1009 GI/2016
(945)
fons'k ea=kky;
(lh-ih-oh- izHkkx)
ubZ fnYyh] 24 iQjojh] 2016
dk-vk- 435-—jktuf;d vkSj dksalqyh; vf/dkjh ('kiFk
,oa iQhl) ds vf/fu;e] 1948 (1948 dk 41) dh /kjk 2 ds [akM
(d) ds vuqlj.k esa oSèkkfud vkns'k A
,rn~}kjk] dsaæ ljdkj Hkkjr ds nwrkokl] fjD;kfod esa
Jh fgeka'kq rwj] futh lgk;d dks fnukad 24 iQjojh] 2016 ls
lgk;d dksalqyj vf/dkjh ds rkSj ij dksalqyj lsokvksa ds fuoZgu
ds fy, izkfèkd`r djrh gS A
¹la- Vh&4330@01@2016º
izdk'k pUn] mi lfpo (dksalqyj)
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- 11]
ubZ fnYyh] ekpZ 6—ekpZ 12] 2016] 'kfuokj@iQkYxqu 16—iQkYxqu 22] 1937
No. 11]
NEW DELHI, MARCH 6—MARCH 12, 2016, SATURDAY/PHALGUNA 16—PHALGUNA 22, 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)
MINISTRY OF EXTERNAL AFFAIRS
(CPV DIVISION)
New Delhi, the 24th February, 2016
S.O. 435.—Statutory Order in pursuance of the clause
(a) of the Section 2 of the Diplomatic and Consular Officers
(Oaths and Fees) Act, 1948 (41 of 1948), the Central
Government hereby appoints Shri Himanshu Toor, PA as
Assistant Consular Officer in the Embassy of India,
Reykjavik to perform the Consular services with effect
from 24th February, 2016.
[No. T-4330/01/2016]
PRAKASH CHAND, Dy. Secy. (Consular)
946
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
foÙk ea=kky;
(foÙkh; lsok,a foHkkx)
ubZ fnYyh] 29 iQjojh] 2016
dk-vk- 436-—chekadd vf/fu;e] 2006 (2006 dk
35) dh /kjk 12 dh mi&/kjk (2) ds [k.M ([k) (i) }kjk iznÙk
'kfDr;ksa dk iz;ksx djrs gq,] dsUæh; ljdkj] ,rn~}kjk] Jh vkyksd
VaMu] la;qDr lfpo] foÙkh; lsok,a foHkkx dks foÙk ea=kky; dk
izfrfuf/Ro djus ds fy, Jh vuwi o/kou ds LFkku ij] vxys
vkns'k gksus rd] Hkkjrh; chekadd laLFkku ifj"kn esa lnL; ds :i
esa ukfer djrh gS A
¹iQk- la- ,e&18013@01@2011&chek&Iº
,l- ds- eksgarh] voj lfpo
MINISTRY OF FINANCE
(Department of Financial Services)
New Delhi, the 29th February, 2016
S.O. 436.—In exercise of the powers conferred by
clause (b)(i) of sub-section (2) of Section 12 of the Actuaries
Act, 2006 (35 of 2006), the Central Government hereby
nominates Sh. Alok Tandon, Joint Secretary, Department
of Financial Services, Ministry of Finance as a member of
the Council of the Institute of Actuaries of India to represent
the Ministry of Finance till further orders vice Shri Anup
Wadhwan.
[F. No. M-18013/01/2011-Ins. I]
S. K. MOHANTY, Under Secy.
ubZ fnYyh] 4 ekpZ] 2016
dk-vk- 437-—chek fofu;ked vkSj fodkl izkf/dj.k
vfèkfu;e] 1999 (1999 dk 41) dh /kjk 4 }kjk iznÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUæh; ljdkj] ,rn~}kjk ,xzhdYpj ba';ksjsal
daiuh vkWiQ bafM;k fyfeVsM (,vkbZlhvkbZ,y) ds vè;{k ,oa
izcaèk funs'kd Jh tkslsiQ iykIiYyhy ts-] dks in Hkkj xzg.k djus
dh rkjh[k ls 5 o"kZ dh vof/ ds fy, vFkok muds 62 o"kZ dh
vk;q izkIr dj ysus rd vFkok vxys vkns'kksa rd] tks Hkh igys gks]
vkokl ,oa dkj dh lqfo/k ds fcuk 3-75 yk[k #i, izfrekg ds
lesfdr osru iSdst esa Hkkjrh; chek fofu;ked vkSj fodkl
izkfèkdj.k (bjMkbZ) esa iw.kZdkfyd lnL; (xSj&thou) fu;qDr
djrh gS A
¹iQk- la- vkj&16011@01@2014&chek&Iº
,l- ds- eksgarh] voj lfpo
New Delhi, the 4th March, 2016
S.O. 437.—In exercise of the powers conferred by
Section 4 of the Insurance Regulatory and Development
Authority Act, 1999 (41 of 1999), the Central Government
hereby appoints Shri Joseph Plappallil J, Chairman-cum-
Managing Director, Agriculture Insurance Company of
India Limited (AICIL) as Whole-Time Member (Non-Life)
in the Insurance Regulatory and Development Authority
of India (IRDAI) in the consolidated pay package of
Rs. 3.75 lakh per month, without facility of house and car,
for a period of five years with effect from the date of
assumption of charge of the post or till he attains the age
of 62 years or until further orders, whichever is the earliest.
