miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;
¼miHkksDrk ekeys foHkkx½
¼Hkkjrh; ekud C;wjks½
ubZ fnYyh] 12 vDrwcj] 2015
dkñ vkñ 1977-—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e 1988 ds fofu;e 4 ds mifofu;e ¼5½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~}kjk vf/klwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gSa] os Lohd`r dj fn, x, gS%—
Øe
ykblsal
Lohd`fr djus
ykblsal/kkjh dk uke
Hkkjrh; ekud
Hkkek lañ@
la[;k la[;k
dh frfFk
,oa irk
dk 'kh"kZd
Hkkx@[kaM@o"kZ
o"kZ@ekg
1
2
3
4
5
6
1-
7800005809
07@07@2015
lfujax buosLVesaV ,aM VªsfMax daiuh
Iysu dkWih;j isij
Hkk ek 14490% 1997
fyfeVsM xkyk lañ th&4] ry eafty]
d`".kk dkWEiysDl
vxzoky iSdlZ ,aM ewolZ] nkiksMk
vatqj jksM] ekul isVªksy iEi ds utnhd
fHkoaMh & 421302] ftyk &Bk.ks
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- 42]
ubZ fnYyh] vDrwcj 11—vDrwcj 17] 2015] 'kfuokj@vkf'ou 19—vkf'ou 25] 1937
No. 42]
NEW DELHI, OCTOBER 11—OCTOBER 17, 2015, SATURDAY/ASVINA 19—ASVINA 25, 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)
4199 GI/2015
(4077)
4078
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
2-
7800005910
07@07@2015
lfujax buosLVesaV ,aM VªsfMax daiuh
isij dEI;qVj] Vkbi
Hkk ek 12766% 1997
fyfeVsM xkyk lañ th&4] ry eafty]
, bZdks ekdZ lfgr
d`".kk dkWEiysDl
vxzoky iSdlZ ,ao ewolZ] nkiksMk
vatqj jksM] ekul isVªksy iEi ds utnhd
fHkokaMh & 421302] ftyk &Bk.ks]
3-
7800006011
07@07@2015
n'kZd baMLVªht
250 oksYV~l vkSj 16 ,EihvlZ rd Hkk ek 1293% 2005
16 flag dEikm.M
jsfVr /kkjk ds Iyx vkSj lkWdsV
tksxs'ojh ¼if'pe½
vkmVysVl
eqacbZ& 400102
4-
7800006112
13@07@2015
fr#ifr QSczhdsVlZ izkñ fyfeVsM
flapkbZ midj.k&ehfM;k fQ+ YVj
Hkk ek 14606% 1998
ts&22] ,evk;Mhlh
ftyk% tyxkao &425001
5-
7800006213
13@07@2015
fr#ifr QSczhdsVlZ izkñ fyfeVsM
flapkbZ midj.k&gkbZMªkslkbDyksu
Hkk ek 14743% 1999
ts&22] ,evk;Mhlh
fQ+ YVj
ftyk% tyxkao &425001
6-
7800006415
16@07@2015
th ,e eksM;qyj izkñ fyfeVsM
250 oksYVl vkSj 16 ,EihvlZ
Hkk ek 1293% 2005
¼;wfuV lañ 2½ losZ lañ 15@1] fcfYMax lañ 1] rd jsfVr /kkjk ds Iyx vkSj
dsñVhñ b.Mñ ikdZ] lsDVj 2]
lkWdsV vkmVysVl]
xkSjkb ikMk] okfyo]
olbZ iwoZ] ftyk iky?kj&401208
7-
7800006314
20@07@2015
ekLVj ¶ysDl dscYl
1100 oksYV rd dk;Zdkjh
Hkk ek 1554
IykWV lañ 23] losZ lañ 824 vaM 825
oksYVrk ds fy, ih oh lh
¼Hkkx 1½% 1988
fgLlk lañ 152] fnoku m|ksx uxj]
jksf/kr ¼Hkkjh M;wVh½ fo|qr dscy
laqnje lsaVªy Ldwy ds utnhd]
ekfge jksM
iky?kj& if'pe
ftyk& iky?kj & 401404
8-
7800006516
23@07@2015
ih,u,l bySfDVªy lksY;w'ku izkñ fyñ
?kjsyw vkSj leku iz;kstuksa ds
Hkk ek 3854
Øe lañ 6] IykWV lañ 13] liuk
fy, fLopas
% 1997
baMfLVª;y] bLVsV] Qsl 2] ljkoyh xkao]
fdycuZ ds ihNs]
fHkokaMh&302421& ftyk% Bk.ks
9-
7800006609
24@07@2015
csMeqFkk baMLVht izkñ fyñ
f'kjksifj isz"k.k iz;kstuksa ds fy,
Hkk ek 398
IykWV lañ bZ&1] ujnkuk ,evkbMhlh
,Y;wfefu;e pkyd&Hkkx &2]
Hkkx 2% 1996
Qst 2] o?kkMh [kqnZ
,Y;wfefu;e pkyd] tLrhd`r
f'ka/k [ksM+k /kqys&424054
bLikr izcfyr
[lañ dsUnzh; izek.ku foHkkx@13%11]
Vhñ dySok.ku] izeq[k ¼,e;wchvksµ bZbZbZ½
1
2
3
4
5
6
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4079
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARDS)
New Delhi, the 12th October, 2015
S.O. 1977.—In pursance of sub-regulation (5) of regulation 4 of the Bureau of Indian Standards (Certification)
Regulations, 1988, the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in the
following schedule:
SCHEDULE
Sl.
Licence
Grant
Name and address (factory)
Product
IS NO./Part/Sec Year
No.
No.
Date
of the party
1
2
3
4
5
6
1
7800005809
07/07/2015
Sanirang Investment & Trading
Plain copier paper
IS 14490:1997
Co. Ltd. Gala No. G-4. ground
floor, Krishna Complex, behind
Agrawal packers & movers,
Dapoda Anjur Road, Near
Manas Petrol Pump,
Bhiwandi - 421302, Distt: Thane
2
7800005910
07/07/2015
Sanirang Investment & Trading
Paper Computer
IS 127660:1997
Co. Ltd. Gala No. G-4. ground
floor, Krishna Complex, behind
Agrawal packers & movers,
Dapoda Anjur Road, Near
Manas Petrol Pump,
Bhiwandi - 421302, Distt: Thane
3
7800006011
07/07/2015
Darshak Industries
Plugs and socket outlets
IS 1293:2005
16, Singh compound,
of 250 volts and rated current
Jogeshwari (W)
up to 16 amperes
Mumbai-400102
4
7800006112
13/07/2015
Tirupati Fabricators Pvt,. Ltd.
Irrigation equipment-media
IS 14606:1998
J-22, MIDC
filters
Distt: Jalgaon
Maharashtra-425001
5
7800006213
13/07/2015
Tirupati Fabricators Pvt,. Ltd.
Irrigation equipment
IS 14743:1999
J-22, MIDC
Hydrocyclone filters
Distt: Jalgaon
Maharashtra-425001
6
7800006415
16/07/2015
G.M. Modular Pvt. Ltd.
Plugs and socket outles of
IS 1293:2005
(Unit-II) Survey No. 15/1,
250 volts and rated current
Bldg. No. 1, K.T. Indl Park,
up to 16 amperes
Sector II, Gaurai Pada, Valiv,
Vasai (E) - 401208
Distt: Thane
Maharashtra
7
7800006314
20/07/2015
Master Flex Cables
Pvc insulated (heavy duty)
IS 1554: Part 1:
Plot No. 23, Survey
electric cables: part 1 for
1998
No. 824/825, Hissa No. 12
working voltages upto and
Diwan Udyog Nagar, Near
including 1100 V
Sundaram Central School,
Mahim Road Palghar (W)
-401404 Distt: Thane
Maharashtra
4080
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
8
7800006516
23/07/2015
PNS Electric Solution Pvt. Ltd.
Switches for domestic and
IS 3854: 1997
Sr. No. 6, Plot No. 13, Sapna
similar purposes
Indl Estate, Phase 2, Sravali
Village, Behind Kilburn,
Bhiwandi-421302
Distt: Thane
Maharashtra
9
7800006609
24/07/2015
Bedmutha Industries Ltd.
Aluminium conductors for
IS 398: Part 2: 1996
Plot No. E, Nardana, MIDC,
overhead transmission
Phase-2, Waghadi Khurd,
purposes: Part 2
Shinde Kheda
Aluminium conductors,
Distt: Dhule
galvanized steel reinforced
Maharashtra-424054
[No. CMD/13:11]
T. KALAIVANAN, Head (MUBO-EEE)
ubZ fnYyh] 12 vDrwcj] 2015
dkñ vkñ 1978-—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e 1988 ds fofu;e 5 ds mifofu;e ¼6½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~}kjk vf/klwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gSa] os jn~n dj fn, x, gSa%—
vuqlwph
Øe la[;k
ykblsal la[;k
ykblsal/kkjh dk uke ,oa irk
yblsal ds varxZr oLrq@
jn~n djus dh frfFk
izde lEc) Hkkjrh; ekud dk 'kh"kZd
1
3950773
fu'kk izksMDVl
Hkkñekñ 3854% 1997
16@07@2015
86] esgrk b.MLVªh;y bLVsV]
?kjsyq vkSj lkeku iz;kstuksa ds fy, fLops
fycVhZ xkMZu 'X' jksM lañ 3] ekykM if'pe
eqacbZ&400064
[lañ dsanzh; izek.ku foHkkx@13%13]
Vhñ dySok.ku] izeq[k ¼,e ;w ch vks&bZbZbZ½
New Delhi, the 12th October, 2015
S.O. 1978.—In pursuance of sub-regulation (6) of regulation 5 of the Bureau of Indian Standards (Certification)
Regulations, 1988, the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given in the
following schedule have been cancelled with effect from the date indicated against each:
SCHEDULE
Sl.
Licence No.
Name and address of the licensee
Article/process with relevant
Date of cancellation
Indian standard covered by
the Licence
1.
3950773
Nisha Products
86, Mehta Indl. Estate, Liberty
Garden X Road No. 3, Malad
IS 3854: 1997
16/07/2015
West Mumbai-400064
Switches for domestic and
similar purposes
[No. CMD/13:13]
T. KALAIVANAN, Head (MUBO-EEE)
1
2
3
4
5
6
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4081
for ea=ky;
¼jktLo foHkkx½
¼dk;kZy; vk;qDr] dsUnzh; mRikn 'kqYd vk;qDrky;½
mn;iqj] 9 vDrwcj] 2015
lhek 'kqYd
lañ 01@lhek 'kqYd ¼,uñVh-½ ;wMhvkj@2015
dkñ vkñ 1979-—Hkkjr ljdkj] for ea=ky;] jktLo foHkkx]
ubZ fnYyh dh vf/klwpuk la[;k 33@94 lhek 'kqYd ¼,uñVh-½ fnukad
izFke tqykbZ] 1994 ds varxZr iznRr 'kfDr;ksa dk iz;ksx djrs gq, eSñ
lhñ dsñ tSu] vk;qDr] dsUnzh; mRikn 'kqYd] mn;iqj ,rn~}kjk jktLFkku
jkT; ds jktleUn ftyk] ukFk}kjk rglhy esa fLFkr xkao ekf.M;k.kk
dks lhek 'kqYd vf/kfu;e 1962 dh /kkjk 9 ¼1962 dh 52½ ds
varxZr 'krizfr'kr bZñvksñ;wñ LFkkfir djus ds mn~ns'; ls Hk.Mkj.k
LVs'ku ¼os;j gkmflax LVs'ku½ ?kksf"kr djrk gwaA
[Qk- lh- lañ iape¼bZvks;w½30@VhbZlh,p@;wMhvkj@02@2015]
lhñdsñ tSu] vk;qDr
MINISTRY OF FINANCE
(Department of Revenue)
(OFFICE OF THE COMMISSIONER, CENTRAL EXCISE)
Udaipur, the 9th October, 2015
CUSTOMS
No. 01/CUS (NT)/UDR/2015
S.O. 1979.—In exercise of the power conferred by
Notification No. 33/94 customs (NT) dated 1st July, 1994,
of the government of India, Ministry of Finance, Department
of Revenue, New Delhi, I C.K. Jain. Commissioner of Central
excise, Udaipur hereby Declare Village-Mandiyana, Tehsil-
Nathdwara, District-Rajsamand, in the State of Rajasthan
to be a Warehousing Station under section 9 of the customs
Act, 1962 (52 of 1962) for the Limited purpose of setting up
of 100% export oriented unit.
[F. C. No.V (EOU) 30/TECH/UDR/02/2015]
C.K. JAIN, Commissioner
okf.kT; vkSj m|ksx ea=ky;
¼vkS|ksfxd uhfr ,oa lao/kZu foHkkx½
ubZ fnYYkh] 9 vDrwcj] 2015
dkñvkñ 1980-—ljdkjh laifRr ¼vukf/kd`r vf/kHkksfx;ksa dh
csn[kyh½ vf/kfu;e 1971 ¼1971 dh 40½] dh /kkjk 20 ds lkFk
ifBr /kkjk 3 }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq,] dsanz ljdkj
,rn}kjk rRdkyhu fuekZ.k] vkokl rFkk vkiwfrZ ea=ky; dh la[;k
dkñvkñ 307 fnukad 28 tuojh] 1959 dh Hkkjr ljdkj dh
vf/klwpuk esa ljdkj ds jktif=r vf/kdkjh gksus ds ukrs] fuEufyf[kr
iz;kstuksa ds fy, laink vf/kdkj gksus ds fy, fuEufyf[kr la'kks/ku
djrh gS uker%—
2- mDr vf/klwpuk esa] rkfydk esaµ
¼d½ Øe la[;k 5 esa dkye 1 vkSj 2 dh izfof"V;ksa ds fy,]
fuEufyf[kr izfrLFkkfir fd;k tk,xk] uker%—
1
2
5-
lgk;d ued vk;qDr] dksydkrk
if'pe caxky jkT; esa vofLFkr ued foHkkx ds iz'kklfud fu;a=.k
vFkok
rFkk mM+hlk rFkk vka/kz izns'k jkT; ds gqEek ued ldZy ds lacaf/kr
fu;fer lgk;d ued vk;qDr] dksydkrk dh
ued v/kh{kd ds {ks=kf/kdkj dh LFkkuh; lhekvksa ds varxZr
vuqifLFkfr esa v/kh{kd] gqEek ued ldZy
ifjljA
4082
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
¼[k½ Øe la[;k 26 ds Hkkx ¼d½ rFkk Hkkx ¼[k½ esa dkye 1 rFkk 2 dh izfof"V;ksa ds LFkku ij fuEufyf[kr izfrLFkkfir fd;k tk,xk] uker%—
1
2
26¼d½ mi ued vk;qDr ¼eq[;ky;½] t;iqj
vFkok
eq[;ky; dk;kZy;] t;iqj esa rSukr ldk;d ued
jktLFkku] gfj;k.kk rFkk fgekpy izns'k jkT;ksa esa muds lacaf/kr
vk;qDr ¼iz'kklu½
{ks=kf/kdkj dh LFkkuh; lhekvksa esa vofLFkr ued foHkkx ds iz'kklfud
fu;a=.k ds varxZr vkus okys ifjlj
26 ¼[k½ (i) mi ued vk;qDr] psUubZ
(i) vka/kz izns'k rFkk rfeyukMq jkT;ksa esa muds lacaf/kr {ks=kf/kdkj dh
LFkkuh; lhekvksa esa vofLFkr ued foHkkx ds varxZr vkus okys ifjlj
vFkok
fu;fer mi ued vk;qDr] psUubZ dh vuqifLFkfr esa
vka/kz izns'k vkSj rfeyukMq jkT;ksa esa muds lacaf/kr
{ks=kf/kdkj ds laca/k esa dkdhukMk izHkkx esa rSukr
lgk;d ued vk;qDr; vkSj
¼[k½
fu;fer mi ued vk;qDr] psUubZ dh vuqifLFkfr esa
rfeyukMq jkT; esa muds lacaf/kr {ks=kf/kdkj ds laca/k esa
rqrhdksfju izHkkx esa rSukr lgk;d ued vk;qDr
(ii)
mi ued vk;qDr vgenkckn
(ii) xqtjkr, nho vkSj ne.k jkT; esa muds lacaf/kr {ks=kf/kdkj dh
vFkok
LFkkuh; lhekvksa esa vofLFkr ued foHkkx ds iz'kklfud
¼d½ fu;fer mi ued vk;qDr] vgenkckn dh
fu;a=.kk/khu ifjlj
vuqifLFkfr esa muds lacaf/kr {ks=kf/kdkj ds laca/k esa
tkeuxj izHkkx esa rSukr lgk;d ued vk;qDr; vkSj
¼[k½
fu;fer mi ued vk;qDr] vgenkckn dh vuqifLFkfr
esa muds lacaf/kr {ks=kf/kdkj ds laca/k esa xka/kh/kke]
xqtjkr esa rSukr lgk;d ued vk;qDr
[lañ 12016@1@2009&ued]
ujsanz dqekj] mi lfpo
fVIi.kh% izeq[k vf/klwpuk fnukad 28-01-1959 ds la[;k dkñvkñ 307 ds ek/;e ls tkjh dh xbZ Fkh vkSj blesa 26-02-2013 dks lañ dkñ vkñ 550
ds }kjk vafre :i ls la'kksf/kr fd;k x;k FkkA
MINISTRY OF COMMERCE AND INDUSTRY
(Department of Industrial Policy and Promotion)
New Delhi, the 9th October, 2015
S.O. 1980.—In exercise of the powers conferred by section 3 read with section 20 of the Public Premises (Eviction of
Unauthorised Occupants) Act 1971 (40 of 1971), the Central Government hereby makes the following amendments to the
Notification of the Government of India in the erstwhile Ministry of Works, Housing and Supply number S.O. 307 dated the
28th January, 1959, being Gazetted Officers of Government, to be Estate Officers for the purpose, namely:—
2. In the said notification, in the Table,—
(A) against serial number 5, for entries in columns 1 and 2, the following shall be substituted, namely:—
1
2
5.
Assistant Salt Commissioner,
Premises under the administrative
Kolkata
control of the Salt Department
or
situated in the State of West Bengal
Superintendent of Salt, Humma
and in the local limits of the
Salt Circle in the absence of
respective jurisdiction of
regular Assistant Salt
Superintendent of Salt, Humma Salt
Commissioner, Kolkata
Circle in the States of Odisha and
Andhra Pradesh.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4083
(B)
against part (a) and part (b) of serial number 26, for entries in columns 1 and 2, the following shall be substituted,
namely:—
(1)
(2)
26(a)
Deputy Salt Commissioner
Premises under the administrative
(Headquarters), Jaipur
Control of the Salt Department
or
situated in the local limits of their
Assistant Salt Commissioner
respective jurisdiction in the State
(Administration), posted in the
of Rajasthan, Haryana and
Headquarters Office, Jaipur
Himachal Pradesh
26(b)
(i) Deputy Salt Commissioner,
(i) Premises under the
Chennai
administrative control of Salt
or
Department situated in the local
(a) Assistant Salt Commissioner
limits of their respective jurisdiction
posted in Kakinda Division in
in the State of Andhra Pradesh and
respect of his respective jurisdiction
Tamil Nadu.
in the State of Andhra Pradesh and
Tamil Nadu in the absence of regular
Deputy Salt Commissioner, Chennai; and
(b)
Assistant Salt Commissioner posted in Tuticorin
Division in respect of his respective jurisdiction
in the State of Tamil Nadu in the absence of
regular Deputy Salt Commissioner, Chennai
(ii)
Deputy Salt Commissioner,
(ii) Premises under the
Ahmedabad
administrative control of the Salt
or
Department situated in the local
(a) Assistant Salt Commissioner
limits of their respective jurisdiction
posted in Jamnagar Division in
in the State of Gujarat, Diu and
respect of his respective jurisdiction
Daman.
in the absence of regular Depurty
Salt Commissioner, Ahmedabad; and
(b)
Assistant Salt Commissioner posted in
Gandhidham. Gujarat in respect of his respective
jurisdiction in the absence of regular Deputy Salt
Commissioner, Ahmedabad.
[No. 12016/1/2009-Salt]
NARENDER KUMAR, Dy. Secy.
Note:— The principal notification was issued vide No. S.O. 307 dated 28.01.1959 and was last amended vide No. S.O. 550
dated 26.02.2013.
Je ,oa jkstxkj ea=ky;
'kqf)&i=
ubZ fnYyh] 28 flrEcj] 2015
dkñvkñ
1981-—dsUnzh;
ljdkj
vkS|ksfxd
vf/kdj.k@Je U;k;ky; lañ 1] /kuckn }kjk lanHkZ la[;k 179@1997]
fnukad 01@05@2015 ds varxZr ikfjr iapkaV] dh vf/klwpuk fnukad
21@05@2015 dks vkf/kdkfjd jkti= esa izdkf'kr fd;k x;k FkkA
2 mijksDr iapkV ds i`"B l[a;k 2] vafre iSjk 10 dh f}rh;
iafDr esa ntZ deZdkj dk uke iznhi dqekj ds LFkku ij jktsUnz izlkn
i<+k tk ldrk gSA
[lañ ,y&22012@242@1992&vkbZ vkj ¼lh&II½]
jktsUnz flag] vuqHkkx vf/kdkjh
4084
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
MINISTRY OF LABOUR AND EMPLOYMENT
CORRIGENDUM
New Delhi, the 28th September, 2015
S.O. 1981.—The Award under Reference No. 179/
1997 dated 01.05.2015 passed by CGIT No. 1, Dhanbad
was published in the official gazette vide Notification dated
21.05.2015.
2. The name of the workman mentioned in the
aforesaid Award at page No. 2, last para No. 10 line No. 2 of
the Award may be read as Rajendra Prasad in place of
Pradeep Kumar.
[No. L-22012/242/1992-IR(C-II)]
RAJENDER SINGH, Section Officer
ubZ fnYyh] 8 vDrwcj] 2015
dkñvkñ 1982-—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;wlh,y ds
izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 64@2011½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 08@10@2015 dks izkIr gqvk FkkA
[lañ ,y&22012@24@2011&vkbZ vkj ¼lh,e&II½]
jktsUnz flag] vuqHkkx vf/kdkjh
New Delhi, the 8th October, 2015
S.O. 1982.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 64/2011)
of the Central Government Industrial Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure in the Industrial
Dispute between the management of WCL Pench Area
Praceya Distt. Chhindwara and their workman, received
by the Central Government on 08/10/2015.
[No. L-22012/24/2011-IR(CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/64/2011
Shri Bharat Singh,
General Secretary.
Samyukta Koyla Mazdoor Sangh,
Eklehra,
Chhindwara
...Workman/Union
Versus
Chief Manager,
WCL Pench Area
Parasieya, Distt. Chhindwara
...Management
AWARD
Passed on this 4th day of September 2015
1. As per letter dated 24.6.2011 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference in made to this Tribunal under
Section- 10 of I.D. Act, 1947 as per Notification
No. L-22012/24/2011-IR (CM-II). The dispute under
reference related to:
"Whether the action of the management of M/S
Western Coal Fields in terminating the service of
Shri Brugnath Tub Loader w.e.f. 19.1.2010 is legal
and justified? To what relief the workman concerned
is entitled to?"
2. After receiving reference, notices were issued to
the parties. Ist party workman failed to submit statement of
claim. Reference is proceeded without statement of claim
of workman on 16.2.2015. 2nd party management filed
exparte Written Statement w.r.t. the claim under dispute
2nd party submits that workman was posted as Tub at
Newton/Ganpati Mines, WCL. Pencha Area. He was
habitual absentee. Workman was given ample opportunity
to improve his conduct but no improvement was seen. The
attendance of workman from 2003 to 2009 was nil. Workman
was appointed on 2-8-92. Chargesheet was issued to
workman for unauthorized absence on 5-6-09. Workman
did not reply to the chargesheet. DE was conducted against
workman by Shri N.S. Rao, Enquiry Officer. Management
Representative was Mr. Bist. Management Representative
and workman were present in enquiry on 18-8-09. Workman
admitted charges against him. Secondly enquiry was closed.
Showcause notice was issued to workman on 25-9-09
alongwith copy of Enquiry Report. Workman was
terminated as per order dated 19-1-2010 for proved
misconduct of unauthorized absence.
3. Management also filed affidavit of evidence
supporting contentions in Written Statement, copy of
documents of enquiry are produced. As workman failed to
participate in reference proceeding, I find no reason to
disbelieve evidence of management's witnesses. For proved
misconduct of unauthorized absence, services of workman
are terminated. Therefore I hold that action of the
management is legal.
4. In the result, award is passed as under:—
(1) The action of the management of M/s. Western
Coal Fields in terminating the service of Shri Brugnath Tub
Loader w.e.f. 19-1-2010 is proper and legal.
(2) Workman is not entitled to any relief.
R.B. PATLE, Presiding Officer
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4085
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[lañ ,y&22012@7@2005&vkbZ vkj ¼lh,e&II½]]
jktsUnz flag] vuqHkkx vf/kdkjh
New Delhi, the 8th October, 2015
S.O. 1983.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 01/
2006) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Lucknow as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 08/10/2015.
[No. L-22012/7/2005-IR (CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT
RAKESH KUMAR
PRESIDING OFFICER
I.D. No. 01/2006
Ref. No. L-22012/7/2005-IR (CM-II) dated 31.01.2006
BETWEEN
The State Secretary
Bhartiya Khadya Nigam Karmchari Sangh
DC/3V, Vibhuti Khand, Gomti Nagar
Lucknow (U.P.)
AND
The Sr. Regional Manager
Food Corporation of India
DC/3V Vibhuti Khand, Gomti Nagar
Lucknow (U.P.)
AWARD
1. By order No. L-22012/7/2005-IR (CM-II) dated
31.01.2006 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947) referred
this industrial dispute between the State Secretary, Bhartiya
Khadya Nigam Karmchari Sangh, Lucknow (espousing
cause of Sri Mohd. Jafar, Asstt.) and the Sr. Regional
Manager, Food Corporation of India, Gomti Nagar, Lucknow
for adjudication.
2. The reference under adjudication is:
‘‘Whether the Action of the Management of Food
Corporation of India in Imposing Penalties upon Shri
Mohd. Jafar, Assistant is Legal and Justified? If not,
to what Relief the Workman is Entitled?"
3. The Karmchari Sangh in its claim statement A-7,
has stated in brief, that the opposite party served a charge
sheet dated 20.02.2004 upon the workman Mohd Jafar under
Regulation 60, Staff Regulation 1971, mentioning therein
that the storage loss percentage shown during the month
June 1999 and August 1999 were not justified, the workman
gave reply dated 21.02.2004 which was not considered in
accordance with law by the opposite party, and thereafter
punishment order dated 24.02.2004 was passed. Relevant
provisions of the Staff Regulation have been mentioned in
the claim statement.
4. It has further been stated in the claim statement
that it is evident from the impugned order dated 24.02.2004
that no reason has been recorded in the impugned order
while disagreeing with the reply dated 20.02.2004 of the
workman. Hence, it is evidently clear that opposite party
has not considred the reply of workman which is against
the principle of natural justice. The aforesaid mentioned
impugned order dated 24.02.2004 is also violative of
regulation 60 (1) (d) of the Staff Regulation as the opposite
party has not recorded a finding on each imputation of
misconduct or misbehaviour. It has not recorded as to how
it has come to conclusion that loss of 129.49.800 Qlts was
unjustified while rest has been justified. What were the
parameters for assessing storage loss for each factor/
reason? It has not given as to why opposite party has not
accepted the reasons given by the workman in his reply. It
has also not been clarified as to how he has justified the
penalty to recovery of Rs. 40000/- against the workman.
The impugned penalty effects the retirement benefits of
the workman which cannot be passed under regulation 60
of Staff Regulations 1971 in view of regulation 60(2) of the
Staff Regulations 1971. Hence, the impugned order suffers
from illegalities.
5. It is further stated that the opposite party has not
clarified the role of workman and other employee posted in
the depot in as such as connected with the charges. Hence,
the charges are vague. It is well settled that non recording
or reason in the punishment order is violative of natural
justice. The opposite party has given IInd charge sheet
no. Vig. 4 (1378)/RO-LKO/BLY/STL/2001/940 dated
01.05.2002 alleging the same charges of storage loss during
the period 8/98 & 9/98 at Bareilly. The workman has given
a detailed reply to the charge sheet dated 01.05.2002 vide
letter dated 06.06.2002. This was received by opposite party
4086
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
on 07.06.2002. The opposite party has not considered the
reply of the workman nor any reason has been recorded
and passed the impunged Order dated 16.02.2004 imposing
a penalty of recovery of Rs. 40672/- without giving any
finding on the imputation of misconduct and also not
supported the impunged order by any evidence on record
and also not given any reason for disagreement with the
reploy the workman. Hence, the impungned order is
violative of principles of natural justice and also of
regulations 60(1) (d) of the Staff Regulations 1971. The
impunged order is also violative of regulation 60(2) of the
Staff Regulations 1971 as the impunged effects the
retirement benefits. That the impunged order dated
16.02.2004 is liable to be set-aside. The opposite party has
given another charge sheet No. Vig.4 (1357)/RO-LKO/BLY/
SL/2003 dated 16.02.2004 alleging the similar charges as
alleged in earlier charge sheets without giving any detail of
the charges. The charges are vague. The workman
submitted reply dated 20.02.2004 which has not been
considered in accordance with law by opposite party and
passed impunged penalty order No. Vig. 4(1357)/RO-LKO/
BLY/SL/01/0550 dated 24.02.2004 imposing a penalty of
recovery of Rs. 15000/- without considering the reply of
the workman. The issues raised by the workman have not
been discussed in the impunged order, not given any finding
on the imputation of misconduct alleged in the charge sheet
as such impunged order dated 24.02.2004 is violative of
natural justice as well as regulation 60 (1) (d) of the Staff
Regulation. The opposite party has not recorded any reason
in the impugned order as to how he has come to conclusion
that 288.89.000 Qlts of storage loss was not justified and as
to how rest of the loss has been justified. Hence, the
impunged order is not speaking. The impunged order is
violative of regulation 60(2) as the same effects the
retirement benefits of the workman. The opposite party
has not clarified the role of workman and other employee
posted in the depot in as such as connected with the
charges. Hence, the charges are vague.
6. Karmchari Sangh further stated that the opposite
party has again issued illegal arbitrary charge sheet No.
Vig. 4 (1356)/RO-LKO/BLY/2001/2415 dated 11.01.2002
alleging the same charges of storage losses for 7/98 at
Bareilly depot. The workman submitted detailed reply to
the charge-sheet vide letter dated 12.02.2002 which has
not been considered by opposite party in accordance with
law and passed illegal arbitrary impugned order dated
03.05.2003 without assigning any reason. The opposite
party has also not given any reason for not agreeing with
the reply of the workman. The opposite party has imposed
penalty of recovery of Rs. 5745/- upon the workman. The
impugned order is violative of principles of natural justice.
It is also violative of regulation 60 (1) (d) of the Staff
Regulations 1971 as no finding to the imputation of
misconduct and misbehaviour has been given in the
impugned order dated 03.05.2003. The impugned order
dated 03.05.2003 is also violative of regulation 60 (2) of the
Staff Regulation 1971 as it effects the retirement benefits of
the workman. The workman was to be retired on 28.02.2004
and the charge-sheets dated 20.02.2004 and 16.02.2004 on
which the reply were sought after two days and within five
days without seeing the record as opposite party had to
decide the case prior to the date of retirement. While the
allegations pertained to the year 1998-99, the opposite party
has not given any reason for inordinate delay in issue of
the charge-sheet. Opposite party was waiting for the period
of retirement so that they may seek reply without giving
time. These proceedings are violative of natural justice.
7. Karmchari Sangh has alleged that all the 4 penalties
awarded are erroneous, illegal, arbitrary and violative of
natural justice. Request has been made to set aside the
impugned penalty dated 24.02.2004, 16.02.2004 another
order 24.02.2004 and 03.05.2005, request for refund of the
recovered amount along with interest @ 24% per annum
has also been made in the claim statement.
8. The management has filed written statement A-33
wherein it has been admitted the Mohd. Jafar, AG II (D)
was posted as FSD, C.B. Ganj, Bareilly, where he was
custodian of stock of various units, he has been retired
from the service of FCI w.e.f. 28.02.2004. The disciplinary
proceedings under regulation 60 of FCI (Staff) Regulation,
1971 were initiated against for abnormal storage loss. The
management has emphasized that the penalty order is well
reasoned and all the issues raised by the workman has
been considered in the penalty order. The main contentions
of the claim statement have been denied by the opposite
party and it is stated further that terminal benefits of the
workman have not been affected by the punishment order.
The disciplinary authority has considered all issues raised
by the workman and his reply, and well reasoned order has
been passed. The management has prayed that the
workman is not entitled for the relief claimed.
9. Thereafter rejoinder A-34 has been filed by the
Karmchari Sangh, reiterated the pleas taken in the claim
statement, with strong denial of the written statement.
10. The workman has filed certain documents along
with list C-8.
11. Sufficient opportunity was provided by my
learned predecessor and by me as well, several dates were
given, but none appeared on behalf of the workman, notice
through registered post was also sent to him. No evidence
in support of the claim statement was adduced before this
Tribunal. Consequently the management also did not
adduce any evidence.
12. When neither the workman nor his authorized
representative turned up to pursue their case on merits,
there left no alternative than to hear the arguments of the
authorized representative of the management alone and
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4087
reserve the file for award, keeping in view the long
pendency of the case since year 2006 and reluctance of the
workman's union to contest their case.
13. Heard learned authorized representative of the
Food Corporation of India and perused the entire evidence
on record.
14. The workman's union has come up with a case
that the workman has illegally been charged for alleged
storage loss and was punished with several recovery
penalty orders. The claim of the workman has been rebutted
by the management, justifying its action in issuance of
charge sheets for storage loss and consequent penalties
upon the workman.
15. It is well settled that if a party challenges the
legality of order, the burden lies upon him to prove illegality
of the order and if no evidence is produced by the party,
invoking jurisdiction of the court, must fail. In the present
case burden was on the workman's union to set out the
grounds to that the action of management of FCI towards
imposing the penalties upon the workman was unjust. It
was the case of the workman's union that the workman was
illegally been imposed various recoveries for alleged
storage losses. This claim of the workman's union had been
denied by the management by the way of filling a written
statement, accordingly, it was incumbent upon the
workman's union to lead evidence to prove its case that
the alleged in just was done to the workman concerned.
16. In the present case the workman's union has not
turned to substantiate its case by way of filing any oral
evidence. Mere pleadings are no substitute for proof. It
was obligatory on the part of workman's union to come
forward with the evidence in support of his pleading that
the workman had illegally been imposed with several
penalties; but the workman's union failed to forward any
evidence in support of its claim as it did not turn up after
filing rejoinder before this Tribunal. There is no reliable
material for recording findings that the alleged injustice
was done to the workman.
17. Accordingly, the reference is adjudicated against
the workman's union; and as such, I come to the conclusion
that the concerned workman, Mohamad Jafar is not entitled
to any relief.
18. Award as above.
LUCKNOW
23rd September, 2015.
RAKESH KUMAR, Presiding Officer
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New Delhi, the 8th October, 2015
S.O. 1984.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 06/2003)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Lucknow as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 08/10/2015.
[No. L-22012/89/2002-IR(CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT
RAKESH KUMAR
PRESIDING OFFICER
I.D. No. 06/2003
Ref.No. L-22012/89/2002-IR(CM-II) dated 09.10.2002
BETWEEN
Sri Rakesh Babu Sharma
2/328, Rashmikhand
Sharda Nagar
Lucknow (U.P.)
AND
1. The District Manager
Food Corporation of India
29 B.N. Road
Lucknow
AWARD
1. By order No. L-22012/89/2002-IR(CM-II) dated
09.10.2002 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by clause
(d) of sub-section (1) and sub-section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between Sri Rakesh Babu Sharma, Sharda
Nagar, Lucknow and the District Manager, Food
Corporation of India, Lucknow for adjudication.
4088
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
2. The reference under adjudication is:
‘‘Kya Bhartiya Khadya Nigam, Lucknow Dwarka
Sri Rakesh Babu Sharma S/o Sri Kailash Chandra
Shrma, Sticher Ko Dinak 20/23.08.2001 Ko
Naukari Se Nikala Jana Nyaochit Hai ? Yadi Naign,
to Karmkar Kisanutosh ka Adhkari Hai?"
3. In brief the workman has stated in the claim
statement A-7 that he was served upon a charge sheet
dated 30.06.1996, Sri S.A. Khan, AM (QC) was appointed
as enquiry officer to enquire into the charges but suddenly
he was replaced by Sri M.D. Katiyar. On 20.09.1997 the
date fixed by the enquiry officer Sri S.A. Khan, the workman
appeared there, later on Sri M.D. Katiyar fixed 12.07.2000,
and the workman appeared before him, copy of the
appointment order of Sri M.D. Katiyar was provided to him
on 12.07.2000.
4. The enquiry officer has never served upon the
applicant in person while he was present in the office nor
sent on the correct address. The applicant was always
ready and willing to appear in the enquiry but he was never
informed about the date of enquiry.
5. It has further been stated in the claim statement
that all the leaves mentioned in article-I of the charge sheet
having already been sanctioned by opposite party vide
office order no. A/1/PF (1284) dated 29.09.1997 which
indicates the period of leave alleged in the impugned order
has already been regularized. It is well settled that once the
penalty has been awarded for any alleged misconduct, no
other penalty can be awarded. It is a case of double
JEOPARDY as such the impugned order is illegal. The
alleged notice for attending enquiry has never received by
the applicant and as such he could not attend the enquiry
as such the entire enquiry proceedings are violative of
nature justice. It has further been alleged in the impugned
order that the applicant was absent w.e.f 13.02.1996 without
any intimation. This allegation is vague, as it has not given
any date up to which applicant was absent. It is totally
incorrect that the applicant was absent from 13.02.1996.
That the number of documents will prove that the applicant
was present on 13.02.1996 and onward. It has been alleged
that the applicant was absent in the enquiry on several
dates but the fact is remain that the notice to the applicant
was not given, as such question of appearance does not
arise. The entire proceedings were conducted in utter
violation of natural justice.
6. The workman has pleaded that copy of the enquiry
report was not served upon the workman, neither prior to
impugned penalty order no given with the penalty order,
otherwise the applicant could have clarified the position.
The applicant has alleged that the impugned order of
dismissal has been passed ignoring the principle of natural
justice and without application of mind. He was prayed to
set aside the impugned order dated 23.08.2001 and reinstate
with all consequential benefits including back wages etc.
7. The management has filed written statement A2-
11 wherein the allegations levelled in the claim statement
has been denied. The management has stated that the
workman was a habitual absconder and had also committed
misconduct, therefore, under Regulation 1971 charges were
framed, which pertained to his prolonged absence from
duty without any reasonable cause and secondly the
applicant disposed of immovable property financed by the
FCI and also acquired immovable property without previous
sanction and knowledge of the competent authority. On
enquiry both the charges were found proved. After
adequate opportunity the penalty orders of dismissal were
imposed upon the workman which was proportion of the
ate to the guilt of the workman. The opposite party has
further stated that the applicant has only challenged part
other charges in the penalty order dated 20/23.08.2001.
8. The management has emphasized that the workman
was habitual absconder and has been remaining on leave
without information or on sufficient grounds. The applicant
was absent on various dates up to 09.02.1996, he was again
absent from duty w.e.f. 13..02.1996 without any sufficient
cause or information. The opposite party has alleged that
the workman concealed material facts from this court and
initially departmental proceedings were initiated against
him under FCI (Staff) Regulation 1971, minor penalty of
stoppage of the one increment without cumulative effect
was also imposed earlier.
9. The opposite party has further stated that the
applicant in the present case has been imposed penalty of
dismissal from services against the willful absence from
duty from 13.02.1996 as also for acquiring and disposing of
immovable property without prior information and
permission from competent authority. Thus, the punishment
imposed were for willful acts and misconduct on different
period, the question of 'Double Jeopardy' is not applicable
and is misconceived averments. It is submitted that the
applicant was absent from duty w.e.f 13.02.1996. The
applicant was not only informed about all the disciplinary
proceedings but was also acquitted with them. The
applicant was served with memorandum dated 30.10.1996
which was duly received by him on 01.09.1997. The
applicant after receiving the aforesaid memorandum
submitted his reply dated 05.09.1997 denying the charges
and also was present in the disciplinary proceedings before
the Enquiry Officer Sh. S.A. Khan on 20.09.1997 as is
apparent from the order sheet of the disciplinary
proceedings dated 20.09.1997. That on account of the death
on Enquiry Officer Sri S.A Khan, Sri M.D. Katiyar was
appointed Enquiry Officer as per procedure in vogue to
carry on the enquiry. The applicant preferred a letter dated
12.07.2000 addressed to the Enquiry Officer Shr. M.D.
¹Hkkx IIó[k.M 3(ii)º
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4089
Katiyar to these objections and the order sheet dated
12.07.2000 of the Disciplinary proceedings to these
objections which clearly reveals that the claimant was not
only well versed and informed with the enquiry
proceedings, but has also attended the same on 12.07.2000
and sought adjournment. The aforesaid documents clearly
reveal that the applicant was duly informed about the
enquiry proceedings and has also initially attended them
and even informed about 27.07.2000 being fixed as next
date.
10. The applicant thereafter even failed to appear
before the enquiry proceedings as also for duty w.e.f.
01.08.2000 as such notice dated 16.08.2000 was sent by the
enquiry officer to the claimant for attending upon the
enquiry proceedings and next date was fixed as 26.08.2000
failing which the case was to be disposed of ex-parte. That
the claimant despite notice again failed to appear as such
again registered notice was sent for dated fixed on
08.09.2000. That despite of repeated notices when the
claimant failed to appear in disciplinary proceedings as
also in the office, notice was even published in daily
newspapers. That despite repeated notices the applicant
abstained from duty even failed to appear before the
Enquiry Officer in disciplinary proceedings without any
sufficient cause. Thus the applicant is himself responsible
for such willful acts and omission on his part despite
adequately informed. When the applicant remained absent
from duty again after 01.08.2000 and also failed to appear
before the Enquiry Officer, the enquiry officer submitted
his report, the opposite party further sent the memorandum
dated 18/19.04.2001 along with enquiry report to the
applicant calling upon him to make representation if any.
11. It has also been pleaded in written statement that
thus the applicant was not only informed and acquainted
throughout with disciplinary proceedings but was also
afforded adequate opportunity at a possible time, rather
the applicant failed to attend or give reply or reasonable
causes for this absence. It is worth mentioning that the
opposite party even notified the penalty order in daily
newpapers. It is submitted that as the applicant was absent
from duty w.e.f 13.02.1996 and continued to remain absent
without either information or assigning any reasons despite
repeated reminders from the opposite party. The
disciplinary proceedings were initiated against him vide
memo dated 30.10.1996 and even then the applicant has
remained absent from duty and as there were no information
as to how long the applicant will remain absent as such it
was not possible in the memo and charges dated 30.10.1996
to give any date up to which the applicant was absent as
till then he had failed to attend the duties. It is submitted
that the applicant remained absent from duty willfully and
without assigning any reasons w.e.f 13.02.1996 and was
even asked to join duties vide telegram dated 21.06.1996
and reminder through letter dated 27/28.06.96 & 15.07.96
when despite repeated letters and informations the applicant
filed to report for duties and remained absent, the opposite
party published notice in Daily Newspapers on 3rd Sept.
1996 and 4th Sept., 1996. That despite repeated reminders
the applicant examined was absent from duty w.e.f
13.02.1996 and for which punishment has been imposed as
along with other charges. It is submitted that the applicant
was informed and acquainted with the disciplinary
proceedings as also the enquiry proceedings, rather it was
the applicant who despite having full informations had
abstained himself on various occasions without any
explanation. The applicant was served with the
memorandum dated 30.10.1996 which was duly received
by him on 01.09.1997. The applicant was informed about
the enquiry proceedings and was even present on
20.09.1997. Again on 12.07.2000 the applicant not only
preferred a letter but also appeared before the enquiry
officer as is apparent from the perusal of the order sheet
filed and was informed about the next date. The applicant
thereafter failed to appear before the disciplinary
proceedings. The opposite party thereafter issued a notice
and even published the same in daily Newspaper. Thus
despite notices and information about the Enquiry
proceedings the applicant failed to appear thereafter, for
the reasons best known to him. Thus the applicant himself
was negligent and responsible for non-appearance before
the enquiry proceedings although being well acquainted
with it, thus there being no violation of any natural justice
as all opportunities were afforded to the applicant.
12. It is further submitted in written statement that
the applicant was afforded all opportunities from the very
inception of disciplinary proceedings till the passing of
the penalty order. The applicant was duly informed about
the enquiry proceedings and thereafter through publication
in newspaper. That once the enquiry report was received,
the opposite party vide registered letter dated 13/19.04.2001
sent the enquiry report and also called for representation
from the applicant. Thus it is wrong to state that no enquiry
report was served upon the applicant. The opposite party
thus afforded opportunity prior to the passing of the
penalty order dated 20/23.8.2001, and even further published
the order in Newspaper also. It is submitted that the
applicant was a habitual absentee from duty and despite
warnings and minor penalty imposed had been keeping
the habit of willful prolonged absent from duty. Besides he
has failed to seek permission or inform the competent
authorities towards sale and purchase of immovable
properties also. Considering the gravity of charges and
the fact that the applicant had failed to maintain absolute
integrity, devotion to duty, the disciplinary authority due
and appropriate opportunity to the applicant and
appreciating the evidences on record and facts of the case
and application of mind. The punishment being
proportionate to the seriousness of the charges leveled
against the workman for utter violation of regulation 31, 32
& 48 of the FCI (Staff) Regulations 1971. The management
4090
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
has requested to reject the claim statement along with
special cost in favour of the management.
13. Rejoinder A1-12 has also been filed by the
workman wherein the main contends of the written
statement have been denied strongly and reiterated the
pleas taken in the claim statement.
14. The opposite party has filed certain documents
along with written statement A-11. List of documents C-20
annexing therein certain documents has been filed by the
workman. The management has submitted copy of the
comprehensive enquiry proceeding along with application
C-25.
15. The management examined Sri Babu Lal as
management witness, he was duly cross-examined on behalf
of the workman.
16. The Tribunal vide its order dated 07.11.2005
observed as under:
^^Jfed }kjk vius vfHkdFku esa dgk x;k gS fd foHkkxh;
tkap dk;Zokgh U;k; ds uSlfxZd fl)karksa dh vogsyuk djrs
gq, dh xbZ rFkk bUdokjh fjiksVZ dh izfrfyfi mls miyC/k ugha
djkbZ xbZA
vr% mDr fcUnq ij mHk; i{k viuh lk{; 25-1-2006 dks
izLrqr djsa**A
Accordingly the parties were called upon to examine
their witnesses, in support of their rival contentions over
the veracity of the departmental inquiry. The workman was
afforded several opportunity for the same; but he refrained
and finally on 15.06.2006, the authorized representative of
the workman refused to examine its witness with
endorsement that "Enquiry file FCI }kjk Qkby dh tk pqdh gS
vr% mlds vk/kkj ij QSlyk djus dh d`ik djsaA**] resultantly,
the management was called upon to adduce its evidence,
thereafter the date was fixed for arguments.
17. The case got adjourned on several dates at one
pretext or the other and in the mean time the authorized
representative got expired. The workman was issued notices
to appear before this Tribunal and contest his case but he
did not bother to pay any heed to the notices. Accordingly,
the argument of the authorized representative of the
opposite party was heard on preliminary issue as well on
merit, keeping in view the reluctance of the workman to
contest his case and long pendency of the case since year
2003.
18. The workman in his written argument has
contended that at the initial stage of inquiry he participated
but on one of the intermediate dates no inquiry was held
and thereafter he was not informed of the dates of the
inquiry and the inquiry officer conducted ex-parte inquiry.
He has also asserted that he was not supplied with the
documents demanded by him for his effective defence.
Likewise, he was neither given copy of the inquiry report
nor the Disciplinary Authority issued any show-cause
notice before passing punishment order which caused
prejudice to him and was in violation of principles of natural
justice.
19. In rebuttal the authorized representative of the
management has defended the departmental inquiry
conducted by the management of the FCI. He has submitted
that the workman had been afforded all reasonable
opportunity to defend himself during the inquiry and there
is no violation of any principle of natural justice. The
punishment was imposed after having the charges proved
against the workman and the punishment order as per Rules,
thus, the domestic inquiry was fair and proper and findings
of the inquiry officer are not perverse and the same is liable
to be upheld.
20. Having gone through the rival contentions of the
parties, it is evident that the workman had been participating
in the departmental inquiry up to 12.07.2000 and next date
was fixed for 27.07.2000; but the workman did not turn up.
The workman alleged that the management did not inform
him of date; but simultaneously he himself also failed to
approach the management for getting next date of inquiry.
The management has filed photocopies of several public
notices published in the newspapers; but the workman
even then did not turn up. This goes to show the indifferent
attitude of the workman towards the proceedings which
were going on against him.
Moreover, the workman failed to prove his
contentions before this Tribunal that he was not afforded
proper opportunities of self defence by not examining his
witness in support of his pleadings. On the contrary, the
management has well proved its case by filing documentary
as well as oral evidence that the workman was adequately
informed of the departmental proceedings and its outcome.
It was the workman who did not turn up even after several
notices by post as well through publication in the
newspapers. The management witness in his cross-
examination stated that the absence of the workman led to
ex-parte inquiry against him.
21. Thus, from the facts and circumstances of the
case and the discussions made hereinabove I am of the
considered opinion that the departmental proceedings were
conducted in accordance to the principles of natural justice;
and accordingly the preliminary issue framed vide order
dated 07.11.2005 is decided in favour of the management
and against the workman.
22. Now this Tribunal has to look into another aspect
of the case and that is to look upon the fact that the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4091
punishment imposed upon the workman is proportionate
or not. In Joseph Solomon vs. Presiding Officer, Labour
Court, U.P. Dehradun & another 2012 (134) FLR 424 it
has been observed that the Labour Court has ample power
under section 11-A of the I.D. Act to substitute a lesser
punishment, taking into consideration the facts and
circumstances of the case. The principle of proportionality
calls for interference of this Court into the punishment
imposed by the management i.e. of dismissal/removal if it
is harsh or excessive in comparison to the misconduct
committed by the workman.
23. The management has argued that the Court
cannot sit in appeal or it cannot re-appreciate the evidence
relied before Inquiry Officer; in as much as it cannot alter
the order or punishment. It was submitted that the scope
of invoking the powers given under Section 11 A of the
Act, by the Labour Court is confined to the condition that
the Court should interfere with the order of punishment
when it is disproportionate with respect to the misconduct
committed or it is so harsh as to shock the conscience of
the Court. It has further been argued that in the instant
case the workman was given charge sheet for habitual
absence and the workman during the course of departmental
inquiry also remained absent which led to ex parte inquiry
against him. Also, he did not appear before this Tribunal to
prove his statement of claim, which goes to prove he case
of the management the workman was habitual absentee
and was rightly been imposed with the punishment of
dismissal, therefore, there is no scope for this Tribunal to
interfere with the punishment imposed upon the workman.
The management has further submitted that the
workman being habitual absentee, was given various
warnings earlier but he did not mend his ways accordingly
the departmental inquiry was instituted and was punished
for his proved misconduct. It has also been submitted that
continuation of such an employee may lead to indiscipline
in overall administration.
24. I have given my thoughtful consideration to the
contentions of the authorized representative of the
management and perused the record and the case laws
relied on by the management.
25. In the instant case the workman was charge-
sheeted with the allegation of habitual unauthorized
absence. The inquiry and its findings are being upheld by
this Tribunal, holding that the disciplinary enquiry was
conducted in accordance with the principles of natural
justice that the findings of the Enquiry Officer were not
perverse'. Hence, after decision of the preliminary issues in
the favour of the management, the only thing left for
consideration of this Tribunal is check as to whether the
punishment imposed upon workman is disproportionate, if
so, this Tribunal should interfere into it within the
provisions providing under Section 11 A of the Industrial
Disputes Act, 1947.
26. Hon'ble Apex Court in B.C. Chayurvedi v. Union
of India, (1995) 6 SCC 749 while discussing about the
scope of judicial review, in disciplinary matters, has
observed as under:
"The High Court/Tribunal, while exercising the
power of judicial review, cannot normally substitute
its own conclusion on penalty and impose some
other penalty. If the punishment imposed by the
disciplinary authority or the appellate authority
shocks the conscience of the High Court/Tribunal,
it would appropriately mould the relief, either
directing the disciplinary/appellate authority to
reconsider the penalty imposed, or to shorten the
litigation, it may itself, in exceptional and rare
cases, imposed appropriate punishment with cogent
reasons in support thereof."
In DG, RPF vs. Sai Babu (2003) 4 SCC 331, Hon'ble
Apex Court has observed that:
"6.....Normally, the punishment imposed by a
disciplinary authority should not be disturbed by
the High Court or a tribunal except in appropriate
cases that too only after reaching a conclusion that
the punishment imposed is grossly or shockingly
disproportionate, after examing all the relevant
factors including the nature of charges proved
against, the past conduct, penalty imposed earlier,
the nature of duties assigned having due regard to
their sensitiveness, exactness expected of an
discipline required to be maintained, and the
department establishment which the delinquent
person concerned works."
In United Commercial Bank vs. P.C. Kakkar (2003)
4 SCC 364 Hon'ble Apex Court on review of a long line of
cases and the principles of judicial review of administrative
action under English law summarized the legal position in
the following words:
"11. The common thread running through in all
these decisions is that the court should not interfere
with the administrators' decision unless it was
illogical or suffers from procedural impropriety or
was shocking to the conscience of the court, in the
sense that it was in defiance of logic or moral
standards. In view of what has been stated in
Wednesbury case the court would not go into the
correctness of the choice made by the administrator
open to him and the court should not substitute its
decision to that of the administrator. The scope of
judicial review is judicial review is limited to the
deficiency in decision-making process and not the
decision.
12. To put it differently, unless the punishment
imposed by the disciplinary authority or the
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
appellate authority shocks the conscience of the
court/tribunal, there is no scope for interference.
Further, to shorten litigation it may, in exceptional
and rare cases, impose appropriate punishment by
recording cogent reasons in support thereof."
In Union of India vs. S.S. Ahluwalia (2007) 7 SCC
257 Hon'ble Supreme Court reiterated the legal position as
follows:
"8. ......... The scope of judicial review in the matter
of imposition of penalty as a result disciplinary
proceedings is very limited. The court can interfere
with the punishment only if it finds the same to be
shockingly disproportionate to the charges found
to be proved."
In State of Meghalaya v. Mecken Singh N. Marak
(2008) 7 SCC 580 Hon'ble Supreme Court Stated that:
"The punishment imposed by the disciplinary
authority or the appellate authority unless shocking
to the conscience of the court, cannot be subjected
to judicial review.
27. Hon'ble Apex Court in Administrator, Union
Territory of Dadra and Nagar Haveli vs. Gubhia M. Lad
(2010) 2 SCC (L&S) 101 has observed that
"The Legal position is fairly well settled that while
exercising the power of judicial review the High
Court or a Tribunal cannot interfere with the
discretion exercised by the disciplinary authority,
and/or on appeal the appellate authority with
regard to the imposition of punishment unless such
discrition suffers from illegality or material
procedural irregularity or that would shock the
conscience of the court/tribunal. The exercise of
discretion in imposition of punishment by the
disciplinary authority or appellate authority is
dependent on host of factors such as gravity of
misconduct, past conduct, the nature of duties
assigned to the delinquent responsibility of the
position that the delinquent holds, previous penalty,
if any, and the discipline required to be maintained
in the department or establishement he works.
Ordinarily the court or the tribunal would not
substitute its opinion or reappraisal of facts.
28. In the instant case the workman, was charge-
sheeted with the allegations that he was regular habitual
absentee from the duty. There is a series of absenteeism
i.e. for 156 days in the year 1993, 145 days in the year 1994
for 169 days in the year 1995 and for 40 days w.e.f. 01.01.1996.
However, the workman was issued charge-sheet dated
30.10.1996 for his absence since 13..02.1996. From perusal
of the inquiry proceedings it is evident that the workman
participated in the inquiry up till 12.07.2000 and thereafter
he did not appeared before the inquiry in spite of serveral
public notices were published in the local newspapers.
The workman repeated his similar conduct before this
Tribunal as he did not appear before this Tribunal for years
and not even after two registered notice, which were issued
on the address given in the reference order as well as in the
statement of claim filed by the workman himself. The above
conduct of the workman shows his reluctance and habit of
being absent arbirtarily without any reasons or due approval
of the competent authority.
Hon'ble Andhra Pradesh High Court in M. Vijaya
Ram vs. P.O., Labour Court and others 1989 (58) FLR
313 upheld the order to termination for habitual absence
from duty even after several warning being given for
absence but with no result.
Here too there is ample evidence on record to show
that the workman had been in a habit to remain absent
without any proper application or prior permission of the
Competent Authority which is highly objectionable, from
administration point of view.
29. Hon'ble Apex Court in (2011) 1 Supreme Court
Cases (L&S) 721 has observed that:
"7. It is now well-settled that the courts will not act
as an appellate court and reassess the evidence led
in the domestic enquiry, nor interfere on the ground
that another view is possible on the material on
record. If the inquiry has been fairly and poperly
held and the findings are based on evidence, the
question of adequacy of the evidence or the reliable
nature of the evidence will not be grounds for
interfering with the findings in departmental
enquiries. Therefore the courts will not interfere
with findings of fact rcorded in departmental
inquiries, except where such findings are based on
no evidence or where they are clearly perverse. The
test to find out perversity is to see whether a tribunal
acting reasonably could have arrived at such
conclusion or findings, on the material on record.
The courts will however interfere with the findings
in disciplinary matters, if prinicples of natural
justice or statuory regulations have been violated
or if the order is found to be arbitrary, capricious,
mala fide or based on extraneous considerations."
30. In the instant case, the charge of habitual
unauthorized absence was found to be proved and
principles of natual justice were properly observed while
conducting the departmental inquiry; and also the findings
of the Inquiry Officer were not found to be perverse.
Therefore, under the facts and the circumstances and
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4093
considering the laws, there is no justification in interfering
with the punishment imposed upon the workman by the
Disciplinary Authority for proved gross misconduct of
'habitual unauthorized absence'. Accordingly, the workman,
Shri Rakesh Babu Sharma, is not entitled for any relief.
31. Award as above
LUCKNOW RAKESH KUMAR, Presiding Officer
23rd September, 2015.
ubZ fnYyh] 8 vDrwcj] 2015
dkñvkñ 1985-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QlhvkbZ 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 165@1997½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 08@10@2015 dks izkIr gqvk
FkkA
[lañ ,y&22012@358@1996&vkbZ vkj ¼lh&II½]
jktsUæ ¯lg] vuqHkkx vf/kdkjh
New Delhi, the 8th October, 2015
S.O. 1985.—In pursunace of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 165/997)
of the Cent.Govt.Indus.Tribunal-cum-Labourt Court No. 1,
Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 08/10/2015.
[No. L-22012/358/1996-IR(C-II)]
RAJENDER 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. 65 of 1997.
Employer in relation to the management of Food
Corporation of India, Patna
And
Their wokmen
Present: -Sri Ranjan Kumar Saran,
Presiding Officer
Appearances:
For the Employers
:-
Shree S.N. Goswami,
Advocate
For the workman
:-
Shree V. Kumar, Rep.
State : Bihar
:-
Industry :- Food
Dated 27/8/2015
AWARD
By Order No. L-22012/358/1996-IR (C-II), dated,
8/09/1997, 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 the FCI Executive Staff,
Patna for regularisation of service of Shri Ganesh
Jha and Smt. Badami Devi is legal and justified? If
so, to what relief are the workers entitled and from
which date.’’
2. This Case is received from the Ministry of Labour
& Employment on 03.10.997. After receipt of reference, both
parties are noticed. The Sponsoring Union files their written
statement on 02.07.1998 and the management files their
written statement-cum-rejoinder on 01.0.999. Two witnesses
examined on behalf of the management but one witness
examined on behalf of the workman. Document of workman
marked W-1 to W-8, But no document marked by the
management.
3. The short point to be decided in this case whether
the casual employee will be regularised as class-IV employee
or not.
4. The case of the workman is that the concerned
workmen were employed on daily rated basis and
designated as casual employee but they were performing
the duty of regular class-IV employee of the corporation.
There was no difference in between the duty of the
concerned workman and the regular class IV workmen of
the corporation but they were paid minimum wages much
less in comparison to the wages and benefits of regular
class IV wokman. The concerned workman was entitled to
get same and similar wages of a regular class IV employee
and in terms of HQ circualr dt. 6/5/87. The concerned
workmen are entitled for their regularisation, so the action
of the management in not allowing same wages is quite
illegal and unjustified.
5. The case of the management that, and it is
submitted in written statement that the concerned workman
was engaged as casual labour from time to time at FCI
office of Kishanganj to perform misc. jobs like sweeping
and cleaning the floor of the office as well as for dusting
the table and chairs and they were also required to supply
drinking water as and when required.
6. It is also submitted by the management that they
were never engaged as class IV employee to perform the
jobs of watchman or messenger/peon etc. as they were
never engaged against any permanent vacant post of class-
IV employees they can not demand for absorption as class
4094
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
IV employee.
7. On perusal of the record it reveals that three
persons claims for regularisation, out of them one Sri Om
Prakash Verma has already been regularised though Sri
Ganesh Jha is still working as casual employees, has not
been regularised.
8. The MW-2 is Depot incharge at Kishangunj, in his
cross-examination said that three casual labours were
working namely Om Prakash Verma, Smt. Badami Devi and
Ganesh Jha.
9. The MW-1 states in his cross-examination, that
the concerned workman was working at Kishanganj during
my period. The workman was paid as per the bill passed by
the District Office. He also proved Ext. W-7 and it is signed
by the then Depot incharge. Kishanganj where the
concerned workmen worked as per Ext. W-7 the concerned
workman was engaged since Feb. 1986. He also said that,
in FCI Ex-gratia is only paid to the regular employee.
10. Ext. W-3 series, which is the bill of Ex-gratia from
1995 to 2001 given in regular basis to concerned workmen
which is signed by many officers. These documents proved
that the concerned workman have been working
continuously for more than 90 days in FCI in a calendar year.
11. Letter No. Gen 13. (32)/Misc/93-94 dated 27.5.1994
of Food Corporation of India, District Office, Purnea, marked
as W-5 which has been proved that the concerned workman
Sri Ganesh Jha was engaged from 01.02.86 and Smt Badami
Devi was engaged from 01.01.86 i.e. before 6/05/87, by the
circular of FCI. This circular is meant that the casual,
temporary, daily or any type of workman who worked 90
days continuously in a calendar year is entitled to be
regularised.
