mahipal
S/o Late Dalel Singh C/o MCD General Mazdoor
Union and reiterated the decision of Division Bench
in the matter MCD Vs. Sultan Singh Vide its judgement
on 27.07.2011. The same is reproduced as under:—
"Mr. Varun Prasad, counsel appearing for the
respondent submits that the present petition filed by
petitioner is squarely covered by the recent judgment
of the Hon'ble Division Bench of this Court in MCD
Vs. Sultan Singh & OPrs. W.P.(C) No. 7947/2010.
Mr. Amita, counsel appearing for the petitioner/MCD
submits that the present petition the petitioner has
challenged the order dated 4th February, 2010 passed
by the Industrial Tribunal held that the workman who
was performing duties on the post of Garden
Chaudhary is entitled to the pay scale of Garden
Chaudhary in force from time tome w.e.f. June, 1987.
Learned Tribunal also took a view that respondent
would not be entitled to regularization as he lacked
requisite qualification. The operative para of the said
judgement in Sultan Singh's case (Supra) of the
Hon'ble Division Bench is reproduced as under:
"28. Considering the entire facts and circumstances
it is apparent that the claim of the respondents have
always been that they should be paid the difference
in pay of Mali/Chowkidar and the Garden Chaudhary
as they were made to work on the post of Garden
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1753
Chaudhary whereas the petitioner had first denied
that they worked the Garden Chaudhary, then took
the plea that the Assistant Director (Horticulture)
was not competent to ask the respondents to work
as Garden Chaudharies and that the respondents
cannot be appointed to the post of Garden
Chaudharies in accordance with the recuritment rules.
There is no doubt that respondents are not claming
appointment to the post of Garden Chaudhary
contrary to rules or that some of them not
having requisite qualifications are entitled for
relaxation.
29. In the entirely of facts and circumstances
therefore, the learned counsel for the petitioner has
failed to make out any such grounds which will impel
this Court to exercise it jurisdiction under Article 226
of the Constitution to set aside the orders of the
Tribunal dated 29th January, 2010 and 7th October,
2010 as no illegality or un-sustainability or perversity
in the orders to the Tribunal has been made out."
30. The writ petition is, therefore, dismissed. Parties
are left to bear their own cost"
Since the issue involved in the present case is
squarely by the aforesaid judgement of the Hon'ble
Division of this Court, therefore, the present petition
filed by the petitioner does not subsist and is
accordingly dismissed.
The impugned order dated 4.2.2010 is accordingly
unheld and the petitioner MCD is directed to comply
with the directions passed by the Tribunal is he said
order."
9. That Hon'bel High Court of Delhi followed the
judgement of Sh. Sultan Singh as mentioned
hereinabove and dismissed the Management W.P.(C)
No. 5550/2010 titled Municipal Corporation of Delhi
Vs. Mahipal S/o Late Dalel Singh. Copy of the said
judgement is annexed as Annexure-C.
10. The many of the similar situated workmen (Mali
& Chowkidar) who were performing their duty as
acting Chaudhary and they were granted the pay
scale of Chaudhary from the date when they were
asked to perform the duty of higher post and
Industrial Tribunal awarded the higher wages for the
work of Chaudhary from the date of their initially
acting and performing the duty of Chaudhary.
11. That the Management challenged the order dated
27.7.2011 of Division Bench of Hon'ble High Court
in Writ Petitioner (C) No. 7947/2010 in the matter MCD
Vs. Sultan Singh & Ors. before the Hon'ble Supreme
Court of India by Special Leave of Appeal (C)
No. S20069/2011 and the said Special Leave Petition
has dismissed and withdrawn on 9.4.2012. This
workman is also similarly situated doing the work of
Chaudhary is entitled similar benefits. Copy of the
order of Hon'ble Supreme Court dated 9.4.2012 is
also annexed as Annexure-D.
12. That the Division Bench of Hon'ble High Court in
the matter of MCD Vs. Sultan Singh & Ors. decided
all the doubts and allegations made by the
management of MCD in their detailed judgement
holding the grant of higher wages of Chaudhary to
those Mali/Chowkidar who have been performing
the responsibility of the higher post from the date
when they were directed to work the work of
Chaudhary and treated them as Ad-hoc Chaudhary.
13. That after dismissal of said Special Leave Petition
the management did not comply the order of payment
of higher post salary to the malis who had been
discharging the duty of Garden Chaudhary. The
Divsion bench of Hon'ble High Court in Writ-Petition
(Civil), 54, 53/2012 titled Sultan Singh & others vide
its order dated 15.03.2013 directed the management
to pay the wages for higher post of salary to be paid
who were performing the duty of Garden Chaudhary.
Copy of the said order is annexed as Annexure-E.
14. That in compliance of the order of Hon'ble High
Court of Delhi dated 15.3.2013 in the matter of Sultan
Singh and Ors. Vs. W.P.(C) No. 5453/2012 the
management of MCD allowed the equal pay for equal
work attached to the post of Garden Chaudhary in
compliance of the order of Hon'ble High Court of
Delhi dated 15.3.2013 and the applicants were allowed
the payment when they were discharging the duty
of higher post (Garden Chaudhary).
15. That the action of management is not granting
the pay scale of Garden Chaudhary of Rs. 3050-4590
w.e.f. 16.06.1997 and revised from time to time
alongwith all consequential benefits to Sh. Radha
Charan in unfair, illegal as well as unjustified.
16. That the management is duty bound to pay the
scale to Sh. Randha Charan in the scale of Chaudhary
with effect from 01.04.1990 alongwith all
consequential benefits.
1754
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
17. The copy of sponsorship is annexed as Annexure-
F with the statement of claim as the workman is the
Member of MCD General Mazdoor Union (Regd. &
Recognized) and copy of the Registration is annexed
a Annexure-G, copy of the letter of negotiate with the
management is annexed as Annexure-H and copy of
the list of Office bearers is annexed as Annexure-I.
In view of the above, this Hon'ble Tribunal may kindly
allow the salary of Garden Chaudhary as the workman has
been performing their duty in the pay scale of Rs. 3050-
4590 w.e.f. 01.04.1990 alongwith all consequential benefits.
When management has not filed W.S. inspite of several
apportunities. Then this Tribunal on 31.07.2014 closed the
right to filing W.S. by management and passed order to
proceed Ex-parte against management. As well as fixed
3.09.2014 for Ex-parte evidence of workman.
Sh. Radha Charan in support of his case produce himself
as WW1 and tendered his affidavit on 3.9.2014. His
statement is as follows:—
I tender my affidavit for evidence which is Ex.WW1/A.
My signature is appearing at point. A and B alongwith
documents Ex. WW1/1 to WW1/4.
XXXXX None on behalf of Management present to
cross-examined the witness. Hence cross-examination is
marked nil.
Thereafter, Ld. A/R of Sh. Radha Charan, closed the
evidence of workman on the instruction of Sh. Radha
Charan. As case was proceeded Ex-parte against
management. So, I fixed 30.10.2014 for Ex-parte arguments
of Sh. Radha Charan.
On 12.3.15 I have heard the oral arguments of Sh. B.K.
Prasad, Ld. A/R for the workman.
In the light of contentions of Ld. A/R for the workman I
perused the pleadings of claim statement questions of
determination mentioned in the schedule of reference and
uncontroverted Ex-parte oral evidence of workman
including contents of documents Ex. WW1/1 to WW1/4
which shows that burden to prove question of
determination No. 1 lies on workman, I also perused the
contents of citations submitted on behalf of the workman.
Out of aforesaid citations following principle laid down
by their Lordship of Hon'ble Supreme Court in case of
Selva Raj Vs. Ltd. Governor of Island, Port Blair 1999 LAB.
I.C. 598 applies with full force in the instant case:—
"Employee ordered to look upon duties of higher
post employee worked on higher post though
temporarily and in an officiating capacity is not
entitled to salary attached to higher salary, however,
shall not amount to promotion".
On the basis of aforesaid discussion I am of considered
view that workman could not proved that he is entitled to
the Status of Chaudhary in the pay scale of Rs. 3050-4590
w.e.f. 01.04.1990. He could prove only that workman worked
on higher post of Chaudhary though temporarily since
01.04.1990 till now. So, he is entitled to salary attached to
Chaudhary post since 01.04.1990 till he continued as
Chaudhary as he had actually worked.
On the basis of aforesaid discussion I am of considered
view that reference is liable to be partly decided in favour
workman and against management and claim statement is
liable to be partly allowed. Which is accordingly decided.
Award is accordingly passed and Management is directed
to pay aforesaid difference of pay to workman Sh. Radha
Charan within two months after expiry of available remedy
against this Award.
Dated: 31.3.2015
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 806-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lsaVªy cksMZ lsdsaMjh
,tqds'ku ¼CBSE½ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;&2] fnYyh ds iapkV ¼lanHkZ
la[;k 03@2004½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
16@04@2015 dks izkIr gqvk FkkA
[lañ ,y&42012@73@2013&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] MsLd vf/kdkjh
New Delhi, the 16th April, 2015
S.O. 806.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 03/2004) of the Central
Government Industrial Tribunal-cum-Labour Court No.2,
Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of the Central Board of Secondary Education
(CBSE) and their workman, which was received by the
Central Government on 16/4/2015.
[No. L-42012/73/2013-IR(DU)]
P. K. VENGUGOPAL, Desk Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1755
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II, KARKARDOOMA COURT
COMPLEX, DELHI
Present : Shri Harbansh Kumar Saxena
ID No. 03.2004
Sh. Parmender Kumar,
S/o Vikram Singh,
R/o A-1/74, East Gokal Pur
Delhi-110094
Versus
Secretary,
Central Board of Secondary Education (CBSE)
Preet Vihar
New Delhi-110092.
NO DISPUTE AWARD
The Central Government in the Ministry of Labour vide
notification No. L-42012/73/2013-[IR(DU)] dated 21.01.2014
referred the following Industrial Dispute to this Tribunal
for adjudication:—
"Whether the action of the Management of Central
Board of Secondary Education in terminating the
services of Sh. Parmender Kumar, S/o Vikram Singh,
Ex-Junior Assistant w.e.f. March 2006 is justified or
not? If not, what relief will be given to the workman
and from which date?"
On 7.2.2014 reference was received in this Tribunal,
Which was register as I.D. No. 03/14 and claimant was
called upon to file claim statement with in fifteen days from
date of service of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
Several opportunities given to workman as well as
management but neither workman nor management filed
claim statement/Response to the reference.
In this background there is no option to this tribunal
except to pass No. Dispute Award because parties are not
interested to file thier respective pleadings.
On the basis of which none of the parte can be directed
to adduce its evidence.
No Dispute Award is accordingly passed.
Dated:25/3/2015
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 807-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj esfMdy lqifjUVsUMsUV
jke euksgj yksfg;k gkaWfLiVy ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; Uk- 2] fnYyh ds
iapkV ¼lanHkZ la[;k 09@2009½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 16-04-2015 dks izkIr gqvk FkkA
[lañ ,y & 42012@81@2008&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] MsLd vf/kdkjh
New Delhi, the 16th April, 2015
S.O. 807.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (I.D. No. 09/2009) of the Cent.
Govt. Indus. Tribunal - cum - Labour Court No-2, Delhi as
shown in the Annexure, in the industrial dispute between
the employers in relation to the management of Medical
Superintendent Ram Manohar Lohiya Hospital and their
workmen, which was received by the Central Government
on 16/04/2015.
[No. L-42012/81/2008 - IR(DU)]
P.K. VENUGOPAL, Desk Officer
ANNEXURE
CENTRAL, GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II, KARKARDOOMA COURT
COMPLEX, DELHI
Present : Shri Harbansh Kumar Saxena
ID No. 9/2009
Sh. Ashok Kumar,
Ex-Nursing Attendant, R/o House No. 74,
Ward No. 17, Mohalla Buchaheda,
Kotputli, Jaipur
.....Workman
Versus
The Medical Superintendent,
Ram Manohar Lohiya Hospital
New Delhi-110001.
....Management
AWARD
The Central Government in the Ministry of Labour vide
notification No. L-42012/81/2008[IR(DU)] dated 16.02.2009
referred the following industrial dispute to this tribunal for
adjudication:—
"Whether the action of the management of the
Medical Superintendent, Dr. Ram Manohar Lohiya
Hospital, New Delhi, in terminating the services of
their workman Sh. Ashok Kumar, w.e.f. 26.01.2001, is
legal and justified? If not, to what relief the workman
is entitled to?
On 27.02.09 reference was received in this tribunal.
Which was register as I.D. No. 9/2009 and claimant was
called upon to file claim statement with in fifteen days from
date of service of notice. Which was required to be
accompanied with relevant documents and list of witness.
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Workman filed claim statement on 28.05.2009. Contents
of Claim statement are as follows:—
1. That the workman above named was employed by
the management of Dr. Ram Manohar Lohiya Hospital, New
Delhi in December, 1985 as a Casual Worker and the
workman was confirmed as a Nursing attendant in Sept.
1991.
2. That the workman has been serving with the
management to the entire satisfaction of his superior official
and having an unblemished service record but the alleged
incident of the absence has taken place at workman become
the victim of the circumstances and the same was neither
arbitrary and nor deliberate on the part of the workman.
3. That the workman was on sanctioned leave w.e.f.
28th Sept., 1988 to 3rd Oct., 1998. After availing these
sanctioned leave he came back to Delhi from his home
town on 4th Oct., 1998. It was Sunday, on 4th Oct., and the
workman was forced to resume his duty on 5th Oct., 1998.
4. That in the evening of the same date i.e. the 4 th Oct.,
1988 the workman received a telephone message from his
Home Town i.e. the Kotputli Jaipur Rajasthan regarding
his serious illness of his son namely Keshav after having
come to know in the late hours on 4.10.1998 about the
critical situation of his son the workman could not restrain
himself and had to go to his son after informing Mr. M.C.
Verma Office Suptt. HA-1 on telephone.
5. That the workman has been informing Sh. M.C. Verma
through telephone about the condition of his son who was
suffering from Jaundice and he was treated under the
Doctors of N.D. Khan GAMS HP Neemkathana Sikkar
Rajasthan. Copy of the medical card is annexed herewith
as Annexure-A.
6. The subsequently the workman informed the Deptt.
on 21.10.98 that he shall report for duty immediately after
recovery from illness of his son.
7. That it would be pertinent to mention here that during
the treatment of his son the workman was mentally
depressed and also fell sick and could not report for duty
on 21.10.1998, however, the workman continued to inform
about his illness and illness of his son namely Keshav to
his Deptt. telephonically. The workman was assured by his
senior to take his treatment and his son and to report for
duty thereafter. The workman remained under impression
that the department has sanctioned his leave after knowing
the fact of his illness and his son.
8. That knowing fully well that the workman was on
leave with prior intimation the deptt. Published a notice in
the newspaper Rajasthan addition on 18.12.2000 in which
the workman was shown as absenting from duty
unauthorisedly and directed him to report for duty
immediately. The workman was given the last opportunity
to submit his reply for which he tried his level best to
report for duty on 22.12.2000 but neither the workman was
allowed to resume his duties nor the workman was given
the copies of the alleged department enquiry proceedings
and as such the workman was compelled to return back to
his home town as there was no other option.
9. That aggrieved from the action of the management
for not allowing him to resume his duties, the workman
submitted a registered letter on 22.12.2009 followed by the
registered letter dated 23.2.2001 and 17.5.2001, copy of the
postal receipt is annexed as Annexure B and C and thereafter
the workman had been wondering to resume his duty but
all the efforts of the workman remained futile. Further, the
workman was shocked to see another Press note published
in the news paper Dainik Bhaskar in Rajasthan Addition
on 25.6.2002, Copy of the same is annexed as Annexure D.
That the workman has been terminated from the service
w.e.f. 26.2.2001.
10. That after the termination of the workman from service
workman submitted an appeal in the month of July, 2002
before the Higher Authority of the Management (copy of
the same is enclosed as Annexure E) disclosing the reason
for his remaining on leave and requesting to reinstate his
in service.
11. That so called enquiry officer after conducting an x-
pate enquiry submitted an arbitrary report against the
workman. The enquiry conducted by the Inquiry Officer is
illegal and unjustified and against the principles of natural
justice. The enquiry conducted by the Inquiry officer and
his findings are perverse and vitiated. The workman tried
to join the departmental enquiry proceedings but the
workman has never been allowed to participate by the
concerned official of the management and not copy of the
departmental inquiry was served upon the workman.
12.That after replying on the said arbitrary ex-parte
enquiry report the department removed the workman from
the service without complying the provisions of law and
adopting the principles of natural justice.
13. That aggrieved from the removal order from his
service the workman consulted that matter with his
advocate who advised the workman to file the appeal before
the Hon'ble CAT Principal Bench at New Delhi, which was
dismissed as withdrawn on the advice of the Hon'ble
Tribunal with liberty to approach the departmental authority
I. Copy of the order of the Hon'ble CAT is annexed here
with as Annexure F.
14. That it would be pertinent to mention here that the
workman has filed an appeal/representation against him
before the Hospital Authority in the month of July, 2002. In
response to the said appeal, representation the workman
was advised to file an appeal before the Appellate Authority
of the Health Service Directorate vide letter dated 17.5.2004.
Copy of the said letter is annexed an Annexure G. In
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1757
compliance of the said letter, the workman filed an appeal
before the Director General, Ministry of Health and Family
Welfare, Deptt. of Health, Nirman Bhawan, New Delhi-1
which was duly received by the said authority on 22.08.2006
but surprisingly once again his appeal has not been
disposed off and the workman had been advised vide letter
dated 12.06.07 file the said appeal before the appellate
authority in the hospital, copy of the said letter is annexed
an Annexure H.
15. That as per the advice of the Directorate General of
Health Service, the workman filed an appeal/representation
to the appellate authority of the management but till date
no action has been taken hence the present claim before
your honour.
16. That the workman/claimant filed claim before the
Asstt. Labour Commissioner/Conciliation Officer Central
Govt. New Delhi dated 18.3.2008 but the management did
not come for settlement and file the bogus and vague reply
and thus conciliation officer referred the matter before the
Hon'ble Tribunal.
17. That the delay in raising the dispute before your
honour is due to wrong advise by the law consultant and
keeping the matter pending by both the aforesaid
management. It is well settled law that no person should be
made to suffer on account of mistake of his counsel. The
Case of the workman is very genuine and he is unemployed
from the date of his illegal dismissal from the service as
such he is entitled to be reinstatement in service with full
back wages and benefits and continuty of service along
with all consequential benefits.
It is, therefore, most respectfully prayed that this Hon'ble
Tribunal may kindly be pleased to pass an award against
the management with reinstatement the workman in service
with full back wages and continuity of service along with
all consequential benefits.
Pass such other order(s) which this Hon'ble Tribunal
deems fit and proper be also granted in favour of the
workman.
Against claim statement management filed written
statement on 28.5.2010. Contents of written statement is as
follows:—
BRIEF HISTORY OF THE CASE
The case is brief that the workman was working as
Nursing Attendant on ad-hoc basis w.e.f. 6.10.1989 and
thereafter regularized on the said post w.e.f. 6.10.1989 and
thereafter regularized on the said post w.e.f. 6-9-1991. In
the year 1997 the workman was absent from his duty from
17.8.1997 to 14.10.1997=59 days and from 16.10.1997 to
17.2.1998=125 days thereafter the workman had done his
duty for a period 3 months he was again absent from
25.5.1998 to 12.08.1998=80 days. The workman joined his
duty on 13.08.1998 and was granted 1 and ½ day C.L.
w.e.f. 30.09.1998 and 3.10.1998 as 4.10.1998 was Sunday.
The workman did not join his duty on 5.10.1998 and
remained absent from duty without prior permission and
intimation. On 6.11.1998, Regd. letter as received by
Sh. Mool Chand Verma from Sh. Ashok Kumar that the
workman was ill and will join his duty on 20.11.1998 and
7.1.1999 to join duty immediately, but the workman neither
joined his duty nor did he sent any communication about
his absence. After that a disciplinary proceeding under
Rule 14 of CCS Rule, 1965 was initiated against the workman.
Despite serveral communications sent to the workman on
his last known residential address, the workman failed to
join his duty. The workman did not give any reply to the
charge sheet issued to him and did not appear before the
inquiry officer. The inquiry officer had to conduct the
inquiry ex-parte and charges of unauthorized absence
stands proved in the report of the workman. A copy of
inquiry report was sent to the workman on his last known
address by Regd. Post for making representation, if any
but the same was received back undelivered from the Postal
Authorities. Thereafter, a Press Notice was issued on
18.12.2000 in various newspaper for giving last opportunity
to the workman for making his representation. In the reply
to this notice the workman made a representation that he
has not received any communication from the office and
expressed his willingness to join his duty. When the
workman personally came to join his duty on 5.1.2001, he
was allowed to join his duty and at the same time a copy of
inquiry report was personally handed over to him to make
representation, if any in this regard. Instead of submitting
his representation within stipulated time, the workman
proceeded on leave from 7.1.2001 to 20.1.2001 and thereafter
again absent from 21.1.2001 to 25.2.2001. Thereafter, a
penalty of Removal from service was imposed on him w.e.f.
26.2.2001. A copy of that order was sent to his last known
address by Regd. Post and the same returned back
undelivered. Thereafter, again a Press Notice was issued
on 25.6.2002 regarding this order.
PARAWISE REPLY
1-2. That the contents of Para No. 1 and 2 are matter of
record and need no reply.
3. That the contents of Para No. 3 are wrong and denied.
It is submitted that the workman was on 1/½ Days C.L.
from 30.09.1998 and 3.10.1998 as 4.10.1998 was Sunday.
The workman has to join his duty on 5.10.1998.
4-5. That the contents of Para No. 4 and 5 are wrong and
denied. It is submitted that Sh. M.C Verma, had not received
any telephonic message from the workman.
6-7. That the contents of Para No. 6 and 7 are wrong and
denied. It is submitted that the authorities sent a telegram
at the residential address of the workman on 9.11.1998 to
join duty immediately or to produce the medical certificates
in case he is sick. On 16.11.1998, Regd. letter was received
by Sh. M.C Verma from the workman that the workman was
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[PART II—SEC. 3(ii)]
ill and will join his duty on 20.11.1998 and the workman will
submit the details of leave on joining his duty. The workman
failed to join his duty on 20.11.1998 and no communication
or application for leave was received from him. The
authorities sent another telegram on 7.1.1999 to the
workman to join his duty immediately, but no reply was
received from the said of the workman.
8-9. That the contents of Para No. 8 and 9 are wrong and
denied. It is submitted that two telegrams were sent to the
workman on 9.11.1998 and 7.1.1999 to join duty immediately,
but the workman neither joined his duty nor did he send
any communication about his absence. After that a
disciplinary proceeding under Rule 14 of CCS Rule, 1965
was initiated against the workman. Despite several
communications sent to the workman on his last known
residential address, the workman failed to join his duty.
The workman did not give any reply to the charge sheet
issued to him and did not appear before the inquiry officer.
The inquiry officer had to conduct the inquiry ex-parte and
charges of unauthorized absence stands proved in the
report was sent to the workman on his last known address
by Regd. Post for making representation, if any but the
same was received back undelivered from the Postal
Authorities. Thereafter a Press Notice was issued on
18.12.2000 in various newspapers for giving last
opportunity to the workman for making his representation.
In the reply to this notice the workman made a
representation that he had not received any communication
from the office and expressed his willingness to join his
duty. When the workman personally came to join his duty
on 5.1.2001, he was allowed to join his duty and at the same
time a copy of inquiry report was personally handed over
to him to make representation, if any in this regard. Instead
of submitting his representation, within stipulated time,
the workman proceeded on leave from 7.1.2001 to 20.1.2001
and therefore again absent from 21.1.2001 to 25.2.2001.