[ F. No. R-16011/01/2014-Ins. I ]
S. K. MOHANTY, Under Secy.
isVªksfy;e vkSj izkÑfrd xSl ea=kky;
ubZ fnYyh] 8 ekpZ] 2016
dk-vk- 438-—dsUæh; ljdkj isVªksfy;e vkSj [kfut
ikbiykbu (Hkwfe esa mi;ksx ds vf/dkj dk vtZu) vf/fu;e]
1962 (1962 dk 50) dh /kjk 2 ds [k.M (d) ds vuqlj.k esa
uhps nh xbZ vuqlwph ds LrEHk (1) esa mfYyf[kr O;fDr dks mDr
vuqlwph ds LrEHk (2) esa dh rRLFkkuh izfof"V esa mfYyf[kr {ks=k
dh ckcr] dk-vk- 756] rkjh[k 16 iQjojh] 2012 rFkk Hkkjr
ljdkj ds jkti=k rkjh[k 25 iQjojh] 2012 }kjk la'kksf/r esa
fuEufyf[kr :i ls la'kks/u djrh gS] vFkkZr~ %µ
mDr vf/lwpuk esa 'kCn ¶,sl-,se- lS;n] fMIVh dysdVj]
xqtjkr LVsV isVªksusV fyfeVsM] 5oha eafty] th,lihlh Hkou] xka?khuxj
&382010¸ ds LFkku ij ¶,sl-,se- lS;n] vfrfjDr dysDVj] l{ke
izkfèkdkjh] th,lih,y bfUM;k xslusV fyfeVsM] esglk.kk& HkfV.Mk
çkÑfrd xSl ikbiykbu UksVodZ] th,lih,sy Hkou]
bZ&18 thvkbZMhlh bZysDVªksuhDl ,LVsV] ds&7 lfdZy ds ikl lsDVj&26
xkaèkhuxj & 382028¸ (xqtjkr) 'kCn i<+s tk;saA
;g vf/lwpuk tkjh gksus dh rkjh[k ls ykxw gksxh A
¹iQk- la- ,y&14014@39@2011&th-ih-&IIº
Jh izdk'k vxzoky] voj lfpo
MINISTRY OF PETROLEUM AND NATURAL GAS
New Delhi, the 8th March, 2016
S.O. 438.—In pursuance of the Clause (a) of Section
2 of the Petroleum and Minerals Pipelines (Acquisition of
Rights of User in Land) Act, 1962 (50 of 1962), the Central
Government hereby makes the following amendments in
the notification of the Government of India in the Ministry
of Petroleum and Natural Gas Vide No. S.O. 756 dated
16.02.2012 published in the Gazette of India dated 25.02.2012;
namely :
In the said notification for the words “Shri S. M.
Saiyed, Dy. Collector, GUJARAT STATE PETRONET
LIMITED, 5th floor, GSPC Bhavan, Gandhinagar – 382010”,
the words “Shri S.M. Saiyed, Additional Collector and
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
947
Competent Authority, GSPL INDIA GASNET LIMITED,
Mehsana—Bhatinda Natural Gas Pipeline Network, GSPL
Bhavan, Plot No. E-18, GIDC Electronic Estate, Sector-26,
Gandhinagar, Gujarat – 382028” shall be substituted.
This notification will be effective from the date of its
issue.
[F. No. L-14014/39/2011-GP-II]
S. P. AGARWAL, Under Secy.
Je ,oa jkstxkj ea=kky;
ubZ fnYyh] 10 iQjojh] 2016
dk-vk- 439-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr lapkj
fuxe fyfeVsM ds çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa
ds chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;&2] /uckn ds iapkV (lanHkZ
la- 76@2013) dks çdkf'kr djrh gS] tks dsUnzh; ljdkj dks
02@02@2016 dks çkIr gqvk FkkA
¹la- ,y&40012@140@2012&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 10th February, 2016
S.O. 439.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. Reference
No. 76/2013) of the Central Government Industrial
Tribunal-cum-Labour Court No. 2, Dhanbad now as shown
in the Annexure in the Industrial Dispute between the
employers in relation to the management of the Bharat
Sanchar Nigam Limited and their workman, which was
received by the Central Government on 02/02/2016.
[No. L-40012/140/2012-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD
PRESENT :
Shri R.K.Saran, Presiding Officer
In the matter of an Industrial Dispute under Section 10
(1)(d) of the I.D. Act, 1947
REFERENCE NO. 76 OF 2013
PARTIES
: Sri Gaya Paswan
S/o Shri Shukla Paswan,
R/o Mohalla -Kistipur, PO : Sahandha
PS- Dhanrawa, Patna
Vs.
The Chief General Manager
Bharat Sanchar Nigam Ltd., Patna
Patna Telecom Circle, Patna (Bihar)
Order No. L-40012/140/2012-IR(DU)
dt. 18.03.2013
APPEARANCES :
On behalf of the workman/Union
:
None
On behalf of the Management
:
None
State :Bihar
Industry : Telcom
Dated Dhanbad, the 21st Dec., 2015
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under
Sec. 10 (1)( d) of the ID. Act, 1947 has referred the following
dispute to this Tribunal for adjudication vide their Order
No. L-40012/140/2012-IR (DU) dt. 18.03.2013.
SCHEDULE
Whether the action of the Management of Bharat
Sanchar Nigam Ltd., Patna in terminating the services
of Shri Gaya Paswan S/o Shri Shukla Paswan is legal
and justified? To what relief the workman concerned
is entitled to ?
2.
None either from workman concerned nor the
Management or it Representative reported for presence
nor did file the W.S. by the workman despite issuing
altogether three Regd. Notices on dt. 21.08.2014, 9.5.2014
and the last one on 29.04.2013 on the address of the
workman referred in the Order of Reference itself. Though
one remained “Undelivered” with no specific remarks
contrary to it, Mr. Sushil Pd. Ld. Advocate represented the
case all alone but not was present on the date. The Schedule
is relating to termination of services by the Bharat Sanchar
Nigam Ltd., Patna Circle, challenging its legality and
justification seeking reliefs under it by the workman.
From the perusal and emphatically scrutiny of the
case record, it appears the workman all along remained
absent since its inception and proved failure even in
submission of WS despite providing ample opportunities
reflected through Note sheets of the record. It shows the
conduct and manner, the workman walks, and the Tribunal
will be unfair to set the case record for rolling for uncertainty,
rather push for closure immediately due to reluctance of
the workman concerned as the workman in no way has
showed seriousness for adjudication. Under such
circumstances, the case is dosed; and accordingly an Award
of ‘No Dispute Award’ is passed.
R. K. SARAN, Presiding Officer
948
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
ubZ fnYyh] 29 iQjojh] 2016
dk-vk- 440-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,,lvkbZ ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] y[kuÅ ds iapkV (lanHkZ la- 06@2005) dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@02@2016 dks izkIr gqvk FkkA
[la- ,y&42012@6@2002&vkbZvkj (lh&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 29th February, 2016
S.O. 440.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 06/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Lucknow as shown in the Annexure, in the industrial
dispute between the management of Archaeological
Survey of India, and their workmen, received by the Central
Government on 29/02/2016.