12. It is not understood why the casual employee
who was worked for years together has not been regularised
though there is two circular of FCI management issued on
06.05.1987 marked as Ext. W- another circular of FCI dated
09.09.1996 circular No. 38/1996 Ext. W-8 but the workmen is
left over regularisation is to be taken up.
13. Considering the facts and circumstances of this
case, I hold that the demand of the FCI Executive staff
Union. Patna for regularisation of services of Sh. Ganesh
Jha and Smt. Badami Devi is legal and justified. Hence the
workman Sri Ganesh Jha be regularised as regular employee
of the FCI against the vacant post of class-IV immediately
or create post and regularized him from the date of reference.
But as per MW-1 Smt. Badami Devi the concerned workman
who was working in the similar post has died in the
meantime, therefore she be given monetary benefits as
regular employee from the date of receipt of reference by
this Tribunal till her death. It is seen that the management
adopted dilatory practice to stall the proceedings by
approaching Hon'ble High Court and also delayed the
hearing before this Tribunal.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 12 vDrwcj] 2015
dkñvkñ 1986-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj eSsllZ LVhy
vFkkfjVh vkWQ bafM;k fyfeVsM] vkj,eMh 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;] dksydkrk ds
iapkV ¼lanHkZ lañ 36@1998½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 06-10-2015 dks izkIr gqvk FkkA
[lañ ,y&29012@73@1998&vkbZvkj¼,e½]
uohu diwj] voj lfpo
New Delhi, the 12th October, 2015
S.O. 1986.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 36/1998)
of the Central Government Industrial Tribunal Cum Labour
Court, Kolkata now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s Steel Authority of India Ltd. RMD and
their workman, which was received by the Central
Government on 06.10. 2015.
[No. L-29012/73/1998-IR(M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 36 of 1998
Parties:
Employers in relation to the management of
Steel Authority of India Ltd., RMD
AND
Their workmen
Present: Justice Dipak Saha Ray,
........Presiding Officer
Appearance:
On behalf of the :
Mr. L.K. Paul, Ld.Counsel,
Management
On behalf of the :
Mr. A. Bhadury, Authorised
Workmen
representative.
State
: West Bengal
Industry: Steel
Dated: 18th September, 2015
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4095
AWARD
By order No. L-29012/73/98/IR(M) dated 18.09.1998
and Corrigendum of even number dated 04.03.1999 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 adjudications:
"Whether the action of the management of Raw
Material Division, Steel Authority of India Ltd.
Calcutta, in terminating the services of Shri Om
Prakash Ojha, Khalashi, Gr. II. w.e.f. 19.07.1991 is
just and fail? If not, to what relief the concerned
workman is entitled?"
2. Record reveals that soon after receiving the instant
order of reference dated 18.09.1998 from the Ministry, the
parties to this reference were given opportunities to adduce
evidence both oral and documentary and after hearing
argument of both the parties an Award was passed on
07.05.2002.
3. Being aggrieved by and dissatisfied with the said
Award, both the parties filed separate Writ Petition before
the High Court, Calcutta. But both the writ petitions were
disposed of with a direction to this Tribunal for fresh
adjudication of the reference. Accordingly the parties were
again given further opportunities to adduce evidence and
to make argument. Accordingly, the parties adduced
evidence and proved documents. Thereafter on hearing
argument of both the parties and after considering the
evidence on record the instant reference has now been
adjudicated.
4. the union in its statement of claim has stated as
follows:
The concerned workman was appointed by M/s.
Steel Authority of India Ltd., Bokaro Steel Plant as Khalashi
Grade-II on 02.06.1990 and was deployed to work in the
Mine at Jairam Nagar/Belakothar prospecting camp,
Madhya Pradesh and since then his service was regulated
by the Raw Material Division of the SAIL. It is stated that
besides Steel Plant, the Steel Authority of India is also the
owner of different mines situated at different places in India.
For smooth functioning of the administration and the
business, the Steel Authority of India established one
division known as Raw Material Division in order to control
the mines under it. the Head Office of that Division is at
Kolkata. It is further stated that the workman who renderded
service for more than 240 days, was illegally removed from
service w.e.f. 19.07.1991 without observing the mandatory
provisions of Section 25F of the Industrial Disputes Act,
1947 and also violating the terms and condition of the
tripartite settlement dated 15.01.1991 and the agreement
dated 21.08.1990. According to the union other two workmen
namely Noor Alam and P. Khandula who were junior to the
concerned workman, were posted at Jairam Nagar.They
were also terminated along with him (i.e. concerned
workman) and subsequently they were reappointed. But
the case of the workman was ignored in violation of Section
25G of the Act. It is also alleged he was not offered any
alternative employment on the ground that there was
closure of the establishment at Jairam Nagar/Belakothar,
though the management subsequently appointed as many
as 500 persons at Kiriburu and Meghataburu without
exploring the legal provisions and ignoring the rule of
natural justice and fair play. It is further contended that he
himself as well as through the union made several
representations before the management for his
reappointment, but in vain. Accordingly, the industrial
dispute was raised. Hence this reference.
5. The management has opposed the case of the
union by filing written statement contending, inter alia,
that one camp was started by Bokaro Steel Plant at
Belakothar/Jairamnagar in Madhya Pradesh to ascertain
the depoit of minerals in that area and for starting the said
camp some persons including Om Prakash Ojha, the
concerned workman, were appointed purely on casual
basis. Appointment letter dated 01.06.1990 was issued in
favour of the concerned workman mentioning that the basis
of employment should be casual for the post of Khalasi,
Grade-II and daily wage was fixed at Rs. 54.58 and the
duration of employment was 89 days. It is contended that
the workman accepted the terms and condition of the
appointment letter and joined at the aforesaid camp on
18.06.1990. It is further stated that the management closed
down the said prospecting camp as no viable deposits
were found in the area and accordingly, the employment of
the concerned workman was terminated vide letter dated
19.07.1991. In that letter the workman was requested to
collect all his dues as per the terms and condition of the
appointment letter-meaning thereby that after observing
all legal for malities the workman was terminated. It is further
alleged that after joining the employment the workman
worked 89 days and thereafter he was provided work on
different times whenever his service as casual worker was
needed. But he was never in service beyound 89 days at a
stretch and never worked beyond 240 days during his entire
service period i.e., from 01.06.1990 to 19.07.1991. It is alleged
on behalf of the management that there was no violation of
tripartite settlement as the said settlement was signed by
the management of Bokaro Steel Plant and their union after
formation of Raw Material Divison which is a separate unit
and its management is different to that of the management
of Bokaro Steel Plant. It is further alleged that the
termination of service of the concerned workman is not
illegal or improper or unfair as the same was made after
observing all formalities of law. Accordingly it is prayed
that the reference may be answered in the affirmative.
6. In this case the union examined two witnesses and
proved five (five) documents (Exhibits W-01 to W-05).
4096
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
Similarly management has examined two witnesses and
proved eight (8) documents (Exhibits M-01 to M-08).
7. It is argued on behalf of the management that this
Tribunal at Kolkata has no jurisdiction to adjudicate the
instant reference as the concerned workman was appointed
and also terminated by Bokaro Steel Plant, Madhya
Pradesh.
8. But admittedly the workman was appointed for
working at prospective camp under Raw Material Divison
of SAIL whose Head Office was situated at Kolkata. It
further appears from the oral evidence of WW-02 that there
was no permanent postal address of any prospective
camps. The said camps were under control of Kolkata Head
Office of Raw Material Division of the SAIL. The said
witness also stated that salary and wages of the employees
of those camps were paid according to the sanction and/or
approval of the Head Office at Kolkata. During cross-
examination no suggestion was put to the witness denying
the said oral testimony.
9. considering the above facts and circumstances it
appears that the argument as advanced on behalf of the
management has no merit as the workman used to work
under the control and supervision of the Head Office of
Raw Material Division of SAIL which situates at Kolkata.
10. In this case there is no controversy that after
termination of the workman, more than 500 persons were
recruited to work as Khalasi at Kiriburu and Meghataburi.
There is also no dispute that other two terminated workmen
namely Noor Alam and P. Khandula, who were on the same
footing with the concerned workman, were reappointed
subsequently.
11. The controversy mainly relates to the question
as to whether the concerned workman was in continuous
service as per the provision of Section 25F of the Act.
12. It is the case of the workman that during his tenure
he worked continously and uninterruptedly for more than
240 days.
13. Admittedly the workman was appointed on the
basis of appointment letter (Ext. M-02). Thereafter his
service was extended several times (Exts. M-01 to M-03).
Ext. W-05 issued by the management also goes to show
that the workman worked for more than 240 days during
his service period. In this connection it is desirable to
mention that the witness namely Shri Nirmalendu
Chattopadhyay (WW-02) has proved the photo copy of
the document marked Ext. W-05 by stating that "...........It is
a part of administrative file on the representation made by
the workman concerned and in this connection noting was
made by officials and myself on the aforesaid date........."
But the management raised objection at the time of admitting
the said document (Ext. W-05) in evidence. It was
contended that the original document was not available.
But it was not specifically stated that the said document
was forged or manufactured. From the evidence of WW-02
it further appears that the said document was signed by
D.G.M. (P. & A) and C.P.M., Shri Ojha along with the witness
(WW-02)... The management did not attempt to examine
D.G.M. (P & A) and C.P.M. to establish that the signatures
appearing on the document were not their signatures. In
view of the above facts and circumstances there is no reason
to disbelieve the document marked Ext. W-02.
14. Now on careful perusal of the order of termination
(Ext. W-03) it appears that the workman was asked to collect
his dues and pay for notice period as per terms of the
appointment letter (Ext. W-02). Ext. W-02 goes to show that
notice period is 15 days. Considering the said documents
viz. Exts. W-02 and W-03 with reference to the provision of
Section 25F of the Act and also the observation of the
Bombay High Court Reported in 1992 (65) FL 977 and 2001
(89) 375 it appears that the management did not comply
with the provision of Section 25F of the Act at the time of
terminating the workman from service.
15. In this case, it is not the case of the management
that before appointing the said 500 persons as Khalasis or
before appointing the said two workmen namely Noor Alam
and P. Khandula, the concerned workman was offered the
job as per the provision of Section 25H of the Act.
16. In view of the above facts and circumstances it
appears that the claim of the union/workman is legal and
justified and accordingly the instant reference is answered
in the negative.
17. Admittedly the prospective camp of the Raw
Material Division of SAIL at Jairam Nagar was closed
down. But it is not the case of the management that the
Raw Material Division has also been closed down and that
there is no post of Khalasi in that Division. Accordingly,
the concerned workman is entitled to be abssorbed in the
Raw Material Division of the Steel Authority of India in the
post of Khalasi Grade II.
18. Considering further the facts and circumstances
and since the workman has not worked in Raw Material
Division after his termination it appears that justice would
be best served if the concerned workman is entitled to get
half wages for the period from the date of his termination to
the date of his re-employment.
19. Award is passed accordingly.
JUSTICE DIPAK SAHA RAY, Presiding Officer
Dated, Kolkata,
The 18th September, 2015
ubZ fnYyh] 12 vDrwcj] 2015
dkñvkñ 1987-—vkSn~;ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj esllZ ;wjsfu;e
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4097
dkiksZjs'ku vkWQ bafM;k fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkSn~;ksfxd fookn esa dsUnzh;
ljdkj vkSn~;ksfxd vf/kdj.k ,oa Je U;k;ky;&1] /kuckn ds iapkV
¼lanHkZ la[;k 32@2000½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
06@10@2015 dks izkIr gqvk FkkA
[lañ ,y&42012@9@1999&vkbZ vkj ¼,e½]
uohu diwj] voj lfpo
New Delhi, the 12th October, 2015
S.O. 1987.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 32/2000)
of the Central Government Industrial Tribunal/Labour
Court-1, Dhanbad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s Uranium Corporation of India Ltd. and
their workman, which was received by the Central
Government on 06/10/2015.
[No. L-42012/9/1999-IR(M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL
NO. 1, BHANBAD
In the matter of reference U/s. 10 (1) (d) (2A) of I.D. Act.
1947.
Reference: No. 32/2000
Employer in relation to the management of Uranium
Corporation of India Ltd.
AND
Their workmen
Present: Shri R.K. Saran
Presideing Officer
Appearances:
For the Employers:
Shri P.R. Rakshit Advocate
For the workman.:
None
State: Jharkhand
Industry:- Uranium Mines
Dated 4/9/2015
AWARD
By order No. L-42012/9/99/IR (M) dated 12.01.2000
the central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section (2A) of section 10 of the
Industrial Disputes Act, 1947 referred the following dispute
for adjudication to this Tribunal:
‘‘Whether the action of the management of Uranium
Corporation of India Ltd, Jadugoda in witholding
two increment of Shri R.K. Verma is justified? If
not, to what relief the workman is entitled?"
2. After receipt of the reference both parties are
noticed.But appearing for certain dates, none appears
subsequently. Case remain pending. It is felt that the
disputes between the parties have been resolved in the
meantime. Hence pass a No disputed Award is passed.
Communicate to the Ministry.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 12 vDrwcj] 2015
dkñvkñ 1988-—vkS|ksfxd fookn vf/kfu;e 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj esllZ
bafM;u vkW;y dkiksZjs'ku fyfeVsM ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkSn~;ksfxd fookn esa
dsUnzh; ljdkj vkSn~;ksfxd fookn esa dsUnzh; ljdkj vkSn~;ksfxd
vf/kdj.k ,oa Je U;k;ky;] dkuiqj ds iapkV ¼lanHkZ la[;k
08@2012½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks 06@10@2015 dks
izkIr gqvk FkkA
[lañ,y&30012@15@2009&vkbZ vkj ¼,e½]
uohu diwj] voj lfpo
New Delhi, the 12th October, 2015
S.O. 1988.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 08/2012)
of the Central Government Industrial Tribunal/Labour
Court, Kanpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s Indian Oil Corporation Limited and
their workman, which was received by the Central
Government on 06/10/2015.
[No. L-30012/15/2009-IR(M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
BEFORE SHRI SHUBHENDRA KUMAR, HJS,
PRESIDING OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOR COURT,
KANPUR
Industrial Dispute No. 08/2012
In the matter of dispute between-
Shri Bhawar Singh,
S/o Sri Ram Prasad,
C/o Sri P K Tiwari, Auth. Repr.,
96/196, Old Ganesh Ganj,
Lucknow. UP.
4098
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
And
The Exective Director,
Indian Oil Corporation Limited,
Mathura Refinery, Mathura
AWARD
1. Central Government vide notification No. L-30012/
15/2009 (IR(M) dated 14.10.09, has referred the following
dispute for adjudication to this tribunal.
2. Whether the action of the management of Indian
Oil Corporation, Mathura Refinery, Mathura, in terminating
the service of Sri Bhawar Singh, Tech. Gr-2, vide order
dated 30.11.2005, is legal and just? If not what relief the
workman is entitled to and from what date?
3. It may be pointed out here that the present
reference was referred to Central Government Industrial
Tribunal cum Labour Court, Lucknow, but in compliance of
order dated 07.03.2011 of the Hon'ble High Court of
Judicature at Allahabad, the Ministry of Labour, Government
of India, New Delhi, Dated 20.12.2011, transferred the
proceedings in this tribunal from CGIT cum Labour Court,
Lucknow.
4. The instant case file was received in the office of
the Tribunal and vide order dated 03.02.12, the case was
registered a fresh and new case no. 08/12 was allotted and
registered notices were sent to the contesting parties from
the office of tribunal on 16.02.2012, fixing further
proceedings on 23.03.2012.
5. It is needless to mention here that while the
proceedings were pending before the CGIT cum LC,
Lucknow, the workman has already filed his claim petition
seeking relief mentioned in the relief column of the claim
petition. The opposite party has filed their reply on 20.04.12,
and the claimant was directed to file rejoinder and
documentary evidence by 05.06.2012.
6. It is pertinent to mention here that after the claim
petition was filed by the workman he stopped attending
the proceedings of the case either before CGIT, Lucknow,
or before this tribunal and ultimately on his behalf his
authorized representative put up his apparance in the case
on 31.07.2013 and moved application supported with
affidavit praying therein to recall order dated 23.07.2012,
where by the worker was debarred from filing rejoinder and
documents.
7. After moving of the above application neither the
worker nor his representative appeared in the case.
8. Now coming on the merit of the case it may be
mentioned here that it is a common ground for that of the
management after detecting theft of diesel from Mathura
Tundla Pipe Line, the workman was issued charge sheet/
suspension order by the opposite party on 14.11.2003, for
violating certain provisions certified standing orders. Upon
considering the reply dated 08.12.2003, submitted by the
claimant against the charge sheet, it was decided by the
opposite party to hold a regular departmental inquiry and
accordingly Sri V K Shukla and Sri R S Chauhan, were
nominated as enquiry officer and presenting officer
respectively. Enquiry into the charges against the claimant
commenced from 31.03.2004 and closed on 02.09.2014 by
the enquiry officer. Where after enquiry officer directed
the claimant as well as presenting officer for submitting
their respective written briefs.
9. The enquiry officer after evaluating the oral as
well as documentary evidence filed by the contesting parties
submitted its inquiry repor dt. 28.02.2005. The claimant
submitted his representation against the inquriy report on
25.04.2005, and by order dated 06.05.2005, the inqury was
reopened by Chief Maintenance Manager, and accordingly
the claimant was informed by the enquiry officer about
reopening of the inquiry and the second inquiry proceeding
exhausted by the enquiy officer and he submitted a revised
inquiry report dated 20.09.2005, yet again the claimant was
granted opportunity to submit his representation against
revised inquiry report and he responded on 20.10.2005
and after considering the representation of the claimant
finally the workman was dismissed from the service of the
company by order dated 30.11.2005. The claimant preferred
an appeal against the order of dismissal before the appellate
authority on 14.12.2005, in which the appellate authority
comfirmed the order of the disciplinary authority dated
30.11.2005, vide order dated 12.01.2006.
10. Thereafter the claimant raised an industrial dispute
challenging the action of the management which is under
consideration before this tribunal.
11. The claimant in his claim statement has assailed
the action of the management on a number of grounds viz.,
he was appointed by the opposite party on 16.05.81 as
labour Grade-2; that considering the efficiency of the
claimant he was given promotion by the opposite party at
the post of Technician Gr.-2, Claimant has admitted that he
was having 21 bighas of land in Aganpura Gaon; that he
has further admitted that he was issued charge sheet for
some serious misconduct on his part by Maintenance
Manager; that he was placed under suspension with ill
motive and he was being prevented from his working; that
he was deprived from his effective defence in the inquiry
inasmuch as he requested to engage a legal practitioner in
his defence as he is not able to nominate his defence
representative which was rejected by the management;
claimant has also stated that he produced his witnesses
before the enquiry; he also claimed that he was falsely
inculpated in the present misconduct; he goes on to state
that he could not present his case effectively before the
inquiry as he was not permitted to appoint his defence
person of his choice and no information in this regard was
ever communicated to him by the management; that no
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4099
copies of the documents going to the root of the charges
were ever supplied to him by the enquiry officer; that the
disciplinary authority did not apply his proper mind to the
representation submitted by him against the reply to the
enquiry report and as such the conclusion drawn by the
enquiry officer is non-est in the eye of law; and he has also
challenged the action of the opposite party which are not
necessary to be mentioned here.
12. Based on the above pleadings it has been prayed
by the claimant that the action of the management in
dismissing him from service be held illegal and unfair and
he be directed to be reinstated in the service with full back
wages, continuity of service and with all consequential
benefits.
13. The opposite party in their reply has pleaded that
the claimant has rightly been charge sheeted as he had
committed misconduct of grave nature; that inquiry against
him was held adhering the principles of natural justice and
rules governing the disciplinary action; that the enquiry
officer has submitted his report with open eyes, open mind
and after well discussing the evidence brought on record
of inquiry by the claimant, therefore, the findings recorded
by the enquiry officer is well reasoned without there being
any perversity or bias against the claimant; that the claimant
in his claim petition has not brought any new facts;
considering the report of inquiry, the claimant was rightly
dismissed from the service of the management for his
proved misconduct and in this way he was given
punishment commensurating the with the gravity of proved
misconduct.
14. In the last it has been prayed that the claimant
has committed misconduct of serious nature and does not
deserves for any kind of leniency at the hands of this
tribunal. The claim of the claimant is liable to be rejected
being devoid of merit.
15. As observed in foregoing paragraphs of this
award the claimant neither has appeared in the case nor
adduced any evidence in support of his claim and moreover
his applicaticn for recalling of order dated 23.07.12, was
also rejected in default of the claimant by this tribunal vide
order dt. 17.01.2014. As such it would be safely concluded
that the claimant deliberately and willingly did not avail the
opportunities made available to him by the tribunal and he
failed to prove his case by adducing acceptable evidence
in support of his case. The tribunal in the facts and
circumstances of the case has no hesitation in holding that
the claimant from the very initial stage was least inclined to
contest the case, hence it is held that the claimant has not
adduced any evidence in support of his claim before the
tribunal.
16. On the other hand the opposite party apart from
filing documents pertaining to the inquiry proceedings has
also led oral evidence on affidavit of one Sri Vikas Garg as
M.W.1, who was produced by the management in the
witness box for his cross examination by the other side but
since none was present from the side of claimant on
15.04.2014, opportunity to cross the witness of the
management by the claimant was closed.
17. In this way that opposite party has successfully
proved their case by adducing documentary as well as oral
evidence before the tribunal.
18. For the reasons recorded above, it is held that the
workman has absolutely failed to prove his case before the
tribunal and on the other hand the opposite party has
established his case beyond ail reasonable doubt.
19. Therefore, it is held that the claimant is not entitled
for any relief pursuant to the reference order and the
reference is decided against him and in favor of the opposite
party.
SHUBHENDRA KUMAR, Presiding Officer
ubZ fnYyh] 12 vDrwcj] 2015
dkñvkñ 1989-—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj esllZ ykbZQ
ba';ksjsal dkiksZjs'ku vkWQ bafM;k 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;] pSUubZ ds iapkV ¼lanHkZ
la[;k 74@2014½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks 06@10@2015
dks izkIr gqvk FkkA
[lañ,y&17012@119@2014&vkbZvkj ¼,e½]
uohu diwj] voj lfpo
New Delhi, the 12th October, 2015
S.O. 1989.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 74/2014)
of the Central Government Industrial Tribunal/Labour Court,
Chennai now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of M/s Life Insurance Corporation of India
and their workman, which was received by the Central
Government on 06/10/2015.
[No. L-17012/119/2014-IR (M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT
CHENNAI
Friday, the 18th September, 2015
Present : K.P. PRASANNA KUMARI
Presiding Officer
4100
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
Industrial Dispute No. 74/2014
(In the matter of the dispute for adjudication under clause
(d) of sub-section (1) and sub-section 2(A) of Section 10 of
the Industrial Disputes Act, 1947(14 of 1947), between the
Management of LIC of India and their workman)
BETWEEN
Sri P. Vetrivel Murugan
: 1st Party/Petitioner
AND
The Senior Divisional Manager
: 2nd Party/
Life Insurance Corporation of
Respondent
India Divisional Office,
"Jeevan Prakash" Bridge Station
Road, P.B. No. 16, Sellur
Madurai-625002
Appearance:
For the 1st Party/Petitioner
:
M/s R. Malaichamy,
Advocates
For the 2nd Party/Respondent
:
Sri C.K.
Chandrasekkar,
Advocate
The Central Government, Ministry of Labour &
Employment vide its Order No. L-17012/119/2014-IR (M)
dated 03.09 2014 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
‘‘Whether the action of the Management of Life
Insurance Corporation of India, Bathlagunda Branch
in terminating the services of Sri P. Vetrivel Murugan
is justified?" If not, to what relief the applicant is
entitled to?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 74/2014 and issued notice 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 had initially entered into the
Respondent Corporation on 30 10.1990 in Bathlagundu
Branch. He had been continuously working in the said
branch upto 10.10.2013 as Sweeper as well as Peon. He was
paid wages for his work. The petitioner used to attend the
work of water carrier and sweeper from 06.00 AM to 09.00
AM. He also used to work as Peon from 09.00 AM till
closure of the Branch on each working day. The petitioner
has put in more than 20 years service. He had submitted
representations to regularize his service in Class-IV cadre,
but his request was not considered. As per the order of the
Supreme Court dated 18.01.2011 in the case of Anil and
Others the Respondent issued application for regularization
of those who had completed more than 5 years as on
18.01.2011. The petitioner had submitted his application
for the written test. However, he was not issued any Call
Letter. Persons similarly placed were permitted to appear
for the test and most of them were appointed on regular
basis in the service of the Respondent. The petitioner was
not allowed to appear for the written test stating that he
was above 25 years of age at the time when he joined the
Respondent. The circular dated 27.11.1979 prescribing age
limit is not a statutory recruitment rules but only an
instruction. Apart from this, it is applicable for direct
recruitment only. Age relaxation can be granted to the
petitioner for regularization of his service since he has put
in more than 20 years of service as on 18 01.2011 The
petitioner is entitled to be regularized in service. An order
may be passed directing the Respondent to reinstate the
petitioner in service with backwages and all other attendant
benefits and also to regularize the service of the petitioner
by giving age relaxation.
4. The Respondent has filed Counter Statement
contending as below:
The claim of the petitioner is not maintainable. The
petitioner was not engaged as Peon as claimed by him, but
was only engaged as a Coolie to do certain petty works in
the office from 01.12.1990. Coolie charges were paid to him
for cleaning, dusting and upkeep works in Bathlagundu
Branch depending upon the necessity. It is denied that it
was continuous and his employment was regular. The
petitioner did not satisfy the eligibility criteria as per the
scheme framed under the approval of the Supreme Court
and so his application was not considered, The petitioner
has no right to claim absorption in permanent post. It is
incorrect to state that the circular dated 27.11.1979 is not
binding on the petitioner. The petitioner's casual
engagement was terminated based on the orders of the
Apex Court dated 18.01.2011 where the scheme for
absorption of eligible candidates was laid down. As the
petitioner did not come under the criteria for consideration
his claim is not maintainable. The representation of the
petitioner has been considered and the inability to accede
to his request for regularization has been conveyed to him
by letter dated 27.08.2013. The petitioner is not entitled to
any relief.
5. The evidence in the case consists of oral evidence
of WW1 and MWs 1 and 2 and documents marked as Ext.
W1 to Ext. W22 and Ext. M1 to Ext. M3.
6. The points for consideration are:
(i) Whether the action of the Respondent in
terminating the service of the petitioner is
justified?
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4101
(ii) What, if any, is the relief to which the petitioner is
entitled?
The Paints:
7. The petitioner has raised the dispute claiming
reinstatement, continuity of service, back wages and other
benefits and also regularization. The petitioner has claimed
that he has been working with the Respondent from
30.10.1990 and was doing the work of Water Carrier, Sweeper
and Peon. According to him, he had been working
continuously with the Respondent and had worked for
more than 20 years in the Respondent establishment.
8. It is not disputed by the Respondent that the
petitioner was working under it. However, the case of the
Respondent is that the petitioner was working as a coolie
to do certain petty works and was paid coolie charges as
and when he worked and he never worked as Peon.
9. In view of the contradictory contention raised it is
necessary to decide what was the nature of work done by
the petitioner. The petitioner has got into the witness box
and has stated that he was actually working as Peon itself.
The Respondent itself has issued a temporary employment
certificate to the petitioner on 02.06.2011 in the wake of the
Supreme Court order, to enable him to apply for a permanent
post in the Respondent establishment. In this the
petitioner's period of employment as temporary employee
is shown to be from 01.12.1990 to till date. The duration of
employment is shown as 20 years, 1 month and 17 days. So
it is very clear from the Certificate issued by the Respondent
itself that the petitioner had worked for more than 20 years
with the Respondent by June 2001 at which time the
certificate was issued. In Ext.W5 dated 22.10.2012 giving
the details of employment of the petitioner he is shown as
Peon on daily wages working from 30.10.1990. In Ext.W5,
the document of the same kind dated 08.04.2013 he is shown
as Sweeper on daily wages. Ext.W21 contains payment
receipts in respect of the petitioner for the period from
March 2012 to September 2013. In these receipts, of course,
the payment made is described as wages for cleaning and
maintenance of office buildings and bringing drinking water
to the office. However, on going through these receipts it
could be seen that the petitioner was continuously engaged
and that payment was being made mostly every week and
at a specific rate as could be deciphered from the payment.
For example for the period from 16.07.2012 to 21.07.2012
Rs. 1500/- is seen paid. This is for 6 days. Receipts of other
payments are also of such specific nature though the
payment is described as wages for arranging work. So it is
very much clear that the petitioner was being engaged
regularly and his service was utilized for the work of
Sweeper and Peon. The case of the Respondent that the
engagement was only on need basis to do certain petty
works could not be accepted. The petitioner seems to have
been a part and parcel of the Bathlagundu Branch of the
Respondent from 30.10.1990 until he was disengaged, based
on the order of the Apex Court.
10. The case of the Respondents is that application
was called for from the temporary workers, a written
examination was conducted and those who were found
eligible were given permanent appointment in the
Corporation. Those other persons who did not fit in the
scheme were turned out of service on 31.08.2013. According
to the Respondents the petitioner who was not eligible to
apply for the test had ceased to be in employment
consequent to the scheme approved by the Apex Court. It
is the case of the Respondents that the petitioner is not
entitled to claim reinstatement.
11. The counsel for the petitioner has been mainly
relying upon the decision of the apex court in Tamil Nadu
terminated full time temporary LIC Employees Association
vs. LIC of india and others in Civil Appeal No. 6951/2009
and other appeals to advance the case of the petitioner. In
this the Apex Court has found that the temporary employees
concerned are entitled to reinstatement and permanency.
In the above decision the Apex Court had found that even
though the Corporation had entered into a compromise
with some of the workers it will not affect the right of the
workmen concerned to claim relief under the earlier national
awards existing since those awards were not set aside even
after the compromise. It has also been observed that in any
case the compromise will not affect the rights of the parties
to claim statutory benefits under the Industrial Disputes
Act.
12. The counsel for the Respondents has pointed
out that Civil Appeal Nos. 6951/2009 and connected appeals
were de-tagged by the Apex Court while considering Ext.M1
cases since the issues involved in those cases were
different from the cases considered in Ext.M1 order. On
going through Ext.M1 it could be seen that such a
representation was made and it is accordingly those appeals
were de-tagged. The workmen involved in the above
appeals were discharging work of perennial nature against
permanent posts. It could be seen from the decision that
there was an earlier award applicable to the parties and a
compromise was entered into by the Corporation with some
of the Unions while a case was pending. In Civil Appeal
Nos. 6951/2009 and other cases it has been held that the
direction given to the Corporation as per the Award
regarding other workmen who were parties to the case and
had not entered into a compromise has not been substituted
by the terms and conditions of the compromise. It is pointed
out by the counsel for the Respondents that it is in this
background the decision has been rendered.
13. The counsel for the Respondents has referred to
two earlier decisions of the Apex Court that has held that
the provisions of the ID Act is not applicable to the workers
of the Corporation. Reference was made to the decision in
M. Venugopal vs. The Divisional Manager, lic of india
4102
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
reported in 1994 2 SCC 323. In this the Apex Court has
considered Sub-Section 2(C) of Section-48 which has been
incorporated in LIC Act by amendment. Section-48 of the
Act provides that the Central Government may make rules
to carry out the purposes of the Act. The rules may provide
for terms and conditions of the service of the employees.
As per Clause (cc) the regulations and other provisions in
force immediately before the commencement of the
Amendment Act with respect to the terms and conditions
of the service of the employees shall be deemed to be the
rules made under Clause (cc) as per Clause-2(A). Clause-
2C of the same section states that the provisions of Clause
(cc) and Sub-section 2B and any rules made there under
shall have effect notwithstanding any judgment, decree or
order of the any Court, Tribunal or other authority and
notwithstanding anything contained in the Industrial
Disputes Act or any other law, agreement, settlement, award
or other instrument. Referring to these provisions it was
held in Venugopal's case referred to above that the wisdom
of the legislature in extending the protection of the
provisions of Industrial Disputes Act or denying the same
cannot be judged by the Courts unless any such step is
held to be violative of any of the provisions of the
Constitution. After the amendment introduced to Section-
48 the employees of the Corporation shall not be entitled
to protection to which they were entitled before coming
into force of the amendment, though till then it was upto
them to impose the rights or remedies in terms of the
regulation so framed under the Corporation Act or in
accordance with the provisions of the Industrial Disputes
Act, it has been held. The counsel for the Respondents
has also referred to the decision A.V. Nachane Vs union of
India reported in AIR 1982 SC 1126 in this respect. In the
above case it has been held that Section-48 (2C) read with
Section-48 (2cc) authorized the Central Government to make
rules to carry out the purpose of the Act notwithstanding
the Industrial Disputes Act or any other law, which meant
that in respect of the matters covered by the rules, the
provisions of the Industrial Disputes Act or any other law
will not be operative. The grievance raised in the case that
excluding the employees of the Corporation from the
purview of Industrial Disputes Act amounted to
discrimination against them and as such the provisions of
the amending act were violative of Article-14 of the
Constitution were also rejected by the Apex Court. The
counsel has also referred to the decision of the Apex court
in LIC OF INDIA VS. ASHA RAMCHAND AMBEDKAR
reported in 1994 2 SCC 718 where it was held that the
instructions issued by the Chairman of the Corporation
exercising his powers under the regulations framed under
the Act were statutory in character and they have the force
of law. Based on the decision of the Apex Court after
acceptance of the scheme the Corporation had issued
several instructions on the basis of which the petitioner
and such others had ceased to be in employment. It has
been argued that the instructions are not statutory in
character though the regulations are. It was in this context
the above decision was relied upon. Thus the three bench
decision of the Apex court in the case earlier referred to
had held that Industrial Disputes Act will not apply to
those employees coming under the LIC Act and its rules
and regulations. The recent decision of the Apex Court in
favour of the temporary employees of the Corporation were
rendered in the context already referred to. Those employees
were fighting their case even while the cases under Ext. M1
were pending and those were treated separately and decided
separately in the background referred to above. So the
decision in the above case could not be applied to the
facts of the present case.
14. The counsel for the petitioner has been
contending that the petitioner having put in almost 20 years
of service is entitled to the benefit of the dictum laid down
by the Apex Court in Uma Devi's case. He has pointed out
that the Apex Court has permitted persons who had worked
about 10 years to be regularized. However, that was only in
cases where workman were working against sanctioned
posts. In the present case there is no contention that the
petitioner was working on a sanctioned post. He was just
continuing as a temporary worker, though he had worked
for several years. So the dictum laid down in Uma Devi's
case in applicable to the present case.
15. There is no case for the Respondents that any
notice, notice pay or compensation were given as required
under Section-25F of the ID Act when the petitioner was
terminated. The counsel for the Respondent has pointed
out that in the absence of application of Industrial Disputes
Act there is no necessity to comply with Section-25F of
the Act also. He has referred to the decision of the High
Court of Kerala in LIC of India Vs. Usha Kumari and others
in Writ Appeal 2362/2009 in this respect. The High Court
has referred to the decision of the Apex Court wherein the
provisions of the Industrial Disputes Act were found
inapplicable to the employees of the Life Insurance
Corporation and has held that the provisions contained in
Section-48(2C) of the LIC Act would override the Industrial
Disputes Act and so termination of the employees cannot
amount to retrenchment as provided under Section-2(oo)
of the Industrial Disputes Act attracting Section-25F of the
Act. It was a natural consequence, the Apex Court having
found that Industrial Disputes Act is not applicable to those
coming under the Life Insurance Corporation Act. This
being so, the petitioner would not be entitled even to the
benefit under Section-25 F of the Act. The termination of
the petitioner was the consequence of the order of the
Apex Court accepting the scheme for providing employment
to eligible workmen who were working as temporary
employees of the Corporation. Those who did not fit in
with the scheme had to meet the consequence. The
petitioner had also applied for participating in the
examination conducted as per the scheme. He did not satisfy
the prescribed age criteria at the time he started to work
¹Hkkx IIó[k.M 3(ii)º
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4103
with the Respondent. It is accordingly he happened to be
eliminated and ceased to be in employment. The fact that
the petitioner has applied for the examination would also
show that he had accepted the verdict of the Apex Court
and had submitted to the same. He has decided to raise the
dispute only after his application was rejected. So the
petitioner will not be entitled to any relief.
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
:
WW1, Sri P. Vetrivel
Murugan
For the 2nd Party/Respondent :
MW1, Sri R.
Nandakumar
MW2, Sri S. Srinivas
Purushan
Documents Marked:
On the side of the Petitioner
Ex.No.
Date
Description
Ext.W1
27.11.1979
Circular by LIC, Central Office
Ext.W2
29.04.1983
Transfer Certificate
Ext.W3
20.05.2011
Letter of Executive Director
(Personnel)
Ext.W4
02.06.2011
Temporary employment certificate
to the cadre of Peon
Ext.W5
30.09.2012
Pay-Slip
Ext.W6
31.03.2013
Pay-Slip
Ext.W7
27.08.2013
Order of Manager of the
Respondent
Ext.W8
10.10.2013
Petition to Assistant Labour
Commissioner, Madurai
Ext.W9
09.11.2013
Representation
Ext.W10 13.11.2013
Reply to Assistant Labour
Commissioner, Madurai by the
Respondent
Ext.W11 25.11.2013
Reply to Assistant Labour
Commissioner, Madurai by the
Respondent
Ext. W12 02.12.2013
Rejoinder in Ref. No. 45/35/2013 by
Petitioner
Ext.W13 20.12.2013
Reply to Assistant Labour
Commissioner, Madurai by the
Respondent
Ext.W14 23.12.2013
Petition to Assistant Labour
Commissioner, Madurai
Ext. W15 05.02.2014
Interim order in Civil Appeal No(s)
6950 of 2013
Ext.W16 08.02.2014
Reply to Assistant Labour
Commissioner, Madurai by the
Respondent.
Ext. W17 14.02.2014
Petition to Assistant Labour
Commissioner, Madurai
Ext.W18 31.05.2014
Failure report by Assistant Labour
Commissioner, Madurai
Ext. W19 04.09.2014
Interim Order in Civil Appeal No(s)
6950 of 2013
Ext.W20 15.09.2014
Notice issued by this Hon'ble
Tribunal
Ext.W21 March 2012 Payment receipt for Peon
to
Sept. 2013
Ext.W22 April 2010
SB Pass Book Xerox copies
To
regarding entries of payment
Oct, 2013
for the discharge of duty of
Part-Time
On the side of the Respondent
Ex. No.
Date
Description
Ext. M1
18.01.2011
Hon'ble Supreme Court Order in LIC
of India and Another Vs. D.V. Anil
Kumar and Others -C.A. No. 953-
968 of 2005
Ext. M2
16.07.2014
Judgment of Hon'ble High Court of
Kerala in WA NO. 2362/2009 in Op
39055/2002 in the matter of LIC of
India Vs Usha Kumari & Others
Ext. M3
—
Section 48 (1&2) of the Life
Insurance Corporation Act, 1956.
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4104
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
New Delhi, the 12th October, 2015
S.O. 1990.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 34/2012)
of the Central Government Industrial Tribunal/Labour
Court-2, Dhanbad now as shown in the Annexure in the
Industrial Dispute between the employees in relation to
the management of M/s Max New York Life Insurance Co.
Ltd. and their workman, which was received by the Central
Government on 06/10/2015.
[No. L-17012/15/2011-IR(M)]
NAVEEN KAPOOR, Under Secy.
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 34 OF 2012.
PARTIES : Sri Ritesh Kumar Sinha,
2nd Floor,"Kanti Kunj",Maa Bhawani
Complex, Rangatand ,Dhanbad
Vs.
The Zonal Manager,
Max New York Life Insurance Co.Ltd., 15A
Hemanta Basue Sarani,
Continental Chambers, 2nd Floor, Kolkata-
700001.
Order No. L-17012/15/2011-IR(M)
dt.10.05.2012& 15.10.2013
Appearances :
On behalf of the workman/Union : Mr. U.P.Sinha,
Ld. Advocate
On behalf of the Management :
Mr. A.K.Sen
Ld. Advocate
State
:
Jharkhand
Industry
:
Insurance
Dated, Dhanbad, the 18th Sept., 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 We following dispute to
this Tribunal for adjudication vide their Order No. L-17012/
15/2011-1R(M) dt.10.05.2012& 15.10.2013 .
SCHEDULE
"Whether the action of the Management of Max New
York Life Insurance Company Limited, Kolkata in
terminating the services of Shri Ritesh Kumar Sinha
w.e.f. 13.01.2010 now replaced with 17.03.2011 (as per
its Corrigendum dt.15.10.2013) is fair legal and
justified? What relief the workman is entitled to?"
On receipt of the Order No. L-17012/15/2011-IR(M)
dt.10.05.2012 & its corrigendum 15.10.2013 the above
mentioned reference from the Government of India, Ministry
of Labour & Employment, New Delhi for adjudication of
the dispute, the Reference Case No. 34 of 2012 was
registered on 23.05.2012 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 0.P./Management through their Ld. Counsels
respectively appeared and contested the case.
2. The case of the petitioner workman Shri Ritesh
Kumar Sinha as stated in the statement of his claim is that
he was a permanent employee of M/s Max. New York Life
Insurance Co.Ltd., working therein as Band 5 employee
appointed on 1st Sept., 2008 as per the terms and
conditions of the employment noted in his appointment
letter. After accordingly joining the employment, he had
been unblemishedly serving the OP/Management at
Dhanbad Office, by continuously putting 240 days in a
year and total 928 days. But without issuing any notice,
charge sheet etc. any rhyme or reason, he was verbally
communicated that his service stood terminated w.e.f.
13.01.2011 as per the instructions of Shri Srijib Banerjee,
the Customer Service Manager. The petitioner by the
e-mail reported the entire event to the CEO and the Head
(H.R.) at the Head Office of the Company, forwarding its
copy to other Senior Officers of the Company. The e-mail
was received. The workman was assured of looking into
the matter.
The workman was performing the jobs of (a) receiving
and disbursing petty cash payment, (b) cash/cheque
collection from customer and issuing payment
acknowledgment receipts,(c)maintenance of ledger, cash
book, inward and outward Dispatch Register, Computer
Data Entry, (d) entertainment of customers by serving
refreshment, tea, coffee etc. as per the instruction of the
Branch Manager, the jobs of permanent and perennial in
¹Hkkx IIó[k.M 3(ii)º
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4105
nature- directly under the supervision of the Branch
Manager. But he was disallowed to perform the jobs, though
he was allowed to mark his attendance up to 16.03.2011.He
was also paid his normal wages upto Feb, 2011, but not for
the period from 1st to 16th March, 2011, the last date of his
termination. Since his attendances was stopped from 17th
March, 2011, since then his illegal termination actually
affected. He was not given any notice or notice pay in lieu
of notice or any compensation as required under Sec.25 F
of the I.D, Act.1947.Thus the action of the Management in
terminating his service is illegal and violative of the principle
of natural justice. It is also alleged that the workman being
39 years old has already crossed the age limit for a
government job. He is sitting idle and jobless, despite his
best efforts for getting a job anywhere. At last, the I.D.
raised before the Authorities concerned under Sec.2A of
the I.D. Act, 1947, but its failure in its conciliation resulted
in the reference for an adjudication. The workman is entitled
to reinstatement with full back wages, as the action of the
management is not legal and justified.
3. The petitioner/workman in his rejoinder has denied
the relevant allegations of the O.P./Management as incorrect
and unjustified, further stating that the instant reference of
the Industrial Dispute as referred by the Central
Government is quite maintainable for an adjudication in
the issue. It is also stated by the petitioner that on
13.01.2011, the workman was asked to resign with threat
for coercive action by the Management, if not done so.
Then the petitioner had lodged the complaint at the Police
Station, Bank More, Dhanbad, where the issue was settled
between him and the Branch Head by the Officer-in-charge
concerned; and thereafter, the petitioner workman
continued the work in the Branch Office from 13.01.2011
until he was illegally stopped from working w.e.f. 17.03.2011,
despite the pendency of conciliation proceedings and in
violation of Sec.33 of the Industrial Disputes Act., 1947.1t
is also alleged on his behalf that the workman was not
served with any transfer order nor the employer submitted
any documents concerning any disobedience or creation
of any nuisance on its part before this Tribunal.
4. Whereas the contra pleaded case of the O.P./
Management is that the M/s. Max Life (erstwhile as Max
New York Life) Insurance Co. Ltd. is a Company registered
under the Companies Act-1956,having its Corporate Office
at 11th Floor, DLF Square Building, Jacaranda Marg, DLF
Gurgaon-120021 and one of its Branch Office at 1st Floor,
Krishna Plaza Unit No. 102 A, Matkuria Road, Bank More,
Dhanbad-826001.
The Company (hereinafter referred to as MLI) is into
the business of life insurance duly approved as per the
Government of India through the Insurance Regulator
(IRDA).lt has its branches across India and it is widely
acknowledged for its reputation and services. This
respondent has its niche for themselves in the insurance
products as well as in the services across the country. The
respondent had denied all the allegations of petitioner
Ritesh Kumar Sinha (the Complainant). According to the
respondent, the present dispute is unmaintainable in law
and on facts, as the MLI has never threatened the complaint
to terminate from service.
The Respondent has stated as a preliminary objection
that the instant case of the complainant is false, malicious
and malafide, so it is liable to be dismissed in limine in lack
of bonafide cause of action as well as for the reason that
the present claim is beyond the jurisdiction of the Authority
concerned to entertain it under Sec. 12 of the Industrial
Disputes Act-1947, as the complaint petitioner does not
come under definition of the workman 2(S) of the said Act;
since the Complaint /petitioner was performing the work
purely of supervisory and managerial in nature, not manual
and clerical in any way, as he was drawing salary of Rs
2,42,365/- (Rupees two lacs forty-two thousand three
hundred and sixty five only) per annum. It was exceeding
Rs, 10,000/- per month. He was appointed as the
Operational Executive with the MLL. His work profile was
of supervisory and managerial by nature.
It is also submitted that the dispute in question is
not an Industrial dispute under Sec. (k) and Sec.2(s) of the
said Industrial Dispute Act, because of the fact that the
complaint/petitioner was entrusted with the Administrative
work of the Company. So he does not qualify under the
category of the workman under the said Act.
5. Further alleged on behalf of the O.P./Management
is that the Complaint/petitioner was appointed in the
service of the MLI as per the appointment letter
dt.01.09.2008 at the office of the MLI situated. at Gaya.
According to clause 7 of the terms and conditions of the
employment (Annexure A-I), the respondent has power to
transfer the employee to any location at the sole discretion
of the employer on the terms and condition of employment
in place of positing. When the Dhanbad Office of the OP/
Management had a vacancy, the Management transferred
the complaint petitioner from Gaya to Dhanbad Branch on
01.02.2009, as Dhanbad is his native place. When the
Branch Head at the Dhanbad Office called up the complaint
petitioner in Jan., 2011, and informed of his transfer from
Dhanbad to Bilaspur Office w.e.f. 17.01.2011.But the
petitioner denied to accept his transfer letter and to follow
the instructions of the Manager abruptly leaving the
Dhanbad Office; therefore the petitioner kept on coming to
the Dhanbad Office and creating nuisance in the office
premises as well as marking his attendance at the Dhanbad
Branch ( the copy of Attendance Register as an Annexure
-A-2). In this disobedience of the transfer by the petitioner
to join the new office as per the transfer letter of the
4106
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
Management, the Company did not pay him salary after
Feb.,2011.As such the complainant petitioner has no prima
facie case of adjudication.
The OP/Management has categorically denied the
allegations of the petitioner as wrong, further stating that
the complainant petitioner was not terminated from his
service. The petitioner has rather violated the terms and
conditions of the employment with the Company. Under
such circumstances, the question of giving the petitioner a
termination Notice or illegal termination or violation of
natural justice does not arise. The petitioner is alleged to
have tried to take advantage of his own wrong at the cost
of the Company. As such the Company has acted in
accordance with the Employment contract with the petitioner
as contrasted with his false and frivolous claim with an
ulterior motive to satisfy his ill design.
FINDING WITH REASONS
6. In the instant Reference Case, WW1 Ritesh Kumar
Sinha, the petitioner workman himself for his own sake and
MW1 Manish Dhar, the office Head of the Dhanbad Branch,
for the OP/Management have been examined respectively.
Mr.U.P.Sinha, Ld. Counsel for the workman as per
the written argument has submitted that he was appointed
by the OP/Management on 1st Sept.,2008 (Ext.W.1) after
due process of interview etc, and was posted at its Gaya
Branch, wherefrom on his option, he was transferred to
Dhanbad Branch where his service was orally terminated
from 13.01.2011 without following the process of Natural
justice, and the provision of Sec.25F of the
1.D.Act,1947.Further submitted on his behalf is that he
had made representations dt.14.01.11 and 17.03.11 (Ext.W.2
& 4 respectively) as well as a complaint to the local police
(Sanha application dt.13.01.11 -( Ext.W.5) about threat to
resign, though he was stopped from doing any work since
17.03.2011, he was allowed to attend the office and make
his attendance up to 16.03.2011, yet he was paid wages up
to Feb.2011 but not for the period of March,16,2011; all the
materials under his charge were taken by the Branch
Manager from him as per the Hand Over Charge report
dt.13.01.11 (Ext.W.7). It is also submitted that the workman
had put in 3 years continuous service more than 240 days
attendance in a year prior to his illegal termination on
13.01.2011 in violative of the provision u/s 25 F of the 1.D.
Act without any enquiry and that new man was posted in
his place against the sanctioned permanent .
Lastly Mr. Sinha, Ld. Counsel for the workman has
emphatically submitted that it is settled law that for
determination of a person as a workman, the only criteria is
to look into the job he has been doing and not the wages/
salary he is paid, not the designation he has been given. In
the instant case as submitted by Mr. Sinha all the jobs right
from receiving and disbursing petty cash payments to
doing such other jobs both manually and by Computer as
per the instruction of the Branch Manager are of the
workman, but not of the supervision or managerial, but
same is clerical; thus the petitioner is the workman as defined
u/s 2(s) of the 1.D.Act., 1947.So far as the termination as
defined u/s 2(oo) of the said Act is concerned, any
termination which is not caused by way of Disciplinary
Action is retrenchment except those under its exceptional
clauses. Here the workman had been terminated without
any disciplinary action for any misconduct. So it is his
illegal retrenchment without following the provision of Sec.
25 F, and in such circumstances, the workman shall be
deemed to be continuously his service and he is entitled to
all the benefits and wages that he would have got had he
not been terminated. The petitioner is still jobless and
unemployed, crossing his age for an employment anywhere;
the action of employer is illegal and unjustified and also
unfair labour practice. Hence the petitioner is entitled to
reinstatement with full back wages and consequential
benefits.
7. Mr. U.P. Sinha, Learned Counsel for the workman
petitioner having filed the photocopies of five rulings all of
Hon'ble Apex Court in support of his case at the point of
termination, and back wages, has relied upon them as under:
(i) Mohan Lal vs. Management of Bharat Electronics
Ltd. Reported in MA NU/SC/0327/1981, wherein, it has been
held ‘that the period of service accounted for 240 days
within period of 12 months as continuous service for one
year as defined u/s 25-B (2) is a prerequisite as condition
precedent to retrenchment of workmen u/s 25F of the
Industrial Disputes Act, 1947, and the case of the Appellant
was not covered by exceptions ,so his termination would
constitute retrenchment; and the conditions of valid
retrenchment were not satisfied, so termination was set
aside and appeal was allowed (Para 18 & 20)'
(ii) Gammon India Ltd. Vs. Niranjan Dass, reported in
MANU /SC/0237/1983 wherein, in reference to Sec 25 F of
the I.D.Act, 1947,it has been held, ‘at the point of validity
of retrenchment of the workman under the law that it is not
disputed that pre-requisite for a valid retrenchment as laid
down in Section 25 F of the Act has not be complied with,
and therefore retrenchment bringing about termination of
service is ab initio void ; hence the appeal is dismissed,
thereby upholding the order of the Division Bench of the
High Court concerned in LPA No. 25 1970, restoring the
award of the Tribunal concerned which was set aside the
award of the Tribunal concerned (Para 4)'.
(iii) Bhuwanesh Kumar Dwivedi Vs Hindalco
Industries Ltd. reported in MANU/SC/0474/2014= 2014(2)
SLJ 423 (SC),.at the point of validity of dismissal, present
appeal filed against order whereby High Court set aside
order of reinstatement passed in favour of Appellant -
Whether impugned order of setting aside the order of
reinstatement was required any interference- held 'that
Respondent could not produce any material evidence on
¹Hkkx IIó[k.M 3(ii)º
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4107
record before the Labour Court to show that the Appellant
was employed for any particular project (s) on completion
of which his service had been terminated- Respondent was
not justified in contending that Appellant did not avertin
his plaint of not being employed, did not hold since burden
of proof that Appellant was gainfully employed post
termination of his service was on Respondent.
Respondent's claim that Appellant was gainfully employed
somewhere was vague and could not be considered and
accepted. Labour Court was correct on legal and factual
principles in reinstating Appellant along with full back
wages after setting aside order of termination. High Court
had erred by exceeding its jurisdiction in holding that
Appellant had, resigned by not joining his duty as badly
worker and also awarding that retrenchment compensation
will do justice to Appellant without assigning reasons which
was wholly unsustainable in law. Therefore Appellant was
entitled to full back wages from date of termination of his
service till date of his reinstatement. Appeal allowed (Para
18, 29, 33, and 35)',
(iv) Sandhya Vs. State of Maharastra reported in
MASU/SC/0553/2014=2014(3)SLJ(SC), at the point of
denial to regularization, wherein impugned order denied
regularization of Appellant's service on ground of being
not in employment, hence present appeal-whether in view
of Government Resolution (GR), regularization of service
could be granted to Appellant-Held, 'impugned order
misguided itself by holding that Appellant was not in
service and was not working on date of GR prior to which
certain unpaid candidates including Appellant were
terminated by Respondents. Such order of termination was
set aside by the Tribunal and Respondents were directed
to consider case of Appellant for regularization in terms of
GR. As termination order was set aside, Appellant should
have been deemed to be continued in service even when
GR was issued.Hence,Appellant was entitled for
regularization of service.Respndents were directed to
comply with Tribunal's order and regularize services of
Appellant with retrospective effect. Impugned order set
aside, and appeal allowed (Para 17 & 18)' and
(v) Lastly Dipali Gundu Surwase Vs. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) & ors. : reported in
MANU/SC/0942/2013 2013-(4)SCT-l 716(SC) at the point
of service and entitlement of back wages - Wherein single
Judge set aside direction given by School Tribunal for
payment of back wages to Appellant on ground that
Appellant had not proved factum of non-employment
during intervening period. Hence, this appeal: Whether
Appellant was entitled to wages for period during which
she was forcibly kept out of service by Management of
School. Held 'that in case of wrongful termination of service,
reinstatement with continuity of service and back wages
was normal rule. In present case, it was found that the
Management's decision to terminate Appellant's service
was preceded by her suspension albeit without any reason.
Even Division Bench of High Court declared that Appellant
would be deemed to have rejoined her duty and entitled to
consequential benefits. However, Management neither
allowed Appellant to join duty nor paid wages, rather after
making show of holding enquiry, management terminated
Appellant from service. Tribunal found that action of
Management to be wholly arbitrary and vitiated due to
violation of rules of natural justice. Tribunal further found
that allegations levelled against Appellant were frivolous.
Tribunal also took cognizance of statement made on behalf
of Appellant that she was not gainfully employed anywhere
and this fact had not been controverted by Management,
and ordered her reinstatement with full back wages. Though
Single Judge agreed with Tribunal that action taken by
Management to terminate Appellant's service was illegal,
but set aside award of back wages. Thus, in doing so,
Single Judge not only overlooked order passed by Division
Bench, but also prohibits employee from taking employment
elsewhere. Thus Single Judge committed grave error by
interfering with order passed by Tribunal for payment of
back wages. Hence order of Single Judge was set aside
and order passed by Tribunal was restored. Management
should pay full back wages to Appellant. Appeal
allowed.(Para 18,19 & 1)’ Ratio Decidendi:
"In cases of wrongful termination of service,
reinstatement with continuity of service and back wages is
normal rule."
8. Whereas the contention of Sri A.K.Sen, Ld. Counsel
for the OP/Management as per his written argument is that
the OP/Management of Max Life Insurance Company
(hereinafter referred to as MLI) at Dhanbad Branch is
carrying on the business of the Life Insurance etc. Petitioner
Ritesh Kumar Sinha was appointed as Executive -Accounts
and Administrative for the work of supervisory and
managerial work by nature in the service of the ML1 firstly
at Gaya on 01.09.2008 as per the Appointment agreement
dt.01.09.2008 (Ext.W.1) and the terms and conditions of the
Company under the signature of petitioner (marked as
Ext.M.l on admission). The M LI as per clause 7 of the
terms and conditions of the employment (Ext.M.1) has the
right to transfer the employee to any location in India.
When there was a vacancy in Dhanbad Office of the
Management, the petitioner being the native of Dhanbad
District was transferred by the Management from Gaya to
Dhanbad w.e.f. 01.02.2009.In the month of Jan,2011 when
Branch Head at Dhanbad Office called the petitioner and
informed of his transfer from Dhabad to Bilaspur Office
w.e.f. 17.01.011, instructing to report on that day, but the
petitioner denied to accept his transfer letter and in defiance
to the instructions of the Manager, he immediately left the
Dhanbad Office, though he kept on coming to the office,
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
marking his attendance and drawing his salary till Feb,2011
(Ext.M.2).Since the petitioner refused to join the new office
as per the transfer letter, the Company did not pay him
salary after Feb,2011, though he had forcibly marked his
attendance up to 17th March,2011 (Ext.2/1).The stoppage
of marking his alltendance by the workman/petitioner
naturally happened due to his transfer from Dhanabd to
Bilaspur.
Further it has been contended on behalf of the OP/
Management that since the workman/petitioner was
performing the work purely of supervisory and managerial
in nature, but not manual and clerical in any way, and he
was drawing salary Rs.10,000/- p.m. , he was not a workman
under Sec.2(s) of the l.D.Act,1947,as he was appointed as
the Operational Executive having his work profile largely
of supervisory and managerial in nature. Thus, the instant
Reference is not sustainable in the eye of law and likewise
petitioner is not entitled to any relief.
9 After going through the arguments of both the
parties, on perusal of the materials available on the case
record, it appears no dispute between the petitioner and
the OP/Management as the employee-employer
respectively. The fact that Dhanbad is the native place of
the workman/petitioner who was transferred from Gaya to
Dhanbad on 01.02.2009, and the workman/petitioner was
initially appointed as the Executive -Accounts and
Administration- in the service of the Company at Gaya
Branch, on 01.09.2008.
10. Response to the Reference needs determination
of the two points as under:—
Point No.1:— Whether the workman /petitioner is
really a workman as defined under Sec.2 (s) of the
l.D.Act, 1947.
In that regard, it is acknowledged fact that there is
transaction of cash, cheques, and draft etc. in the office of
the Management as usual in course of the conduct of the
Insurance Company/Management. The financial
transactions are also maintained as per the Ledger and
manually through the Electronic process. It is also an
indisputable fact that the workman used to maintain the
ledger, also used to collect cash, D/draft and cheques from
the customers as well as the job of entertaining the
customers too, but in the instant case, no OP/Management
could produce any documents as proof over the point that
the petitioner's work was of managerial or supervisory in
nature. Even the terms and conditions of the employment
with the workman do not whisper the nature of his
supervisory or managerial work in the office of the
Management. He was simply working as the Executive -
Accounts and Administration. Under such circumstances,
the workman/petitioner is undoubtedly found to a workman
under the said provision of the 1.D.Act. The point is
answered in affirmative.
Point No.2:— Whether the workman has been
terminated from the service of the Company, w.e.f.
13.1.2010 now replaced with 17.03.2011 as per
Corrigendum dt. 15.10.2013.
In the instant case, the petitioner has no pleaded
evidence at point of the Transfer Order having been not
served upon him except his denial to disobedience of the
transfer order issued by the Authority from Dhanbad to
Bilaspur. The photocopy of the petitioner's hand over
charge dt.13.1.2011 (Ext.W.7) to the Branch Manager of the
Company clearly proves that the workman willingly handed
over the charge of Safe and other materials including Cash
amounts in compliance with the Order of the Branch
Manager. But the workman appears to have lodged the
"Snaha" application with the local Police Station on the
same day i.e. 13th June,2011 (Ext.W.5) by alleging against
the Branch Manages Mr. Ajay Tarpidia and Shri Shrijiv
Banerjee to have threatened him to dismiss in case of non
resignation by him. Subsequently the petitioner sent his
e-mail of complaint to H.R/Sr. Manager and CEO on
14.1.2001 to that effect (Ext.W.2).The petitioner had got
response through e-mail
dt.14.1.2011 from the Zonal
H.R.(Ext W.3).Thereafter the workman appears to have made
the complaint through his e-mail dt.17.03.2011 to the H.R
Head concerned about the blocking of his total I.D portal
(Ext. W.4).Consequently the petitioner filed the complaint
to the Dy.C.L.C. (C), Jagjjivan Nagar, Dhanbad in
apprehension of alleged threatened termination of his
service (Ext.W.6 in four sheets) dt. 24.01.2011.Lastly the
workman/Petitioner gave information to the RLC
(C),Dhanbad about the further alleged action of the OP/
Management about disallowing him to sign his attendance
Register amounting to violation of Sec.22(2)(d) and Sec.33
of the I.D.Act,1947 and also about the blockage of his on-
line-attendance portal as per his three letters
dt.14.03.2011,18.03.2011and 13.04.2011 (Ext.W.7/1 - 3
series).But the "Snaha" application of the petitioner
dt.13.01.2011 does not mention any fact of his confinement
in the Bank for his forceful resignation.
It is merely an application under the initial of the
Authority concerned and seal of the Bank More Police
Station, Dhanbad about his allegation against the
Management.MWI Manish Dhar has affirmed in his cross
examination that since he had joined as the Asst. Branch
Manager in the month of June,2011,now the Branch
Manager in the Company at Dhanbad and he was made In-
charge of the Management of the company at Dhanbad,
following his promotion of M.Tarpidia as Branch Manager
to the post of Regional Manager at Bhuwneshwar for Orissa
and Chattisgarh. He had not seen the transfer letter of the
workman nor his release order. According to him, the
workman/petitioner had forcibly marked his attendance for
the month of March, 2011 as per the photocopy of the
Attendance Register for March, 2011 (Ext.M.2/1). lt proves
¹Hkkx IIó[k.M 3(ii)º
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4109
that the petitioner had marked his attendance upto 17th
March, 2011, though he had already handed over the charge
as his charge report on the very 13th Jan, 2011 (Ext.W.7).