Thereafter, a penalty of Removal from service was imposed
on him w.e.f. 26.2.2001. A copy of that order sent to his last
known address by Regd. Post and the same returned back
undelivered. Thereafter, again a Press Notice was issued
on 25.6.2002 regarding this order.
10-13. That the contents of Para No. 10 to 13 need no
reply.
14-15. That the contents of Para No. 14 and 15 need no
reply being matter of record.
16. That the contents of Para No. 16 are wrong and
denied. It is submitted that the Management attend all the
hearing dates before the Astt. Labour Commissioner/
Conciliation Officer Central Government, New Delhi and
filed the reply on the facts as per the service record of the
workman. The management gave full opportunity to
workman and also allowed to him to join the duty on 5.1.2001
and handed over a copy of inquiry report to make a
representation. Instead of submitting his representation,
the workman again proceeded on leave from 7.1.2001 to
20.1.2001 and thereafter again absent from his duty
unauthorizedly w.e.f. 21.1.2001.
17. That the contents of Para No. 17 are wrong and
denied. It is submitted that the authorities gave full
opportunity to workman for making his representation and
also allowed to him to join the duty on 5.1.2001 and at the
same time a copy of inquiry report was personally handed
over to him to make a representation, if any in this regard.
Instead of submitting his representation within stipulated
time, the workman again proceeded on leave from 7.1.2001
to 20.1.2001 and thereafter again absent from 21.1.2001 to
25.2.2001. That shows that the workman was not dedicated
and devoted to his duty. As the workman was absent from
his duty for more than two years unauthorisedly, the penalty
of Removal from Service imposed on him.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble
Court may be pleased to dismiss the present application
with costs in favour of Management and against the
workman, in the interest of justice.
Against written statement workman filed rejoinder on
5.8.2010. Contents of Rejoinder is as follows:—
It is denied that the workman was working as a Nursing
Attendeant on ad-hoc basis w.e.f. 6.10.89 and regularized
w.e.f. 6.10.89. It is submitted that the workman was employed
by the management of Dr. Ram Manohar Lohiya Hospital.
New Delhi in Dec. 1985 as a casual worker and he was
confirmed as a Nursing attendant in Sept. 1991. The
workman has been serving with the management in Sept.,
1991 to 3.10.1998 to the entire satisfaction of the superior
official and having unblemished service record but the
alleged incident of the absence has been taken place as a
workman become the victim of the circumstances and the
same was neigther arbitrary, nor deliberately on the part of
the workman. It is denied that the workman was absent
from his duty from 17.8.97 to 14.10.97=59 days, and from
16.10.97 to 17.2.98=125 days as alleged. It is submitted that
the applicant the workman has gone out of station duly
intimated in writing to the management and with the
permission of management. It is correct that the workman
did not join his duty on 5.10.1998. It is denied that two
telegram were sent to the workman on 9.11.98 and 7.1.99 to
join duty as alleged. It is submitted the workman has never
received any telephone from the management. It is
submitted that the management illegally initiated the
disciplinary proceeding against the workman under Rule
14 of CCS Rule 1965. It is further submitted that no
communication was made to the workman in any manner. It
is submitted that no question of replying the charge arises
because the workman has never received any charge sheet.
It is submitted that the management has illegally initiated
the enquiry proceedings against the work. It is submitted
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that the workman has never received any inquiry report
from the management. It is further submitted that the
workman is resideing at the same address so mentioned in
the record of the management. It is submitted that all the
enquiry proceedings are on-side proceedings because the
enquiry is colluded with the management. It is submitted
that on 5.1.2001 the workman never received any enquiry
report. It is further submitted that the management forcefully
obtained the signature of the workman on the blank papers,
vouchers etc. Rest of the averments made therein are made
up and concocted. It is submitted that the penalty from
removal from service was imposed on him w.e.f. 26.2.2001 is
illegal arbitrary and unjust. It is submitted the workman
has never received any order from the Enquiry Officer or
from the management. Rest of the para is wrong and denied
the claim be read as reply to the brief facts which are not
reproduced herein for the sake of brevity.
REJOINDER ON MERITS:
1-2. That the contents of para 1 and 2 of the reply need
no reply being admitted by the management. The
corresponding para of the claim is reaffirmed as correct.
3. That the contents of para 3 of the reply need no reply
being admitted by the management. The corresponding
para of the claim is reaffirmed as correct.
4-5. That the contents of para 4 and 5 of the reply need
no reply being admitted by the management. The
corresponding para of the claim is reaffirmed as correct. It
is denied that Sh. M.C. Verma had not received any
telephonic message from the workman.
6-7. That the contents of para 6 and 7 reply need no
reply being admitted by the management. The
corresponding para of the claim is reaffirmed as correct. It
is denied that Sh. M.C. Verma had not received any
telephonic message from the workman. It is denied that the
authorities sent a telegram at the residential address of the
workman on 9.11.98 to join duty immediately or to produce
the medical certificate as alleged. It is denied that no
communication or application for leave was received from
him. It is denied that the authorities sent another telegram
on 7.1.99 to the workman as alleged.
8-9. That the contents of para 8 and 9 of the reply need
no reply being admitted by the management. The
corresponding para of the claim is reaffirmed as correct.
It is submitted that all the averments made therein are
mere repetition which are totally wrong and denied and the
foregoing reply may be read as part of the para under reply.
10-13 Paras 10 to 13 of the reply need no reply being
admitted by the management. The corresponding para of
the claim is reaffirmed.
14-15. Paras 14 and 15 of the reply need no reply being
admitted by the management. The corresponding para of
the claim is reaffirmed as correct.
16. The Para No. 16 of the reply need no reply being
admitted by the management. The corresponding para of
the claim is reaffirmed as correct.
17. That Para No. 17 of the reply need no reply being
admitted by the management. The corresponding para of
the claim is reaffirmed as correct. The foregoing reply may
be read as reply to this para. It is denied that the workman
was absent from his duty from more than two years
unauthorisedly alleged. It is submitted that the management
already admitted that the workman joined his duty on
5.1.2001.
Prayer para of the reply is wrong and denied. The
management is not entitled to any relief as prayed in the
reply.
It is, therefore, prayed that the claim/award be passed in
favour of the workman and the relief be granted as prayed
in the statement of claim.
On the basis of pleadings of parties my Ld. Predecessor
framed following issues on 22.3.2012:—
(i) Whether the Departmental Enquiry conducted in
this case was legal, just and fair and was not in
violation of the principle of natural justice, if not,
what directions are called for in this case?
(ii) As per the reference sent by the Govt. of India to
this Tribunal in this case.
(iii) Relief.
On 22-3-2012 my Ld. Predcessor also passed following
order on order sheet:—
"Keeping in view the authority reported as 81(1999)
Delhi Law times 696, UCO Bank Vs. The Presiding
Officer and another, Issue No. 1 is ordered to be
treated as preliminary issue. However, workman will
lead evidence first on this issue. For evidence of the
workman by way of affidavit to come up on 01.06.2012.
The workman to file his affidavit restricting the
enquiry aspect only."
Workman in support of aforesaid order adduce his
evidence. by way of affidavit. He tendered his affidavit on
26.4.2013. He was partly cross-examined on that day and
24.10.2013 was fixed for remaining cross-examination which
has been concluded and after his evidence workman closed
the evidence and case was fixed for management evidence
but management adduce no evidence so his right of
adducing evidence has been closed by me 13.10.14 and I
fixed 16.12.14 for arguments on disposal of Preliminary Issue
No. 1.
Workman and management field their written arguments
and I also heard the oral arguments of Ld. A/R's for the
parties.
On 13.3.2015 I passed detailed and reasoned order on
order sheet relating to disposal of Preliminary Issue No. 1.
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Which is decided against workman and in favour of
management. Through, which I came to conclusion that
inquiry conducted against workman by management is Just,
proper and legal.
On same day I put up the file arguments on
proportionality of punishment. As Ld. A/R's for the parties
has already argued on the point of proportionality of
punishment.
However, I afforded the opportunity to Ld. A/R's for
parties to file synopsis along with ruling before passing of
award.
Ld. A/R for the workman field synopsis. Which contains
following contents:—
1. That the workman was employed by the management
i.e. Dr. Ram Manohar Lohia Hospital in December, 1985 as
a casual worker and the workman was letter on confirm by
the management as a nursing attendant.
2. That the workman was work with the management.
September 1991 upto 03.10.1998 to the entire satisfaction
of the superior officer and having an unblemished service
record, but the alleged incident of the absence was taken
place as the workman become the victim of the
circumstances and the same was neither arbitrary nor
deliberate on the part of the workman. The workman was
on section live with effect from 03.10.1998 and when to
native place to see his ill so namely Keshav who was
suffering from Jaundice. After availing the sanctioned
leaves, the workman came to Delhi from his home town on
04.10.1998 in the evening of the same day workman received
from his home town i.e. Kotputli Rajasthan regarding the
serious illness of the son namely Keshav after having came
to know in the hours on 04.10.1998 about the critical
situation of his son the workman could not restrain
himself and had to go to his son after informing
Mr. M.C. Verma then Office Superintendent HA-1 on
telephone.
3. That during the treatment of his son, the workman
was mentally depressed and also felt sick and could not
report on duty on 21.10.1998. However, the workman
Continued to inform about his illness and illness of his son
Keshav to management telephonically as well as in writing
through registered post. The original postal receipts are
WW-1/3(colly). The workman was assured by his seniors
at the time of telephone call and it was assured by the
seniors to take care of himself and the sick son Keshav
report on duty only thereafter. The copy of the medical
records of the workman and his son are already is Ex. WW-
1/1 (colly) (Twenty pages). The knowingfully well about
the sickness of the workman and his son, he management
deliberately published the in the newspaper dated
18.12.2000 in which the workman was shown as absently
from duty unauthorizedly and directed for duty immediately
on 22.12.2000. The workman came to Delhi to join duty on
22.12.2000, but neither the management allowed the
workman to join his duty nor the workman was given alleged
departmental enquiry and copy of charge against him and
workman was compelled to return back to his home town.
4. That on 13.03.2015 this Hon'ble court decided the
preliminary issues frame on 22.3.2012 :
(i) Whether the Departmental Enquiry conducted in
his case was legal, just and fair and was not in
violation of the principle of natural justice, if not,
what directions are called for in this case?
(ii) As per the reference sent by the Govt. of India to
this Tribunal in this case.
(iii) Relief.
5. That this Hon'ble Court have ample power under
section 11-A of Industrial Dispute Act 1947:—
"11 A ……. Powers of Labour courts, Tribunals and
National Tribunals to give appropriates relief in the cased
discharge of dismissal of a workman has been referred to a
Labour Court, Tribunal or National for adjudication and, in
the course of the adjudication proceedings the Labour
Court, Tribunal or dismissal was not justified, it may by its
award, set aside the order of discharge or dismissal and
directed re-instatement of the workman on such terms and
conditions, if any, as it thinks fit, or give such other relief to
the workman including the award of any lesser punishment
in lieu of discharge or dismissal as the circumstances of
the case may require":
The workman relied upon the following judgment
decided by the High Courts of Supreme Court of India.
1. In case titled as Amanullah Versus Chennai Port Trust,
Central Govt. Industrial Tribunal Cum-Labour Court decide
on 05.12.2014 held in para No. 35 of the judgment:—
"{35} while coming to the quantum of benefit though
the labour court has passed an award by directing
the management to pay the terminal benefits from
the date of discharge treating the same as compulsory
retirement taking into consideration the facts that
the Appellant has approached the labour court
belatedly, and considering the facts that the Appellant
has also filed an affidavit dated 14.08.2014 before
this court agreeing to receive the terminal benefits
including pension for the period beginning from there
year prior to the dismissal of W.P. No. 14736 of 2005
on 29.04.2005, we find that the Appellant is entitled
terminal benefit including pension only with effect
from 29.4.2002".
2. The Hon'ble High Court of Delhi held in case of Sunil
Kumar Versus Union of India and others decided by the
Justice Pradeep Nandrajog & Suresh Kait on 07.3.2011
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published in the Delhi Law times 628 (D.B.) 178 (2011) in
this Judgment para No. 14 to 16, 19 and 20 and held that:-
"Unauthorized absence- Imposition of penalty-
removal from service not justified-Petitioner is not a
coward-as a constable he has served in various parts
of India-he had to rush to his village on account of
his ailing wife and newly born female child no doubt,
Petitioner is in default, but authorities have
unnecessary read into conduct of Petitioner and act
of cowardice-Qashing the revisional order dated
08.10.2009-Matter remitted to revisional authority to
pass fresh order levying an appropriate penalty upon
Petitioner which would not be of a kind where
Petitioner loses his job. Petitioner loses his job
Petitioner would be reinstated in service and
appropriate penalty would be levied-till the time he
is reinstated, no wages would be paid to Petitioner"
3. The Hon'ble High Court of Delhi in the matter of
cited in the Delhi law time 696, 196(2013) case titled as
NTPC Ltd. Versus Jagdish Chander decide on 21.12.2012
held that:-
In view of length of service of the Respondent,
Respondent cannot be denied opportunity to present his
defence, no reason to interfere with impugned award
directing reinstatement of Respondent without back wages
(para No. 8 to 22)".
4. That the Hon'ble Supreme Court of India in 2008-I-
LLJ-849 (SC) Dr. Justice Arijit Pasayat Mr. Justice
P. Sathasivam in the matter L & T Komatsu Ltd. N. Udayakumar
held that:
"Dismissal of workman on habitual absenteeism,
holding gross violation of discipline by departmental
enquiry-Labour court or High Court cannot interfere
unless the punishment imposed is wholly and
shockingly disproportionate to the degree of guilt of
the workman".
In view of the above submission and judgment relied
by the workman submitted that the power under section
11-a is akin to appellate power. This Hon'ble Court have
jurisdiction to interfere with quantum of punishment even
in cases where the fining of the quilt recorded by the
employer is upheld or in the case of no enquiry or defective
enquiry; vidya Dhar Vs. Hindustan Coper Ltd. 1994 LLR
299 (Ra). This Hon'ble Court have discretion to award
Lesser punishment.
It is therefore, most respectfully prayed that workman
the age about the 48 years.
Pass such other order (s) which this Hon'ble Tribunal
deem fit and proper be also granted in favour of the
workman.
Now, it is to be decided whether punishment given to
workman is in proportion to misconduct of the workman of
his continuous absence. As Ld. A/R for the workman has
placed reliance on principles laid down in rulings cited by
him. So, it to be determined whether those rulings applies
in the instant case.
Principle laid by Hon'ble Supreme Court in case of L &
T Komatsu Ltd. Vs. N. Udayakumar 2008-I-LLJ-849 (SC) is
inapplicable in the instant case because in the instant case
workman was only removed not dismissed.
Moreover, period of absence of workman was greater
than period mentioned of absence of the workman in the
reported case.
Principle laid down by Hon'ble Supreme Court in case
of Regional Manager Central Bank of India Vs. Vijay Krishna
Neema & Ors. IV(2009)SLT 430 is in applicable in the instant
case due to continuous of long absence of workman without
any plausible reason and on the basis inquiry report
Disciplinary Authority passed punishment. Which was
confirmed by Appellate Authority. Dormancy on the part
of workman to file belated time barred appeal has not even
admitted by Appellate Authority. Workman filed no remedy
against conformed order of Disciplinary Authority. So,
workman is entitled to no benefit on the basis of principle
laid down in the aforesaid ruling.
Principle laid down by Hon'ble Supreme Court in case
of Harjinder Singh Vs. Punjab State Warehousing Corp. I
(2010)SLT 448 is inapplicable in the instant case due to
distinguishable facts. Hence, workman is entitled to no
benefits on this count.
Principle laid down Hon'ble High Court in case of NTPC
Ltd. Vs. Jagdish Chander 196(2013) Delhi Law times 696
also inapplicable in the instant case because of absence of
workman from his duty since 17.8.1997 to 14.10.1997 = 59
days, 16.10.1997 to 17.2.1998=125 days, 25.05.1998 to
12.08.1998 = 80 days. The workman joined his duty on
13.8.1998 and was granted 1 ½ day C.L. w.e.f. 30.09.1998
and 3.10.1998 as 4.10.1998 was Sunday. The workman did
not join his duty on 5.10.1998 and remained absent from
duty without prior permission and intimation. On 16.11.1998,
Regd. Letter was received by Sh. Mool Chand Verma from
the workman that the workman was ill and will join his duty
on 20.11.1998. Two telegrams were sent to the workman on
9.11.1998 and 7.1.1999 to join duty immediately, but the
workman neither joined his duty nor did he send any
communication about his absence.
In these circumstances no benefits can be given to
workman on the ground of aforesaid principle laid down
by lordship of Hon'ble Delhi High Court.
On the basis of aforesaid discussion I am of considered
view that departmental inquiry conducted against workman
by management was legal, just, fair and was not in violation
of natural justice and punishment imposed by Disciplinary
Authority on the basis of inquiry report which has been
confirmed by Appellate Authority is also in proportion to
1762
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
misconduct of workman. In this background reference is
liable to be decided against workman and in favour of
management. Which is accordingly decided and claim
statement is dismissed.
Award is accordingly passed.
Dated : 31.3.2015
HARBANSH KUMAR SAXENA, Presiding Officer
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New Delhi, the 16th April, 2015
S.O. 808.—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. 02/2014) of the
Central Government Industrial Tribunal/Labour Court,
Guwahati now as shown in the Annexure in the Industrial
Dispute between the employeers in relation to the
management of Indian Oil Corporation Limited and their
workman, which was received by the Central Government
on 6/4/2015.
[No. L-30011/42/2013-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI, ASSAM
Present : Shri L.C. Dey, M.A., LL.B.
Presiding Officer,
CGIT-cum-Labour Court, Guwahati.
Ref. Case No. 02 of 2014
In the matter of an Industrial Dispute between:-
Shri Tarun Hazarika........Claimant/workman.
-Vrs-
The Management of Indian Oil Corporation Ltd. (Assam
Oil Division), Digboi.........O.P./Management.
APPEARANCES :
For the Workman.
:
The Jt. Secretary, AOC Labour
Union, Digboi.
For the Management
: Mr. R.C. Barthakur,
Management representative.
Date of Award : 24.11.2014
AWARD
1. This Reference has been initiated on an Industrial
Dispute exists between the Management of Indian Oil
Corporation Limited, Assam Oil Division, Digboi and their
workman, which was referred to by the Ministry of Labour,
Government of India under Clause (d) of sub-section (1)
and sub-section (2A) of Section 10 of the ID Act vide their
order No.L-30011/42/2013-IR(M), dated 21.02.2014 in respect
of the matter specified in the Schedule below:
SCHEDULE
"Whether the action of the management of Indian
Oil Corporation Limited, Assam Oil Division, Digboi
in transferring Shri Tarun Hazarika, Employee No.
136209 is legal and justified? If not, what relief he is
entitled to?"
2. After registration of this Reference notices were issued
upon both the Union and the Management. Accordingly,
both the parties appeared and submitted their Claim
Statement/Written Statement.
3. The case of the workman, in nutshell, is that the
workman Shri Tarun Hazarika, Employee No. 136209 has
been working in Indian Oil Corporation Ltd. (AOD) since
21.07.1987 and discharging his duty with the satisfaction
of the superiors in different asssignments and now working
as Senior Office Superintendent, Grade VIII under Admin.
& Welfare Department. The workman has also been
functioning as President of AOC Labour Union registered
bearing No. 43 affiliated to INTUC under No. 8155. The
AOD Labour Union has submitted the list of office-bearers
of their Union within the stipulated period from time to time
to the AOD Management to recognize as "Protected
Workmen" subject to Section 61(1) of Industrial Dispute
Act, 47. In the month of July, 2013 the workman was served
with an office order No. PERS/CONF 3G/2013-562 dated
07.06.2013 transferring him from Admn. & Welfare
Department to Tech. services (HS & E) department inside
Refinery on 6.7.2013 with a view to restrain him from Union
activities. The workman alleged that in pursuance of such
malafide transfer, a General Council of AOC Labour Union
was held in the month of July, 2013 and it was decided to
protest against such malafide transfer order of President
Shri Tarun Hazarika, the workman; the Vice President, Shri
Aftab Hussain and other members; at this crucial juncture
of forthcoming union membership verification, the transfer
of office bearers and active members will damage the union's
stability and strength which is not at all just and fair on the
part of AOD management. Thereafter several
representations were submitted to the AOD management
for recalling the transfer order but the management did not
pay heed to their repeated requests and was adamant to
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1763
consider the same being their malafide intention to damage
the union activity. Fiding no way the Industrial dispute
was raised before the ALC(C), Dibrugarh and conciliation
was held to settle the matter amicably but the AOD
management did not arrive at a mutual settlement even
after assurance to review the transfer matter before
conciliation officer. It is mentioned that the said matter of
alleged transfer of AOD Labour Union's office bearers was
also placed before the CLC(C), New Delhi for his direction
to stop such malafide transfer and keeping in view the
justification over the matter The CLC (C), New Delhi
forwarded the matter to RLC (C), Guwahati who requested
the Executive Director of AOD, Digboi vide letter No. G/
R.8(38)/2013 dated 26.11.2013 to keep in abeyance of all the
transfer of office bearer and active members until the
election process are over. Thereafter the AOD management
has taken a view to stay the transfer order of the workman
and passed an order to continue his earlier assignment
vide letter No. PERS/Conf-3G/2013-1000 dated 06.09.2013.
The workman added that he had been discharging his duty
in his existing assignment and giving his full attendance
since the date of transfer order but the salary of 54 days are
still remain unpaid even though the matter was under
conciliation at ALC (C), Dibrugarh and under consideration
of the management, which is purely unfair labour practice.
Hence, the workman prayed to look into the matter so that
the natural justice to the workman is not denied.
4. The management, on the other hand, submitted their
written statement inter-alia, that the order of reference
made by the Central Government is not maintainable as the
transfer is a condition of service and the issuance of transfer
order to an employee cannot be an Industrial dispute and
hence, the order to reference is bad and the same cannot
be adjudicated. The Management mentioned that the IOCL
(AOD) is a Division of Indian Oil Company Ltd. having its
Refinery at Digboi and the same Division was known as
Assam Oil Company Ltd. earlier which was merged with
the IOC Ltd. and is kept a separate Division of IOCL. The
workman was issued an Office Order dated 7.6.13
transferring him to H S & E (Health Safety & Environment)
and he was advised to be released from his present
assignment with on 6.7.13 vide order dated 7.6.13; and
workman was released from the present assignment with
effect from 13.7.13 vide order dated 12.7.13. Thereafter the
workman submitted representations on 21.8.13 for allowing
him to join in his earlier assignment. Accordingly the
workman was allowed to continue till 31.3.14 in his present
assignment. The workman joined his earlier assignment on
6.9.13 and thereafter vide order dated 07.05.2014 the
workman was allowed to continue his earlier assignment
and ordered that he will be released from earlier assignment
on 30.9.2014. In the mean time four numbers of employees
who were transferred during the same time including the
workman submitted four Writ Petitions on the ground that
conciliation proceeding in respect of some other issues
were pending at the time of issuance of this transfer order
and the Writ petition filed by the workman was numbers as
W.P.(C) No. 4292/13. The Hon'ble Gauhati High Court by a
common order dated 01.08.2013 disposed of all the Writ
Petitions without entering into the merit holding that since
the Conciliation Proceeding is pending and if the writ
petitioner is aggrieved by the transfer order, they may file
Application u/s 33A of the I.D. Act within a period of 7
days before the conciliation officer and directed the
management that if the transfer order are not already given
effect to, shall be kept in abeyance for a period of 15 days
from 01.08.13.