[No. L-42012/6/2002-IR (C-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT :
RAKESH KUMAR, Presiding Officer
I.D. No. 06/2005
Ref. No. L-42012/6/2002-IR (C-II) dated 13.01.2005
BETWEEN :
Sri Dinesh Chandra S/o Sh. Gitam Singh
C/o Sh. Surender Singh, Advocate
43/16 S./15 A Sector-16, Sikandera, Agra
AGRA (U.P.)
AND
1. The Supdt.Archaeologist
Archaeological Survey of India
Agra Division, 22, Mall Road
Agra (UP.) 282001
AWARD
1.
By Order No. L-42012/6/2002-IR(C-II) dated
13.01.2005 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 Dinesh Chandra S/o Sri Gitam
Singh, Agra and the Supdt. Archaeologist, Archaeological
Survey of India, Agra for adjudication.
2
The reference under adjudication is:
“Whether the action of the management of
Archaeological Survey of India in terminating the
services of Sri Dinesh Chandra w.e.f. 18.10.2000 is
legal and justified? If not, to what relief the workman
is entitled?”
3.
The workman has filed claim statement A1-3, wherein
it has been stated in brief that he had been working under
the management of opposite party continuously for the
last 10 years, got temporary status in service, was getting
wages regularly amounting to Rs. 4400/- per month, but
without issuing any charge sheet and without conducting
any domestic enquiry he was illegally terminated on
18.10.2000. The applicant has stated that he was employed
as Beldar (Masson Attendant), 100 of workmen have been
working under the management, several persons junior to
the applicant are still working, the father of the applicant
Sri Geetam Singh was also a permanent employee as
Monument Attendant, he was an office bearer of the union,
submitting the problems of the workmen from time to time
and also bringing to light the mal-practices of the department
before the competent authorities, and consequently the
opposite party felt hurt and the management terminated
the services of the father and brother of the applicant and
applicant himself was illegally terminated, wages have not
been paid to his father w.e.f. August 2000, all the 3 major
members of the family are thrown out of employment.
4.
The applicant has alleged that the Sri Munajjar Ali,
Conservation Assistant has threatened the father of the
applicant and abused him, and in revenge the applicant
was terminated vide letter dated 18.09.2000.
5.
It is further stated that the services of the applicant
have been terminated under the signature of the Supdt.
Archaeologist Sri Dharam Veer Sharma without following
the principles of natural justice. The applicant has been
terminated from the services by the notice in which the
false and baseless charges were levelled against him. The
applicant was not heard genuinely in spite of this illegal
process and he was not given sufficient opportunity to
defend his case. At the time of termination of the services
of the applicant, neither retrenchment compensation was
paid nor was any other service benefits given. He was not
paid his earned wages for the last two months and even he
was not paid his bonus due. On 19.10.2000 he was forced
to sign on the pay sheet as such he did but till date earned
wages have not been paid to him in spite of his repeated
requests. The applicant being old and senior workman,
had also requested the management so many times to
regularize him in service on vacant posts of monument
attendant in group ‘D’ category which are lying vacant for
the last few years in the circle, because the applicant is
working since the last ten years continuously without any
break. This is also one of the causes to terminate his services
as when there is no fiddle there will be no voice.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
949
6.
With the above pleadings the workman has requested
to reinstate him with full back wages and for payment of
bonus along with interest etc.
7.
Several documents and rulings of the court have
been annexed with the claim statement.
8.
The management has filed written statement A2/13
wherein allegations levelled in the claim statement have
been denied. The opposite party has stated that
Archaeological Survey of India is a sovereign department
under the Department of Culture of the Govt of India, it is
not an industry, the provision of I.D. Act., does not apply.
The monuments and sites are not only archaeological
wealth of the country but also sentinels of national heritage
and for these purpose departments engage casual labourers
for specific job and for specific duration. The personnel
working under the department are governed by
CCS(Conduct) Rules and the department is neither a
industry nor it undertakes any kind of industrial work, it is
not manufacturing unit. The management has stressed that
Under Secretary, Ministry of Culture had written a letter to
Ministry of Labour informing him that the department is
not a industry, the CGIT-cum-Labour Court, Ahmedabad
has also observed that the opposite party department is
not a industry. The Ministry of Labour had earlier refused
to refer this matter to CGIT-cum-Labour Court for
adjudication on the grounds that the OA is filed by the
workman in Hon’ble CAT, Allahabad for similar relief, but
the same was dismissed subsequently the matter was
referred to this court without seeking the comments of the
opposite party thereby violating the principle of natural
justice.
9.
It is further stated that the applicant was granted
temporary status in the year 1993 under the Grant of
temporary status and regularization scheme of 1993.
Thereafter, he was working as Mason Attendant at different
monuments of Sikandara sub-circle of Agra Circle of the
ASI. During this period he was involved in various kinds
of nefarious activities against the department. He neither
maintained office discipline nor he obeyed the instructions
of his superior officials. He was the most disobedient person
in the Sikandara sub-circle of this circle. Besides Sri Dinesh
Chand had also prepared duplicate keys of the dak
bungalow gate of the Sikandara Monuments for ulterior
motives and helped in making unauthorized entry of
antisocial elements through this gate at odd hours. He has
not handed over the duplicate keys till date to the Officer
in chare of Sikandara sub circle even after repeated
instructions. Subsequently, the applicant was posted at
Firoz Khan’s Tomb to perform his duty there but during
surprise checks by the officer incharge of Sikandara sub
circle he was found absconding from his duty and was
found loitering in the Sikandara tomb for illegally extorting
money from the tourists and for cheating the public. He
often extracted money from the tourists fraudulently.
Besides these, Sri Dinesh Chand and his brother Suresh
Chand, ex-temporary status workers of Sikandara sub-circle
also illegally occupied two chowkidar quarters inside the
Sikandara Tomb premises since more than a decade. The
applicant was also misusing electricity and water facilities
in the premises of the Govt. accommodation and was not
paying any house rent, electricity and water charges to the
Department although they were getting house rent and
other allowances regularly. In addition, he alongwith his
brother was keeping cattle with them inside the Govt.
accommodation illegally occupied by them and thus they
were not only creating nuisance but also making the
monument dirty and destroying the Archaeological garden
of Akbar’s tomb, Sikandara, which is a transparent violation
of Ancient Monuments and Archaeological Sites and
Remains Act. 1958, in this regard. The officer in-charge of
Sikandara sub-circle had issued several warnings but he
did not bother for the same or did not bother to reply the
office memoranda properly. He had also gone to the extent
of threatening his superior officers of dire consequences.