11. The workman had worked at the office of the
Company at Dhanbad for 2 and 1/2 years. The silence of
the workman petitioner over his transfer from his native
district Dhanbad to Bilaspur clears bodes well his factual
transfer to Bilaspur, so he had though made over his charge
on the very 13th Jan, 2011, and he had to report his duty at
Bilaspur based office of the OP/Management on 17th Jan,
2011, yet he preferred to engage himself in making out his
instant case of his termination on the basis of alleged
threatful coercion upon the petitioner by the OP/
Management to resign his service. In such situation, there
is no termination/retrenchment u/s 2(00), as there was no
need for any disciplinary action against him even u/s 25 F
of the I.D. Act, 1947. Rather the case of the petitioner as it
stands before me is the case of abandonment of his service
amounting to self-termination of his employment by
disentitling himself from any statutory or other
compensation commencing from the first day of his absence
from work as provided under the clause 6- General- of the
terms and conditions of the Employment with MNYL dt.
Sept.,1, 2008 (Ext.W.1). Excess payment of the salary to the
workman petitioner upto the month of Feb. 2011 was
virtually ex-gratia to him so that he might join his
assignment at the office of the Management at Bilaspur.
The appointment of the workman petitioner is governed
by the aforesaid terms and conditions of his appointment
which are binding upon the petitioner, who is the workman
of the Private Financial Banking Company, ought be a
person of full integrity and disciplined, the financial
transactions are too sensitive in the public at large, If such
workman goes indisciplined and desperate, it commutatively
affects the financial transactions of the Company. The
employment of the petitioner with the O.P./Management
as per the terms and conditions of the said agreement was
virtually a civil contract.
12. Having considered the overall facts of the
reference, I came to the conclusion that the workman
petitioner has not been terminated or retrenched in the
terms of Sec. 2(00) of the I.D. Act, 1947, rather he had himself
abandoned his services towards the private Financial
Company for the reason best known to him. Hence in such
situation of the case under adjudication, none of the
aforesaid rulings cited on behalf of the workman holds
good, as the instant case has no termination under the
aforesaid provisions of the I.D. Act., 1947.
13. Hence, it is, hereby, responded and accordingly
awarded that there was not any alleged action of the
Management of Max New York Life Insurance Company
Ltd., Kolkata, in terminating the services of Sri Ritesh Kumar
Sinha w.e.f. 13.1.2010 replaced with 17.03.2011 (as per
Corrigendum dt.15.10.2013), so no question of the action
of the Management as fair, legal and justified in that regard
arises, Rather the workman petitioner had himself
abandoned his services towards the Management of the
private company as per the clause 6 General- of the terms
and conditions of his employment dt. Sept., 1, 2008
(Ext.W.2) for his unauthorized presence upto 17th March,
2011 which is equal to unauthorized absence from the very
first day of March, 2011 despite his already transfer from
his native place Dhanbad to Bilaspur. Such willful
abandonment of service by the workman petitioner as per
the very terms and conditions of his employment (Ext.W.1)
under his signature amounts to his wilful termination from
the services of the Company w.e.f. the very 1st March,
2011 , forfeiting any statutory compensation. for the reason
of his self-desertion of the services of the reputed Financial
Company of India, The workman is not entitled to any
relief.
KISHORI RAM, Presiding Officer
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dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj esllZ ykbZQ
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muds deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn dsUnzh;
ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;ky;] dksydkrk ds iapkV
¼lanHkZ la[;k 43@2003½ izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
06@10@2015 dks izkIr gqvk FkkA
[lañ ,y&17012@16@2003&vkbZvkj¼ch&I½]
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New Delhi, the 12th October, 2015
S.O. 1991.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 43/2003)
of the Central Government Industrial Tribunal/Labour
Court, Kolkata now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s LIC of India and their workman, which
was received by the Central Government on 06/10/2015.
[No. L-17012/16/2003-IR(B-I)]
NAVEEN KAPOOR, Under Secy.
4110
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 43 of 2003
Parties: Employers in relation to the management of LIC
of India
AND
Their workmen.
Present: JUSTICE DIPAK SAHA RAY,
Presiding Officer
Appearance:
On behalf of the
:
Mr. T. Chowdhury, Ld. Counsel
led by
Management
:
Mr. N.K. Mehta, Ld. Counsel.
On behalf of the
:
Mr. P. Mukherjee, Ld. Counsel.
Workmen
State: West Bengal.
Industry:
Insurance.
Dated: 25th August, 2015.
AWARD
By Order No. L-17012/16/2003-IR(B-I) dated
27.11.2003 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 Life
Insurance Corporation of India, Kolkata is justified
in terminating the services of temporary/casual
workman Mr. Suprabhat Saha with effect from
5-11-2002 without conducting enquiry, without
following any principles of natural justice and
violation of provisions of Section 25-F/25-N of the
I.D. Act? if not, what relief he is entitled?"
2. Bereft of all unnecessary details, the case of the
concerned workman is as follows:
The management/LIC appointed the concerned
workman in September, 1993 as Class-IV employee at
Bhabanipur Branch of LIC and since then he had been
working continuously without any interruption till the illegal
termination of his service on 05.11.2002. From April 1994
his pay was fixed at the minimum of the pay scale for Class-
IV employees and accordingly he had been receiving his
monthly salary under salary head of account of the
Corporation. It is alleged that the workman was illegally
terminated without showing any reason. It is further
contended that during conciliation proceeding before the
Assistant Labour Commissioner the workman came to
know that on 23.08.2001 while he and Administrative Officer
Shri Subrata Bhattacharjee were working in the cash
enclosure, one leather bag containing cash and cheques
were found missing and according to the management the
said incident of mysterious disappearance of leather bag
took place on account of his carelessness, negligence and
irresponsibility. Since several requests of the workman for
reinstatement of his service were not considered, he raised
industrial dispute. Hence this reference.
3. The management/LIC has contested the case by
filing written statement contending inter alia that the
workman was engaged on daily wage basis and was
working as such at Bhabanipur Branch under K.M.D.O.II.
On 23.08.2001 while he was working inside cash enclosure
with the Administative Officer, Shri Subrata Bhattacharjee,
Shri Bhattacharjee left the cash enclosure entrusting Shri
Saha to look after the leather cash bag containing cash of
Rs. 2,37,727 and cheques for Rs. 3,03,317.60. But Shri Saha
also left the cash enclosure after departure of Shri
Bhattacharjee leaving the said cash bag unguarded. As a
result the said bag was lost. It is alleged that the said
incident took place due to the irresponsible action of Shri
Saha which is nothing but dereliction of his duties and
accordingly he was terminated on 05.11,2002 as the
management lost confidence in the workman. It is also
alleged that Shri Saha was working on daily wage basis
and was not appointed against any sanctioned post and
that the worker working on daily wages basis has no right
to claim reinstatement or continuity of service. Accordingly
it is prayed that the instant reference may be disposed of in
favour of the management.
4. In this case the workman in order to prove his case
has examined himself as WW- 01 and has proved 13
documents marked Exhibits W-01 to W-13.
5. Similarly the management in support of its case
has examined 3 witnesses and has proved 3 documents
marked Exhibits M-01 to M-03.
6. It is the contention of the workman that he was
appointed by the LIC as Class-IV employee and was
working as a Peon at Bhabanipur Branch of LIC. On the
other hand, according to the management the concerned
workman was engaged as casual worker by the local
management of LIC.
7. Now from the evidence of the workman (WW-01)
it is evident that the management did not issue any
appointment letter to the workman. His oral testimony goes
to show that no formalities was observed at the time of
appointment of the workman. There is also nothing on
record to establish that the workman was appointed against
permanent and/or sanctioned vacancy.
8. It is the contention of the management as it appears
from the written statement that the workman was engaged
on daily wage basis in September, 1993 and he was terminated
on 05.11.2001 as the management lost confidence in him.
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4111
9. Now, from the pleadings of the parties coupled
with the oral evidence of the parties and the documents
marked Ext.W-07 series (vouchers for payment), Ext. W-08
(statement of payment), Ext. W-09 (Employees Earning
Record), Ext. W-10 and Ext. W11 (Attendance Register) it
appears that the concerned workman had been working
continuously from September, 1993 till his termination on
05.11.2001 and he used to get his wages month by month
regularly.
10. Frorn Ext. M-01 it appears that after the mysterious
disappearance of cash and cheques, one preliminary
enquiry was held and an enquiry report was submitted.
From the said report it appears that during such preliminary
enquiry it was found that there was negligence on the part
of the workman who was daily rated Peon.
11. So it appears that after enquiry when it was
ascertained that due to negligence of the workman, Shri
Saha, the LIC suffered huge amount of loss, he was
terminated as the management lost confidence in him. But
such terrmination was made without holding any domestic
enquiry.
12. From the evidence, both oral and documentary
and the discussion made above, it also appears that the
concerned workman who was casual Class-IV employee,
was in continuous service for about 10 years. But there is
nothing on record to show that provision of Section 25F of
the Industrial Disputes Act, 1947 was complied with at the
time of termination of service of the workman.
13. In this case the concerned workman was
terminated from service as the management lost its
confidence in him for his alleged irresponsibilities and
carelessness. But the pleadings and evidence (both oral
and documentary) of the management do not go to show
that before termination of his service domestic enquiry
was held against him.
14. In this connection, it is desirable to mention the
decision reported in (1985) 2 Supreme Court Cases 727
(paragraph 8) wherein it has been held that:
"It is difficult to agree with the findings of the Labour
Court that when service is terminated on the basis
of loss of confidence the order does not amount to
one with stigma and does not warrant a proceeding
contemplated by law preceding termination. Want
of confidence in an employee does point out to an
adverse facet in his character us the true meaning
of the allegation is that the employee has failed to
behave up to the expected standard of conduct
which has given rise to a situation involving loss of
confidence. In any view of the matter this amounts
to a dereliction on the part of the workman and,
therefore, the stand taken by the Management that
termination for loss of confidence does not amount
to a stigma has to be repelled, in our opinion it is
not necessary to support our conclusion by
reference to precedents or textual opinion as a
commonsense assessment of the matter is sufficient
to dispose of this aspect. 'Retrenchment' is defined
in Section 2(oo) of the industrial Disputes Act and
excludes termination of service by the employer as
a punishment inflicted by way of disciplinary action.
If the termination in the instant case is held to be
grounded upon conduct attaching stigma to the
appellant, disciplinary proceedings were necessary
as a condition precedent to infliction of termination
as a measure of punishment. Admittedly this has not
been done. Therefore, the order of termination is
vitiated in law and cannot be sustained."
15. Considering the facts and circumstances of the
case, evidence on record and the decision of the Hon'ble
Supreme Court it appears that the termination of the
workman from the service by the management without any
domestic enquiry and without any adherence to the
provision of Section 25F of the Act was neither proper nor
justified.
16. From the decisions of the Hon'ble Supreme Court
viz. 1978 Lab. I.C. 1667 and 2013 (139) FLR 541 it appears
that in case of illegal termination of service, reinstatement
with continuity of service and back wages are normal rule.
17. Now it is to be considered whether or not the
workman is entitled to be reinstated in service. In this
context it is necessary to refer to the decision reported in
(1985) 2 Supreme Court Cases 727 (paragraph 9 and 10)
wherein it has been held that:
"9. Ordinarily, when the order of termination is
quashed a declaration follows that the workman
continues to be in employment and is, therefore,
reinstated in service with full back wages as was
held by this Court in Hindustan Tin Works (Private)
Ltd, V. Employees. This Court held in Jitendra Singh
Rathor v. Shri Daidyanath Ayurved Bhawan Ltd.
that under Section 11-A of the Act advisedly wide
discretion has been vested in the Tribunal in the
matter of awarding relief according to
circumstances of the case. In Hindustan Steels Ltd.,
Rourkela v. A.K. Roy, this Court has held that the
Labour Court has discretion to award
compensation instead of reinstatement if the
circumstances of a particular case make
reinstatement inexpedient or improper. In this case
it has been the stand of the respondent that the
Management had lost confidence in the appellant
and there has been some pleading about the
importance of the role of confidence in the business
set-up of the respondent. Without examining the
tenability of the stand on loss of confidence as a
defence to reinstatement and accepting the
allegations advanced by the respondent that there
4112
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
has been los of confidence, we are of the view that
while the termination of service of the appellant is
held to be bad, he may not be reinstated in service.
On the other hand he should be adequately
compensated.
10. The quantum of compensation has now to be
ascertained. Ordinarily, the appellant would have
gone back into service with full back wages.
Admittedly he has been out of employment from
March 1974. If he had gone back into service he
would have been entitled to back wages of a little
more than 11 years. In computing compensation
this aspect has to be kept in view. If he was restored
to service he would have been assured of employment
for a further term of years. Keeping this as also other
relevant aspects in view, we quantify the
compensation payable to the appellant at Rs 2 lacs.
In almost similar circumstances in respect of two
employees working under the Lufthansa German
Airlines, compensation of Rs. 2 lacs for each worker
was fixed by this Court in Civil Appeal No. 650 of
1982 disposed of by us on April 9, 1985. Counsel
for the appellant has undertaken to file a statement
showing the spread-over of the compensation from
the date of the order of termination of service till
the end of the present financial year, within a week
from today. After the statement is filed the some be
placed for further directions."
18. It has already been discussed that the
management lost its confidence in the workman for his
alleged dereliction of duty i.e., carelessness and
irresponsibility. Though the allegation of loss of confidence
has not been established by any domestic enquiry, yet in
the pleadings of the parties there is inkling of loss of
confidence of the management for any reason whatsoever.
In such circumstances it will not be expedient to reinstate
the workman against the will of the management and in
such cases adequate compensation would be an alternative
to reinstatement. And in coming to this decision this
Tribunal is fortified by the decision of the Hon'ble Supreme
Court as already referred to in paragraph 17 above.
19. Now the question arises as to what would be the
just and proper amount of compensation. In this regard the
foregoing decisions of the Hon'ble Supreme Court as
mentioned in paragraph 17 of this Award may be taken as a
guideline.
20. There is pecuniary loss as well as non-pecuniary
loss. Non-pecuniary loss i.e., sufferings, loss of earnings
for the rest of the life, non-performance of the obligation
towards the family cannot be measured in terms of money.
So by applying the rule of thumb the total compensation
for pecuniary and non-pecuniary loss is fixed at
Rs. 8,00,000 (Rupees eight lac) only.
21. The instant order of reference is accordingly
answered in the negative. The workman is entitled to get
compensation of Rs. 8,00,000 (Rupees eight lac).
22. Award is passed accordingly.
JUSTICE DIPAK SAHA RAY, Presiding Officer
Dated, Kolkata,
The 25th August, 2015.
ubZ fnYyh] 14 vDrwcj] 2015
dkñvkñ 1992-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj iqoZ jsyos
izca/k ra= ds lc) fu;kstdks vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"B vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa
Je U;k;ky;] y[kuÅ ds iapkV lanHkZ la[;k ¼34@2014½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 14@10@2015 dks izkIr gqvk FkkA
[lañ ,y&41011@34@2014&vkbZ vkj ¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O. 1992.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 34/2014)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Lucknow as shown in the Annexure, in the industrial
dispute between the management of North Eastern Railway
and their workmen, received by the Central Government on
14/10/2015.
[No.L-41011/34/2014-IR(B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -
CUM- LABOUR COURT, LUCKNOW
PRESENT : RAKESH KUMAR,
Presiding Officer
I.D. No. 34/2014
Ref. No. L-41011/34/2014-IR(B-1) dated: 23 04.2014
BETWEEN
Anchal Sangthan Secretary
Rail Sevak Sangh
C/o Shri D.P. Awasthi
49, Tilak Nagar
Lucknow.
(Espousing cause of Sri Hari Ram)
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4113
AND
1. Sr. Divisional Personnel Officer
North Eastern Railway
DRM Office, Ashok Marg
Lucknow.
2. The Chief Medical Superintendent
North Eastern Railway
Gonda (UP)
AWARD
1. By order No. L-41011/34/2014-IR(B-1) dated:
23.04.2014 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by clause
(d) of sub section (1) and sub section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between Anchal Sangthan Secretary,
Rail Sevak Sangh, C/o Shri D. P. Awasthi, 49, Tilak Nagar,
Lucknow and Sr. Divisional Personnel Officer, North Eastern
Railway, DRM Office, Ashok Marg, Lucknow & the Chief
Medical Superintendent, North Eastern Railway, Gonda
(UP) for adjudication.
2. The reference under adjudication is:
^^D;k iwoksZÙkj jsy iz'kklu] y[kuÅ o xksaMk }kjk Jh gjh jke
iq= Jh iUuk yky] lQkbZokyk dks iqjkuh isa'ku u nsdj ubZ
isa'ku fn;k tkuk U;k;ksfpr ,oa oS/k gS** ;fn ugha rks dkexj
fdl jkgr dks ikus dk gdnkj gS ?’’
3. On receipt of the reference order the workman's
union was issued registered notice to file his statement of
claim complete with relevant documents, list of reliance
and witnesses before Tribunal on 17.07.2014 with an
advance copy to the opposite party. The Secretary of the
workman's union appeared before this Tribunal and
requested for a date for filing of statement of claim.
4. On successive dates the management also up
Since the case was related to grant of old pension scheme
instead of new pension scheme, the parties were advised
to settle the dispute amicably through Lok Adalat.
Accordingly, the case was taken up at Lok Adalat on
08.05.2015.
5. On 08.05.2015, Shri D.P Awasthi, Secretary of the
workman's union was present whereas the opposite parties
were represented by Shri Upendera Kumar Sharma, Chief
Welfare Officer.
6. The opposite party filed M-5, letter signed by
Sri P.B. Prasad, Senior Divisional Personnel Officer, North
Eastern Railway, Lucknow, enclosing circular No. 2012/
F(E)III/I(I)/2 dated 29.10.2014 of the Railway Board. The
management in letter M 5, referring circular dated 29.10.2014
has stated that the Railway Board, New Delhi vide their
circular dated 29.10.2014 has directed to cover the
employees who got temporary status prior to 01 01.2004
may be covered under Old Pension Scheme.
7. A copy of the M-5 was furnished to the workman's
union. The authorized representative of the workman's
union sought time to consult the workman; and accordingly,
the case was taken up on 28.08.2015 at Lok Adalat. The
Authorized representative of the workman's union,
Shri D.P. Awasthi after going through the contents of letter,
M-5 and circular dated 29.10.2014 showed willingness to
withdraw the present industrial dispute being claim settled;
and made an endorsement thereupon as under:
"Since the relief claimed by the Union has been
accepted by the Railway Management, further
proceeding of this case may kindly be dropped."
8. In view of the submission/endorsement of the
workman's union for dropping of the proceedings, there is
no grievance left with the workman's union as the present
industrial dispute pertains to non-grant of old pension to
the workman by the railway management and the
management of the railway has granted the same vide
circular 2012/F(E)I11/1(1)/2 dated 29.10.2014 of the Railway
Board. Resultantly, the industrial dispute stands settled;
and no relief is required to be given to the workman
concerned. The reference under adjudication is answered
accordingly.
9. Award as above.
RAKESH KUMAR, Presiding Officer
LUCKNOW.
24th September, 2015
ubZ fnYyh] 14 vDrwcj] 2015
dkñvkñ 1993-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lriqMk {ks=h;
xzkeh.k cSad izca/k ra= ds lc) fu;kstdksa vkSj muds deZdkjksa ds
chpvuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k tcyiqj ds iapkV ¼lanHkZ la[;k 84@2007½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dk 14@10@2015 izkIr gqvk FkkA
[lañ ,y&12012@37@2007&vkbZ vkj ¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O. 1993.—In pursuance of Section 1917 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.84/2007) of
the Cent.Govt.Indus.Tribunal-cum-Labour Court Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of Satpura Kshetriya Gramin Bank and
their workmen, received by the Central Government on
14/10/2015.
[No. L-12012/37/2007- IR(B-1)]
SUMATI SAKLANI, Section Officer
4114
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/84/2007
Shri Tulsiram Pardhi,
Village & PO Khara,
Distt. Balaghat (MP),
Balaghat
...Workman
Versus
The Chairman,
Satpura Kshetriya Gramin Bank,
Distt. Chhindwara
...Management
AWARD
Passed on this 31st day of August, 2015
1. As per letter dated 20-08-07 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D. Act, 1947 as per Notification No.1.-12012/
37/2007-1R(B-I). The dispute under reference relates to:
"Whether the action of the management of Satpura
Kshetriya Gramin Bank, Chhindwara in terminating
the services of Shri Tulsi Ram Pardhi is justified? If
not, to what relief he is entitled to?"
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 6 to 6/4. Case of Ist party workman is that he was
engaged as peon cum messenger by Branch Manager Khara
branch on 30-5-89. Thereafter he was transferred to Kosmi
Branch. He rendered his services in Bank from 30-5-89 to
27-11-03. That he was engaged on vacant sanctioned post
after following due process by 2nd party No.2. He rendered
his services diligently for more than a decade. That he was
eligible for regularization of post of messenger cum peon
considering his Iong continuous service. Workman had
submitted representations to the Bank for regularization
but were of no avail. Workman had filed Writ Petition 1095/
02 before Hon'ble High Court, MP Jabalpur. The Writ
Petition was disposed off on 20-3-02 allowing opportunity
to raise his grievance before appropriate forum. Workman
raised dispute through Union before conciliation authority
under ID Act. During pendency of conciliation proceeding
before ALC, Chhindwara, his services were dispensed with
from 27-11-03 by the Bank without issuing order in writing.
He was not served with notice or compensation in lieu of
notice was not paid to him.
3. 1st party workman reiterates that he completed
more than 240 days continuous service. He is covered as
employee under Section 25 B of ID Act. the respondent
Bank failed to follow guidelines and scheme for
regularization of daily wage employees completing 240 days
service in a calendar year i.e. circular issued by NABARD
dated 7-5-87 and circular by RBI dated 8-10-84. The case of
1st party workman as well as co-employee was put up by
Union before Bank for implementation of above circular for
regularization. Despite of agreement was raised upon
between Union and Bank for unknown reasons. 2nd party
Bank denied to implement the same. Letter dated 20-3-94 is
relied. It is alleged that Bank despite need of regular staff
on post of messenger cum peon adopted unfair labour
practice dehors the principles of natural justice. In violation
of Section 33(C) of ID Act, services of workman were
terminated without notice. 2nd party continued practice of
pick and choose the daily rated employees at their whims
and fancies. 2nd party Bank violated section 25-F, G, H of
ID) Act as juniors to the workmen were retained in service
even after discontinuation of service of 1st party workman.
It is alleged that after discontinuing workman, other fresh
persons were appointed in place of daily wagers. Policy of
last come first go was not followed. Workman should have
been given preference over others in case of new
recruitment. The sponsored Bank of 2nd party Central Bank
of India issued directions to all branches on 16-2-90
directing them to provide information of all daily wage
employees who have completed 240 days continuous
service in 12 months during the period 1-1-82 to 31-3-95 by
Regional Office, Chhindwara. The direction was not
complied. It is reiterated that during pendency of
conciliation proceedings pertaining to regularization of
services, workman was discontinued by the Bank in
arbitrary manner. The board of directors taken decision to
discharge services of employees during pendency of
conciliation proceedings vide communication dated
20-11-03. Workman further submits that since his initial
employment from 30-5-89 till 27-11-03, PF amount was
deducted from hi wages. The deduction of PF wages of
workman clearly indicates that he worked more than 240
days in a calendar year. His services are terminated illegally.
On such ground, workman prays for his reinstatement with
full backwages.
4. 2nd party filed Written Statement opposing claim
of workman. 2nd party raised preliminary objection that
workman has committed theft of documents. All the
documents relied by workman are denied. That Ist party is
not workman. He was never appointed by the management.
He was not sponsored through Employment Exchange. He
did not undergo process of selection. The board has not
sanctioned any such post. 2" party has no policy to appoint
any person contrary to the norms and rules. Their
relationship of master servant between parties is denied. It
is denied that workman was engaged by Branch Manager,
Satpura Gramin Bank as peon cum messenger. It is denied
that workman was transferred to Kosmi branch and has
rendered continuous service from 6-12-99 to 27-11-03. It is
denied that workman was engaged on vacant sanctioned
post following due process. It is reiterated that workman
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4115
has not completed 240 days continuous service during
any of the calendar year. He is not covered as employee
under Section 25 B of ID Act. 2nd party denies that despite
need of regular staff, the post of messenger cum peon, the
Bank adopted unfair labour practice. It is denied that
services of workman are dispensed with in violation of
provisions of ID Act. It is submitted that provisions of ID
Act are not applicable to present case. Termination of
services of workman in violation of Section 25-F,G,H of ID
Act is denied. That temporary need in the Bank depends
on casual work which is fulfilled by any person who offers
his service for required period. The principles of policy of
last come first go is not attracted in the matter.
5. 2nd party denied that any circulars for regularization
to temporary employee has been issued. Appointment of
workman is denied. That deduction of PF is in compliance
of provisions under PF Act. The prayer of workman is
opposed. It is submitted that workman is not entitled to
any relief.
6. Ist party workman filed rejoinder reiterating his
contentions in statement of claim.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Negative
management of Satpura Kshetriya
Gramin Bank, Chhindwara in
terminating the services of Shri
Tulsi Ram Pardhi is justified?
(ii) If not, what relief the
As per final
workman is entitled to?"
order .
REASONS
8. Workman is challenging discontinuation of his
service in violation of Section 25-F of ID Act. In support of
his claim, workman filed affidavit of his evidence. Workman
says that he was engaged as sweeper cum messenger from
30-5-89 in Khara branch, Distt. Balaghat by Branch Manager
on vacant post. He worked more than 240 days in each
calendar year from 6-12-99 to 26-11-03, he was working in
Hatta branch. He continuously worked more than 240 days
during each of the year. His services were terminated without
notice, he was not paid retrenchment compensation. He
raised dispute for regularization of his service. During
pendency of conciliation proceedings, his services were
discontinued. After termination of his services, other daily
wage employees were engaged by the Bank he was not
given re-employment. He was paid wages at Collector rate
Rs.82.77 per day. 12 % amount of wages was deducted
towards PF during the year 1999 to 2003. In his cross-
examination, workman says apointment letter was not given
to him. He worked as sweeper cum messenger. Post was
not advertised. He did not tell his counsel but he submitted
application for appointment to the Bank. He produced
document about working in the Bank from 6-12-99 to
26-11-03. He produced documents about deduction of PF
for above period. He has not produced document about
vacant post.
9. Management's witness Snehlata Jaiswal filed
affidavit of her evidence denying workman was appointed
on vacant post as messenger on 30-5-89 in Khara branch.
That workman had not worked in said branch during April
90 to October 94. Workman never worked for 240 days
during any of the year. Workman never worked in Kosmi
branch of the Bank during 6-12-99 to 26-9-03. 1st party -
workman is not employee of the Bank. There was no
question of issuing notice or payment of compensation to
him. She has further stated that whenever any casual work
occurs any person including applicant is available comes,
Bank offers to do casual work. On completion of such casual
work, his services automatically comes to end. In her cross-
examination, management's witness says she was not
working in Khara branch. Personally she did not know
workman Tulsiram. During 89 to 99, she was working in
control office at Mandla branch. She admits Khara branch
was shifted to Kosmi branch. She did not remember name
of Branch Manager during 1989 to 2000. Before filing
affidavit, she discussed with Brancdh Manager Rajiv Batal.
She did not remember whether it was oral discussion or
documents were shown to her. That no post of peon/
sweeper was sanctioned in Kosmi branch. Branch Manager
was engaging persons for few hours for cleaning office. Its
information was intermittently given to control office.
Branch Manager was given authority to employ person as
per need. She did not remember how many persons were
engaged by Branch Manager from 1989 to 2000. She was
unable to tell whether workman was engaged on daily wages
from 1989 to 2003, for how many days workman was working
in the branch on daily wages. She has stated in her affidavit
that workman did not work for 240 days as per information
given by Branch Manager Shri Rajesh. She did not know
how many persons were engaged for cleaning. She did not
know how payment was made to such persons. She did
not remember whether she seen any record about payment
made to daily wage employees for cleaning work.
Attendance register is maintained in branch. She did not
know what work presently is done by workman. On
information received from Branch Manager, she stated
workman is not unemployed. Branch Manager Rajesh is
still working in the branch. She was unable to tell whether
maintained acquaintance roll, payment register, PF register,
payment vouchers during period 1989 to 2003.
10. Workman has produced documents. Exhibit W-1
settlement between Union and management of the Bank
dated 20-3-94. Exhibit W-1 refers to circular issued by
NABARD dated 7-5-87 and circular issued by RTI dated
8-8-84 for regularization of part time farrash. Process of
4116
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
regularization of such part time farrash working for 240
days was started. Said process would be continued till
15-6-94. Seniority list would be published in 15-4-95. The
employees who did not receive bonus orders for payment
of bonus to them. Exhibit W-2 is Board of Directors taken
decision to terminate services immediately of daily wage
messengers. Other documents produced by workman are
not proved by valid evidence.
11. The question arise about evidence of workman
and management's witness. As discussed above, the
management's witness has no personal knowledge. Her
evidence is based on information received from Branch
Manager who are still working in the branch. The
documents maintained in the Bank payment register, AC
statement, etc. which are maintained by the Bank are not
produced.
12. The evidence of workman in cross-examination
shows that workman has not produced documents about
his working for 240 days. After discontinuation of his
service, other persons engaged on daily wages. The
documents relating to it are not produced. The
management's witness in her cross-examination says she
does not mean that workman was never working in the
Bank. In cross- examination of workman, there is no
suggestion that workman was not working, with Bank or
he had not completed 240 days continuous service as stated
in his affidavit. Evidence of workman on above point
remained unchallenged in his cross-examination. Evidence
of workman is supported by some documents and his
evidence remained unchallenged on the point he had worked
more than 240 days during any of the year. The evidence of
management's witness is silent as to who was working as
regular sweeper in the Bank. If no regular sweeper was
working in the Bank, the Chairman of Bank had written
letter to the General Manager Exhibit W-2 clearly stating
that 54 persons have been working on daily wages or
messengers in branches against regular vacancies since
long corroborates evidence of the workman. I find no reason
to disbelieve workman that he was continuously working
in the Bank from 1989 to 2003. Evidence of workman is
about completing more than 240 days continuous service
finds corroboration from document Exhibit W-2. As per
settlement Exhibit W-1, the process for regularization of
part time employee, part time farrash was started and it was
not to be completed till 5-4-94 as per the circulars issued by
NABARD dated 7-5-87, circular issued by RBI 8-10-84. 2nd
party has not produced those circulars. The evidence of
management's witness is clear that workman was not served
with notice. Retrenchment compensation was not paid to
him, services of workman are terminated without violation
of Section 25-F of ID Act.
13. Learned counsel for Ist party Shri A.K. Shashi
relies on ratio held in case of Maharashtra State Board of
Secondary and Higher Secondary Education, Amravati and
another versus Sanjay Krishnarao Shrungare Amravati
reported in 2008-II-CLR-301. Their Lordship dealing with
Section 25-F, G, H of ID Act in case related to unfair labour
practice under Maharashtra Act held that best possible
evidence on the point of total service put I by the
respondents not brought on record by the appellant.
Appellant has to blame itself for this failure on its part. The
Labour Judge and the Industrial Court did not err in drawing
their conclusions.
In present case, though management's witness
admits the record of various files is maintained in the Bank.
It is not produced. It appear that management is
suppressing the material evidence. From above reasons, it
is clear that services of Ist party workman are terminated in
violation of Section 25-F of ID Act. Therefore I record my
finding in Point No. 1 in Negative.
14. Point No. 2- In view of my finding in Point No. 1
termination of Ist party is in violation of Section 25-F of ID
Act, question remains for consideration whether workman
is entitled for reinstatement with backwages. Though
workman in his pleadings and evidence has referred to the
circulars issued by NABARD and RBI relating to regulation
of part time employees, those circulars are not produced
on record, the term of reference pertain to regularization of
workman rather it pertains to legality of termination of his
service. From reasons dealing with Point No. 1, it is clear
that Ist party workman was working continuously with
2nd party as peon/sweeper from 1989 to 2003 for about 12-
13 years but post was not advertised. Workman was not
issued appointment letter. Workman was engaged on daily
wages. As per Exhibit W-2, 54 part time employees were
working against sanctioned post for long period. The advice
of General Manager was requested by the Chairman. Point
w.r.t. the relief for reinstatement with backwages, Shri A.K.
Shashi counsel for workman pointed out my attention to
the award passed in R/88/2001 & R/9/2 to 17/12 & 1/13.
Considering ratio held in various cases, in Para 28 of the
award, it was observed that workman have worked for
different period. The reinstatement with backwages is not
automatic. The facts of each case needs to be considered.
Workman who worked more than 2 years and workman
working between 4-7 years needs different consideration.
Workman who have completed 10 years service for long
time deserves reinstatement. Workman working more than
7 years deserve compensation Rs. 50,000/- workman
working about 4 years deserves compensation Rs. One
Lakh. Same principle would be applied while dealing with
the claim for reinstatement by workman. Workman was
working with the 2nd party from 1990 to 2003 for about 13
years justified his claim for reinstatement.
15. Learned counsel for 2nd party Shri Pramesh Jain
submitted written notes of argument opposing claim of
workman for reinstatement that workman had not completed
240 days continuous service. Learned counsel relies on
¹Hkkx IIó[k.M 3(ii)º
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4117
ratio held in Case of BSNL versus Bhurumal reported in
Civil Appeal No. 10957/2013. In Para 24 of the judgment,
their Lordship considering ratio held in case of State of
Karnataka versus Uma Devi 2006(4) SCC-1 observed thus
when he cannot claim regularization and he has no right to
continue even as a daily wage worker, no useful purpose is
going to be served in reinstating such a workman and he
can be given monetary compensation by the Court itself in
as much as if he is terminated against after reinstatement,
he would receive monetary compensation only in the form
of retrenchment compensation and notice pay.
In Exhibit W-1, Union and management had arrived
at settlement for regularization of part time employees on
15-6-94. In Exhibit W-2 Chairman of the Bank has requested
advice of General Manager that 54 part time employees
were working in the Bank since long against sanctioned
post. The ratio in above cited case cannot be applied to
case at hand as the facts are not comparable.
Learned counsel for 2nd party Shri Pramesh Jain also
relies on ratio held in case of Tapash Kumar versus BSNL
reported in 2014 AIR SCW 5816. Their Lordship have
considered when reinstatement can be ordered. The order
of Division Bench awarding compensation in lieu of
reinstatement was set aside. In para-5 of the judgment,
their Lordship held it is no doubt true that Court may pass
an order substituting reinstatement by awarding
compensation but the same has to be based on justifiable
grounds i.e. (1) where the industry is closed, (ii) where the
employee has superannuated or going to retire shortly and
no period of service is left to his credit, (iii) where the
workman has been rendered incapacitated to discharge
the duties and cannot be reinstated and (iv) when he has
lost confidence of the management to discharge duties.
In present case, management's witness says any
chargesheet for misconduct was not issued to the workman.
The Bank is not closed. Workman have not attained age of
superannuation. The ratio held in above cited case does
not support the contentions of 2nd party.
Learned counsel for 2nd party also relies on ratio
held in case of Mahboob Deepak versus Nagar Panchayat
Gajraula reported in Appeal No. 5875 of 2007. In para 2 of
the judgment, their Lordship discussed it is now well settled
by a catena of decisions of this court that in a situation of
this nature instead and in place of directing reinstatement
with full back wages, the workmen should be granted
adequate monetary compensation.
Ratio held in case 2014 AIR SCW 5816 holds the filed
that reinstatement can be refused only on 4 grounds
discussed above. Therefore ratio in above cited case
cannot be beneficially applied. For same reasons, ratio held
in case of MP Administration vrs. Tribhuban reported in
2007(5) Scale 397 cannot be beneficially applied to case at
hand.
16. At the time of argument, learned counsel for
workman Shri A.K. Shashi submits that workman is not
interested in backwages rather workman be provided
reinstatement without backwages. For the reasons
discussed above, it would be appropriate to direct
reinstatement of workman considering he was working with
2nd party for about 3 years on daily wages. Despite
settlement Exhibit W-1 & W-2 clearly stating that 54 part
time employees were working against sanctioned post for
long period, it is not known what advice was given by
General Manager to said workman, reinstatement of
workman would be appropriate. Accordingly I record my
finding in Point No. 2.
17. In the result, award is passed as under:—
(1) The action of the management of Satpura
Kshetriya Gramin Bank, Chhindwara in
terminating the services of Shri Tulsi Ram Pardhi
is not proper and legal.
(2) Termination of workman is set-aside. 2nd party is
directed to reinstatement workman without
backwages.
(3) Parties to bear their respective costs.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 14 vDrwcj] 2015
dkñ vkñ 1994—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]psUubZ
ds iapkV ¼lanHkZ la[;k 77@2014½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 14-10-2015 dks izkIr gqvk FkkA
[lañ ,y&12012@43@2014&vkbZ vkj ¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O. 1994.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 77/
2014) 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
14/10/2015.
[No. L-12012/43/2014-IR(B-1)]
SUMATI SAKLANI, Section Officer
4118
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Friday, the 18th September, 2015
Present: K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 77/2014
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management of State Bank of India and their workman].
BETWEEN
Sri B. Ramalingam:
:
1st Party/Petitioner
AND
The Regional Manager
:
2nd Party/
State Bank of India, RBO-II
Respondent
Administrative Unit, 2, Dr. Ambedkar road
Madurai-625002
Appearance:
For the 1st Party/Petitioner :
M/s. Law Square,
Advocates
For the 2nd Party/Respondent :
Sri S. Ravindran, S.
Bazeer Ahmad,
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12012/43/2014-IR (B.1)
dated 17.09.2014 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of State Bank
of India in dismissing the services of Sri B.
Ramalingam is legal and justified? If not, to what
relief the workman is entitled to?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 77/2014 and issued notices to both
sides. Both sides have entered appearance through their
counsel and filed Claim and Counter Statement respectively.
The petitioner has filed rejoinder in reply to the Counter
Statement.
3. The averments in the Claim Statement filed by the
petitioner in brief are these:
The petitioner has joined as an Assistant in State
Bank of India on 01.08.1984. He had been discharging his
duties to the utmost satisfaction of his superiors. He was
suspended from service by proceedings dated 13.07.2002
alleging that he has committed certain irregularities while
he was working at Ramanathapuram Branch. Subsequently,
a Show Cause Notice was issued to him alleging that he
had fraudulently withdrawn Rs. 54,000/- from the account
of Sathya Bama, a customer of the Ramanathapuram Town
Branch by using the bank withdrawal from obtained from
her and used the cash for his personal benefit without the
knowledge of the customer. It was also alleged that he had
given the closed SB Pass Book of Sathya Bama to her
without updating the Pass Book. The petitioner had refused
the charges orally. The Second Respondent appointed an
Enquiry Officer to conduct enquiry on the allegations
against the petitioner. The enquiry was not conducted in a
fair and proper manner. The petitioner has examined himself
as witness on his side and denied all the four charges
leveled against him. He has also denied the confession
letter allegedly obtained from him under coercion by the
Management representative. He had given a detailed
representation on 16.01.2004 denying all the allegations
leveled against him. The Enquiry Officer erroneously found
that the charges leveled against the petitioner are proved.
The petitioner was called for a personal hearing, but the
explanation given by the petitioner was not accepted. On
27.04.2004 the petitioner was dismissed from service with
immediate effect. The appeal filed by the petitioner against
the order of dismissal was dismissed. The dispute is raised
accordingly. An order may be passed directing the
Respondent to reinstate the petitioner in service with
backwages, continuity of service and other benefits.
4. The Respondent has filed Counter Statement
contending as below:
The Respondent Bank is a premier Banking
Corporation. The employees of the bank dealing with public
money should maintain high standards of ethics, honesty
and diligence. Any conduct of the bank employee
prejudicial to the interests of the bank un-becoming of a
bank employee would be dealt with severely. The petitioner
was working as Assistant in Ramanathapuram Town Branch
of the Respondent. Sathya Bama, one of the customers of
the Bank had a savings bank account in the branch. On
14.05.2001 she had paid Rs. 3.00 lakhs and obtained six
special term deposit receipts, each valued at Rs. 50,000/-.
The deposit receipts were due for payment on 14.05.2002.
On 07.05 2002 Sathya Bama came to the branch and
submitted a format for closing her Savings Bank Account.
She also handed over six deposit receipts to the petitioner
for renewal. The petitioner informed her that it could be
done only on 14.05 2002 and agreed to keep the receipts in
his possession and return them to her on 14.05.2002 after
duly renewing the same. On 09.05.2002 the petitioner closed
the account of Sathya Bama and handed over the Pass
Book to her. On 14.05.2002 he handed over six deposit
receipts duly renewed. On 10.07.2002 Sathya Bama came to
the branch with two of the deposit receipts and gave a
letter for foreclosure of two deposit receipts. On verification
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4119
of the receipts she was informed that one of the receipts
was not genuine and amount could not be given to her on
this. A perusal of her accounts revealed that on 07.05.2002,
Rs. 54,299/- was credited to her account and Rs. 54,300/-
was withdrawn on the same day. Sathyabama gave a written
complaint to the bank stating that she had handed over six
deposit receipts and a format to close the SB Account to
the petitioner on 07.05.2002 and that she had not withdrawn
any amount from her SB Account on 07.05.2002. On receipt
of the complaint the petitioner's ledger folio was scrutinized
and it showed that Rs. 54,300/- had been withdrawn from
her account on 07.05.2002 after crediting Rs. 54,299/- on
transfer. This was done by the petitioner foreclosing
Deposit Receipt No. 727324 in the name of Sathyabama.
The conduct of the petitioner was a grave misconduct. He
was charge sheeted for misconduct and an enquiry was
conducted. Nine documents were marked in the enquiry
proceedings. The petitioner was found guilty of the charge
leveled against him and punishment of dismissal from
service was imposed on him. The petitioner had challenged
the order by a Writ Petition before the High Court of Madras
and this was withdrawn on 06.04.2011 The dispute is raised
thereafter. The allegation that the enquiry was not
conducted in accordance with the principles of natural
justice is not correct. The petitioner is not entitled to any
relief.
5. The petitioner has filed rejoinder denying the
allegations in the Counter Statement and reiterating his
case in the Claim Statement.
6. The evidence in the case consists of oral evidence
of WW1 and documents marked as Ext.W1 to Ext.W14 and
Ext. M1 to Ext M13.
7. The points for consideration are:
(i) Whether the action of the management of State
Bank of India in dismissing the petitioner from
service is legal and justified?
(ii) What is the relief, if any to which the petitioner is
entitled?
The Points
8. As could be seen, that the petitioner who had
joined State Bank of India as Assistant in 1984 was
dismissed from service on 27.04.2004 on the basis of an
enquiry report on charge of certain misconducts alleged
against him. Ext.W2 is the Charge Memo issued to the
petitioner on 04.06 2003. The petitioner was suspended
from service by Ext.W1 order on 31.07.2002 itself based on
the irregularities allegedly committed by him. There are
four charges in the Charge Memo issued to the petitioner.
As per the first charge, on 07.05.2002 the petitioner had
obtained six deposit receipts discharged on the reverse
from Sathya Bama, the holder of the deposit receipts along
with a request letter for closure of her SB Account and also
a blank SB withdrawal form. The petitioner is said to have
unauthorizedly utilized the request letter and closed one of
the deposit receipts bearing number 727324 for an amount
of Rs. 54,299/-. Thus he is said to have betrayed the trust
reposed on him by the customer and acted detrimental to
the interests of the bank. As per the second charge, on the
same day the petitioner had fraudulently withdrawn
Rs. 54,300/- from the SB Account of Sathya Bama using the
blank withdrawal form obtained from her and received
cash for the same and had utilized the amount for his
personal benefit without the knowledge of the customer.
The third charge states that he had prepared a deposit
receipt bearing number 815987 for Rs. 54,367/- in the
name of Sathya Bama by removing a form for deposit
receipt from the concerned Assistant without his
knowledge and forged the signature of the Assistant in
the deposit receipt. The fourth charge is that on
14.05.2002 he had delivered the closed SB Pass Book to
Sathya Bama without updating the transactions and without
proper authentication with the intention to conceal the
fact of withdrawal of Rs. 54,300/- from the account on
07.05.2002.
9. Notice of disciplinary proceedings has been
issued to the petitioner and he had participated in the
disciplinary proceedings throughout through a Defense
Representative In the Claim Statement the petitioner has
raised a contention that the enquiry has not been conducted
in a fair and proper manner. Because of this contention
the issue has been considered initially and I have entered
into a preliminary finding that the conduct of the enquiry
was fair and proper.
10. In the enquiry the management did not examine
any witnesses. Nine documents were produced to establish
the case. Though the petitioner participated in the enquiry
he did not adduce any evidence either oral or
documentary. In the Claim Statement as well as in the
Proof Affidavit filed by him, the petitioner has claimed
that he has examined himself as witness on his side and
denied all the charges leveled against him. This statement
is factually incorrect as I find that he has not given any
evidence in the enquiry proceedings.
11. The Enquiry Officer has entered a finding based
on the documents produced and the written submissions
made by either side based on this. It has been argued on
behalf of the petitioner that due to non-examination of
Sathya Bama in whose account irregularity has been
allegedly committed itself, the case of the Management
is to be rejected. The Management has marked a complaint
said to have been given by Sathya Bama regarding the
irregularities committed by the petitioner. This has been
marked as Ext. M8 before this Court. The case of the
Management is that on 14.05.2002 Sathya Bama went back
with the renewed deposit receipts that were handed over
by the petitioner and came back later for foreclosure of two
of the deposit receipts. On scrutiny, it was noticed that one
of the receipts was not registered with the Bank at all. Only
4120
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
then it was realized that the petitioner had committed the
irregularities and Sathya Bama had given the complaint
consequently. Of course there is sufficient force in the
argument advanced on behalf of the petitioner that in the
absence of examination of Sathya Bama the complaint
given by her could not have been accepted in evidence or
relief upon by the Enquiry Officer. The counsel for the
Respondent has of course argued that the document has
been marked without any objection and the petitioner
could not raise any objection regarding the marking of
the document later. However, mere marking of the
document could not be proof of the document itself. It
was incumbent upon the Management to examine the
complainant.
12. It has been argued on behalf of the Respondent
that there is sufficient material available to show that the
petitioner has committed the irregularities alleged. It
could be seen from the enquiry proceedings that none of
the other documents other than the complaint were
disputed by the petitioner. Ext.M1 is the letter given by
Sathya Bama to close the account. The account number is
seen given at the top and also inside the body of the
document. The number at the top is seen struck off and
the deposit receipt number which was foreclosed on
07.05.2002 is seen written below this. However, the
account number shown in the body of the document
remained unchanged. The case seems to be that this was
done by the petitioner after he obtained it from Sathya
Bama. He is said to have utilized the blank withdrawal
form given by her to withdraw the amount which has been
credited to her account after foreclosing the deposit
receipt. Ext.M2 is the deposit receipt number 727324
dated 14.05.2001 issued to Sathya Bama. Ext.M3 is the
withdrawal slip for Rs. 54,300/-. Ext.M4 is the deposit
receipt number 815987 in the name of Sathya Bama.
Ext.M5 is the copy of the Pass Book of Sathya Bama which
shows that the account was closed on 09.05.2002. The
case is that the petitioner closed the account on this date
without updating the Pass Book to conceal the withdrawal
of Rs. 54,300/- from her account and handed it over to
her on 14.05.2002 on which date she approached the
petitioner for renewed deposit receipts. Ext.M6 is the
extract of ledger account of Sathya Bama showing that
Rs. 54,299/- was credited to the account by transfer and
Rs. 54,300/- has been withdrawn. Ext.M7 is the letter
written by Sathya Bama to foreclose the two deposit
receipts.
13. What is the evidence to show that irregularities
were committed by the petitioner? Ext.W2 Charge Memo
was issued to the petitioner. He was asked to submit his
statement of defence within 15 days of receipt of the same
However, the petitioner has not submitted any written
explanation to the management in answer to the Charge
Memo issued to him. His case in the Claim Statement is
that he has orally denied the allegations. However,
apparently, before enquiry was started, he did not take a
specific stand denying the allegations made by way of the
Charge Memo. On going through the enquiry proceedings
and also the written submission given by the Defence
Representative it could be seen that the fact that Sathya
Bama has approached him on 07.05.2002 to renew the
deposit receipts is not seen denied by the petitioner during
the enquiry proceedings. As could be seen from the
statement made by the Defence Representative before the
Enquiry Officer on 02.12.2003, the stand taken by the
petitioner at the time is that when Sathya Bama approached
him on 07.05.2002 she was informed that the deposit receipts
could be closed only on 14.05.2002 on which date it is to
mature. It is further stated by the Defence Representative
that due to urgency Sathya Bama had requested to close
one of the deposit receipts and the petitioner had helped
him for premature closure of one of the receipts and had
handed over the money. The Defence Representative
proceeds that as Sathya Bama had some other private
engagement in the town and did not want to carry the
entire money and so she took Rs. 15,000/- which is part of
the amount and asked the petitioner to retain the balance
with him. I have referred to this statement of the Defence
Representative to show that there was never a case for the
petitioner that he has nothing to do with the transaction
done on 07.05.2002.
14. Ext.M9 is the statement said to have been given
by the petitioner to the Management. This statement is
also produced in the enquiry proceedings. Nowhere in the
enquiry proceedings I find a contention that this is a
document obtained from the petitioner by coercion.
However, in the Claim Statement it is contended by the
petitioner that this document was obtained from him by a
representative of the Management under coercion. For one
thing, it is for the first time before this Tribunal such a
contention is being raised. From the every contention raised
in the Claim Statement it could be seen that Ext.M9 is a
letter written by the petitioner in his own hand. His only
contention is that it was obtained by coercion. The counsel
for the Respondent has referred to the decision of the Apex
Court reported in ORISSA MINING CORPORATION AND
ANOTHER VS. ANANDA CHANDRA PRUSTY reported
in AIR 1997 SC 2274 to argue for the position that in such
circumstance it is for the petitioner to establish under what
circumstances the document was obtained. In the above
decision, the Supreme Court has held that there is no such
thing as absolute burden of proof always lying upon the
Management in a disciplinary enquiry. The burden of proof
depends upon the nature of explanation and the nature of
charges. In a given case the burden may be shifted on the
delinquent Officer depending upon his explanation, it was
held.
15. The above dictum laid down by the Apex Court
is relevant when the statement made by the petitioner in
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4121
Ext.M9 is taken into account. In this the petitioner has
stated that when Sathya Bama came for renewing the
receipts for Rs. 50,000/- each, he had told her that the
maturity date was not over and had asked her to come later.
Since she wanted Rs. 15,000/- he had foreclosed one receipt
and had credited it to her account and paid Rs. 15,000/- to
her. He has then admitted that he has taken the balance
amount to himself. This amounts to an admission on the
part of the petitioner that the balance amount out of the
amount credited to the account of Sathya Bama has been
taken by himself. When such an admission is made, it is for
the petitioner to explain under what circumstances he
happened to retain the amount. So far as the management
is concerned it is proved by the admission of the petitioner
that he retained the amount. When it is admitted by the
petitioner that the document was given by him in his hand
it is for him to establish that it was obtained from him by
coercion by the Management. The burden to prove this
has shifted to him in view of the very case set up by him.
The petitioner has not lifted a finger to prove that Ext.M9 is
the document that has come out of coercion and it was not
voluntarily given by him. When Ext.M9 is read along with
other documents it is clear that he had fraudulently
withdrawn the amount and utilized it by himself.
16. The next part of admission made by the
petitioner in Ext.M9 makes the above fact more clear apart
from proving the third charge also. It is clear from Ext.M9
that Sathya Bama had approached the petitioner on 14.05
2002, the date on which the deposits were to mature.
According to the petitioner, by mistake he had written
one deposit receipt, signed it himself and had given it to
Sathya Bama. The case of the Respondent is that the
deposit receipt was forged by the petitioner. This was
because he had foreclosed one of the deposit receipts
without her knowledge and had utilized the amount by
himself. No other explanation can be given for the
petitioner managing to fill up a deposit receipt form,
signing it himself and giving it to Sathya Bama.
17. The fourth charge is regarding closure of the
account and handing over of the Pass Book by the petitioner
to Sathya Bama without updating, in order to conceal the
fraudulent transaction committed by him. However, the
petitioner has not stated anything about the closure of the
account in Ext.M9. The Management has not adduced any
evidence other than producing copy of the closed Pass
Book in this respect. This by itself is not sufficient to prove
this charge.
18. The irregularities committed by the petitioner on
charge 1 to 3 themselves are very grave misconducts. An
employee who is dealing with the public money is expected
to be honest and straight in the transactions. The conduct
of the petitioner was against this expectation. For the
proved misconducts itself, the punishment imposed on
him is not inappropriate. The petitioner is not entitled to
any relief.
In view of my discussion above, the reference is
answered against the petitioner. An award is passed
accordingly.
K. P. PRASANNA KUMARI, Prisiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
WW1, Sri B.
Ramalingam
For the 2nd Party/Management
:
None
Documents Marked.:
On the petitioner's side
Ex. No.
Date
Description
Ext.W1
13.07.2002
Show-Cause Notice issued to the
petitioner
Ext W2
04.06.2003
Charge Memo issued to the
petitioner
Ext W3
15.07.2003
Enquiry Notice issued to the
petitioner
Ext W4
15.10.2003
Enquiry proceedings
to
02.12.2003
Ext W5
18.12.2003
Written brief submitted by the
Presenting Officer before the
Enquiry Officer
Ext W6
16.01.2004
Written brief submitted by the
Defence Representative before
the Enquiry Officer
Ext W7
22.01.2004
Enquiry Officer's report
Ext W8
10.03.2004
Written submissions given by the
petitioner
Ext W9
27.04.2004
Punishment order issued to the
petitioner
Ext W10
17.06.2004
Appeal submitted by the
petitioner to the Respondent
Ext W11
15.07.2004
Letter submitted by the petitioner
Ext W12
15.07.2004
Personal hearing proceedings
during appeal
Ext W13
15.07.2004
Written submission of the
petitioner during the personal
hearing of the appeal by the
Respondent
Ext W14
07.08.2004
Final order issued by the
Respondent rejecting petitioner's
appeal
4122
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
On the Management's side
Ex. No.
Date
Description
Ext.M1
-
Letter from Sathya Bama to
Respondent to close SB Account
Ext. M2
14.05.2001
RD Receipt No. 727324 of Sathya
Bama withdrawal slip for
Rs. 54,300/-
Ext. M3
-
Withdrawal slip for Rs. 54,300/-
Ext. M4
14.05.2002
RD Receipt No. 815987 of Sathya
Bama SB Pass Book
Ext. M5
-
SB Pass Book of Sathya Bama
Ext. M6
-
Ledger Account of Sathya Bama
Ext. M7
-
Letter from Sathya Bama to
foreclose her two RDs
Ext. M8
10.07.2002
Complaint of Sathya Bama
Ext. M9
10.07.2002
Petitioner letter to Respondent
Ext. M10
06.02.2004
Respondent's letter to Petitioner
enclosing the finding of the
Enquiry Officer
Ext. M11
30.03.2004
Respondent's letter to Petitioner
proposing
punishment
of
dismissal
Ext. M12
15.04.2004
Personal hearing notice issued to
Petitioner
Ext. M13
23.04.2004
Minutes of personal hearing
ubZ fnYyh] 14 vDrwcj] 2015
dkñvkñ1995-—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj iwoZ
jsyos ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k] y[kuÅ ds iapkV ¼lanHkZ la[;k 33@2014½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 14@10@2015 dks izkIr gqvk FkkA
[lañ ,y&41011@133@2014&vkbZ vkj ¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O.1995.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby published the Award (Ref. No. 33/
2014) of the Cent.Govt.Indus.Tribunal-cum-Labour
Court, Lucknow as shown in the Annexure, in the Industrial
Dispute between the management of North Eastern
Railway and their workmen, received by the Central
Government on 14/10/2015.
[No. L-41011/133/2014-IR(B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
Present
RAKESH KUMAR, Presiding Officer
I.D. No. 33/2014
Ref. No. L-41011/133/2014-IR(B-1) dated 06.05.2014
Between
Anchal Sangthan Secretary
Rail Sevak Sangh
C/o Shri D.P. Awasthi
49, Tilak Marg,
Lucknow.
(Espousing cause of Sri Chandra Dev)
And
1. Sr. Divisional Personnel Officer
North Eastern Railway
DRM Office, Ashok Marg
Lucknow.
2. The Chief Medical Superintendent
North Eastern Railway
Gonda (UP)
AWARD
1. By Order No. L-41011/133/2014-IR(B-I) dated
06.05.2014 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by clause
(d) of sub-section (1) and sub-section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between Anchal Sangthan Secretary, Rail
Sevak Sangh, C/o Shri D.P. Awasthi, 49, Tilak Nagar,
Lucknow and Sr. Divisional Personnel Officer, North Eastern
Railway, DRM Office, Ashok Marg, Lucknow and the Chief
Medical Superintendent, North Eastern Railway, Gonda
(UP) for adjudication.
2. The reference under adjudication is:
^^D;k iwoksZÙkj jsy iz'kklu] y[kuÅ o xksaMk }kjk Jh panznso
iq= Jh /kuiky] lQkbZokyk dks iqjkuh isa'ku u nsdj ubZ isa'ku
fn;k tkuk U;k;ksfpr ,oa oS/k gS\ ;fn ugha rks dkexkj fdl
jkgr dks ikus dk gdnkj gS\**
3. On receipt of the reference order the workman's
union was issued registered notice to file his statement of
claim complete with relevant documents, list of reliance
and witnesses before Tribunal on 17.07.2014 with an
advance copy to the opposite party. The Secretary of the
workman's union appeared before the Tribunal and
requested for a date for filing of statement of claim.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4123
4. On successive dates the management also turned
up. Since the case was related to grant of old pension
scheme instead of new pension scheme, the parties were
advised to settle the dispute amicably through Lok Adalat.
Accordingly, the case was taken up at Lok Adalat on
08.05.2015.
5. On 08.05.2015, Shri D.P. Awasthi, Secretary of the
workman's union was present whereas the opposite parties
were represented by Shri Upendera Kumar Sharma, Chief
Welfare Officer.
6. The opposite party filed M-5, letter signed by Sri
P.B. Prasad, Senior Divisional Personnel Officer, North
Eastern Railway, Lucknow, enclosing circular No. 2012/
F(E)III/I(I)/2 dated 29.10.2014 of the Railaway Board. The
management in letter M-5, referring circular dated 29.10.2014
has stated that the Railway Board, New Delhi vide their
circular dated 29.10.2014 has directed to cover the
employees who get temporary status prior to 01.01.2004
may be covered under Old Pension Scheme.
7. A copy of the M-4 was furnished to the workman's
union. The authorized representative of the workman's
union sought time to consult the workman; and accordingly,
the case was taken up on 28.08.2015 at Lok Adalat. The
Authorized representative of the workman's union. Shri
D.P. Awasthi after going through the contents of letter,
M-4 and circular dated 29.10.2014 showed willingness to
withdraw the present industrial dispute being claim settled;
and made and endorsement thereupon as under:
"Since the relief claimed by the Union has been
accepted by the Railway Management, further
proceeding of this case may kindly bse dropped."
8. In view of the submision/endorsement of the
workman's union for dropping of the proceedings, there is
no grievance left with the workman's union as the present
industrial dispute pertains to non-grant of old pension to
the workman by the railway management and the
management of the railway has granted the same vide
circular 2012/F(E)III/I(I)/2 dated 29.10.2014 of the Railway
Board. Resultantly, the industrial dispute stands settled;
and no relief is required to be given to he workman
concerned. The reference under adjudication is answered
accordingly
9. Award as above.
LUCKNOW RAKESH KUMAR, Presiding Officer
24th September, 2015.
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LVsV cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
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lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O.1996.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby published the Award (Ref. No. 32/
2011) of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the Industrial
Dispute between the management of State Bank of India
and their workmen, received by the Central Government
on 14/10/2015.
[No. L-12012/280/1999-IR(B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/32/2011
General secretary,
Akhil Bhartiyia Adhinasth Bank Karamchari Sangh,
24, Didvakar Enclave,
Patel Nagar City Centre,
Gwalior
...Workman/Union
Versus
General Manager,
State Bank of India,
Regional office,
Moti Market, Jayendra Ganj,
Gwalior
...Management
AWARD
Passed on this 26th day of August 2015
1. As per letter dated 28.4.2011 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/
280/1999-IR (B-I). The dispute under reference relates to:
‘‘Whether the demand of the Akhil Bhartiya
Adhinastha Bank Karamchari Sangh, Gwalior for
permanent appointment of Shri Suresh Chander
Rajak as General Attendant (Sweeper-cum-Farrash)
in State Bank of India, is legal and justified? If so,
what relief the workman/Union is entitled to?"
2. After receiving reference, notices were issued
to the parties. Statement of claim is submitted. Case of
workman is that he was employed as temporary messenger
on daily wages in branch of SBI for 90 days during 1984 to
4124
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
1985. That bipartite agreement between management and
All India SBI Staff Federation for absorption of daily wage
messengers was settled. The temporary employees were
categorised in 3 categories. All eligible candidates were
given opportunity for consideration for permanent
absorption. Workman appeared in interview for his
absorption. His name was included in Waiting List. 2nd
party however failed to follow said list in order of merit pick
and choose method was adopted while issuing
appointment. One Raj Kumar Verma was given appointment
in 1992 in Nowgaon Branch. Mathura Prasad Verma was
given appointment in Pichchi Kargama, Asha Ram Sahu in
Lidhoura branch. Many others were also give appointment
in out of turn Workman was denied benefit.
3. That 2nd party issued certificate dated 21-5-97.
Employees working on consolidated salary between
1-7-75 to 14-8-91 were allowed to appear in the interview,
that employees who have already appeared in interview in
1990 or 992 were not required to appear in the interview
again. As workman already appeared in interview, therefore
he had not appeared for interview in 1997. The interview
were held on 26th, 17th March, 1996. The persons junior
to him was given appointment to the post of messenger.
Name of workman was at Sl. No. 4 of the earlier Waiting
List. Despite of representation submitted by workman,
he was not given appointment as messenger. His
representations were not responded. Workman raised
dispute under reference. Workman raised dispute under
reference. Workman prays management be directed to give
him appointment as messenger.