The management further stated that pursuant to the
Hon'ble High Court's order it is not known whether the
workman has filed any such complaint petition u/s 33A of
the I.D. Act. However, the transfer is a condition of the
service of the workman who was transferred just within the
Refinery Complex, and as such, he cannot claim that the
transfer is malafide or illegal and hence the workman is not
entitled to any relief of the instant reference. Since the
transfer is a condition of service of the employees of the
IOCL no one can claim that he should not be transferred
from a post in which he is working since long and if such
transfer is interfered by this Hon'ble Tribunal the other
workmen of the Corporation will naturally claim that they
should also not be transferred and in such case, it will
bring a stand still in the organization. The management
also mentioned that the AOC Labour Unions is not a
recognized union during the relevant period and the
Mineral Workers' Union was the recognized majority union
during the relevant period and as such, the claiming of
protected workman status by the workman does not arise.
From the verification of membership conducted by the
Ministry of Labour and Employment department it was
ascertained that AOC Labour Union has only 772 members
and as such their claim for not giving protected workman
status to 11 workmen cannot be considered. It is contended
by the management that the workman was transferred from
Administration department to HS & E Department, Digboi
and hence, it is not correct that the workman could not
meet the other workman for any union business. The
management denying the contention made in para-4 and 5
of the W.S. submitted by the workman mentioned that the
transfer order was issued to about 60 employees during
the year for organizational requirement only and out of
them majority are the members of the recognized union,
and that the management by giving due weightage of the
representation of the workman he was allowed to his earlier
assignment with effect from 6.9.13 to 31.3.14 and thereafter
he was allowed to continue is earlier assignment till 30.9.14
allowing the workman to continue his current assignment
till 30.9.14 and till such time membership verification of
union would be completed. The management further
mentioned that the workman was released from his earlier
assignment w.e.f. 13.7.13 (afternoon) with an advise to join
his new assignment in HS & E Department but even after
release from his earlier assignment he did not report in his
new assignment. Meanwhile in reference to his
1764
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
representation dated 21.8.13 he was allowed to his earlier
assignment by letter dated 6.9.13, and in between, the
workman was absent from duty without any leave or
permission and as such, the principle of no work no pay
would apply for those days. Hence, the workman is not
entitled for wages for those days when he was absent
without leave or permission. Thus the management prayed
for answering the reference in their favour.
5. On receipt of the notice issued from this Tribunal the
workman appeared and submitted his Claim Statement along
with petition praying for restraining the management from
engaging lawyer. After hearing both the sides the petition
was allowed restraining the management from engaging
lawyer in this reference vide order dated 27.6.14.
Accordingly this Reference was fixed for evidence of the
workman on 25.8.14 but the workman remained absent
without any step on 25.8.14 and on subsequent fixed dates
i.e. on 22.9.14, 17.10.14 and 17.11.14 and thereafter the case
was heard ex-parte against the workman.
The Management examined Mr. Ripun Chandra
Barthakur, Administrative Officer, IOCL(AOD), Ulubari,
Guwahati as Management Witness No. 1 ex-parte. I have
heard argument from Management side.
6. The Management witness No. 1 Mr. R.C. Barthakur
stated the workman Tarun Hazarika is a workman of their
Company and the condition of service of the workman is
governed by the Standing Order or Assam Oil Company
Ltd. marked as Exhibit-A; the workman was transferred on
7.6.13 according to the provision of the Standing Order
and as per the interest of the Company's service from Digboi
Administration Department to HS & E Department, Digboi
along with some other workmen vide Exhibit-B. Against
the said order of transfer the workman moved before the
Hon'ble High Court which was pleased to direct the
workman to raise Industrial Dispute. Thereafter the AOC
Labour Union raised a dispute alleging the malafide transfer
of the workman including the present workman but the
Government of India vide their letter No.L-30011/56/2013-
IR(M) dated 2.7.14 refused to refer the dispute observing
that the matter raised cannot be considered as an Industrial
Dispute, vide Exhibit-C. As such, the present reference is
not maintainable in law. The MW.1 further mentioned that
the workman vide his application dated 21.8.13 (Exhibit-D)
requested the management to cancel the transfer order.
Considering his request the management allowed the
workman to continue his earlier assignment upto 31.3.14
vide letter No.PERS/CONF/ 3G/2013-1000 dated 6.9.13
(Exhibit-E) and the workman was also released from
Adminstrative department vide order dated 7.5.14 (Exhibit-
F) to join his new assignment on 30.9.14. But the workman
has not joined is new assignment rather he is attending his
earlier duty/assignment under Administration Department.
The MW.1 further stated that the transfer of the workman
was done as per the provision of law and the Standing
Order of the Management, and the workman since after
receiving the notice was represented by their Joint
Secretary, AOC Labour Union, Digboi and thereafter he
remained absent and as such, the conduct of the workman
reveals that he has not accepted the transfer. Therefore the
action of the management is legal and justified and hence,
the workman is not entitled to any relief as claimed.
On perusal of the claim statement submitted by the
workman. W.S. submitted by the management along with
evidence of the management witness No.1 and the
documents produced by both the parties it appears that
the workman Tarun Hazarika is a workman of IOCL AOD,
Digboi and his service is governed by the Standing Order
of Assam Oil Company Ltd. The workman was transferred
as per the provision of Standing Order in the interest of
Company's service on 7.6.13 from Administratrion
Department of IOCL, AOD, Disboi to HS & E Department,
IOCL AOD, Digboi at the same station along with some
other workmen while the workman moved the Hon'ble
Gauhati High Court against the said order of transfer and
the Hon'ble High Court was pleased to direct the workman
to raise industrial dispute. While the AOC Labour Union
raised a dispute alleging the transfer of the workman but
the Government of India vide their letter dated 2.7.14
(Exhibit-C) refused to refer the dispute observing that the
matter raised can not be considered as an Industrial Dispute.
7. The Chapter XV.A of the Standing Order of the Assam
Oil Company Ltd., under the Industrial Employment
(Standing Order) Act, 1946, which runs as under:
"A Transfers:
Employees may be transferred due to exigencies of work,
from one area to another wherever the Company may be
carrying out its operation and from one department or
section to another provided that the pay, grade continuity
or conditions of service of the employes are not adversely
affected by such transfer and provided also that where an
employee is transferred from one job to another that job
should be of similar nature such as he is capable of doing.
Management will give reasonable notice to the workers
concerned in case of such tranfers."
It is established principle that the transfer is a condition
of service and in the instant case the workman was
transferred from Administration Department to HS & E
Department of IOCL (AOD) and it was done by the
management due to the exigencies of work as well as in the
interest of the Company. The workman although took the
plea that he falls within the category of "Protected
Workman" u/s 61(1) of I.D. Act but he has not been able to
establish this plea adducing evidence as well as supporting
document. The management in their W.S. mentioned that
the AOC Labour Union is not recognized Union and during
the relevant period the Mineral Oil Workers Union was
recognized as majority Union; and as such, the plea of the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1765
management cannot be discarded and the claim of the
workman that he is "Protected workman" is found to be
not established. Further on verification of the list of
membership conducted by the Ministry of Labour and
Employment it was ascertained that AOC has only
772 members.
8. In course of argument Mr. R. C. Barthakur,
Administrative Officer, IOCL AOD submitted that the
workman was transferred in the interest of the Company
on exigency and the transfer is a condition of service and
hence the workman is not entitled to any relief as claimed.
Further the workman also failed to prove his case adducing
any evidence, rather he abstained himself from appearing
before the Court since after filling of his claim statement, in
order to prove the alleged unfair labour practices by the
management in transferring the workman mala fide, and to
face the cross-examination by the management in the Court.
Mr. Barthakur however mentioned that the workman after
submitting representations and also admitting to raise some
protest against the management for recalling the transfer
order and after filing Writ Petition before the Hon'ble
Gauhati High Court has failed to join his place of transfer.
Even the workman since after receiving notice from the
Tribunal was represented by the Jt. Secretary, AOC Labour
Union and thereafter he remained absent without any step
and as such, the conduct of the workman reveals that he
has not accepted the transfer. Hence, the action of the
management is legal and justified and as such, the workman
is not entitled to any relief as claimed.
9. The MW-1, in his evidence categorically mentioned
that upon moving the Hon'ble Gauhati High Court by the
workman against the order of transfer of the workman the
Hon'ble High Court was pleased to direct the workman to
raise Industrial Dispute. While the AOC Labour Union
raised the dispute, but the Government of India, vide their
letter marked as Exhibit-C refused to refer the dispute and
observing that the matter raised cannot be considered as
Industrial Dispute on the following reason:
"It is reported that the transfer of the Office bearers
of the claimant union is done as per the Standing
Order of the corporation and transfer policy/rotation
modality/guidelines as consented to by the union.
Hence the matter raised can not be construed as an
industrial dispute".
The Ministry has subsequently referred this dispute
under clause (d) of Sub-Section (1) and Sub-Section-(2A)
of Section 10 of the ID Act vide their letter No. L-30011/42/
2013-IR(M) dated 21.02.2014 for adjudication. Clause-(d)
of Sub-Section (1) of Section 10 which runs as under:
"10.: Reference of disputes to Boards, Courts or
Tribunals-(1) Where the appropriate Government is
of opinion that any industrial dispute exists or is
apprehended, it may at any time by order in writing—
* *
*
*
*
*
(d) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, whether
it relates to any matter specified in the Second
Schedule or the Third Schedule, to a Tribunal for
adjudication."
The second Schedule and third Schedule to the ID Act
provides for the matter within the jurisdiction of Labour
Court and on perusal of these 2nd and 3rd schedule of the
aforesaid Act there is no mention of the transfer of the
workman/employee. However there is also nothing on
record to show that the transfer of the workman was not
made as per provision of the Standing Order of the Assam
Oil Company Ltd. due to exigency of work and in the interest
of the Company. There is also no materials to show that the
transfer of the workman was done malafide or in gross
violation of natural justice. Ordinarily the Civil Court has
no jurisdicition to interfere with the transfer of the workman/
employee except the transfer is made by the management
mala fide or in gross violation of the principle of natural
justice. Thus the argument raised by Mr. R.C. Barthakur for
the management can not be rejected. Further the workman
was transferred from one Department i.e. Admn. & Welfare
Dept. to another Dept. viz. Tech. Service (HS &E) Deptt.
Digboi within the same complex & hence I find no reason
to believe that by such a transfer the management had put
the workman to face inconvenience in due discharge of his
Union activities. Hence, the allegation raised by the
workman is found not sustained.
10. Considering the facts and circumstances of the case
and having regard to the discussion and the findings arrived
at as above, it can safely he held that the action of the
management of Indian Oil Corporation Ltd. (AOD) in
transferring Sri Tarun Hazarika, Employee No. 136209 is
legal and justified and as such, the workman is not entitled
to any relief as claimed. Accordingly, this reference is
answered in negative. Let a copy of the no relief Award be
forwarded to the Ministry as per procedure.
Given under my hand and seal of this Court on this
24th day of November, 2014, at Guwahati.
L.C. DEY, Presiding Officer
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1766
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
New Delhi, the 16th April, 2015
S.O. 809.—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. 72/2013) of the
Central Government Industrial Tribunal/Labour Court,
Chennai now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of India Cements Limited and their workman,
which was received by the Central Government
on 6/4/2015.
[No. L-29011/29/2013-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Tuesday, the 31st March, 2015
Present: K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 72/2013
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management of India Cement Ltd. and their workman)
BETWEEN
The Secretary
:
1st Party/Petitioner Union
Sankagiri Cement Alai
Thozhilalar Munnetra Sangam
Sankagiri West—637303
Distt. Namkkal
AND
The General Manager
:
2nd Party/Respondent
M/s India Cements Ltd.
Sankari West Post
Distt. Salem—637303
Appearance :
For the 1st Party Petitioner/
: M/s. Rengaramanujam,
Union
J. Prathaban,
Advocates
For the 2nd Party/Respondent : M/s. S. Jayaraman,
H. Balaji, Advocates
AWARD
The Central Government, Ministry of Labour &
employment vide is Order No. L-29011/29/2013-IR (M)
dated 14.06.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the Management of M/s.
India Cements Ltd., Sankari regarding discharging
the service of the workman, Sri. P. Krishnan vide
order dated 12.01.2006 is justifiable? If not, what
relief the workman is entitled to?"
2. On receipt of the Industrial Dispute this Tribunal has
numbered it as ID 72/2013 and issued notices to both
sides. Both sides have entered appearance through their
counsel and have filed their claim and counter statement
respectively.
3. The averments in the claim Statement filed by the
petitioner in brief are these:
“The dispute was raised by Krishnan, a member of the
Petitioner Union before the Assistant Labour
Commissioner(C). Chennai challenging the termination
order passed against him by the Respondent on 12.01.2006.
During the pendency of the proceedings Krishnan died on
27.12.2011. The legal heirs of Krishnan had requested the
Petitioner Union to appear in the case on their behalf.
Accordingly, the Petitioner had appeared before the Assitt.
Labour Commissioner (C). Conciliation proceedings ended
in failure and the matter had been referred to this Tribunal
on the basis of the failure report given by the Asstt. Labour
Commissioner (C) to the Government Krishnan the
concerned workman had joined as Mazdoor in the Mines
Canteen of the Respondent in the year 1988. He was made
permanent in the year 1989. He was later promoted as Driver
in the Mines Department. Krishnan had served the
Respondent without any blemish. A Charge Memo dated
24.11.2005 was issued to Krishnan alleging that he was
unauthorizedly absent from duty for 23 days in the
year 2005. Krishnan had submitted his explanation that his
mother had to undergo an eye operation and he had to be
in hospital with her and also that his Sister's husband had
died. The Respondent refused to accept the explanation
and ordered enquiry. The Enquiry Officer also did not
accept the explanation given by Krishnan for his absence
and entered a finding that the charges against Krishnan is
proved. Krishnan availed leave with due permission of his
superiors during the period from January to October 2005
intermittently on various dated. He was never absent for
7 days consecutively. The Enquiry Officer had failed to
take note of the fact that absence of Krishnan was not
willful. On the bass of the enquiry report Krishnan was
discharged from service on 12.01.2006. The action of the
Respondent is vindictive and arbitrary. The order of
discharge passed by the Respondnet is shocking
disproportionate also. An order may be passed holding
that the order of discharge of Krishnan from the service of
the Respondent is not justified and also to treat Krishnan
to have been in service from 12.01.2006, the date of
discharge till 27.12.2011, the date of his death and to pay
back wages due to him and other monetary and service
benefits.”
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1767
4. The Respondent has filed Counter Statement
contending as below:
The Industrial Dispute is not maintainable in law.
Krishnan, the concerned workman was working in the
Mines Division of the Repondent situated at Sankari, Salem
District. On verifying his attendance it was found that he
has absented himself for 23 days during the period from
January 2005 to October 2005 on various occasions without
permission of his superiors and without prior intimation.
His absence without permission caused servere dislocation
of work in the Department. He was issued Charge sheet
under the relevant Standing Orders and was also directed
to submit hs explanaion. The explanation given by the
workman was found unsatisfactory. So a domestic enquiry
was conducted against the workman concerned. The
workman had participated in the enquiry. He was discharged
from service on 12.01.2006 as punishment for the
misconduct committed by him. The dispute having been
raised by Krishnan in his individual capacity the Petitioner
Union cannot substitute itself or represent Krishnan or his
legal heirs. The Trade Union was not authorized to raise or
contest the dispute. The petition is liable to be dismissed.
5. The evidence in the case consists of oral evidence of
WW1 and WW2 and MW1 and documents marked as Ext.
W1 to Ext. W18 and Ext. M1 to Ext. M21.
6. The Points for consideration are:
(i) Whether the action of Management in discharging
Krishnan from service is justifiable?
(ii) To what relief the petitioner is entitled?
The Points
7. The dispute is raised in view of discharge of Krishnan,
a member of the Petitioner Union who was in the service
of the Respondent. The Respondent has alleged that
Krishnan was unauthorizedly absent from duty for 23
days intermittently during the period from January 2005 to
October 2005 without any prior information or permission.
A Charge Memo was issued to Krishnan. A domestic enquiry
was conducted and Krishnan was discharged from service
on 12.01.2006 on the basis of the report of the enquiry.
Krishnan himself has raised the dispute in his individual
capacity before the Asstt. Labour Commissioner (Central).
However, Krishnan died during the pendency of the
proceedigs and the Petitioner Union has got into the shoes
of Krishnan by filing Claim Statement before this Tribunal
and proceeding with the dispute.
8. Before considering the core question i.e. the legality
and justifiability of discharge of Krishnan from the service
of the Respondent, a preliminary objection raised by the
Respondent regarding the maintainability of the dispute is
to be answered. It has been contended in the Counter
Satement that the dispute is not maintainable in law. The
argument that is advanced on behalf of the Respondent is
that Krishnan having raised the dispute under Section 2A
of the ID Act before the Asstt. Labour Commissioner
(Central), the Petitioner Union could not have substituted
itself in the place of Krishnan and continued the
proceedinngs before this Tribunal by filing a Claim
Statement under Section 2A of the ID Act.
9. Of course, Section 2A of the ID Act is a remedy
available to an individual workman. The Petitioner Union
has filed the Claim Statement quoting Section 2A of the ID
Act. It is pointed out by the counsel for the Respondent
that the Union is not entitled seek a remedy under
Section-2A of the Act and the dispute if any by the Petitioner
Union should hve been raised under Section-2k of the Act.
There can be no quarrel that this is the case. However
merely because provision is wrongly quoted by the
petitioner the Claim Statement need not be treated as one
under Section-2A of the Act and not under Section-2k of
the Act.
10. I am unable to accept the argument that the petitioner
could not have filed Claim Statement here since the
concerned workman himself has raised the dispute before
the Asstt. Labour Commisioner (Central) also. In the Claim
Statement itself the petitioner has stated that on death of
Krishnan the legal heirs of Krishnan had approached the
Union to take up the matter and proceed with the matter.
The legal heirs of Krishnan is said to have written to the
Asstt. Labour Commissioner (Central) giving consent to
the Union to appear in the cases on their behalf. The Union
Seems to have appeared before the Labour Commissioner
also. Documents are produced to show that Union is
sufficiently authorized to proceed with the dispute. Ex. W15
is copy of the letter written by Krishnan to the Enquiry
Officer of allow the Union representative to assist him.
Ex.W16 is the letter written by the Union to the Respondent
requesting to reinstate Krishnan in service. Lastly, there is
Ext.W18, the resolution passed by the Union deciding to
take up the cause of legal heirs of Krishnan based on the
letter given by the wife of Krishnan. So there is sufficient
authorization and there is a resolution passed in the meeting
held by the Union to take up the cause. So I find that the
attack made by the Respondent on the maintainability of
the case is not sustainable.
11. Now the question is whether discharge of Krishnan
from service on the charge of unauthorized absence from
duty is justifiable. In the Claim Statement there is of course
a vague contention that the domestic enquiry was not
conducted in a proper manner. However, the reason given
for this is that Enquiry Officer had not accepted the geniune
reasons given by Krishnan for his absence. This is not a
matter that affects the fairness of the enquiry but is a matter
to be considered while considering the case on merits. As
could be seen, Krishnan was sufficiently represented in
the enquiry proceedings. So it could not be stated that the
enquiry was not fair and proper.
1768
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
12. Ex.M2 is the copy of the Charge Sheet issued to the
deceased workman and Ext.M3 is the reply submitted by
him, both in Tamil. I have got the documents translated
and it is seen that the Charge Sheet is to the effect that
Krishnan have been unauthorizedly absent from duty for
23 days and has thereby committed the misconduct under
Section-19.1.f(q) of the Certified Standing Orders of the
Company. In Ext.M3 Krishnan has stated even at that time
that his absence was due to the eye surgery his mother
had undergone and due to the death of his brother-in-law.
The Respondent has examined his Time-Keeper to
establish absence of Krishnan. The abstract of the
Attendance Register is also seen produced in the enquiry
proceedings along with other documents. On the same
day the concerned workman was questioned by the
Enquiry Officer and he is said to have admitted that the
allegations mentioned in the Charge Sheet are true. He has
further tried to justify his absence stating that his mother
had undergone an eye operation and he was compelled to
be with her in the hospital to assist her. He has also stated
that he had lost his brother-in-law and had to take leave on
loss of pay to attend his funeral and other ceremonies
connected to it. He has also stated that he had never
applied for leave on loss of pay on any prior occasions. He
is said to have given an assurance before the Enquiry Officer
that he will not repeat his conduct.
13. It could be seen from the report of enquiry that the
Enquiry Officer found the charge established based on the
evidence of the Time-Keeper and the alleged admission
made by the concerned workman himself. The fact that
was considered by the Enquiry Officer was whether the
concerned workman was absent from duty during the days
mentioned without seeking leave in advance. Regarding
the case put forth by the workman that he was absent on
account of reasons given by him, the Enquiry Officer has
opined that the workman has not let in any documents to
prove this.
14. When a charge of unauthorized absence is put on a
workman it is not enough that his absence is established.
The employer has to establish that absence from duty was
willful and deliberate. There was not even a case for the
Management that absence was willful and deliberate. The
Enquiry Officer has not considered the question properly
also.
15. The concerned workman was charged under Clause-
19.1.f(q) of the Certified Standing Orders of the Company
which states that habitual absence without leave or absence
without leave for more than 8 consecutive days is a
misconduct that entails the punishment of dismissal from
service. It is a misconduct enumerated under the Standing
Orders and therefore the Respondent could not have
imposed punishment without establishing the charge. The
Respondent having failed to establish that the absence
was willful and deliberate, the charge could not be said to
have been established also.
16. In any case the punishment imposed on the
delinquent is shockingly disproportionate. There is no case
for the Respondent that on previous occasions the
concerned workman was absenting himself habitually. He
seems to have been absent only during the spells given in
the Charge Sheet and that also just for 23 days. The
Respondent has immediately taken it upon it to put an end
to the service of the concerned workman. In the decision in
Jagdish Singh Vs. Punjab Engineering College and Others
reported in 2009 7 SCC 301, the Apex Court while
considering absence of a Sweeper for 15 days on four spells
has observed that dismissal of the Sweeper from service
was shockingly disproportionate to the offence charged.
The Apex Court had modified the punishment to stoppage
of two increments. In the present case absence was only
for a period of 23 days and that also without any past
history of absenteeism. The Respondent was not at all
justified in imposing the punishment of discharge on the
concerned workman.
17. The workman had died during the pendency of the
proceedings. The workman who would have been entitled
to a reinstatement if he was alive is to be deemed to have
been in service from 12.01.2006, the date of discharge till
27.12.2011, the date of his death. He would be entitled to
50% of the back wages and other benefits including
continuity of service.
Accordingly, the Respondent is directed to treat the
concerned workman to have been in service from 12.01.2006
to 27.12.2011. 50% of the back wages and other attendant
benefits due to the concerned workman shall be paid to his
legal heirs within a month of the award. In case of default
the Respondent is liable to pay interest @ 9% per annum
from the date of the award.