Besides these, the applicant was also involved in the theft
of Govt. article from inside the monument complex. On
31.08.2000, he had stolen a Sintex Water tank from the
Sikandara monument in the connivance of his brother Sri
Suresh Chand. In this regard, a complaint against the
applicant and his brother was lodged by this office at the
police station Sikandara, Agra. In addition to these, the
applicant was also sitting on illegal dharna organized from
16.10.2000 to June2001 by an unauthorized union leader,
Sri Surendra Singh, against whom two criminal petitions
are pending before the Hon’ble High Court of Allahabad
and was creating nuisance in front of the office of the
opposite party. Thus the past record of the applicant clearly
reveals dereliction of duties, disobedience and involvement
in various kinds of nefarious activities and extending threats
to officers on govt duty. Keeping in view the above, the
Supdt. Archaeologist/employer was left with no other
option but to initiate strict disciplinary action against him
and therefore the Supdt. Archaeologist/employer, in
exercise of powers conferred upon by section 7 of ‘Casual
Labourers: Grant of Temporary Status and Regularization
Scheme of 1993, issued a notice on 18.09.2000 with one
month’s notice and notice pay as per rule. The charges
levelled against him in the notice dated 18.09.2000 were
based on facts explained in the foregoing paragraphs. The
manners and behaviour of the petitioner was highly
disobedient, criminal and unbecoming of a Govt. Servant.
If any attendant or a temporary status casual worker such
as the applicant shy away from discharging his duties and
disobeying the authorities of his supervisory officials such
as the respondent, it would definitely defeat the very
purpose of engaging an attendant/monument attendant/
temporary status casual worker like the applicant, in govt.
service for safeguarding centrally protected monuments
of national importance.
10.
It is further stated that the allegations levelled are
false, fictitious and baseless and hence denied. Since the
services of the applicant had been lawfully terminated on
950
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
various charges, it is irrelevant whether any other person
is working or not. It is stated that the charges are false,
fictitious and fabricated and hence denied. The applicant
has been trying to draw the indulgence of this Hon’ble
Tribunal to gain sympathy only. The service of the father
of the applicant, Sri Geetam Singh was terminated for similar
offence. Sri Geetam Singh had also filed a case before the
Central Administrative Tribunal, Allahabad and the Hon’ble
court was pleased to issue directions to the respondents
to consider the appeal and dispose it off through a detailed
and reasoned order. Accordingly, he has been issued with
a reasoned and speaking order. The service of the brother
of the applicant Sri Suresh Chand was also terminated for
similar offence. However, it is pertinent to mention that the
applicant is purposefully trying to bring in the names of Sri
Geetam Singh and Sri Suresh Chand to draw the sympathy
of this tribunal. It is stated that the charges are false,
fictitious and fabricated and hence denied. It is true that
the services of the applicant was terminated under the
signature of Sri Dharamvir Sharma, the then Supdt.
Archaeologist but it is false to allege that principles of
natural justice were not followed. The officer in-charge of
Sikandara Sub-circle, where he had been working has issued
him several warnings and memoranda so as to give him
chances to improve his conduct and manners but he failed
to avail the opportunity. It is stated that all the charges
levelled against him were just and proper. But he failed
either to improve himself or to furnish suitable reply to
warnings or to act in a manner benefiting of a temporary
status casual worker. And hence his services were
terminated. It is also submitted that the employer reserves
the right to prove the charges on merit before tribunal.
11.
It is stated that section 7 of “Casual Labourers: Grant
of Temporary Status and Regularization Scheme of 1993”,
confers the power upon the employer to terminate the
services of temporary status casual labourer with one
months notice and notice pay. Accordingly, the applicant
was given a month’s notice and notice pay, which he refused
to accept in front of witnesses. As he failed to improve his
conduct or to mend his manners and prove to be a befitting
worker so his services were terminated after the end of one
month’s period. On the contrary, it is stated that he had
signed the pay sheet on 19.10.2000 in support of receipt of
his earned wages. Signatures are normally taken from the
individual after he receives an amount. So the existence of
his signature on the pay sheet justifies his receipt of the
earned wages. If he has any proof to the contrary, he may
be put to strict proof thereof. The applicant was one of the
most irresponsible and uncouth workers. He had been given
so many opportunities to improve his manners and behave
in a manner befitting to a temporary status worker but he
himself had failed to utilize the opportunities accorded to
him by the opposite party but instead remained laconic
towards his irresponsible acts thinking that in the garb of
threat no one could do anything to him. In order to escape
from the charges levelled against him, the applicant is now
trying to give a different colour to the case by twisting the
facts; It is pointed out that the charges framed in the
termination notice dated 18.09.2000 were based on facts as
explained in the foregoing paragraphs. The disciplinary
action taken by the department against the petitioner is
entirely based on his misconduct, disobedience and his
illegal activities against the department.
12.
The opposite party has asserted that the workman
during his service did not behave properly, he did not prove
himself to be worthy of the organization, he was found to
be undesirable by the department, therefore he could not
be given employment, the opposite party had lost
confidence in him, very serious and gross charges were
found against the workman. The opposite party has stated
that his pending dues have been paid to the workman
through the CGIT-cum-Labour Court, Kanpur. The
management has prayed to dismiss the claim statement.
13.
The workman has filed rejoinder with the strong
denial of the facts mentioned in the written statement while
reiterating the pleas taken in the claim statement. The
workman has also emphasized that the order passed in the
LCA, by the CGIT, Kanpur does not adversely affect the
right of the workman in the present case. The workman has
also stressed that the award adjudicated by CGIT, Kanpur
in I.D. 122/91 had not been filed by the management.
Alongwith rejoinder the workman has filed the copy of the
statement of Sri Munajjar Ali, Conservation Assistant
recorded in I.D no. 39/03.
14.
The workman Sri Dinesh Chandra has filed affidavit
in evidence, he was duly cross examined on behalf of the
management. The management examined Sri Munajjar Ali,
Conservation Assistant in its evidence, and he was also
thoroughly cross examined on behalf of the workman. Other
witness Sri Amar Singh, Sunhari Lal, Tejpal and Sri Bal
Kishan were examined by the management and they were
cross examined on behalf of the workman.