4. 2nd party filed Written statement opposing claim
of the workman. Preliminary objection is raised by
management that engagement of workman was purely
temporary subject to availability of work. Workman
worked at Digoda branch during 5-11-84 to 31-12-84,
1-1-85 to 2-2-85 for total 77 days in broken period. The
settlement dated 17-11-87 between management and staff
federation related to temporary employees fulfilling
eligibility criteria were given chance of consideration for
appointment against vacancies likely to arise during 1987
to 99. The categories of employees were given those
who completed 240 days continuous service continuously
in block of 12 months or less after 1-7-75., those who
completed 270 days aggregate temporary service in any
continuous lock of 36 calendar months after 1-7-75.Those
who completed 30 days aggregate temporary service in
any calendar year after 1-7-75 or a minimum of 70 days
in any continuous block of 36 calendar months. Part time
employees were to be given perference for filling up of
full time vacancies. It was understood that vacancies first
be filled up from unused panels of the temporary
employees already interviewed and wait. Remaining
vacancies will be thrown open for the category of
temporary employees. That interview will be conducted
by Selection Committee to determine suitability/
unsuitability of temporary employee for permanent
appointment in the Bank. The guidelines regarding
reservation of vacancies for SC/ST Ex-serviceman would
however be applicable. The period of said agreement was
extended from 1987 to 1991. Other agreement was raised
between management and staff federation on 27-10-88
providing chance to be given to the temporary employees
in Cat-A, B, C. Settlement was arrived at between
management and staff federation on 9-1-91. The vacancies
till December 1994 were to be considered for existing
vacancies. Remaining Waiting List shall stand lapsed. That
panel of daily wagers will be used for filling vacancies
during 1995 to December 1996. If the panel of temporary
employees or the panel of daily wages and casual labour
would be decided administratively on circle basis
depending upon local requirement in consultation with
the Federations affiliated by the circle management. All
casual labours interviewed and found suitable for
promotional appointment will be empanelled category-
wise.
5. 2nd party submits that the allegation of workman
that junior employees to him were given appointment is
incorrect. The details of working days of workmen are
given in para 12 of the Written Statement. The claim of
workman that he has been waitlisted and should be
absorbed permanently is incorrect.
6. 2nd party submits that workman had worked for
total 77 days from 5-11-84 to 31-12-84, 1-1-85 to
9-2-85. He had not worked for 90 days is pleaded. Workman
was considered for absorption as per settlement dated
7-11-87. He worked only for 77 days in broken period. The
select list was prepared. The meritorious employees were
appointed. The candidate were paid maximum aggregate
service during 1-7-75 to 31-7-88 were placed at top and
next to him in terms of length of services were placed.
Name of workman was included in combined waiting list at
Sl. No. 92. Candidates upto Sl. No. 55 were given
appointment. Waiting List was kept alive till 31-3-97.
Remaining candidate could not be appointed.
7. Ist party submitted rejoinder reiterating his
contentions in statement of claim. Ist party contented that
workman had worked for 224 days. Denial of appointment
to workman is challenged.
8. Considering pleadings on record, the points
which arise for my consideration and determination are
as under. My findings are recorded against each of them
for the reasons as below:—
(i) ‘‘Whether the demand of the
In Affirmative
Akhil Bhartiya Adhinastha Bank
Karamchari Sangh, Gwalior for
permanant appointment of Shri Suresh
Chander Rajak as General
Attendant (Sweeper-cum-Farrash)
in State Bank of India, is legal and
justified?
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4125
(ii.) It not, what relief the
As per final order.
workman is entitled to?"
REASONS
9. The terms of reference relates to demand of
Kamgar Sangh for permanent appointment to Suresh
Chander Rajak i.e. the Ist party workman. The settlement
between federation are not in dispute.
10. Management has produced copy of settlement
dated 17-11-87 at Exhibit M-1 the temporary employees are
categorized as A, B, C. The temporary employee completing
240 days temporary service in 12 months or less after
1-7-75 temporary employees completed 270 days aggregate
temporary service in block of 36 months after 1-7-75.
Temporary employees completing minimum 30 days
aggregate service in any calendar year after 1-7-75 or the
minimum of 70 days in aggregate temporary service in any
continues block of 36 months are eligible for permanent
part time employees. Exhibit M-2 settlement dated 16-7-88
Exhibit M-3 is settlement dated 27-10-88 finds similar
clauses. Exhibit M-4 settlement dated 9-1-91 the period is
extended till 1995-96. Exhibit M-5 is settlement dated
13-7-96. The period was extended till March 1997. Exhibit
M-6 is settlement between Union and circle office Bhopal
dated 20-2-97. The categories for eligible temporary
employees were not modified.
11. Workman filed affadavit of his evidence
supporting his contentions in statement of claim. That
during 1984-85 he worked as temporary messenger on daily
wages for more than 90 days. He was working in 2nd party
Bank. His affadavit is also devoted to the circular dated
21-5-97. That the junior employees to him were appointed
in Navgaon branch. Shri Raj Kumar Verma, Mathura Prasad
Verma & Asha Ram Sahu were appointed in Digoda branch,
his name was included in Waiting List after interview. He
was not called for interview in 1997. The candidates
interviewed on 26th, 27th March 97 junior to him were given
appointment. From his evidence, documents Exhibit W-1
to W-8 are admitted in evidence. I deal with those documents
at later part. Workman in his cross-examination says he
was appointed in October 1984 by Branch Manager, his
name was called from Employment Exchange that he has
not produced documents about his registration in
Employment Exchange Office. He was engaged as
messenger. His pay was deposited in Bank Account. He
reiterates that he worked for 90 days but he was unable to
tell exact date. Shri Raj Kumar Verma when appointed in the
bank, he could not tell the date. Asha Ram was appointed
first in 1997. He was unable to tell when Mathura Prasad
was first appointed in Bank or date of his termination. He
further says he and Raj Kumar belong to SC. Asha and
Mathura were from open categories. He has no
information about the rules for regularization in service.
He has information about procedure for appointment of
messengers. He denies for regulaization, public notice is
given by the Bank. The signatures for regularization of
service, information is called from Employment Exchange.
Recruitment of messengers was made in 1997.
12. Management's witness Uday Bhagwat filed
affidavit stating that during 5-11-84 to 31-12-84, 1-1-85 to
9-2-85, workman had worked for 77 days in broken period.
He also refers to settlement dated 17-11-87 for absorption
of temporary employees, eligiblity criteria are reproduced
in its affidavit of evidence. His affidavit is also devoted to
other circulars, settlement. Management's witness denies
that candidates junior to him were given appointment to
Raj Kumar Verma, Mathura Prasad Verma & Asha Ram Sahu.
The details of their working days and other particulars are
stated in Written Statement stated in para 13 of his affidavit.
In his cross-examination, management's witness says no
document is produced on record that workman had worked
only for 77 days. He denied suggestion that workman
worked for 224 days during the relevant period. The Waiting
List is not produced. Despite the management's witness
had undertaken to produce it. The witness of managements
denies suggestion that workman had worked less number
of days than Shri Raj Kumar Verma, Mathura Prasad Verma
& Asha Ram Sahu. Though management's witness shows
willingness to produce Waiting list, it is not produced on
record. After 31-3-97, no public notice was issued for filling
vacancies. He claims ignorance whether workman was told
that his name was in waiting list therefore it was not
necessary to call him for interview again.
13. Workman produced documents Exhibit W-1 to
W-8. In W-1, name of workman Suresh Chander Rajak is
S1.No.4. his working is shown in Digoda branch.
Documents Exhibit W-2 is letter issued to workman by Asstt.
General Manager in the matter of appointment. In Exhibit
W-3, the working days of workman are shown 77 during
the relevant period. In W-4, workman was directed to
appproach the nearest branch in matter of appointment of
sub staff. Exhibit W-5 is letter dated 21-3-95 issued by Asstt.
General Manager to approach nearest bank in the matter of
appointment letter. In Exhibit W-6, Regional Manager
informed workman that after his interview on 24-12-90, his
name was included in Waiting List. Exhibit W-7 is copy of
Bipartite Agreement dated 27-10-88, 9-1-91. Exhibit W-8 is
letter issued by Chief General Manager after dispute was
raised before ALC. In annexure along with said letter, name
of Suresh Rajak is shown working in Digoda branch, his
working days are shown 13 days at Digoda branch and 111
days in Jhawar branch total working days 224.
14. Despite management's witness had shown his
willingness to produce select list of 1997, those documents
are not produced Learned counsel for workman Shri
Arbind Srivastava submits that management has
deliberately not produced Waiting List, adverse inference
be drawn. If those documents would have been produced,
it would have supported claim of workman.
4126
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
15. Shri Vijay Tripathi arguing for 2nd party submits
that workman had worked only for 77 days during relevant
period. No candidates working for less days than Ist party
workman were given appointment. That working days and
number in Waiting list is pleaded in Written Statement and
management's witness has also stated in his evidence
therefore adverse inference should not be drawn.
16. Learned counsel further submits that burden of
proof lies on workman about completing 240 days
continuous service relying in ratio held in
Case of Krishna Bhagya Jala Limited versus
Mohammed Rafi reported in 2009(11) SCC-522. Their
Lordship dealing with violation of Section 25-F of ID Act
held burden of proof as to completion of 240 days
continuous service in the year lies on the aggrieved
workman.
Present case is not related to violation of Section 25-
F of ID Act. Even after name of workman was enlisted in
Waiting list, after his interview, he was not given
appointment. Junior persons were given appointment.
Management is not producing Waiting list of 1992 or 1997.
Despite the witness of management had shown willingness
to produce those documents, the ratio in above cited case
cannot be applied to case at hand.
17. Reliance is also placed in Case of Secretary,
Irrigation and Power Department, Govt. of Orissa versus
Niranjan Swain reported in 1998(8) SCC 651. Their Lordship
dealing with the matter under Section 37 non production of
documents in Para-2. On the question of non production
of documents, it can only be says that the documents were
in the power, possession and custody of the appellants
and they should have produced the said documents and
even if the documents were not produced despite the
respondent being called upon to do so and having given
an undertaking in that behalf, we fail to see how it can be
contented that the Arbitrator was not entitled to proceed
because at best, the Arbitrator can raise an adverse
inference if necessary. That the arbitrator was not entitled
to proceed because arbitrator can raise the adverse
inference.
In present case, despite management's witness shown
willingness to produce the Waiting List, those documents
are not produced. Therefore adverse inference against 2nd
party is justified. if the documents of Waiting List of 1992,
97 are produced, those documents would support claim of
workman. in Annexure with W-8, 2224 working days of
workman are shown whereas in documents Exhibit W-3,
during relevant period his working days are shown 77 days.
Management claims that the persons have less working
days than workman are not given appointment. Waiting
list is not reproduced therefore the evidence of
management's witness cannot be accepted. The evidence
of workman is supported by document Exhibit W-3, W-8
deserves to be accepted. After his interview, he was not
given appointment as per settlement is illegal. The demand
of Union for giving appointment of workman is justified.
For above reasons, I record my finding in Point No. 1 in
Affirmative.
18. The evidence of workman is silent about his
employment therefore any direction w.r.t. payment of
wages would not be appropriate.
19. In the result, award is passed as under:-
(1) The demand of the Akhil Bhartiya Adhinastha
Bank Karamchari Sangh, Gwalior for permanent
appointment of Shri Suresh Chander Rajak as
General Attendant (Sweeper-cum-Farrash) in
State Bank of India is proper and legal.
(2) 2nd party is directed to appoint workman as
messengar as per settlement dated 17-1-87. He
is not allowed any backwages.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 14 vDrwcj] 2015
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dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lriqMk {ks=h;
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New Delhi, the 14th October, 2015
S.O. 1997. —In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 69/2007)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Satpura Kshetriya Gramin
Bank and their workmen, received by the Central
Government on 14/10/2015.
[No.L-12012/39/2007-IR(B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/69/2007
Shri Sriram Lanjewar,
S/o Shri Kamal Prasad Lanjewar,
Vill. & PO Mate, Kirnapur
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4127
Distt. Balaghat (MP), Chhindwara
Balaghat
Workman
Versus
The Chairman,
Satpura Kshetriya Gramin Bank,
Distt. Chhindwara
Management
AWARD
Passed on this 31st day of August 2015
1. As per letter dated 24-7-07 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of 1.D.Act, 1947 as per Notification No.L-12012/
39/2007-1R(B-I). The dispute under reference relates to:
"Whether the action of the management of Satpura
Kshetriya Gramin Bank, Chhindwara in terminating
the services of Shri Sriram Lanjewar. S/o Shri Kamal
Prasad Lanjewar is justified? If not, to what relief he
is entitled to?"
2. After receiving reference, notices were issued to
the parties. 1st party workman submitted statement of claim
at Page 2/1 to 2/4. Case of 1st party workman is that he was
engaged as peon-cum-messenger /by Branch Manager
Kirnapur branch on 2-4-90. Thereafter Kirnapur branch was
transferred and amalgamated in Hatta Branch. He rendered
his services in said branch from 14-11-94 to 27-11-03. That
he was engaged on vacant sanctioned post after following
due process by 2nd party No.2. He rendered his services
diligently for more than a decade. That he was eligible for
regularization of post of messenger-cum-peon considering
his long continuous service. Workman had submitted
representations to the Bank for regularization but were of
no avail. Workman had filed Writ Petition 1095/02 before
Hon'ble High Court, MP Jabalpur. The Writ Petition was
disposed off on 20-3-02 allowing opportunity to raise his
grievance before appropriate forum. Workman raised
dispute through Union before conciliation authority under
ID Act. During pendency of conciliation proceeding before
ALC, Chhindwara, his services were dispensed with from
27- 1 1-03 by the Bank without issuing order in writing. He
was not served with notice or compensation in lieu of notice
was not paid to him.
3. 1st party workman reiterates that he completed
more than 240 days continuous service. He is covered as
employee under Section 25 B of ID Act. The respondent
Bank failed to follow guidelines and scheme for
regularization of daily wage employees completing 240 days
service in a calendar year i.e. circular issued by NABARD
dated 7-5-87 and circular by RBI dated 8-10-84. The case
of 1st party workman as well as co-employee was put upby
Union before Bank for implementation of above circular
for regularization. Despite of agreement was raised upon
between Union and Bank for unknown reasons. 2nd party
Bank denied to implement the same. Letter dated 20-3-94
is relied. It is alleged that Bank despite need of regular
staff on post of messenger-cum- peon adopted unfair
labour practice dehors the principles of natural justice.
In violation of Section 33(C) of ID Act, services of
workman were terminated without notice. 2nd party
continued practice of pick and choose the daily rated
employees at their whims and fancies. 2nd party Bank
violated section 25-F, G, H of ID Act as juniors to the
workmen were retained in service even after
discontinuation of service of 1st party workman. It is
alleged that after discontinuing workman, other fresh
persons were appointed in place of daily wagers. Policy
of last come first go was not followed. Workman should
have been given preference over others in case of new
recruitment. The sponsored Bank of 2nd party Central
Bank of India issued directions to all branches on 16-2-90
directing them to provide information of all daily wage
employees who have completed 240 days continuous
service in 12 months during the period 1-1-82 to 31-3-95
by Regional Office, Chhindwara. The direction was not
complied. It is reiterated that during pendency of
conciliation proceedings pertaining to regularization of
services, workman was discontinued by the Bank in
arbitrary manner. The board of directors taken decision
to discharge services of employees during pendency of
conciliation proceedings vide communication dated
20-11-03. Workman further submits that since his initial
employment from 2-4-90 till 27-11-03, PF amount was
deducted from his wages. The deduction of PF wages of
workman clearly indicates that he worked more than 240
days in a calendar year. His services are terminated
illegally. On such ground, workman prays for his
reinstatement with full backwages.
4. 2nd party filed Written Statement at Page 3/1 to
3/4 opposing claim of workman. 2nd party raised preliminary
objection that workman has committed theft of
documents. All the documents relied by workman are
denied. That 1st party is not workman. He was never
appointed by the management. He was not sponsored
through Employment Exchange. He did not undergo
process of selection. The board has not sanctioned any
such post. 2nd party has no policy to appoint any person
contrary to the norms and rules. their relationship of
master servant between parties is denied. It is denied that
workman was engaged by Branch Manager, Kirnapur, Distt.
Balaghat as peon-cum-messenger. It is denied that
workman was transferred to Hatta branch and has
rendered continuous service from 14-1-94 to 27-11-03.
It is denied that workman was engaged on vacant
sanctioned post following due process. It is reiterated that
workman has not completed 240 days continuous service
during any of the calendar year. He is not covered as
employee under Section 25 B of ID Act. 2nd party denies
that despite need of regular staff, the post of messenger-
cum- peon, the Bank adopted unfair labour practice. It is
denied that services of workman are dispensed with in
4128
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
violation of provisions of ID Act. It is submitted that
provisions of ID Act are not applicable to present case.
'Termination of services of workman in violation of
Section 25-F,G,H of ID Act is denied. That temporary
need in the Bank depends on casual work which is fulfilled
by any person who offers his service for required period.
The principles of policy of last come first go is not
attracted in the matter.
5. 2nd party denied that any circulars for
regularization temporary employee has been issued.
Appointment of workman denied. That deduction of PF is
in compliance of provisions under PF Act. The prayer of
workman is opposed. It is submitted that workman is not
entitled to any relief.
6. 1st party workman filed rejoinder at Page 4/1 to
4/2 reiterating his contentions in statement of claim.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Negative
management of Satpura
Kshetriya Gramin Bank,
Chhindwara in terminating
the services of Shri Sriram
Lanjewar,S/o
Shri
Kama!lPrasad Lanjewar is
justified?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
8. Workman is challenging discontinuation of his
service in violation of Section 25-F of ID Act. In support of
his claim, workman filed affidavit of his evidence. Workman
says that he was engaged as sweeper-cum-messenger from
2-4-90 in branch mate, Tehsil Kirnapur by Branch Manager
on vacant post. He worked with mate branch from April 90
to October 94. He worked more than 240 days in each
calendar year from 14-11-90 to 26-11-03, he was working in
Hatta branch. He continuously worked more than 240 days
during each of the year. His services were terminated without
notice, he was not paid retrenchment compensation. He
raised dispute for regularization of his service. During
pendency of conciliation proceedings, his services were
discontinued. After termination of his services, other daily
wage employees were engaged by the Bank he was not
given re-employment. He was paid wages at Collector rate
Rs. 82.77 per day. 12% amount of wages was deducted
towards PF during the year 1999 to 2003. In his cross-
examination, workman says appointment letter was not
given to him. The post was not advertised. He has not
produced certificate that he was working more than 240
days during the year 1990 to October 94 and 14-11-94 to
26—03 working in Hatta branch. Workman admits that
daily work could be obtained from any employee. That he
has not produced documents about engaging daily wage
employee after he was discontinued. That he produced
receipt about deduction of 12% wages towards PF. That
Attendance Register of daily wage employee is not
maintained. He denies that in attendance register, his name
was maintained. The documents Exhibit W-3(a) to (c) are
admitted from his evidence in cross-examination. He has
no other documents.
9. Management's witness Snehlata Jaiswal filed
affidavit of her evidence denying workman was appointed
on vacant post as messenger on 2-4-90 in Mate branch.
That workman had not worked in said branch during April
90 to October 94. Workman never worked for 240 days
during any of the year. Workman never worked in Hatte
branch of the Bank during 14-9-94 to 26-9-03. Ist party
workman is not employee of the Bank. There was no
question of issuing notice or payment of compensation to
him. She has further stated that whenever any casual work
occurs any person including applicant is available comes,
Bank offers to do casual work. On completion of such casual
work, his services automatically comes to end. In her cross-
examination, management's witness says she did not work
in either of the branches at any time. She was working in
control office during 1983 to 94. The witness of the
management was unable to tell since when she is made
officer of the case. The Head office of the bank was shifted
to Chhindwara. Personally she doesnot know workman.
She denies that Shriram was engaged for cleaning work in
the bank from 2-4-90 to 27-4-03. It is not hearsay that
workman was never employed in the Bank but she was
unable to tell for how many days workman was engaged
for cleaning work. She was unable to tell rate of wages paid
to workman before filing her affidavit, she discussed about
the case with Branch Manager but she did not tell name of
Branch Manager with whom she had talked. Post of peon
was not sanctioned in the branch. She did not agree that
the work of pen is job of permanent nature. The cleaning
work was carried in the branch but she claims ignorance
who was doing the cleaning work. On information given
by Branch Manager, she stated in her affidavit that
workman not completed 240 days. Said information was
given orally. Workman was not discontinued as he was
never engaged. Presently she does not know who was
engaged for cleaning work. She was unable to tell whether
workman was paid wages under vouchers. She was unable
to tell whether PF was deducted from his salary and
deposited in the account. Branch Manager did not ask
permission to engage daily wage employee. Branch
Manager has discriminatory power for payment of daily
wage employees. Her affidavit is based on information
received from Branch Manager. The Bank maintained
payment register, attendance roll, payment vouchers PF
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4129
account statement, cash scroll. She was unable to tell
whether said record was maintained from 1989. She had
not seen above record before filing her affidavit. She
denied that workman was regularly working from 90 to
2003. She denies that services of workman were
terminated as he claim regularization in the year 2003.
That he filed affidavit in this case as per information
forwarded by Branch Manager. The Branch Managers are
in service. Workman was not employee of the Bank. He
was not paid retrenchment compensation. No chargesheet
was issued to him for any misconduct. She claims
ignorance whether some employees are reinstated in
service as per order passed by Hon'ble High Court. From
cross-examination of management's witness, it is clear
that she was not working in the branch. She gave evidence
as per information received by Branch Manager. As such
her evidence is hearsay. She has no personal knowledge.
10. Workman has produced documents. Exhibit W-
1 settlement between Union and management of the Bank
dated 20-3-94. Exhibit W-1 refers to circular issued by
NABARD dated 7-5-87 and circular issued by RTI dated
8-8-84 for regularization of part time farrash. Process of
regularization of such part time farrash working for 240
days was started. Said process would be continued till
15-6-94. Seniority list would be published in 15-4-95. The
employees who did not receive bonus orders for payment
of bonus to them. Exhibit W-2 is letter issued by Chairman
of the Bank to General Manager finds clear reference that
54 persons have been working on daily wages as
messengers in branch offices of the Bank against regular
vacancies since long. Said matter also refers to meeting of
Board of Directors dated 22-9-03. The letter is clear that it
will not be possible to run Bank without substaff or without
casual labours. The matter has to be resolved by providing
permanent sub staff. Guidelines was requested from General
Manager in the matter. Document Exhibit W-1(a) shows
workman was working with the Bank from 30-11-02 to
25-1-03 for 24 days. Exhibit W-3(b) workman worked for 29
days from 26-1-02 to 26-2-02. Exhibit W-3(c) shows 28
working days from 20-4-03 to 31-5-03. The deduction of
amount of Rs. 226/-, 273/-, 263/- is shown on those
document. Letter Exhibit W-4 issued by Regional Office.
Workman has directed to approach Branch Manager, Hatta.
Other documents produced by workman are not proved by
valid evidence.
11. The question arise about evidence of workman
and management's witness. As discussed above, the
management's witness has no personal knowledge. Her
evidence is based on information received from Branch
Manager who are still working in the branch. The
documents maintained in the Bank payment register, AC
statement, etc. which are maintained by the Bank are not
produced. On the other hand, evidence of workman is
corroborated from documents Exhibit W-3(a) to (c).
12. The evidence of workman is cross-examination
shows that workman has not produced documents about
his working for 240 days during 1990 to October 1994 and
14-1-94 to 26-11-03. After discontinuation of his service,
other persons engaged on daily wages. The documents
relating to it are not produced. The deduction of PF of
workman is shown as Exhibit W-3(a) to (c) is indicative that
the workman was working with 2nd party was covered
under provisions of PF Act. the management's witness in
her cross-examination says she does not mean that
workman was never working in the Bank. In cross-
examination, there is no suggestion that workman was not
working with Bank or he had not completed 240 days
continuous service as stated in his affidavit. Evidence of
workman on above point remained unchallenged in his
cross-examination. Evidence of workman is supported by
some documents Exhibit W-3(a) to (c) and his evidence
remained unchallenged on the point he had worked more
than 240 days during any of the year. The evidence of
management's witness is silent as to who was working as
regular sweeper in the Bank. If no regular sweeper was
working in the Bank, the Chairman of Bank had written
letter to the General Manager Exhibit W-2 clearly stating
that 54 persons have been working on daily wages or
messengers in branches against regular vacancies since
long corroborates evidence of the workman. I find no reason
to disbelieve workman that he was continuously working
in the bank from 1990 to 2003. Evidence of workman is
about completing more than 240 days continuous service
finds corroboration from document Exhibit W-2. As per
settlement Exhibit W-1, the process for regularization of
part time employee, part time farrash was started and it was
not to be completed till 5-4-94 as per the circulars issued by
NABARD dated 7-5-87, circular issued by RBI 8-10-84.
2nd party has not produced those circulars. The evidence
of management's witness is clear that workman was not
served with notice. Retrenchment compensation was not
paid to him, services of workman are terminated without
violation of Section 25-F of ID Act.
13. Learned counsel for Ist party Shri A.K. Shashi
relies on ratio held in case of
Maharashtra State Board of Secondary and Higher
Secondary Education, Amravati and another versus Sanjay
Krishnarao Shrungare Amravati reported in 2008-II-CLR-
301. Their Lordship dealing with Section 25-F, G, H of ID
Act in case related to unfair labour practice under
Maharashtra Act held that best possible evidence on the
point of total service put I by the respondents not brought
on record by the appellant. Appellant has to blame itself
for this failure on its part. The Labour Judge and the
Industrial Court did not err in drawing their conclusions.
In present case though management's witness admits
the record of various files in maintained in the Bank. It is
not produced. It appear that management is suppressing
the material evidence. From above reasons, it is clear that
services of Ist party workman are terminated in violation
4130
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
of Section 25-F of ID Act. Therefore I record my finding in
Point No. 1 in Negative.
14. Point No. 2—In view of my finding in Point No. 1
termination of Ist party is in violation of Section 25-F of ID
Act, question remains for consideration whether workman
is entitled for reinstatement with backwages. Though
workman in his pleadings and evidence has referred to the
circulars issued by NABARD and RBI relating to regulation
of part time employees, those circulars are not produced
on record, the term of reference pertain to regularization of
workman rather it pertains to legality of termination of his
service. From reasons dealing with Point No. 1, it is clear
that Ist party workman was working continuously with
2nd party as peon/sweeper from 1990 to 2003 for about 12-
13 years but post was not advertised. Workman was not
issued appointment letter. Workman was engaged on daily
wages. As per Exhibit W-2, 54 part time employees were
working against sanctioned post for long period. The
advice of General Manager was requested by the
Chairman. Point w.r.t. the relief for reinstatement with
backwages, Shri A.K. Shashi counsel for workman pointed
out my attention to the award passed in R/88/2001 & R/
9/2 to 17/12 & 1/13. Considering ratio held in various
cases, in Para 28 of the award, it was observed that
workman have worked for different period. The
reinstatement with backwages is not automatic. The facts
of each case needs to be considered. Workman who
worked more than 2 years and workman working between
4-7 years needs different consideration. Workman who
have completed 10 years service for long time deserves
reinstatement. Workman working more than 7 years
deserves compensation Rs. 50,000/-, workman working
about 4 years deserves compensation Rs. One Lakh. Same
principle would be applied while dealing with the claim
for reinstatement by workman. Workman was working
with the 2nd party from 1990 to 2003 for about 13 years
justified his claim for reinstatement.
15. Learned counsel for 2nd party Shri Pramesh Jain
submitted written notes of argument opposing claim of
workman for reinstatement that workman had not
completed 240 days continuous service. Learned counsel
relies on ratio held in
Case of BSNL versus Bhurumal reported in Civil
Appeal No. 10957/2013. In Para 24 of the judgment, their
Lordship considering ratio held in case of State of
Karnataka versus Uma Devi 2006(4) SCC-1 observed
thus when he cannot claim regularization and he has no
right to continue even as a daily wage worker, no useful
purpose is going to be served in reinstating such a
workman and he can be given monetary compensation by
the Court itself in as much as if he is terminated again
after reinstatement, he would receive monetary
compensation only in the form of retrenchment
compensation and notice pay.
In Exhibit W-1, Union and management had arrived
at settlement of regularization of part time employees on
15-6-94. In Exhibit W-2 Chairman of the Bank has requested
advice of General Manager that 54 part time employees
were working in the Bank since long against sanctioned
post. The ratio in above cited case cannot be applied to
case at hand as the facts are not comparable.
Learned counsel for 2nd party Shri Pramesh Jain also
relies on ratio held in case of Tapash Kumar versus BSNL
reported in 2014 AIR SCW 5816. Their Lordship have
considered when reinstatement can be ordered. The order
of Division Bench awarding compensation in lieu of
reinstatement was set aside. In para-5 of the judgement,
their Lordship held it is no doubt true that Court may pass
an order substituting reinstatement by awarding
compensation but the same has to based on justifiable
grounds i.e. (1) where the industry is closed, (ii) where the
employee has superannuated or going to retire shortly and
no period of service is left to his credit, (iii) where the
workman has been rendered incapacitated to discharge
the duties and cannot be reinstated and (iv) when he has
lost confidence of the management to discharge duties.
In present case, manangement's witness says any
chargesheet for misconduct was not issued to the workman
the Bank is not closed. Workman have not attained age of
superannuation. The ratio held in above cited case does
not support the contentions of 2nd party.
Learned counsel for 2nd party also relies on ratio
held in case of Mahboob Deepak versus Nagar Panchayat
Gajraula reported in Appeal NHo. 5875 of 2007. In para 2 of
the judgement, their Lordship discussed it is now well
settled by a catena of decisions of this court that in a
situation of this nature instead and in place of directing
reinstatement with full back wages, the workmen should
be granted adequate monetary compensation.
Ratio held in above case 2014 AIR SCW 5816 holds
the filed that reinstatement can be refused only on 4
grounds discussed above. Therefore ratio in above cited
case cannot be beneficially applied. For same reasons, ratio
held in case of MP Administration vrs Tribhuban reported
in 2007(5) Scale 397 cannot be beneficially applied to case
at hand.
16. At the time of argument, learned counsel for
workman Shri A.K. Shashi submits that workman is not
interested in backwages rather workman be provided
reinstatement without backwages. For the reasons
discussed above, it would be appropriate to direct
reinstatement of workman considering he was working with
2nd party for about 3 years on daily wages. Despite
settlement Exhibit W-1 & W-2 clearly stating that 54 part
time employees were working against sanctioned post for
long period, it is not known what advice was given by
General Manager to said workman, reinstatement of
workman would be appropriate. Accordingly I record my
finding in Point No. 2.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4131
17. In the result, award is passed as under:—
(1) The action of the management of Satpura
Kshetriya Gramin Bank, Chhindwara in
terminating the services of Shri Sriram Lanjewar,
S/o Shri Kamal Prasad Lanjewar is not proper and
legal.
(2) Termination of workman is set-aside. 2nd party is
directed to reinstatement workman without
backwages.
(3) Parties to bear their respective costs.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 14 vDrwcj] 2015
dkñvkñ 1998.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj mÙkj iwoZ jsyos ds
izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
y[kuÅ ds iapkV ¼lanHkZ lañ 36@2014½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 14-10-2015 dks izkIr gqvk FkkA
[lañ ,y&41011@36@2014&vkbZvkj¼ch-&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O. 1998.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 36/2014)
of the Central Government Industrial Tribunal-Cum-Labour
Court, Lucknow as shown in the Annexure in the Industrial
Dispute between the management of the North Eastern
Railway and their workmen, received by the Central
Government on 14.10.2015.
[No. L-41011/36/2014-IR(B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
Present
RAKESH KUMAR,
Presiding Officer
I.D. No. 36/2014
Ref. No. L-41011/36/2014-IR(B-1) dated: 23.04.2014
Between
Anchal Sangthan Secretary
Rail Sevak Sangh
C/o Shri D.P. Awasthi
49, Tilak Nagar
Lucknow.
(Espousing cause of Sri Mohan Lal)
AND
1. Sr. Divisional Personnel Officer
North Eastern Railway
DRM Office, Ashok Marg,
Lucknow.
2. The Chief Medical Superintendent
North Eastern Railway
Gonda (UP)
AWARD
1. By order No. L-41011/36/2014-IR(B-I) dated
23.04.2014 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of Section 10
of the Industrial Disputes Act, 1947 (14 of 1947) referred
this industrial dispute between Anchal Sangthan Secretary,
Rail Sevak Sangh, C/o Shri D.P. Awasthi, 49, Tilak Nagar,
Lucknow and Sr. Divisional Personnel Officer, North
Eastern Railway, DRM Office, Ashok Marg, Lucknow and
the Chief Medical Superintendent, North Eastern Railway,
Gonda (UP) for adjudication.
2. The reference under adjudication is:
^^D;k iwoksZÙkj jsy iz'kklu] y[kuÅ o xksaMk }kjk Jh eksgu
yky iq= Jh iUuk yky vkSj Jh ';ke ukFk] ihMCywvkbZ]
ukuikjk dks iqjkuh isa'ku u nsdj ubZ isa'ku fn;k tkuk U;k;ksfpr
,oa oSè gS\ ;fn ugha] rks dkexkj fdl jkgr dks ikus dk
gdnkj gS\**
3. On receipt of the reference order the workman's
union was issued registered notice to file his statement of
claim complete with relevant documents, list of reliance
and witnesses before Tribunal on 17.07.2014 with an
advance copy to the opposite party. The Secretary of the
workman's union appeared before this Tribunal and
requested for a date for filing of statement of claim.
4. On successive dates the management also turned
up. Since the case was related to grant of old pension
scheme instead of new pension scheme, the parties were
advised to settle the dispute amicably through Lok Adalat.
Accordingly, the case was taken up at Lok Adalat on
08.05.2015.
5. On 08.05.2015, Shri D.P. Awasthi, Secretary of the
workman's union was present whereas the opposite parties
were represented by Shri Upendera Kumar Sharma, Chief
Welfare Officer.
6. The opposite party filed M-5, letter signed by
Sri P.B. Prasad, Senior Divisional Personnel Officer, North
Eastern Railway, Lucknow, enclosing circular No. 2012/
F(E)III(I)/2 dated 29.10.2014 of the Railway Board. The
Management in letter M-5, referring circular dated 29.10.2014
has stated that the Railway Board, New Delhi vide their
4132
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
circular dated 29.10.2014 has directed to cover the
employees who got temporary status prior to 01.01.2004
may be covered under Old Pension Scheme.
7. A copy of the M-5 was furnished to the workman's
union. The authorized representative of the workman's
union sought time to consult the workman, and accordingly,
the case was taken up on 28.08.2015 at Lok Adalat. The
Authorized representative of the workman's union, Shri
D.P. Awasthi after going through the contents of letter,
M-5 and circular dated 29.10.2014 showed willingness to
withdraw the present industrial dispute being claim settled;
and made an endorsement thereupon as under:
"Since the relief claimed by the Union has been
accepted by the Rly. Management, the further
proceeding of the case may be dropped."
8. IN view of the submission/endorsement of the
workman's union for dropping of the proceedings, there is
no grievance left with the workman's union as the present
industrial dispute pertains to non-grant of old pension to
the workman by the railway management and the
management of the railway has granted the same vide
circular 2012/F(E)III/I(I)/2 dated 29.10.2014 of the Railway
Board. Resultantly, the industrial dispute stands settled;
and no relief is required to be given to the workman
concerned. The reference under adjudication is answered
accordingly.
9. Award as above.
Lucknow
RAKESH KUMAR, Presiding Officer
24th September, 2015.
ubZ fnYyh] 14 vDrwcj] 2015
dkñvkñ1999-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj mÙkj iwoZ jsyos ds
izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
y[kuÅ ds iapkV ¼lanHkZ lañ 35@2014½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 14-10-2015 dks izkIr gqvk FkkA
[lañ ,y&41011@35@2014&vkbZvkj¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O.1999.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 35/2014)
of the Central Government Industrial Tribunal-Cum- Labour
Court, Lucknow as shown in the Annexure in the Industrial
Dispute between the management of the North Eastern
Railway and their workmen, received by the Central
Government on 14.10.2015.
[No. L-41011/35/2014-IR(B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
Present
RAKESH KUMAR,
Presiding Officer
I.D. No. 35/2014
Ref. No. L-41011/35/2014-IR(B-1) dated: 23.04.2014
Between
Anchal Sangthan Secretary
Rail Sevak Sangh
C/o Shri D.P. Awasthi
49, Tilak Nagar
Lucknow.
(Espousing cause of Sri Mohan Lal)
AND
1. Sr. Divisional Personnel Officer
North Eastern Railway
DRM Office, Ashok Marg,
Lucknow.
2. The Chief Medical Superintendent
North Eastern Railway
Gonda (UP)
AWARD
1. By order No. L-41011/35/2014-IR(B-I) dated
23.04.2014 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by clause
(d) of sub section (1) and sub section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between Anchal Sangthan Secretary, Rail
Sevak Sangh, C/o Shri D.P. Awasthi, 49, Tilak Nagar,
Lucknow and Sr. Divisional Personnel Officer, North Eastern
Railway, DRM Office, Ashok Marg, Lucknow and the Chief
Medical Superintendent, North Eastern Railway, Gonda
(UP) for adjudication.
2. The reference under adjudication is:
^^D;k iwoksZÙkj jsy iz'kklu] y[kuÅ o xksaMk }kjk Jh ghjkyky
iq= Jh lR;ukjk;.k] liQkbZokyk dks iqjkuh isa'ku u nsdj ubZ
isa'ku fn;k tkuk U;k;ksfpr ,oa oSè gS\ ;fn ugha] rks dkexkj
fdl jkgr dks ikus dk gdnkj gS\**
3. On receipt of the reference order the workman's
union was issued registered notice to file his statement of
claim complete with relevant documents, list of reliance
and witnesses before Tribunal on 17.07.2014 with an
advance copy to the opposite party. The Secretary of the
workman's union appeared before this Tribunal and
requested for a date for filing of statement of claim.
4. On successive dates the management also turned
up. Since the case was related to grant of old pension
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4133
scheme instead of new pension scheme, the parties were
advised to settle the dispute amicably through Lok Adalat.
Accordingly, the case was taken up at Lok Adalat on
08.05.2015.
5. On 08.05.2015, Shri D.P. Awasthi, Secretary of the
workman's union was present whereas the opposite parties
were represented by Shri Upendera Kumar Sharma, Chief
Welfare Officer.
6. The opposite party filed M-5, letter signed by
Sri P.B. Prasad, Senior Divisional Personnel Officer, North
Eastern Railway, Lucknow, enclosing circular No. 2012/
F(E)III/1(I)/2 dated 29.10.2014 of the Railway Board. The
management in letter M-5, referring circular dated 29.10.2014
has stated that the Railway Board, New Delhi vide their
circular dated 29.10.14 has directed to cover the employees
who got temporary status prior to 01.01.2004 may be covered
under Old Pension Scheme.
7. A copy of the M-5 was furnished to the workman's
union. The authorized representative of the workman's
union sought time to consult the workman; and accordingly,
the case was taken up on 28.8.2015 at Lok Adalat. The
Authorized representative of the workman's union, Shri
D.P. Awasthi after going through the contents of letter,
M-5 and circular dated 29.10.2014 showed willingness to
withdraw the present industrial dispute being claim settled;
and made an endorsement thereupon as under:
"Since the relief claimed by the Union has been
accepted by the opposite parties. The further
proceeding of the case may kindly be dropped."
8. In view of the submission/endorsement of the
workman's union for dropping of the proceedings, there is
no grievance left with the workman's union as the present
industrial dispute pertains to non-grant of old pension to
the workman by the railway management and the
management of the railway has granted the same vide
circular 2012/F(E)III/I(I)/2 dated 29.10.2014 of the Railway
Board. Resultantly, the industrial dispute stands settled;
and no relief is required to be given to the workman
concerned. The reference under adjudication is answered
accordingly.
9. Award as above.
LUCKNOW.
RAKESH KUMAR, Presiding Officer
24th September, 2015
ubZ fnYyh] 14 vDrwcj] 2015
dkñ vkñ 2000-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad
ds izca/k ra= 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 p.Mhx<+ ds iapkV ¼lanHkZ la[;k 53@2009½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 14@10@2015 dks izkIr gqvk FkkA
[lañ,y&12012@43@2009&vkbZ vkj ¼ch-&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O.2000.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 53/2009)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Chandigarh 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 14.10.2015.
[No. L-12012/43/2009-IR(B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-I, CHANDIGARH.
Case No. ID 53 of 2009 Reference No. L-12012/43/
2009-IR(B-I) dated 26.10.2009. Sh. Ashok Kumar, H. No.
3086/2, Sector 44-D, Chandigarh.
Workman
Versus
1. The Asstt. General Manager (Adm), State Bank
of India, Zonal Office, Punjab & Chandigarh,
Sector 17, Chandigarh.
Respondent
APPEARANCE
For the workman:
Shri Raj Kaushik Advocate
For the management:
Shri S.K. Gupta Advocate.
AWARD
Passed on 06.10.2015
Government of India Ministry of Labour vide
notification L-12012/43/2009-IR(B-I) dated 26.10.2009
has referred the following dispute to this Tribunal for
adjudication:
"Whether the action of the Management of State
Bank of India, Chandigarh in imposing the
punishment of dismissal from services on Shri
Ashok Kumar w.e.f. 6-8-2004 is justified? If not,
what relief the person concerned is entitled and
from which date?"
2. The case of the workman as per the claim
statement is that he was posted at S.B.I. Sector 37-C,
Chandigarh Branch when he was dismissed from service in
the year 2004. His representation and appeal was also
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
rejected. Further the case of the workman that he was falsely
implicated and wrongly suspended. He was charge sheeted
vide charge sheet dated 26-12-2000 which contain the
following charges:-
"(a) while you were working at our Sector 37 Branch,
Chandigarh, you along with Sh. Ved Raj,
Messenger Surreptitiously removed the blank
Draft Issue Security Forms Book Sr. No. A-11/
478476 to A11/478500 from a Steel Almirah kept in
the Lockers Room with the help of duplicate keys
and handed over the same to the frauduster(s) for
your own benefits. The matter came into light on
14.06.97 when an attempt at our Hissar branch
was made to encash a Draft No. 478478 for
Rs. 4,40,000-00 by the fraudster.
(b) You handed-over the undermoted Draft Security
Forms out of the Draft Book as stated in para (a)
above to the fraudster(s) for which the bank has
to suffer a pecuniary loss due to your this action.
The detail is as under:-
DRAFT
PAYMENT AMOUT
NAME OF PAYING
No.
DATE
BRANCH
A/11478490 28.01.98
375000/-
Jammu
478492
04.04.98
580000/-
Jammu
478484
15.05.98
360000/-
Ferozepore
478488
05.05.98
225000/-
Ferozepore
478497
29.04.98
225000/-
Ferozepore
478487
10.06.97
826000/-
Service Br. New Delhi
2591000/-
(c) The investigation conducted by the Police
Authorities reveals that out of 25 Drafts Security Forms
removed by you from the 37 Sector branch, 12 forms were
recovered from your possession.
2. The above charges if established would amount
to 'Gross Misconduct' in terms of para 521 (4) (j) of Sastry
Award and various other Agreements/Bipartite
Settlements".
3. In reply to the charge sheet, the workman denied
the charges and demanded original documents for
inspection in defence which were denied by the
management. Enquiry was ordered and Mrs. Rassmi Duggal
was appointed as enquiry officer. The enquiry officer
conducted the enquiry in a haste and arbitrary manner
without following the rules and procedure and proved
the charges on the basis of the statement taken by the
police during the custody of the workman. The workman was not
allowed to lead his defence during enquiry rather, closed
the proceedings without providing any opportunity of
defence. The workman pleaded for declaring the enquiry
report as void-ab-initio as the report is based upon alleged
statement purportedly prepared by the police under their
custody by using force which is not a evidence in the eye
of law. The disciplinary authority passed the dismissal
order in spite of the fact that the workman was not supplied
the enquiry report. It is further pleaded that there was no
direct or indirect evidence produced by the management
during enquiry to prove the charges. The workman prayed
that reference may be answered in favour of the workman
and action of the management dismissing of the workman
from service be declared as illegal and viod-ab-initio and
may be setaside and the workman may be reinstated in
serviced with all consequential benefits attached to his
port including promotions wages revisions etc.
4. Management filed wirtten statement. Preliminary
objection has been taken that the workman was dismissed
from service as a result of fair and proper enquiry in
which principles of natural justice were fully complied
with. The management also prayed that however, if the
enquiry was vitiated on any ground for the violation of
principle of natural justice, the management reserve its
rights to prove the charges against the workman before
this Tribunal by leading additional evidence. On merits it
is pleaded by the management that work and conduct of
the workman was not satisfactory and workman used to
remain absent for long period. The workman was
suspended earlier on the ground of moral turpitude. The
workman again suspended on 22.6.97 after he was arrested
by Hissar police. Workman alongwith Ved Raj had stolen
25 blank draft forms, out of which 12 were recovered
from the possession of workman and workman was rightly
dismissed from service in 2004 after proper enquiry and
workman remained in jail till 6.9.1997. During enquiry
workman was afforded several opportunities on one
pretext or the other with a motive to delay the enquiry
proceedings. The enquiry proceedings started on 15-6-
2001 and finally concluded on 5.3.2004 during which
workman was allowed several adjournments. The
confession dated 20.6.97 during police custody reveals
that police recovered two drafts from the workman also
confessed handing over the drafts to Ved Raj, Surinder
Pal @ Surjit @ Phillwan and received Rs. 70,000/- from
them and there was sufficient evidence on record against
the workman which proved all the charges. It is further
pleaded that it is not binding on the management to drop
the enquiry proceedings even if the workman is acquitted
by the criminal court on one ground or the other as
standard of proof in criminal proceedings and
departmental proceedings are different. The management
prayed that the workman is not entitled for reinstatement
and any other relief and prayed for answering the reference
against the workman.
5. The workman filed rejoinder reiterating the claim
made in the claim statement.
6. Earlier my predecessor heard the parties on
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4135
fairness of enquiry and vide order dated 21.7.2010 declared
the enquiry as vitiated by passing the following order:-
"After hearing the parties, I am of the view that it is a
case of no enquiry. Enquiry was conducted by one
Smt. Rashmi Duggal. On 20.9.2011 she was informed
by the workman that the civil court has stopped the
proceedings of the departmental enquiry.
Accordingly departmental enquiry was postponed
for future date. Again enquiry officer was informed
that stay order by the civil court has been vacated.
Accordingly she listed the departmental enquiry for
3.2.2004. on 3.2. 2004, on application of the workman,
enquiry was adjourned to 5.3.2004. On 5.3.2004, the
statement given by the workman during the police
custody in the criminal case against him was relied
upon by the enquiry officer and enquiry report was
given. The enquiry officer even did not bother to
refer the entire statement which was given by the
workman in the police custody as an accused. It is
also recorded in the proceedings dated 5.3.2004 that
workman has repeatedly stated that he made his
signatures on a plain paper when he was on police
remand. Meaning thereby, the enquiry proceedings,
report of the enquiry officer are based on the
confessional statement given by the workman which
he was in police custody in a criminal case. It is also
admitted that in that criminal case the workman has
been acquitted. Meaning thereby, there is no
independent admission of charges made by the
workman and I have mentioned rightly at the
beginning of this order that it is a case of no enquiry.
In view of the above the enquiry proceedings, report
of the enquiry officer and the disciplinary
proceedings against the workman are hereby vitiated.
As per the provisions of the I.D. Act 1947, the enquiry
shall be conducted by this Tribunal. List the case for
evidence of the management for 19.8.2010.
Management to lead evidence first to prove the
charges."
7. The management in evidence filed affidavit of
MW1 N.S. Sodhi and affidavit of MW2 Mohinder Singh
who were examined and cross-examined by the counsel for
the workman. MW1 N.S. Sodhi in cross examination stated
that in June 1997 he was posted at S.B.I. Sector 37, branch
and on 14.6.97 it came to the light of the bank that some
persons is trying to encash the stolen bank draft. FIR was
lodged on 18.6.97 and it is not in his knowledge that any
circular was issued by the bank about the stolen draft book.
The charges were issued on the same allegation as
mentioned in FIR. Bank draft used to be kept in strong
room. Register mentioning the Serial number used to be
kept in strong room. He further stated that he cannot say
who has stolen the bank draft and encashed the same. It is
further stated by the witness of the management that
workman was acquitted in criminal case and he is not
aware whether any appeal was filed against the qcquittal
of the workman.
8. MW2 Mohinder Singh, Deputy Manager, R.B.O.
witness proved his affidavit as Ex. M2 and also relied on
documents Ex. M4 to M21. In cross examination MW2
stated that he has no personal knowledge of the matter
and he never remained posted in Sector-37 branch. In
rebuttal workman in evidence filed his affidavit as Ex.W1.
In cross examination workman stated that at the time of
suspension he was working as Daftri in Sector 37 branch
and Mr. N.K. Sodhi was cash officer. He denied the
suggestion that he along with Ved Raj messenger stole a
bank draft issue security form book serial no. A-11/47876
to A-11/478500. The workman also denied the suggestion
that he had given one draft no. 478478 for a sum of
Rs.4,40,000/- to some person in Hissar. It is further stated
by WW1 workman that a police complaint was lodged by
the manager for theft of the draft book on 18.6.98 and he
was arrested by the police. Workman denied the suggestion
that 12 drafts were recovered from him. WW1 further stated
that he was convicted by the Trial Court. Workman also
denied the suggestion that he made a confessional
statement before the police with regard to the theft of the
draft book.
9. I have heard the parties gone through the evidence
and record of the case.
10. The learned counsel for the workman submitted
during arguments that the enquiry conducted by the
management was declared vitiated vide order dated
21.7.2010 by this Tribunal. The parties were directed to
lead evidence. The management in order to prove the
charges as contained in the charge sheet produced two
witnesses who also submitted their affidavits. From the
evidence recorded in this Tribunal and documents produced
by the management, the management poorly failed to prove
the charges in this Tribunal also. It is further submitted by
the learned counsel for the workman that both the
witnesses produced by the management did not support
the charges mentioned in the charge sheet.
11. On the other hand learned counsel for the
management submitted during arguments that though the
workman was acquitted in appeal filed by the workman
still the workman is liable for punishment in departmental
enquiry because the decree of proof in criminal court and
in departmental proceedings are quite different. From the
perusal of the record it is clear that the workman Ashok
Kumar was convicted by the Judicial Magistrate Ist Class,
Chandigarh vide judgment dated 17.9.2004. Copy of the
judgment has been filed on the record. Criminal case filed
by the management against the workman also resulted into
conviction of the workman vide order dated 18.9.2004 by
Judicial Magistrate Ist Class Chandigarh. Vide order dated
18.9.2004 workman Ashok Kumar was sentenced to
undergo rigorous imprisonment for a period of one year
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
under Section 411 of the Indian Penal Code and also
sentenced to pay a fine of Rs. 250/- and in default of
payment of fine, he will further undergo rigorous
imprisonment for 15 days. Workman Ashok Kumar preferred
criminal appeal No. 74 of 13.10.2004 in the Court of
Additional Session Judge Chandigarh who vide its judment
dated 13.7.2006 allowed the appeal of workman Ashok
Kumar and the order of sentence rendered by the Court of
Judicial Magistrate Ist Class, Chandigarh was set-aside
and the appellant Ashok Kumar was acquitted of the
charges leveled against him. The copy of the Judgment
dated 13.7.2006 has been placed on file.
12. Management cited 2007(3) RSJ page 1 Suresh
Pathrella Vs. Oriental Bank of Commerce, 1997(3) RSJ page
369 Punjab Dairy Development Corporation Limited and
another Vs. Kaka Singh and 2009(4) SSJ 444 U.P. State Road
Transport Corporation Vs. Nanhe Lal Kushwaha. The
workman cited 2009(2) SCT page 82 Roop Singh Negi Vs.
Punjab National Bank and other and a judgment dated
13.3.2012 of Madras High Court In WP No. 17902 of 2009
G.R. Swamy Vs. The Presiding Officer, Central Govt.
Industrial Tribunal-cum-Labour Court and another.
13. As has earlier been quoted in this award, the
departmental enquiry report and departmental proceedings
have been quashed vide my predecessor order dated
21.7.2010 and the management was called upon to adduce
evidence if any to prove the charged levelled against the
workman in the charge sheet.
14. The management in evidence examined two
witnesses before this Tribunal. MW1 N.S. Sodhi Deputy
Manager State Bank of India and MW2 Shri Mohinder
Singh Deptuy Manager RBO, Sector 17B, State bank of
India, Chandigarh. These two witnesses filed their affidavit
also. MW1 Shri N.S. Sodhi in his cross-examination stated
that "the charge was issued on the same allegation as
mentioned in the FIR Bank draft used to be kept in the
strong room. Audit used to be conducted of the bank". He
clearly stated that "I do not know whether the bank draft
were stolen in my tenure. But it is correct that theft of these
bank drafts came to my knowledge during my tenure. I did
not inform the the Zonal Office for not encashing the stolen
bank draft". He further stated that "I can not say that who
has stolen the bank drafts and encashed the same. The
workman was acquitted in criminal case". MW2 Mohinder
Singh witness of the management stated in cross-
examination that "I have no personal knowledge of the
matter except derive from the official record. During the
relevant period I never remained posted in Sector 37
Branch".
15. The workman Ashok Kumar in his cross-
examination stated that" it is incorrect to suggest that I
had made a confessional statement before the police with
regard to the theft of the draft book".
16. Perusal of the charge sheet reveals that the
workman was charge sheeted for Surreptitiously removing
the blank Draft Issue Security Forms Book Sr. No. A-11/
478476 to A11/478500 from a Steel Almirah kept in the
Lockers Room with the help of duplicate keys and handed
over the same to the fraudster(s) for his own benefits and
also for the following charges:
"You handed over the undernoted Draft Security
Forms out of the Draft Book as stated in para (a)
above to the fraudster(s) for which the bank has to
suffer a pecuniary loss due to your this action. The
detail is as under:-
Draft
Payment
Amount
Name of Paying
No.
Date
Branch
A/11478490 28-01-98
375000/-
Jammu
478492
04-02-98
580000/-
Jammu
478484
15-05-98
360000/-
Ferozepore
478488
05-05-98
225000/-
Ferozepore
478497
29-04-98
225000/-
Ferozepore
478487
10-06-97
826000/-
Service Br. New Delhi
2591000/-
The ivestigation conducted by the Police Authorities
reveals that out of 25 Drafts Security Forms removed
by you from the 37 Sector branch, 12 forms were
recovered from your possession".
17. The workman was involved in the departmental
enquiry as well as in police challan on the basis of the
confessional statement made by the workman. From the
perusal of the judgment of the appellate Court i.e. Additional
Session Judge Chandigarh dated 13.7.2006, it is clear that
arrest and recovery of the bank draft have been disbelieved
considering the defence evidence led by the workman in
criminal trial. During the proceedings before this Tribunal,
the management was given an opportunity to substantiate
the charges levelled in the charge sheet. The case law
cited by the management. i.e. 2007(3) RSJ page I Suresh
Pathrella Vs. Oriental Bank of Commerce, 1997(3) RSJ
page 369 Punjab Dairy Development Corporation Limited
and another Vs. Kaka Singh and 2009(4) RSJ 444 U.P. State
Road Transport Corporation Vs. Nanhe Lal Kushwaha. The
facts and circumstances of the case laws cited by the
management are quite different from the facts and
circumstances of the present case. Therefore, these are
not applicable to the case of the workman.
18. As stated earlier the management could not lead
any evidence which could substantiate the charges as
mentioned in the charge sheet and the enquiry report and
the enquiry proceedings have already been set aside vide
order dated 21.7.2010 by my predecessor.
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4137
19. From the record it is revealed that the workman
was appointed in the bank as messenger in the year
1980(4.6.1980) and served there till his dismissal from
service. The management in para 2 of its reply submitted
that the work and conduct of the workman was not
satisfactory. The workman used to remain absent long
periods without any intimation and prior permission from
the competent authority. The workman remained suspended
w.e.f 30.3.1983 on the ground of moral turpitude and was
there after reinstated on 6.11.1984. the management also
submitted that the workiman was held guilty and convicted
by Judicial Magistrate Ist Class, Chandigarh vide its
judgment dated 18.9.2004 and was given benefit of doubt
by the Appellate Court vide its judgment dated 13.7.2006.
It is further submitted that considering these facts the
workman has lost trust and confidence of the
management.
20. Considering the entire facts of the present case,
the reinstatement of the workman is not proper. The
workman may be suitably compensated in terms of money
in lieu of reinstatement. In Civil Appeal No. 4980 of 2014
Tapash Kumar Paul Vs. BSNL and anr. Decided on
28.01.2014, the Hon'ble Supreme Court has observed as
under:
"It is no doubt true that a Court may pass as order
substituting an order of reinstatement by awarding
compensation but the same has to be based on
justifiable ground viz.(1) where the industry is
closed: (ii) where the employee has superannuated
or going to retire shortly and no period of service
is left to his credit; (iii) where the workman has
been rendered incapacitated to discharge the duties
and cannot be reinstated and /or (iv) when he has
lost confidence of the management to discharge
duties. What is sought to be emphasized is that there
may be appropriate case on facts which may justify
substituting the order of reinstatement by award of
compensation."
21. Considering the facts and circumstances of the
case, the order of dismissal is set aside. But in lieu of
reinstatement, the workman is awarded one time lump sum
compensation of Rs. 500000/- (five lakhs only). The
management is directed to pay the above amount to the
workman within one month from the date of publication
of the award.
22. The reference is answered accordingly. Central
Govt. be informed. Soft as well hard copy be sent to the
Central Govt. for publication.
Chadigarh.
06.10.2015
S.P. SINGH, Presiding Officer
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New Delhi, the 14th October, 2015
S.O.2001.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 9/
2011) 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 State Bank Of India
and their workmen, received by the Central Government on
14/10/2015.
[No. L-12011/67/2008-IR(B-1)]
SUMATI SAKLANI, 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.9 /2011
Parties: Employer in relation to the management of State
Bank of India, Patna
AND
Their workmen.
Present
:
Sri R.K.Saran
Presiding Officer.
Appearances:
For the Employers
:
Shri Noor Aalam, Rep.
For the workman
:
Shri G.K.Verma, Rep
State
:
Bihar
.
Industry:- Banking
Dated: 24/9/2015
AWARD
By Order No.L-12011/67/2008-IR -(B-I) dated
17/01/2011 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:
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
SCHEDULE
"Whether the action of the management of SBI Patna
in terminated the service of S/Sh (1) Ashok Kumar (2)Sh.
Pramanand Singh (3)Sh. Stendra Singh (4) Ajay Prasad
Srivastava (5) Binay Kumar Sinha (6) Rabindra Kumar (7)
Sh. Nand Kishore Ram (8) Sh.Suchita Ram (9) Sh. Jai
Prakash Singh (10) Sh. Sunil Kumar (11) Arjun Kumar Singh
(12) Prabhat Kumar and (13) Vijay Kumar Singh w.e.f 02/06/
2007 is legal and justified ? To what relief the concerned
workmen are entitled?"
2. The case is received from the Ministry of Labour
on 08.04.2011. After notice both parties appeared. The
Sponsoring Union files their written statement on
18.01.2012 and Supplementary written statement received
on 15/02/2012. The Management files their written
statement-cum- rejoinder on 20.06.2012. Thereafter the
workman files their rejoinder and document. One witness
is examined on behalf of the management as MW-1 and
documents of management marked as M-1 to M-3 . But
nine witnesses examined on behalf of the workman as
WW-1 to WW-9 as well as documents of workman
marked as W-1 to W-33 Series.
3. The short point that is involved in this case whether
the termination of workman by the Bank is legal and
justified or not.
4. The case of the workman is that during the
conciliation proceeding the Bank management terminated
the service of the concerned workmen without taking
permission of the then conciliation Officer in violation
of section 33 of the I.D Act, 1947, and prior to termination
of the workman they were not served any notice or wages
as per Section 25 F. of I.D. Act.
5. They also claimed that they were appointed by
the Bank management after interview, and they were
rendering service continuously but the Bank Management
without any rhyme and reason asked them not to come
bank to work.
6. It was asserted that all the above noted employees
were appointed at the said branch after interview and since
their appointment , they performed full time work on all
working days and thus they worked for more than 240 day
in each and every calendar year in the post uninterruptedly,
but the Bank management continued exploiting the
workman by keeping them on daily wager under the control
and direction of the said Branch Manager of the Bank.
7. It is also stated that the appointment of all the
13 workmen was made against the vacant post of
subordinate cadre after termination of these 13 workmen,
the Bank management has appointed 13 new hand who
have been working in the place of the workmen were
terminated during the pendency of conciliation proceeding
before the ALC (C) Patna. The conciliation failed due to
the rigid attitude of the management . The workman No.1
to workman no.13 of the reference were working with the
management from the year 1983 to 2000. There are several
judgments is available, one of them 1960 LLJ 504 SC that if
retrenchment is held as illegal and invalid for non
compliance of mandatory requirement of section 25 F, it is
imperative for the Tribunal to award the relief of
reinstatement with full back wages.
8. The case of the management is that no appointment
letter was ever issued to them, they were daily wagers,
they were working under a contractor , the payment etc.
used to be made by the contractor etc. Nothing also has
been referred to demonstrate that their engagement was
against any sanctioned post and the job which they were
performing is not permanent nature. It is totally incorrect
to say that the 13 concerned persons had been working in
the bank in any capacity as employee duly appointed after
following the rules of recruitment against any sanctioned
post. They might be working on the basis of as and when
required on contract basis and used to be paid by the
contractor on day basis. They might be daily wagers on
the basis of as and when required. The question of their
working for so many years and that to continuously does
not arise.
9. I find that the management have appeared and
filed written statement stating that the reference is not
maintainable and the workmen are not entitled for relief as
claimed and the anagement also stated that the workmen
were never engaged by bank management.
10. The workman adduced nine witnesses namely
Jai Prakash Singh (WW-1). Sri Sachita Ram (WW-2),
Sri Parmanand Singh (WW-3), Sri satyendra Singh (WW-
4) , Binay Kr. Sinha (WW-5), Vijay Kr. Singh (WW-6), Ashok
Kumar (WW-7), Prabhat Kumar (WW-8), Sri Sheo Bachan
Prasad (WW-9) In support of their claim the workman files
voluminous document which is marked and W-1 to W-33
series.
11. One witness adduce on behalf of the management
namely Dinesh Kumar (MW-1) he stated in his cross
examination that I have not seen any record before coming
to depose in the case. And he also says that I can not say
whether the bank taken workmen from licensed contractor.
Again says, I call not say whether the present workman
was taken by bank from licensed contractor or unlicensed
contractor.
12. In Ext. W-19 one memorandum issued by the Bank
management to Sri parmanand Singh for appear once on
28.03.97 with all document to the post of subordinate staff
for interview. In Ext W-2 payment voucher of same person
from 1987 to 1988 this shows that shri parmanand singh is
appointed after interview.