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner :
WW1, Sri A. Manickam
Union
:
WW1, Sri V.R. Ramasamy
For the 2nd Party/
:
MW1, Sri V.S. Muralidhar
Management
Documents Marked:
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
12.01.2006
Order of Discharge
Ex.W2
27.12.2011
Death Certificate
Ex.W3
21.02.2012
Representation of the legal heir
Ex.W4
21.04.1988
Order of Appointment
Ex.W5
24.11.2005
Show-Cause Notice
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1769
Ex.W6
28.11.2005
Reply of the delinquent
Ex.W7
22.12.2005
Findings of the Enquiry Officer
along with Proceedings
Ex.W8
27.09.1965
Standing Order of the 2nd Party
Ex.W9
Sept. 2005
Salary slip
Ex.W10
Jan. 2005 to
Attendance details of the
Oct. 2005
delinquent
Ex.W11
23.12.2005
Second Show Cause Notice
Ex.W12
02.01.2006
Explanation to the Show Cause
Notice
Ex.W13
20.01.2006
Explanation to the Show Cause
Notice
Ex.W14
26.02.2007
Dispute before the Labour Officer
(Central)
Ex.W15
21.12.2005
Letter of Mr. P. Krishnan to the
Enquiry Officer
Ex.W16
25.01.2006
Union letter to the 2nd Party
Ex.W17
26.11.2009
Letter of Mr. Krishnan to the ALC
(Central)
Ex.W18
21.03.2012
Union Resolution
On the Management's side
Ex.No.
Date
Description
Ex.M1
—
Basic Report
Ex.M2
24.11.2005
Charge Sheet issued to the
deceased workman
Ex.M3
28.11.2005
Reply submitted by the deceased
workman
Ex.M4
20.12.2005
Enquiry notice issued to the
deceased workman
Ex.M5
—
Attendance details of the
deceased workman for the period
from January to October, 2005
Ex.M6
21.12.2005
Letter submitted by the deceased
workman to the Enquiry Officer
Ex.M7
21.11.2005
Enquiry Proceedings
Ex.M8
23.12.2005
Second Show Cause Notice issued
to the deceased Workman
Ex.M9
02.01.2006
Reply submitted by the deceased
workman
Ex.M10
12.01.2006
Order to Discharge from service
issued to the deceased workman
Ex.M11
—
Representation submitted by the
deceased workman
Ex.M12
26.06.2007
Representation submitted by the
deseased workman to the Labour
Enforcement Officer
Ex.M13
23.07.2007
Reply filed by the Second Party
before the Labour Enforcement
Officer
Ex.M14
27.04.2010
Additional reply submitted by the
Second Party before the Labour
Enforcement Officer
Ex.M15
16.03.2011
Representation submitted by the
Second Party before the Labour
Enforcement Officer
Ex.M16
21.06.2011
Representation submitted by the
deceased workman to the Second
Party
Ex.M17
02.07.2011
Police complaint submitted by the
Second Party
Ex.M18
08.02.2012
Representation submitted by the
wife of deceased workman to the
Second Party
Ex.M19
04.05.2012
Letter sent by the Second Party to
the wife of the deceased workman
enclosing gratuity cheque
Ex.M20
29.10.2012
Full and final settlement of salary
of the deceased Workman
Ex.M21
16.01.2012
Reply Submitted by the Second
Party
before
the
Labour
Enforcement Officer.
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dks izkIr gqvk FkkA
[lañ ,y&30012@56@2011&vkbZvkj ¼,e ½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 810.—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. 33/2013) of the
Central Government Industrial Tribunal/Labour Court,
1770
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
Guwahati now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of O.N.G.C. Limited and their workman, which
was received by the Central Government on 6.4.2015.
[No. L-30012/56/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, GUWAHATI
Present:
Shri L.C. Dey, M..A. LL.B.,
Presiding Officer,
CGIT-Cum-Labour Court,Guwahati:
In the matter of an Industrial Dispute
between:—
The Management of ONGC Limited, Kolkata.
-Vs-
The Workman Shri Jiban Chandra Das, Tripura
(West).
Ref. Case No. 33 of 2013
Copy of order dated 23.03.2015
ORDER
23.03.2015
The Case Record put up today along with the order No.
F. No. L-30012/45/2011-IR(M) dated 13.01.2015 from the
Ministry of Labour and Employment along with a copy of
the judgement and order (oral passed by the Hon'ble
Guwahati High Court on 18.11.2014 in (1) W.P.(C) No. 5958
of 2013 (2) W.P. (C) No. 7372 of 2013 (3) W.P.(C) No. 7381 of
2013 (4) W.P. (C) No. 7385/2013 by which the Hon'ble
Guwahati High Court has been pleased to dispose of the
instant reference case and 45 Nos. of other reference cases
together inthe matter of an Industrial Dispute between the
Management of ONGC Ltd. Kolkata (O. P/management)
and the workman Sri Jiban Chandra Das, Tripura (west)
(Claimant/workman).
This dispute arose between the employer in relation to
the management of ONGC Ltd. and their workmen and the
said dispute was referred to by the Ministry for adjudication
vide their No. F. No. L-30012/56/2011-IR(M), dated 26.06.13.
The schedule of this reference is as under:
"Whether the action of the management of ONGC
Ltd. in terminating the services of workman Shri Jiban
Chandra Das, S/o Sh. Manmohan Das, Ex.
Contingent workman engaged in seismic survey work
through their Geophysical Party w.e.f. 01.07.2011 in
presence of settlement dated 27/28.01.2001, is legal
and jutified? What relief the concerned workman is
entitled to?"
“The case of the claimant/workman, as it appears from
the claim statement, in brief, is that he had been working as
casual contingent workman under ONGC, Tripura since
13.12.1982 to work in the seismic survey section under
geophysical Party No. 27 along with other workmen. But
the management did not consider their genuine case for
appointment on regular basis despite his long 20 years of
unblemished, dedicated service rendered to the
Management. The Hon'ble Guwahati High Court passed
an order and judgement and decided the said issue in terms
of Memorandum of settlement dt. 27/28.01.2001 executed
by and between the Management and their workmen signed
before the R.L.C. (C), Guwahati. Dispite the above order of
the Hon'ble High Court the management did not regularize
the workmen rather the present workman has been
terminated from service in July, 2001 without assigning
any reason thereof, and the management in order to avoid
the statutory obligation as provided u/s 25(F) of the I.D.
Act, 1947 allowed the workmen to work 234/235 days in
each calender year with few intentional breaks, and thereby
the management deliberately exercise unfair labour practice.
In fact, the workman worked for more than 240 days on an
average in every year. Thus the management have not
complied with the terms of the said settlement. Hence, the
workman prayed to adjudicate the present reference by
pronouncing an award in favour of the claimant/workman.
On receipt of the order of reference from the Ministry
this reference case was registered and notice were issued
upon both the parties who appeared before this Tribunal.
The workman submitted his claim statement along with the
supporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 21.01.2014 stating that they have moved before
the Hon'ble Guwahati High Court assailing, inter-alia, the
order or reference and the subsequent notice issued there
upon and the Hon'ble High Court passed on interim order
dated 18.12.2013 staying the further proceeding of the
reference. The management also submitted a copy of the
order dated 18.12.2013 passed by the Hon'ble Guwahati
High Court in W.P.(C) No. 7372/13. Accordingly the
proceeding of this reference was stayed with effect from
21.01.2014 untill further order.
On perusal of the letter dated 13.01.2015 issued by the
Ministry of Labour and Employment along with the copy
of the judgement and order (oral) passed by the Hon'ble
High Court in Writ Petition No. W.P.(C) No. 7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been pleased to allow the Writ Petitions preferred by
the management of ONGC challenging the claims of the
workmen as well as the order of reference and the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1771
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.D. Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner (C) on 27th/28th
January, 2001 and the same having been acted upon by all
the concerned parties, there could not have been any
occasion for the workmen involved in the writ petitions to
raise a further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
from the said reference and pending before the Tribunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workman.
L. C. DEY, Presiding Officer
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FkkA
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New Delhi, the 16th April, 2015
S.O. 811.—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. 13/2013) of the
Central Government Industrial Tribunal-cum-Labour Court,
Guwahati now as shown in the Annexure, in the industrial
dispute between the employers in relation to the
management of O.N.G.C. Limited and their workman, which
was received by the Central Government on
06/04/2015.
[No. L-30012/57/2012-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI
Present :
Shri L.C. Dey, M.A., LL.B.,
Presiding Officer,
CGIT-Cum-labour Court, Guwahati,
In the matter of an Industrial Dispute
between:—
The Management of ONGC Limited, Kolkata.
- Vs -
Their Workman Shri Shyamal Paul, Tripura
(West).
Ref. Case No. 13 of 2013.
Copy of order dated 23.03.2015
O R D E R
23.03.2015
The Case Record put up today along with the order
No. F.No. L-30012/45/2011-IR(M) dated 13.1.2015 from the
Ministry of Labour and Employment along with a copy of
the judgement and order (oral) passed by the Hon'ble
Gauhati High Court on 18.11.2014 in (1) W.P. (C) No. 5958
of 2013 (2) W.P (C) No. 7372 of 2013 (3) W.P.(C) No. 7381 of
2013 (4) W.P. (C) No. 7385/2013 by which the Hon'ble
Guwahati High Court has been pleased to dispose of the
instant reference case and 45 nos. of other reference cases
together in the matter of an Industrial Dispute between the
Management of ONGC Ltd. Kolkata (O.P/management) and
the workman Sri Shyamal Paul, Tripura (west) (Claimant/
workman).
This dispute arose between the employer in relation
to the management of ONGC Ltd. and their workmen and
the said dispute was referred to by the Ministry for
adjudication vide their No. F. No. L-30012/57/2012-IR(M),
dated 22.01.13. The schedule of this reference is as under:
"Whether the action of the management of ONGC
Ltd., in terminating the services of workman Shri
Shyamal Paul, Ex.Contingent workman engaged in
seismic survey work through their Geophysical Party
w.e.f. 01.07.2001 in presence of settlement dated 27/
28.01.2001, is legal and justified? What relief the
concerned workman is entitiled to?”
The case of the claimant/workman, as it appears from
the claim statement, in brief, is that he had been working as
casual contingent workman under ONGC, Tripura since
1977-78 to work in the seismic survey section under
geophysical Party No. 27/31 along with other workmen.
But the management did not consider their genuine case
for appointment on regular basis despite his long 20 years
of unblemished, dedicated service rendered to the
Management. The Hon'ble Gauhati High Court passed an
order and judgment and decided the said issue in terms of
Memorandum of settlement dt. 27/28.01.2001 executed by
& between the Management & their workmen signed before
1772
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
the R.L.C. (C), Guwahati, Despite the above order of the
Hon'ble High Court the management did not regularize the
workmen rather the present workman has been terminated
from service in July, 2001 without assigning any reason
thereof, and the management in order to avoid the statutory
obligation as provided u/s 25(F) of the I.D.Act 1947 allowed
the workmen to work 236/237 days in each calendar year
with few intentional breaks, and thereby the management
deliberately exercised unfair labour practice. In fact, the
workman worked for more that 240 days on an average in
every year. Thus the management have not complied with
the terms of the said settlement. Hence, the workman prayed
to adjudicate the present reference by pronouncing an
award in favour of the claimant/workman.
On receipt of the order of reference from the Ministry
this reference case was registered and notices were issued
upon both the parties who appeared before this Tribunal.
the workman submitted his claim statement along with the
suporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 05.11.2013 stating that they have moved before
the Hon'ble Gauhati High Court assailing, inter- alia the
order or reference and the subseqent notice issued there
upon and the Hon'ble High Court passed an interim order
dated 07.10.2013 staying the further proceeding of the
reference. The management also submitted a copy of the
order dated 07.10.2013 passed by the Hon'ble Guwahati
High Court in W.P.(C) No. 5958/13. Accordingly the
proceeding of this reference was stayed with effect from
05.11.2013 until further order.
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with the copy
of the judgement and order (oral) passed by the Hon'ble
High Court in Writ Petition No. W.P. (C) No. 7372/13 dated
18.11.14, it appears that the Hon'ble Guwahati High Court
has been pleased to allow the Writ Peitions preferred by
the management of ONGC challenging the claims of the
workmen as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.D. Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner (c) on 27th/28th
January, 2001 and the same having been acted upon by all
the concerned parties, there could not have been any
occassion for the workmen involved in the writ petitions to
raise a further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
form the said reference and pending before the Tribunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workmen.
L.C. DEY, Presiding Officer
ubZ fnYyh] 16 viSzy] 2015
dk-vk- 812-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksñ,uñthñlhñ fyfeVsM
ds izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k
,oa Je U;k;ky;] xqokgkVh ds iapkV ¼lanHkZ la[;k 14@2013½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 6@4@2015 dks izkIr gqvk
FkkA
[lañ ,y&30012@56@2012&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 812.—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. 14/2013) of the
Central Government Industrial Tribunal/Labour Court,
Guwahati now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of O.N.G.C. Lomited and their workman, which
was received by the Central Government on 6/4/2015.
[No.L-30012/56/2012-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI
Present:
Shri L.C. Dey, M.A. LL.B.,
Presiding Officer,
CGIT-Cum-Labour Court, Guwahati.
In the matter of an Industrial Dispute
between:—
The management of ONGC Limited, Kolkata
-Vs-
Their Workman Shri Dibankar Choudhury,
Tripura (West).
Ref. Case no. 14 of 2013.
Copy of order dated 23.03.2015
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1773
O R D E R
23.03.2015
The Case Record put up today along with the the
order No. F. No. L-30012/45/2011-IR(M) dated 13.1.2015
from the Ministry of Labour and Employment along with a
copy of the judgment and order (oral) passed by the Hon'ble
Guwahati High Court on 18.11.2014 in (1) W.P. (C) No. 5958
of 2013 (2) W.P. (C) No. 7372 of 2013 (3) W.P. (C) No. 7381 of
2013 (4) W.P.(C) No. 7385/2013 by which the Hon'ble Gauhati
High Court has been pleased to dispose of the instant
reference case and 45 Nos. of other reference cases together
in the matter of an industrial dispute between the
Management of ONGC Ltd. Kolkata (O.P/management) and
the workman Sri Dibankar Choudhury, Tripura (west)
(Claimant/workman).
The dispute arose between the employer in relation
to the management of ONGC Ltd. and their workman and
the said dispute was referred to by the Ministry for
adjudication vide their No. F No. L-30012/56/2012-IR(M),
dated 22.03.2013. The schedule of the reference is as under:
"Whether the action of the management of
ONGC Ltd., in terminating the services of
workman Shri Dibankar Choudhury,
Ex.Contingent workman engaged in seismic
survey work through their Geophysical Party
w.e.f. 01.07.2001 in presence of settlement dated
27/28/01.2001, is legal and justified? What relief
the concerned workman is entitled to?
The case of the claimant/workman, as it appears from
the claim statement, in brief, is that he had been working as
casual contingent workman under ONGC, Tripura since
1977-78 to work in the seismic surve section under
geophysical Party No. 27/31 along with other workman,
But the management did not consider their genuine case
for appointment on regular basis despite his long 20 years
of unblemished, dedicated service rendered to the
Management. The Hon'ble Gauhati High Court passed an
order and judgment and decided the said issue in terms of
Memorandum of settlement dt. 27/28.01.2001 executed by
and between the Management and their workmen signed
before the R.L.C.(C) Guwahati. Despite the above order of
the Hon'ble High Court the management did not regularize
the workmen rather the present workman has been
terminated from service on 2001 without assigning any
reason thereof, and the management in order to avoid the
statutory obligation as provided u/s 25(F) of the I.D. Act
1947 allowed the workmen to work 236/237 days in each
calendar year with few intentional breaks, and thereby the
management deliberately exercised unfair labour practice.
In fact, the workman worked for more than 240 days on an
average in every year. Thus the management have not
complied with the terms of the said settlement. Hence, the
workman prayed to adjudicate the present reference by
pronouncing an award in favour of the claimant/workman.
On receipt of the order of reference from the Ministry
this reference case was registered and notices were issued
upon both the parties who appeared before this
Tribunal.The workman submitted his claim statement along
with the supporting documents. During pendency of this
proceeding the management after obtaining time on few
dates submitted petition on 05.11.2013 stating that they
have moved before the Hon'ble Gauhati High Court
assailing, inter-alia, the order or reference and the
subsequent notice issued there upon and the Hon'ble High
Court passed an interim order dated 07.10.2013 staying the
further proceeding of the reference. The management also
submitted a copy of the order dated 07.10.2013 passed by
the Hon'ble Gauhati High Court in W.P.(C) No. 5958/13.
Accordingly the proceeding of this reference was stayed
with effect from 05.11.2013 until further order.
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with copy of
the judgment and order (oral) passed by the Hon'ble High
Court in Writ Petition No. W.P (C) No. 7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been pleased to allow the Writ Petitions preferred by
the management of ONGC challenging the claims of the
workman as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.D. Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner (C) on 27th/28th
January, 2001 and the June having been acted upon by all
the concerned parties, there could not have been any
occasion for the workmen involved in the writ petitions to
raise a further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
from the said reference and pending before the Trubunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workman.
L. C. DEY, Presiding Officer
1774
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 813-—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksñ,uñthñlhñ fyfeVsM
ds izcaèr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky;] xqokgkVh ds iapkV ¼lanHkZ la[;k 29@2013½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 06@04@2015 dks izkIr gqvk FkkA
[lañ ,yñ&30012@52@2011&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 813.—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. 29/2013) of the
Central Government Industrial Tribunal-cum-Labour Court,
Guwahati now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of the O.N.G.C. Limited and their workman,
which was received by the Central Government on
06/04/2015.
[No. L-30012/52/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI
Present: Shri L.C. Dey, M.A., LL.B.,
Presiding Officer,
CGIT-Cum-labour Court, Guwahati,
In the matter of an Industrial Dispute between:—
The Management of ONGC Limited, Kolkata.
-vs-
Their Workman Shri Anil Chandra kar, Tripura (West).
Ref. Case No. 29 of 2013
Copy of order dated 24.03.2015
ORDER
The Case Record put up today along with the order No.
F. No. L-30012/45/2011-IR(M) dated 13.1.2015 from the
Ministry of Labour and Employment along with a copy of
the judgment and order (oral) passed by the Hon'ble Gauhati
High Court on 18.11.2014 in (1) W.P. (C) No. 5958 of 2013
W.P. (C). No. 7372 of 2013 (3) W.P. (C) No. 7381 of 2013 (4)
W.P. (C) No. 7385/2013 by which the Hon'ble Gauhati High
Court has been pleased to dispose of the instant reference
case and 45 nos. of other reference cases together in the
matter of an Indutrial Dispute between the Management of
ONGC Ltd. Kolkata (O.P/management) and the workman Sri
Anil Chandra Kar, Tripura (west) (Claimant/workman).
This dispute arose between the employer in relation to
the management of ONGC Ltd. and their workman and the
said dispute was referred to by the Ministry for adjudication
vide their No. L-30012/56/2012-IR(M) dated 22.01.2013. The
schedule of this reference is as under.
"Whether the action of the management of ONGC Ltd.,
in terminating the services of workman Shri Anil Chandra
Kar, S/o Late Sh. Narendra Ch. Kar, Ex. Contingent workman
engaged in seismic survey work through their Geophysical
Party w.e.f. 01.07.2001 in presence of settlement dated
27/28.01.2001, is legal and justified? What relief the
concerned workman is entitled to?
The case of the claimant/workman, as it appears from the
claim statment, in brief, is that he had been working as casual
contingent workman under ONGC, Tripura since 1981-82 to
work in the seismic survey section undger geophysical Party
No. 21 along with other workman. But the management did
not consider their genuine case for appointment onregular
basis despite his long 20 years of unblemished, dedicated
service rendered to the Management. The Hon'ble Gauhati
High court passed an order and judgment and decided the
said issue in terms of Memorandum of settlement dt.
27/28.01.2001 executed by and between the Management
and their workmen signed before the R.L.C. (C), Guwahati.
Despite the above order of the Hon'ble High Court the
management did not regularize the workman rather the
present workman has been terminated from service in July,
2001 without assigning any reason thereof, and the
management in order to avoid the statutory obligation as
provided u/s 25(F) of the I.D. Act 1947 allowed to wrok the
workmen allowed to work 236/235 days in each calendar
year with few international breaks, and thereby the
management deliberately exercised unfair labour practice. In
fact, the workman worked for more than 240 days on an
average in every year. Thus the management have not
complied with the terms of the said settlement. Hence, the
workman prayed to adjudicate the present reference by
pronouncing an award in favour of the claimant/workman.
On receipt of the order of reference from the Ministry
this reference case was registered and notices were issued
upon both the parties who appeared before this Tribunal.
The workman submitted his claim statement along with the
supporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 05.04.2013 stating that they have moved before
the Hon'ble Gauhati High Court assailing, inter-alia, the
order or reference and the subsequent notice issued there
upon and the Hon'ble High Court passed an interim order
dated 07.10.2013 staying the further proceeding of the
reference. The management also submitted a copy of the
order dated 07-10-2013 passed by the Hon'ble Gauhati High
Court in W.P.(C) No. 5958/13. Accordingly the proceeding
of this reference was stayed with effect from 05.11.2013
until further order.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1775
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with the copy
of the judgment and order (oral) passed by the Hon'ble
High Court in Writ Petition No. W.P.(C) No. 7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been pleased to allow the Writ Petitions preferred by
the management of ONGC challenging the claims of the
workmen as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.D. Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner (C) on 27th/28th
January, 2001 and the same having been acted upon by all
the concerned parties, there could not have been any
occasion for the workman involved in the writ petitions to
raise a further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised, and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
from the said reference and pending before the Tribunal-
cum-Labour shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workman.
L.C. DEY, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 814-—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksñ,uñthñlhñ fyfeVsM
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
,oa Je U;k;ky;] xqokgkVh ds iapkV ¼lanHkZ la[;k 34@2013½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 6@4@2015 dks izkIr gqvk
FkkA
[lañ ,y&30012@57@2011&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 814.—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. 34/2013) of the
Central Government Industrtial Tribunal/Labour Court,
Guwahati now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of O.N.G.C. Limited and their workman, which
was received by the Central Government on 6/4/2015.
[No. L-30012/57/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, GUWAHATI
Present:
Shri L.C. Dey, M.A., L.L.B.,
Presiding Officer,
CGIT-Cum-Labour Court, Guwahati
In the matter of an Industrial Dispute
between:—
The Management of ONGC Limited, Kolkata
Vs
Their Workman Sri Satyagopal Deb Nath
Tripura (West)
Ref. Case No. 34 of 2013
Capy of order dated 23.03.2015
ORDER
The Case Record put up today along with the order No.
F.No. L-30012/45/2011-IR(M) dated 13.1.2015 from the
Ministry of Labour and Employment along with a copy of
the judgment and order (oral) passed by the Hon'ble
Gauhati High Court on 18.11.2014 in (1) W.P.(C) No. 5958 of
2013 (2) W.P.(C) No. 7372 of 2013 (3) W.P.(C) No. 7381 of
2013 (4) W.P.(C) No. 7385/2013 by which the Hon'ble Gauhati
High Court has been pleased to dispose of the instant
reference case and 45 Nos. of other reference cases together
in the matter of an Industrial Dispute between the
Management of ONGC Ltd. Kolkata (O.P/Management) and
the workman Sri Shyemal Paul, Tripura (west) (Claimant/
workman).
This dispute arose between the employer in relation to
the management of ONGC Ltd. and their workmen and the
said dispute was referred to by the Ministry for adjudication
vide their No F.No. L-30012/57/2011-IR(M), dated 26.06.13.
The schedule of this reference is as under:
"Whether the action of the managemnet of ONGC Ltd.,
in terminating the services of workman Shri Satyagopal
Deb Nath S/o Late Sh. Hari Narayam Dev Nath ,Contingent
workman engaged in seismic survey work through their
Geophysical Party w.e.f. 01.07.2001 in presence of settlement
dated 27/28.01.2001, is legal and justified? What relief the
concerned workman is entitled to?"