15.
Heard authorized representatives of the parties at
length and perused the records available on file.
16.
The authorized representative of the workman has
come up with a case that the workman who attained
temporary status and extended all the benefit admissible to
the temporary employees of the opposite party; but his
services have been terminated by the management of the
opposite party without issuing any charge sheet or
conducting a formal domestic/departmental inquiry against
the workman, in sheer violation of the principles of natural
justice. The authorized representative of the workman has
also contended that the management has not only failed to
observe norms of natural justice within their department
but also failed to prove the allegations leveled against the
workman while illegally terminating his services w.e.f.
18.10.2000. The workman’s representative has categorically
contended that the opposite party very well falls within
the definition of the industry as it is indulge in commercial
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
951
activities as provided in the ‘triple test’ provided by Hon’ble
Apex Court in Bangalore Water Supply case. The workman
has relied upon:
(i) Bangalore Water Supply & Sewerage Board vs
A. Rajappa & others 1978 LLJ 349.
(ii) H.S. Chandra Shekara Chari vs Divisional
Controller, KSRTC & another 1999 SCC (L&S)
898.
(iii) Hari Ram Maurya vs Union of India & others
2006 SCC (L&S) 1677.
(iv) Union of India & others vs Mahaveer C. Singhvi
(2010) 2 (L&S) 602.
(v) Maharashtra State Road Transport Corporation
& another vs Casteribe Rajya Privahan
Karmchari Sanghatana (2009) 2 SCC (L&S) 513.
(vi) Bhuvnesh Kumar Dwivedi vs M/s. Hindalco
Industries Ltd. 2014 AIR SCW 3157.
(vii) M/s. U.P. Motor Transporters Association vs
Labour Court IV, Kanpur & another 2003 (99)
FLR 975.
(viii) Sriram Industrial Enterprises Ltd. Vs Mahak
Singh & others (2007) 1 SCC (L&S) 961.
(ix) Order of Hon’ble Apex Court in Civil Appeal No.
2280 of 2000, Nar Singh Pal vs Union of India &
others.
17.
In rebuttal, the authorized representative of the
management has argued that the department of ASI is not
covered within the definition of ‘industry’ as provided in
the Industrial Disputes Act, 1947 and the personnel working
in the ASI are governed by CCS (Conduct) Rules, therefore,
there was no need of issuing any charge sheet or
conducting any regular inquiry against the workman as
per provisions of T.S. Rules, 1993. The learned
representative of the management has asserted that the
management tried its best to deliver the notice pay and
other dues consequent to termination of his services to
the workman but he refused to accept the same; but later
on in LCA case No. 52/2001 before CGIT-cum-Labour Court,
Kanpur accepted the same in Lok Adalat; thus, when the
workman has accepted the notice pay then the workman
cannot agitate the same before this Tribunal that he was
illegally terminated by the management.
However, the authorized representative has
discarded the argument of the authorized representative of
the management with submission that he never participated
in any Lok Adalat. He has further asserted that the workman
was neither paid any amount nor he received any amount
in pursuance to the order of the CGIT-cum-Labour Court,
Kanpur in the alleged Lok Adalat. The authorized
representative of the management has also submitted that
the case laws relied upon by the workman are not applicable
with respect to facts of the present case.
18.
I have given my thoughtful consideration to the rival
contentions of the parties and scanned entire evidence on
record in light thereto.
19.
At the outset of the case the management of the ASI
has taken preliminary objection that it does not fall within
the purview of the definition of industry as provided in the
Section 2 (j) of the Act. The parties have argued vehemently
in their respective stands. Hence, after going through the
rival contentions of the parties it becomes apparent that
before entering into the merit of the case this Tribunal has
to decide as to whether the opposite party is an ‘industry’
or not within the meaning of the Section 2 (j) of the Act. In
this regard the workman has relied on verdict of Hon’ble
Apex Court in Banglore Water Supply & Sewerage Board
etc. vs. A Rajappa & others case; wherein it has been
observed that
“absence of profit motive on gainful objective is
irrelevant, be the venture in the public, joint, private
or other sector.”
Hon’ble Apex Court has further observed that
“Where (i) systematic activity (ii) organized by co-
operation between employer and employee (the direct
and substantial element is commercial (iii) for the
production and/or distribution of goods and services
calculated to satisfy human wants and wishes (not
spiritual or religions but inclusive of material things
or services geared to celestial bliss i.e. making on a
large scale Prasad or food) prima facie, there is an
industry in that enterprise.”
It is well known that the Archeological Survey of
India is indulged in upkeep of the ancient monuments in
order to preserve the cultural heritage of this country. For
achieving this aim the ASI is being funded by the
Government of India and it most of the times charges entry
fee from the visitors; thus, a handsome amount is being
collected every year, which is being utilized for the
maintenance and upkeep of the monuments and its gardens
etc. The workman has contended that the work carried out
by the ASI is similar to CPWD and PWD, which are industry
within the purview of the Act. Also, it has indicated that
the nature of work carried out by ASI qualifies the triple
test, formulated by Hon’ble Apex Court in Bangalore Water
Supply case.
Also, the authorized representative of the
management has pointed out that an effort had been made
to settle the dues of the workman through Lok Adalat before
CGIT-cum-Labour Court, Kanpur; although the fact of any
settlement is denied by the workman; but how can the
management assail on two boats i.e. contending that it is
not an industry before this Tribunal and entering into
settlement with the same workman before CGIT-cum-Labour
Court, Kanpur. Why the management of ASI did not take
the same plea there that the LCA case was not maintainable
952
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
before CGIT-cum-Labour Court, Kanpur as ASI is not an
‘industry’. This shows opportunitism on the part of the
management; hence it is also prevented by the rule of
estoppel; and now it is not open for the ASI it to plead that
it is not an industry once contested the case before CGIT-
cum-Labour Court, Kanpur and participated in Lok Adalat
there.
Thus, in view of facts and circumstances of the case,
discussion made hereinabove; and above legal
prepositions, I am of the considered opinion that ASI is
not discharging sovereign function and is at par with the
CPWD, PWD and other municipalities/upkeep agencies,
which are well covered under Industrial Dispute; and
accordingly, come to the conclusion that the opposite party
i.e. Archeological Survey of India is an ‘industry’ within
the provisions of Section 2 (j) of the Industrial Disputes
Act, 1947.