13. In Ext. W-3 one letter written by Asstt. General
Manager to Dy. General manager, in which he recommended
for absorption of workmen as permanent in the bank as
electrician or any other subordinate post and he has also
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4139
admitted that he was working in the branch since 1985. in
another letter Asstt. General Manager wrote to Dy. General
Manager Zonal Office that a post of Electrician should be
sanctioned at this Branch and Sri Satyendra Singh should
be permanently absorbed as Electrician.
14. In Ext. W-8 one letter written by Bank Officer to
the Secretary, Bihar Bidhan Sabha, Patna in which he
request to issue Identity Card in the name of sachita Ram
designated as Peon (Aadeshpal) for this letter the Bihar
Bidhan Sabha, issued I.D designated as Aadeshpal.
15. In Cross examination of WW- I, he says that daily
wage worker's attendance was taken on plain paper.
16. The workman is also pointed out that they were
never the employee of the contractor and never received
payment by contractor and they were directly working under
the bank management and getting payment from the
management which is clear from the vouchers.
17. On perusal of voluminous document of workman
and several photocopy of cheques it is clear that the
management create the camouflage, and the Bank
management terminated the service of the concerned
workmen without taking permission of the then conciliation
proceedings Officer in violation of section 25 F and prior to
termination of the workman not serving any notice or wages
is illegal.
18. Considering the facts and circumstances and
perusal of the documents, it is clear that the management
has violated the 25 F of I.D Act, I hold that the action of the
management of SBI Patna in terminating the service of
S/Sh (1) Ashok Kumar (2) Pramanand Singh (3) Stendra
Singh (4) Ajay Prasad Srivastava (5) Binay Kumar Sinha (6)
Rabindra Kumar (7) Nand Kishore Ram (8) Suchita Ram (9)
Jai Prakash Singh (10) Sunil Kumar (11) Arjun Kumar
Singh (12) Prabhat Kumar and (13) Vijay Kumar Singh w.e.f.
02/06/2007 is not legal and justified . Hence all be reinstated
in Bank from the date of receipt of reference but without
back wages.
This is my award.
R.K. SARAN, Presidiing Officer
ubZ fnYyh] 14 vDrwcj] 2015
dk- vk- 2002-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ@,lñvkbZñchñ
lsok izkñ fyfeVsM 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 dksydkrk ds iapkV lanHkZ ¼la[;k 05@2015½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 14@10@2015 dks izkIr
gqvk FkkA
[lañ ,y-&12011@01@2015&vkbZ vkj ¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14, October, 2015
S.O. 2002.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 05/
2015) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Kolkata as shown in the Annexure, in the industrial
dispute between the management of M/s. S & IB Service
Pvt. Ltd. and their workmen, received by the Central
Government on 14.10.2015.
[No. L-12011/01/2015-IR (B-1)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Ref. No. 05 of 2015
Parties: Employers in relation to the management of
M/s. S & IB Services Pvt. Ltd.
AND
Their workmen
Present:
Justice Dipak Saha Ray,
Presiding Officer
Appearance:
On behalf of the
:
Mr. A.K. Gautam, Assistant
Management
Manager.
None for M/s. S. & IB Services
Pvt.
Ltd.
On behalf of the
:
None
Workmen
State: West Bengal.
Industry: Banking
Dated: 28th September, 2015.
AWARD
By Order No. L-12011/01/2015-IR(B-I) dated
17.02.2015 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
M/s. S & IB Services Pvt. Ltd. is justified by
terminating the service of Sri Soumitra Podder is
legal and/or justified? If not, what relief the
workmen are entitled to?"
When the case is taken up today for hearing, none
appears either on behalf of Bank Employers' Federation
or on behalf of M/s. S & IB Services Pvt. Ltd. inspite of service
of notice. It appears from the record that the Bank Employers'
Federation at those instance the present reference has been
initiated has not turned up for 4 (four) consecutive dates.
4140
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
3. Considering the facts and circumstances, it appears
that the Bank Employees' Federation is not at all willing to
proceed with this case. So, no fruitful purpose will be served
in keeping the matter pending.
4. In view of the above, present reference is disposed
of by passing a "No Dispute Award".
JUSTICE DIPAK SAHA RAY, Presiding Officer
Kolkata , the 28th September, 2015.
ubZ fnYyh] 14 vDrwcj] 2015
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dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj vkbZ Mh ch vkbZ
cSad izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k fnYYkh ds iapkV lanHkZ ¼la[;k 97@2012½ dks izdkf'kr
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[lañ ,y- &12012@43@2012&vkbZ vkj ¼ch&1½]]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th October, 2015
S.O.2003 .—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 97/
2012) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
No. 1, Delhi as shown in the Annexure, in the industrial
dispute between the management of IDBI Bank and their
workmen, received by the Central Government on 14/10/
2015.
[No. L-12012/43/2012/IR (B-1)]
SUMATI SAKLANI, Section 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. 97/2012
Shri Amarjeet,
S/o Shri Shiv Kumar,
R/o Flat No. 3 Type 4,
Upper Sub-station,
West Kidwai Nagar, New Delhi .......Workman
Versus
IDBI Intech,
Tiwari House,
11-B/8,
Pusa Road,
New Delhi 110060
.......Management
AWARD
Factual matrix giving rise to teh reference is that the
claimant herein was appointed with IDBI Bank initially at
Jhandewalan branch, New Delhi on 20.06.2007 and his
salary was being credited in the bank account of the claimant
bearing No. 17210400001845. Thereafter, he was transferred
to Pusa Road branch as Back Office Executive and was
shown as Data Entry Operator, which was purely clerical
job. Claimant was working under supervision and direct
control of IDBI officials. It is also averred that the
management herein is a wholly owned subsidiary of IDBI
Bank, established in the year 2000, having common
Directors in IDBI Bank and the management. Claimant was
not issued any letter of appointment at the time of his
initial appointment nor was he provided any pay slip or
any other details of his salary by IDBI Bank in spite of his
repeated demands. Claimant worked continuously with IDBI
Bank since 20.07.2007 till 30.10.2010 when his services were
illegally terminated.
2. There are allegations that the workmen used to
sign attendance of IDBI Bank alongwith other employees
and as such claimant herein is presumed to be in service of
IDBI Bank and IDBI Intech Ltd. are one and the same.
Claimant herein worked honestly, diligently and sincerely
till 30.10.2010 and his services were illegally terminated
and during his tenure with the management, claimant had
an unblemished record. Termination of the job of the
claimant herein is in violation of provisions of labour laws
as well as principles of natural justice.
3. In para 9 of the statement of claim, claimant herein
had given sequence of acts which led to termination of his
job. As mentioned above, claimant was appointed on
20.06.2007 on the post of Back Office Executive, which was
purely clerical and at no point of time, he was assigned any
supervisory work and no employee was working under
him. In the month of November 2008, management got
signatures of the claimant on various documents alleging
the same are required by Head Office of the bank at Mumbai
for regularization of services of the claimant herein.
Thereafter, management issued letter on 08.11.2008 with
employee Code No. FOS 11655 purported to be the
appointment letter. From this letter, it was revealed that
salary of the claimant in November 2000 was Rs. 5000.00,
which was credited to the account of the claimant directly
without issuing any pay slip. Prior to this, salary of the
claimant used to be credited to his bank account from the
account of M/s Interpro. maybe the other wholly owned
subsidiary of IDBI Bank. Copy of the letter of appointment
is Annexure A. Management never suppled to the claimant
terms and conditions of service, which is also unfair labour
practice on the part of IDBI Bank. Management also used
to make some deductions from the salary account of the
claimant herein in lieu of ESI, EPF etc.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4141
4. It is specifically alleged that on 15.09.2010, one of
the officials, i.e. Deputy General Manager of IDBI Bank
threatened the claimant herein as well as other employees
in Data Entry Section using indecent and foul language.
He also threatened that those who refused to do extra hours
of work will be thrown out for defiance of the directions of
the management. On 15.09.2010, when claimant herein, along
with his colleagues were taking tea in the canteen at around
3 p.m. and were making discussions regarding claim of
overtime allowance or some other compensation in lieu
thereof for extra work taken regularly by the management,
one Shri Francis entered the said canteen and shouted at
the employees, abused them and also threatened them
with dire consequences. Since the abuses and threats of
Mr. Francis were intolerable, as such the workman made a
call at 100 and complained about the indecent behaviour
and matter was also reported to the police with
DD No. 19-A dated 15.09.2010 at Police Station Rajinder
Nagar, New Delhi. Copy of DD is Annexure C.
5. Management got annoyed on account of the above
complaint lodged by the workmen and immediately
terminated services of the workmen, including the claimant
herein, vide letter dated 30.10.2010 without any just reasons
and grounds. His termination is illegal, mala fide,
unwarranted and invalid under the law.
6. During the conciliation proceedings, the
management filed copy of letter dated 17.09.2010 issued
under the signatures of Shri Vimal Singh, Centre Manager
(North), which was addressed to Head (Operations), OBST
IDBI Intech Ltd. Mumbai, taking false and frivolous grounds
therein. The said letter is false and fabricated, copy of which
is Annexure F. Thereafter, Government of India vide letter No.
L-12012/43/2012-IF(B-I) dated 30.08.2012, referred the matter
to this Tribunal and terms of the reference are as under:
"Whether the action of the management of IDBI
Intech in terminating the service of Shri Amarjeet,
S/o Shri Shiv Kumar with effect from 30.10.2010
is legal and justified?’’
7. After issuing notice to both the parties, claimant
herein filed statement of claim and management filed written
statement to the above statement of claim, taking
preliminary objections, inter alia, that there is no merit in
the claim as claimant, Shri Amarjeet was appointed in the
company as Back Office Executive on fixed term contract
vide appointment letter dated 08.11.2008. No doubt, he
was informed about the rules and thereafter he signed letter
of confirmation containing terms and conditions of his
employment. Claimant, Shri Amarjeet is bound by the said
terms and conditions. It is also alleged that on 15.09.2010,
Shri Amarjeet and some other members, instigated by him
to report late for work started showing indisciplinary
attitude. They refused to abide by the requests made by
the concerned authority and created ruckus in the office
by shouting slogans against the authorities and threatened
him with dire consequences. It is also alleged that the
dispute raised by Shri Amarjeet is illegal and unjustified.
Shri Amarjeet was engaged on fixed term contract.
Company has followed the process of law while
terminating his services. As such, termination of services
of the claimant is bonafide, legal, justified and in
accordance with the terms of contract. On merits,
management has denied material averment regarding
wrongful termination of services of the claimant herein.
8. Against this factual background, my learned
predecessor vide order dated 11.01.2013 framed the
following issues:
(1) Whether action of the management in terminating
services of the claimant amounts to retrenchment?
(2) Whether claimant is a wrokman within the
meaning of section 2(s) of the Industrial Disputes
Act, 1947?
(3) As in terms of reference.
9. Claimant in order to prove case against the
management examined himself as WW1 and also tendered
in evidence documents relied upon by them. However,
management opted not to lead any to rebut the case of the
claimant.
I have heard Shri Om Prakash Sharma, authorized
representative for the claimant and Shri Pratyush Parimal,
authorized representative for the management.
Finding - Issue No.1
10.
Shri Om Prakash Sharma strongly
contended that in the case in hand, it is proved from the
record that the claimant Shri Amarjeet was offered job of
Data Entry Operator on 20.06.2007 and he was
performing his duties honestly and sincerely. It was
strongly urged that no enquiry was held in the present case
before issuance of the order of his termination. Even show
cause notice was not served upon the claimant, as such
action of the management in issuing letter of termination
3
1
.
1
0
.
2
0
1
0
Ex. WW1/8 is total illegal and aganist the principles of
natural justice.
11. Secondly, learned authorized representative for
the calimant proceeded to argue that in fact IDBI Bank
and IDBI Intech Ltd. are one and the same thing in as much
as IDBI Intech Ltd. management herein is subsidiary of
IDBI Bank. Since IDBI Bank is the principal employer
and no certificate of registration has been filed by the
management herein so as to show that the management
was having licence to engage contract labour/casual
employee etc. as such, in the absence of such registration,
claimant herein would be considered to be employee of
the principal employer and provisions of the Industrial
Disputes Act would be applicable in case of illegal
termination of his services. Learned authorized
representative also relied upon a few judgements and I
would be referring to the ratio of the same while drawing
my conclusions.
4142
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
12. Per contra, Shri Pratyush Parimal, authorized
representatives appearing on behalf of the management
defenced action of the management in terminating services
of the claimant, Shri Amarjeet. The learned authorized
representative urged that initial enquiry was held by the
management and it was found that the claimant herein is
indulging in indiscipline and as such committed
misconduct. It was because of all these reasons that
services of the claimant herein were terminated vide order
dated 31.10.2010, Ex WW1/8. Before issuance of the
above order, management has conducted investigation and
copy of the report is dated 17.09.2010, which is Ex.WW1/9.
13. Before, I proceed to consider comparative
merits of the submissions based on behalf of either of
the parties, it is necessary to recapitulate certain admitted
facts having bearing on merits of the case. It is neither in
doubt nor in dispute that the claimant, Shri Amarjeet was
appointed/engaged by IDBI Delhi branch and approval of
his appointment is evident from Ex.WW1/1. It is further
clear from perusal of the appointment letter dated
08.11.2008 Ex.WW1/2 that the claimant herein was
appointment for a fixed term contract period of three years
from the date of joining and his initial place of posting
was RPU Delhi branch. During the course of arguments,
attention was drawn to clause 10 and 11 of the above
appointment letter, Ex.WW1/2 wherein it is clearly
provided that in the event of any wilful or continued neglect
of duty or any other serious misconduct or breach of this
contract on the part of the workman, the company reserves
the right to terminate employment forthwith and without
any previous notice or payment in lieu of notice. Clause
11 further provides that his performance would be
monitored by the management for first six months and in
case his performance is not found to be satisfactory, his
services would be terminated without any notice.
14. It is now well settled position in law, that not
only judicial or quasi-judicial authorities, even in
undertaking or departments, performing of administrative
duties, are required to follow principles of natural justice
while making any adverse order against workmen, dehors
conditions of employment mentioned in letter of
appointment. In the case of Govindaraju Vs. Karnataka
SRTC (1986) 3 SCC 273 while dealing with the case of
temporary/badli employees whose services were
terminated on the ground of unsuitability, in terms of the
stipulations contained in the regulations, it was held that
compliance of minimum requirement of natural justice
by affording opportunity of explanation was essential
before taking any adverse action against such workmen.
Consequently, in the absence of any such opportunity or
show cause notice, order of termination is rendered null
and void being inconsistent with principles of natural
justice. There is a long line of decisions to this effect
where similar view has been taken by the Hon'ble Apex
Court as well as various High Courts in the country.
Learned authorized representatives for the management
could not cite any ruling to the contrary wherein it has
been held that an order passed in violation of principles
of natural justice, i.e. without issuance of show cause
notice or fact finding enquiry can be sustained in the eyes
of law.
15. There is a glaring blunder committed by the
management in the present case, which cannot be easily
ignored and this Tribunal wants to place on record
pernicious manipulation committed by the management
so as to put an end to the career of the workman. In this
regard, it is appropriate to refer to letter dated 17.11.2010,
Ex.WW1/9, which in fact is an investigation report
regarding ruckus created by OBST employees in Delhi
on 15.09.2010. Undoubtedly, action taken against the
claimant herein is in respect of an incident alleged to have
taken place on the above date, i.e. 15.09.2010. As is clear
from pleadings of the parties, allegations against the
claimant herein was regarding misbehavior and abuses
which he has hurled along with his co-employees, against
the official of the management. It is further clear from
contents of the letter (investigation report) that in the
enquiry, it was found that five members were responsible
for the above incident for instigating whole group over
trivial issues which snow balled into a major crisis. Name
of the claimant herein, Shri Amarjeet, is mentioned as
serial No.1 along with 4 other employees. In the end of
letter
(investigation
report)
WW1/8, is it mentioned as under:
'On the basis of the above mentioned information,
subsequently notice of termination of service was
given on 30.10.2010.'
16. It is really strange that when the letter is alleged
to have been written on 17.09.2010, how there can be
mention of date of 30.10.2010, which will come more
than one month thereafter. It is pertinent to note here that
services of the claimant along with 4 other employees,
was dispensed with on 30.10.2010, as is clear from letter
of termination Ex.WW1/8. It is crystal clear that, in fact,
letter dated 17.09.2010 (investigation report) was
prepared at the time of preparation of termination letter
Ex. WW1/8 and this was purportedly done so as to show
that a fact finding enquiry was conducted by the
management so as to take adverse action against the
delinquent employees. Thus, entire action of the
management in the present case smacks of fabrication &
manipulation and this Tribunal cannot ignore the fact that
on the date of incident, i.e. 15.09.1990, claimant and other
co-employees have lodged DDNo. 19- A dated
15.09.2010.
Findings - Issue No.2
17. Now, the next vital question in the case in hand
is as to whether claimant herein is a workman within the
meaning of Section 2(s) of the ID Act. During the course
of arguments, it was stronlgy urged on behalf of the
management that the claimant does not fall within the
definition of workmen as his job was supervisory in nature.
In fact, he was holding a managerial post, as such, case of
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4143
the claimant cannot be adjudicated by the Industrial
Tribunal inasmuch as the claimant herein does not fall
within the definition of workman. On the other hand, Shri
Sharma strongly urged that letter of appointment as well
as salary slip clearly shows that the claimant herein was
not performing any managerial or supervisory job. As such,
merely use of nomenclature even as supervisor etc. would
not confer upon him the status of manager nor would rob
the job of this tribunal of its jurisdiction to adjudicate the
matter. In this regard, it is pertinent to refer to letter of
appointment Ex.WW1/2, which clearly shows primary job
of the claimant herein as 'business development of all
products of the bank' and he was given total salary of
Rs.6274.00. Further, letter of approval Ex.WW1/1
nowhere suggests that the claimant, Shri Amarjeet was
given an kind of managerial work or any employee had at
any point of time was working under his so as to prove
that the claimant herein was performing managerial
functions. Pay slip Ex.WW1/4 and Ex.WW1/5 also
mentions about the total salary of the workman. It is also
evident from pay slip for the month of August 2010 Ex.
WW1/4 and Pay slip for the month of June 2010 Ex.
WW1/5 that salary of the claimant was much below the
limit of Rs. 10,000.00 and there is no mention of any
managerial functions in the said pay slip or any other
document placed on record.
18. It is not out of place to mention here that
management in the present case did not lead any evidence
so as to rebut the case of the claimant. Resultantly, the
Tribunal cannot accept the plea of the management, without
any oral or documentary evidence that the claimant was
holding a managerial post.
19. It has been held in the case of Devinder Singh
Vs. Municipal Council AIR(2011) SC 2532 that expression
'workman' is to be given a very wider meaning as used in
the Industrial Disputes Act. The source of employment,
the method of recruitment, the terms and conditions of
employment/contract of service, the quantun of wages/
pay and the mode of payment are not at all relavant for
deciding whether or not a person is a workman within the
meaning of Section 2(s) of the Act. The definition of
workman also does not make any distinction between full
time and part time employee or a person appointed on
contract basis.There is nothig in the pain language of
Section 2(s) from which it can be inferred that only a
person employed on regular basis or a person employed
for doing whole time job is a workman and the one
employed on temporary, part time or contract basis on
fixed wages or as a casual employee or for doing duty for
fixed hours is not a workman.
20. There is another aspect of the matter which
cannot be ignored. Letter of termination dated 30.10.2010,
Ex. WW1/8 clearly shows that the claimant herein was
working on contract as Back Office Executive with effect
from 18.08.2008 for a period of three years on terms of
employment vide letter dated 08.11.2008. There is no mention
in this letter that services of the claimant herein are being
terminated on account of misconduct or mishehavior. Rather,
it simply shows that 'your services are no longer required'
and stand terminated with immediate effect from the close
of hours on 30.10.2010 as per clause 10 and 11 of contract
of appointment dated 08.11.2008 Ex. WW1/2. As discussed
above, clause 10 and 11 of the above letter of appointment
cannot override the provisions of the Industrial Disputes
Act and principles of natural justice, which have not been
followed at all in the case in hand. Since services of the
claimant herein have been terminated before expiry of the
period of three years and that too without holding any
enquiry or issuance of show cause notice, as such the
same is held to be wrong and illegal. Both the issues are
decided accordingly in favour of the workman.
21. As a sequel to my discussions above, the order
of termination dated 30.10.2010 passed by the
management against the claimant herein is totally wrong
and illegal and as such liable to be set aside. Consequenly,
claimant herein is ordered to be reinstated with all
consequential benefits on the post which the claimant was
holding on the date of his termination, i.e. 30.10.2010.
There is nothing on record to suggest that the claimant
herein was not gainfully employed during the period of
termination till the date of filling of the present reference.
In such circumstances, Tribunal is of the view that the
claimant is entitled for 50% of back wages.
Dated: August 20, 2015
A.C. DOGRA, Presiding
Officer
ubZ fnYyh] 15 vDrwcj] 2015
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New Delhi, the 15th October, 2015
S.O. 2004.—In pursuance of Section 17 of the
Industrial Disputes, Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.95/03)
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 Baroda and their
workmen, received by the Central Government on
15.10.2015.
[No. L-12012/2/2003-IR(B-II)]
RAVI KUMAR, Desk Officer
4144
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/95/03
Shri Mohanlal S/o Shri Pooranlal Patel,
Village Mankari,
PS-Maharajpur,
...Workman
Chhattarpur (MP)
Versus
Regional Manager,
Bank of Baroda,
Regional Office,
LIC Building,
Jeevan Beema Marg,
Raipur.
... Management
AWARD
Passed on this 21st day of July 2015
1. As per letter dated 19.5.03 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribuanl under
Section-10 of I.D. Act, 1947 as per Notification No. L-12012/
2/2003-IR(B-II). The dispute under reference relates to:
"Whether the action of the Regional Manager, Bank
of Baroda, Raipur and Branch Manager, Bank of
Baroda Maharajpur Branch, Distt. Chhattarpur in
terminating the services of Shri Mohanlal Patel w.e.f.
13.12.2000 is justified and legal? If not, what relief
the workman is entitled to?"
2. After receiving reference, notices were issued to
the parties. Workman submitted statement of claim at Page
2/1 to 2/4. Case of workman is that he was working with
2nd party from 16.5.88. He was orally terminated on
13-12-2000 without assigning any reasons. Any chargesheet
was not issued to him. No enquiry was conducted.
Workman was not given opportunity of hearing. Workman
was continuously working more than 240 days. He
acquired status of permanent empoyee. His services could
not have been terminated in violation of statutory
provisions. Principles of natural justice were not followed
while terminating his services. He was terminated by way
of victimization under colourable exercise of powers. Act
of 2nd party amounts to unfair labour practice.
3. Workman further submits that provisions of
Section 25-F of ID Act were not complied. Principles of
Ist come last go was not followed. Permission from
appropriate Government for termination of his service
was not obtained. Therefore termination of his service is
illegal. Workman is not gainfully employed. His family
lives in starving condition. On such ground, workman prays
for reinstatement with backwages.
4. 2nd party filed Written Statement at Page 7
opposing claim of Ist party workman. Preliminary objection
is raised by 2nd party that Government has made reference
assuming certain facts which were not existing. The
reference is made without application of mind is not tenable.
5. 2nd party submits that workman was never
appointed in Bank. He was not on roll of the Bank. Workman
was intermittently engaged for 2 days for casual nature of
work. Workman was paid wages. He was not employee of
the Bank. In 1988, workman worked for 66 days, in 1989 for
90 days, in 1991 for 43 days. Workman have not completed
240 days continuous service in any calendar year. Workman
was offered job of casual nature whenever available. The
engagement of workman on daily wages indicates his
engagement subject to availability of work. He may be given
work next day of his engagement if available. Workman
was not obliged to report on duty next day. The rules for
direct recruitment and selection were not followed. As
workman was engaged on daily wages, his disengagement
is covered under Clause 2(oo)(bb) of ID Act. The
disengagement of workman doesnot amount to
retrenchment.
6. 2nd party further submits that Branch Manager
has no authority to appoint any empoyee including sub
staff. The Regional Manager and Officer of higher rank are
employed to appoint employees in the Bank. Violation of
Section 25-F of ID Act is denied. It is submitted that
workman has not covered under Section 25 B of ID Act is
not entitled to protection of Section 25-F of the Act. The
Bank had decided to discontinue all casual employees.
The branch offices of the Bank were instructed by various
communications not to engage any person on temporary
or casual basis as a one time exemption from Government
of India, Ministry of Labour, relaxation was obtained during
1995 for the recruitment of 681 casual employees. It was
subject to conditions that Bank will comply with all the
instructions regarding reservation of SC/ST, Physically
Handicapped, Ex-servicemen upto required percentage of
reservation of persons belonging to those categories. That
Bank will refrain from seeking any further exemption from
the DGE&T with regard to relaxation granted as one time
measure. That Bank will ensure recruitment of persons in
both the posts through Employment Exchange and comply
with all provisions of Employment Exchange Act, 1959
strictly. Bank will furnish six monthly report regarding filling
up the vacancies of SC/ST etc. categories. As sufficient
vacancies were not available in the Bank for recruiting all
681 persons from different parts of the country. Most of
them are given appointment in fresh manner and waitlisted
for appointment against future vacancies though
exemption was allowed by government in the 1995. Name
of workman did not appear in list of 681 persons. It is
further submitted that the directions of Government with
regard to employment of cadre of sub staff to Employment
Exchange are mandatory. The statutory bodies and Government
¹Hkkx IIó[k.M 3(ii)º
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4145
organization should notify vacancies from Employment
Exchange.
7. That Bank is public employment covered by
employment under State and Constitution of India under
Article 16 of the Constitution equal opportunity for such
employment to all citizen. It is reiterated that in
recruitment process, compliance of reservation criteria
in respect of SC, ST, OBC, Physically Hadicapped and
Ex-Servicemen is mandatory. The service conditions of
sub staff divided in categories clerks and sub staff are
governed by Sastri Award, Desai Award. The regular
employees are given benefits of privilege leave, 12 days
of Casual Leave, one month sick leave per annum.
Therefore casual workers are required for carrying the
work. The person who is engaged on temporary basis on
stop gap arrangement without following recruitment rules
cannot claim permanent status. 2nd party has referred to
ratio held in various cases by Supreme Court and High
Court emphasizing that claim of workman cannot be
accepted. 2nd party has reiterated that workman was not
appointed following recruitment rules. He was engaged
for casual nature of work. There is no relationship of
employer and employee between parties. Workman never
enjoyed status of permanent employee in the Bank. The
discontinuation cannot be said retrenchment. Workman
has not completed 240 days service during any calendar
year. The claim of workman is false and mischievous. Bank
has not violated any settlement. On such ground, 2nd party
prays reference be answered in its favour.
8. Workman filed rejoinder reiterating his
contentions in statement of claim. 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
Regional Manager, Bank of
Baroda, Raipur and Branch
Manager, Bank of Baroda
Maharajpur Branch, Distt.
Chhattarpur in terminating
the services of Shri
Mohanlal Patel w.e.f.
13-12-2000 is justified and
legal?
(ii)
If not, what relief the
As per final order.
workman is entitled to?"
REASONS
9. Workman is challenging termination of his
service for violation of Section 25-F of ID Act. Claim of
workman is opposed by 2nd party. workman filed affidavit
of his evidence supporting his claim in statement of claim.
In his affidavit of evidence, workman says that he was
working with 2nd party from 16-5-88. His services were
terminated on 13-12-2000. That he was working continuously
during the intervening period. Considering pleadings, 240
days continious service during each of the calendar years.
He had submitted application after notice was displayed
in the Bank. He was interviewed on the same day and
appointed by 2nd party as peon. Appointment letter was
not issued to him, that he was working against vacant post.
He was terminated without enquiry, notice was not issued
to him. He was not served with any chargesheet.
Termination notice was not given to him, he was not paid
retrenchment compensation. Workman was cross-
examined extensively. In his cross-examination, workman
says he was having Saving Account in the Bank from 1987.
He did not recollect Account No. he was paid in cash in
hand. Wages were not deposited in the account. He was
visiting the Bank. On 15-5-88, he had gone to the Bank.
After he had seen notice of vacancy on notice board, he
submitted application on 16-5-88. Certificate of work was
not issued to him. His attendance was maintained in small
register. His signature was obtained in said register. The
register was kept the Daftary working in the Bank. His
name was not sponsored through Employment Exchange.
He was unable to tell the period of work of Branch
Manager Shri Umakant Ganvir. On his request, Shri
Umakant has issued certificate of his working, document
produced at Exhibit W-10. Copy of application Exhibit
W-9. Workman denied suggestion that Shri Umakant
Branch Manager not issued certificate to him. He had
obtained payment voucher from Bank. He was paid wages
for the working days. Workman was unable to tell working
days of particular year. In his further cross-examination,
workman says Shri Chiranjilal Kushwaha is working as
peon in the Bank from 14-12-12. Shri Chiranjilal himself
told about it to him.
10. Management filed affidavit of evidence of Shri
Umakant supporting contentions of 2nd party in Written
Statement that workman was engaged as casual work. He
was not appointed by the Bank. Workman was given job
of casual nature available in the Bank. He was reimbursed
for his engagement. Workman had worked for 66 days in
1988, 89 days in 1990, 43 days in 1991 on daily wages.
Bank had decided to discontinue casual employees. As
one time exemption from Government of India, Ministry
of labour. Relaxation was obtained in 1995 for
recruitment of 681 casual employees excluding the
provisions of Employment Exchange Act, 1959. Name
of workman was not found in those 681 persons who were
from different parts of the country. Workman was not
appointed by Competent Authority. There was no question
of his retrenchment. Workman had not completed 240
days continuous service during any of the calendar year.
Management's witness in his cross examination says that
he was working at Maharajpur Branch from 9-9-98 to
February 1999. That he had seen available record,
certificate produced by workman. Workman was not
working during his tenure. Management's witness claims
ignorance during his period workman worked in the Bank
4146
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
but his name was not found in the muster roll. Affidavit of
his evidence was drafted with his consent. As per record
submitted by workman, the management's witness said
workman had not completed more than 240 days working.
Muster roll was not brought by him. The suggestion is
denied that workman was continuously working during
1988 to 2000. It is clear that management's witness has
no personal knowledge as Ist party workman was not
working during his tenure. Management has not produced
muster roll seen by management's witness. Copy of
applicant submitted by workman is produced at Exhibit
W-9. The certificate of working is produced at Exhibit
W-10. In Certificate Exhibit W-10, it is certified that
workman was working in the Bank from 16-5-88 to 6-2-99.
11. The documents produced by workman Exhibit
W-1 is copy of notice of strike given by Union Secretary
dated 16-1-01. Exhibit W-2 is notice of conciliation
proceeding before RLC.Exhibit W-4 is notice issued by
ALC, W-5 is reply submitted by Regional Manager before
ALC. Exhibit W-6 is reply filed by workman before ALC. In
any of those documents, workman was continuously
working from 1988 to 2000 is not admitted by 2nd party.
Exhibit W-7 is copy of order of reference,. Payment
vouchers produced by workman Exhibit W-8 (a to g) are for
the year 1996, 1999, 2000 intermittently working. Exhibit
M-1 produced by 2nd party is copy of entries in cash book
dated 30-1-99 pertains to entries of expenses. Said
document doesnot show any of the amount was paid to Ist
party workman. Payment vouchers produced by
management at Exhibit M-2 to M-90 pertains to payments
in year 97 to 2000. The legality of termination of workman
from 13-12-2000 is in dispute. Workman alleged that his
services are terminated in violation of Section 25-F of ID
Act. Therefore it needs to be considered whether workman
completed 240 days during 13-12-99 to 12-12-00.
12. Workman had submitted application for
production of payment vouchers, peon book, attendance
register for the year 88 to 2000. 2nd party has not
produced all those documents. However payment
vouchers Exhibit M-2 to M-90 are produced. Payment
vouchers Exhibit M-47 to M-89 are for the period 14-
12-99 to 2-12-2000. On reverse side of all those
documents produced by management, signatures of Ist
party are appearing except few vouchers, name of Ist party
workman is shown in respect of amount paid. Amount paid
to Ist party workman under those vouchers is shown
Rs. 260, 371, 318, 360, 320, 360, 420, 300. All those payment
vouchers Exhibit M-47 to M-89 are considered, it is clear
that workman had completed 240 days continuous service
during the period 14-12-99 to 13-12-2000. Workmen was
not served with notice of termination, he was not paid
retrenchment compensation. Evidence of workman on
above point is not shattered. Evidence of workman is
corroborated by documents Exhibit M-47 to M-89.
13. Learned counsel for 2nd party Shri A.K. Shashi
submits that management witness denied certificate Exhibit
W-10 was issued. However said document appears unusual
and suspicious. It is difficult to place reliance looking to
the signature on Exhibit M-10. However documents M-47
to M-89, W-8(g) shows that workman was working with
2nd party form 12-12-99 to 13-12-00. He worked more than
240 days. The services of workman were discontinued
without notice, retrenchment compensation was not paid
him.
14. Learned counsel for 2nd party Shri A.K. Shashi
relies on ratio held in Case of Surendra Nagar District
Panchayat versus Dahyabhai Amarsingh reported in 2005(8)
SCC-750. Their Lordship held workman claiming to have
been in employment for 10 years with employer, courts
below drawing adverse inference against it and reinstating
workman. The courts below have wrongly drawn the said
adverse inference. The scope of enquiry before Labour
Court was confined to only 12 months preceding the date
of termination to decide question of continuation of service.
In present case, the documents Exhibit W-8(g), M-14
to M-89 shows wokman was continuously working more
than 240 days during 12-12-99 till his termination on
13-12-2000. Ratio cannot be beneficially applied to present
case as evidence of workman is corroborated by above
documents.
Reliance is also placed in case of UP State
Warehousing Corporation and Another versus Presiding
Officer reported in 2013-III-LLJ-213 also cannot be
beneficially applied to case at hand.
15. The workman was terminated without notice,
retrenchment compensation was not paid to him,
termination of workman is illegal for violation of Section
25-F of ID Act, therefore I record my finding in Point No. 1
in Negative.
16. 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 remains for decision whether
workman is entitled for reinstatement with backwages.
Workman in his cross-examination says he was orally
interviewed after he submitted application, written test
was not conducted. He alone was interviewed by Shri
Awadh kumar. He not submitted any documents along with
his application. Written appointment letter was not issued
to him. It is clear that workman was not appointed
following recruitment process. Payment voucher Exhibit
W-8(g), M-47 to 89 shows payment to workman at the
rate of daily wages. As workman was not appointed
following recruitment process, he was engaged on daily
wages, learned counsel for 2nd party Shri A.K. Shashi
submits that he cannot be reinstated in service with back
wages. In support of his argument, Shri A.K. Shashi relies
on ratio held in :
¹Hkkx IIó[k.M 3(ii)º
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4147
Case of State of UP versus Hind Majdoor Sabha reported
in 2011-LAB.I.C.4322. Their Lordship of Allahabad High
Court considering daily wager workman working for short
period of four years. His initial recruitment was not in
accordance with procedure prescribed by law. Services
terminated without complying with Section 6 N of ID Act.
Relief of reinstatement with backwages is not proper.
Workman instead may be granted compensation equivalent
to six months wages.
Next reliance is placed on ratio held in case of Indian
Drugs and Pharmaceuticals Ltd. Versus their workmen
reported in 2007(1)SCC 408. Their Lordship dealing with
Article 16, 14 and 309 of the constitution and creation of
post appointment to posts, regularization, fixing of pay
scales, continuation in service, their Lordship held all said
functions are executive or legislative and it is highly
improver for judges to step into their sphere, except in a
rare and exceptional case. The court cannot create a post
where none exists nor issue directions to absorb or
regularize temporary employees nor continue them in
service.
In present case, workman is challenged termination
of his service for violation of Section 25-F of ID Act. Violation
of Section 25-F of IDI Act is not decided in above cited
case. Claim of workman is not for regularization. In Para
15 & 18, their Lordship held no direction can be given that
a daily wage employee should be paid salary of a regular
employee. If an employee is not appointed against a
sanctioned post, he is not entitled to any scale of pay.
Question of violation of section 25-F was not involved
for consideration. Workman has not claimed regularization
therefore ratio held in the case cannot be beneficially
applied to case at hand.
Reliance is also placed in case of Senior
Superintendent Telegraph Traffic Bhopal versus Santosh
Kumar Seal and other reported in 2010(6)SCC 773. Their
Lordship Dealing with reinstatement, Backwages in case
of retrenchment in violation of Section 25-F of ID Act, the
relief by way of reinstatement with backwages not
automatic even if termination of employee is found to be
illegal or in contravention of the prescribed procedure and
monetary compensation in cases of such nature may be
appropriate. On fact as the workman were engaged as daily
wager about 25 years back, they hardly worked for 2-3
years, the relief of reinstatement with backwages cannot
be said justified. The employer were directed to pay
Rs. 40,000 each as compensation.
In present case, workman was in employment of 2nd
party from 1998 as disclosed from affidavit of evidence
of management's witness his service were terminated on
13-12-2000. Workman was engaged on daily wages
without following recruitment process. In my considered
view, compensation Rs. 1,50,000 would be appropriate.
Accordingly I record my finding in point No.2 :
17. In the result, award is passed as under:—
(1) The action of the Regional Manager, Bank of
Baroda, Raipur and Branch Manager, Bank of
Baroda Maharajpur Branch, Distt. Chhattarpur
in terminating the services of Shri Mohanlal Patel
w.e.f. 13-12-2000 is not proper.
(2) 2nd party is directed to pay compensation
Rs. 1,50,000 within 30 days from the date of
notification.
Amount as per above order shall be paid to workman
within 30 days from the date of notification of award. In
case of default, amount shall carry 9% interest per annum
from the date of award till its realization.
R.B. PATLE, Presiding Officer
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New Delhi, the 15th October, 2015
S.O. 2005—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. Case No. 08
(C) of 2009) of the Indus.Tribunal-cum-Labour Court, Patna
as shown in the Annexure, in the industrial dispute between
the management of Indian Bank and their workmen,
received by the Central Government on 15.10.2015.
[No. L-12012/50/2009-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL , PATNA
Reference Case No. 08(C) of 2009
Between The Dy. General Manager, Indian Bank,
Circle Office, Govind Bhawan, New Dak Bunglow Road,
Patna (BIHAR)-800001 and Their workman Shri Jitendra
Kumar Sinha, represented by the General Secretary, Indian
Bank Employees Association (Bihar Jharkhand), C/o
Indian Bank, Patna (BIHAR)-800013.
For the management: Sri Arun Kumar, Chief Manager,
Zonal Office, Patna.
4148
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
For the workman: Sri B. Prasad, General Secretary, of
Indian Bank Employees Association.
Present:-
Bipin Dutta Pathak
Presiding Officer, Industrial Tribunal, Patna.
AWARD
Patna, the 31st August, 2015
By notification order No. L-12012/50/2009-IR(B-II)
New Delhi, dated 30.09.2009 Govt. of India 'Bharat Sarkar'
Ministry of Labour/Shram Mantralaya, New Delhi referred
under clause (d) of sub-section (1) and sub-section (2A)
of section-10 of the Industrial Dispute Act, 1947
(hereinafter to be referred to as 'the Act') the following
dispute between The Dy. General Manager, Indian Bank,
Circle Office, Govind Bhawan, New Dak Bunglow Road,
Patna (BIHAR)-800001 and Their workman Shri Jitendra
Kumar Sinha, represented by the General Secretary, Indian
Bank Employees Association (Bihar Jharkhand), C/o
Indian Bank, Patna (BIHAR)-800013 for adjudication to
the Industrial Tribunal, Patna.
SCHEDULE
"Whether the action of the management of Indian
Bank in imposing punishment of compulsory
retirement from service on Shri Jitendra Kumar
Sinha is legal and justified? What relief the workman
concerned is entitled to?"
2. Notification received for adjudication the dispute
between the management of Indian Bank and their
workman namely Shri Jitendra Kumar Sinha the dispute
for adjudication is "Whether the action of the management
of Indian Bank in imposing punishment of compulsory
retirement from services on Shri Jitendra Kumar Sinha is
legal and justified? What relief the workman concerned
is entitled to?"
3. Statement of claim filed on behalf of the
workman is that reference speaks of the imposition of
punishment of compulsory retirement of Shri Jitendra
Kumar Sinha by the management of Indian Bank. In case
the punishment is held to be illegal and unjustified, the
quantum of relief(s) to which the workman is entitled to,
is to be decided and determined by the tribunal. Jitendra
Kumar Sinha after being selected joined the service of
Indian Bank w.e.f. 03.12.1994 as clerk-cum-shroff and
was posted at Sihuli branch Dist. Aurangabad. Thereafter,
he was transferred from Sihuli branch at Gaya branch in
Sept. 1997. At Gaya branch he took active part in
organizing of the workmen at Gaya and other near-by
branches and was elected as Secretary of Indian Bank
Employees Association (B.E.F.I), Gaya unit. In the
capacity of branch Secretary. He used to raise voice
against arbitrary action of the management and became
an eyesore of the management. Some officers of the bank
hatched a conspiracy against him and persuaded the higher
management to victimize him so that trade union activities
can be curbed. Some officers of the branch due to enmity
raised certain objections at certain occasion, and made
an unfounded report regarding alteration of some figure
in a saving bank account No. 8685 of Surya Narayan Prasad
on 29.09.2000. There was no complain from the sides of
the account holder but higher management placed him
under suspension w.e.f. 04.02.2001. After suspension
workman was issued a charge sheet. He submitted point
wise reply to the charges but management was not satisfied
and decided to hold domestic enquiry against the workman.
Sri Surya Narayan Prasad the account holder submitted a
letter before the management stating there in that the
workman was not at all responsible for any alteration in his
saving bank account. It did not deter the management from
holding domestic enquiry and they were in full preparation
for sacking the workman, so that trade union activities
could be stopped once for all. Head office of the union was
at Patna city branch of the bank where at most all the
workmen were members of sponsoring union. The higher
management always tried their level best to curb the
growing organized strength other workmen. Mr. M.A. Khan,
Manager, of Patna city branch who had tussle with the
members of union, was appointed as enquiry officer and
Rajan Lal was appointed as presenting officer.
The enquiry officer did not hold the enquiry fairly
and properly and acted at the behest of the presenting
officer, Enquiry officer used to seek instruction even for
recording the minutes. The view pointed of defence were
not recorded properly and workman was forced to write of
the Disciplinary authority for changing the enquiry officer
but this did not materialize. Enquiry officer ignored the
principle of natural justice. His finding were one sided,
and completely ignored the materials facts on record and
submissions of the defence representative. Even the view
points and submissions of the account holder were never
given any credence. Actually, the case was related to the
account holder who had no complaint at any point of time.
Enquiry officer failed to discharge his duties.
Accordingly findings suffered from perversity. Without
application of proper mind, the disciplinary authority passed
the final order on 31.10.2006 imposing the punishment of
"Compulsory Retirement" from the service of the bank.
Disciplinary authority was under external pressure of C.V.O
of Indian Bank. During period of suspension, workman
was not paid his due wages and 4/5 annual increments
were also not allowed to him.
Workman preferred an appeal against the order
of the disciplinary authority on 29.11.2006. The appellate
authority did not allow his defence representative at the
time of personal hearing on 11.02.2008. Workman was
alone during the course of personal hearing and was left
with no alternative but to sign on the dotted lines of the
proceedings of personal hearing. Copy of the proceeding
of personal hearing was not supplied to the workman. The
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4149
entire proceeding was a cover-up exercise to victimize the
workman. Workman raised an Industrial Dispute through
the sponsoring union with the appropriate authority under
the I.D. Act, 1947. There was non conciliatory attitude of
the management and conciliation ended in failure. Failure
report was sent to the appropriate Govt. and Govt. referred
to this adjudication to this tribunal. Workman is a poor
workman having no any alternative means of livelihood.
He could not be married as he was suspended. Punishment
of compulsory retirement is neither legal nor justified.
Management violated the rules of evidence while proving
the charges. There was no complaint in the case.
Disciplinary authority failed to apply his mind properly
and independently. The punishment imposed on the
workman is highly punitive in nature. The workman is
innocent and did not commit any misconduct. Prayer has
been made for relief of reinstatement in the service of the
bank with back wages and all consequential benefits and
payment of cost for contesting the dispute by the workman.
4. Reply/counter statement has been filed on behalf
of the respondent (management bank) on 23.12.2009.
Allegation made in the claim statement has been denied,
except those which has been specifically admitted and the
petitioner is put to strict proof there of. It has been stated
that bank is nationalised bank and the custodian of public
money. Honesty & integrity are the basic tenets. Any
deviation would bring down the image of the bank affecting
the customer service and banking business, which is
prejudicial to the interest of the public and respondent
bank. The clerical staff members working in the repondent
bank are governed by the settlement dated-10.04.2002 and
27.05.2002 between the management Bank/IBA and the
unions representing workmen on the disciplinary
proceedings & procedure there of for workmen. All
averments made in para- 1,2 and 3 ‘‘about the reference
and joining service of Jitendra Kumar Sinha has been
statement of facts or record. All the allegations made in
remaining paragraph and under the head grounds have
been denied.
Brief facts relating to dispute has been stated that.
(a) Sri Surya Narayan Prasad, Account Holder of
saving bank account no.8685 at Gaya branch
presented a cheque for payment and he had no
sufficient balance and as such he verified is ledger
and orally complained to Sri R.L. Ram and branch
manager that he had not issued the cheque
bearing no. 878101 for Rs. 95,000/where as it was
issued for payment of Rs. 5000/ only.
(b) Sri Surya Narayan Prasad utilized the service of
his nephew Sri Jitendra Kumar Sinha who was
staff, posted at Gaya branch for his bank
transaction.
(c) Branch Manager asked to submit a written
complaint, but Jitendra Kumar Sinha persuaded
him not to file a written complaint and he deposited
Rs. 25,000 so that his uncle (Sri Surya Narayan
Prasad) could get payment of Rs. 5000.
(d) The Branch Manager submitted a written
information to the AGM Patna for necessary
action vide his letter dated-18.12.2000.
(e) Management Bank directed Mr. J. Baidya, Senior
Manager to investigate the matter and submit the
report which was submitted on 29.12.2000.
(f) Bank called for an explanation from Mr. Jitendra
Kumar Sinha vide letter dt-04.01.2001 which was
replied dt 25.01.2001 denying the explanation
called for against him without giving cogent
reasons.
(g) Mr. J.K. Sinha was suspended by the bank vide
letter dated-31.01.2001.
Management bank did not find satisfactory
explanation and decided to issue a charge sheet to hold a
departmental enquiry into the charges vide letter dated-
28.02.2001. Charge sheet was issued under clause-19.5(j)
of the Bi-partite Settlement.
Charge were as follows:—(i) On 29.09.2000 he had
altered the cheque No. 878101 dated 29.09.2000 for Rs. 5,000
to Rs. 95,000/- and debited the same to S.B. Account No.
8685 of Sri Surya Narayan Prasad and credit te proceds to
his own OD Account. On 07.11.2000 he had altlered the
previous ledger balance of Rs. 2200 as Rs. 22,200 and
debited a cheque No. 878104 dt-07.11.2000 for Rs. 20,000
fvg. Mr. Brijesh Kumar to the S.B. Account No.-8685 of Sri
Surya Narayan Prasad and the cheque was paid in cash.
Since the reply dated 25.01.2001 submitted by the
ex-employee in response to explanation letter was not found
satisfactory, a regular departmental enquiry was ordered
against him by appointing an enquiry officer. The
delinquent employee activity participated in the
departmental enquiry with a defence representative of his
choice. In the departmental enquiry he was given adequate
opportunity to represent his side. The enquiry proceedings
held on various dates. The presenting officer produced
five witnesses (MW-1 to M.W-5) on the management side
and marked fifteen documents (M. Ext. 1 to 8). The defence
representative produced one withness who also deposed
as management side witness. The presenting officer
summed up of the proceedings on 23.03.2002 and defence
representative submitted his verson on 10.05.2002. After
careful analysis of all the evidence and the documents
submitted, the enquiry officer gave his findings on
10.08.2002 holding that the charges levelled against the
delinquent proved.
Finding of enquiry officer was that in regard to
charge no: (i) Sri Satya Narayan Prasad admitted in his
deposition dated 28.08.2001 that the hand writing in the
altered (added) works and figure were different. The
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[PART II—SEC. 3(ii)]
petitioner (delinquent) admitted in his deposition that he
noticed the alteration while debiting the cheque but did
not bring the fact to the notice of the concerned passing
official. It is undisputed fact that the alteration in cheque
No. 878101 dated-29.09.2000 was not authenticated by the
drawer's signature and that the nature of transaction was
transfer from one account to another account and not cash.
The petitioner was only the benefiting person on account
of fraudulent tranction. He himself debited the cheque and
had taken the credit to his overdraft account. He was aware
that alteration required authentication, he did not bring the
fact to the notice of the passing official. The management
witnesses confirmed that the alteration in the cheque No.-
878101 was in the hand writing of the petitioner. Which
was not disputed by defence.
As regard charge No.2 on 07.11.2000 there was
no exigency at the SB counter of the petitioner to come
out right from cash counter to debit one cheque
No.898104 for Rs. 20,000. This clearly shows that the
come out by the cash counter to debit this cheque by
making actual balance of Rs. 22,000 by adding '2' before
the balance figure. It was certainly with an intention to
suppress the earlier act of fraud dated-29.09.2000.
The petitioner submitted his reply on the findings
of the enquiry officer on 28.11.2002. He was invited by
the disciplinary authority vide letter dated 02.05.2006
for a personal hearing to be held on 12.05.2006. The
petitioner failed to avail the opportunity and instead
through his union approached the ALC for conciliation.
He filled a petition before ALC on 02.05.2006
apprehending the punishment of dismissal from service
though punishment was neither decided nor awarded till
such time. After hearing the parties on 12.06.2006 ALC
adjourned the hearing to 19.07.2006 with the following
comments that the delinquent employee may avail the
opportunity of personal hearing provided by the
disciplinary authority and the Bank will not inflict any
punishment without informing the ALC also recorded the
views expressed by the delinquent employee
"representative that the union is agreeable for any other
punishment except the punishment of dismissal. On
11.06.2006 conciliation was closed by the ALC advising
the management to dispose off the case based on the merit.
Advising the management to give the petitioner one more
opportunity for personal hearing before awarding the
punshment. Personal hearing was given on 19.09.2006.
After careful perusal of the enquiry proceedings,
evidence adduced by both sides, the documents on record,
written brief of presenting officer, defence submissions
of defence representative, findings of the enquiry officer
and the comment submitted by the petitioner. The
disciplinary authority awarded the punishment of "be
compulsory retirement with superannuation benefits under
clause- 19.6 (c) by taking a lenient view.
As per provisions of bipartite settlement, the
petitioner preferred an appeal dated28.11.2006 before
appellate authority. The appeal duly considered and
appellate authority provided an opportunity of personal
hearing which was done on 11.02.2008. The appellant
submitted that a mistake had happened and further pleaded
to reinstate him in the service of the bank. During the course
of personal hearing the petitioner on his own volition
admitted his involvement in the misconduct which
substantiates the findings of enquiry officer and the
decision of the disciplinary authority. Appeal was dismissed
and punishment was confirmed.
5. The allegations made against the management in
para-4,5,6, and 7 of the statement of claim of the workman
have been denied. The allegation that some officers hatched
a conspiracy against the workman and persuaded the higher
management to victimise him are false, baseless. It is
submitted that the necessary action was initiated once the
fraud came to the knowledge of the management. The
account holder had orally complained to the branch
manager and on an investigation, the prima-facie evidence
of guilt was found and as such workman was placed under
suspension and a departmental enquiry was ordered after
investigation. This workman had not only altered the
cheque but also tampered/altered the Bank ledger which
are serious misconducts. Charge sheet was issued in
accordance to the provision of bipartite settlement and
enquiry was ordered since his reply was not satisfactory.
Departmental enquiry was held according to the bipartite
settlement, the principle of natural justice. Enquiry officer
found the petitioner guilty of the charge. Thereafter
disciplinary authority after giving a reasonable opportunity
imposed punishment of compulsory retirement and bank's
decision imposing punsihment was based on the findings
of departmental enquiry in which the charge were proved.
The leter of Sri Prasad was an after thought to save his
nephew. Other allegations has been denied. There was no
unrest at Patnacity Branch during tenure of Mr. M.A. Khan
as Branch Manager. The workman had never complained
against Mr. M.A. Khan and Sri Ranjan Lal for their
appointment as a enquiry officer and presenting officer
respectively. During enquiry workman accepted that
enquiry was held in proper and fair manner. The disciplinary
authority passed a speaking order giving cogent reason. It
is false to say that disciplinary authority did not apply
with mind while passing the order. Workman received all
his genuine dues from subsistence allowance to terminal
benefits. The workman never represented to the appellate
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4151
authority regarding the appearance of defence
representative during the personal hearing. It is false to
allege that petitioner was made to sign on the dotted lines
of the proceedings and that entire proceeding was cover
up exercise to victimize the workman. The misconduct by
him is so serious that it deserves punishment of dismissal
from service. However a linient view was taken by awarding
compulsory retirement from service with benefits, meaning
thereby he would be entitled to all the retirement benefits.
In case of dismissal he would not have been allowed such
benefits. The bank functions, among other factors, on the
faith and confidence reposed on its employee at all levels
and employees of the bank are expected to show utmost
integrity, honestly and loyalty to the bank and to the
customers. The action of the management in awarding the
punishment of compulsory retirement is fully justified and
in accordance with rules and regulation of the bank. There
is no question of any unfaire labour practice. Enquiry was
fair just and proper and in accordance with the principle of
natural justice.
6. Rejoinder on behalf of the workman to the
written statement of the management has been filed stating
therein that submissions of the management under para-4
are not correct.
Surya Narain Prasad, account holder of S.B. account
No.-8685 never lodged either verbal or written compaint
with any official of the bank. Account holder and mainatined
S.B. account with Indian Bank, Gaya branch and the
workman being a bank employees discharged his duties
properly. It has been stated that statement made by the
management in para-(5) of written statement is not correct.
The workman was not aware of the facts of sending
the complaint to the higher authorities of the bank.
Management issued a charge sheet based on unfounded
facts and misreporting of facts as the management wanted
to curb the trade union activities of other workman also.
Disciplinary authority acted with closed mind and biased
approach and decided to hold domestic enquiry ignoring
the submissions of the workman. The enquiry officer was
in collusion with the presenting officer and did not record
some of the points of the defence representative on many
occasions. The submissions of the defence representative
to call the account holder for his examination so that truth
might have come before the Ld enquiry officer was not
properly recorded and taken care of. The workman was a
clerk and discharged his clerical duties only. The
supervising official meticulously used to check the clerical
work and the action of the workman were approved and
authenticated by the officer of the department. Workman
never indulged in any fraudulent act, nor was there any
complaint of fraudulent transaction. Without verifying the
facts the management suo-moto came to the illogical
conclusion of a fraudulent transaction and punished the
workman to satisfy the ego of some powerful person.
Management had already made up their mind to dismiss
the workman. The personal hearing was only a cover-up
exercise and the management had already decided to
dismiss the workman in gross-misuse of power and
authority. Disciplinary authority completely ignored the
rules and evidence and materials facts on record and
imposed the punishment of compulsory retirement.
Workman preferred an appeal. The appellate authority also
acted with closed mind and biased approach and did not
interfere with the order of punishment passed by the
disciplinary authority. Both the disciplinary as well as
appellate authority failed to discharge their duties as quasi-
judicial authoirties. Account holder Sri Surya Nath Prasad
had never made oral complaint before the management.
The account holder had come before the enquiry officer
during the enquiry for his deposition for telling the truth
but he was not allowed to depose. The workman was not
allowed to be represented by a defence representative while
being heard in person by the appellate authority. During
the personal bearing the verson of the workman was not
recorded. On the other hand he was asked to put his
signature on the proceedings register in which some officer
recorded some facts at his own and the workman was
goaded to put his signature. The workman worked with
dilignece and with utmost honesty and sincerity with the
bank. The enquiry officer conducted the enquiry unfairly,
improperly ignoring the principles of natural justice. His
finding suffer from perversity of the findings.
7. It appears from the record that on 03.07.2012
details order was passed that there was violation of principle
of natural justice in conducting a domestice enquiry and
domestic enquiry not been conducted fairly and properly.
In this order in para-4 it has been stated that the documents
and oral evidence adduced by the management related to
the fairness of domestic enquiry as well as merit of the
charges. Evidence adduced by the workman also is on the
question of fairness of domestic enquiry as well as touches
the merit of the case. It also made clear at this stage this
tribunal is concerned only with the question fairnesss
domestic enquiry. Therefore, the evidence on the point
of the fairness of domestic enquiry will be discussed. The
evidence of both sides merit of the case will not be
discussed at this stage.
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[PART II—SEC. 3(ii)]
8. Management had examined one witness namely
MW-1 (M.A. Khan) Branch Manager, Indian Bank after
passing the order on the point of fairness of domestic
enquiry. Earlier before passing the order on domestic
enquiry four witnesses were examined who were M.W-1
Bhua Hansda, M.W-2 Jagbandhu Baidya, M.W-3 M.A.
Khan, and M.W-4 Sri Ram Lakhan Ram.
9. Documents exhibited on behalf of the management
are:—
Ext.:—M/1 to M/1-4
Photo copy of report dt. 18.12.2000
along with annexure.
Ext.:—M/2-
Photo copy of Account opening
from of Surya Narayan Pd.
Ext.:—M/3-
Photo copy of card of Surya
Narayan Prasad.
Ext.:—M/4-
Photo copy of Ledger of Sri
Jitendra Kumar Sinha.
Ext.:—M/5-
Photo copy of application of Surya
Narayan Prasad.
Ext.:—M/6-
Photo copy of (Explanation) letter
dt. 04-01.2001.
Ext.:—M/7-
Explanation submitted by Sri
Jitendra Kumar Sinha.
Ext.:—M/8-
Suspension letter dt. 31.01.2001.
Ext.:—M/9-
Photo copy of charge-sheet.
Ext.:—M/10-
Photo copy of order issued by
Asst. G.M.
Ext.:—M/11-
Photo copy of letter dt. 28.02.2011
issued by the Asst. G.M.
Ext.:—M/12-
Photo copy of notice issued by
Asst. G.M.
Ext.:—M/13-
Enquiry
Report
(Enquiry
proceeding).
Ext.:—M/14-
Finding dt. 17.08.2002.
Ext.:—M/15-
Photo copy of letter dated
31.10.2002.
Ext.:—M/16-
Photo copy of letter dt. 02.05.2006.
Ext.:—M/17-
Photo copy of charge sheet dt.
28.02.2001.
Ext.:—M/18-
Photo copy of letter dt. 11.09.2006.
Ext.:—M/19-1
Photo copy of letter dt. 31.10.2006.
Ext.:—M/19-2
Photo copy of letter dt. 28.02.2001.
Ext.:—M/20-
Photo copy of appeal dt.
28.11.2006.
Ext.:—M/21-
Photo copy of order dt. 16.02.2008.
Ext.:—M/22-
Photo copy of letter dt. 29.12.2000.
Ext.:—M/23-
Grauity receipt dt. 16.08.2008.
Ext.:—M/24-
Photo Stat of PF receipt dt.
22.07.2008.
Ext.:—M/25-
Letter from J.K. Sinha dt. 18.03.2008.
Ext.:—M/26-
Statement of A/C J.K. Sinha from
02.08.2008 to 31.01.2011.
10. Witness examined on behalf of the workman W.W-1
Ranjan Kumar, General Secretary of Indian Bank Employees,
Bihar & Jharkhand and posted as clerk cashier at Patna
Main branch. It appears that earlier before passing order
on the question of departmental enquiry three witnesses
examined on behalf of the workman namely W.W-1 Surya
Narayan Prasad and in now this witness dated on 06.09.2013.
W.W-2 Jitendra Kumar Sinha, delinquent workman, W.W-3
Ranjan Kumar Raj and the document exhibited on behalf of
the workman is:—
Ext.:—W/1-
Photo copy of explanation letter dt.
04.01.2001.
Ext.:—W/2-
Photo copy of workman reply dt.
25.01.2001.
Ext.:—W/3-
Photo copy of charge sheet dt.
28.02.2001.
Ext.:—W/4-1-
Photo copy of order dt. 31.10.2006.
Ext.:—W/4-2-
Photo copy of charge sheet dt.
28.02.2001.
Ext.:—W/5-
Photo copy of office note dt.
19.07.2006.
Ext.:—W/6-
Photo copy of office note dt.
12.06.2006.
Ext.:—W/7-
Photo copy of office note dt.
28.08.2006.
Ext.:—W/8-
Photo copy of office note dt.
05.10.2006.
Ext.:—W/9-
Photo copy of findings dt.
17.08.2002.
Ext.:—W/10-
Photo copy of worker appeal dt.
28.11.2006.
Ext.:—W/11-
Photo copy of letter dt. 16.2.2008.
Ext.:—W/12-
Photo copy of letter dt. 04.04.2008.
Ext.:—W/13-
Photo copy of conciliation report
dt. 01.05.2009.
Ext.:—W/14-
Photo copy of letter dt. 27.12.2000.
Ext.:—W/15-
Letter of infavour of Branch
Manager, Indian Bank, Gaya written
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4153
by Surya Narayan Prasad dt.
27.12.2000 (Same as Ext.-W/14).
Ext.:—W/16-
Photo copy of death certificate of
Surya
Narayan
Prasad,
Registration No. 10348 dt.
09.09.2013 and date of issue dt.
10.09.2013.
11. It appears from the order dt. 03.07.2012 an order was
passed the point of fairness of domestic enquiry but it was
also observed that some evidence adduced by the
management which was in support of the charges. That
evidence has not discussed in the order. It was also
observed that in para-4 evidence adduced by the workman
also is on the question of fairness of domestic enquiry as
well as touches the merit of the case. It is also been observed
that "therefore the evidence on the point of the fairness of
domestic enquiry will be dicussed. The evidence adduced
by the both sides on the charges against the workman and
the merit of the case will not be discussed at this stage."
"Therefore since the evidence adduced prior passing to
this order was also on the merit of the charge, so those
evidence will be considered in the final adjudication of the
matter. Witnesses examined after passing of the order of
the fairness of domestic enquiry has been twice examined,
so there evidence will be clubbed thogether with there
respective evidence which was adduced earlier.
12. Written argument has been filed on behalf of the
management of Indian Bank stating therein by notification
bearing No. L-12012/50/2009 (B-II) dated-30.09.2009 the
following dispute has been sent for adjudication by the
Central Government:—
"Whether the action of the management of Indian
Bank in imposing punishment of compulsory
retirement from service on Shree Jitendra Kumar Sinha
is legal and justified?