The case of the claimant/workman, as it appears from the
claim statement, in brief, is that he had been working as casual
contingent workman under ONGC, Tripura since 1977-78 to
work in the seismic survey section under geophysical Party
No. 231 along with other workmen. But the management did
not consider their genuine case for appointment on regular
basis despite his long 20 years of unblemished, dedicated
service rendered to the Management. The Hon'ble Gauhati
High Court passed an order and judgment and decided the
said issue in terms of Memorandum of settlement
1776
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
dt. 27/28.01.2001 executed by & between the Management &
their workmen signed before the R.L.C(C), Guwahati. Despite
the above order of the Hon'ble High Court the management
did not regularize the workmen rather the present workman
has been terminated from service in July, 2001 without
assigning any reason thereof, and the management in order
to avoid the statutory obligation as provided u/s 25(F) of the
I.D. Act 1947 allowed the workmen to work less than 240 days
in each calendar year with few intentional breaks, and thereby
the management deliberately exercised unfair labour practice.
In fact, the workman worked for more than 240 days on an
average in every year. Thus the management have not
complied with the terms of the said settlement. Hence, the
workman prayed to adjudicate the present reference by
pronouncing an award in favour of the claimant/workman.
On receipt of the order of reference from the Ministry this
reference case was registered and notices were issued upon
both the parties who appeared before this Tribunal. The
workman submitted his claim statement along with the
supporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 05.11.2013 stating that they have moved before
the Hon'ble Gauhati High Court assailing, inter-alia, the order
or reference and the subsequent notice issued there upon
and the Hon'ble High Court passed an interim order dated
07.10.2013 staying the further proceeding of the reference.
The management also submitted a copy of the order dated
07.10.2013 passed by the Hon'ble Gauhati High Court in
W.P.(C) No. 5958/13. Accordingly the proceeding of this
reference was stayed with effect from 05.11.2013 until further
order.
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with the copy
of the judgment and order (oral) passed by the Hon'ble
High Court in Writ Petition No. W.P.(C) No.7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been pleased to allow the Writ Petitons preferred by
the Management of ONGC challenging the claims of the
workmen as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.D.Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner (C) on 27th 28th
January, 2001 and the same having acted upon by all the
concerned parties, there could not have been any occasion
for the workmen involved in the writ petitions to raise a
further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
from the said reference and pending before the Tribunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workman.
L. C. DEY, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 815-—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vks-,u-th-lh- fyfeVsM
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
,oa Je U;k;ky; xqokgkVh ds iapkV ¼lanHkZ la[;k 28@2013½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-04-2015 dks izkIr gqvk
FkkA
[lañ ,y&30012@51@2011&vkbZvkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 815.—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. 28/2013) of the
Central Government Industrial-cum-Labour Court,
Guhawati now as shown in the Annexure, in the industrial
dispute between the management of ON.G.C. Limited and
their workmen, received by the Central Government on
06.04.2015.
[No. L-30012/51/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI
Present:
Shri L.C. Dey, M.A., LL.B.
Presiding Officer,
CGIT-Cum-Labour Court, Guwahati
In the matter of an Industrial Dispute between:
The Management of ONGC Limited, Kolkata.
vs
Their workman Shri Shankar Narayan Ghose,,
Tripura (West)
Ref. Case No. 28 of 2013
Copy of order dated 24.3.2015
ORDER
The Case Record put up today along with the order No.
F.No. L-300012/45/2011-IR(M) dated 13.1.2015 from the
Ministry of Labour and Employment along with a copy of
the judgement and order (oral) passed by the Hon'ble
Gauhati High Court on 18.11.2014 in (1) W/P.(C) No. 5958
of 2013 (2) W.P.(C) No. 7372 of 2012 (3) W.P.(C) No. 7381 of
2013 (4) W.P.(C) No. 7385/2013 by which the Hon'ble Gauhati
High Court has been pleased to dispose of the instant
reference case and 4 Nos. of other reference cases together
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1777
in the matter of an Industrial Dispute between the
Management of ONGC Ltd. Kolkata (O.P./management) and
the workman Sri Anil Chandra Kar, Tripura (West) (Claimant/
Workman).
This dispute arose between the employer in relation to
the management of ONGC Ltd. and their workmen and the
said dispute was referred to by the Ministry for adjudication
vide their No. F.No. L-30012/52/2011-IR(M) dated 26.06.13.
The schedule of this reference is an under:
"Whether the action of the management of ONGC Ltd.,
in terminating the services of workman Shri Shankar
Narayan Ghosh, S/o Shri Anil Kumar Ghos, Ex. Contingent
workman engaged in seismic survey work through their
Geophysical Party w.e.f. 01.07.2001 in presence of settlement
dated 27/28.01.2001, is legal and justified? What relief the
concerned workman is entitled to?"
The case of the claimant/workman, as it appears from the
claim statement, in brief, is that he had been working as
casual contingent workman under ONGC, Tripura since
1982-83 to work in the seismic survey section under
geophysical Party No. 27 along with other workmen. But the
management did not consider their genuine case for
appointment on regular basis despite his long 20 years of
unblemished, dedicated service rendered to the Management.
The Hon'ble Gauhati High Court passed an order and
judgment and decided the said issue in terms of Memorandum
of settlement dt. 27/28.01.2001 executed by and between the
Management and their workmen signed before the R.L.C.(C),
Guwahati. Despite the above order of the Hon'ble High Court
the management did not regularize the workmen rather the
present workman has been terminated from service in July,
2001 without assigning any reason thereof, and the
management in order to avoid the statutory obligation as
provided u/s 25(F) of the I.D. Act 1947 Paid Cash to the
workmen for the period of working 236/237 days in each
calendar year with few intentional breaks, and thereby the
management deliberately exercised unfair labour practice. In
fact ,the workman worked for more than 240 days on an
average in every year. Thus the management have not
complied with the term of the said settlement. Hence, the
workman prayed to adjudicate the present reference by
pronouncing an award in favour of the claimant/workman.
On receipt of the order of reference from the Ministry this
reference case was registered and notices were issued upon
both the parties who appeared before this Tribunal. The
workman submitted his claim statement along with the
supporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 20.01.2014 stating that they have moved before
the Hon'ble Gauhati High court assailing, inter-alia, the order
or reference and the subsequent notice issued there upon
and the Hon'ble High Court passed an interim order dated
18.12.2013 staying the further proceeding of the reference.
The management also submitted a copy of the order dated
18.12.2013 passed by the Hon'ble Gauhati High Court in
W.P.(C) No. 7372/13. Accordingly the proceeding of this
reference was stayed with effect from 20.01.2014 until further
order.
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with the copy
of the judgment and order (oral) passed by the Hon'ble
High Court in Writ Petition No.W.P (C) No.7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been pleased to allow the Writ Petitions preferred by
the management of ONGC challenging the claims of the
workmen as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.D.Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner (C) on 27th/28th
January, 2001 and the same having been acted upon by all
the concerned parties, there could not have been any
occasion for the workmen involved in the writ petitions to
raise a further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
from the said reference and pending before the Tribunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workman.
L. C. DEY, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 816-—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksñ,uñthñ lhñ
fyfeVsM ds izcaèra= ds lac) fu;kstdksa muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkSèksfxd
vfèdj.k ,oa Je U;k;ky;] xqokgkVh ds iapkV ¼lnHkZ la[;k
35@2013½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 6@4@2015
dks izkIr gqvk FkkA
[lañ ,y&30012@58@2011&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 816.—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. 35/2013) of the
Central Government Industrial Tribunal/Labour Court,
Guwahati now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
1778
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
management of O.N.G.C.Limited and their workman, which
was received by the Central Government on 6/4/2015.
[No. L-30012/58/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI
Present:
Shri L.C. DEY, M.A., LL.B.,
Presiding Officer,
CGIT-cum-labour Court, Guwahati.
In the matter of an Industrial Dispute between:-
The Management of ONGC Limited, Kolkata.
VS
Their Workman Sri Dasarath Deb Barma, Tripura
(West).
Ref. Case No. 35 of 2013. Copy of order dated
24.03.2015.
ORDER
24.03.2015
The Case Record put up today along with the order No.
F.No.L-30012/45/2011-IR(M) dated 13.1.2015 from the
Ministry of Labour and Employment along with a copy of
the judgment and order (oral) passed by the Hon'ble
Gauhati High Court on 18.11.2014 in (1) W.P.(C) No. 5958 of
2013 (2) W.P.(C) No.7372 of 2013 (3) WP(C) No.7381 of 2013
(4) W.P.(C) No. 7385/2013 by which the Hon'ble Gauhati
High Court has been pleased to dispose of the instant
reference case and 45 nos. of other reference cases together
in the matter of an Industrial Dispute between the
Management of ONGC Ltd. Kolkata (O.P/management) and
the workman Sri Dasarath Deb Barma, Tripura (west)
(Claimant/workman).
This dispute arose between the employer in relation to
the management of ONGC Ltd. and their workmen and the
said dispute was referred to by the Ministry for adjudication
vide their No.F No. L.-30012/58/2011-IR(M), dated 26.06.13.
The schedule of this reference is as under:
"Whether the action of the management of ONGC Ltd.,
in terminating the services of workman Shri Dasrath Deb
Barma, S/o Late Sh. Malindra Deb Barma, Ex.Contingent
workman engaged in seismic survey work through their
Geophysical Party w.e.f. 01.07.2001 in presence of settlement
dated 27/28.01.2001, is legal and justified? What relief the
concerned workman is entitled to?"
The case of claimant/workman, as it appears from the
claim statement, in brief, is that he had been working as
casual contingent workman under ONGC, Tripura since
1-12-1982 to work in the seismic survey section under
geophysical Party No. 27 along with other workmen. But
the management did not consider their genuine case for
appointment on regular basis despite his long 20 years of
unblemished, dedicated service rendered to the
Management. The Hon'ble Gauhati High Court passed an
order and judgment and decided the said issue in terms of
Memorandum of settlement dt. 27/28/01.2001 executed by
& between the Management & their workmen signed before
the R.L.C.(C), Guwahati, Despite the above order of the
Hon'ble High Court the management did not regularize the
workmen rather the present workman has been terminated
from service in July, 2001 without assigning any reasons
thereof, and the management in order to avoid the statutory
obligation as provided u/s 25(F) of the I.D. Act 1947 allowed
the workmen to work less than 240 days in each calendar
year with few intentional breaks, and thereby the
management deliberately exercised unfair labour practice.
In fact, the workman worked for more than 240 days on an
average in every year. Thus the management have not
complied with the terms of the said settlement. Hence, the
workman prayed to adjudicate the present reference by
pronouncing an award in favour of the claimant/Workman.
On receipt of the order of reference from the Ministry
this reference case was registered and notices were issued
upon both the parties who appeared before this Tribunal.
The workman submitted his claim statement along with the
supporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 21.01.2014 stating that they have moved before
the Hon'ble Gauhati High Court assailling, inter-alia, the
order of reference and the subsequent notice issued there
upon and the Hon'ble High Court passed an interim order
dated 18.12.2013 staying the further proceeding of the
reference. The management also submitted a copy of the
order dated 18.12.2013 passed by the Hon'ble Gauhati High
Court in W.P.(C) No. 7372/13. Accordingly the proceeding
of this reference was stayed with effect from 21.01.2014
until further order.
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with the copy
of the judgment and order (oral) passed by the Hon'ble
High Court in Writ Petition No. W.P.(C) No. 7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been pleased to allow the Writ Petitions preferred by
the management of ONGC challenging the claims of the
workmen as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.D. Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner (C) on 27th/28th
January, 2001 and the same having been acted upon by all
the concerned parties, there could not have been any
occasion for the workmen involved in the writ petitions to
raise a further dispute already stood settled as per the said
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1779
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenges with
observation that consequenty, the proceeding culminating
from the said reference and pending before the Tribunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of grainting no relief to the workman.
L.C. DEY, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 817-—vkS|ksfxd fookn vfèfu;e 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksñ,uñthñlhñ fyfeVsM
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
,oa Je U;k;ky;] xqokgkVh ds iapkV ¼lanHkZ lañ 27@2013½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 06-04-2015 dks izkIr gqvk FkkA
[lañ ,y&30012@50@2011&vkbZvkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 817.—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. 27/2013) of the
Central Government Industrial Tribunal/Labour Court,
Guwahati now as shown in the Annexure, in the Industrial
Dispute between the employers in relation to the
management of O.N.G.C. Limited and their workmen, which
was received by the Central Government on 6.4.2015.
[No. L-30012/50/2011-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI
Present:
Shri L.C. Dey, M.A., LL.B.,
Presiding Officer,
CGIT-cum-Labour Court, Guwahati.
In the matter of an Industrial Dispute between:—
The Management of ONGC Limited, Kolkata
- Vs. -
Their Workman Sri Jitendra Sarkar, Tripura (West)
Ref. Case No. 27 of 2013
Copy of order dated 24.03.2015
ORDER
24.03.2015
The Case Record put up today along with the order No.
F.No.L-30012/45/2011-IR(M) dated 13.1.2015 from the
Ministry of Labour and Employment along with a copy of
the judgment and order (oral) passed by the Hon'ble
Gauhati High Court on 18.11.2014 in (1) W.P. (C) No. 5958
of 2013 (2) W.P.(C) No. 7372 of 2013 (3) W.P.(C) No. 7381 of
2013 (4) W.P.(C) No. 7385/2013 by which the Hon'ble
Guwahati High Court has been pleased to dispose of the
instant reference case and 45 nos. of other reference cases
together in the matter of an Industrial Dispute between the
Management of ONGC Ltd. Kolkata (O.P./management) and
the workman Sri Jitendra Sarkar, Tripura (West) (Claimant/
Workman).
This dispute arose between the employer in relation to
the management of ONGC Ltd. and their workmen and the
said dispute was referred to by the Ministry for adjudication
vide their No. F.No. L-30012/50/2011-IR(M), dated 26.06.13.
The schedule of this reference is as under:
"Whether the action of the management of ONGC
Ltd., in terminating the services of workman,
Shri Jitendra Sarkar S/o Late Sh. Krishnadhan Sarkar,
Ex.Contingent workman engaged in seismic survey
work through their Geophysical Party w.e.f. 01.07.2001
in presence of settlement dated 27/28.01.2001, is legal
and justified? What relief the concerned workman is
entitled to?
The case of the claimant/workman, as it appears from
the claim statement, in brief is that he had been working as
casual contingent workman under ONGC, Tripura since
15.5.1982 to work in the seismic survey section under
geophysical Party No. 27 and along with other workmen.
But the management did not consider their genuine case
for appointment on regular basis despite his long 20 years
of unblemished, dedicated service rendered to the
Management. The Hon'ble Gauhati High Court passed an
order and judgement and decided the said issue in terms of
Memorandum of settlement dt. 27/28.01.2001 executed by
& between the Management & their workmen signed before
the R.L.C.(C), Guwahati. Despite the above order of the
Hon'ble High Court the management did not regularize the
workmen rather the present workman has been terminated
from service in July, 2001 without assigning any reason
thereof, and the management in order to avoid the statutory
obligation as provided u/s 25(F) of the I.D. Act, 1947 allowed
the workmen to work 236 days in each calendar year with
few intentional breaks, and thereby the management
deliberately exercised unfair labour practice. In fact, the
workman worked for more than 240 days on an average in
every year. Thus the management have not compiled with
the terms of the said settlement. Hence, the workman prayed
to adjudicate the present reference by pronouncing an
award in favour of the claimant/workman.
1780
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
On receipt of the order of reference from the Ministry
this reference case was registered and notices were issued
upon both the parties who appeared before this Tribunal.
The workman submitted his claim statement along with the
supporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 16.01.2014 stating that they have moved before
the Hon'ble Gauhati High Court assailing, inter-alia, the
order or reference and the subsequent notice issued there
upon and the Hon'ble High Court passed an interim order
dated 18.12.2013 staying the further proceeding of the
reference. The management also submitted a copy of the
order dated 18.12.2013 passed by the Hon'ble Gauhati High
Court inW.P.(C) No. 7372/13. Accordingly the proceeding
of this reference was stayed with effect from 20.01.2014
until further order.
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with the copy
of the judgement and order (oral) passed by the Hon'ble
High Court in Writ Petition No. W.P. (C) No. 7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been pleased to allow the Writ Petitions preferred by
the management of ONGC challenging the claims of the
workmen as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12/(3) of the I.D. Act, 1947 in conciliation proceeding
before the Regional Labour Commissioner(C) on 27th/28th
January, 2001 and the same having been acted upon by all
the concerned parties, there could not have been any
occasion for the workmen involved in the writ petitions to
raise a further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
from the said reference and pending before the Tribunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workman.
L. C. DEY, Presiding Officer
ubZ fnYyh] 16 vizSy] 2015
dk-vk- 818-—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksñ,uñthñlhñ fyfeVsM
ds izca/kr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;] xqokgkVh ds iapkV( ¼lanHkZ la[;k
24@2013½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 6@4@2015
dks izkIr gqvk FkkA
[lañ ,y&30012@46@2011&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 818.—In the pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), in the Central
Government hereby publishes the award (Ref. I.D. No.
24/2013) of the Central Government Industrial Tribunal/
Labour Court, Guwahati now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of O.N.G.C. Limited and their workman, which
was received by the Central Government on 6/4/2015.
[No. L-30012/46/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI
Present:
Shri L.C. Dey, M.A., LL.B.,
Presiding Office,
CGIT-Cum-labour Court, Guwahati.
In the matter of an Industrial Dispute
between:-
The Management of ONGC Limited,
Kolkata.
-vs-
Their Workman Sri Manik Chandra Das,
Tripura (West).
Ref. Case No. 24 of 2013
Copy of order dated 23.03.2015
ORDER
23.03.2015
The case Record put up today along with the order No.
F.No.L-30012/45/2011-IR(M) dated 13.1.2015 from the
Ministry of Labour and Employment along with a copy of
the judgement and order (oral) passed by the Hon'ble
Gauhati High Court on 18.11.2014 in (1) W.P.(C) No. 5958 of
2013 (2) W.P.(C) No. 7372 of 2013 (3) W.P.(C) No 7381 of
2013 (4) W.P.(C) No. 7385/2013 by which the Hon'ble Gauhati
High Court has been pleased to dispose of the instant
reference case and 45 nos. of other reference case in the
matter of an Industrial Dispute between the Management
of ONGC Ltd. Kolkata (O.P./management) and the workman
Sri Manik Chandra Das, Tripura (west) (Claimant/workman).
This dispute arose between the employer in relation to
the management of ONGC Ltd. and their workmen and the
said dispute was referred to by the Ministry for adjudication
vide their No. F.No. L-30012/46/2011-IR(M), dated 26.06.13.
The schedule of this reference is an under:
"Whether the action of the management of ONGC
Ltd., in the terminating the services of workman Shri
Manik Ch. Das. S/o Sh Monoranjan Das, Ex.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1781
Contingent workman engaged in seismic survey work
through their Geophysical Party w.e.f. 01.07.2001 in
presence of settlement dated 27/28.01.2001, is legal
and justified? What relief the concerned workman is
entitled to?
The case of the claimant/workman, as it appears from
the claim statement, in brief, is that he had been working as
casual contingent workman under ONGC, Tripura since
1982-83 to work in the seismic survey section under
geophysical Party No. 27 along with other workmen. But
the management did not consider their genuine case for
appointment on regular basis despite his long 20 years of
unblemished, dedicated service rendered to the
Management. The Hon'ble Gauhati High Court passed an
order and judgment and decided the said issue in terms of
Memorandum of settlement dt. 27/28.01.2001 executed by
& between the Management & their workmen signed before
the R.L.C. (C), Guwahati. Despite the above order of the
Hon'ble High Court the management did not regularize the
workmen rather the present workman has been retrenched
from service in July, 2001 without assigned any reason
thereof, and the management in order to avoid the statutory
obligation as provided u/s 25(F) of the I.D. Act 1947 allowed
the workmen to work 236 days in each calendar year with
few intentional breaks, and thereby the management
deliberately exercised unfair labour practice. In fact, the
workman worked for more than 240 days on an average in
every year. Thus the management have not complied with
the terms of the said settlement. Hence, the workman prayed
to adjudicate the present reference by pronouncing an
award in favour of the claimant/workman.
On receipt of the order of reference from the Ministry
this reference case was registered and notices were issued
upon both the parties who appeared before this Tribunal.
The workman submitted his claim statement along with the
supporting documents. During pendency of this proceeding
the management after obtaining time on few dates submitted
a petition on 15.01.2014 stating that they have moved before
the Hon'ble Guwalati High Court assailing, inter-alia, the
order or reference and the subsequent notice issue there
upon and the Hon'ble High Court passed on interim order
dated 18.12.2013 staying the further proceeding of the
reference. The management also submitted a copy of the
order dated 18.12.2013 passed by the Hon'ble Gauhati High
Court in W.P. (C) No. 7372/13. Accordingly the proceeding
of this reference was stayed with effect from 15.01.2014
until further order.
On perusal of the letter dated 13.1.15 issued by the
Ministry of Labour and Employment along with the copy
of the judgment and order (oral) passed by the Hon'ble
High Court in Writ Petition No. W.P. (C) No. 7372/13 dated
18.11.14, it appears that the Hon'ble Gauhati High Court
has been allow the Writ Petitions preferred by the
management of ONGC challenging the claims of the
workmen as well as the order of reference and the
subsequent notices issued thereupon by this Tribunal, on
the ground that since the memorandum of settlement arrived
at u/s 12(3) of the I.d. Act, 1947 in conciliation proceeding
before the Regional Labour Commission (C) on 27th/28th
January, 2001 and the same having been acted upon by all
the concerned parties, there could not have been any
occasion for the workmen involved in the writ petitions to
raise a further dispute already stood settled as per the said
settlement, and consequently no reference could have been
made for adjudication for the issue raised; and set aside
and quashed the reference under challenge with
observation that consequently, the proceeding culminating
from the said reference and pending before the Tribunal-
cum-Labour Court shall also stand set aside and quashed.
In view of the above circumstances this reference is
disposed of granting no relief to the workman.
L.C. DEY, Presiding Officer
ubZ fnYyh] 16 viSy] 2015
dk-vk- 819-—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vksfj,.Vy bU'kqjUl
daiuh fyfeVsM ds izca/kr= ds laca) fu;kstdks vkSj muds deZdkjks
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,o Je U;k;ky;] psUubZ ds iapkV ¼lanHkZ la[;k 41@2014½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 06@04@2015 dks izkIr
gqvk FkkA
[la- ,y&17011@07@2013&vkbZvkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 16th April, 2015
S.O. 819.—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. 41/2014) of the
Central Government Industrial Tribunal/Labour Court,
Chennai now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of the Oriental Insuraance Company Limited
and their workmen, which was received by the Central
Government on 06/04/2015.
[No. L-17011/07/2013-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Friday, the 20th March, 2015
Present:
K. P. PRASANNA KUMARI,
Presiding Officer
1782
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
Industrial dispute No. 41/2014
(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 Indusutrial Disputes Act, 1947 (14 of 1947),
between the Management of the Oriental Insurance Co.
Ltd. and their workman)
BETWEEN
The General Secretary
:
1st Part/Petitioner Union
All India General
Insurance Employees
Congress, 4 Esplanade,
4th Floor
Chennai-600108
AND
The Deputy General
:
2nd Party Respondent
Manager
The Oriental Insurance Company Ltd.
UIL Building IV Floor, 4 Esplande
Chennai-600108
Appearance
For the 1st Party/Petitoiner
: In Person
For the 2nd Party/Respondent: Sri T.S. Ramasubramaniam,
Sri, T.K. Lavanya
Murthy, Sri Nidhin
Sreenivasan, Authorized
Representatives
A W A R D
The Central Government, Ministry of Labour and
Employment vide its Order No. L-17011/07/2013-IR (M)
dated 31.03.2014 dated referred the following Industrial
Dispute to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the refusal of the Management of Oriental
Insurance Co. Ltd. To pay additional remuneration to Sri R.