20.
Now coming to the merits of the case, it is admitted
case of the parties that the workman has initially been
engaged as casual labourer and was granted temporary
status in the year 1993 under the Grant of Temporary Status
and Regularization Scheme of 1993 and his services have
been terminated vide impugned order dated 17.10.2000 and
no charge sheet was issued or any departmental inquiry
was not conducted for alleged misconduct of the workman.
Admittedly, the management of the ASI has issued notice
dated 11.09.2000, paper No. 13/28, to the workman, which
was notice-cum-termination letter, containing following
allegations:
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fd;k x;k oju vki fldanjk esa i;ZVdksa dks xkbM
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ik, x, ftlls i;ZVdksa ds le{k foHkkx dh Nfo /wfey
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fn[kkbZ oju vU; lkFkh deZpkfj;ksa dks Hkh dke u djus
ds fy, foHkkx ds fo#¼ izsfjr fd;k ftlls vO;oLFkk
dk ekgkSy mRiUu gqvk A
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vuqifLFkr n'kkZbZ xbZ ftlls ljdkjh dk;Z esa ck/k mRiUu
gqbZ A
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x;k ftlds fy, vki ;ksX; u Fks ,oa dbZ Kkiuksa ds
mijkar vkids }kjk ljdkjh vkokl rks [kkyh fd;k x;k
exj orZeku esa Hkh vki viuk fuokl Lekjd ifjlj esa
gh cuk, gq, gSa tks vfrØe.k dh Js.kh esa vkrk gS A
6- ;g fd vkids }kjk Mkd caxys xsV dh nksgjh] frgjh
pkfc;ka cuokbZ xbZ ftUgsa laj{k.k lgk;d ds ekaxus ij
Hkh tek ugha fd;k ,oa le; vle; ml njokts
vlkekftd rRoksa dk vkokxeu djk;k x;k A
7- ;g fd vkids }kjk ljdkjh vkokl esa jgrs gq, vfrfjDr
fctyh o ikuh dk miHkksx fd;k x;k ftldk Hkqxrku
ljdkj dks ugha fd;k x;k A
8- ;g fd orZeku esa Hkh vkids }kjk fldUnjk Lekjd
ifjlj esa voS/ rjhds ls fctyh o ikuh dk mi;ksx
fujarj tkjh gS A
9- ;g fd vkids }kjk ljdkjh vkoklksa ds ejEer dk;Z esa
Hkh O;o/ku Mkyk x;k A
10- ;g fd vkids }kjk Lekjd can gksus ds i'pkr~ u'ks esa
vius vf/dkfj;ksa ds izfr vlaoS/kfud 'kCnksa dk iz;ksx
fd;k x;k ftlls jkf=k M~;wVh okys deZpkfj;ksa ds fy,
leL;k mRiUu gqbZ A
11- ;g fd vkids }kjk vius firk ds laj{k.k esa usrkxnhZ o
izsl esa foHkkx o vf/dkfj;ksa ds fo#¼ >wBs lekpkj nsus
tSls foHkkx fojks/h dk;Z fd, x, A
12- ;g fd vkidh voS/ xfrfof/;ksa ds fy, tc vkidksa
Kkiu fn, x, rks vkids }kjk muds mÙkj ugha fn,
x, A¸
In pursuance to above notice dated 11.09.2000, the
management of the ASI terminated the services of the
workman w.e.f. 18.10.2000. The efforts of the management
regarding payment of notice pay etc. to the workman could
not fructified due to non-receipt of cheque, bearing
payment, by the workman.
21.
Hon’ble Apex Court in Hari Ram Maurya vs Union of
India & others 2006 SCC (L&S) 1677 has observed that it is
mandatory to hold an inquiry when the termination of
services are punitive. Hon’ble Court held that even though
the appellant is a temporary employee, his services cannot
be terminated on charge of bribery without holding an
inquiry and thereafter acting in accordance with law.
22.
In 2008 (116) SCC FLR 357, while considering the
question pertaining to circumstances when permission can
be granted to an employer to lead evidence to justify its
order of termination, Hon’ble Apex Court has observed
that wrong permission granted to lead evidence and absence
of acceptable evidence are conceptually different. Hon’ble
Apex Court has also observed that where an employer
failed to make an inquiry before dismissing or discharging
a workman, it is open to him justify the action before the
Tribunal by leading all relevant evidence before it and
Tribunal is empowered to consider the evidence placed
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
953
before it for the first time in justification of the action taken
only, if no inquiry has been held or after the inquiry conduct
by an employer is found to be defective.
In Neeta Kaplish vs. Presiding Office, Laour Court &
another 1999 SCC (L&S) 302 Hon’ble Apex Court dealing
with the matter under section 11 A of the I.D. Act has held:
“In all cases where enquiry has been found to be
defective, Tribunal can call upon the management or
the employer to justify action taken against the
workman & to show by fresh evidence that the
termination or dismissal was proper. If management
does not lead any evidence by availing of this
opportunity, it cannot raised any grouse at any
subsequent stage that it should have been given
that opportunity, as the Tribunal, in those
circumstances, would be justified in passing an award
in favour of the workman. If however, opportunity is
availed of and evidence is adduced by the
management, validity of action taken by it has to be
scrutinized and adjudicate on the basis of such fresh
evidence.”
23.
It is the case of the parties that the management
of ASI did not issue any formal charge sheet to the workman
or did not conduct any departmental inquiry where the
delinquent employee was afforded opportunity to defend
himself. The management of the ASI moved an application
C-23 seeking opportunity to proved the charges leveled
against the workman before this Tribunal, relying upon
2001 (90) FLR (SC) 35, therefore, it was oblivion of this
Court to call upon the management of the ASI to justify its
action by proving the alleged charges before this Tribunal,
in view of the principle laid down by Hon’ble Apex Court in
Neeta Kaplish case (supra); and accordingly the request
of the management was allowed vide order dated 15.02.2006
after hearing the parties; whereby the management of the
ASI was called upon to file list of documents and witnesses
in support of charges.
24.
The workman has examined himself and he denied
the charges leveled against him in his cross examination;
and stated that Sri Munazzar Ali had enmity with him, which
resulted into leveling of baseless and false allegations
against him.