What relief the workman concerned is entitled to?"
The case of the management is that Sri Jitendra Kumar
Sinha (Workman) was employed as a clerk/shooff in the
Gaya branch of the Bank. As ledger keeper of S.B. Account
No. 8685, he had committed certain serious lapses as a
result of which on 04.01.2001 management issued a show
cause notice (Ext.-M/2) alleging that on 29.09.2000 he had
debited a cheque No. 878101 dt. 29.09.2000 for Rs. 95,000
which had been manifestly altered from Rs. 5000 to
Rs. 95,000 without authentication by the account holder.
He credited the entire amount of Rs. 95,000 to his own OD
Account. It was further alleged that on 07.11.2000 he had
debited a cheque No. 878104 for Rs. 20,000 favouring
Brijesh Kumar in S.B. Account No. 8685 where the balance
as on 23.10.2000 had been altered from Rs. 2200 original
balance to Rs. 22,200 and thereby extra amount of Rs. 20,000
had been debited from the account. It was further alleged
in the show cause-notice that on 13.12.2000 the workman
had himself deposited Rs. 25,000 cash in S.B. Account
No.8685 to wipe off the extra debit and the same had been
admitted by him to the investigating official which is
recorded in the report dt. 29.12.2000 marked as (Ext.-M/22).
The reply submitted by the workman on being found not
satisfactory, the Management Bank thereafter on 28.02.2001
framed certain specific charges against the workman. The
charge sheet dated 28.02.2001 (Exhibited-M/9) specifically
contains the following charges:—
"(i) On 29.09.2000 you had altered the cheque No.
878101 dated 29.09.2000 for Rs. 5000 to Rs. 95,000
and debited the same to S.B. A/C No. 8685 of
Shree Surya Narayana Prasad and credited the
proceedes to your own OD A/c."
"(ii) On 07.11.2000 you had altered the previous ledger
balance of Rs. 2200 as Rs. 22200 and debited a
cheque (No. 878104 dated 07.11.2000) for Rs. 20000
favouring Brijesh Kumar to S.B. A/c No. 8685 of
Shree Surya Narayan Prasad and the cheque was
paid in cash.’’
"(iii) In the charge sheet it was clearly stated that the
above charges were serious in nature and it
proved would amount to doing act prejudicial to
the interest of the Bank and likely to put bank in
serious loss, a gross-misconduct under clause
19.5(j) of the BPS dated 19.10.1966.’’
"(iv) After service of charge sheet containing the
precise charges which is one of the essential
requirements of initiating disciplinary proceeding,
the Management Bank in accordance with the
principal of natural justice, appointed Mr. M.A.K.
Khan, Manager of Patna City Branch as the
Enquiry Officer to enquire into the charges.
Thereafter, Domestic Enquiry was helf and the
workman was given full opporotunity to defend
himself in the enquiry. Evidence was collected
from both the sides and after collecting evidence
and on appraisal of the same the Enquiry Officer
by his report dated 10.08.2002 (Exhibited-M/14)
found the workman quility of both the charges as
contained in charge sheet dated 28-02-2001
(Exthibit-M/9).’’
"(v) As per the settled principle, the Management
before proposing any punishment based on the
findings of the enquiry report, gave the workman
a copy of the enquiry report for his perusal and
response by letter dated- 31.10.2002 (Exthibit-M/
15).’’
"(vi) Since the charge were very serious in nature,
therefore the Displinary Authority the Deputy
General Manager by his order dated 02.05.2006
(Exhibited-M/17) proposed major punishment of
dismissal from service without notice to be
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
imposed on the quilty workman. However, before
imposing the punishment the Disciplinary
Authority decided to give a personal hearing to
the quilty workman by letter dated 02.05.2006
(Exthibit-M/16) issued by the Chief Manager of
the Bank.’’
"(vii) The moment the workman came to know that the
Disciplinary Authority had proposed dismissal
from service as punishment to be given to him,
the workman in order to pre-empt such an action,
immediately raised a dispute before the Assistant
Labour Commissioner (Central), Patna. In the
conciliation proceeding before the Assistant
Labour Commissioner (Central), Patna the
workman as represented by General Secretary of
the Union namely " Indian Bank Employees
Association, Bihar". In the conciliation
proceeding (Exhibited-W/5) it was agreed by the
parties that the workman shall meet/accept any
disciplinary action except capital punishment i.e.
dismissal froms service. It is due to this reason
that although the workman deserved dismissal
from service the Mangement instead of dismissing
the workman from service granted him lesser
punishment by order dated 31.10.2006 (Exhibited-
M/19/2) by which the workman was compulsorily
retired from service of the Bank with immediate
effect with superannuation benefits and without
disqualification from future employment. This
publishment order was communicated to the
workman by covering letter dated 31.10.2006
(Exthibit-M/19/1) issued by the Chief Manager of
the Bank. It is pertinent to submit that prior to
imposing this punishment, the workman had once
again been granted an opportunity of personal
hearing by letter dated 11.09.2006 (Exthibit-M/18).’’
"(viii) After the punishment of compulsoary retirement
from service with all superannuation benefits was
imposed on the workman, the workman in
accordance with the Disciplinary Rules of the Bank
filed an Appeal (Exthibit-M/20) before the General
Manager-cum-appellate Authority of the
Management Bank. After giving sufficient
opportunity of hearing the Appeal stood finally
rejected by the speaking order dated 15.02.2008
(Exthibit-M/21). It is thereafter that industrial
dispute was once again raised by the workman
which has led to this Reference case.’’
From persual of the charges mentioned referred by the
management only charge no. 1,2,3 are the charges as stated
by the management is to be decided herein. Alleged charges
as stated by the management Bank are about the emquiry
report and submissions made by the management.
Case of the workman as stated by the management is
that workman have not controverted/denied the charges
levelled against him to by the Bank. It has been merely
alleged that since he was an active union functionary,
therefore under a conspiracy hatched by some officers of
the Bank he has been proceeded with and punished of
imposing compulsory retirement from service. No. complaint
from the side of the account holder SB Account no. 8685
Shree Surya Narayan Prasad was made. The specific
charges levelled against the workman as contained in the
charge sheet dt.28.02.2001 (Exthibit-M/9) is that "on
29.09.2000 he had altered the cheque no. 878101 dt.
29.09.2000 fro rs. 5000 to Rs. 95,000 and debited the same
in SB Account. No. 8685 if Shree Surya Narayan Prasad
and credited the proceeds to your own OD account and on
07.11.2000 here alered the previous ledger banace of
Rs. 2200 as Rs 22,200 and debited a cheque No.-878104
dated 07.11.2000 Rs. 20,000 favouring Brijesh Kumar to SB
Account No. - 8685 of Shree Surya Narayan Prasad and the
cheque was paid in cash.
It has been submitted that before the Assistant Labour
Commissioner (Central), General Secretary of the union
accepted on other punishement excepted capital
punishement (dismissal_, the workman stands prohibited
from questioning/challenging on merit of the punishement
of compulsory retirement with superannuation benefits.
Inflicted on him by order contained in letter dt-31/10/2006
(Ext.-M/19/1).
The workman was found guilty of charges levelled
against him. The management instead of dismissing him
from service granted him less or punishement by
compulsorily retiring him from service of the bank with
superannuation benefit and without disqualiying him from
future employment.
After having accepted all retrial benefits without protest
or any objection, the workman cann't question the legality
and justification of the punishment of compulsory
retirement given to hime.
The workman is quility of having a alter the cheque No.
878101 dated 29.09.2000 for 5000/- to Rs. 95,000/- and
debiting the same to S.B. Account No. 8685 belonging to
Sri Surya Narayan Prasad (Uncle) and of crediting the
proceeds to this own OD Account, therefore the
punishment of compulsory retirement inflicted of him is
both legal and justified.
It has been stated that M.W-4 Sri Ram Lakhan Ram who
on 29.09.2000 was passing officer clearly deposed in his
deposed in his evidence before tribunal that prior to the
letter 5000 Nine (9) has been mentioned and similarly prior
words five thousand only words ninty has been mentioned
and cheque was made for amount Rs. 95,000 only that was
written by Jitendra Kumar Sinha which was identified by
this witness. He informed to Sri. B. Hansda Branch
Manageer who proceeded further.
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The workman is also guilty of altering the previous
ledger balance of Rs. 2200/- as Rs. 22,200/- on 07.11.2000
and debiting a cheque (No.-878104 dated 07.11.2000) for
Rs. 20,000/- favouring Brijesh Kumar to S.B. Account No.
8685 belonging to his uncle Sri Surya Narayan Prasad. The
workman had therefore been rightly punished by being
compulsory retired from service. In explanation workman
has accepted wrongly debiting of Rs. 20,000/- from
S.B.Account No. 8685. Sri Surya Narayan Prasad in
evidence has stated that it is not a facts that when issued
on a cheque of Rs. 20,000/- on 07.11.2000 then the balance
of his amount was only Rs. 20,000/-. Had Sri Surya Narayan
Prasad actually issued the ''self cheque' of Rs. 95,000/- then
he would well aware that his S.B. Account would not have
sufficient balance for honouring cheque of Rs. 20,000/-
issued on 07.11.2000.
It has further been submitted that the bipartite settlement
are entered into the various Banks (Management Bank) &
recognized unions representing the employees employed
in various Banks, on matter relating to disciplinary action
and procedure to be followed. One such bipartite settlement
was entered on 10.04.2002 in which in the list of punishment
to be imposed in the event of major misconduct
"Compulsory retirement from service with superannuation
benefits and without disqualification from future
employment" was incorporated and agreed upon between
the management Banks and the recognized unions. As
rightly the punishment has been given to the workman.
The written argument has been filed on behalf of the
workman stating therein that terms of reference is "whether
the action of the management of Indian Bank in imposing
punishment of compulsory retirement from the service on
Sri Jitendra Kumar Sinha is legal and justified? What relief,
the workman concerned is entitled to".
It has been stated that management issued a charge
sheet dated 28.02.2001 (Ex-M/9) against the workman with
the following charges:-
(i) On 29.09.2000 he had altered the cheque No.- 878101
dated- 29.09.2000 for Rs. 5000/- to Rs. 95,000/- and debited
the same of S.B. Account No.-8685 of Sri Surya Narain
Prasad and credit the proceeds to your own overdraft
account".
(ii) On 07.11.2000 he has altered the previous ledger
balance of Rs. 2200/- as Rs. 22,200/- and debited a cheque
No.-878104 dated-07.11.2000 for Rs. 20,000/- favouring Mr.
Brajesh Kumar to the S.B.Account No.-8685 of Sri Surya
Narain Prasad and the cheque was paid in cash.
Your above acts are serious in nature and if proved will
amount to doing an act prejudicial to the interest of the
Bank and likely to put Bank in serious loss, gross misconduct
under clause 19.5(J) of the Bipartite settlement dated-
19.10.1966.
It has been stated that Bank hold a departmental enquiry
under the provisions of bipartite settlement 1966 against
the workman Sri Jitendra Kumar Sinha SR No.-55767, clerk/
shrof Gaya branch on the charges framed against him vide
charge sheet No.- AGM/712?VIG/988/2001 dated-
28.02.2001.
After filling of claim of statement on behalf of the
workman, the management submitted reply/counter
statement before this tribunal. The submissions of the
management were required to be suported through
documentary/oral evidence.
Under para-18 of the Counter statement, the
management submitted-"That since the punishment was
awarded on the findings of domestic enquiry the question
that the domestic enquiry was fair and proper may be
decided as preliminary issue and in case the domestic
enquiry is held to be invalid an opportunity should be
given to the eimployer to prove the allegations in charge
sheet dated-28.02.2001 by adducing evidence.
"Management moved a petition dated-25.05.2010 before
the tribunal for deciding the issue of fairness before
entering into the merit of the case. Notwithstanding, the
management adduced evidence on the question of fairness
of enquiry and merit of the case also; The tribunal vide
order dt.-03.07.2012 held the domestic enquiry to unfair
and improper and gave opportunity to the management
for adducing evidence in support of the charges. The
management was under liberty to produce fresh witnesses/
documents other than those produced in the domestic
enquiry for proving their case. The management produced
a fresh list of witness and additional documents in support
of the charges; Management could produce only one
witness Sri M.K.Khan who was the enquiry officer of the
case and conduct the enquiry has been held to be unfair
and improper. He was not connected the charge sheet, as
he had no occasion to work at Gaya branch. Which
deposition was superfluous. The management submitted
a list of five witnesses out of whom three witnesses namely
(1) Sri S. Veeraraghavan, (2) Sri. v. Raghavan and (3) Sri
N.M.Das were new. The management failed to produce
even a single new witness in support of the charges.
Management relied solely on the earlier depositions of
their witnesses before the domestic enquiry which was
held to be unfair.
Documentary evidence-Exts. M/1-1 & M/1-3 are
cheques which were passed by Sir Ram Lakhan Ram M.W-
4 Assistant Manager. Exts.-M/1-2 is the credit voudher,
released by M.W.1 The balance of the accounts were
authenticated by the branch manager Sri B. Hansda M.W.-
1 Ext.M-5 is the statement dated-27.12.2000 of Sri Surya
Narayan Prasad account holder of S.B. No.- 8685 he submits
that all the transactions relating to deposit and withdrawals
were under his knowledge. He forgot to authenticate the
alteration of Rs. 95,000/- in cheque no. 878101 and
confirmed the alteration.
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About oral evidence it has been stated that the
management preferred not to produce any witness in
support of the charges after the enquiry which was held
unfair and improper. Management relief on the earlier
deposition of their witnesses who deposed on fairness of
enquiry and on charges also.
The main points of deposition has been stated as:-
(A) M.W.-1 Sri B. Hansda deposed- He reported the
matter on 18.12.2000. On 27.12.2000, the account holder Sri
Surya Narayan Prasad submitted his written statement with
the bank ( EXts. M/5). In cross-examinatin in para-7 M.W-
1 has stated that the cheque was bearer hence it could be
deposited in the account of Sri Jitendra Kumar Sinha. This
cheque has been passed by Sri Rak Lakhan Ram, Officer.
Deposition of M.W-2 Sri J. Baidya in cross-examination
in para-9 is-that cheque for Rs. 95,000/- had been passed
by Sri Ram Lakhan Ram authenticated by Sri B. Hansda
Branch Manager. He also submitted that Sri B. Hansda
(M.W-1) was negligent in his work.
Deposition of Sri M.A. Khan enquiry officer M.W-3
was limited to conduct of Domestic enquiry which has
been held to be unfair. As such, it requires no elucidation.
M.W.-4 Sri Ram Lakhan Ram deposed and for fraudulent
case, FIR is lodged. Account holder had lodged a written
complaint with the Branch Manager.
W.W-1 workman witness Sri Surya Narayan Prasad
stated in para-2 that the cheque (Ext. M/1) had been issued
by him which bore his signature. The cheque for a sum of
Rs. 95,000/- has been handed over to his nephew Jitendra
Kumar Sinha for depositing the same in his account. After
seeing (Ext. M/1-3) he stated that cheque had been issued
by him. He was informed of oversraft. The overdrawn
amount was adjusted by him with interest. No fraudulent
transaction took place in his account. He did not lodge any
complaint either in writing or orally with the bank. This
witness died after the domestic enquiry. Death Certificate
to that effect has been produced before he Hon'ble Tribunal,
which is kept on record. As he died, there was no scope for
his deposition again on the fact of the case.
W.W-2 Jitendra Kumar Sinha stated that he joined the
service of the Bank is 1994 and was working at Gaya Branch
since 1997 after transfer. At Gaya branch he was secretary
of Indian Bank Employees Association and used to raise
certain burning issue of the employees. On some occasions,
there used to be arguments with the branch manager. He
was punished due to trade Union activities. He received a
telephone call from the bank manager for receiving the
amount of PF, Gratuity etc as the same would be kept in
sundry account. He never applied for settlement of terminal
benefits. However on the instruction of the manager, he
wrote an application and the amount was credited to his
account.
W.W-3 (Sri Ranjan Kumar Raj) stated that Sri Jitendra
Kumar Sinha was secretary of the union at Gaya and used
to raise the issues of the workers. In para-5 he has stated
that met with the Disciplinary Authority who informed that
he has sent proposal for stoppage of two increments but
he was being pressurized by CVO for sending proposal for
terminating of service.
He has submitted that on the facts emanating, the charge
sheet dt. 28.02.2001 (Ext.M/9) has no any foundation and it
is not basd on any material fact. There is neither any
complaint in writing nor orally by the account holder Sri
Surya Narayan Prasad. After domestic enquiry was held to
be unfair and improper, the management was afforded an
opportunity to prove the charges. Management further
moved a petition dt. 25.05.2010 before the tribunal for
deciding the issue of fairness of the domestic enquiry.
Management submitted a new list of witness but failed to
produce a single witness for supporting the allegations as
contained in the charge sheet. Account holder Sri Surya
Narayan Prasad submitted in enquiry that no fraud took
place in his account. He had neither lodged any written or
oral complaint with the Bank. The workman was the
Secretary of the Indian Bank Employees Association Gaya
in that capacity used to raise the grievances of the workers
before the local management for which the local
management had developed grudge against the workman.
The charge sheet was as per the provisions of the Bipartite
Settlement of 1966, but the punishment was imposed as
per the provisions of Bipartite Settlement of 2002. Which is
neither legal nor justified. Burden of proff lies on the
prosecution and not on the defence. The management failed
to discharge the burdern and failed to prove the charge
through witnesses. The workman is innocent. Prayer has
been made for set-aside order of compulsory retirement
passed by the Ld Disciplinary Authority and confirmed by
the appellate authority. Reinstatement of the workman in
the service of the bank with all consequential benefits.
Sum of Rs. 20,000/- as cost to be paid by the management
to the workman has been claimed.
13. Some deicsion has been filed which will be discussed
later on.
One of the decision is reported in 1975 AIR 1900 1976
SCR (1) 361 Cooper Engineering Ltd Vs Shri P.P. Mundhe
in which it has been held that if domestic enquiry was
found as violative of principles of natural justice, there
was any duty cast upon that court to give an opportunity
to the employer to aduce evidence afresh before it. In this
case further it has been held that:-
"If the employer relies only on the domestic enquiry
and does not simultaneously lead additional
evidence or ask for an opportunity during pendency
of the proceeding to adduce such evidence, the duty
of the Tribunal is orly to consider the validity of the
domestic enquiry as well as the finding recorded
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4157
therein and decide the matter. If the Tribunal decodes
that the domestic enquiry has not been held properly,
it is not its function to invite suo moto the employer
to adduce evidence before it to jusity the action taken
by it."
Further it has been held that "Even if no enquiry has
been held by an employer or if the enquiry held by him is
found to be defective, the Tribunal, in order to satisfy itself
about the legality and validity of the order, has to give an
opportunity to the employer and employee to adduce
evidence before it. It is open to the employer to adduce
evidence for the first time justifying his action."
It has been further held on that "The tribunal gets
jurisdiction to cosnider the evidence placed before it for
the first time in justification of the action taken only, if no
enquiry has been held or after the enquiry conducted by
an employer is found to be defective.
Further it has been held that it has been recognised that
the tribunal should straight way, without anything more,
direct reinstatement of a dismissed or discharged employee,
once it is found that so domestic enquiry has been held or
the said enquiry is found to be defective.".......
Further it has been held on that "An employer, who
wants to avail himself of the opportunity of adducing
evidence for the first time before the tribunal to justify his
action, should ask for it at the apporpriate stage. If such an
opportunity is asked for, the tribunal has no power to refuse.
The giving of an opportunity to an employer to adduce
evidence for the first time before the Tribunal is in the
interest of both the management and the employees and to
enable the tribunal itself to be satisfied about the alleged
misconduct."
Next decision is reported to 2014-I-LLJ-555) 555in which
it has been also held that fresh evidence needs to be
adduced, once domestic enquiry held to be bad in law.
In the decision reported in 2014-I-LLJ-557 Kant) (P&H)
has been hold Labour Court has rightly given specific back
wages, and set-aside order of termination. Labour Court
has also ordered reinstatement with specific back wages.
Next decision is the case of Jaipur Zila Sahakari Bhoomi
Vikas Vs. Ram Gopal Sharma and others this is web copy of
judgement. In which it has been held that if the tribunal
does not approve of the action taken employer, the result
will be that the action taken by him would fall and there
upon the workman would be deemed never to have been
dismissed or discharged and would remain in the service
of the employer.
14. On 03.07.2012 order was passed on the question of
fairness of departmental enquiry. It has been stated that
"It may be noted here that the management while adducing
evidence before this tribunal adduced evidence on the
question of fairness of domestic enquiry as well as on the
merit of the charges levelled against the workman................."
Evidence adduced by the workman also is on the question
of fariness of domestic enquiry as well as touches the merit
of the case. It is made clear here that at this stage. Tribunal
is concerned only with the question of fariness of domestic
enquiry. Therefore, the evidence on the point of fairness of
the domestic enquiry will be discussed. The evidence
adduced by both sides on the charges against the workman
and the merit of the case will not be discussed at this stage.
However, in conclusive paragraph-14 and thereafter it has
been stated that. It may be noted that earlier evidence has
been adduced by the management which is support of the
charges. That evidence has not been discussed in this
order. Therefore, it is made clear that evidence adduced by
the management in support of the charge before this tribunal
earlier will be taken into consideration at the time of final
discussion of the case." But by mistake management has
examined those witnesses who were already earlier
examinated and could not be pointed. So evidence of those
witnesses has been clubbed together and is discussed.
15. Management witness no.1 M.A. Khan has been
examined and cross-examined twice before this tribunal
earlier he has been examination on 25.05.2010 in which he
has stated that he identify Sri Jitendra Kumar Sinha. Further
he has stated that on 04.01.2001 a letter marked Ext.-M/6
was written to Sri Jitendra Kumar Sinha by the Assistant
General Manager. Thorugh this letter show cause has been
asked from Sri Jitendra Kumar Sinha. Further he has stated
that show cause was filed by Sri Jitendra Kumar Sinha in
two pages duly signed by him marked as Ext.-M/7. He has
further stated that on 31.01.2001 Assistant General
Manager-cum-Disciplinary Authority issued suspension
order to Sri Jitendra Kumar Sinha, photo stat has been
marked as Ext.-M/8. By Ext.M/4 charge sheet was issued
against the workman. That witness was appointed enquiry
officer by Ext.-M/10 vide Ext.M/11 Sri Ranjan Lal was made
presenting office. Vide Ext.M/12 departmental enquiry was
initiated and enquiry proceedings is Ext.-M/13. This
witness recorded the finding of the enquiry vide Ext.- M/
14. Ext.-M/15 is the photo stat of the letter dated 31.10.2002.
Further he has stated that administrative action also taken
against Ram Lakhan Ram who had passed the cheque.
Further evidence before the this tribunal is an affidavit
of this witness M.A. Khan in which he has stated about
the exhibits in which he has stated that vide Ext.M-9 charge
sheet was issued against Sri Jitendra Kumar Sinha. 1st
charge was enterpolation of letters and word ninety before
the letter 5000/- was made Rs. 95,000/- in Ext.M/1/1. Which
was cheque no.-878101 in respect of S.B. A/c no.-8685 and
amount was debited from S.B. A/c no. -8685 and was
credited in O.D. A/c of the workman. This cheque was self
cheque, which bears signature by account holder Sri Surya
Narayan Prasad who was uncle of Sri Jitendra Kumar Sinha.
Cheque was passed and thereafter Sri Jitendra Kumar Sinha
interpolation made. He amount from 5000/- to 95,000/- and
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
credited the amount in his O.D. account (Ext.M/4). In self
cheque account holder himself and his authorised person
may take cash payment. This can not be deposited by slip
in other account as done by Mr. Sinha. Which is irregularity.
On that date he was working on S.B. A/c counter.
Second charge was on 07.11.2000 a cheque No.-878104
was issued infavour of the Brajesh Kumar by account Sri
Surya Narayan Prasad of the amount Rs. 20,000/- which
was dated-07.11.2000 marked as Exts.-M-1/3. Only Rs. 2200
was in the account of account holder. On that date Jitendra
Kumar Sinha was on duty of cash counter and he went to
S.B. A/c counter and he made ledger balance amount from
Rs. 2200/- to Rs. 22,200/- and made payment of Rs. 20000/.
Going to another counter and to work there and
interpolation of the bank book is also irregularity and
misconduct. One day account holder Sri Prasad made oral
complain that he had not withdraw Rs. 95,000/- but he had
withdraw only 5000/- then matter was investigated and
domestic enquiry was conducted and punishment was
awarded to Jitendra Kumar Sinha.
To save the nephew Sri Prasad had isued a letter (Exts.-
M/5) and he had also appeared as a witness in domestic
enquiry and by comparison of his evidence it appears that
Sri Prasad has given false evidence and false application
to save his nephew.
Both working done by Mr. Jitendra Kumar Sinha is
against the rule of the bank and was gross-misconduct he
has done against the interest of the Bank. He was given
lesser punishment and punishment was compulsory
retirement with retiremental benefits. In cross-examination
he has stated that in the year-2000 he was not posted at
Gaya branch but he was posted at Patnacity branch of the
bank. He has not concerned with the document which is
exhibited by him but he has knowledge about the
documents because he was enquiry officer. He had not
seen Sri Jitendra Kumar Sinha adding word 9 before word
5000/- on cheque no.-878101 dt-29.09.2000 and making it
amount Rs. 95,000/. Cheque was passed by Assistant Branch
Manager Sri Ram Lakhan Ram. Before passing the cheque,
is examined and writing in word and letter is verified whether
it is correct or not. When the cheque remained "in order
only then it is passed." He has no knowledge that cheque
was passed by signature of two officer. That cheque was
not account payee. Amount was debited from amount of
account holder cheque was self. Before credit the amount
in account of Sri Jitendra Kumar Sintha pay-in-slip was
filed up by the Sri Jitendra Jumar Sinha. This witness has
no knowledge whether account holder had himself arrived
in the bank or not on the date of occurance. No complain of
account holder was produced during enquiry. During
enquiry account holder appeared as a witness but he has
not given any letter that there is irregularity in his account.
He has knowledge about the letter given by Sri Surya
Narayan Prasad but that was not given to him during
enquiry that has been marked as Ext.-W/1 on behalf of the
workman.
The cheque for which there is allegation that by adding
word two (2) before 2200/-. Rs. 22,200/- was made this
witness does not remember who had passed change and
that was not passed by Mr. Jitendra Kumar Sinha.
16. Next witness examined on behalf of the management
is Bhua Hansda who is retired Branch Manager from Indian
Bank Jamshedpur branch. He has stated in examination-in-
chief that at the time occurance he was posted as branch
manager at Gaya in Indian Bank Branch. Occurance is of
September, 2000.He identified Mr. Jitendra Kumar Sinha
who was then posted at clerk-cum-cashier. At the time of
occurance he was working as ledger clerk and his work
was to maintain cash, credit and debit in ledger.
He had also tampered some cheques. He detected the
tampering and sent report to AGM. Patna. This witness
identified photo stat of report which has been marked as
Ext.-M/1. He has also inclosed photo stat was the
concerned cheque, challan in related ledger. Documents
are attached with the letter marked as Exts.-M/1-1, M/1-2,
M/1-3 and M/1-4. In account opening application of Sri
Surya Narayan Prasad, there is specimen signature card in
photo stat which has been marked as exts.-M/2 & M/3. On
13th December, 2000 Sri Surya Narayan Prasad, account
hold arrived with cheque of Rs. 5,000/- for withdrawal.
Account clerk told him that there is no amount in his
account because by different cheque amount had done
withdrawn by him. Details of withdrawal has been stated
to him. The he (Surya Narayan Prasad) told that amount of
Rs. 95,000/- have not been withdrawn by him. He checked
his ledger then found interpolation in ledger in the entry
dated-23.10.2000 letter 2 was written before amount Rs.
2200/- and payment of Rs. 20,000/- was made, while at that
time only the Rs. 2200/- was in the account.
On the complain of Sri Surya Narayan Prasad when
relevant document were checked then it was learnt that
amount of Rs. 95,000/- was credited the account of Sri
Jintendra Kumar Sinha. Ledger of Jitendra Kumar Sinha
was check and it was found that amount of Rs. 95,000/- of
the account of Sri Surya Narayan Prasad was credited in
the account of Sri Jitendra Kumar Sinha. Then ledger was
called for and credit of Rs. 95,000/- was found. Concern
ledger has been marked as Ext.-M/4.
On 27.12.2000 Sri Surya Narayan Prasad uncle of Sri
Jitendra Kumar Sinha had given a written application photo
stat of which has been marked as Ext.M/5. Thereafter high
level enquiry happened and entire allegation was found
true. In cross-examination he has stated that he worked in
the bank for 33 years on the post from clerk to officer.
Customer submits their cheque at cash counter and for
cash payment token is issued. Thereafter amount is debited
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4159
and cheque is sent before debiting officer for passing the
cheque. After passing the cheque, passing officer send it
to counter for payment. Cheque of Rs. 95,000/- was bearer
cheque. Since that cheque was bearer so it was credited in
the account of Sri Jitendra Kumar Sinha. That cheque was
passed by Officer, Ram Lakhan Ram. There was initial of
Ram Lakhan Ram on the balance amount of Surya Narayan
Prasad in S.B. account.
Further in cross-examination he has stated that first
occurance was fraud dated-29.09.2000 and on that date he
was present in the bank for whole day. In reply to the
question that "Whether he had seen committing fraud,
this witness replied that he is branch manager he detected
after fraud was committed. He has not himself seen
committed fraud."
Further he has stated that account holder had not made
any complain of committing fraud. Later on account holder
in writing has submitted that no fraud or irregularity was
committed in his account and his account is correct.
Voluntarily this witness stated that when account holder
arrived for withdrawal of the amount then orally made
complain that amount Rs. 95,000/- which has been
withdrawn, was not withdrawn of him.
This witness denied that his report of fraud is false and
concocted and his statement is false.
17. Next witness examined on behalf of the management
is Jagbandhu Baidya is also retired officer from Kolkata
office of Indian Bank. He has stated in evidence that he
was posted as senior manager during the period from 2000
from 2006 in circle office Patna. He investigated in the Gaya
Branch after receiving information about the occurance at
the direction of senior office. On the direction of telephone
message of AGM, Senior manager (Administration) Sri Arun
Kumar directed me to investigate. After investigation his
submitted the report marked as Exts. M-2/1, Ext. M/2/2. In
investigation he found that in the cheque amounting Rs.
5000/- was made of Rs. 95,000/- and there was different in
letter and word due to interpolation and Rs. 95,000/- was
credited on the account of bank staff namely Sri Jitendra
Kumar Sinha. This occurance is dated-29.09.2000.
Second occurance is dated 07.11.2000 from the same
account Rs. 20,000/- of the cheque was debited after
alteration in ledger. Balance amount in the ledger was Rs.
2200/- and in the left side letter '2' was written and amount
was made Rs. 22,200/- and cash amount was paid.
He submitted the report. Bank started domestic enquiry.
He was examined as a witness in the departmental enquiry.
In cross-examination he has stated that he does not
remember the date on which he had gone for investigation.
After seeing the document, he may tell about the date. He
stayed at Gaya for one day for investigation. During
investigation he has taken statement of Sri Jitendra Kumar
Sinha. He had also taken the evidence of Sri Ram Lakhan
Ram, officer and branch manager Bhua Hansda. He had
not recorded the statement of those person and he had not
obtained their signature.
He denied that he had not taken in statement of Sri
Jitendra Kumar Sinha and he had not given any statement.
He denied that he had not stayed at Gaya for a investigation
and on the second day account holder namely Sri Surya
Narayan Prasad has met with him and he orally stated and
also given in writing that no fraud has been committed in
his account.
This witness does not know that on the basis of his
report charge sheet was prepared. He further stated that
cheque of Rs. 95,000/- was passed by officer Ram Lakhan
Ram. The account in which that amount was credited was
authenticated by branch manager. At that time Sri Bhua
Hansda was branch manager.
He denied that Ram Lakhan Ram and Bhua Hansda was
irresponsible in his office. No show cause notice was
issued to them. He has also not written in his report that
Bhua Hansda was irresponsible in his work. He denied that
he did not investigate properly and freely and submitted
wrong report and his statement is not out of will.
18. Management witness-4 Sri Ram Lakhan Ram,
Assistant Branch Manager, Southern Avenue, Branch,
Kolkata. This witness in his evidence stated that in the
year 2000 he was posted as Assistant Manager at Gaya
branch of Indian bank and he was working as passing
officer. This witness identified Ext.-M/1-1 and has stated
that this cheque was produced by Mr. Jitendra Kumar Sinha
who was clerk in Gaya branch of India Bank and he had
stated that in place of making cash payment the amount
was credited in his bank account which was O.D. account.
After inspecting the cheque he has stated him (Jitendra
Kumar Sinha) bank staff to prepare credit challan. He arrived
with credit challan and he passed the cheque of Rs. 5000/-
. After some days accout holder Sri Surya Narayan Prasad
arrived who had dropped the cheque in bank for withdrawal
of the amount. When he submitted the cheque. The ledger
clerk, who was on duty on that date, replied that there is no
amount in his account. Sri Surya Narayan Prasad replied
that there must be amount in his account. Ledger clerk
stated him about withdrawal of the amount as per ledger
and informed about latest entry. Ledger clerk also informed
about withdrawal of Rs. 95,000/- and account holder stated
that he never withdrew Rs. 95,000/-. Ledger clerk informed
this facts to this witness. The voucher of the date on which
Rs. 95,000/- was withdrawan was taken out and it was found
that the amount Rs. 5000/- of the cheque Exts. M/1-1 has
been made of Rs. 95,000/-. Letter Rs. 5000/-was written and
before letters five letter '9' was added and similarly "word
five thousand" only was made Rs. Ninety five and by adding
word Ninty that was writing was in the pen of Jitendra
Kumar Sinha. This witness informed this facts to Sri Bhua
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[PART II—SEC. 3(ii)]
Hansdha, Branch Manager, and cheque was shown to him.
Thereafter he took further action.
He further stated that he was examined as witness in
domestic enquiry.
After seeing Exts. M/1-3 this witness stated that this
cheque of Sri Surya Narayan Prasad was produced for
payment to Rs. 20,000/-. On that date only Rs. 2200/- was in
the account of Sri Satya Narayan Prasad. Sri Jitendra Kumar
Sinha interpolated letter '2' in the ledger before the amount
Rs. 2200/- and balance was made Rs. 22,200/-. That cheque
was passed by this witness. Later on at the time of
balancing the ledger this facts was detected. After detecting
the wrong, the amount was credited in the account then
that deficit was adjusted. This witness had informed to
branch manager in orally and in writing when wrong was
detected.
For both the occurance charge sheet was also issued
against this witness and domestic enquiry was held and
his increment was stopped and he was sensored.
In cross-examination this witness has stated that at the
time of occurance he was officer in senior management
grade. He had power in transfer up to the Rs. 1,50,000/- and
in cash he had power up to Rs. One Lakh. At the time of
passing the cheque and at the time of release of voucher
he inspects all the things and if everythings are in order,
then cheque is passed and voucher is released. In evening
cheque and ledgers last entry was checked. Transfer scroll
was not used to be maintained. In bank cash scroll was
maintained. Never transfer scroll was maintain.
He had released credit voucher amout of Sri Jitendra
Kumar Sinha, credit voucher of Rs. 5000/- which has been
marked as Exts. M/1-2 and after seeing the Ext. he has
stated that this was released by him. Assistant branch
manager in evening has authenticated credit debit of O.D
account of Jitendra Kumar Sinha. Disputed cheque was
dropped by Satya Narayan Prasad.
He had not seen himself Jitendra Kumar Sinha
interpolating letter "9" in the cheque. He had also not seen
himself Jitendra Kumar Sinha interpolating letter "2" before
the amount of Rs. 2200/- in ledger.
This witness further stated that he has no knowledge
that in the bank any case of fraud direction of C.V.C. is
followed. He has knowledge that in the case of fraud FIR is
used to be lodged. This witness has no knowledge that in
bank against Jitendra Kumar Sinha and FIR was lodged or
not. Account holder has given written complain to branch
manager but what was the complain is not known to this
witness. He may file copy of written complain on next date.
This witness has further no knowledge that account
holder has filed complain in the bank for compensation of
his loss or not. Further this witness has no knowledge that
bank sustained loss of how much amount to compensate
the amount holder.
This witness has stated that he may file copy of the
charge sheet which was given to him. He has not read the
charge sheet of Sri Jitendra Kumar Sinha. Further he has
stated that he has arrived to depose in the matter of Jitendra
Kumar Sinha.
This witness has denied that his evidence is not
voluntarily but tutored evidence. This witness has denied
that account holder had not made complain and no amount
was given to compensate to account holder and entire
case is based on misreporting and no fraud was committed.
He has also denied that since Jitendra Kumar Sinha was
respected union leader, the bank has implicated him in false
case. He has also denied that since bank had punished him
so to take revenge he has given false statement.
19. Document exhibited on behalf of the management
are Exts.-M/1 to M/26.
Exts.-M/1 the letter dated-18.12.2000 sent to Assistant
General Manager, Indian Bank, vigilance department by
branch manager, Indian Bank, Gaya. In the subject matter
of fraud committed by Jitendra Kumar Sinha clk/SH Sr. No.-
5576724 of Gaya branch. In S.B. account No. 8685 of Surya
Narayan Prasad. It was informed that Mr. Jitendra Kumar
Sinha has committed a fraud S.B. Account No.-8685, Surya
Narayan Prasad maintained with out branch in following
ways.
(1) On 29.09.2000 he (Jitendra Kumar Sinha) debited a
cheque No.-878101 dt-29.09.2000 for Rs. 95,000/- to the
above said SB account and credited the proceeds to his
own O.D account. In the said cheque he has alered the
cheque amount from Rs. 5000/- to 95,000/-.
(2) On 23.10.2000 in the same S.B. account he altered the
balance from Rs. 2200/- to Rs. 22,200/- and allowed a debit
of cheque No.-878104 dt-07.11.2000 for Rs. 20,000/-
thereafter the account have come in debit balance.
(3) On 13.12.2000 he had deposited cash of Rs. 25,000/-
to clear the over draft in the S.B. account/For reference
cheque No.-878101 dt.-29.09.2000 and cheque No.-878104
dt-09.11.2000. Credit challan dt-29.09.2000 of O.D. account
of Jitendra Kumar Sinha. S.B. ledger sheet No.-448271 of
S.B. account 8685 has been enclosed.
Exts.:-M/1-1 is the cheque dt-29.09.2000 of Rs. 95,000/-
issued by Surya Narayan Prasad.
Ext.:M/1-2 is the deposit slip in the name of Jitendra
Kumar Sinha is O.D. account of the amount Rs. 95,000/-.
Ext.:—M/1-3 is the cheque dt-27.01.2000 of Rs. 20,000/-
issued by Sri Surya Narayan Prasad is name of Brajesh
Kumar.
Ext.:—M/1-4 is the extract of ledger of S.B. account of
account no. 8685 of Surya Narayan Prasad. From which is
appears that Rs. 95,000/- was debited from account of Surya
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Narayan Prasad also amount debit of Rs. 20,000/- from
account of Surya Narayan Prasad on 29.06.2000
respectively.
Ext.:—M/2 is account opening form of Sri Surya Narayan
Prasad.
Ext.:—M/3 it also photo stat of card of specimen
signature of Surya Narayan Prasad.
Ext.:—M/4 is the photo stat of the ledger of Jitendra
Kumar Sinha from which it appears that on 29.09.2000 Rs.
95,000/- was credited in the account of Sri Jitendra Kumar
Sinha.
Ext.:—M/5 is the letter given to branch manager, Indian
Bank, Gaya by account holder to Surya Narayan Prasad in
subject matter of S.B. Account No. 8685. In the letter it has
been stated that Jitendra Kumar Sinha is his nephew and
on his identification account was opened and withdrawal
was within knowledge of this account holder and he
confirms all transactions. He left to confirm the alteration
in his cheque no. 878101 of the amount Rs. 95,000/- and i.e.
correct. He had also confirmed other withdrawal by inform
and through cheque and he has no objection.
Ext.:—M/6 is the letter dt-04.01.2001 sent by Asst.
General Manager to Sri Jitendra Kumar Sinha stating there
that:—
(1) "On 29.09.2000 you had debited a cheque
No. 878101 dt- 29.09.2000 Rs. 95,000/- which
had been materially altered from Rs. 5000/- to
Rs. 95,000/- without authentication by the
account holder and the proceed had been
credited to your O.D. account. The customer
had not mentioned whether he had altered
the same or not."
(2) "On 07.11.2000, you had debited a cheque
No. 878104 dt-07.11.2000 for Rs. 20,000/- fvg.
Brajesh Kumar in the S.B. Account No. 8685
where the balance as on 23.10.2000 had been
altered from Rs. 2200/- original balance to Rs.
22,200/- and there by an extra amount of Rs.
20,000/- has been debited from the amount."
(3) "On 13.12.2000, you had deposited Rs.
25,000/- in cash to wipe off the extra debit
and the same had been admitted by you to
the investigating official.
Ext.:—M/7:—(1) Explanation letter submitted by Sri
Jitendra Kumar Sinha stating therein that Sri Surya Narayan
Prasad is his uncle and S.B. Account No. 8685 had been
opened with my introduction. On 29.09.2000, account holder
has given me a cheque bearing no. 878101 dt-29.09.2000 for
a sum of Rs. 95,000/- and not Rs. 5000/-. The simple things
was that the addition of word ninety required
authentication by the drawer which was unintentionally
left by him as he was in hurriedness and going somewhere
else out of Gaya. The account holder being the close relative
of mine had given me the cheque to adjust my O.D. account
as he did not require that money that time. However, alter a
few days I gave him the money.
(2) On 07.11.2000 again a cheque was presented for a
sum of Rs. Twenty thousand only being number no. 878104
dt-07.11.2000 favouring Brajesh Kumar is S.B. account no.
8685. Before Rs. 2200/- balance as of 23.10.2000 there was
equal mark and due to this deceptively by the balance
seemed to be Rs. 22,200/- instead of Rs. 2200/-. Accordingly
the cheque for Rs. 20,000/- was debited.
After a few days on 13.12.2000 the account holder
himself informed about the excess withdrawal and
accordingly I suggested him to deposit the amount so
excessively withdraw. Thereafter on the same date
13.12.2000 sent a sum of Rs. 25,000/- in cash and the same
was deposited by me forthwith.
He submitted that Sri Surya Narayan Prasad account
holder is uncle and accordingly he gave me Rs. 95,000/-
which was returned to him. He has been discharging his
duty to the best of my sincerily and ability and did not
commit any irregular act to the deteriment to the institution.
Ext.:—M/8- is the letter dt-31.01.2001 sent to Sri Jitendra
Kumar Sinha by Assistant General Manager/Disciplinary
Authority in which it has been stated that he had committed
certain serious irregularities in Gaya Branch. Which was
no:—
(1) On 29.09.2000 you had altered the cheque no.
878101 dated 29.09.2000 for Rs. 5000/- to Rs.
95,000/- and debited the same to the SB A/c No.
8685 of Sri Surya Narayan Prasad and credit the
proceeds to your own O.D. account.
(2) On 07.11.2000 you had altered the previous ledger
balance of Rs. 2200/- as Rs. 22,200/- and debited a
cheque (No. 878104 dated 07.11.200) for Rs. 20,000/
- fvg. Brajesh Kumar to the SB A/c No. 8685 of
Shri Surya Narayan Prasad and the cheque was
paid in cash.
It is also informed that above act are serious nature and
if proved will amounting to doing on act prejudicial to the
interest of the Bank and likely to put Bank in serious loss,
a gross-misconduct under clause 19.5(J) of the Bipartite
Settlement dated 19.10.1966. Pending enquiry or initiation
of such enquiry into aforesaid conduct enquiry he was
suspended from the Banks services with immediate effect.
Ext.:—M/9 is the letter sent to Jitendra Kumar Sinha by
which charge framed against him was communicated.
Ext.:—M/10 is letter sent by Asst. General Manager/
Disciplinary Authority on 28.02.2001 to Sri M.A. Khan by
which he was appointed as inquiring authority to conduct
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[PART II—SEC. 3(ii)]
an enquriy into the charges levelled against Jintendra Kumar
Sinha.
Ext.:—M/11 is letter dated 28.02.2001 sent by same Asst.
General Manager/Disciplinary Authority by which Sri
Ranjan Lal was appointed as presenting officer in the
departmental proceeding.
Ext.:—M/12 is notice letter dated 29.02.2001 Asst. General
Manager/Disiciplinary Authority and it has been stated
that bank had decided to hold departmental enquiry under
the provision of the Bipartite Settlement 1966 against Mr.
Jitendra Kumar Sinha on the charges framed against him
and M.A. Khan was enquiry officer and empower him to
hold the enquiry.
Ext.:—M/13 is the proceeding of preliminary enquiry
conducted by Mr. M.A. Khan, enquiry officer.
In the enquiry proceeding it appears that after the
enquiry conducted on 07.07.2001 bank has not submitted
before this tribunal a minutes of the proceeding in proper
manner because proceeding of the 04.08.2001 has not found
at proper place.
It appears that in the enquiry evidence on Surya Narayan
Prasad was recorded on 28.08.2001 who has stated that he
had gone at Gaya branch for opening S.B. A/c No. 8685
and Sri Jintendra Kumar Sinha had identified him. Jintendra
Kumar Sinha in newphew. Question was also asked from
this witness that in case of excess withdrawal he will be
deemed to be in criminal or conspirsy. He has also stated
that in pass book there was balance of Rs. 22,000/- and he
had issued a cheque of Rs. 20,000/- on 07.11.2000. He has
identified the cheque issued by him of Rs. 95,000/-. He has
also admitted that in the cheque word and letter was added
by him in his writing. But he had no authenticated the
added letter and word. He had given the amount to
Jintendra Kumar Sinha because he was in need. He had
given cash amount to Jintedra Kumar Sinha hias residence.
After withdrawal about Rs. 5000/- was the balance amount.
But he had seen the pass book in which Rs. 22,200/- was in
balance. So issued a cheque of Rs. 20.000/-. When he felt
that balance was less than he despited Rs. 25,000/- in the
account.
Ext.:—M/14 is the findings of the enquiry authority in
the departmental enquiry conducted against Mr. Jitendra
Kumar Sinha. In which it has been stated that the defence
based on the letter from Sri Surya Narayan Prasad to the
Branch Manager, Gaya.
Ext.:—M/15 is the letter dated 31.10.2002 sent to Sri
Jitendra Kumar Sinha by Asst. General Manager/
Disciplinary/Authority in which findings dated 10.08.2002
of the enquiring authority was sent. The enquiring authority
in his findings held all the charges period.
Ext.:—M/16 is letter dt-02.05.2008 sent to Mr. Jitendra
Kumar Sinha by the Chief Manager in which it has been
stated that " on careful examination of charge-sheet,
findings of I.A. dated 17.08.2002 exhibits and other relevant
papers and documents, Deputy General Manager/
Disciplinary authority is convinced that the charges, framed
against you vide afore-mentioned charge sheet are genuine
and proved and in consequence of the same, he has issued
a speaking order dated 02.05.2006 proposing a major
punishment, being dismissal from the service of the Bank
without notice, to be imposed on you as set out in clause
no. 19.6(a) of Bipartile Settlement dated 19.10.1966. Copy
of the said speaking order is enclused herewith for your
perusal.
However, disciplinary authority has decided to give you
a personal heading at 3.00 P.M. on 12.05.2006 in his regard
to the nature of the proposed punishment. In case, you fail
to avail the personal heaving to be given by disciplinary
authority on the said done, it will be construed that you
have nothing to say in regard to the nature of proposed
punishment and the matter will be proceeded with further.
Ext.:—M/17 is the order dated 2nd May, 2006 by Deputy
General Manager/Disciplinary Authority in which it has
been stated that "The irregularities committed on the part
of CSE as mentioned above, are very serious in nature and
prejudicial to the interest of the Bank and construed as
gross misconduct under clause no. 19.5(J) of Bipartite
Settlement dated 19.10.66. Therefore, I propose the major
penalty, being dismissal from service of the Bank without
notice as set out in clause no. 19.6(a) of Bipartite Settlement
dated 19.10.66 to be imposed of SCE, Shri Jitendra Kumar
Sinha. The period of suspension will be treated as one on
suspension only.
However, in terms of provision under clause no. 19.12(a)
of Bipartite Settlement dated 19.10.66. I shall give a personal
hearing to the CSE at 3.00 P.M. on 12.05.2005 in my office
and the same will be given as to the nature of the nature of
the proposed punishment only. In case, CSE fails to avail
the opportunity of personal hearing on the said date, it will
be construed that he has nothing to say in regard to the
nature of the proposal punishment and the matter will be
proceeded with further.
Ext.:—M/18 is the letter dated 11.09.2006 by Dy. General
Manager and circle Head of Sri Jintedra Kumar Sinha in
which again offer was given to him, a personal hearing in
the regard to the nature of proposed punishment to be
imposed on him.
Ext.:—M/19-1 is letter dated 31.10.2006 sent by Chief
Manager to Sri Jitendra Kumar Sinha in which he was
communicated that he was compulsorily retired from the
service of the Bank with effect from the date of speaking
order with superannuation benefits i.e. pension and/or
Provident Fund and Gratuity as would be due otherwise
under the Rules and Regulation prevailing at the relevant
time and without disqualification from further employment.
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Ext.:—M/19-2 is the order of Dy. General Manager &
Circle Head/Disiplinary Authority in which same order has
been communicated.
Ext.:—M/20 is the memo of appeal preferred by Sri
Jitendra Kumar Sinha before Appellate Authority (General
Manager).
Ext.:—M/21 is order dated 16.02.2008 communicated to
Sri Jitendra Kumar Sinha by the Chief Manager (H.R.M.).
The subject matter of order of General Manager/Appellate
Authority in the matter of punishment imposed on Jitendra
Kumar Sinha by the Depty General Manager/Circle Head/
Disciplinary Authority, Patna vide his order dated 31.10.66.
Order dated 15.02.2008 passed by General Manager/
Appellate Authority has been enclosed and General
Manager/Appellate Authority in the appeal preferred by
the Jitendra Kumar Sinha SR No.55767 Ex-clerk/shoff Gaya
Branch has passed order that he found no reason to interfere
in the decision of Disciplinary Authority as there was no
merit in the appeal. Hence, the appeal of Mr. Jitendra Kumar
Sinha was dismissed and disposed off as such.
Ext.:—M/22 is the letter dated 29.12.2000 sent to Asst.
General Manager, Indian Bank, Regional Office, Patna by
Senior Manager, Regional Office, Patna in the subject matter
of alleged fraudulent transaction in the S.B. Account
No.8685, Surya Narayan Prasad at Gaya Branch. In which it
has been stated that senior manager had visited Gaya
Branch on 26.12.2000 and investigated the alleged
fraudulent transaction as stated above. It has been stated
about amount Rs. 95,000/- that amount in figure and words
are materially altered with no authentication by the account
holder. The amount of Rs. 95,000/- was transferred/credited
to ID A/C No. 47 of the staff, Jitendra Kumar Sinha on the
same day. No alteration was, however, noted in the credit
challan of O.D. A/C, Jitendra Kumar Sinha.
(2) "It was further observed that Sri Jitendra Kumar Sinha
had debited on 07.11.2000, a cheque no. 878104 dt-
07.11.2000 for Rs. 20,000/- fvg. Brijesh Kumar to the S.B.
A/c 8685 of Surya Narayan Prasad when the previous
balance (as on 23.10.2000) in the account was Rs. 2200/-
only and the balance was materially altered as Rs. 22,200/-
. Cheque was paid cash, to the bearer.
On verbal interrogation in presence of Branch Manager,
the ledger keeper, staff, Jitendra Kumar Sinha, cl/sh had
amitted that he had noted the alteration in the cheque from
Rs. 5000/- to Rs. 95,000/- but had forgotten to refer the
matter to the passing officer/Branch Manager.
He was also informed that Sri Surya Narayan Prasad,
S.B. A/c No. 8685 in his uncle. The S.B. A/c in question was
also introduced by him on 18.07.2000. The customer could
not be interrogated as he was out of station on the day.
(3) It was further observed that on 13.12.2000 that staff
Sri Jitendra Kumar Sinha, had deposited a sum of Rs. 25,000/
- by cash, himself, to clean the overdrawn S.B. Account
and the same is admitted by the staff.
(4) Sri Ram Lakhan Ram (Sr. No. 14935), Asst. Manager,
had passed the cheque No. 878101 dt-29.09.000 Rs. 95,000
and cheque No. 878104 dt-07.11.2000 for Rs. 20,000/- fvg.
Brijesh Kumar, also had checked the S.B. Ledger (S.B. 8685)
on both the days. The Asst. Manager had stated that due
to pressure of routine work shortage of light in the Branch,
the alteration in cheque and ledger balance in S.B. 8685
A/c. Surya Narayan Prasad, could not be noted by him.
Ext.:—M/23 is gratuity receipt of Jitedra Kumar Sinha
dt-16.08.2008.
Ext.:—M/24 is the P.F. receipt of Sri Jitedra Kumar Sinha.
Ext.:—M/25 is the application of Sri Jitendra Kumar
Sinha given to Branch Manager, Indian Bank, Gaya, for
payment of PF and Gratuity amount.
Ext.:—M/26 is Statement of account of Sri Jitendra Kumar
Sinha is Indian Bank, Gaya Branch, Gaya.
20. 16 document have been Extd. On behalf of the
workman.
Ext.:—W/1 is letter dt. 04.01.2001 set by Asst. General
Manager to Jitendra Kumar Sinha informing him that he as
ledger keeper of S.B. Account No. 8685 in the name of Sri
Surya Narayan Prasad.
(1) On 29.09.2000, you had debited a cheque No. 878101
dt-29.09,2000 for Rs. 95,000/- which had been materially
altered from Rs. 5000/- to Rs. 95,000 without authentication
by the A/c holder and the proceed had been credited to
your OD A/c. The customer had not mentioned whether he
had altered the same or not.
(2) On 07.11.2000, you had debited a cheque No. 878104
dt-07.11.2000 for Rs. 20,000/- fvg. Brijesh Kumar in the S.B.
A/c No. 8685 where the balance as on 23.10.2000 had been
altered from Rs. 2000/- original balance to Rs. 22,200/- and
there by an extra amount of Rs. 20,000/- has been debited
from the account.
(3) On 13.12.2000, you had deposited Rs. 25,000/- in
cash to wipe off the extra debit and he same had been
admitted by you to the investigating official.
Explanation has been asked from Shri Jitendra Kumar
Sinha or above irregularities/lapse within 15 days from the
date of receipt of the letter.
Ext.-W/2 is explanation dt-25.01.2010 submitted by the
Mr. Jitendra Kumar Sinha to the Asst. General Manager
through the manager, Gaya Banch in which it has been
stated that addition of word ninety required authentication
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[PART II—SEC. 3(ii)]
by the drawer which was unintentionally left by him as he
was inhurriedness and going some-where else out of Gaya.
The account holder being the close relative of mine had
given me the cheque to adjusting my O.D account. Another
explanation was that on 07.11.2000 again a cheque was
presented for a sum of Rupees twenty thousand only
bearing number 878104 dt-07.11.2000 favouring Brijesh
Kumar in the S.B. A/C No. 8685. Before Rs. 2200/- balance
as on 23.10.2000 there was equal mark and due to this
deceptively the balance seened to be Rs. 22200/- in stead
of Rs. 2200/-. Accordingly the cheque for Rs. 20,000/- was
debited.
Ext.-W/3 is the letter dt-28.02.2001 sent to Sri Jitendra
Kumar Sinha by Asst. General Manager/Disciplinary
Authority in which it has been stated that his reply was
considered carefully and the same was not acceptable.
Therefore, charges were framed against him. Details of the
charges has been stated in the letter.
Ext.-W/4-1 is the letter dated-31.10.2006 sent to Shri
Jitendra Kumar Sinha by Chief Manager stating therein
charge sheet dt-28.02.2001 issued to him by the then Asst.
General Manager & Circle Head/Disciplinary Authority.
Jitendra Kumar Sinha was placed suspension vide order
dated-31.01.2001 and a departmental enquiry was ordered
on 28.02.2001 by Disciplinary Authority for examination of
charges, framed against him. Shri M.A. Khan enquiry
authority of the said departmental enquiry has submitted
his findings (dt-17.08.2002) on 19.08.2002.
On carefully examination of charge-sheet, findings of
IA dated-17.08.2002, exhibits and other relevant papers and
documents, Deputy General Manager/Disciplinary
Authority is convinced that the charges, framed against
you vide afore-mentioned charge-sheet are genuine and
proved. In consequence of the same and after giving
personal hearing to you on 19.09.2006, he has issued the
speaking order dated 31st October, 2006, thereby imposing
a major punishment on you as set out in clause no 19.6 (C)
of Bipartite Settlement dt-19.10.66 and its subsequent
amendments and as a result, you are compulsorily retired
from the service of the Bank with effect from the date of
speaking order with superannuation benefits i.e. Pension
and/or Provident Fund and Gratuity as would be due
otherwise under the Rules and Regulations prevailing at
the relevant time and without disqualification from future
employment. Copy of the said speaking order dated-
31.10.2006, issued by Disciplinary Authority is enclosed
herewith.
Ext.-W/4-2 order passed by the Deputy General Manager
& Circle Head/Disciplinary Authority. Which is part of the
letter communicated by the Chief Manager vide Ext. M/4-1.
Ext.-W/5, W/6, W/7, W/8, are office orders.
Ext.-W/9 is the letter dated-17.08.2002 sent by M.A. Khan
Banch Manager/Enquiry Officer to Shri R. Balakrishnan
AGM/Disciplinary Authority by which finding of the
departmental enquiry was sent.
Ext.-W/10 is the matter of an appeal preferred by the Mr.
Jitendra Kumar Sinha appellant before the Appellate
Authority (General Manager).
Ext.-W/11-photo stat letter dt-16.02.2008 sent to Shri
Jitendra Kumar Sinha by Chief Manager (HRM) in the matter
of punishment imposed of Shri Jitendra Kumar Sinha. This
contains 15 sheets.
Ext.-W/12 is also photo stat of the letter dt-04.04.2008
presented before ALC (Central) by the Indian Bank
Employees Association Bihar in 5 sheets.
Ext.-W/13 is also photo stat of conciliation report dt-
01.05.2009 sent to the Secretary Government of Indian,
Ministry of Labour, New Delhi by Asst. Labour
Commissioner (C) Patna by which failure of conciliation
was reported.
Ext.-W/14 is the letter given by the Shri Surya Narayan
Prasad to Branch Manager, Gaya. In which it has been
stated that in the cheque amounting Rs. 95,000/- be forgot
authentication of the alteration done in the cheque.
Further it has been mentioned in the Exts list that Ext.-
W/15 is the same as Ext.-W/14. Ext.-W/15 was in place of
Ext.-W/1.
Ext.-W/16 is Public document of death certificate of
Surya Narayan Prasad, Registration No.-10348 dt-09.09.2013
and date of issue is 10.09.2013. (Photo copy).
21. Three witness has been examined on behalf of the
workman W.W-1 Surya Narayan Prasad, W-W-2 Jitendra
Kumar Sinha & W.W-3 Rajan Kumar Raj.
W.W-1 Surya Narayan Prasad has stated that he has
got saving account no.-8685 in Indian Bank, Branch at
Gaya and that account exist at present. Further he has
stated that cheque marked Ext M/1-1 has been issued by
him and it appears his signature. Amount of cheque is Rs.
95,000/-. He has given this cheque to his nephew Jitendra
Kumar Sinha for depositing in his account. Witness had
seen Ext. M/1-3 stated that this cheque has also been issued
by him and amount was written in cheque by him and he
identified his signature. He had received the payment of
this cheque.
Further this witness stated that later on bank informed
that there is over draft in his account. He deposited the
amount with interest of the overdraft. For any irregularity
(error) in his account, he did not make any complain to any
officer of the bank either written or orally. There was never
irregularity in his saving account no.-8685. This is the cause
that his account is still continuing. If there would have
been any irregularity, then he would have closed the
amount.
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In cross-examination he has stated that Jitendra Kumar
Sinha is his nephew. Late Prakash Lal father of Jitendra
Kumar Sinha was his own brother. He had three brother
No.-(1) Uma Charan Prasad, (2) Prakash Lal and this witness
himself. Jitendra Kumar Sinha used to do transaction at the
stance of this witness.
This witness denied that on 13.12.2000 he had gone to
the bank and had given a cheque for withdrawal of Rs.
5000/-. But there was short amount in the ledger so that
cheque was not passed and in this matter he had made oral
complain to the branch manager and passing officer. Further
this witness has stated that it is true that his nephew Jitendra
Kumar Sinha has deposited Rs. 25,000/- in his account but
this witness does not remember the date of deposit. He has
given that amount to his nephew for depositing.
This witness further denied that branch manager had
told him to make written complain but at the stance of his
nephew, Jitendra Kumar Sinha he did not make written
complain and Jitendra Kumar Sinha himself deposited Rs.
25,000/-.
This witness has stated that he was examined in
departmental proceeding and his evidence was recorded
in departmental proceeding and he had put signature on
his deposition marked as Ext.-M/13.
After seeing the cheque marked as Ext M/1-1 this
witness stated that this cheque of Rs. 95,000/- which was
issued by him.
Letter '9' was written before amount Rs. 5000/- in the
cheque by this witness and in the word 90 was written
before the word '5', by this witness.
There is no initial of this witness in the word and letter
of the enhanced amount.
This witness further denied that there was only amount
Rs. 20,000/- in his account on 07th November, 2000 when
he produced the cheque of Rs. 20,000/- in the bank.
This witness identified the cheque of Rs. 95,000/- marked
as Ext.-M/1-1 and stated that this was self-cheque. This
witness further had seen Ext. M/5. This witness denied
that his evidence is false and it is to save his nephew.
22. Next witness on behalf of the workman W.W-2
Jitendra Kumar Sinha (delinquent workman) himself. He
has stated that he joined Indian Bank in December 1994 at
Sihuli Branch at the post of clerk-cum-cashier. he was
posted September 1997 at Gaya Branch. When he was
posted at Gaya Branch then he was on the post of Secretary
of Indian Bank Employees Association of Gaya Branch. In
the capacity of Secretary of the branch, daily he had
discussion with the branch manager in the matter of problem
of other employees. There used to be altercation during
the course of discussion. Branch Manager used to take
work from the staff even after 5.30 P.M and staff did not
want to stay and this points was mainly due to this reason,
there was altercation.