Sevugamoorthy, Caretaker in the form of annual increment
and resultant arrears w.e.f. 01.01.2006 is legal and justified?
If not, to what relief the workman is entitled to?
2. On receipt of Industrial Dispute this Tribunal has
numbered it as ID 41/2014 and issued notices to both sides.
The petitioner has appeared in person and the Respondent
through Authorized Representatives and filed Claim and
Counter Statement respectively. The petitioner has filed
rejoinder and the Respondent replied to the rejoinder also.
3. The averments in the Claim Statement filed by the
petitioner in brief are these:
The petitioner, a Registered Trade Union has raised the
dispute on behalf of Sevugamoorthy, its member.
Sevugamoorthy was appointed by the Respondent as
Caretaker on 08.03.1985. His Basic Pay was fixed at the
scale of Sub-Staff and he was paid DA, HRA and CCA. He
was granted annual increments every year as applicable to
those in Sub-Staff cadre. Sevugamoorthy has completed
29 years of service. Though increments were granted for
the years 2003, 2004 and 2005, subsequent increments were
deliberately denied by the Respondent. Refusal to grant
increment from 01.01.2006 and converting the Basic Pay
and other allowances to consolidated salary is a change of
service condition in violation of Section-9A of the Industrial
Disputes Act, in the absence of any notice. The
Respondent is bound to revise and re-fix the Basic Pay of
Sevugamoorthy and pay arrears also. An order may be
passed holding that Sevugamoorthy is entitled to annual
increments from 01.01.2006 and also directing the
Respondent to pay arrears of salary as per the notification
of the Government.
4.
The Respondent has filed Counter Statement
contending as follows:
Sevugamoorthy is not a workman within the meaning of
Section-2(a) of the Industrial Disputes Act. There is no
provision for the Respondent to recruit Caretaker.
The Respondent is bound to comply with the
instructions of GIPSA regarding the terms of contract,
charges etc. for the Guest House. Sevugamoorthy is only
an independent Contractor and not an employee of the
Respondent. So he is not coming under the purview of
General Insurance (Conduct, Discipline and Appeal), Rules
1975. Hon'ble Madras High Court has found in Writ Petition
No. 3638/2001 that Sevugamoorthy is not a workman of the
Respondent. One Renade was earlier the Caretaker of the
Guest House of the Respondent at Chennai on contract
basis. Sevugamoorthy used to assist Ranade. When
Ranade left the place, Sevugamoorthy applied for the post
and he had entered into an agreement of contract with the
Respondent on 24.08.1987 for discharging the functions of
the Caretaker on contractual basis. Payment as per the
contract used to be revised from time to time on the basis
of policy decision taken by GIPSA. As a Contractor,
Sevugamoorthy is not eligible for any pay revision or
increment as claimed by him. The decision of the High
Court of Madras in Writ Petition No. 3638 of 2001 has
become final. The petitioner is not entitled to any relief.
5.
The petitioner has filed rejoinder and the
Respondent has filed reply to the rejoinder reiterating their
respective contentions.
6.
The evidence in the case consists of oral evidence
of WW1 and MW1 and documents marked as Ext. W1 to
Ext. W11 and Ext. M1 to Ext. M11.
7.
The points for consideration are:
(i) Whether Sevugamoorthy is entitled to any
amount as annual increment and resultant arrears?
(ii) What is the relief to which he is entitled?
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1783
The Points
8.
The dispute is raised by the petitioner union on
behalf of Sevugamoorthy who is acting as the Caretaker of
the Respondent at its Guest House in Chennai. According
to the petitioner, Sevugamoorthy was employed with the
Respondent and his pay was fixed at the scale of that of
sub-staff working under the Respondent establishment. It
is alleged by the petitioner that Sevugamoorthy was not
given annual increment from 01.01.2006 though increment
used to be given prior to that. The claim of the petitioner is
to allow annual increments to Sevaugamoorthy and direct
the Respondent to pay the arrears of increment.
9.
The Respondent meets the case of the petitioner
with a contention that Sevugamoorthy is not a workman at
all, he having been never employed by the Respondent
directly. According to the Respondent, Sevugamoorthy
was engaged on contract basis to work as Caretaker at the
Guest House.
10.
Ex. W1 is the order of the Respondent by which
Sevugamoorthy is engaged as Caretaker. One of the terms
of engagement is that the service as Caretaker is purely on
contractual basis. A monthly amount is fixed as
remuneration to Sevugamoorthy. A reading of the terms of
Ext. W1 itself would reveal that the engagement was on
contractual basis.
11.
More probe in the matter is not required in view
of the order of the Hon'ble High Court of Madras in a Writ
Petition filed challenging the award of this Court and has
become final. Ex. M2 is the order of the High Court of
Madras in WP 3638/2001. This Writ Petition was filed by
the Respondent Company challenging the award in ID 32/
1995 of this Court. Though the petitioner has taken pains
to produce the copy of the award in another ID before this
Tribunal in which a similar claim was allowed, the award in
ID 32/1995 which pertains to Sevugamoorthy itself is not
seen produced by the petitioner. As could be made out
from Ex. M2 order Sevugamoorthy has claimed
regularization in service on the basis that he is only a
Caretaker and there was no contract of employment
between him and the Management. My predecessor has
found in ID 32/1995 that Sevugamoorthy is directly
employed by the Respondent and that he is entitled to
regularization. The Hon'ble High Court has set aside the
award of this Tribunal on the finding that Sevugamoorthy
was appointed purely on contractual basis, that there was
an agreement between him and the Management and it
was in pursuance of this agreement he was allowed to
perform his duties and he has been receiving remuneration
as fees during the period of contract. This finding of the
Hon'ble High Court given on 03.02.2007 has become final.
So, against this finding the petitioner cannot claim on behalf
of Sevugamoorthy that he was directly employed by the
Respondent, that he comes under the definition of workman
and was being paid salary like other employees of the
respondent. The status of Sevugamoorthy being that of a
contractor, he is not entitled to annual increments as claimed
by him. The remedy for him is to get his remuneration
revised and re-fixed in accordance with the rise in cost of
living and other circumstances. I find that Sevugamoorthy
is not entitled to any relief through this dispute.
In view of my discussion above, the reference is
answered against the petitioner. An award is passed
accordingly.
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner Union : WW1, Sri T.P.
Kannan
For the 2nd Party/Management
: MW1, Sri K.
Varadarajan
Documents Marked:
On the petitioner's side
Ex. No. Date
Description
Ex.W1 08.03.1995
Appointment order issued to
Caretaker by Respondent
Ex.W2 24.10.1997
General Insurance Corporation of
India letter on Increments
Ex.W3 31.10.1997
Respondent HO Circular
Ex.W4 07.06.2010
Respondent Company arrears paid
Statement including increments
Ex.W5 23.02.2010
Petitioner letter to Respondent
Company
Ex.W6 07.07.2011
Petitioner letter to Respondent
Company
Ex.W7 21.12.2005
Government of India Scheme 2005
Ex.W8 08.10.2010
Government of India Scheme 2010
Ex.W9 06.06.2011
Hon'ble High Court of AP Hyderabad
Order on payment of increments.
Ex.W10 24.11.2011
This Industrial Tribunal Award in ID
No. 38/2011
Ex. W1119.11.2009
The deposition of witness by
Govindarajan United India Insurance
Co. Ltd.
1784
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
On the Management's side
Ex. No. Date
Description
Ex.M1
08.03.1985
Letter from the Respondent to R.
Sevugamoorthy for the Service as a
Caretaker on payment of Rs. 425/- per
month towards service.
Ex.M2
03.02.2007
Judgment in WP No. 3638/2001
passed by the Hon'ble High Court,
Madras
confirmed
that
R.
Sevugamoorthy only on contractual
basis
Ex.M3
06.05.2010
Letter from Sevugamoorthy to the
Respondent indicating he is a
Caretaker on contract basis at
Koyambedu
Ex.M4
03.12.1984
Request of Mr. R. Sevugamoorthy for
the post of Caretaker
Ex.M5
11.06.2010
Order in ID No. 74/2007
Ex.M6
18.09.2006
Letter from Mr. Sevugamoorthy
Ex.M7
31.07.1997
Circular No. Pers./A/HO/276(P)/33/
97/CR-4521
Ex.M8
31.10.2000
Judgment in ID No. 32/1995
Ex.M9
01.07.2010
Payment Voucher No. 5001000874
Ex.M10 18.05.2012
Circular No. HO/Estb./2012/CR-6706
Ex.M11 28.03.2014
Circular No. HO/Estb./2014 CR-6893
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New Delhi, the 16th April, 2015
S.O. 820.—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. 36/2013) of the
Central Government Industrial Tribunal/Labour Court 1,
Delhi now as shown in the Annexure in the Indusutrial
Dispute between the employers in relation to the
management of India Oil Corporation Limited and their
workman, which was received by the Central Government
on 6/4/2015.
[No. L-30012/75/2012-IR(M)]
JOHAN TOPNO, Under Secy.
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. 36/2013
Shri Ajmer Singh,
S/o Shri Chotte Lal,
R/o Village and Post Office Karorr,
Distt. Rohtak, HARYANA
...Workman
Versus
1.
The Manager,
Indian Oil Corporation Ltd.
Indane Gas Terminal
Tikri Kalan Plant, Ghevera More,
Delhi - 110 041
2.
M/s. Beehive Security & Surveillance,
House No. 43, Rathi Enclave,
New Roshan Vihar,
Kakraola More, Najafgarh,
Delhi - 110 043
...Management
AWARD
Central Government, vide letter No. L-30012/75/2012-
IR(M) dated 06.02.2013, referred the following industrial
dispute to this Tribunal for adjudication:
"Whether the action of the management of M/s. Beehive
Security & Surveillance in terminating the services of Shri
Ajmer Singh, S/o Shri Chotte Lal from IOC Depot, Tikri
Kalan, Delhi with effect from 30.09.2011, is legal and justified?
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. None appeared
on behalf of the cliamant. As such, this Tribunal ordered
issuance of fresh notice to the workman. Despite sending
notice by registered A.D., neither the workman nor any
authorized representative on his behalf appeared before
the Tribunal so as to puruse his case. Thus, it is clear that
the workman is not interested in adjudication of 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.
A.C. DOGRA, Presiding Officer
Dated March 23, 2015
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New Delhi, the 17th April, 2015
S.O. 821.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 41/2011) of the
Cent.Govt.Indus.Tribunal-cum-Labour Court New Delhi as
shown in the Annexure in the Indusutrial Dispute between
the management of The UTI Asset Management Co. Pvt.
Ltd. and their workmen, received by the Central Government
on 16/4/2015.
[No. L-12025/13/91-IR(B-II)]
RAVI KUMAR, 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. 41/2011
Shri J.C. Katyal,
A-113A, Joshi Colony,
Mandawali,
Delhi 110 092
....Workman
Versus
The UTI Asset Management Co. Pvt. Ltd.
Gulab Bhawan (Rear Block) 2nd Floor,
6, Bahadurshah Zafar Marg,
New Delhi 110 002
...Management
AWARD
Briefly, the instant reference was received by this
Tribunal from the appropriate Government with the
following terms:
"Whether action of the management of Unit Trust of
India in dismissing Shri J.C. Katyal with effect from
17.12.1987 is justified? If not, what relief the workman is
entitled?'
2. It transpires from the record that the claimant filed
statement of claim wherein is averred that he was earlier
employed as clerk in Canara Bank and thereafter, on
27.09.1977 he joined services of the present employer (UTI)
in its Delhi office as Clerk/Cashier and in due course of
time he was made permanent and re-designated as Assistant.
It is clear that after some time, the claimant became
instrument in formation of UTI Employees Association,
New Dehi and All India Unit Trust Employees Association,
registered trade union in 1978. Prior to this, there was no
trade union functioning with the respondent management,
Claimant was holding the post of Secretary of AIUTEA till
the date of his dismissal from service.
3. According to the claimant, Shri A.S. Dalawari always
harboured ill will towards him and made efforts to involve
him in disciplinary cases. The claimant was posted by him
in Floating Section from Accounts Section vide order dated
04.08.1993. In 1983, on taking charge of Regional Office,
Shri Dalawari styled himself as Officer Incharge and issued
various memos to the claimant. Legitimate union activities
of the claimant were always with resentment by the
respondent management. As a matter of fact, a number of
employers had become members of the trade union one
capacity or the other and were harassed in one form or the
other, as a result of which some employees were forced to
leave the services of UTI. Thus, the management has been
harassing the claimant in innumerable ways. Management
was always looking for an opportunity to get rid of workmen.
Since Shri A.S. Dalawari was officer of Grade C rank, as
such he was not competent to take disciplinary action
against the claimant as per directions issued by the
Executive Committee of Board of Directors (a statutory
body in the UTI).
4. Vide office order No. 18/83-84 dated 04.08.1983, Shri
Dalawari in his official capacity of Manager in Delhi office
issued posting orders of the claimant from the accounts
section to floating section. It is clarified at this stage that
the staff posted in the floating section do not have any
assigned place of work or job but are assigned on a day to
day basis the section in which they will perform work, i.e. it
was sort of 'reserves' section.' The day to day assignment
of place of work was done at the relevant time by one Mr.
Narayanan, Deputy Manager: Staff. Thus, the claimant was
also from time to time deputed to work by the said Mr.
Narayanan in the various sections of the Delhi office of the
respondent like records section, repurchase section,
accounts section, sales promotion section, dividends
section etc. and the claimant carried out such assignment
given to him.
5. As a measure of retaliation Mr. A.S. Dalawari from the
end of June 1984 onwards, without the authority of law
and competence, commenced issuing to the claimant series
of communications falsely and malafide alleging that the
claimant on various days between 27.06.1984 to 17.07.1984
1786
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
has not been reporting to his section (without specifying
the name of the section itself) and had after marking his
attendance had been leaving the office premises. The
claimant in response to various communications
consistently denied these unwarranted allegations.
6. From 18.07.1984 onwards the claimant herein ran into
serious personal problems by way of the illness of his
child and sent a leave application dated 18.07.1984 (seeking
leave from 18.07.1984 to 28.07.1984) and another leave
application dated 27.07.1984 extending the leave till
03.08.1984. However both these leave applications were
summarily for malafide reasons rejected by the said Shri
A.S. Dalawari or on his orders by his subordinates, though
none of them were competent to do so. In this regard, Shri
A.S. Dalawari purportedly issued two sets of
communications i.e. one dated 21.07.1984 and the other
dated 31.07.1984 intimating that the leave sought by the
claimant cannot be sanctioned and that the claimant in his
own interest is advised to attend office. The claimant
however could rejoin duty only on 5.08.1984 or so.
7. Thereafter the claimant himself fell ill and as such
sent a leave application by post on 13.08.1984 seeking leave
till 18.08.1984 (Saturday) on the grounds of his own illness.
However, even before this could reach the office, the said
Mr. A.S. Dalawari caused to issue certain communications
to the claimant dated 14.08.1984 dubbing the claimant's
absence from 13.08.1984 as being unauthorized and that
the claimant in his own interest should join duty. Once
again, in response to the above said leave dated 18.08.1984
(Saturday) it was conveyed that the leave applied for was
not being considered since the same was not accompanied
by a medical certificate and that the claimant should submit
a medical certificate from the medical superintendent of a
Government Hospital, New Delhi
8. Even before those communication reached him, the
claimant joined duty on 20.08.1984 (Monday) performed
duties for that day and 21.03.1984. Unfortunately, on the
next day i.e. 22.08.1984 due to heavy rains there arose a
situation for the claimant to carry out urgently repairs to
his house and on this ground sent a leave application
seeking leave from 22.08.1984. Without making any
reference to this leave application, management issued
certain communications to the claimant declaring the
claimant to be unauthorizedly absent and that the claimant
in his own interest should report for duty.
9. The claimant has also filed reply to the various memos
issued by the management at the instance of Shri A.S.
Dalawari as is clear from letters dated 02.07.1984, 07.07.1984,
11.07.1984, 14.07.1984 as well as 04.08.1984 and the same
was not found to be satisfactory by the management.
Accordingly, it was decided by the management to conduct
departmental enquiry against the claimant.
10. Charge sheet dated 27.08.1984 was served upon the
claimant, alleging as under:
"(a) You marked your attendance by initialling in the
Attendance Register on the following dates and thereafter
did not report to the Records Section to which you were
posted. You left the office premises unauthorizedly after
initialling the muster and did not attend to any work at any
time during the course of the day on the dates mentioned
below:
27.06.1984,
28.06.1984,
29.06.1984,
30.6.1984,
02.07.1984,
03.07.1984,
04.07.1984,
05.07.1984,
06.07.1984,
09.07.1984,
10.07.1984,
11.07.1984
12.07.1984,
16.07.1984,
17.07.1984
(b) Your application for ordinary leave from 18th July,
1984 to 28th July, 1984 and extension upto 3rd August,
1984 we not accepted and you were advised to report for
duty forthwith vide telegrams and also letter No. UT.ND
919/M.67/84-85 dated 21st July, 1984 and No. U.T.ND. 1466/
M.67/84-85 dated 31st July, 1984 respectively. In spite of
the above advices, you did not report for duty till
4th August, 1984, having thus remained unauthorizedly
from 13th to 18th August, 1984 and 22nd August, 1984 till
date.
The circumstances set out hereinabove, if proved, would
amount to following acts of misconduct attracting
appropriate penalty including your dismissal from service
of the Trust:
(1) Unauthorizedly remaining absent from the place of
work in breach of Rule 26 of Unit Trust of India (Staff)
Rules, 1978.
(2) Disobeying the lawful and reasonable orders of the
management to report for duty and discharge your duty in
breach of Rule 27 of the Unit Trust of India (Staff) Rules
1978.
(3) Committing act/acts subversive of discipline, in
breach of Rule 27 of Unit Trust of India (Staff) Rules, 1978.
(4) Committing an at prejudicial to the interest of the
Trust in breach of Rule 29 of the Unit Trust of India (Staff)
Rules, 1978.
(5) Committing act/acts unbecoming of an employee of
the Trust, which is prejudicial to the interest of the Trust,
in breach of Rule 29 of Unit Trust of India (Staff) Rules
1978.
It has been decided to appoint Shri P.C. Gupta Deputy
Manager as an Enquiry Officer to hold the enquiry. The
Enquiry Officer will advise you the venue, date and time of
the enquiry. At the aforesaid enquiry, you will be permitted
to lead evidence, documentary and oral, in support of your
contentions and you will be permitted to cross examine the
witness/witnesses, if any, of the Trust.
In case you do not appear for the enquiry at the given
venue, date and time, the enquiry would be held and
concluded ex-parte."
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1787
11. Charge sheet dated 08.09.1984 was also served,
alleging as under:
"Explanation offered by you through your letter (in
Hindi) dated 01.09.1984 for your unauthorized absence from
13th August, 1984 to 18th August, 1984 is not found to be
satisfactory. By this letter you have also cast aspersions
on the Trust.
2. You have further disobeyed the orders issued to you
by the Trust through its following communications:
a. Telegram dated 14th August, 1984
b. Letter No. No.UT.ND.765/M.67/84-85 dated 14th
August, 1984 (by registered post)
c. Letter No. UT.ND. 2378/M.67/84-85 dated 14th
August, 1984 (under certificate of posting)
d. Telegram dated the 18th August, 1984
e. Letter No. UT.ND. 888/M.67/84-85 dated 18th
August, 1984
f. Letter No. UT.ND. 2728/M.67/84-85 dated 18th
August, 1984 (under Certificate of Posting)
- all advising you to submit a medical certificate
from Medical Superintendent of a Government
Hospital, New Delhi in support of your illness
during the period 13th August 1984 to 18th August,
1984 when you remained absent unauthorizedly.
You did not comply with the orders of the Trust
contained in the various communications listed above and
have thus committed an act of insubordination.
3. Your letter dated the 1st September, 1984, enclosing a
copy of your undated application for leave for the period
from 22nd August 1984 to 31st August 1984 casts asperons
on the management besides being couched in impolite
language, viz. ...."purposefully not acknowledging the
receipt of my application...."
4. You have further been absenting unauthorizedly from
3rd September 1984 in spite of the following communications,
viz.,
a. Telegram dated 5th September, 1984
b. Letter No. UT.ND. 1484/M.67/84-85 dated 5th
September, August, 1984 (by registered post)
c. Letter No. UT.ND. 1484/M.67/84-85 dated 5th
September, 1984 (under certificate of posting)
You have thus again committed an act of
insubordination of the orders issued to you.
5. The circumstances set out hereinabove, if proved,
would amount to following acts of misconduct attracting
appropriate penalty including your dismissal from the
service of the Trust:
(i) Not conforming, abiding, observing and obeying he
orders and directions issued by the office and thus showing
insubordination in breach of Rule 27 misprinted as (37) of
Chapter IV of the Unit Trust of India (Staff) Rules, 1978
(hereinafter called the rules).
(ii) Unauthorized absence from duty without having
obtained the permission of the Comptent Authority in beach
of Rule 39(1) and (2) of the siad Rules.
(iii) Casting aspersions on the Management and not
couching your letters in polite language which are acts
subversive of the discipline and prejudicial to the interest
of Trust in breach of Rule 29 of the said Rules.
6. It has been decided to appoint Shri P.C. Gupta, Deputy
Manager as an Enquiry Officer to hold the enquiry. The
Enquiry Officer will advise you the venue, date and time of
the enquiry. At the aforesaid enquiry, you will be permitted
to lead evidence, documentary and oral, in support of your
contentions and you will be permitted to cross examine the
witness/witnesses, if any, of the Trust.
7. In case you do not appear for the enquiry at the given
venue, date and time, the enquiry would be hald and
concluded ex--parte."
12. Shri P. C. Gupta after conducting detailed enquiry by
taking into consideration statement of witnesses as well as
documents adduced by both the parties, submitted his
report to the Competent Authority, holding the charges
leveled against the claimant stand proved.
13. Thereafter, an opportunity was given to the claimant
regarding quantum of punishment to be imposed upon him
by Shri S. K. Vasu, Deputy General Manager, in terms of
Staff Rules 55 (1E) of the UTI Staff Rules, 1978 as to why
the claimant be not dismissed forthwith from service.
Resultantly, claimant was dismissed from service vide order
dated 17.12.1987.
14. It was against this background that reference was
received by this Tribunal with the terms of reference as
given in para 1 above.
15. After filing statement of claim as well as written
statement and other documents, vide order dated 12.10.1993,
following issues were framed:
(i) Whether the domestic enquiry conducted against
the workman is fair and proper?
(ii) As in terms of reference.
Issue No. 1 was treated as preliminary issue. Workman
in support of his claim examined himself and Shri Jagdish
Chand Naiwal, UDC in Sales Tax Office. Shri P. C. Gupta,
General Manager and Shri R. Subramaniam unfolded facts
on behalf of the management.
1788
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
16. It is clear from the records that evidence was adduced
by both the parties in respect of charge sheet dated
27.08.1984 as well as charge sheet dated 08.09.1984.
17. It is further clear from evidence of both the parties
that the main allegations against the claimant in the first
charge sheet was of unauthorized absence from duties and
letters casting aspersions on the management etc. In the
second charge sheet, it was regarding insubordination.