In rebuttal, the management filed list of documents
C-25 and list of witnesses, C-36, which included names of
Sri Amar Singh, Bal Kishan, Gajendera Singh, Tej Pal and
Sunhari Lal. However the management examined Sri
Munazzar Ali, Conservation Assistant, Sri Amar Singh,
Sunhari Lal, Tej Pal and Bal Kishan in support of charges.
The management witness, Sri Munazzar Ali stated in his
statement on oath that the services of the workman was
satisfactory at all and he was indulged in various nefarious
activities such as:
(i)
Langoorbazi.
(ii)
Work as tourist guide during official working
hours.
(iii)
Unauthorized possession of staff quarter.
(iv)
Keeping cattle in monument’s premises.
(v)
Theft of water tank for which FIR was lodged.
(vi)
During inspection the workman was found
absent.
He has also referred to paper No. 25/2, report SHO,
Police Station, Sikandara dated 16.9.2000, paper No. 25/3,
report before SA, Agra, dated 11.9.2000 regarding
encroachment by Gitam Singh, paper No.25/4, Office
Memorandum dated 25.9.2000 to remove encroachment by
Gitam Singh, paper No. 25/5, report dated 26.9.2000 to SSP,
Agra remove encroachment by Gitam Singh, paper No. 25/
6, note dated 29.9.2000 declaring vacation of the monument
premises by Gitam Singh, paper No. 25/7, report dated
26.9.2000 before SSP, Agra regarding prevalence of anarchy
in Akbar’s Tomb, paper No. 25/8, notice of encroachment
dated 24.8.2000 addressed to Gitam Singh, paper No. 25/9,
report dated 29.9.2000 to SHO, Sikandara, Agra.
The opposite party has also examined Sri Amar Singh,
Sunhari Lal, Tej Pal and Bal Kishan; whose evidence is
mainly regarding non-receipt of notice pay etc. by the
workman. However, Sri Amar Singh stated that he has
worked with the workman at Sikandara. He also stated that
the workman was indulged in langoorbazi and was reluctant
about his duties; but in cross-examination he stated that
he is not aware of fact that as to whether any tourist gave
him money for langoorbazi or not. Witness, Sunhari Lal
did not support the version of Munazzar Ali and stated
nothing about charges leveled against the workman. On
the contrary one of the witnesses, viz. Tej Pal stated that
the workman used to leave after completing his duties.
Another witness, Bal Kishan stated in his cross-examination
that he is not certain as to who used to tame animals. He
stated that he has seen goat but cannot say it was tamed
by the workman or his father. Thus, the statement of Sri
Munazzar Ali remains unsupported with the evidence of
other witness as regards alleged misconduct of
unauthorized occupancy, working as guide, keeping cattle
in monument premises, theft of water tank and reluctance
to his work.
25.
The management witness, Sri Munazzar Ali in his
evidence has stated that the workman was indulged in
various nefarious activities, such as Langoorbagi, working
as guide, keeping cattle and unauthorized possession of
staff quarter; but from perusal of the documentary relied
upon by the management it comes out that the name of the
workman, Dinesh finds its reference on in report dated
16.9.2000, paper No. 25/2 and thereafter none of the
document have any mention of the name of the workman,
particularly there is no mention of name of the workman in
evacuation memo dated 29.09.2000, paper No. 25/6, when
954
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
the unauthorized possession was got evacuated in
presence of ASI officers and officials. This makes the
allegation leveled by the witness baseless and vague. The
witness, Sri Munazzar Ali has not specifically stated that
when and where the workman was found indulged in
working as tourist guide or who saw him performing such
act or who were the complainants to him regarding such
activity of the workman. Further, the management witness
failed to clarify what he actually means from ‘Langoorbazi’
or what pecuniary benefit or otherwise the workman
received by doing such Langoorbazi, amounting to
misconduct on the part of the workman. As regards illegal
or unautorised occupancy of the staff quarter by the
workman or keeping cattle in the monument premises, the
management witness again failed to establish this fact by
not stating as which staff quarter with what number or
what location was occupied by the workman; more over
the paper No. 25/6 totally goes contrary to the statement of
management witness, which shows that actually the staff
quarter was occupied by Gitam Singh, which was got
evacuated by the ASI officials on 29.09.2000 when he was
expelled out along with his family, belongings and cattle.
There is no mention of the name of the workman in the
memo dated 29.9.2000 nor there is any evidence to the
effect that the workman was part of his family and was
residing with his father in the same quarter; hence, it is
ethically wrong to blame the workman for unauthorized
occupancy of staff quarter. The management witnesses
has stated that the workman as found absent from his duty
point; but could not corroborate the same with
documentary evidence. Also, he could not produce and
inspection memo or any show cause memo issued to the
workman for his unauthorized absence from the duty place.
As regards theft of water tank, there is no documentary
evidence, apart from oral evidence of the management
witness, to show that what was the fate of the FIR logged
for the alleged theft of water tank. Whether any charge
sheet after due investigation ws field by the police against
the workman. Mere send a report to the SHO does not
established the allegation that the workman was guilty of
theft of water tank.
26.
Thus, in conclusion, the management of the ASI
utterly failed to prove the charges levelled before this
Tribunal vide notice dated 11.09.2000. The allegations of
misconduct, levelled upon the workman, are not specific
and except allegation pertaining to absence at the time of
inspection, all are quite vague and ambiguous. No
documentary evidence has been relied upon to prove the
only specific allegation by the management. The is lack of
consistency in the evidence of the witnesses produced by
the management on material point and memos given to the
workman and allegations made in the notice dated
11.09.2000, which formed basis of his impugned termination
order. Accordingly, on the basis of evidence adduced by
the opposite party, ASI no case of alleged misconduct could
be said to have been made out against the workman, Dinesh
Chand.
27.
The impugned order dated 17.10.2000, paper NO. 13/
29, termination the services of the workman, reads as under:
“In pursuance of sub-rule (1) of Rule 5 of the Central
Civil Services (Temporary Service) Rules, 1965, I, D.
V. Sharma, Superintending Archaeologist hereby give
notice to Shri Dinesh Chand, Daily Wager Temporary
Status that his services shall stand terminated with
effect from 19.10.2000 (Forenoon) one month salary
is being paid.”