In January 2001 he was suspended and thereafter charge
sheet was given to him. In the bank there was account in
the name of Shri Surya Narayan Prasad who was his own
uncle. His S.B account was 1217-8685. He denied that he
had made the amount of cheque No.-878101 dated-
29.09.2000 from the amount Rs. 5000/- to 95,000/-, issued
by his uncle.
His uncle himself had come with the cheques in the
bank because he had got no time he had to go somewhere.
So he told this witness to deposit the amount of the cheque
in the account of this witness and later on he will take
account from this witness. At that time cheque was fully in
order to get deposited and this was bearer cheque. So he
deposited the amount of cheque in his account.
Further this witness denied that on 07.11.2000 only Rs.
2200/- was in the S.B. account of his uncle and prior to that
this witness interpolated letter '2' and made the amount Rs.
22,200/-.
This witness stated that domestic enquiry was not
properly conducted by enquiry officer. Bank punished him
only due to reason that he was office bearer of the union.
He was punished by the bank only to suppress the activity
of the union. The charges framed against him are totally
false.
Further this witness prayed that he be reinstated in
service with full back wages. After removal from service he
has not gone in another service neither did any business
of profession. He is completely unemployed.
In cross-examination this witness stated that prior to
his suspension show cause was asked from him and
thereafter domestic enquiry was conducted. Shri M.A. Khan
was enquiry officer. He participated in domestic enquiry
and Shri Ranjan Raj was his representative is enquiry. Prior
to institution of domestic enquiry bank has not given hum
any paper or documents.
This witness denied that Shri Surya Narayan Prasad
was his witness rather he was witness on behalf of the
bank. Bank had called him for evidence. During enquiry
Shri M.A. Khan and used to make contact through Mobile
and thereafter asking he used to right and many thing
written by him himself.
In further cross-examination dt 8-3-2011 he has stated
that in the enquiry proceeding he himself and his
representative both signed each and every page of the
proceeding. He has not filed any documents to demonstarte
that enquiry officer during the enquiry used to make contact
through Mobile and he was not impartial.
He has not filed by documents to demonstrate that he
was office bearer of the union of the branch. He has not
filed any documents to demonstrate that he and others
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used to be detained by the branch Manager even after
banks working hour for the work and he has raised the
dispute in this respect with the branch manager.
This witness identified his signature and his reply and
explanation makred as Ext.-M/7. Further he has stated that
after findings him guilty, when management had called him
for personal hearing then prior to personal hearing he had
given an application before Asst. Labour Commision of
Labour department. But this witness has no knowledge
that before A.L.C union representative agreed for any other
punishment except removal from service because he was
not present before Asst. Labour Commissioner.
Disciplinary authority called him prior to giving him
punishment. He had raised objection that enquiry not fair
but in spite of his protest disciplinary officer had stated
that enquiry was fair and without pressure.
After his compulsory retirement he was paid Rs.
1,13,782/- which was of G.P.F amount. A part from that Rs.
26,480/- was also paid to him which was amount of gratuity.
Those amount credited in his account. He denied that is
employed. He also denied that after receive the total amount
then raised the dispute.
On recall further examination in chief was held on
30.01.2014 in which this witness has stated that his uncle
Surya Narayan Prasad Had given him cheque of Rs. 95,000/-
in the bank in the chamber of branch manager. After seeing
the cheque he had filled up pay in slip. After filing form of
pay slip he enclosed with cheque and handed over to Ram
Lakhan Ram who was passing officer and he after verifying
cheque given him and he debited of the amount in the
ledger. After passing the cheque amount credited in his
O.D account. He further stated that his amount in O.D
account was finally authenticated by Branch Manager, B.
Hansda. After debiting the cheque officer Shri Ram Lakhan
Ram and passed the cheque and after authentication by
the Branch Manager amount was credited in his account.
Till that time it was not stated there was any alteration and/
or over writing in the cheque. The amount Rs. 95,000/- was
credit in his account. At the instance of uncle Surya
Narayan Prasad. He had never seen nor heard Surya
Narayan Prasad had made any written or oral complain.
Prior to 16.12.2000 in the connection show cause was given
to him by Branch Manager. He further stated that
investigating officer had never met with him all allegation
or charges against him were false and that was only due to
activities of his union. Further he has stated that prior to
his suspension, no show cause and explanation was given
to him.
After termination from service he is completely
unemployed. After termination of the service he had not
given any application in the bank for his payment of his
pension, P.F etc. Branch of the bank has intimated on phone
that amount of gratuity, P.F have arrived in central office
and was told to receive the same otherwise that amount
will be kept in sundry account. At the instance of Branch
Manager he gave a application to deposited amount in his
account. His claim is true. In cross-examination he has stated
that his uncle had handed over him cheque in the cabin of
branch manager. Cheque was not a "self" cheque and it
was also not in the name of this witness. He has further
stated that he did not see that cheque was self or not, but
voluntarily he has stated that cheque was bearer cheque.
He has further stated after seeing the cheque branch
manager gives it to a officer to verify that cheque is in
order or not. After findings the cheque in order, it is handed
over to account clerk to debit in the account. At the
instruction of Ram Lakhan Ram he debited the cheque
because Ram Lakhan Ram Verified the cheque, then this
witness debited the cheque. Cheque was of the amount of
Rs. 95,000/-. He had seen the cheque properly. After seeing
the cheque it appears that word ninety was write some
above the amount.
He denied that cheque was passed of the amount Rs.
5000/- and then he interpolated word "9" and made the
cheque of the amount Rs. 95,000/- and amount was
withdrawan. He further denied that word ninety was
interpolated. He never told the bank that handwriting of
the cheque being examined by handwriting expert. He
further denied that he wrongly stated that his uncle Surya
Narayan Prasad has told to depost of the amount of cheque
in the account of this witness and later on accounting will
be done. After seeing Ext.-M/5 he has stated that this has
been written by his uncle Surya Narayan Prasad. He had
not written that his uncle had told to deposit the amount in
the account of this witness. He denied that to save this
witnesses his uncle Shri Surya Narayan had written this
letter Ext.-M/5. He further stated that during course of
departmental enquiry his uncle was examined as a witness.
He denied that during the departmental enquiry his uncle
has stated that after receiving the amount arrived at
residence of this witness (Jitendra Kumar Sinha) and
handover the amount for his needful. This witness denied
that this uncle has stated that he handed over the amount
at the residence. His uncle had his signature on his
statement and there are also signature of concern party,
but M.A. Khan (enquiry officer) had himself written many
things. During the course of departmental enquiry, for
recording wrong statement he orally raised objection with
M.A. Khan but he has not written complain. Ext.-M/7 is
written by this witness.
This witness further stated that O.D account was open
in the name of his witness to take loan from fixed deposit.
He has instruction from manager and many staff had opened
O.D. account.
This witness further stated that he is at present
unemployed. He denied that purpose of the O.D account
was to make transaction and he has to run business. At the
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4167
present he has no O.D account. He did not receive the
amount of P.F and gratuity with protest. He made
application for receiving payment of the amount. He denied
that prior to payment, cheque was used to be produced on
counter and from there it was sent to the passing authority.
23. Next witness on behalf of the workman is W.W.-3 Sri
Ranjan Kumar Raj, Clerk-cum-cashier of Indian Bank, Patna
main branch. By mistake this witness has again been
examination on behalf of the workman on 17.01.2014, both
the evidence will be considered herein. This witness stated
that he is General Secretary of the Indian Bank Employees
Association, (Bihar & Jharkhand Branch). This union is
affiliated with Union Bank Employees Federation of India.
He further stated that his union is minority union on All
India basis.
He further stated that Jitendra Kumar Sinha was secretary
of his union at Gaya Branch. In the year 2000 at Gaya. His
union was minority union. Jitendra Kumar Sinha at that
time posted at the Gaya Branch, raised problem before
branch manager which were problem of electricity working
after bank hour and so many problems. Branch Manager
inclusion with majority union he treated him and used to
threaten him. He also made contact on phone with higher
authority and warning from higher officer was given to his
(workman). At that time this witness raised problem of Gaya
Branch in Regional Office. Jitendra Kumar Sinha was
punished due his activities in union.
This witness was defence representative in departmental
enquiry against Jitendra Kumar Sinha. Enquiry Officer at
any stage did not fairly conduct the enquiry. Enquiry officer
used to change the venue of the enquiry and enquiry was
conducted some time at Gaya and some time at Patna.
Enquiry was in-connection with irregularly in the account
and account holder was Surya Narayan Prasad. Who had
in writing submitted to the management that there was
irregularity in the account. But even in inspect of the facts
bank management had produced him as a witness and in
enquiry presenting officer and enquiry officer had variously
threatened to Surya Narayan Prasad to send him to Jail and
he will be removed from service and the objection raised
on behalf of delinquent was not recorded by the enquiry
officer. Presenting officer did not declare Surya Narayan
Prasad hostile during the examination-in-chief and asked
such question which are asked in cross-examination.
This witness has made complaint twice before Assistant
Labour Commissioner, (i) Before the C.V.C. and secondly
after passing the order of punishment.
This witness denied that Jitendra Kumar Sinha at the
end of enquiry has stated that he is satisfied with the
enquiry and he has no complaint against enquiry officer. It
is precedent to right such, at end of enquiry and this was
written by enquiry officer and got signed by the delinquent.
After completion of enquiry this witness met disciplinary
authority and in respect of proposed punishement.
Disciplinary authority stated that he sending proposal for
stoppage of increment and he had pressure to send
proposal for removal from service. In the light of above
said fact in respect of proposed punishment he made
complain with Assistant Labour Commissioner.
Enquiry was conducted against Jitendra Kumar Sinha
for the occurance in the year 2000. During period of
occurence there was provision for giving financial
punishment and to stop increment or there was provision
for dismissal from service but for compulsory retirement
there was no provision at time in respect of compulsory
retirement. To take opinion of C.V.C that provision came in
existence in bipartite settlement dated-10.04.2002.
Complaint was made before Assistant Labour
Commissioner that dispute is only for some mistake and it
is not a case of dismissal. Then management indicated that
it will not consider about dismissal from service. There is
no provision to implement bipartite settlement dated-
10.04.2002 with retrospective effect.
This witness further stated that in the bank there are
chances to committ small mistake and when some mistake
comes in light, it is used to be corrected. Mistake was
committed and came into light then Surya Narayan Prasad
by deposited the amount but management by high lighting
the mistake conducted departmental enquiry and gave
highest punishment. Disciplinary authority under external
pressure gave such punishment.
In cross-examination has has stated that in enquiry when
he remained present put signature in the proceeding. he
further stated that during the departmental enquiry he was
given opportunity for cross-examination the witnesses of
the management and to produce witness in defence. He
made oral complaint with disciplinary authority against
enquiry offcer. No documents was filed in the tribunal to
demonstrate that Jitendra Kumar Sinha was office bearer
and member of his union because no such need was
understood. No document has been filed to demonstrate
that Jitendra Kumar Sinha raised problem before branch
manager for workers because problem was raised at branch
level and were not made in writing. No such documents
has been filed in the tribunal that this witness raised problem
in regional office of the Gaya branch. This witness denied
that branch manager incollusion with majority union ill-
treated with Jitendra Kumar Sinha and used to threatened
him.
Once enquiry was conducted at Patna. Surya Narayan
Prasad was witness of defence and he was not witness of
management. This witness further denied that charge
against Jitendra Kumar Sinha was not a minor mistake, it
was big mistake. This witness further denied that
disciplinary authority after hearing the workman and after
application of mind punished him. He further denied that
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[PART II—SEC. 3(ii)]
enquiry officer had given full opportunity to both sides to
produce their evidence and witness.
This witness had further examined on 17.01.2014 and in
re-examination-in-chief he has stated that he was defence
representative at the time of department enquiry. During
departmental enquiry management produced Surya
Narayan Prasad who was account holder for evidence. Sri
Surya Narayan Prasad has stated after see the cheque of
the amount Rs. 95,000/- that this cheque was written bying
him. He had also stated about the letter was given by him.
Further he has stated that no one have tampered or altered
the amount of cheque. Further he has stated that there is
no irregularity in his Saving Bank A/c. Further he stated
that prior passing the cheque that is debited by account
clerk and after verifying the signature and cheque is passed
by officer. Related cheque was passed by Asst. Branch
Manager Ram Lakhan Ram. Further he has stated that
branch manager Bhua Hansda had passed cheque for
crediting in O.D. Account. Bearer cheque may be transferred
in other account and related cheque of Rs. 95,000/- was
bearer cheque which was transferred in another O.D
account that amount was deposited by Jitendra Kumar
Sinha in O.D account be filling pay-in-slip. Seldom in any
account amount is debited, then account holder is informed
and amount of overdraft is recovered. Further this witness
stated that he remembered that after debiting in account of
Surya Narayan Prasad of the amount Rs. 20,000/- there was
overdraft of Rs. 18000/- and after getting information Surya
Narayan Prasad deposited amount of Rs. 25000/- to clear
overdraft.
This witness further stated that Jitendra Kumar Sinha
was office bearer of the union in Gaya Branch. Thereafter
he was secretary of the branch, in the capacity of office
bearer of the union he raised problem of the workman. That
problem was to work in the bank after working hour and
even after completion cash was not closed. Leave was not
granted to the workman etc. There was also problem of
capacity electricity and zenerator and Jitendra Kumar Sinha
used to raise the problem stated above and this witness
used to discuss the matter with circle head. Being office
bearer of the union, wrong charges there framed the against
Jitendra Kumar Sinha, he was removed from the service.
The punishment given to him is not in accordance with
law. In cross-examination he has stated that for payment of
Rs. 95000 of the cheque amount pay-in-slip was filled up
by Jitendra Kumar Sinha. Surya Narayan Prasad had
deposited in his account Rs. 25000/-. After how many days
from debiting Rs. 20,000/- that amount Rs. 25,000/- was
deposited, is not remembered by the this witness, Jitendra
Kumar Sinha was secretary of the union in Gaya Branch
from the time of posting and till his suspension.
Further this witness stated that name of Surya Narayan
Prasad was given as defence witness but management
produced as management witness and he was cross-
examined. Any occurrence related to cheque amount Rs.
95,000/- did not happen in presence of this witness. He has
stated that Jitendra Kumar Sinha was secretary of the union
in the branch which has been stated by him in his evidence,
and he has not given other evidence. This witness had
seen the cheque of Rs. 95,000/- Rs. 90000/- was written
before the amount Rs. 5000/- and there was no signature of
account holder. There was no difference in both writing.
Jitendra Kumar Sinha joined at Gaya Branch in the year
1997-98 and allegation is about the occurrence of the year
2000. During the period of the year 1997 to 2000 there was
no action taken by the management for any occurrence.
Cheque was passed by Ram Lakhan Ram and any
overdraft ledger credit was passed by Bhua Hansda, Branch
Manager and amount was released by Ram Lakhan Ram.
This witness remember the evidence of Surya Narayan
Prasad (S.N. Pd) and Surya Narayan Prasad had stated
that the cheque belongs to him and was written by him,
cheque of the amount Rs. 95000/- and he forgot to put his
signature on the allercation of Rs. 90,000/- There is no
irregularity in his account. Management had threaten Surya
Narayan Prasad to send him Jail. Surya Narayan Prasad
had stated that he has received the amount Rs. 95,000/-.
Jitendra Kumar Sinha transferred in his account Rs. 95,000.
This witness cann't tell that allegation is only of the amount
of Rs. 95,000/- or in other matter.
In another matter Rs. 20000/- was debited from the
account of Surya Narayan Prasad. There was charge that
cheque was of the amount of Rs. 20000/- and the amount in
the account of account holder was only Rs. 2200/- and the
allegation was that in the ledger amount was increased to
Rs. 22,200/- and cheque was debited from the account of
Surya Narayan Prasad . This witness does not remember
that on 13.12.2000 the cheque was produced for payment
of Rs. 5000/- This witness have no knowledge of paying
overdraft of Rs. 18000/- Punishment was not implemented
against Jitendra Kumar Sinha because there is no provision
in service condition. Service condition is given in bipartite
settlement and after giving the benefit of retirement Jitendra
Kumar Sinha was retired.
FINDINGS
24. This reference has been sent to this tribunal for
adjudicate ‘‘Whether the action of the management of
Indian Bank in imposing punishment of compulsory
retirement from service on Shri Jitendra Kumar Sinha is
legal and Justified? What relief the workman concerned is
entitled to?"
25. In this case witnesses were examined even before
the order passed on the point of fairness of departmental
enquiry but it has been stated in the order in para-4 that
four witnesss examined in the case on behalf of the
management and all documents and oral evidence adduced
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4169
by the management related to the fairness of domestic
enquiry as well as on merit of the charges. Evidence adduced
by the workman is also on the question of fairness of
domestic enquiry as well as touches the merit of the case.
Further in para-14 last but one para it has been stated
"Therefore, it is made clear that evidence adduced by the
management in support of the charge before this tribunal
earlier will be taken into consideration at the time of final
decision of the case. The management may, if they like so,
adduce further evidence in support of the charges to prove
the same before this tribunal. Thereafter, the workman will
also entitled to adduce evidence in his defence.
As per reply/counter statement filed on behalf of the
management dt- 23.12.2009, charges were against the
workman:—
(i) On 29.09.2000 you had altered the cheque No.-
878101 dated-29.09.2000 for Rs. 5000/- to Rs.
95,000/- and debited the same to S.B. A/c No.-
8685 of Sri Surya Narayan Prasad and credited
the proceeds to your own OD account.
(ii) On 07.11.2000 you had altered the previous ledger
balance of Rs. 2200/- as Rs. 22,200/- and debited
acheque (No.- 878104 dated-07.11.2000 for
Rs. 20,000/- fvg Mr. Brijesh Kumar to the SB A/c
No.-8685 of Sri Surya Narayan Prasad and the
cheque was paid in cash."
It has been stated in the written statement that since the
reply dated-25.01.2001 submitted by the ex-employee in
response to the explanation letter was found to be not
satisfactory, a regular departmental enquiry was ordered
against him by appointing an enquiry officer. The
delinquent employee actively participated in the
departmental enquiry with a defence representative of the
choice. In the departmental enquiry, the petitioner has given
adequate opportunity to represent his side and the
principles of natural justice were adhere to. The enquiry
proceedings held on various dates. The presenting officer
produced five witnesses on behalf of the management sides
and marked fifteen documents. The defence representative
produced one witness who also deposed as management
sides witness.
The presenting officer summed up of the proceeding on
23.03.2002 and on this the defence representative submitted
his verson on 10.05.2002. After careful analysis of all the
evidence and documents submitted therein, the enquiry
officer gave his findings on 10.08.2002 holding that the
charges levelled against the petitioner stood proved.
The petitioner submitted his reply on the findings of
the enquiry on 28.11.2002. The petitioner was also invited
by the disciplinary authority vide letter dated -02.05.2006
for a personal hearing to be held on 12.05.2006. The
petitioner failed to avail the opportunity and instead,
through his union approached the ALC for conciliation .
He filed a petition before ALC on 02.05.2006 apprehending
the punishment of dismissal from service through
punishment was neither decdied nor awarded till such time.
Finally, after hearing the parties on 12.06.2006 the ALC
adjourned the hearing to 19.07.2006 with the following
comments that the delinquent employee any avail the
opportunity of personal hearing provided by the
disciplinary authority and that the Bank will not inflict any
punishment wihtout informing the ALC. The ALC also
recorded the views expressed by th delinquent employee's
representative that the union is agreeable for any other
punishment except the punishment of dismissal. On 11.10.06
the conciliation was closed by the ALC advising the
management to dispose off the case base on the merits
taking reasonable decision and advising the management
to give the petitioner one more opportunity for personal
hearing before awarding the punishment. Accordingly a
personal hearing was given to the delinquent employee on
19.09.2006.
After careful persual of the enquiry proceedings,
evidence adduced by both sides, the documents on record,
written brief of presenting officer, defence submission of
defence representative, finding of the enquiry officer and
the comments submitted by the petitioner and his
submission made through personal hearing, the disciplinary
authority awarded the punishment of "be compulsory
retired with superannuation benefits" under clause 19.6(C)
by taking a lenient view.
26. The statement of claim has been filed on behalf of
the workman.
27 The rejoinder on behalf of the workman to the written
statement of the management has been filed on 29.01.2010.
In which it has been stated that Sri S.N. Prasad account
holder S.B. A/c No.- 8685 never lodged either verbal or
written complain with any official of the bank. Account
holder had maintained a S.B. A/c with Indian Bank Gaya
Branch and the workman being as bank employee
discharged his duties properly. Workman is not aware of
the fact of sending the complaint to the higher authorities
of the Bank.
Further it has been stated that management issued a
charge sheet based on unfounded facts and misreporting
of facts as the management wanted to curb the trade union
activities of other workmen also. Workman was falsely
charged. Disciplinary authority acted with closed mind and
biased approach and decided to hold domestic enquiry
ignoring the submissions of the workman. The submission
of the defence representative to call the accounts holder
for his examination so that truth might have come before
the learned enquiry officer was not properly recorded and
taken care of. The workman was a clerk and discharged his
clerical duties only. The supervising officials meticulously
used to check the clerical work and the actions of the
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
workman was approved and authenticated by the officer
of the Deptt. The workman never indulged in any fraudulent
act, the management had already made up their mind the
dismiss the workman. Other submission also been made.
28. From the charges levelled against the workman it
appears that first charge related to the matter dated-
29.09.2000 for altering the cheque No.-878101 dated-
29.09.2000 for Rs. 5000/- to Rs. 95,000/- and debiting the
same in S.B.A/C 8685 to Sri Surya Narayan Prasad and
crediting the proceeds in his own O.D. account it means
O.D account was of Sri Jitendra Kumar Sinha.
Second charges relates it appears that on 07.11.2000 for
altering the previous ledger balance of Rs.2200/- to as
Rs.22,200/- and debiting a cheque No.-878104 dated-
07.11.2000 for Rs. 20,000/- favouring Mr. Brijesh Kumar to
the S.B.A/C No-8685 of Sri Surya Narayan Prasad and the
check was paid in cash.
It appears that a same S.B. A/C No.- 8685 in both the
charges and account holder is Sri Surya narayan Prasad.
29. It is pertinent to note that matter has been referred to
adjudicate:-"Whether the action of the management of
Indian Bank imposing punishment of compulsory retirement
from service on Sri Jitendra Kumar Sinha is legal and
justified? What relief the workman concerned is entitled
to?"
30. To adjudicate the matter it is pertinent to that after
conclusion of departmental enquiry punishment was
imposed on Jitendra Kumar Sinha and departmental enquiry
was in the matter of charges levelled against the workman
namely Jitendra Kumar Sinha the first charge was 29.09.2000
he had altered the cheque No.-878101 dated-29.09.2000 for
Rs. 5000/- to Rs. 95,000/- and debited the same to S.B. A/C
No. 8685 of Sri Surya Narayan Prasad and credited the
proceeds to your own O.D. account.
The second charge was-"On 07.11.2000 you had altered
the previous ledger balance of Rs.2200/- as Rs. 22,200/-
and debited a cheque (No.-878104 dated-07.11.2000) for
Rs. 20,000/- fvg. Mr Brijesh Kumar to the S.B.A/C No.-8685
of Sri Surya Narayan Prasad and the cheque was paid in
cash.
31. The evidence and documents will be considered in
the matter of charge No. (1). It is pertinent to note that
account holder was Sri Surya Narayan Prasad and he has
been examined as W.W-1 in this tribunal. He has stated
that he had S.B. A/C No.-8685 Indian Bank, Gaya Branch
that account in still continuing. Further he has stated that
in respect the charge No.-(1) in cheque M/1-1 was issued
by him. He had identified his signature on the cheque.
Further he has stated tha this cheque was of the amount of
Rs. 95,000/-. He has also stated that he has given the cheque
to his nephew Sri Jitendra Kumar Sinha to deposit in his
own account. Evidence of this witness in respect of charge
two will be delt later on.
This witness stated in para-5 that in respect of irregularity
in his account. He has not made complaint to any officer of
the bank either oral or in writing. There was no irregularity
in his A/C No.-8685 and this is reason that the account is
continuing. If there would have been in irregularity, he had
closed the account.
In cross-examination this witness stated that Sri Jitendra
Kumar Sinha his nephew. Late Prakash Lal father of Mr.
Jitendra Kumar Sinha was his full brother. Jitendra Kumar
Sinha had done transaction in the account as per direction
of this witness. This witness denied that on 13.12.2000 he
had gone to the bank and submitted a cheque of Rs. 5000/
- but there was less amount in the ledger and as such
cheque was not passed, then he had made oral complaint
in this respect before branch manager and passing officer.
He had denied that branch manager had told him to make
complain but his nephew Jitendra Kumar Sinha restrained
him from making written complaint and himself deposited
of Rs. 25,000/- in the account.
This witness further stated that he appeared as a witness
in departmental enquiry and put his signature over his
deposition marked Exts. M/13. This witness after seeing
the cheque marked as Ext. M/1-1 has stated that this is
cheque of the amount of Rs. 95,000/- which was given by
him. Further he has stated that he had written worked ninety
before word five himself and written 5 before the digit 5000/-
. He further stated that in this word and letter he had not put
any initial. Further he has stated that cheque of the amount
of Rs. 95000/- was self cheque. He had seen Exts.-M/5 and
stated that this was given by him to branch manager. As
such it appears that this witness is the main witness because
he is account holder.
32. Next witness (W.W-2) is Jitendra Kumar Sinha
(delinquent workman) himself. He had stated that he had
joined Indian bank in the year-1994 in Sihuli branch on the
post of clerk-cum-cashier. He was posted at Gaya branch
in Sept. 1997. At Gaya branch he was Secretary of the Indian
Bank Employees Association of Gaya Branch. In the
capacity of secretary he had talk with the branch manager
in respect of problem of other workman and there used to
happen altercation during discussion. Bank manager used
to take work even after 5.30 P.M and workman did not want
to stay. This was main cause for dispute.
In January 2001 he was suspended and thereafter charge
sheet was given to him. One of the account holder of bank
was own uncle of Sri Surya Narayan Prasad whose account
was S.B. A/C No.- 8685. He denied that he had altered the
amount form Rs. 5000/- to Rs. 95,000/- on 29.09.2000 of the
cheque No.-878101 issued by his uncle. His uncle had
himself arrived in the bank with cheque. His uncle had no
time because he has to go some where. So he told me to
deposit the amount in the account of this witness. Cheque
¹Hkkx IIó[k.M 3(ii)º
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4171
was in order and was fit to be deposited and was bearer
cheque as such deposited the amount of the cheque in this
own account.
Domestic enquiry was not properly conducted. He was
punished by the bank because he was office bearer of the
union and he was punished to curv the activity of the
union. All the charges against him are false. He requested
to full salary and reinstatement in the service. He did not
joined any service after removal from the service. He was
not engaged other profession.
In cross-examination this witness has stated that prior
to suspension show cause was asked for him. M.A.Khan
was enquiry officer and Sri Ranjan Roy was defence
representative. Prior beginning of domestic enquiry, bank
has not delievered any documents. Sri Surya Narayan
Prasad was witness of the bank and bank had called him as
a witness. During enquiry M.A. Khan used to consult
through mobile and then he used to write about enquiry. In
the enquiry proceeding he himself and his representative
both signed each and every page of the proceeding. He
had not filed any document to establish that enquiry officer
used to talk through mobile during enquiry. He was
permanent office bearer of the union. There is no any such
document to show that even after working hour, work was
taken from him. He identified Ex.-M/7 show cause and
explanation. After finding guilty management had called
him for personal hearing but prior to personal hearing he
had filed petition beforee ALC. He does know that before
Assistant Labour Commissioner representative the union
had agreed for any punishment accept removal from
service.
Disciplinary authority had called him before punishment.
He had filed petition that enquiry was fair. He has further
stated that Ext.-M/1-1 cheque was debited by him, this was
bearer cheque and there was cutting. After compulsory
retirement he was paid Rs. 1,13,782/- which was amount of
G.P.F. Apart from that amount of gratuity was paid.
On recall in further examination-in-chief he has stated
that his uncle Sri Surya Narayan Prasad had given him
cheque of Rs. 95,000/- in the chamber of manager and seeing
the cheque he had filled up pay-in-slip which was attached
with the cheque and handed over to Sri Ram Lakhan Ram,
he was passing officer. Who after verifying returned him
cheque then it was debited in ledger. After passing the
cheque amount was credited in his O.D. amount. Amount
of O.D. account was finally authenticated by branch
manager namely Bhua Hansdha. After debiting the cheque
he went to Ram Lakhan and branch manager after
authentication credited the amount in his account. Till that
time he was not told about any altercation/or over writing
in the cheque. The amount Rs. 95,000/- was credited in his
account at the instance of his uncle Surya Narayan Prasad.
He had never seen nor heard that Surya Narayan Prasad
had made in oral or written complain. Prior to 16.12.2000, no
show cause was sent to him. Even investigating officer did
not meet with him. All charges against him was wrong.
Prior to suspension no show cause/explanation was asked
from him.
In cross-examination he has stated that his uncle has
hand over cheque to him. In the cabin of Branch Manager
and cheque was not self nor in his name. That was bearer
cheque.
Accordingly to his knowledge manager verifiees the
cheque and then gives to an officer, whether cheque was
in order or not. It cheque is found in order then it is given
counter clerk for debiting in account. He debited the amount
on the direction of Ram Lakhan Ram because Ram Lakhan
Ram verified the cheque. It appears from cheque that word
ninty was written over writing of the cheque.
He denied that cheque was passed of the amount Rs.
5000/- and he added word '9' beforre the digit 5000/- and
made the cheque of Rs. 95000/-. He never asked the bank
to get examined the cheque from hand writing expert. In
Ext.-M/5 Surya Narayan Prasad had not written to credit
the amount in the account of this witness. He denied that
Surya Narayan Prasad had given amount at the resisdence.
Enquiry officer M.A. Khan volunrily had written many
things in the evidence. He is unemployed at present.
Next witness is W.W-3 Ranjan Kumar Raj. He is clerk-
cum-cashier in Indian Bank, Patna main branch. He has
stated that he is General Secretary of Indian Bank Employees
Association Bihar, Jharkhand branch. He has stated that
his union is related with, Union Bank Employees Federation
of India. His union is minority union at all Indian level.
Further he has stated that Jitendra Kumar Sinha was
secretary of his union at Gaya Branch. Jitendra Kumar Sinha
used to raise problem at Gaya Branch like electricity working
after bank working hour etc before branch manager. Branch
manager in collusion with majority union used to oppress
and threaten him. He also used to given warning and
threating from high official. This witness raised problem of
Gaya branch in the Regional office. Jitendra Kumar Sinha
was punished due to his activity in the union.
This witness was defence representative in enquiry
proceeding against Jitendra Kumar Sinha. Enquiry officer
did not inquire the matter fairly at any stage. Enquiry officer
used to change place of enquiry. Some times enquiry was
held at Gaya branch and some times it was held at Patna.
Enquriy was in respect of that account number of which
account holder was Sri Surya Narayan Prasad who had
given in writing to the management that there was no
irregularity in account. But management produced his as
his own witness. Presenting officer and enquiry officer
variously threatened to Sri Surya Narayan Prasad and
threatened to send him Jail etc. Objection was raised from
defence representative but that was not entered by enquiry
officer. In enquiry presenting officer declared Sri Surya
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[PART II—SEC. 3(ii)]
Narayan Prasad as hostile and enquiry officer asked the
question which was used to be asked in cross-examination.
In respect of the case of the Jitendra Kumar Sinha
complaint was made before Asst. Labour Commissioner.
First before proposal of CVs and secondly after passing
the order of CVs. This witness denied that Jitendra Kumar
Sinha at the end of enquiry submitted that he has satisfied
and he has no complain from enquiry officer. This is a
custom to writen such thing at the end of enquiry, enquiry
officer mentioned this facts in the proceeding got signature
from them.
At the end of enquiry this witness has met with
disciplinary authority and had talk with him about possible
punishment and disciplinary authority had told that he is
sending proposal to with hold increment but pressure was
put on him to send proposal for removal from service and
this witness has made complaint in respect of proposal
punishment before ALC.
In the matter of year-2000 the enquiry conducted against
Sri J.K.Sinha at that time only punishment was provided
for economical or financial punishment such as to be held
increment. There was provision for dismissal but there was
no provision for compulsory retirement and that provision
was inserted later on from 10th April, 2002 Bi-lateral
settlement . Matter was raised before ALC that this was a
minor mistake and it is not matter of dismissal. Management
had indicate before ALC that matter of dismissal will not be
considered. Settlement of 10th April,2002 had no
retrospective effect. There used to be minor mistake and
such mistake comes into the light then it is corrected.
In examination-in-chief held on 17.01.2014 this witness
has stated that during enquiry management witness told
during his evidence by seeing cheque of Rs. 95000/- that it
was written by him and there is his letter in this respect and
there is no irregularity in the cheque he has also stated that
there is no irregularity in account. Before passing the
cheque, it is debited by counter clerk and officer after
verifying signature passes the cheque. That cheque was
passed by Asst. Branch Manager, Ram Lakhan Ram and
branch manager Bhua Hansdha at passed the cheque for
crediting in O.D. Account.
Bearer cheque may be transferred in other account.
Related cheque of Rs. 95000/- was bearer cheque and it
was transferred in O.D. account and pay-in-slip was filled
up by Jitendra Kumar Sinha. If amount is wrongly debited
then account holder is informed and amount of overdraft is
recovered. This evidence is in respect of another cheque
of Rs. 20,000/-.
In cross- examination this witness has stated that when
he was present during enquiry he had put signature on the
proceeding. During enquiry opportunity was given to
cross- examined management witness and to produced
evidence in defence. He has orally complained from
disciplinary authority against enquiry officer. No document
has been filed in this tribunal that Jitendra Kumar Sinha
was member and official of his union. Jitendra Kumar Sinha
used to problem of branch level and there is no
documentary proof of that because no written problem is
raised at branch level. No documents has been filed before
this tribunal that this witness has raised the matter before
Regional office. Further he has stated that once enquiry
was conducted at Patna. this witness has full knowledge
of the case of Sri Jitendra Kumar Sinha. In further cross-
examination on 17.01.2014 he has stated that for payment
of cheque of Rs.95,000/- pay-in-slip was filed up by Jitendra
Kumar Sinha. Name of Surya Narayan Prasad was given as
defence witness but management had examined him as
management witness. In the cheque of Rs.95,000/- 90,000/-
was written over the amount Rs. 5000/- and there was no
signature of account holder. There was no difference in both
the writtings.
Jitendra Kumar Sinha joined at Gaya branch in the year
1997-98 and said occurance is of the year-2000. There was
no complain in any matter against Jitendra Kumar Sinha
during period of three year. Ram Lakhan Ram had passed
the cheque and for overdraft, in ledger crdit Bhua Hansdha
branch manager had passed ledger credit in overdraft and
release was made by Ram Lakhan Ram. Further this witness
remembers that Surya Narayan Prasad stated in his
evidence that cheque of Rs. 95,000/-was written by him
and but forgot to put signature over the changes of Rs.
95,000/- There is no irregularity in his account and
management had threatened him send to Jail. Surya Narayan
Prasad has also stated that he has received the amount of
Rs. 95,000/-. Jitendra Kumar Sinha had transferred the
amount of Rs. 95,000/- or of some other matters.
As such in respect of the charge No.-(1) of the amount
Rs. 95,000/- this is oral evidence and which is hereinafter
dealt with. Charge No.(i) is that on 29.09.2000 delinquent
had altered the cheque no.-878101 dated-29.09.2000 for Rs.
5000/- to Rs. 95,000/- and debited the same to S.B. Account
No.-8685 of Sri Surya Narayan Prasad and credited the
proceeding to his O.D Account.
Management witness M.A. Khan witness is the enquiry
officer in respect of the domestic enquiry against Jitendra
Kumar Sinha as appears from Ext.-M/12. This witness is
not aware of the fact which happened on 29.09.2000. This
is only a witness in respect of enquiry. About the fairness
of enquiry earlier order has been passed.
Other witness is B. Hansdha who was branch manager
of Indian Bank, Gaya branch at the relevant times of the
occurance. He has stated that Jitendra Kumar Sinha had
tempered some cheque. In respect of the amount of account
holder Sri S.N. Prasad and he has staed that S.N. Prasad
had arrived for withdrawal of cheque of Rs.5000/- and
counter clerk stated that there is no such amount in his
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4173
account because he had withdrawn all the amount which
was explained to him. S.N. Prasad learnt that amount of Rs.
95000/was credited in the account of Jitendra Kumar Sinha.
He has also stated that on 27.12.2000 S.N. Prasad had given
a written application Ext.-M/5. From Ext.-M/5 it appears
that S.N. Prasad had given an application dated-27.12.2000
to branch manager has stated that all the deposit and
withdrawal been made within full Knowledge and he
confirmed the same. He had further stated that he had
authentication forgotten alteration of the cheque of
Rs.95,000.
When on 27.12.2000 S.N. Prasad had given application
that he confirms the transaction made from his account
and he forgot to authenticate the alteration in the cheque
or Rs. 95,000 so there is no leg to stand the charge No.-1
against Jitendra Kumar Sinha.
33. Next witness is Jagbandhu Baidya he had gone to
inquire the matter. He had found interpolation over the
cheque of Rs. 95,000 but when the account holder
submitted that it was made by him and there is no illegality
of the account, then it cannot be said that it was done by
the Jitendra Kumar Sinha. Cheque was passed by Ram
Lakhan Ram and it was deposited in the account of Jitendra
Kumar Sinha at the instance of branch manager B.Hansdha.
Moreover Surya Narayan Prasad account holder has
stated that he has given a cheque of Rs. 95,000 to his
nephew Shri Jitendra Kumar Sinha deposit is in the account
of Jitendra Kumar Sinha. He has seen the cheque and has
stated that it was issued by him. It has denied that he had
orally made complain to branch manager, officer and passing
officer.There is no need to evidence of Jitendra Kumar
Sinha. But witness Ranjan Kumar Roy has stated in
examination-in-chief on 17.01.2014 the Surya Narayan
Prasad has stated in his evidence cheque was written by
him and there is no irregularity in the cheque. Further he
has stated that it is responsibility of the passing officer to
pass the cheque and Asst. Branch Manager Ram Lakhan
Ram Passed the cheque and branch Manager Bhua
Hansdha passed to credit in O.D. account and cheque of
Rs. 95,000/- was bearer and that was transferred in O.D
account. There is no such denial it was not passed by Ram
Lakhan Ram so charge no.(1) " On 29.09.2000 you had altered
the cheque No. 878101 dated 29.09.2000 for Rs. 5000 to 95,000
and debited the same to S.B. A/C No. 8685 of Shri Narayan
Prasad and credited the proceeds to your own O.D Account
has no led to stand because cheque was passed by the Ram
Lakhan Ram and account holder had no complain against
Jitendra Kumar Sinha so matter of interpolation have not
been proved and established by the management. No
evidence have produced that Sri Jitendra Kumar Sinha had
interpolated or altered that amount either in words or in
figure when Shri S.N. Prasad has stated that was done by
him. So management could not succeed to prove and
established the charge No.-1 against Jitendra Kumar Sinha.
Now the matter will be discussed in respect of charge
No.-2 "On 07.11.2000 you had altered the previous ledger
balance Rs. 2200/- as 22200 and debit a Cheque (No.- 878104
dt- 07.11.2000) for Rs. 20,000/- fvg. Mr Brijesh Kumar to the
SB A/c No. 8685 of Shri Surya Narayan Prasad amd cheque
was paid in cash"
It is partinent to note that in both the charges there is
the same S.B Account No.-8685 and account holder is S.N.
Prasad is Uncle of delinquent Jitendra Kumar Sinha.
There is charge of altering the previous ledger balance
of Rs. 2200 as Rs. 22,2000 and debiting a cheque No.- 878104
dt.-07.11.2000 for Rs. 20,000 favouring Sri Brajesh Kumar
and the cheque was paid in cash. In this respect evidence
and document of both the management and the workman
will be dealt to arrive at the final conclusion in respect of
the charges. Therefore the matter will be discussed about
the punishment given to Mr. Jitendra Kumar Sinha.
In this respect management witness is M.A Khan, who
was enquiry officer. So his evidence is not relevant for the
finding into the charge No.-2. Next witness is Bhua
Hansdha, who has stated that Jitendra Kumar Sinha was
clerk-cum-cashier at the relevant time. At the time of
occurance he was doing work of leadger cleark and who
used to enter into ledger cash credit and debit. In respect
of charge he has stated that ledger was checked and
interpolation was found. In the entry dt.-23.10.2000 letter
two (2) was interpolated before the amount Rs. 2200 and
payment was made of the amount Rs.20,000 while in the
account there was only amount Rs.2200. In cross-
examination he has stated that customer handover the
cheque to the clerk at cheque cash counter and token is
issued thereafter amount is debited by passing officer and
cheque is sent to passing officer and when cheque is passed
then it is sent to the counter for payment. further he has
states that he is branch manager he had detected fraud. He
himself had not seen committing the fraud. There is no
cross- examination on point of withdrawal of Rs. 20,000
Further there is also evidence of this witness that at the
time of occurance Jitendra Kumar Sinha was ledger clerk
and the balance in ledger entry dt.- 23.10.2000 was of
Rs. 2200 .
34. Next witness on behalf of the management is
Jagbandhu Baidya he was Senior Manager in Circle Office,
Patna from the year-2000. He went to inquire into the matter.
He has stated in para-4 that occurance happend on
07.11.2000. Cheque of Rs. 20,000 was debited by making
alternation in ledger balance amount of Rs. 2200 and in the
left side '2' was written it was made Rs. 22,200 and cheque
was passed, cash payment was made. In cross-examination
he has stated that one day he has gone to inquire into the
matter. There is no cross-examination on the point of
withdrawal of Rs. 20,000.
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THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
35. Next witness on behalf of the management Ram
Lakhan Ram has stated that at the relevant time he was
working as passing officer. He has stated in para-4 that
cheque of Rs. 20,000/- was sent for withdrawal of Rs. 20,200
at that time balance amount in the account of S.N. Prasad
was Rs, 22,200/- and cheque was passed by the witness.
Later on at the time of balance of ledger that facts was
detected and that was adjusted by further deposit. He
informed the Branch Manager orally and in writing. In cross-
examination in para-7 he has stated that he himself had not
seen adding letter '2' before amount 2200. From the above
evidence it appears that the balance amount of Rs. 2200
was made the amount of Rs. 22,200 and Rs. 20,000 was paid
in cash.
From documents Ext-M/1 it appears that branch manager
informed the matter to the Asst. General Manager vide
letter dated- 15.12.2000. He has informed that on 23.10.2000
in the same S.B. Account he (Jitendra Kumar Sinha) altered
the balance from Rs. 2200 to Rs. 22,200 and allowed a debit
of cheque No.- 878104 dated-07.11.2000 to Rs. 20,000/- on
13.12.2000 he had deposited cash for 25,000/- to clear the
overdraft in the S.B A/C. In this case there is no alteration
in cheque 878104 dt-07.11.2000 to S.B. Account No.-8685
of S.N. Prasad. Vide Ext.-M/5 S.N. Prasad has stated that
on 07.11.2000 he has issued a cheque of cheque no.- 878104
of the amount Rs. 20000. From Ext.-M/6 it appears that
Assistant Manager has sent letter to Jitendra Kumar Sinha
about the irregularities/lapse in which it has been stated in
para-3 that on 13.12.2000, you (Jintendra Kumar Sinha) had
deposited Rs. 25000/- in cash to wife off the extra debit and
the same had been admitted by you to the investigating
official. Ext.-M/7 is the explanation given by Jitendra Kumar
Sinha to Asst. General Manager, in which it has been stated
that there was equal marked and due to this deceptively
the balance seemed to be 22,200 in stead of Rs. 2200/- and
after a few days i.e. on 3.12.2000 the account holder himself
informed about the excess withdrawal and accordingly he
suggested him to deposit the amount so excessively
withdrawn. Thereafter on the same date-13.12.2000 he sent
a sum of Rs. 25000 in cash the same was deposited by
Jitendra Kumar Sinha.
The evidence of this points are the witness and
documents on behalf of the management. Witness No.-1
on behalf of the workman is Surya Narayan Prasad account
holder of S.B. A/C No. -8685. He has stated in para-4 that
bank informed about the overdraft in his account and this
witness had deposited amount alongwith interest. In cross-
examination he has stated that Jitendra Kumar Sinha is his
nephew. This witness is cannot be witness of interpolation
in the ledger.
36. Next witness is Jitendra Kumar Sinha (delinquent
workman) himself. He has stated that he was joined he
service in Indian Bank in December, 1994 at Sihuli Branch
on the post of clerk-cum-cashier. In September, 1997 he
was posted at Gaya Branch and was worked as Secretary
at Gaya Branch of Indian Bank Employees Association. He
denied that 07.11.2000 the amount in the account of his
uncle was 2200 and by adding the letter '2' he made the
amount Rs. 22,200. In cross-examination, he has stated that
he does not know that representative of the union had
agreed before Asst. Labour Commissioner to give
punishment except removal from service because he was
not present before Asst. Labour Commissioner. There is
no evidence for consideration in respect that charge No.-2.
37. Next witness on behalf of the workman Ranjan Kumar
Roy who was clerk-cum-cashier Indian Bank of Patna, main
branch and general secretary of Indian Bank Employees
Association, Bihar/Jharkhand. He has stated that enquiry
was not fair. He has stated that in respect of proposed
punihsment, he has made complaint before Asst. Labour
Commissioner. Further he has stated that at the relevant
time of occurance there was provosion of economical
punishment like stoppage of increment or dismissal from
service and before Asst. Labour Commissioner
representative of the management indicated that
management will consider for not dismissal from service.
Settlement dt-10.04.2002 has not retrospective effect.
In further examination in Chief Ranjan Kumar Roy has
stated that he was defence representative during domestic
enquiry. Further he has stated in para-3 that seldom by
mistake any amount is debited in any account then amount
of overdraft is recovered from account holder. Further he
has stated that in the account of Surya Narayan Prasad
amount of Rs. 20,000 was debited and there was overdraft
of Rs. 18,000. Surya Narayan Prasad deposited amount Rs.
25,000 to finish over draft. In cross-examination this witness
has stated that he does not remember when Surya Narayan
Prasad had deposited of amount of Rs. 25,000.
This is not a case of only over draft. There was
interpolation in the ledger and amount of Rs. 2200 was
made to Rs. 22,200. There is no satisfactory explanation or
evidence in this regard. Though amount is Rs. 25,000 was
deposited and over draft was compensanated. This is the
case of tempering in the ledger and there is no satisfactory
evidence how the previous balance was changed in the
ledger and amount of Rs. 2200 was changed of Rs. 22,200.
So, charge No.-2 is proved.
When the charge has been proved that matter comes to
the punishment. Decision cited on behalf of the workman
is the case of Cooper Engineering Limited Vs. P.P. Mundhe
equivalent citations is 1975 AIR 1900, 1976 SCR (1) 361 in
this case it has been hold that labour Court should give
opportunity to adduce evidence a fresh and this
opportunities has been given to the workman. So this is
not applicable in the present case. Similar view has been
expressed in 2014-1-LLJ-555 (Kant).
In memorandum of settlement dated-10.04.2002 it has
been stated that the provision of the said Awards, the first
¹Hkkx IIó[k.M 3(ii)º
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4175
Bipartite Settlement dt-19.10.1966 and / or other subsequent
settlement dt-11.11.1966, 14.12.1966, 23.12.1966, 31.10.1979,
28.11.1981, 08.09.1983, 17.09.1984 and 14.02.1995 hereafter
collectively referred to as the said settlement shall stand
superseded and substituted by and in the manner detailed
here under.
Since all previous Bipartite Settlement has been
superseded and substituted of this memorandum of
settlement dt-10.04.2002 and Jitendra Kumar Sinha has
found guilty of one of the charges for altering the entry in
the ledger which was detected later on. So action of the
management of India Bank in imposing punishment,
compulsory retirement from services of Shri Jitendra Kumar
Sinha was legal and justified and Jitendra Kumar Sinha is
not entitled to get any relief.
This is my award accordingly.
Dictated & Corrected by me.
BIPIN DUTTA PATHAK, Presiding Officer
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New Delhi, the 15th October, 2015
S.O. 2006.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 106/12) 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 India and their workmen,
received by the Central Government on 15/10/2015.
[No. L-12011/73/2011-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIALTRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/106/12
General Secretary,
Pratadit Karamchari Kalyan Manch,
F-1, Tripti Vihar,
Opp. Engineering College,
Ujjain (MP)
...Workman/Union
Versus
Branch Manager,
Bank of India,
Kanchan Bag Branch,
Indore
...Management
AWARD
Passed on this 14th day of August, 2015
1. As per letter dated 27-9-12 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/
73/2011-IR (B-II). The dispute under reference relates to:
"Whether the demand of the Union for payment of
difference of wages as paid to permanent employees
for the period from 15-3-89 to 20-1-03 as per biparite
settlement to Shri Ashok Sunkare is just and proper?
What relief the workman concerned is entitled to?"
2. After receiving reference, notices were issued to the
parties. Workman submitted statement of claim through
General Secretary,Daily Wage Bank Employee Union Ujjain.
The case of 1st party is that he was working with 2nd party
Bank as daily wage peon from 15-3.89. He was working for
8 hours a day. He completed more than 240 days continuous
service during each of the year. He was eligible for regular
appointment. Workman claimed wages s per day scale of
regular employees and bonois. Then management
terminated his service without notice, no retrenchment
compensation was paid to him. Termination of his service
is in violation of Section 25-F of ID Act. workman raised
dispute R/160/03 regarding termination of his service. In
present reference, he is claiming difference of wages
between wages paid to him and wages under 4th to 9th
settlement. He worked under different Branch Managers.
2nd party has not followed the settlements. It is punishable
under Section 29 of ID Act. Workman is claiming difference
of wages with interest.
3. 2nd party filed Written Statement on 16-1-2015
opposing claim of the workman. 2nd party submits that
present dispute is raised for payment of difference of wages
from 1989 to 20-1-02. As per Bipartite Settlement, the terms
of reference is illegal. Appropriate Government should not
have decided the disputed facts relating to engagement of
workman by management. The Bipartite Settlement is
applicable to the casual labours. The wages are decided on
the basis of nature of work allotted and working hours. If
casual labourrs are required to work normal working hours,
he is paid wages declared by Ministry of Labour time to
time. 1st party is not workman under provisions of ID Act.
The appointments in Bank are covered by statutory rules
regulations and procedure prescribed. 1st party workman
is in habit of indulging his necessarily delegations raising
one after another disputes without any reasons. R/163/03
4176
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
raised by workman for regular employment. Said dispute is
pending. Application 3/06 is filed under Section 33-A of ID
Act alleging cheat in service conditions. Workman is not
member of Union. Union has no locus to raise the dispute.
Employer employee relationship does not exist. There is
no industrial dispute between parties. That Ist party
workman was not employee on regular basis. He was not
appointed against sanctioned post. On such ground, 2nd
party submits that reference be answered in its favour.
4. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
‘‘(i) Whether the demand of the
In Negative
Union for payment of
difference of wages as paid to
permanent employees for the
period from 15-3-89 to 20-1-03
as per bipartite settlement to
Shri Ashok Sunkare is just and
proper?
(ii)
If not, what relief the
Workman is not
workman is entitled to?’’
entitled to any
relief.
REASONS
5. Workman is claiming difference of wages as per
bipartite settlement. In support of his claim, workman filed
affidavit of his evidence. Workman remained absent for his
cross-examination. Union Representative Shri R. Nagwanshi
submitted in writing on 27-8-2014 that Ist party workman
not giving oral evidence. Management also did not adduce
any evidence in the matter. As workman remained absent
for his cross-examination, his evidence on affidavit cannot
be considered by valid evidence.
6. With respect to the claim, learned counsel for 2nd
party Shri Shashi relies on ratio held in case of:
"Indain Drugs and Pharmaceuticals Ltd. Versus their
workman reported in 2007(1) SCC 408. Their Lordship
held right to livelihood or work cannot be stretched
so far as to mean that everyone must be given a job
Article 42 has been deliberately kept by the Founding
Fathers in the directive principles chapter and hence
made unenforceable. Dealing with the rights available
to the employees distinct from those available to
permanent employees held temporary employees who
include casual, daily rated adhoc employees etc have
no right to the post nor to be continued in service
nor to get absorption far less of being regularised
and getting regular pay nor can a direction be passed
that a temporary employee be continued till the age
of superannuation since there is no age of
superannuation as such employees have no right to
the post at all.
7. As workman has not adduced valid evidence and
considering ratio in above case. I record my finding in
Point No 1 in Negative.
8. In the result, award is passed as under:—
(1) The demand is the Union for payment of difference
of wages as paid to permanent employees for the period
from 15-3-89 to 20-1-03 as per bipartite settlement to Shri
Ashok Sunkare is not justified.
(2) Workman is not entitled to any relief.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 15 vDrwcj] 2015
dkñvkñ 2007—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc uS'kuy c®d
ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k eas fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;]
dksydkrk ds iapkV ¼lanHkZ la- 15@2012½ dks izdkf'kr djrh gS]] tks
dsUnzh; ljdkj dks 15-10-2015 dks izkIr gqvk FkkA
[lañ ,y&12012@112@2011&vkbZ vkj ¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 15th October, 2015
S.O. 2007.—In pursuance of Section 17 of Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 15/2012) of the
Cent.Govt.Indus. Tribunal - cum-Labour Court, Kolkata 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 15/10/2015.
[No. L-12012/112/2011-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL AT KOLKATA
Reference No. 15 of 2012
Parties: Employers in relation to the management of
Punjab National Bank, West Benal Zonal Office
A N D
Their workmen
Present:
Justice DiPAK SAHA RAY,
Presiding Officer
Apperance:
On behalf of the
: None
Management
On behalf of the
:
Mr. Ranjay De, Ld. Counsel
Workman
State
:
West Bengal.
Industry : Banking
Dated: 22nd September, 2015.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4177
AWARD
By Order No.L-12012/112/2011-IR(B-II) dated 26.09.2012
the Government of India, Ministry of Labour in exercise of
its powers under Section 10(1)(d) and sub-section (2A) of
the industrial Disputes Act, 1947 referred the following
disputes to this Tribunal for adjudication:
"Whether the action of the management of Punjab
National Bank imposing the punishment of compulsory
retirement with superannuation benefits upon Shri Asesh
Kumar Misra vide Order dated 06-10-2010 is legal and
justified? Who relief the workman is entitled?
2. It appears from the record that on 06.05.2014 when
the matter was taken up last, Ld. Counsel for the workman
appeared and submitted that on the basis of an application
filed by the concerned workman under Section 2A(2) of
the Industrial Disputes Act, 1947, Case No. CGIT - 23 of
2012 was initiated. Subsequently on the selfsame issue
instant order of reference has been recieved by this Tribunal
and accordingly this Reference Case No. 15 of 2012 was
initiated. Reliefs claimed in both the cases are also same.
He accordingly did not press the instant reference.
3. Considering the above submission of the Ld. Counsel
for the workman instant reference was rejected being not
pressed.
4. An Award is passed accordingly.
JUSTICE DIPAK SAHA RAY, Presiding Officer
Dated, Kolkata,
The 22nd September, 2015.
ubZ fnYyh] 15 vDrwcj] 2015
dkñvkñ 2008-—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj c®d 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; tcyiqj ds iapkV ¼lanHkZ la- 158@01½ dks izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 15@10@2015 dks izkIr gqvk FkkA
[lañ ,y&12011@145@2001&vkbZ vkj¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 15th October, 2015
S.O. 2008.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby published the Award (Ref. No. 158/01) 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 India and their workmen,
received by the Central Government on 15/10/2015.
[No. L-12011/145/2001-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/158/01
General Secretary,
Dainik Vetan Bhogi Bank Karmachari Sangathan,
Hardev Niwas, 9,
Sanver road,
Ujjain.
Workman/Union
Versus
General Manger,
Bank of India,
Head Office, Express Towers,
Nariman Point
Mumbai
Management
AWARD
Passed on this 17th day of August, 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/
145/2001-IR(B-II). The dispute under reference relates to:
"Whether the action of the management of Bank of
India, Nariman Point, Mumbai in terminating the
services of Shri Vali Mohammed, Badli Sepoy from
March 1997 instead of regularizing him is legal and
justified? If not what relief the concerned workman
is entitled to?"
2. After receiving reference, notices were issued to the
parties. Workman filed statement of claim at Page 3/2 to 3/
7. Case of Ist party is that he was working with 2nd party as
permanent peon from 14-10-89. He was working with
devotion. He was doing work of distribution of letters,
clearing work, stitching bundles etc. he was paid bonus
under Section 8 of Payment of Bonus Act for year, 91 to
1996-97. During 1995-96, he was given bonus for 240 days
in 1996-97 for more than 240 days. He had worked more
than 240 days. His services were terminated without notice
in March, 97. He was working continuously in the Bank for
8 years under different Branch Manager.
3. Workman was granted loan of Rs. 95,000/- under Prime
Minister Employment Scheme. By letter dated 5-5-2000 by
Union, it was informed that workman would work as
permanent employee. The loan was taken for support of
his family. It is reiterated that the services of workman are
terminated without notice, retrenchment compensation was
not paid to him despite his working more than 240 days
during each calendar year. On such ground, workman prays
for his reinstatement with backwages.
4178
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
4. 2nd party filed Written Statement at Page 4/1 to 4/3
opposing claim of the workman. 2nd party denies that
workman is member of the Union. Ist party directed to
produce membership record and registration certificate 2nd
party submits that some persons were engaged on daily
wages in leave vacancy of regular staff as per exigency. As
per Bipartite Settlement dated 19-10-66, employment of such
person starts from beginning of day and ends at evening
of the same day. Workman is pursuing independent
vocation. Workman was recommended loan of Rs. 95,000
on 9-1-97. After sanction of the loan, the workman
purchased Tempo MP-33T-816. Workman had contributed
Rs. 27,000/- He was granted Govt. subsidy of Rs. 7500/-.
Workman repaid loan amount within 3 years i.e. 22nd May
2000. Workman had no right of regularisation in service as
workman was engaged intermittently. Relief claimed by
workman cannot be granted.
5. Ist party workman filed rejoinder at Page 14/1 to 14/3
reiterating its contentions in statement of claim.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the
In Affirmative
management of Bank of India,
Nariman Point, Mumbai in
terminating the services of Shri
Vali Mohammed, Badli Sepoy
from March 1997 instead of
regularizing him is legal and
justified?
(ii)
If not, what relief the
Workman is not
workman is entitled to?"
entitled to any
relief.
REASONS
7. Workman is challenging termination of his service in
violation of Section 25-F of ID Act. In support of his claim,
workman filed affidavit of his evidence. Workman says he
was working more than 240 days with 2nd party each of the
year since 14-10-89. He was paid bonus from 1990-91 to
1996-97. He was terminated without notice. In his cross-
examination. workman says Branch manager Shri R.L.
Gurmani appointed him in 1989. The post was not advertised,
his name was not sponsored through Employment
Exchange, he was not interviewed. Appointment letter was
not given to him. He was engaged on daily wages. He was
paid wages at end of the month. He was paid wages for his
working days. Works of pen was taken from him. 4-5 posts
of peon were sanctioned in the branch. He was engaged
and discontinued by the Bank when services were required
in the year 1989 for 89 days. His attendance was maintained
in the diary maintained by the bank. Said diary was kept
with Shri H.S. Thakur. His signature was not obtained in
the diary. He was unable to tell for how many days each of
the year he had worked. He denies that he was working in
the bank till 1994. Workman has admitted signature on
Exhibit M-1. He was granted loan as per document Exhibit
M-2. Loan of Rs. One Lakh was granted to him as per
Exhibit M-3. Loan amount is repaid by him. Workman in his
pleading and evidence says his services are terminated in
march 1997. In document Exhibit M-1, affidavit dated 28-8-
96 workman has shown himself unemployed. It is
inconsistent with his evidence. Affidavit Exhibit M-1 is
considered, workman was employed on 23-8-96. It is
impossible to believe that is services were terminated in
March 1997. Exhibit M-2 shows loan of Rs. One Lakh was
requested by workman was recommended by the State
Bank Shajapur. As per Document Exhibit M-3 loan amount
was repaid by workman. Account was closed on 5-5-2001.
Evidence of workman is inconsistent with the documentary
evidence. Therefore his evidence cannot be relied about
completing 240 days service preceeding termination of his
service in March 1997.
8. Management's witness Shri Gurnani filed affidavit of
his evidence supporting contentions of 2nd party about
appointment of candidates following recruitment process.
Ist party workman Wali Mohd. was never appointed by
Competent Authority. Workman was never on roll of the
Bank. Workman not worked for 240 days during preceding
year. In his cross-examination, management's witness says
that Exhibit M-5 have been followed while appointing
workman. He claims ignorance. In his further cross
examination, management's witness says he was working
in Sujalpur branch during 1989 to 1990. He did not discuss
with Branch Manager working during 1989 to 1990. He
claims ignorance about payment of bouus to the workman.
9. The documents about payment of bonus are not
proved. The documents produced by workman Exhibit W-
1, 2 reply in conciliation proceedings. Management had
denied 240 days working by workman. The document
Exhibit W-3 to W-7 are orders of appointment given to Shri
Ajay Kumar Jain, Yeshwant Chandel, Om Prakash Parmar
& Rishipal Marmatt issued on 24-6-05 as per the settlement.
As evidence of workman is not cogent abaout completing
240 days continuous service, the promotion of workman
cannot be said illegal retrenchment. Workman is not
covered under Section 25 (B) of ID Act. Therefore claim of
workman under Section 25-H cannot be accepted. For above
reasons, I record my finding in Point No. 1 in Affirmative.
10. In the result, award is passed as under:
(1) The action of the management of Bank of India,
Nariman Point, Mumbai in terminating the services of Shri
Vali Mohammed, Badli Sepoy from March 1997 instead of
regularizing him is proper and legal.
(2) Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4179
ubZ fnYyh] 15 vDrwcj] 2015
dkñvkñ 2009— vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj dksydrk iru
U;kl 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
vfèdj.k@Je U;k;ky;] dksydrk ds iapkV ¼lanHkZ la[;k 17@2006½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 15@10@2015 dks izkIr
gqvk FkkA
[lañ ,y& 32011@14@2005&vkbZvkj ¼ch& II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 15th October, 2015
S.O. 2009.— In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 17/2006) 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 15/10/2015.
[No. L-32011/14/2005-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL AT KOLKATA
Reference No. 17 of 2006
Parties; Employers in relation to the management of
Kolkata Port Trust
AND
Their workmen.
Present:
Justice Dipak Saha Ray,
.......Presiding Officer
Appearance:
On behalf of the
:
Mr. M.K. Das, Inudstrial
Relations Officer with
Management
Mr. G. Mukhopadhyay, Industrial
Relations Officer.