Finally, my predecessor, Shri R. N. Rai, after considering
evidence of both the parties on the preliminary issue, vide
his order dated 28.04.2005 held as under:
"From the above discussions, it becomes quite obvisous
that the workman applicant was absent without sanctioned
leave. No speaking order has been passed. It has not been
shown that the absence of the claimant has caused severe
loss to the management. The claimant was constrained to
send casual leave application and medical certificates. He
was not absent deliberately as it is quite vivid from the
record. For sheer absence in good faith and for cogent
reasons punishment of dismissal cannot be awarded it is
too harsh and shockingly disproportionate to the
misconduct of the claimant. The management should have
treated his on leave without pay but he should not have
been dismissed from service for his act of absence. Leave
should have been granted to the claimant according to his
exgencies but it appears that the management made it an
excuse to dismiss the claimant from service as he was
indulging in trade union activities.
18. In the facts and circumstances of the case, stoppage
of two increments with cumulative effect is sufficient
punishment to the act of absence. The claimant applicant
is entitled to get full back wages as punishment imposed
on his is quite disproportionate to his misconduct and is
too harsh."
19. Thus it is clear that the action of the management is
dismissing the claimant, Sir J. Ch Katyal from service with
effect from 17.12.1987 was held to be illegal and not justified
as the same was disproprtionate to the misconduct, of which
the claimant was held guilty.
20. Feeling aggrievged, a writ petition bearing No. 10966
of 2005 titled as UI Asset Management Co. Pvt. Ltd Vs the
Presiding officer and another and another writ petition
bearing No. 20371/2005 titled JC Katyal vs. UTI Asset
Management Co. Pvt. Ltd. were filed and the same were
disposed of by a common judgement dated 3.03.2008
wherein award dated 28.04.2005 passed by my learned
predecessor was set aside and matter was remanded to
Central Government Industrial Tribunal for fresh disposal
for rehearing and re-determination of the disputes between
the parties. Both parties were allowed an opportunity to
lead evidence in respect of employment, if any, of the
claimant Shri J.C. Katyal.
21. After remand of the case to this Tribunal, both the
parties were granted opportunities to lead evidence as
directed by the Hon'ble High Court and both the parties
adduced oral as well as documentary evidence.
22. After considering evidence on record, my learned
predecessor, Dr. R.K. Yadav, vide order dated 26.08.2011
held that the enquiry conducted in the present case is not
fair and proper in as much as principles of natural justice
were not followed. Resultantly, enquiry proceedings were
was declared to be violative of fair play and issue relating
to the vires of the enquiry was decided against the
management. In view of the findings given above, again an
opportunity was given to both the parties to lead evidence
regarding charges contained in both the charge sheets.
23. The management in, in order to prove allegations in
both the charge sheets examined Shri Raghubir Singh and
Shri Ashok Kumar Dhingra as MW3 and MW4 respectively.
Certain documents were also tendered in evidence.
Claimant, Shri J.C. Katyal also led evidence to refute the
charges by tendering his affidavit and examined himself.
24. I have heard Shri S. Balram, authorized representative
on behalf of the claimant and Shri Ram Lal Roy, authorized
representative on behalf of the management.
25. It is pertinent to mention here that the evidence,
which was adduced by the parties before Shri P.C. Gupta,
Enquiry Officer, including his report, against the claimant
herein cannot be taken into consideration in as much as
the enquiry report submitted by Shri P.C. Gupta stood
vitiated and was set aside vide order dated 26.08.2011 of
my learned predecessor, Dr. R.K. Yadav.
26. Now, the vital question which requires determination
is whether allegations contained in charge sheets dated
27.08.1984 and 08.09.1984, discussed above, have been
proved as required under the law against the claimant or
not. Management examined Shri Raghubir Singh and Shri
Ashok Kumar Dhingra, as MW3 and MW4 respectively
and in my humble and considered opinion, evidence of
these two witness is not of much value so far as charges
contained in the charge sheet dated 27.08.1984 regarding
leaving of the office premises during office hours
unauthorizedly by the claimant is concerned. To my mind,
evidence in this regard of those officials who were working
in the same room/office with the claimant is of vital
importance. There is no concrete evidence on record to
suggest that claimant has left the office premises
unauthorizedly after initialling attendence register or he
did not perform any official work on the dates mentioned in
the charge sheet. In this regard, it is appropriate to refer the
statement of Shri Raghubir Singh, MW3, who simply
deposed that he joined UTI in 1977 and in 1984 he was
working as Assistant with the management. In July 1984,
he was working in the Record Section and letter MW3/1
was written by him. There is nothing in the statement of
¹Hkkx IIó[k.M 3(ii)º
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1789
this witness that the claimant did not report to Record
Section on the dates mentioned in the charge sheet dated
27.08.1994. It is clear that in the year 1984, this witness was
Assistant in Records Section but he has not whispered
even a word regarding leaving of office by the claimant in
an unauthorized manner on 27.06.1984, 28.06.1984,
29.06.1984, 30.06.1984, 02.07.1984, 03.07.1984, 04.07.1984,
05.07.1984, 06.07.1984, 09.07.1984, 10.07.1984, 11.07.1984,
12.07.1984, 16.07.1984 and 17.07 1984. There is also nothing
in the statement of this witness regarding allegations
contained in the second charge sheet dated 08.09.1994
regarding unauthorized absence from 13.08.1984 to
18.08.1984. This witness has referred to Ex. MW3/1, which
he has written at the instance of Shri K.G. Wasal, General
Manager, who has not been examined by the management
regarding the same. Shri Raghubir Singh, MW3 also feigned
ignorance whether Shri Wasal, General Manager was alone
in his cabin at the time of writing of the above letter or
someone else was sitting there. Statement of this witness
is vague and general in nature and does not inspire any
confidence.
27. Shri Ashok Kumar Dhingra, MW4 joined the
management in 1977. He was working in Record Section in
July 1989. Statement of this witness is also silent as to
whether the claimant left the office after marking attendance
on the dates contained in the charge sheet. He has also not
referred to any act of insubordination, indiscipline or any
unbecoming behaviour of the claimant with his superiors
or colleagues. Since as per statement of this witness, he
was posted in Record Section in which the claimant was
also posted at the relevant time. As such, statement of this
witness regarding unauthorized absence of the claimant
on any kind of misbehavior could have been very relevant
if any of the witness was examined by the management so
as to prove the allegations against the claimant, Shri J.C.
Katyal. The witness has referred to Ex. MW4/1. It is clear
from perusal of Ex. MW4/1 that this witness has written
the letter at the instance of his superior officer, who has
not at all been examined as a witness. Statement of the
senior officer, at whose instance the letter was written, was
very crucial so as to prove the charges against the claimant.
28. The claimant, Shri J.C. Katyal has examined himself
in rebuttal as WW1 and tendered his affidavit as Ex. WW1/
B, which is on the same lines as his earlier affidavit as well
as statement of claim. There is nothing material in the
statement of the claimant so as to help the case of the
management in any manner.
29. Law is fairly settled that allegations contained in the
charge sheet regarding misconduct etc. are required to be
proved against the delinquent official by prepondence of
probability. But evidence in this regard must be cogent
and clear so as to arrive at a safe conclusion that the
employee has really committed the misconduct. It is also
appropriate to mention here that keeping in view the overall
performance of the claimant, he was given letter of
appreciation vide letter Ex. WW1/6 by Shri P.C. Gupta, who
was the Enquiry Officer.
30. It is also necessary to mention here that the claimant
has moved an application for grant of leave from 18.07.1984
to 28.07.1984 and extending the same up to to 03.08.1984.
These applications were not accepted and the claimant
was directed to join duties forthwith as is clear from
telegram and letters dated 21.07.1984 and 31.07.1984
respectively. Therefore, it is not the case of pure
absenteeism and so called absence of the claimant is also
not very long. Evidence of Shri P.C. Gupta, Deputy
Manager as well as Shri Dalawari and other officials of the
management who conducted enquiry and dealt with the
application for leave of the claimant was imperative so as
to prove that the claimant has intentionally not joined duty
despite telegram being sent by the management. The letters
dated 14.08.1984 and 18.08.2004 and other documents
annexed with the charge sheet were required to be proved
in accordance with law, though provisions of Evidence
Act are not applicable strictly in departmental enquiries,
yet basic principle underlying the Evidence Act regarding
proving of documents cannot be ignored. Neither MW3
nor MW4 has made any reference to any of the material
documents discussed above as well as mentioned in the
charge sheets dated 27.08.1984 and 08.09.1984. As such,
the same has dealt a crippling blow to the case of the
management.
31. I have gone through the ratio of law in State of
Haryana vs. Ratan Singh [1977(2) SCC 491] wherein it was
observed that in the conduct of departmental enquiry, the
authority is not bound by strict rules of Evidence Act but
by fair play and natural justice.
32. Now, the next vital question which also requires
determination by this Tribunal is whether the claimant was
gainfully employed after the order of dismissal on 17.12.1997.
Claimant in his affidavit Ex. WW1/B has clearly averred
that he was not helping is wife in running the business of
Vikas Auto. However, claimant has not clarified as to who
were the persons running the business of Vikas Auto, which
is being admittedly run from the house of the claimant. It is
clear from the statement of the claimant, Shri Katyal (cross-
examination dated 10.09.2013) that M/s Vikas Auto was
being run from his residential address located at 11/3A.
Joshi Colony, Mandawali, Delhi. He has stated that it was
in the name of his wife and it was started in the year 1985.
His wife was also an employee of NCT, Delhi during 1985.
He has further stated that above workshop was operational
in the year 2004. He further stated that he cannot produce
any evidence to the effect that M/s Vikas Auto was not
being run by him. Since the claimant has not mentioned
names of the persons who were running business in the
name of Vikas Auto, as such, it is legitimate to hold that the
same was being run by the claimant and his family. There is
1790
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
no other independent evidence led by the management so
as to prove that the claimant was gainfully employed after
dismissal from the job on 17.12.1987.
33. In Deepali Gundu Surwase vs. Kranti Junior Adyapak
Mahavidyalaya (D.Ed) and others (2013 Lab.I.C. 4249),
Hon'ble Apex Court dealt at length with question of grant
of back wages to an employee/workman under various
situations and particularly in the context of provisions of
section 11(a) of the ID Act and held as under:
"Para 33 : Ordinarily, an employee or workman
whose services are terminated and who is desirous
of getting back wages is required to either plead or at
least make a statement before the adjudicating
authority or the Court of first instance that he/she
was not gainfully employed or was employed on
lesser wages. If the employer wants to avoid payment
of full back wages, then it has to plead also lead
cogent evidence to prove that the employee/workman
was gainfully employed and was getting wages equal
to the wages he/she was drawing prior to the
termination of service. This is so because it is settled
law that the burden of proof of the existence of a
particular fact lies on the person who makes a positive
averments about its existence. It is always easier to
prove a positive fact than to prove a negative fact.
Therefore, once the employee shows that he was
not employed, the onus lies on the employer to
specifically plead and prove that the employee was
gainfully employed and was getting the same or
substantially similar emoluments."
34. In the above case also ratio of the law in J.K.
Synthetics vs. K.P. Aggarwal [AIR 2007 SC (Supp) 637 :
2007 AIR SCW 1357] in which reliance placed on behalf of
the management was considered. In the said case, the
employee was dismissed from service on the basis of
enquiry conducted by the competent authority. Labour
court held that the enquiry was not fair and proper and
permitted the parties to adduce evidence on the charges
levelled against the workman. After considering the
evidence, the Labour Court gave benefit of doubt to the
workman and substituted punishment of dismissal with
stoppage of two increments for two years. Labour court
also held that the employee was entitled to reinstatement
with full back wages for the period of unemployment.
Learned Single Judge dismissed the writ petition as well as
Division Bench declined to interfere with the order of the
Labour Court as the employer had wilfully violated the
order of the Labour Court. Labour Court also amended the
award, which was even upheld by the High Court, who did
award full back wages. However, Hon'ble Apex Court in the
case of Deepali Gundu Surwase vs. Kranti Junior Adyapak
Mahayidyalaya (D.Ed) and others (Supra), Specifically held
as under:
"The observations made in J.K. Synthetics Ltd.,
vs. K.P. Aggarwal (Supra) that on reinstatement the
employee/workman cannot claim continuity of
service as of right is contrary to the ratio of the
judgements of three Judge Benches referred to
hereinabove and cannot be treated as good law. This
part of the judgement is also against the very concept
of reinstatement of an employee/workman."
35. The legal position regarding grant of back wages
has been fully elaborated in the above case and it is clear
that the Hon'ble Apex Court held that the cases in which
the competent Court or Tribunal finds that the employer
has acted in gross violation of the statutory provisions
and/or the principles of natural justice or is guilty of
victimizing the employee or workman, then the concermed
Court or Tribunal will be fully justified in directing payment
of full back wages. In such cases, the superior Courts
should not exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by the
Labour Court, etc. merely because there is a possibilty of
forming a different opinion on the entitlement of the
employee/workman to get full back wages or the employers
obligation to pay the same. The Courts must keep in view
that in the cases of wrongful/illegal termination of service,
the wrongdoer is the employer and sufferer is the
employee/workman and there is no justification to give
premium to the employer of his wrongdoings by relieving
him of the burden to pay to the employee/workman his
dues in the form of full wages.
36. Having regard to the ratio of law discussed in the
above authority, Tribunal is of the view that since the
workman, after termination of his job, though was not
gainfully employed in any firm or job, yet he was certainly
helping in the business of his wife being run in the name
and style of Vikas Auto. Business in the above firm was
admittedly being run from the house of the claimant and
wife of the claimant herein is admittedly working in
Government of NCT Delhi. In such a situation, it is
reasonable to hold that the workman was certainly helping
his wife in running of the business of the firm. In view of
this, the Tribunal is of the view that a cut of 25% in the
back wages appears to be just and reasonable. There is no
question of reinstatement in service of the claimant as he
would have ordinarily superannuated by this time had been
been in the job.
37. As a sequel to my discussion and findings recorded
herein above, it is held that the management has failed to
prove the charges contained in charge sheet dated
27.08.1994 and 08.09.1994 against the workman. As such,
dismissal of the workman was neither legal nor justified. It
is also held that the workman is entitled to 75% back wages
with consequential benefits from the date of dismissal till
the date of his superannuation. An award is accordingly
passed. Let this award be sent to the appropriate
Government, as required under Section 17 of the Industrial
Disputes Act, 1947, for publication.
A.C. DOGRA, Presiding Officer
Dateed : February 13, 2015
¹Hkkx IIó[k.M 3(ii)º
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1791
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gqvk FkkA
[lañ ,y&17012@38@95&vkbZvkj ¼ch&II½]
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New Delhi, the 17th April, 2015
S.O. 822.—In pursuance of Section 17 of the Industrial
Disputes Act, 1974 (14 of 1974), the Central Government
hereby publishes the Award (Ref./02/1997) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Kolkata as shown
in the Annexure, in the industrial dispute between the
management of National Insurance Co. Ltd. and their
workmen, received by the Central Government on
16/04/2015.
[No. L-17012/38/95-IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRAIL TRIBUNAL
AT KOLKATA
Reference No. 02 of 1997
Parties:
Employers in relation to the Management of
National Insurance Co. Ltd.
AND
Their wokmen
Present:
Justice Dipak Saha Ray,
.....Presiding Officer
Appearance:
On behalf of the
:
Mr. Dipak Kumar Ghosh, Ld.
Management
Counsel
On behalf of the
:
Mr. Avijit Ghosh the
Workmen
concerned workman in person
State: West Bengal
Industry: Insurance.
Dated 12th March, 2015
AWARD
By Order No. L-17012/38/95-IR(B-II) dated 09.01.1997
the Government of India, Ministry of Labour in exercise of
its powers under Section 10(1)(d) and (2A) of the industrial
Disputes Act, 1947 referred the following dispute to this
Tribunal for adjudication:
"whether the action of the management of National
Insurance Co. Ltd. in terminating the services of
Shri Avijit Ghosh, Ex-Pump Operator w.e.f. 20.08.92
is legal and justified? If not, to what relief the said
workman is entitled?"
2. The case of the concerned workman is, in a nutshell,
as follows:
The concerned workman and five (5) others were
engaged by the management of National Insurance
Company Ltd. for operating water lifting pump and other
related job in the building situated at 5 and 7, Netaji Subhas
Road, Kolkata. The said Company used to pay monthly
salary to the said workmen including the concerned
workman through one Pranab Kumar Dhar after obtaining
signatures of the workmen on the salary payment register
maintained by the Company through Pranab Kumar Dhar.
The Company also maintained attendance register of these
workmen through Pranab Kumar Dhar. It is contended by
the concerned workman that there was in tender inviting
quotation for engaging any contractor labour by the
Company and that the Company never engaged Pranab
Kumar Dhar as contractor under the provisions of the
Contract Labour (Regulation and Abolition) Act. Actually
the Company engaged Pranab Kumar Dhar as a middleman
to recruit and appoint the workmen in order to avoid various
provisions of law, rules and regulations of recruitment and
also to avoid the relationship of employer and employee.
It is further contended by the workman that he alongwith
others performed duties against permanent vacancies for
about 2 years and as such their termination from service
with effect from 19.8.1992 with complying with the
mandatory provisions of the industrial Disputes Act, is
illegal. Accordingly, it is prayed that the concerned workman
may be ordered to be reinstated with full back wages and
future benefits.
3. As regards this the management/Company has
opposed the claim of the workman by filing written statement
contending inter-alia that the instant reference is not
maintainable as their is no employer—employee relationship
between the Company and the concerned person. It is the
specific case of the Company that the Company never
engaged the concerned person for operating water pumps
and related jobs. The said person was the employee of
M/s. Pranab Kumar Dhar who was engaged by the Company
for operating the maintenance of the water pumps and
accordingly M/s. Pranab Kumar Dhar engaged the
concerned person and others for operating water lifting
pumps and other related jobs. It is the future case of the
Company that the concerned person was never appointed
by the Company. Nor was he ever paid by the Company
and there was no supervision and control of the Company
over his work. The Company has accordingly prayed that
the instant reference may be answered in the affirmative.
1792
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
4. The concerned workman has examined three
witnesses including himself and proved some documents
namely, Attendance Register (Ext. W-01), Salary Register
(Ext. W-02) and prayer for reinstatement (Ext.-W-03) in order
to prove his case. On the other hand, the Company has
examined one witness in support of its case.
5. The concerned workman in his evidence has
corroborated the statements made his statement of claim.
He has stated that Pranab Kr. Dhar used to work as a
middleman of the Company and the Company appointed
him (concerned workman) through Pranab Kr. Dhar. He has
further stated that he used to sign attendance register (Ext.
W-01) every day and used to get monthly pay signing the
salary register (Ext. W-02).
6. This witness in his examination-in-chief has admitted
that the said attendance register used to be maintained by
Pranab Kr. Dhar and that he used to get his salary from
Pranab Kr. Dhar. During cross-examination this witness
has admitted that Company never issued him any
appointment letter and that aprat from Ext. W-01, Company
did not maintain any separate attendance register.
7. WW-02, Shri Dilip Kumar Mukherjee in his cross-
examination has admitted that Pranab Kr. Dhar who was
engaged by the Company as machine repairer, engaged
6/7 workers for operating the pumps. His evidence goes to
show that the Company had no licence for engaging
contractor's labourers.
8. WW-03, Shri Arun Kumar Dutta in his examination-
in-chief has stated that management engaged Pranab Kr.
Dhar who engaged four/five persons including the
concerned workman for operating water lifting pumps. His
evidence-in-chief further goes to show that the Company
used to pay wages to the said workmen through Pranab Kr.
Dhar and that being an administrative officer of the
Company he also used to supervise the work of those
workmen. This witness during cross-examination has failed
to produce any document to prove that he was an
administrative officer of the Company in 1991-92 and was
entrusted to supervise the work of pump operators. This
witness has also failed to show any document to establish
that the Company used to pay wages of the said workmen
through Pranab Kr. Dhar.
9. The witness of the Company, MW-01 in his evidence
has specifically stated that the concerned workman was
never appointed by the Company and his work was never
controlled and supervised by the Company. His cross-
examination goes to show that witness Shri Arun Kumar
Dutta (WW-03) used to look after the accounts and legal
matters of the Company and that the work of Abhijit Ghosh
was not supervised by the Company. According to him
Exts. W-01 and W-02 were not maintained by the Company.
10. It is the case of the workman that M/s. Pranab Kr.
Dhar is a contractor and that the Company recruited the
concerned workman through the said contractor in order
to avoid the employer - employee relationship between the
Company and workman. It is alleged that the Company has
no registration to engage any contractor and that the said
contractor had also no license to act as contractor. It is
further alleged that said M/s. Pranab Kr. Dhar acted as
middleman and the Company engaged the concerned
workman and others through M/s. Pranab Kr. Dhar.
11. Admittedly, the concerned workman started working
as operator of water pump machine under Pranab Kr. Dhar
since 17.05.1991 and his work was terminated on 19.08.1992
when the contract of M/s. Pranab Kr. Dhar was cancelled.
So, it cannot be said that the concerned workman performed
his duties years together as water pump operator under
several contractors. In such circumstances, the workman
has to prove that he was actually appointed by the Company
and that his work was being controlled and supervised by
the Company.
12. In this case the concerned workman by examining
himself and his witnesses has tried to establish that the
Company appointed him as Operator of water lifting pump
through one middleman, namely, M/s. Pranab Kr. Dhar and
used to pay salary/wages to him through M/s. Pranab
Kr.Dhar. He, in support of the said contention has proved
Attendance Register (Ext. W-01) and Salary Register (Ext.
W-02). But on careful perusal of the said documents it
appears that the said two registers were maintained by
M/s. Pranab Kr. Dhar. There is nothing in the said registers
to show that the same were never seen or verified by the
Company through its staff. On the other hand Exts. W-01
and W-02 go to show that the said registers were maintained
by M/s. Pranab Kr. Dhar. The concerned workman has also
failed to produce any paper to show during his service
period as pump operator he ever made any correspondence
with the Company in the matter of granting leave or in any
matter relating to his job. The concerned workman has also
failed to establish that there was permanent vacancy of
Pump Operator and that his appointment was made after
observing all formalities. On the other hand, the evidence
of MW-01 goes to show that there was no permanent
vacancy of the Pump Operator and that he was not
appointed by the Company.
13. WW-03 by adducing evidence has tried to establish
that he on behalf of the Company used to control and
supervise the job of the workman. But, MW-01 in his
evidence has specifically stated that the Company never
supervised the job of the concerned workman and that
WW-03 (Arun Kumar Dutta) used to look after accounts
and legal matters of the Company. This witness has also
specifically stated that the concerned workman, Abhijit
Ghosh was never appointed as casual workman and that
there was no scope or issuance of oral direction to
Shri Ghosh by Administrative Officer. It is also denied by
¹Hkkx IIó[k.M 3(ii)º
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1793
this witness that Company used to pay Rs. 350/= p.m. to
Shri Ghosh. This witness has not been cross-examined by
the concerned workman. So, there is no scope or reason to
disbelieve the said evidence of MW-01.
14. Now from the letter dated 16.12.1992 of M/s. Pranab
Kr Dhar (Ext. M-02) it appears that Shri Dhar after
cancellation of his contract wrote a letter to the Company
to restore the contract or to engage his employees in the
Company. This document again establishes that the
concerned workman was engaged by M/s. Pranab Kr. Dhar
and not the Company.
15. Considering the above discussion, I am of the view
that the concerned workman has failed to establish that he
was engaged by the Company as Water Pump Operator
through M/s. Pranab Kr. Dhar in a camouflaged manner
and that the Company used to pay his salary/wages and
that the Company used to supervise his job. So, it appears
that the concerned workman has failed to establish the
relationship of employer — employee between the
Company and the workman concerned.
16. Accordingly, the workman is not entitled to any
relief what-so-ever.
Justice DIPAK SAHA RAY, Presiding Officer
Dated, Kolkata,
The 12th March, 2015
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jfo dqekj] MsLd vfèdkjh
New Delhi, the 17th April, 2015
S.O. 823.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 155/01) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Jabalpur as
shown in the Annexure in the Industrial Dispute between
the management of Bank of Maharashtra and their workmen,
received by the Central Government on 16.04.2015.
[No. L-12011/128/2001-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/155/01
The Secretary,
Union of the Maharashtra Bank Employees,
3/A, Ramanand Nagar,
Lalghati, Bhopal
... Workman/Union
Versus
Regional Manager,
Bank of Maharashtra,
Regional Office, Admn Zone, 1/14
Jail Road, Bhopal.
... Management
AWARD
Passed on this 23rd day of January, 2015
1. As per letter dated 10-10-01 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D. Act, 1947 as per Notification No.
L-12011/128/2001-IR(B-II). The dispute under reference
relates to:
"Whether the action of the management of Bank of
Maharashtra in imposing the penalty of stoppage of
two increments with cumulative effect on Shri Ashutosh
Awasti, Clerk cum cashier, Dewadia Branch is justified?
If not, what relief the workman is entitled to?"
2. After receiving reference, notices were issued to the
parties. Ist party Union submitted statement of claim at
Page 4/1 to 4/6. Union has submitted of claim on behalf of
workman Ashutosh Awasthi. Union submits that IInd party
has withhold two increments as per order dated 17-7-2000.
It is further submitted that charge sheet was issued to CSE
on 7-9-99. CSE was working as clerk-cum-cashier in the
branch.The allegations in charge sheet issued to him were
about deliberately disobeying order of the superiors,
avoiding work allotted to him, committing act adversely
affecting bank interest, remaining habitual unauthorized
absent. Enquiry was conducted against workman giving
opportunity for his defence. Principles of natural justice
were violated. Enquiry Officer submitted his report dated
31-5-2000. Enquriy Officer found charge Nos. 1 and 4 proved
against workman change Nos. 2, 3 were not proved against
him. After considering report of Enquiry Officer, the
punishment of withholding two increments of workman
with cumulative effect was imposed. Workman challenged
order of punishment filing appeal on 20-7-2000. Appellate
Authority dismissed appeal on 7-12-2000.
1794
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
3. Union submits that enquiry was not propertty
conducted. Workman had objected authority for issuing
orders No. 1 to 3/98 to him, its reply was not given. During
enquiry zerox copy of documents were not produced.
Workman had reiterated that zerox copies of orders could
not be proved without original. Said point was not decided
by Enquiry Officer and the management was permitted to
adduce evidence. The punishment of withholding
increment is by way of victimization. It is illegal. On such
grounds, Union has prayed for deciding reference in favour
of Union. That CSE be allowed benefit of promotion and
transfer which were denied to him.
4. IInd party management filed Written Statement at Page
5/1 to 5/5. Workman was working as clerk-cum-cashier.
Chargesheet was issued to him, enquiry was conducted
against him. IInd party submits that CSE was in habit of
remaining absent from duty. Repeated warnings and notice
we issued to him. There was no improvement in his
behaviour. It is submitted that Enquiry Officer was
appointed. Enquiry was conducted giving opportunity of
defence to CSE. Original documents of orders issues ME
21 to ME 24 were missing. Original could not be produced.
Enquiry Officer observed that the documents could be
admitted by secondary evidence. All adverse contentions
of Union that enquiry was not properly conducted.
Principles of natural justice were not followed were denied.
Considering the report of Enquiry Officer, punishment of
withholding two increments was imposed on workman. IInd
party prays that reference be answered in its favour.
5. After parties laid evidence, preliminary issue was
decided by my predecessor. As per order dated 28-9-2012,
enquiry was found proper and legal.
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 charge No. 1 & 4
In Affirmative
alleged against workman are
proved from evidence in
Enquiry Proceedings?
(ii) Whether the punishment of
In Affirmative
withholding two increment on
CSE is proper and legal?
(iii) If so, to what relief the
Workman is not
workman is entitled to?"
entitled to any
relief.
REASONS
7. As stated above, enquiry conducted against workman
is found proper and legal. Therefore the evidence in enquiry
needs to be considered for deciding whether Charge Nos. 1,
4 against workman are proved or not. Record of enquiry is
produced. Charge sheet Exhibit M-2 issued to workman
deals with disobedience of orders of his superiors and
unauthorized habitual absence. Statements of management's
witness Shri Vijay Kumar Joshi and MW-2 Dinesh Swaroop
were recorded, both the witnesses of management were
cross-examined at length. The evidence of the witnesses
about habitual absence of workman beyond the leave period
and disobeying order of his superior by CSE is supported
in their evidence. As per Exhibit M-7, it was found that no
leave was in account of CSE and he was shown
unauthorized absence. As per Exhibit M-8, CSE was issued
letter about the keys of cash safe were not returned.
Document Exhibit M-8 covers with unauthorised absence
of CSE, explanation called were not found satisfactory.
Exhibit W-10 also deals with absence of CSE. There is
sufficient evidence on record that CSE was habitual in
unauthorized absence. The statements of management's
witnesses Nos. 1 to 2 is sufficient to prove Charge Nos. 1
to 4 against workman. The evidence cannot re-appreciated
as Appellate Authority when findings of Enquiry Officer
are supported by some evidence. For above reasons, I
record my finding in Point No. 1 in Affirmative.
8. Point No. 2 - the charges Nos. 1 & 4 were proved
against workman as per report submitted by Enquiry Officer.
The findings of Enquiry Officer are supported by some
evidence. Considering proved charges relating to habitual
absence, disobeying orders of superiors, the punishment
of withholding of two increments imposed on CSE cannot
be said excessive and illegal. For above reasons, I record
my finding in Point No. 2 in Affirmative.
9. In the result, award is passed as under:—
(1) The action of the management of Bank of
Maharashtra in imposing the penalty of stoppage
of two increments with cumulative effect on Shri
Ashutosh Awasti, Clerk-cum-cashier, Devadia
Branch is proper and legal.
(2) Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
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1795
New Delhi, the 17th April, 2015
S.O. 824.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 57/2006) of the
Central Government Industrial Tribunal-Cum-Labour Court,
No.-2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Union Bank of India
and their workmen, received by the Central Government on
16/04/2015.
[No. L-12011/64/06-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT
Shri Kishori Ram,
Presiding Officer
In the matter of an Industrial Dispute under
Section10(1)(d) of the I.D. Act, 1947.
Reference No. 57 of 2006
Parties:
The General Secretary,
Union Bank Employees' Association, C/o
Union Bank of India,
Kutchury Road, Ranchi,
Vs.
Asst. General Manager,
Union Bank of India, Regional Office, Kali Babu
Street, Ranchi
Ministry's Order No L-12011/64/06-IR-(B-II)
dated 07.08.2006
APPEARANCES:
On behalf of the workman/Union : Mr. D. Mukharjee,
Ld. Adv.
On behalf of the Management
: Mr. D.K. Verma,
Ld. Adv.
State
: Jharkhand
Industry
: Banking
Dated, Dhanbad, the 15th Dec., 2014
AWARD
The Government of India, Ministry of Labour, in exercise
of the powers conferred on them under Sec. 10(1)(d) of the
I.D. Act, 1947 has referred the following dispute to this
Tribunal for adjudication vide their Order No. L-12011/64/
06-IR(B-II) dated 07.08.2006.
S C H E D U L E
"Whether the action of the Management of Union
Bank of India in inflicting the punishment of stoppage
of two increments with cumulative effects against
Shri Nagendra Sharma, Armed Guard posted in the
Bank is legal, fair and justified? If not what relief the
workman is entitled to and from which date?"
2. Mr. D. Mukherjee, Ld. Advocate for the Union/
workman and Mr. D.K. Verma, the Ld. Advocate for the OP/
Management are present. No Management witness at
preliminary point has been produced. Meanwhile Mr. D.
Mukherjee by filing a petition on behalf of the workman
Negandra Sharma after serving a copy of it on the Ld.
Advocate for the OP/Management has submitted that in
view of the present relation of the workman with the
Management, the workman is not interested in contesting
the case, so an order to that effect may be passed.
In view the aforesaid circumstance as restored between
both the parties, there is no longer an industrial Dispute
existent. Hence, the case is closed; and accordingly it is
passed an order of 'No Dispute Award'.
KISHORI RAM, Presiding Officer
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New Delhi, the 17th April, 2015
S.O. 825.—In pursunance of Section 17 of the Industrial
Dispute Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 161/2001) of the
Central Government Industrial Tribunal-cum-Labour Court
No. 2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Bank of India and
their workmen, received by the Central Government on
16.04.2015.
[No. L-12012/27/2001-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT : Shri Kishori Ram, Presiding Officer
1796
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
In the matter of an Industrial Dispute under Section
10(I) (d) of the I.D. Act, 1947.
REFERENCE NO. 161 OF 2001
PARTIES
:
The Arjun Prasad
C/o Sh. Narayan Prasad.
Tarengaga Gola, Kumhar Toli, Behind
St. Jiseph School
PO; Mssaurthi, Distt. Patna
Vs.
Zonal Manager,
Bank of India, R Block, Chanakya Palace,
Veer Chand Patel Marg Road, Patna 1.
Ministry's Order No. L-12012/27/2001(IR)
(B-II) dt. 18/22.06.2001
APPEARANCES:
On behalf of the Workman/Union
:
Mr. U.N. Lal,
L
d
.
Advocate.
On behalf of the Management
:
Mr. D.K. Verma
Ld. Advocate.
State
:
Bihar
Industry
:
Banking
Dated, Dhanbad, the 6th 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-12012/27/2001-IR(B-II) dt. 18/22.06.2001.
S C H E D U L E
"Whether the claim of the disputant Shri Arjun Prasad
that he was engaged as a Sub-staff during the period
from 1982 to 1987 continuously and worked at Zonal
Stationery Office, Patna till 31.05.1994 on casual basis
is factually correct. If so, whether the action of the
Management of Bank of India, Zonal Manager, Patna
in terminating the services of Shri Arjun Prasad on
01.06.1994 was justified? If not, what relief the
workman is entitled to?"
On receipt of the Order No. L-12012/27/2001-IR(B-II) dt.
18/22.06.2001 the above mentioned reference from the
Government of India, Ministry of Labour & Employment,
New Delhi for adjudication of the dispute, the Reference
Case No. 161 of 2001 was registered on 03.07.2001, and
accordingly an order to that effect was passed to issue
notices through the Registered Posts to the parties
concerned, directing them to appear in the Court on the
date fixed, and to file their written statements along with
the relevant documents. In pursuance of the said order,
notices by the Registered Posts were sent to the parties
concerned.
Both the parties made their appearances and filed their
pleadings and photocopies of their documents. The Union
and the O.P./Management through their own respective
Ld. Counsels appeared in, and contested the case.
2
The case of workman Arjun Prasad as stated in
his written statement is that he was originally appointed in
Feb. 1992 against permanent vacancy. He was engaged on
4th Feb. 1982 in exigency as usually others as casual with
issuing appointment letters who were regularized as per
the Bank's Circular etc. The poor petitioner worked regularly
and continuously directly under the control and
supervision of the Bank's officials. He was initially paid his
wage in his name but later on through his S.B. A/c No. 1049
at B.C.P. Marg at the instruction of Sri P.D. Daryani, the
then Head of Stationery Department. The arrangements of
perfect papers was made to camouflage the case of the
petitioner. He had worked under the eleven several officials
Messers K.R. Yagaik to U.K. Kumar of the Zonal Stationery
Department during the period from 1981-94. Despite several
times representation, the Management could not regularize
him. When the workman began to demand for regular pay
scale, he was illegally stopped from his duty w.e.f. 31.5.1994
without any reason and compliance of the mandatory
provision of the Law. Finally, the petitioner raised the
Industrial Dispute before the ALC ©, but the failure in its
conciliation proceeding reulted in the reference for an
adjudication. He remained engaged in the Zonal Office till
31.05.1994. The action the Management in terminating his
services from 1.6.1994 was not justified, rather it was
arbitrary, vindictive, anti-labour.
The workman in his rejoinder has specifically denied
the allegations of the OP/Management as wrong, further
stating that the workman had worked as the Sub-staff from
1982 to 1995 in the Bank.
3. Whereas the contra case of the OP/Management is
that the reference is unmaintainable in law and in facts,
that petitioner Arjun Prasad has stated in his complaint
before the ALC©, Patna, on 11.1.2000 that he was
continuously performing the routine job of the Sub-staff
Cadre in the Bank from 1982 to 1987 and also worked at
Zonal Stationery Office, Patna till 1994 on casual/Coolie
basis. But the Management had represented before the
ALC that he was never appointed in the Bank's service for
performing the job of Sub-staff against the vacancy, rather
as per the records of the Bank, he was occasionally engaged
for 16 days in the year 1984 as a casual labour, and for total
134 days as a coolie during the years 1982 to 1995 in the
different offices of the Bank. He was accordingly paid by
the Bank his charges as a coolie, so he was not a workman
¹Hkkx IIó[k.M 3(ii)º
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1797
under Sec. 25B of the Industrial Dispute Act 1947, and
likewise, it is not an industrial dispute u/s 2 K of the Act,
rather it is an individual one Moreover, non-engagement
of a Coolie does not amount to discharge, dismissal,
termination. The Bank as a State under the Article 12 of the
Constitution of India has to observe the procedure of
employment under the public policy under the Articles 14
and 16 of the constitution. The workman has never
completed 240 days in any year. So section 25 F of the
Industrial Dispute Act 1947 is inapplicable to the present
case. The working of the petitioner as a Badli Coolie was
for 13,57,24,63,3,19 and 3 days during the years 1984, 1986
to 1990 respecrtively. The present Industrial Dispute raised
after a lapse of several years is unmaintainable as stale
one. None of the recognized Union sponsored the case.
The OP/Management in their rejoinder has categorically
denied all the allegations of the workman.
FINDING WITH REASONS
4. In the instant reference, WWI Arjun Prasad for himself
and MWI Awadhesh Kumar Mishra for the OP/
Management have been examined respectively.
Mr. U.N. Lal, Learned Advocate for the workman has
submitted that he regularly served a daily wager as a Badli
Sepoy as per the payment of his daily wages (Ext. W.2)
through his bank A/c (Ext. W.3); the Management pointed
out his attendances for 84 to 90 days as also admitted
under para 10 of the written statement, and the workman
had regularly worked as a coolie, so he is entitled to
regularization in the service of the Bank. On the other hand,
Mr. D.K. Verma, Learned Counsel for the OP/Management
has contended that as the very terms of the reference prima
facie appear to be a great vague over the years 1982-87;
since the workman has admittedly worked casually, and
has not completed 240 days attendance in a due calender
year, so he is not entitled to any relief.
After hearing the arguments of both Learned Counsels
for the parties concerned, on perusal of the materials
available on the case record, I find there is no dispute that
the workman was casually engaged and paid as a coolie,
but irregularly for 134 days during the years 1984 to 1990. It
also appears no dispute that he never completed as a regular
worker for 240 days in a due calendar year; moreover,
admitted he was not appointed by the Management of the
Bank, so the point of alleged termination does not hold
good with the case the casual worker.
In result, it is hereby, awarded that the claim of disputant
Arjun Prasad about his engagement was a Sub-Staff during
the period of 1982 to 1987 continuously and his working at
Zonal Stationery Office, Patna, till 31.05.1994 on casual
basis is factually totally incorrect. Since the worker was
purely a casual but irregular coolie, so no point of his
alleged termination u/s 25 F of the I.D. Act 1947 applies.
Hence, no question as to the alleged action of the
Management of Bank of India, Zonal Manager, Patna in
terminating the worker on 01.6.1994 as justified or
unjustified arises. Therefore, the workman is not entitled
to any relief.
KISHORI RAM, Presiding Officer
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New Delhi, the 17 April, 2015
S.O. 826.—In pursuance of Section 17 of the Industrial
Dispute Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 38/2003) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Kolkata as shown
in the Annexure, in the industrial dispute between the
management of Kolkata Port Trust and their workmen,
received by the Central Government on 16/04/2015.
[No. L-32011/3/2003-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 38 of 2003
Parties:
Employees in relation to the management of
Kolkata Port Trust
AND
Their workmen
Present:
Justice Dipak Saha Ray,
Presiding Officer
Appearance:
On bahalf of the
: Mr. M.K. Das, Industrial Relations
Management
Officer
On behalf of the
: Mr. Subrata Majumdar the
Workmen
concerned workman in person
State
: West Bengal
Industry
: Port & Dock
1798
THE GAZETTE OF INDIA : APRIL 18, 2015/CHAITRA 28, 1937
[PART II—SEC. 3(ii)]
Dated 12th March, 2015.
AWARD
By Order No. 32011/3/2003-IR (B-II) dated 11.11.2003
the Government of India, Ministry of Labour in exercise of
its powers under Section 10(1)(d) and (2A) of the Industrial
Disputes Act, 1947 referred the following dispute to this
Tribunal for adjudication:
"Whether the action of the management of Kolkata
Port Trust in denying pension/pensionary benefits
to Shri Subrata Majumder, Ex-Head-Clerk, Finance
Department is legal and justified? If not, what relief
the concerned employee is entitled to?"
2. The case of Shri Subrata Majumdar is, in a nutshell,
as follows:
The concerned employee Shri Subrata Majumder was
appointed in Calcutta Port Commissioner (Presently named
as Kolkata Port Trust) service on 30.10.1957 and after two
years of his service he became the member of Contributory
Provident Fund Scheme. He retired from service on
31.07.1997 while he was Head Clerk of Finance Department.
On the date of his retirement he opted for Pension Scheme
in terms of FA. & C.A.O's circular No. Fin/133P dated
05.05.1997 vide his application dated 31.07.1997. But the
said prayer was rejected on the ground that he retired after
09.01.1997. Subsequent representations of Shri Majumder
were also not considered. Accordingly the concerned
person raised industrial dispute. Hence this reference.
3. As regard this, the management has opposed the
claim by filing written statement contending inter alia that
Shri Majumder retired on 31.07.1997 while he was Head
Clerk and being a Head Clerk Shri Majumder was holding
supervisory position and was getting monthly emoluments
of more than Rs. 1600/- per month. ***Shri Majumder on
his last working day i.e. on 31.07.1997 exercised his option
for switching over from Contributory Provident Fund
Scheme to Pension Scheme though he had to exercise his
option three (3) months before his superannuation as per
Government Order No. PW/PEX 73/79 dated 08.07.1988
(Ex M-06) which was circulated vide Circular No. 604 P
dated 05.08.1986 issued by the officer of the Financial
Adviser and Chief Accounts Officer (Ext. M-05).
Accordingly, the option of Shri Majumder for switching
over to Pension Scheme was not accepted by the
management. The management has accordingly prayed that
the instant reference may be answered in the affirmative.
4. Union in support of its case examined two witnesses
including Shri Subrata Majumder a WW-01 and has proved
some documents marked Exts. W-01 to W-15.
5. The Management has also examined one witness and
proved some documents marked Exts. M-01 to M-07.
6. It is argued on behalf of the management that the
union raised industrial dispute and acordingly this
reference was initiated. Subsequently union stopped
conducting the case. Thereafter on the prayer of the
concerned person, Shri Majumder, Tribunal allowed him to
represent this case. It is submitted that since the union is
no more a party to this proceedings, present dispute cannot
be termed as an industrial dispute as per the provision of
Section 2(k) of the industrial Disputes Act, 1947. It is further
argued on behalf of the management that Shri Majumber
who was Head Clerk at the time of his retirement and drew
more than Rs. 1600/- per month, was employed in the
supervisory capacity and as such he cannot be said to be
a workman as per the provision of Section 2(s) (iv) of the
Act.
It has been further argued that Shri Majumder opted for
Pension Scheme beyond the time limit as mentioned in
Government Order No. PW/PEX 73/79 dated 08.07.1986
(Ext. M-06) which was well circulated vide Circular No. 604
dated 05.08.1986 (Ext. M-05) and accordingly his option
was not accepted.
7. Mr. Subrata Majumder concerned person, on the other
hand, has submitted that as per the order dated 20.12.2010
of the Tribunal he has been made a party to this reference
and has been allowed to conduct the case and as such
Section 2(k) of the Act is not applicable. He has further
submitted that the management has failed to establish that
he being Head Clerk was employed in the supervisory
capacity. It is also argued that one Jb. Nur Hossain who
exervised option beyond the time limit of Government Order
dated 08.07.1986 was allowed to opt Pension Scheme by
the Chairman, Kolkata Port Trust and accordingly his
(Shri Majumder) option for switching over to Pension
Scheme is required to be accepted.
8. Seen the order dated 30.12.2010 of this Tribunal which
reads; "Mr. Das, authorized representative of the
management has submitted that since the present reference
is in respect of the present applicant's claim, the
management will not stand in the way to the prayer by the
present applicant to be added as a party..........."
9. From the said order it appears that as the management
did not raise any objection Shri Majumder was added party
in this reference and the statement of claim which bears the
signature of Shri Majumder, was accepted as the statement
of claim of Shri Majumder. The Said order even was not
even challenged subsequently. So at this stage the
management is not entitled to raise any objection in this
regard.
10. It is alleged on behalf of the management that at time
of retirement Shri Majumder was employed in the
supervisory capacity and as such he was not a workman.
Admittedly at the time of superannuation Shri Majumder
was posted in the Finance Department as a Head Clerk and
he drew more than Rs. 1600/- per month. So the management
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 18] 2015@pS=k 28] 1937
1799
is to establish that Shri Majurnder was in superviory
capacity while he was posted as Head Clerk. But except the
averment in the written statement, no evidence either oral
or documentary, is forthcoming to substantiate the said
contention of the written statement. It is also surprising to
note that the management has even failed to corroborate
the said statement by adducing any oral evidence. So it
appears that the management has miserably failed to
establish that at the time of superannuation Shri Majumder
was employed in the supervisory capacity.
11. It is the case of Shri Majumder that as per Finance
Department Circular No. Fin/133 P dated 05.05.1997
(Ext. W-o6) he opted the Pension Scheme in time. But
considering Ext. M-06 with reference to Exts. M-03 and
M-04 (Finance Department Circular No. Fin/1123 P
dated 10.02.1997 and Fin/27/P dated 04.04.1997
respectively), it appears that the said circulars were
applicable to the persons who were in service on 01.01.1986
but retired on or before 10.02.1997. Shri Majumder retired
on 01.08.1997. That being so, such circulars are not
applicable to Shri Majumder in the matter of exercising
option for Pension Scheme.
12. It further appears from Clause 52(1) of the Kolkata
Port Trust Employees (Pension) Regulations, 1988
(Ext. M-07) that "on the commencement of these regulations,
every rule or order in force immediately before such
commencement shall, cease to operate.”.
Ext. M-07 does not also provide any time limit for
exercising option for switching over from Contributory
Provident Fund to Pension Scheme.
13. In view of such circumstances, Circular No. 604 P
dated 05.05.1986 [Ext. M-05 wherein the employees were
allowed to opt the Pension Scheme three (3) months before
the date of retirement] was also not applicable to
Shri Majumder.
14. From Exhibits W-14 and W-15 it is evident that one
Jb. Nur Hossain opted for Pension Scheme beyond the
alleged prescribed time limit. But even then he was allowed
to opt such Pension Scheme by the Chairman, Kolkata Port
Trust. Shri Majumder stands on the same footing with Jb
Nur Hossain and for the said reason Shri Majumder ought
to have been allowed to opt the Pension Scheme.
15. Accordingly Shri Subrata Majumder is entitled to
Pension on refunding the employer's contribution of
Contributory Provident Fund with interest prevailing at
the relevant time when Shri Majumder received the
employer's contribution.
Justice DIPAK SAHA RAY, Presiding Officer
Dated, Kolkata,
The 12th March, 2015
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.