On behalf of the
:
Mr. N. Sinha, Joint Secretary of
Workmen
the Union.
State: West Bengal
Industry: Port & Dock.
Dated: 24th Septermber, 2015.
AWARD
By order No. L-32011/14/2005-IR(B-II) dated 17.05.2006
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, Kolkata in imposing on punishment of
reduction of basic pay of Shri Subrata Chakraborty,
LDC to Rs. 2650/- P.M. form the existing pay of Rs.
2720/- P.M. in the present pay scale of Rs. 2160-70-
2720-75-3845 w.e.f. 01.12.1999 with cumulative effect
and as a result of the same not promoting him to the
post of UDC w.e.f. 07.04.1998 while promoting other
LDCs junior to him as legal and justified? If not, to
what relief Shri Subrata Chakraborty is entitled for?"
2. The case of the union, in short, is as follows:
Shri Subrata Chakraborty the concerned workman who
was a Lower Division Clerk working in the Health Section
of the Kolkata Port Trust, was entrusted to look after the
establishment matters including issuance of
superannuation letters/ notices well in advance to all the
Safai Mazdoors belonging to Dock Conservancy (Part IV).
Every year a circular was issued by the Health Officer
working as sectional head mentioning the names and
particulars of the staff who were due to retire during the
year and the concerned clerks including Shri Chakraborty
used to do all retirement work including issuance of
superannuation letter/notice in time after folloiwing the
said circular issued by the Health Officer. But the said i.e.,
Circular No. HO/Est./Cir dated 15.07.1993 issued by the
Health Officer. But the said i.e., Circular No. HO/Est./Cir.
dated 15.07.1993 issued by the Health Officer was in respect
of the staff working under him who were due to retire duing
1993 and 1994; but in that circular names of Shri Kartala
Balmiki and Shri Choual Singh Balimiki who were due to
retire on 01.05.1994 and 01.06.1994 respectively did not
find any place. As a result, Shri Chakraborty did not issue
superannuation letter to Shri Kartala Balmiki as his name
was not incorporated in the said circular. For Non-issuance
of the said superannuation notice, Shri Kartala Balmiki got
opportunity to work for 10 months more beyond his actual
date of retirement. For the said reason show-cause notice
was issue upon the concerned workman namely Shri
Chakraborty on 27.02.1995 by the Medical Officer (Health)
directing him to explain the reason behind non-issurance
of retirement notice to Shri Kartala Balmiki. Shri Chakraborty
submitted his reply on 17.04.1995 stating that he omitted to
issue the said superannuation letter as the name of Shri
Kartala Balmiki was not mentioned in the concerned circular
No. HO/Est./Cir dated 15.07.1993. Subsequently on the
basis of the report of the Administrative Officer, Charge-
sheet No. CMO/EN2/3/95-96 dated 05.09.1995 was issued
by the Chief Medical Officer against Shri Chakraborty
wherein 3 charges were levelled against him. Subsequently
enquiry was held by the Enquiry Officer and findings of
the said enquiry was submitted to the Disciplinary Authority
who by issuing order dated 01.12.1998 imposed punishment
by way of reduction of pay as Rs. 2650/- per month from
his existing pay of 2720/- per month and also by stopping
one increment. The concerned workman preferred appeal
4180
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
before the Appellate Authority, but lost the appeal. He,
thereafter, prayed for review of the punishment imposed
upon him before the Chairman, Kolkara Port Trust; but the
said prayer was also rejected. Ultimately, industrial dispute
was raised by the workman. Hence this reference.
3. The management has opposed the case of the
workman by filling written statement contending inter-alia
that all the documents required to prepare superannuation
letter of Shri Kartala Balmiki viz. service sheets, leave
account sheets, G-53 (containing age) were with Shri
Subrata Chakraborty. The said G-53 was given to him on
01.06.1992 i.e., long before the date of superannuation of
Shri Kartala Balimki. So Shri Chakrabroty was well equipped
to find out the date of retirement of Shri Balmiki. In spite of
that no superannuation letter was issued to Shri Balmiki.
As a result Shri Balmiki was allowed to work for 10 months
even after his retirement. Accordingly 3 charges were
levelled against the concerned workman. He also submitted
his reply denying the said charges. Thereafter enquiry was
held by the Enquiry Officer appointed by the Disciplinary
Authority. Shri Chakraborty participated in the enquiry. He
was given opportunity to defend his case. After completion
of the enquiry, Enquiry Officer submitted his report finding
the workman guilty of the charges. A copy of that report
was also handed-over to him. He filed his representation
which was considered and the concerned workman was
punished by way of reduction of his pay to Rs. 2650/- per
month from his existing pay of Rs. 2720/- per month and
also by stopping one increment. Against that order of
punishment, the concerned workman preferred appeal
which he lost. He also prayed for review of the same. But
he lost the same too. It is contended that the enquiry was
held in accordance with the provisions of Kolkata Port
trust Employees' (Classification, Control and Appeal)
Regulations and that all opportunities as well as natural
justice were extended to the concerned workman at every
state of the domestic enquiry. Accordingly the management
has prayed for rejection of the claim of the workman.
4. The union has examined two witnesses including the
concerned workman and proved documents marked Exts.
W-01 to W-12 in order to prove its case.
5. In management has also examined one witness and
proved documents marked Exts. M-01 to M-19 in support
of its case.
6. In this case, domestic enquiry was held for the alleged
act of dereliction of duties of the workman and in that
enquiry charge levelled against the workman was proved
and accordingly the Disciplinary Authority imposed
punishment by way of reduction of his existing pay from
from Rs. 2720/- per month to Rs. 2650/- per month with
effect from 01.2.1998 with cumulative effect and he would
be eligible to earn his annual grade increment from
01.12.1999.
7. It is alleged by the union that the domestic enquiry
was not proper and valid as natural justice was not extended
to the workman during that enquiry and that the workman
was denied the opportunity to defend his case.
8. Accordingly, in view of the contention and counter
contention of the parties, the Tribunal is required to ascertain
whether or not the domestic enquiry held against the
workman was valid and proper.
9. Now from the order dated 03.03.2015 it appear that
after hearing both sides and after considering the evidence
on record as well as the documents placed before the
Enquiry Officer, the Tribunal has come to a conclusion that
the report of the Enquiry Officer is legal, valid and proper
as the same has been prepared after observing all the rules
and formalities of the domestic enquiry.
10.
From the said order dated 03.03.2015 it further
appears that in the domestic enquiry the Enquiry Officer
considered the contention of the union in the matter of
omission of not issuing the superannuation letter, was due
to non-inclusion of the name of Shri Kartala Balmiki with
reference to the evidence on record and came to the
decision that the workman was guilty.
11. Since it has been decided that the domestic enquiry
held against the workman is valid and since the said order
has not been challenged by any of the parties, the union,
at this stage, has no right to agitate that the charge framed
against the workman is false becuase such omission
occurred due to non-inclusion of the name of Shri Kartala
Balmiki in the said circular dated 15.07.1993. Accordingly, it
appears that the domestic enquiry was valid and the
findings of the Enquiry Officer were not perverse.
12. So no question of victimization or unfair labour
practice or management having bias against the workman
can arise once it is held that the findings of misconduct
alleged against the workman were properly arrived at and
that the domestic enquiry was in no way vitiated.
13. Having regard to the facts and circumstances and
the discussion made above it appears that due to the
dereliction of duties of the concerned workman, one Shri
Kartala Balmiki, the employee of the management, worked
ten months even after his superannuation for which the
management surely sustained heavy loss. For such
dereliction of duties the basic pay of the concerned
workman was reduced to Rs. 2650/- per month from his
existing pay of Rs. 2720/- (i.e. one annual increment was
deducted) per month with effect from 01.12.1998 with
cumulative effect and he would be eligible to earn his annual
grade increment with effect from 01.12.1999.
14. Considering the gravity of the misconduct with
reference to the quantum of punishment it appears that the
punishment as imposed is not disproportionate to the
gravity of misconduct and that such punishment is in
commensurate with the gravity of the act of misconduct.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4181
15. In view of the above facts and circumstances, the
nature and gravity of misconduct and the quantum of
punishment imposed by the employer, it appears that there
is no reason to interfere with the decision of the
management/Kolkata Port Trust in imposing the said
punishment to the concerned workman.
16. Accordingly the instant reference is answered in the
affirmative and the concerned workman is not entitled to
get any relief whatsoever.
The 24th September, 2015. Dated, Kolkata,
JUSTICE DIPAK SAHA RAY, Presiding Officer
ubZ fnYyh] 15 vDrwcj] 2015
dkñvkñ 2010—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj dksydkrk iru U;kl
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;] dksydkrk ds iapkV ¼lanHkZ lañ 33@2007½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 15-10-2015 dks izkIr gqvk FkkA
[lañ ,y&32011@11@2007&vkbZvkj¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 15th October, 2015
S.O. 2010.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 33/2007) of the Central
Government Industrial Tribunal-Cum-Labour Court, Kolkata
now 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 15.10. 2015.
[No. L-32011/11/2007-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Referemce No. 33 of 2007
Parties: Employers in relation to the management of
Kolkata Port Trust
AND
Their workmen.
Present:
Justice DIPAK SAHA RAY,
Presiding Officer
Appearance
:
Mr. G. Mukhopadhyay, Industrial
On behalf of the
Relations Officer.
Management
On behlaf of the
:
Mr. K.K. Banerjee, Assistant
Workmen
General Secretary of the Union.
State: West Bengal.
Industry: Port & Dock.
Dated: 28th August, 2015.
AWARD
By order No. L-32011/11/2007-IR(B-II) dated 29.11.2007
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 Port Trust management
in realizing the licence fee (i.e. house rent) w.e.f.
01.07.1996 for the Class-IV quarters under
occupation of the employees at different Mazdoor
lines of Kolkata Port Trust and alleged sub-
standard by the occupants, at the Rates which are
applicable for standard quarters (vide Circular No.
Lab/Housing Policy/P-III/195 dated 07.03.2005)
is justified and legal? If not , to what relief the
workmen concerned are entitled for?"
2. The case of the union is, in a nutshell, as follows:
The pay scale of the Class—IV employees of the Port
Trust was Rs. 3700-60 -4180-75-5830. As per the Central
Govt. specification the Class-IV employees having basic
pay not less that Rs. 3000/- per month are entitled to get
quarters having 56 to 65 square meters of living area. But
the employees of the Port Trust are allotted quarters each
of which was 49.24 square meters of living area. It is alleged
that the quarters of the Kolkata Port Trust are in wretched
and unhygienic condition and unfit for human habitation.
The same are not maintained properly. In spite of that the
Kolkata Port Trust is deducting House Rent from the pay
of the employees @ Rs. 5/=, Rs. 10/= Rs.15/= and Rs. 20/=
on the basis of the conditions of the quarters. Not only
that the Kolkata Port Trust management by issuing a
Circular No. Lab/Housing Policy/P-III/195 dated 07.03.2005
started realizing licence fee @ 10% for occupation of Class-
IV type quarters. It is the contention of the union that the
employees who are occupying the said sub-standard Class-
IV type quarters are actually paying 30% of their basic pay
in addition to the exorbitant licence fees as imposed by the
said circular dated 07.03.2005. It is alleged that such action
of the management in realizing the licence fee for Class-IV
type quarters is unjuest and illegal, Accordingly the union
raised industrial dispute. Hence this reference.
3. Management has contested this case by filing written
statement contending inter alia that on the basis of the
memorandum of settlement arrived on 06-12-1994 between
All India Federations of unions of the Major Ports and
Dock Labour Boards and the management of Major Port
Trust and Dock Labour Boards, it was decided that
‘‘Recovery of rent for the Ports/D.L.Bs. quarters will be
made on living area basis under Government of India
4182
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
instruction below F.R. 45(A)’’ and accordingly the
management started recovering the rent for occupation of
Port quarters as per the provisions of Fundamental Rules
45(A). Subsequently on the basis of the settlement dated
02-08-2000 it was agreed that recovery of rent for Port
Quarters would be made on living area basis under Govt.
of India orders as revised from time to time under FR 45(A).
Ultimately rate of rent under FR 45(A) was revised by the
Govt. of India and a circular bearing No. Housing Policy/
P-III/195 dated 07.03.2005 (Ext. M-11) was issued. It is
conteded that the standard Class-IV quarters consist of
two rooms, one kitchen, verandah/courtyard, latrine and
bath room and such standard quarters are allotted to the
willing employees on the basis of their individual application
and that it is not the condition of service that the employees
are to stay in Port Trust accommodation. It is further alleged
that the present union viz. National Union of Waterfront
workers is affilated to Indian National Port and Dock
Workers Federation (INTUC), and since Indian National
Port and Dock Workers Federation (INTUC) is one the
parties to the Memorendum of Settlement dated 06.12.1994,
the present union is not entitled to raise any dispute before
the Tribunal in the matter of recovery of rent under the
provisions of F.R. 45(A). Accordingly, it is prayed that the
instant referance may be answered in the affirmative.
4. In support of the case, union has examined five
witnesses and also proved five documents (Exhibits W-01
to W-05).
5. The management has examined only one witness and
has proved fifteen documents to substaniate its contention
made in the written statement.
6. On perusal of the pleadings of the parties it appears
that a memorandum of settlement was arrived at on
06.12.1994 between the representatives of All India
Federations of unions of the Major Ports and Dock Labour
Boards and the management of Major Port Trusts and Dock
Labour Boards over the demands of wage revision etc.
including the procedure for recovery of rent of
accommodation provided by the Port Trusts and Dock
Labour Boards.
7. In Clause 19.2 of the said settlement it has been
mentioned "Recovery of rent for the ports/DLBs quarters
will be made on living area basis under Government of
India instruction below 45(A)".
8. In this case there is no controversy that the present
union who raised instant industrial dispute, is affiliated to
the Indian National Port and Dock Workers Federation
(INTUC) who was the party to the said settlement. There is
also no controversy that the Class-IV quarters are two
roomed having than 56 square meters living area.
9. In this cse the union has raised industrial dispute
alleging that the Class-IV quarters provided to the
employees are all sub-standard and the same are not fit for
human habitation. According to the union, the living area
of the said quarters are not as per the CPWD specification,
because the living area of each of the said quarters is less
than 56 square meters. But according to the management
all the said quarters are standard quarters as per the
specification of CPWD, because each of the said quarters
consists of two rooms, one kitchen, latrine, bathroom and
verandah/coutyards. So the initial burden is upon the union
to prove that the quarters in question are sub-standard
and are not fit for human habitation.
10. But in this case the union has failed to produce any
document to establish that as per the CPWD specification
living area of Class-IV quarters should not be less than 56
to 65 square meters. Nor has any documents is forthcoming
to show that the said quarters are in wretched condition.
All the witnesses examined by the union, in their evidence
have stated that they do not know the reason why they
have stated that the quarters are sub-standard.
11. From the oral testimony of all the witnesses it is
evident that the condition of the quarters is same as it was
existed at the time of allotment. None of the witnesses has
stated that they said quarters are in wretched condition
and not fit for human habitation. No evidence is also
forthcoming to establish that as per the service condition
employees are to stay in Port Trust accommodation. The
witnesses of the union have also made it clear that there
was no compulsion to occupy the said quarters.
12. So it appears that there is precondition of service
that the employees are to stay they quarters of the Port
Trust. On the other hand, the oral evidence discloses that
the employees were never forced or pressurized to take
possession of the quarters. The said witnesses have said
that they voluntarily occupied the quarters for their own
benefit. The Contention of the management is that on the
basis of the application of the individual employee, the
quarters in question are allotted. The said contention has
not been denied. So it appears that on the basis of the
application of the employees the quarters are allotted. So
at this stage the concerned workman are not entitled to
ventilate their grievance that for such occupation of the
quarters, they are loosing huge amount house rent i.e.,
30% of the basic pay. Because they are always at liberty to
vacate the quarters for getting house rent @30% of the
basic pay.
13. On consideration of the facts and circumstance and
in view of the discussion made above, it appears that the
management is entitled to recover/realize the licence fee
(house rent) in respect of the quarters of Port and Dock
Labour Board under Government of India orders as revised
from time to time under FR 45(A).
14. Accordingly, the instant reference is answered in
the affirmative and the concerned workmen are not entitled
to get any relief whatsoever.
Dated, Koklata,
The 28th August, 2015
JUSTICE DIPAK SAHA RAY, Presiding Officer
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4183
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14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj iatkc uS'kuy cSad
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[la- ,y&39025@01@2010&vkbZvkj¼ch&II½]
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New Delhi, the 15th October, 2015
S.O. 2011— In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 6/2013) of the Cent. Govt.
Indus. Tribunal-cum-Labour Court No. 1,Chandigarh 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 15/10/
2015.
[No. L-39025/01/2010-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-I, CHANDIGARH,
Case No. ID 6 of 2013
Shri Ashok Kumar son of Shri Chanan Ram (formerly
working as clerk at Branch Officer Aur Nawanshahar,
resident of House No. 240, Satguru Nagar, Saloh
road,Nawanshahar, district SBS Nagar.
Workman
Versus
1. Punjab National Bank through its Circle Head, Circle
Office Hoshiarpur.
2. The General Manager (Personnel), Punjab National
Bank, Bhikaji Cama Place, New Delhi.
Respondents
APPEARANCES
For the Workman
:
Shi Ravi Mohan Khanna
Advocate
For the Management :
Shi. N.K. Zakhmi Advocate.
Award Passed On: 07.09.2015
1. The workman raised the dispute directly to this
Tribunal regarding his forced retirement from service by
the respondent management of Punjab Natonal Bank on
the certificate issued by the Assistant Labour
Commissioner (Central), Chandigarh vide its letter No.. 7(7)
2012/ACH dated 16th October 2012 under Section 2(a)2 of
the Industrial Disputes Act, 1947 as the conciliation
proceedings not concluded in prescribed time under the
law. The workman filed claim statement stating there in that
workman joined the service with the management on
10.09.1980. Howeve,r in March 1996 the workman
proceeded on leave after taking due approval of the
competent authority. The workman further submitted that
under compelling circumstances he could not join duties
immediately after sanctioned period of leave. It is stated by
the workman that he had to go abroad due to some
personal pre occupations and he could not return back for
some period of time due to health and financial problems
but he continued to submit his applications for sanction of
leave and the said applications were duly received by the
branch concerned. The workman did not receive any
specific notice or letter from the bank with regard to declining
his leave or for compliance of any terms and condition. He
further stated that workman had sufficient medical leave to
his credit and in addition to this workman had also
accumulated privilege leave of more than 112 days . No
notice was served at his local address and a credit entry of
Rs. 91803/- was made by the bank on 8.5.1998 in account
No. 13391 of the workman without giving any detail. The
workman also pleaded that before proceeded on leave in
March 1996 accumulated balance in the PF account of the
workman was Rs. 73888.42 and in addition to the above, a
sum of Rs. 12501/- reflected in the voluntary provident
account to taling Rs. 86,389.85 was available only in the PF
account in March 1995 he was contributing to voluntary
provident fund besides his normal and statutory
contribution to provided fund. The workman was also
entitled to the retiral dues such like pension, gratuity and
leave encashment. The workman learnt about the impugned
action on the part of the management of terminating his
service without due process on the ground of voluntary
abandonment, withholding of his retiral dues, including
pension, gratuity and leave encashment when hereturned
to India in October 2010 after recovery of protracted illness
in UK. The workman prayed that illegal, unfair, unjust and
oppressive order of termination of workman on factually
and legally untenable grounds of voluntary abandonment
of service may be recalled and revoked and workman be
reinstated in service with effect from the date of illegal
termination along with the back wages. The workman further
prayed that in alternative his legal right to the benefit of
pension may not be deprived and he may also be paid
gratuity, leave encashment and provident fund contribution
along with 18% interest. The petition is also supported by
the affidavit of the workman and documents.
4184
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
2. The management in reply has taken preliminary
objection that the claim of the workman deserved to be
rejected as he has come to the court after fifteen years and
at this belated stage suffer from delay and latches and not
maintainable in view of the law laid down by the Hon'ble
Supreme Court in the matter CA No. 638 of 2000 Nedungadi
Bank Ltd. And K.P. Madhavankutty and others. It is further
pleaded by the management that the workman was served
charge sheet dated 13.3.1992 and 12.1.1995. In those charge
sheets punishment of stoppage of four increments and
censure were imposed upon the workman. The workman
remained absent w.e.f. 3.3.1996 without obtaining prior
approval of the leave Registered letter dated 15.3.1996 was
issued to his available address for resuming duties which
was returned undelivered on 29.3.1996 and redirected to
his news address but the same was again returned. Again
on 23.4.1996 a letter was sent to resume duties but was
returned with the remarks 'not available'. Again registered
letter dated 19.6.1996 was sent to him to resume duty which
was returned undelivered with the remarks that 'he has left
India'. The workman was given notice dated 3.2.1997 by
SRM Jalandhar in terms of clause 17(a) of the Vth Bipartite
Settlement to report for duties within 30 days from the date
of the notice but the workman did not join the duties and
SRM Jalandhar vide letter dated 10.3.1997 informed the
workman that the is deemed to have voluntarily retired
from bank's service with immediate effect i.e. 10.3.1997.
Management also pleaded that PF amounting to Rs.
79928.41 and gratuity amounting to Rs. 68596 were settled
and after adjustment to loan account amount to Rs/ 59077/- a
sum of Rs. 89447.41 was credited in his account. As regard
pension is concerned the employee was to sign certain
documents along with the joint photograph with spouse,
which the subject was not done and the workman never
contact the bank and he cannot make bank liable for the in
action on his part. It is further pleaded that the workman
had given GPA in favour of his wife and in that regard had
given letter dated nil to the branch conveying that he has
been voluntary retired from the bank service and his wife
can operate all the account concerned to him. It is further
pleaded that the contents of the said letter itself speaks
that he was well aware that he has been deemed to have
voluntarily retired from service. The management pleaded
that the dispute so raised by the workman merit no
consideration and the reference by answered in favour of
the management.
3. Rejoinder also filed by the workman reiterating the
claim made in the claim petition.
4. The workman in evidence filed his own affidavit also
examined himself as WW1. He also relied on doucments
Ex.W2 to W7. The management in evidence filed affidavit
of MW1 Ms. Binita Kumari officer PNB who filed her
affidavit Ex.M1 and also relied on documents Ex.M2 to
M13.
5. I have heard the parties, gone through the evidence
and record of the case.
6. The management submitted that the impugned order
of deemed voluntary retirement was passed by the
management on 10.3.1997 whereas the claim has been filed
by the workman after a lapse of about 16 years. The workman
admitted in his statement during evidence before this
Tribunal that "it is correct that I have raised the industrial
dispute vide demand notice dated 3.4.2013. I have not given
any explanation as to why I have filed the present claim
after a period of more than 16 years." In this context
Industrial Disputes (Amendment) Act 2010 has been
referred Section 3 amendment of Section 2A(3) provides
that the application referred to in Sub-Section (2) shall be
made to the Labour Court or Tribunal before the expiry of
three years from the date of discharge, dismissal,
retrenchment or otherwise termination of service as
specified in sub-section (1).
7. The workman submitted that he had submitted the
demand notice before the conciliation officer on 3.4.2013
and after the failure of the conciliation proceedings the
workman preferred this industrial dispute in the year 2013
directly. Even if the after the failure of the conciliation
proceedings , the present industrial dispute (claim
statement) filed by the workman is highly belated. Further
there was no explanation given by the workman for
preferring the claim statement which is highly belated.
8. So far the merits of the case are concerned; the
workman remained absent w.e.f. 3.3.1996 without obtaining
prior approval of the leave. Registered letter dated 15/3/
1996 was issued to his available address for resuming
duties which was returned undeliverd on 29.3.1996 and
redirected to his new address but the same was again
returned. Again on 23.4.1996 a letter was sent to resume
duties but was returned with the remarks 'not available'.
Again registered letter dated 19.6.1996 was sent to him to
resume duty which was returned undelivered with the
remarks that "he has left India'. The management referred
letter dated 10.3.1997 from which it is clear from the record
that the workman was given notice dated 3.2.1997 by SRM
Jalandhar in terms of clause 17(a) of the Vth Bipartite
Settlement to report for duties within 30 days from the date
of the notice but the workman did not join the duties. In the
letter dated 10.3.1997 it is also mentioned that the workman
is advised that he was absenting himself from duty
consecutively for a period of more than 90 days without
any information and the bank has reasons to believe that
he has no intention of joining the bank duty. With this
satisfaction the bank has observed that workman deemed
to have voluntary retired from bank service with immediate
effect i.e. w.e.f. 10.3.1997. Thus the bank has complied with
all the formalities before treating the workman as voluntary
retired from service It is also admitted fact that workman
himself had given GPA in favour of his wife and letter to the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4185
branch conveying that he has been voluntary retired from
the bank service and his wife can operate all the account
concerned to him. Therefore, it held that the workman
rightly deemed to have retired from service voluntarily.
9. The workman cited 1993 SCR (3) 930 D.K. Yadav and
J.M.A. Industries Ltd. and a judgment of the Hon'ble
Supreme Court in the case of Uptron India Limited Vs.
Shammi Bhan and another decided on 6.2.1998. I have gone
through the case laws cited by the workman. The facts and
circumstances of the case laws are quite different from the
facts and circumstances of the case in hand hence the law
principles laid down in the above case laws are not
applicable to the case in hand.
10. As regard the claim of the workman for pension is
concerned, the management in its written statement
specifically submitted that the workman never approached
the bank to process/sign the documents to avail the
pensioner benefits. The workman should approach the
bank and sign the documents to avail the pensioner benefits.
As submitted by the management in report the workman
was paid Rs. 79928.41 on account of Provident Fund,
Gratuity of Rs. 68596/- less loan account settlement of Rs.
59077/-. The remaining amount of Rs. 89447.41 was credited
to the account of the workman. As regard the claim of the
workman for leave encashment is concerned, the workman
is not entitled for the same in view of the provisions of the
Bipartite Settlement dated 29.6.1990 as the workman was
deemed to have voluntarily retired from the service of the
bank.
11. In view of the discussions made, the deemed
voluntary retirement from service of the workman is held to
be in accordance with the provisions of the Bipartite
Settlement. The workman has already been paid his dues
after adjustment of the loan account.
12. For the purpose of pension workman to sign the
documents for processing the sanction of his pension in
accordance with the provisions of the Bipartite Settlement
and bank rules.
13. The Industrial dispute is answered accordingly.
Chandigarh
07.09.2015
S.P. SINGH, Presiding Officer
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New Delhi, the 15th October, 2015
S.O. 2012.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 11/2015) of the
Central Government Industrial 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 15/11/2015.
[No. L-12011/88/2014-IR(B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, CHENNAI
Thrusday, the 27th August, 2015
Present:
K.P. Prasanna Kumari, Presiding Officer
Industrial Dispute No. 11/2015
(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 Indian bank & Another and their workman)
BETWEEN
The General Secretary
:
1st Party/Petitioner Union
Indian Bank Employees Union
17, Ameerjan Street, Choolaimedu
Chennai-600094
AND
1.
The Deputy General Manager
:
2nd Party/2nd
Indian Bank, HRM Department
Respondent
No. 254-260, Avvai Shanmugam
Salai Royapettah
Chennai-600014
2.
The Asstt. General Manager/
:
2nd Party/1st
Disc. Authority
Respondent
Indian Bank, Zonal Office,
Dr. Besant Road
Kumbakonam
Appearance:
For the 1st Party/Petitioner Union
:
In Person
For the 2nd Party/1st and 2nd
:
M/s. Aiyar & Dolia
Management
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12011/88/2014-IR (B.II)
dated 06/09.01.2015 referred the following Industrial Dispute
to this Tribunal for adjudication.
4186
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
The schedule mentioned in that order is:
“Whether the demand of the Indian Bank Employees
Association (Tamilnadu), Chennai in modifiying the
punishment on Sri K. Selvaraju, Clerk/Shroff,
Patteeswaram Branch, Indian Bank from "dismissal
to complusary retirement" from service is justified?
What relief the concerned workman is entitled?”
2. On reciept of the Industrial Dispute this tribunal has
numbered it as ID 11/2015 and issued notices to both sides.
The petitioner has appeared in person and the Respond
through their counsel have filed their claim and counter
statement respectively. The petitioner has filled rejoinder
in reply to the Counter Statement.
3. The Averments in the claim Statement filed by the
petitioner are as below:
Selvaraju, a member of the Petitioner Union who was
working as clerk in the Patteeswaram Branch of the Indian
Bank was changed with certain acts of omissions/
commissions resulting in financial loss to the institution. A
charge sheet was issued to him and domestic enquiry was
conducted on these charges. Selvaraju appeared in person
before the enquiry Officer without a Defence Representative
and admitted all the charges against him. He also made
good the financial loss suffered by the institution. He
requested the management to inflict any punishment other
than dismissal form service on him. However, the
Disciplinary Authority imposed the capital punishment of
dismissal without notice on him by order dated 13.02.2013.
Selvaraju submitted appeal to the Appellate Authority
seeking modification of punishment from that of dismissal
without notice to compulsary retirement from service.
However, the Appellate Authority confirmed the order of
the Disciplinary Authority. The dispute is raised by the
petitioner seeking modification of the punishment of
dismissal without notice to compulsory retirement from
service. An order may be passed modifying the punishment
of dismissal without notice to compulsory retirement from
service.
4. The Respondent has filed Counter Statement
contending as follows:
Selvaraju, an employee of the Respondent Bank while
working at Patteewaram Branch was involved in certain
acts of misconduct. He intentionally failed to account for
certain case remittances by the customers towards Jewel
Loan Accounts involving an amount of Rs. 2,05,540/-.He
had also stealthily removed 278 pieces of notes of Rs. of
500/-denomination and replaced 118 pieces of Rs.100/-
denomination, the amount involved in this act being
Rs.1,27,200/-.The employee was issued with a charge sheet
dated 12.05.2012. In his reply dated 31.07.2012 he admitted
having conducted the misconducts alleged against him.
An enquiry was ordered and the employee admitted his
guilt during the enquiry also. Based on the findings of the
Enquiry Officer, the Disciplinary Authority imposed the
punishment of dismissal without notice on him. On appeal
by the employee the punishment was confirmed by the
Appellate Authority. The misconducts committed by
Selvaraju are very grave in nature. He does not deserve
any leniency. The fact that he made good the amounts
involved does not absolve him from the charges and the
gravity of the act. The persons employed in Public Financial
Institutions such as the Respondent Bank have to act with
utmost integrity. There is on justification in the demand of
the petitioner to modify the punishment. The petitioner is
not entitled to any relief.
5.
The petitioner has field rejoinder reiterating his
case in the Claim Statement. The evidence in the case
consists of documents marked as Ext. W1 to Ext. W13 and
Ext. M1. No oral evidence was adduced by either side.
6. The points for consideration are:
(i) Whether the Respondent Bank is justifield in
imposing the punishment of dismissal without
notice on the concerned employee?
(ii) Whether the employee is entitled to have the
punishment modified to Compulsory Retirement
from service?''
The Points
7. Selvaraju was working in Patteeswaram Branch of the
Respondent Bank as a Clerk. While so, Ext. W1-Charge
sheet dated 12.05.2012 was issued to him. The first charge
in the Charge Sheet refers to the details of 20 remittances
made by the account holders to their accounts. The charge
states that Selvaraju, the concerned employee had failed
to account those remittances received by him as Single
Window Operator and thus committed misappropriation of
a total amount of Rs. 2,05,540/-. The second charge states
that on 07.05.2012 he had clandestinely removed 278 pieces
of Rs. 500 denomination and replaced 118 pieces of Rs. 100
denomination notes while he was handling the cash section.
By Ext.W2-the reply dated 31.07.2012, Selvaraju admitted
both charges alleged against him. He has stated in this that
he has committed the acts of omission and commission
mentioned in the charge sheet. He has further stated that
the entire amount has been fully adjusted by obtaining
loan.
8. An enquiry was conducted on the charges leveled
against the petitioner even though he had admitted the
charges by Ext.W2 letter given to the Disciplinary Authority.
During the enquiry also Selvaraju admitted the charges
unconditionally. The Enquiry Officer submitted report
based on the admission and also the documents produced,
finding him guilty. On the basis of the report of the Enquiry
Officer the Disciplinary Authority passed Ext.W9 order on
13.02.2013 dismissing the employee without notice. He
submitted appeal against the order and pleaded that the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4187
punishment should be modified to compulsory retirement
from service, but this was not accepted by the Appellate
Authority. It is accordingly he has raised the dispute
through the petitioner, the union of which he is a member.
9. The General Secretary of the Association has argued
that it is a case where the concerned employee is entitled
to leniency in the matter of punishment. It has been argued
that the employee had worked in the Respondent's
Institution for more than 26 years and so far he had worked
without any blemish and no disciplinary action has been
taken against him. It has also been argued by him that the
employee had admitted the charge immediately after the
charge memo was issued to him. without trying to contest
the case.
10. Is it a case where the concerned employee is entitled
to any leniency? I have referred to the charge memo issued
to him in detail earlier, to bring out the nature of the
commission/omission on his part. The employee has
admitted the entire charges against him. The total amount
misappropriated by him amounts to moe than Rs. 3.00 lakhs.
He has been trying to pilfer the remittances made by several
account holders to their accounts. He also removed
currencies of Rs. 500/- denomination and replaced a few of
them with Rs. 100/- denomination to cover his misconduct.
There is no doubt that the misconduct committed by the
concerned employee was very grave in nature.
11. The counsel for the Respondent has referred to
certain legal pronouncements of the Apex Court showing
how such persons were dealt with. The decision reported
in Janatha bazar (South Kanara Central Coperative
wholesale sotres Ltd.) and others vs. Secretary, Sahakari
Naukarana Sangam and others reported in 2007 SCC 517 is
a case where the Labour Court had reinstated the workman
in spite of specific finding of charges of breach of trust and
misappropriation of goods. The Apex Court has held that
once an act of misapropriation is proved, whether it be
small or large amount there is no question of showing
uncalled sympathy and reinstating the employee in service.
The Apex Court has also held that in case of proved
misappropriation there is no question of considering the
past record. The order of reinstatement was set aside by
the Apex Court. In the decision Regional Manager, Upsrtc,
Etawah and others vs. Hotilal and others reported in 2003 2
LLJ 267, referring to previous decisions, the Apex Court
has held that while dealing with the quantum of punishment,
the Tribunal has to record reasons as to why it is felt that
the punishment does not commensurate to the proved
charges. It has further been held that the scope of
interference in such cases in very limited and restricted to
exceptional cases. The counsel has also referred to decision
Suresh Patherella vs. Oriental Bank of Commerce reported
in 2006 10 SCC 572. The Apex Court has observed in this
that the bank's regulations require that every Officer of the
bank at all times takes all possible steps to protect the
interests of the bank and discharge his duties with utmost
integrity, honesty, devotion and diligence and do nothing
unbecoming of a Bank Officer. The conduct of the employee
in the present case was totally against this observation.
Excuses of any kind in the matter of misappropriating public
funds could not be accepted. That the amount has been
subsequently made good also is not an excuse for giving
punishment which will undermine the gravity of the alleged
act.
12. In the decision in Rajasthan State Road Transport
Corporation and another vs. Bajrang Lal reported in 2014 4
SCC 693, the Apex Court has quoted with approval an earlier
decision where it was held that in case involving corruption
there cannot be any other punishment than dismissal and
any sympathy shown in such cases is totally uncalled for
and opposed to public interest, that the amount
misappropriated may be small or large but is the act of
misappropriation that is relevant. In the decision Diwan
Singh vs. Life Insurance Corporation Of India and others
reported in 2015 2 scc 341 also the same decision was
quoted with approval and punishment given to the
employee was upheld.
13. The misconduct on the part of the employee is a
very grave one. The punishment imposed on him
commensurate with gravity of the misconduct. No other
punishment other than dismissal from service could be
thought of in the circumstances. So the petitioner is not
entitled to any relief. 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
:
None
For the 2nd Party/1st and 2nd
:
None
Management
Documents Marked:
On the petitioner's side
Ex.No.
Date
Description
Ext.W1
12.05.2012
Charge Sheet to K. Selvaraju ZOK/
VIG/51257/2012-13
Ext.W2
31.07.2012
Reply to the above charge sheet
by Sri K. Selvaraju
Ext.W3
31.07.2012
Domestic enquiry proceedings
Ext.W4
11.08.2012
Presenting Officer's brief
Ext.W5
20.09.2012
Enquiry Officer's findings
Ext.W6
20.09.2012
Defence brief
Ext.W7
29.11.2012
Letter from Sri K. Selvaraju to the
Disciplinary Authority
4188
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
Ext.W8
11.02.2013
Letter from Sri K. Selvaraju to the
Disciplinary Authority seeking
reduction in proposed punishment
Ext.W9
13.02.2013
Orders of the Disciplinary
Authority "Be Dismissed without
Notice"
Ext.W10 27.05.2013
Proceedings of the personal
hearing before the Appellate
Authority
Ext.W11 27.05.2013
Appeal letter from Sri K. Selvaraju
to the Appellate Authority for
reduction of punishment
Ext.W12 06.06.2013
Orders of the Appellate Authority
Ext.W13 19.08.2013
Letter IBEA/GEN/257/2010-13 from
the Union to the ALC, Puducheri
raising an Industrial Dispute
On the Management's side
Ex.No.
Date
Description
Ex.M1
10.04.2002
Memorandum of Settlement
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dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ;qdks 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;] /kuckn ds iapkV ¼03@2013½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 15@10@2015 dks izkIr gqvk FkkA
[lañ ,y&12012@66@2012&vkbZ vkj ¼ch&II½]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 15th October, 2015
S.O. 2013.— In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 03/2013) 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 UCO Bank, and their workmen, received
by the Central Government on 15/10/2015.
[No. L-12012/66/2012-IR (B-II)]
RAVI KUMAR, Desk 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. 03 of 2013
Employer in relation to the management of UCO Bank,
Zonal Office
And
Their workman.
Present:- Sri R.K. Saran, Presiding Officer.
Appearances:
For the Employers
:
Sri D.K. Verma, Advocate
For the Workman
:
Sri M.K. Sinha, Advocate
State: Jharkhand.
Industry:— Banking
Dated 8/9/2015
AWARD.
By order No.-L-12012/66/2012 IR (B-II), dated. 11/01/
2013, the Central Govt. in the Ministry of Labour has, in
exercise of powers conferred by clause (d) of Sub-section
(1) and Sub-section (2A) of Section 10 of the Industrial
Disputes Act. 1947, referred the following disputes for
adjudication to this Tribunal:
SCHEDULE
"Whether the management of UCO Bank has
obtained the service of the workman on regular basis
for the period between 2006 to 2011 and if so whether
the action of the management of UCO Bank in
terminating the service of Shri Promod Kumar w.e.f.
19.02.2011 is legal and justified? What relief the
disputant workman is entitled to?"
2. The case is received from the Ministry of Labour on
12.02.2013. After receipt of reference, both parties are
noticed. The Workman files their written statement on
04.03.2013. And the management files their written
statement-cum-rejoinder on 16.01.2014. Only one witness
i.e. workman himself examined as WW-1. But no witness
examined on behalf of the management. Document of
workman marked as M-1 to M-4.
3. The case of the workman is that the concerned
workman was appointed on the post of computer Operator
on daily wages in Jaipur Branch on Rs. 100/- per day on
verbal instruction of I.D.M Banka on 27.01.2006. Payment
of daily wages was paid to this workman by end of week by
Branch Manager through voucher as daily wages for the
entire period i.e. 27.01.2006 to 19.02.2011. During the service
the worked different jobs as Accounts Clerk, Cashier etc.
and in the way the workman concerned rendered his
services to the Bank for more than 240 days continuously
for five years. Inspite of this continuous services for more
than 5 years the workman concerned was verbally
terminated from service on 19.02.2011 without giving any
previous notice which is mandatory requirement U/s 25 F 0
I.D Act which is utter violation of the Act Hence he was
entitled to be regularised on his service.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4189
4. Management's case is that Shri Pramod Kumar Mishra
was engaged time to time as an out sourcer for helping in
extra work of Branch. The Branch has paid as per his work
purely on daily basis only in extreme exigencies for non
Banking work. The concerred workman left working from
09.02.11 willfully as the Bank did not agree to pay as per his
demand. Therefore he was not the employee of the Bank,
question of termination of his service does not arise. It is
relevant to mentioned that the Branch Manager of the Bank
is authorized to appoint any person in sanctioned or
unsanctioned post.
5. Workman has filed four items of document as per list
which is marked as Exhibits i.e. letter of Branch Manager to
AGM dtd. 27.01.2006 marked as Ext-W-1(2) Letter of the
manater to L.D.M. Banka dtd. 17/05/06 marked as Ext. W-
2(3) Certificate issued by the Branch Manager to the
concerned workman dtd. 20.01.2010 marked as Ext. W-3 (4)
Vouchers of 27.01.2006 to 19.02.11 in which payment made
to the workman marked as Ex-4 Series.
6. The workman as casual employee was working in the
UCO Bank from 2006 to 2011 as Computer Assistant. Which
working in that capacity. He claims regularisation, for which
bank management terminated his service.
7. The matter is finally referred to this Tribunal. After
hearing it is settled and decided that the bank management
to take the workman at once as casual empkoyee. It is also
pertinent here to mention that the workman files voluminous
documents that bank paid the workman wages and even
acknowledge him casual computer assistant.
8. Considering the facts and circumstanes that take the
workman as casual employee on prevalent wages,
management is directed to comply this award within a month
from the date of publication of award.
This is my award.
R.K. SARAN, Presiding Officer
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chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
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[lañ ,yµ12013@95@98&vkbZ vkj ¼ch&II)]
jfo dqekj] MsLd vf/kdkjh
New Delhi, the 15th October, 2015
S.O. 2014— In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 108/2000) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Lucknow 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 15/10/2015.
[No. L-22013/95/98-IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT
Rakesh Kumar, Presiding Officer
I.D. No. 108/2000
Ref. No. L-12013/95/98-IR (B-II) dated 30.03.1999
BETWEEN
The State Vice President
Union Bank Staff Association
3/192, Viram Khand
Gomti Nagar,
Lucknow (U.P.)
AND
The General Manager
Union Bank of India,
Zonal Office, Sharda Tower, IInd floor,
Kapoorthala Complex, Aliganj
Lucknow (U.P.)
AWARD
1. By Order No. L-22013/95/98-IR (B-II) dated 30.03.1999
the Central Government in the Ministry of Labour, New
Delhi in exercise of powers conferred by clause (d) of sub-
section (1) and sub-section (2A) of Section 10 of the
Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between the State Vice President, Union
Bank Staff Association, Lucknow and Gemeral Manager,
Union Bank of India, Zonal Office, Kapoorthala Complex,
Aliganj, Lucknow for adjudication.
2. The reference under adjudication is:
"Whether the action of the Management of Union
Bank of India in imposing punishment of stoppage
of two increment with cumulative effect upon Sh.
Om Prakash Agarwal is legal and justified? if not,
what relief the workman is entitled to?"
3. The order of reference was endorsed to the State Vice
President, Union Bank Staff Association, Lucknow with
the direction to the party raising the dispute to file the
statement of claim along with relevant documents, list of
reliance and witnesses with the Tribunal within fifteen days
of the receipt of the order of reference and also foward a
4190
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
copy of such a statement to each one of the opposite parties
involved in this dispute under Rule 10 (B) of the Industrial
Disputes (Central), Rules, 1957.
4. Initially the reference order was received at CGIT-
cum-Labour Court, Kanpur, and which was registered as
I.D. No. 70/99. Subsequently on transfer from CGIT, Kanpur
to this court, the case was received here on 27.09.2000 and
was registered as I.D. No. 108/2000.
5. As per the claim statement, the bank association has
asserted in brief, the details of the association, management
and service conditions etc. of the workman. It has been
pleaded that Sri Om Prakash Agarwal was posted as Clerk-
cum-Cashier at Varanasi-Sonarpura Branch of the bank later
on promoted to Clerk, and he is covered under the definition
of the workman under Section 2(s) of the I.D. Act. Giving
reference to the direction of the Reserve Bank of India, the
procedure of handling cash and keeping in safe custody,
has also been mentioned in the claim statement. It has
been stated in the claim statement that the workman while
his earlier posting at Rathyatra ING Branch of the bank, he
had worked on cash receipt counter also, and the cash
balance was always handed over to the Head Cashier of
the branch at the close of business hour after tallying the
same, and no shortage deficiency was ever detected during
the course of counting and recounting at currency chest.
6. It has further been stated that some mischief was
going on in the Currency Chest and during April/May 1993,
huge cash shortage worth lacs of rupees was detected.
The workman was suddenly called upon on 20.05.1993 to
make good the shortage of Rs. 6,600/- out of total shortage
of cash detected in the currency chest. Since the workman
was not responsible for the shortage, he refused to make
good the shortage of Rs. 6,600/- out of lacs of rupees. In
order to coerce the workman, the management of Bank
issued a charge sheet dated 26.04.1994 but without
advancing the proceedings, on 12.01.1996, the workman
was further served with a supplementary charge sheet
dated 29.06.1995, in which the alleged shortage on the part
of the workman was stated to the tune of Rs. 10,000/-.
7. On 12.01.1994 Union raised industrial dispute over
the said unfair labour practice adopted before the ALC (C),
Lucknow but during the process the committee constituted
did not submit any report. It has been alleged by the
association that in complete disregard to the principle of
natural justice, punishment of stoppage of 2 annual
increments with cumualtive effect was inflicted and order
was served in July 1996, and an appeal was preferred, its
outcome was not communicated to the workman, later on
the I.D was raised before RLC (C) Kanpur, conciliation
proceedings were transferred to ALC (C), Lucknow failure
of conciliation report was sent to Govt. of India later on the
matter was referred to CGIT, Lucknow.
8. The workman has alleged that many other employees
who were similarly charge sheeted, were inflicted with the
punishment "WARNING" only while the workman was
given severe punishment. It has also been mentioned that
the relevant provision of Bipartite Settlement dated
31.10.1979, 19.10.1966 etc. were also not duly followed by
the management. The workman has also challenged the
appointment of Enquiry Officer/Disciplinary Authority and
Appellate Authority. The association has also alleged that
the relevant provision of the I.D. Act, have been violated
by the management.
9. The workman has also asserted that the defence was
not provided during the enquiry fair opportunity to cross
examine the management's witness on relevant point, same
principle was not followed during the cross-examination of
defence witness, findings of the enquiry officer were
perverse and unreasoned, the alleged misconduct was not
proved at all. It has also been emphasized by the workman
that the service conditions do not permit the stoppage of
more than one increment as per language of 19.6 (D) of
Bipartite Settlement dated 19.10.1966. The association has
prayed to set aside the charge sheet, enquiry proceedings,
findings and the order of punishment and the order of
Appellate Authority, exonerating the workman from charges
levelled, with all consequential benefits.
10. The management while refuting the averments taken
by the workman, has filed written statement (page No. 7).
The management has submitted that the reference made
by the government is bad in law, the matter is not covered
under the definition of Industrial Dispute, the alleged act is
purely of managerial and administrative function. The
workman was provided with the charge sheet containting
therein his acts, omission and commission, constituting
gross misconduct and gross negligence resulting monetary
loss to the bank. Thorough enquiry was conducted as per
rules, opportunity for hearing was also provided, the
disciplinary authority imposed the punishment of stoppage
of 2 increments with cumulative effect, appeal filed by the
workman was also dismissed. The opposite party has
furhter stated that since the TR slips were signed by the
CSE, subsequently during checking the shortage were
detected therefore the CSE(workman) was held responsible
for such shortages. Prima-facie the workman was found
to have committed irregularities in discharging the duties
as receiving Cashier and the bank had to make good the
loss made to public. The management has emphasized that
fair and reasonable opportunity to defend his case was
provided to the workman, there was no violation of any
provision of Bipartite Settlement whatsoever. The opposite
party while citing the principle laid down by Hon'ble
Supreme Court in Inspector General of Police Vs.
Thavasiappan (1) 1996 (2) SLC (SC) 470, has stressed that
there is no lack of inherent jurisdiction to the Dy. Manager
(P) Regional Office to hold the enquiry and the General
Manager disposed off the appea. The opposite party has
also asserted that section 33 of the ID Act does not apply
in the present matter. Another Ruling viz. Indian Bank Ltd.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 17] 2015@vkf'ou 25] 1937
4191
Vs. S.M. Ramanathan 1967 II LLJ 31 has also been cited by
the opposite party. The management has requested to
dismiss the caim statement and to confirm punishment
awarded by the mangement.
11. Later on rejoinder (paper No. 4) was also filed by the
workman reiterating the pleas taken in the claim statement
and strongy denial of the writen statement.
12. Along with list dated 29.01.2001 several documents
have been filed by the workman inclusive of enquiry report
etc. The management with its list dt. 29.01.2001 has also
filed the findings of the enquiry report and other documents.
The workman has filed the affidavit and was duly cross
examined by the management. The management has also
filed affidavit of 4 witness and they were cross examined
by the workman.
13. Preliminary issues regarding the said fairness and
perversity of the domestic enquiry were decided by the
then Hon'ble Presiding Officer on 16.01.2002, against the
management. An opportunity was provided to the
management to prove charges a fresh before this Tribunal.
14. The management of the Union Bank of India adduced
evidences of Shri R.C. Pandey, Inquiry Officer, Sri Hare
Krishna Nagar, Sri Jai Ram Nagar, Sri Neeraj Rastogi, Branch
Manager, Sri Vijay Vyas in support of charge sheet; whereas
the workman examined himself in support of his case. The
parties availed opportunity to cross-examine the witnesses
of each other. Apart from submitting their written
submissions, the management stopped attending the
proceedings since long; moreover it did not turn up in
spite of notices for submission of oral arguments.
However,the authorized representative of the workman
forwarded his oral arguments.
15. Heard the learned authorized representative of the
workman's union and perused the evidence available on
record.
16. Having given thoughtful consideration to the
submissions of the Union and written submissions of the
management of Union Bank of India, it comes out that in
the instant case the workman whose cause has been
espoused in the present industrial dispute was posted as
Clerk-cu-Cashier at Sonarpura branch of Varanasi; but
earlier to it, he was posted at Rathyatra crossing branch at
few occassion and worked on cash receipt counter. During
that he used to hand over cash balances to the Head Cashier
of the branch at the close of business hours, after tallying
the cash; such balances were received by the Head Cashier.
During his tenure with the said branch, no shortage was
ever detected, the cash handed over by him to the Head
Cashier were remitted to the currency chest along with
other cash received at the branch. No shortage/deficiency
was informed to him during the course of counting/
recounting at the relevant time. It was during April/May
1993, huge cash shortage worth lacs of rupees was detected
and the management of the bank instead of unearthing the
mischief adopted a convenient device to recover the cash
calculated on whimsical basis and to punish those who
failed to obey such arbitrary orders.
17. The management witness, Sri Vijay Vyas in his cross-
examination stated that ^^twu 1993 esa eSa cukjl esa dkfeZd
vfèdkjh ds in ij lgk;d egkizca/kd dk;kZy; okjk.klh fu;qDr
gqvk FkkA mlds igys ls djsalh psLV esa ckj&ckj udnh esa deh ikbZ
tk jgh FkhA esjh fu;qfDr ds ckn Hkh udnh esa deh ikbZ tkrh jghA eSa
;g vuqeku ls Hkh ugha crk ldrk fd fdruh jkf'k fd deh ikbZ xbZ
FkhA udnh dh ckdh deZpkfj;ksa ls iwjh djkbZ xbZA vksñihñ vxzoky ds
vykok fdlh vU; deZpkjh ds fo:) vuq'kklfud dk;Zokgh ugha
dh xbZA D;ksafd mUgksaus udnh dh deh iwjh dj nh FkhA** This goes
to show that the shortage in currency notes was found
well before June, 1993; but the management of the Bank
instead of sorting out the actual problem and catch the real
culprit or to evolve such a system so as to check this
problem, adopted a practice to recover the money illegally
from the persons who were dealing with currency notes in
any way by coercing/ threatening them with disciplinary
action. From above statement of the management witness,
given during the cross-examination, goes to show that the
workman was charge-sheeted and held guilty; and
resultantly punished just due to the fact that he refused to
contribute to the illegal recover, probably for the reasons
he was not responsible for alleged shortage. Sparing those
who submitted to the illegal practice of the management
and punishing those who resisted, is unacceptable and
liable to be turned down, as it is against the established
principles of natural justice as well.
18. Further the statement of the management witness,
Sri H.K. Nagar, during cross-examination is worthwhile,
which follows as under:
^^ tc djsalh uksVl LVsV cSad ;k fjtoZ cSad tkrs Fks vkSj tc caMy
esa uksV de fudyrs Fks] rks caMy ds Åij yscy esa dSf'k;j ds fooj.k
ls uksV dh deh iwjh dj yh tkrh FkhA
dSf'k;j rks gSaM&dSf'k;j dks nsxk ghA 'kk[kkvksa esa jh dkmaVhax ugha
gksrh D;ksafd ,slk flLVe ugha gSA psLV ij vkus ij gj caMy ds uksVksa
dh fxurh o Nkuchu ugha dh tkrh gS fd uksV de gSa fd T;knkA
ljljh rkSj ij yscy o caMy ns[k fy, tkrs gSa vkSj mls djsalh psLV esa
j[k fn;k tkrk gSA
deh ik;s tkus ij ftl czkap dh deh fudyrh gSA jFk;kFkk czkap
ls iwjh dj ysrs FksA vkSj mlds ckn lacaf/kr dSf'k;j dks og deh
fn[kkdj iwjh dj ysrs gSaA**
The workman was Clerk-cum-Cashier at the time of
occurrence of incident; as per procedured the cashier used
to hand over the cash to Head Cashier and thereafter the
cash was sent to the Currency Chest, without recounting
at the end of Head Cashier. However, if there was any
deficiency found at Currency Chest the same was recovered
4192
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
from the cashier concerned of the branch. From statement
of the management witness, it is evident that there was no
system of recounting at the end of Head Cashier when he
received the money from cashier; and this money so
received was transmitted to the Currency Chest without
counting. However, the shortage found, if any, was
recovered from the cashier concerned without any
justification. It is noteworthy to mention here that when
there was no recounting by the Head Cashier then how the
Cashier alone can be held responsible for such shortage in
currency notes. Also, the system prevalent at the relevant
period of time i.e. not counting of the currency note
received by the Head Cashier was also faulty. Had there
had been a system of recounting at the level of Head Cashier
then the shortage might have been detected at the level of
Head Cashier and the Cashier in that case might have been
held solely responsible for that. But in the absence of such
system of recounting at the end of Head Cashier, the
Cashier alone cannot be held guilty or made subject to
recovery or disciplinary action.
19. Thus, from the facts and circumstances of the case
and the case laws cited hereinabove, I am of considered
opinion that the action of the management of Union Bank
of India in imposing the punishment of stoppage of two
increments with cumulative effect upon the workman is
illegal and unjustified. Accordingly, I come to the conclusion
that the workman, Om Prakash Agarwal is entitled for release
of two increments, with consequentlial benefits. The sum
due shall be paid to the workman by the management within
two months from the date of notification of this "award."
20. The reference under adjudication is answered
accordinly.
21. Award as above.
LACKNOW, RAKESH KUMAR, Presiding Officer
13th August, 2015.
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New Delhi, the 15th October, 2015
S.O. 2015.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 14/2002) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Kolkata as shown
in the Annexure, in the industrial dispute between the
management of Central Bank of India and their workmen,
received by the Central Government on 15/10/2015.
[No. L-12012/24/2002-IR (B-II)]
RAVI KUMAR, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Refeence No. 14 of 2002
Parties: Employers in relation to the management of
Central Bank of India
AND
Their workmen
Present:
Justice Dipak Saha Ray,
......... Presiding Officer
Appearance:
On behalf of the
:
Mr. G.. C. Chakraborty, Ld.
Management
Counsel.
On behalf of the
:
Mr. N.G. Mondal, Ld. Counsel.
Workmen
State: West Bengal.
Industry:
Banking
Dated 24th August, 2015.
AWARD
By order No. L-12012/24/2002-IR(B-II) dated 30.05.2002
the Government of India, Ministry of Labour in exercise of
its powers under Section 10(1)(d) and (2A) of the Industrial
Disputes Act, 1947 referred the following dispute to this
Tribunal for adjudication:
"Whether the action of the management of the
Regional Manager, Central Bank of India, Regional
Office, Bangchatra Road, P.O. and Dist.—Cooch
Behar in terminating the services of Shri Kajal Ch.
Das w.e.f. 14.10.1999 is just and fair? If not, what
relief is the concernaed workman entitled to?"
2. The case of the concerned workman is, in short, as
follows:
He was appointed by the management of the Bank in
June, 1993 for making entries of the deposits received under
Mini Deposit Scheme and accordingly since then he had
been performing his said duties continuously and
uninterruptedly till 13th October, 1999. On 14,10.1997 while
he was posted as Clerk at Haldibari Branch of the Bank, his
service was terminated without giving any reason
whatsoever. It is alleged that he was illegally terminated,
Accordingly an industrial dispute was raised by the
workman. Hence this reference.
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4193
3. The management has opposed the case of the
workman by filing written statement contending inter alia
that the concerned workman was never appointed as Clerk.
He was engaged by the Bank as Coolie to do jobs as and
when his service was required and was paid for the same
through vouchers. It is the contention of the management
that the concerned workman had riot to work every day;
on the contrary he was engaged by the Bank when his
service was required. The management has, accordingly,
prayed that the instant reference may be answered in the
affirmative.
4. The concerned workman, in support of his case has
examined himself as WW-01 and proved six documents
which have been marked Exhibits W-01 to W-06. Similarly,
the management has examined one witness, namely, Ashim
Dasgupta as MW-01 and proved six documents marked
Exhibits M-01 to M-06.
5. It is argued on behalf of the concerned workman that
in June, 1993 he started working as Clerk in the Central
Bank of India, Haldibari Branch at the instance of the then
Manager of that Branch namely Mishraji and worked as
such uninterruptedly till 13th October, 1999 with an oral
assurance of the branch administration that he would be
absorbed and/or regularized whenever vacancy was
reported. It is further argued that during the said period of
his service he used to make entries of the deposits received
under Mini Deposit Scheme and for his such job bank
used to pay him through vouchers. Such payment was
made from the Bank's account.
6. On the other hand it is argued on behalf of the
management that the concerned workman was engaged as
Coolie and that too not on regular basis. He was
occasionally engaged when his service was so required. It
is further argued that the workman was paid through
vouchers for his job as Coolie.
7. It is well known that at the relevant point of time the
clerical staffs of the banks were recruited through Banking
Service Recruitment Board. Here, it is not the case or the
workman that he was recruited through the Banking Service
Recruitment Board. It is also not the case of the workman
that after observing the formalities of recruitment, bank
authority recruited the workman as dealing assistant or to
any other post.
8. Now on perusal of the oral evidence of the concerned
workman (WW-01) which corroborates the document
marked Ext. W-02 it is evident that no appointment letter
was issued to the workman by the Bank authority. One
Mishraji, the then Branch Manager, appointed him. During
cross-examination the witness admitted that he never put
his signature on the attendance register and that he used
to receive coolie charge.
9. It is also surprising to note that the workman did not
make any attempt to examine the said Mishraji to establish
that he was so engaged to do the job of a Clerk and his
monthly remuneration was Rs. 200/- and that the said
Mishraji had such power to engage any person to do the
work of a Clerk in a nationalized bank. Non-examination of
the said Mishraji would lead to an adverse presumption
that had the said Mishraji been examined, he would not
have supported the case of the workman.
10. In this case the workman has claimed that he worked
uninterruptedly as a Clerk for seven years; but lie has failed
to produce any document to substantiate his contention.
Admittedly the workman never signed the attendance
register during the alleged period of his service.
11. Now from the documents viz. vouchers (marked Ext.
M-06 collectively) filed on behalf of the management it
appears that the workman used to receive labour charges
on daily rate basis for doing specific job as and when his
service was required. These vouchers do not go to show
that the workman used to receive monthly wages and that
he was in continuous service as per the provisions of
Section 25B of the Industrial Disputes Act, 1947.
12. In view of the above facts and circumstances and
since the workman has failed to prove that he was in
continuous service as per the provisions of Section 25B of
the Act the management had no obligation to comply with
the provisions of Section 25F of the Act at the time of
termination of the workman from the service and as such it
appears that the termination of the workman who worked
as Coolie/labour was just and fair.
13. It is apt to mention here that the pleadings of the
parties and the evidence on record, both oral and
documentary, go to show that no formalities as per rules
were observed in engaging the concerned workman to work
as Coolie. He was so engaged on local arrangement. The
record also does not go to show that there was/is any
permanent post of Coolie in the concerned branch of the
bank.
14. From the above discussion it appears that the
workman worked from June, 1993 to 13th October, 1999 in
the Bank as a daily rated worker and had not to work every
day and his such appointment was not like that of a regular
sub-staff of the Bank. He was engaged by the then Branch
Manager to do the job of a collie on daily rate basis for
which he was also paid by the Bank through vouchers.
15. Now from the decision of the Hon'ble Supreme Court
reported in (2006) 4 SCC 1, (Secretary, State of Karnataka &
Others Vs.. Umadevi and others) it appears that:
"34. Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our Constitution
and since the rule of law is the cote of out Constitution, a
court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the over
looking of the need to comply with the requirements of
4194
THE GAZETTE OF INDIA : OCTOBER 17, 2015/ASVINA 25, 1937
[PART II—SEC. 3(ii)]
Article 14 read with Article 16 of the Constitution. Therefore,
consistent with the scheme for public employment, this
Court while laying down the law, has necessarily to hold
that unless the appointment is in terms of the relevant
rules and after a proper competition among qualified
persons, the same would not confer any right on the
appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if
it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could not
claim to be made permanent on the expiry of his term of
appointment. It has also to be clarified that merely because
a temporary employee or a casual wage worker is continued
for a time beyond the term of his appointment, he would
not be entitled to be absorbed in regular service or made
permanent, 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 not open to the court to prevent regular recruitment at
the instance of temporary employees whose period of
employment has come to an end or of an ad hoc employees
who by the very nature of their appointment, do not acquire
any right."
16. Considering the facts and circumstances and the
discussion made above and in view of the above decision
of the Hon'ble Supreme Court it appears that the concerned
workman is riot entitled to get any relief of reinstatement as
claimed by him even if termination of his service is found
to be illegal and unjustified.
17. Having regard to the facts and circumstances and
the above discussion, the instant reference is answered in
the affirmative and the concerned workman is not entitled
to get any relief.
18. This reference is disposed of accordingly.
JUSTICE DIPAK SAHA RAY, Presiding Officer
Dated, Kolkata,
The 24th August, 2015
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