A bare perusal of the above order reveals that the
said order had been passed under sub rule (1) of Rule 5 of
the Central Civil Services (Temporary Service) Rules, 1965;
but the said Rule is not application in case of workman. As
already discussed that the management has taken a
preliminary objection in its written statement that it is not
an ‘industry’; but in the same written statement, vide Para
6, it has stated that the notice dated 11.09.2000 had been
issued in exercise of powers conferred under Section 7 of
‘Casual Labourers Grant of Temporary Status and
Regularization Scheme’ of 1993; thus again, it impliedly
shows that the ASI is an industry and the action of the
management in terminating the services of the workman
vide impugned order dated 17.10.2000, under CCS
(Temporary Service) Rules, 1965 was illegal as the was not
covered with the said Rules.
28.
The learned authorized representative of the
management has argued that once the workman has
accepted the terminal benefits i.e. notice pay etc. in Lok
Adalat, then he barred by the res judicata. But the
contention of the management in this regard is devoid of
any merit. Firstly, in view of denial of the workman regarding
participation in any Lok Adalat and non-receipt of any
draft etc. towards payment from the management. The
order or Lok Adalat dated 19.03.2005, paper No. 52/2-52/3,
does not infer any participation of the workman and there
is no receipt of the draft, deposited by the management,
before the Tribunal. Secondly, even if it is taken for the
argument’s sake that the workman had accepted the one
month’s notice pay even then he is free to agitate the legality
of his termination on the basis of procedural flaw, in form
of non-observance of principles of natural justice, adopted
by the management while issuing the order of termination.
29.
Hon’ble Apex Court in their judgment dated
29.03.2000 in Civil Appeal No. 2280 of 2000, Nar Singh Pal
vs Union India & others where a casual labour who
subsequently acquired ‘temporary status’ terminated by
the management without holding a regular departmental
enquiry observed as under:
“The appellant was a casual labour who had attained
the ‘temporary’ status after having put ten years’ of
service……………………….. As pointed out earlier,
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
955
the termination of the appellant from service was
punitive in nature and was in violation of the
principles of natural justice and his constitutional
rights. Such an order cannot be sustained.
Hon’ble Apex Court further, allowing the appeal, held
as under:
“The order dated 20.5.1992, by which the services of
the appellant were terminated, is quashed with the
direction that the appellant shall be put back on duty
on the post which he held on 20.5.1992 and shall be
paid all the arrears upto date and other consequential
benefits admissible under the rule.”
Moreover, Hon’ble Apex Court in Bhuvnesh Kumar
Dwivedi vs. M/s. Hindalco Industries Ltd. 2014 AIR SCW
3157; wherein the workman, who rendered continuous
services for six years except for artificial breaks imposed
upon him with oblique motive by the respondents, was
held to be illegally terminated by the management with
following judgment:
“the appellant is entitled to reinstatement with full
back wages from the date of the termination of his
service till the date of his reinstatement and other
consequential benefits which accrue to him by virtue
of his employment with the respondent company”
30.
Thus, from the facts and circumstances of the case,
and case laws cited hereinabove, I am of considered opinion
that the opposite party management of Archeological
Survey of India failed to proved the charges of alleged
misconduct leveled upon the workman in its notice dated
11.09.2000, paper No. 13/28, the impugned order dated
17.10.2000, paper No. 13/29, terminating the series of
workman w.e.f. 19.10.2000 (forenoon) is not justified and is
liable to be set aside; resultantly, the workman is entitled
for reinstatement in view of 2014 AIR SCW 3157 (supra)
with all consequential benefits including full back wages
and continuity in service within 08 weeks of publication of
the award, failing which, the back wages shall carry simple
interest @ 6% per annum.
31.
Award as above.
LUCKNOW
22nd February, 2016.
RAKESH KUMAR, Presiding Officer
ubZ fnYyh] 29 iQjojh] 2016
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dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj bZlh,y ds
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fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la- 13@2000) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 29@02@2016 dks izkIr gqvk FkkA
[la- ,y&22012@347@1999&vkbZvkj (lh,e&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 29th February, 2016
S.O. 441.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 13/2000)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Asansol as shown in the Annexure, in the industrial
dispute between the management of Kalipahari ® Colliery,
M/s. Eastern Coalfields Ltd., and their workmen, received
by the Central Government on 29/02/2016.
[No. L-22012/347/1999-IR (CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT :
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 13 OF 2000
PARTIES :
The management of Kalipahari (R) Colliery, ECL
Vs.
Sri Iswar Paswan
REPRESENTATIVES :
For the management
:
Shri P. K. Goswami, Ld.
Advocate
For the union (Workman) :
Sri G. P. Mal, Ld. Advocate
Industry : Coal
State: West Bengal
Dated: 03.02.2016
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter No. L-22012/
347/99-IR(CM-II) dated 27.01.2000 has been pleased to refer
the following dispute for adjudication by this Tribunal.
SCHEDULE
“Whether the action of the management of Ghusic
Colliery under Sripur Area of M/s. ECL in prematurely
superannuating Sri Iswar Paswan w.e.f. 13.08.1994
and in not paying the salary to the month of July,
1994 and August (up to 13.08.1994) is justified? If
not, what relief the workman is entitled?”
956
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Having received the Order No. L-22012/347/99-
IR(CM-II) dated 27.01.2000 of the above said reference
from the Govt. of India, Ministry of Labour, New Delhi for
adjudication of the dispute, a reference case No. 13 of 2000
was registered on 07.02.2000 and accordingly an order to
that effect was passed to issue notices through the
registered post to the parties concerned directing them to
appear in the court on the date fixed and to file their written
statements along with the relevant documents and a list of
witnesses in support of their claims. In pursuance of the
said order notices by the registered post were sent to the
parties concerned.
Case called out. Sri P. K. Goswami, Learned Advocate
is present on behalf of the management. Sri. G. P. Mall,
Learned Advocate is present on behalf of the workman but
the workman is absent and the case was fixed for evidence
of the workman.
This is one of the oldest cases of this tribunal – of
the year 2000. But, workman has not filed his evidence so
far. So many dates have been fixed, in which 26.03.2015,
03.06.2015, 17.08.2015 and 03.11.2015 were fixed as last
chance for evidence of the workman. But, neither he
appeared nor he tendered his evidence. It appears that the
workman has no more interest in filing evidence. Hence, I
think it proper and just to close this case. As such the case
is closed and a ‘No Dispute Award’ is hereby passed
accordingly.
ORDER
Let an “Award” be and same is passed as no dispute
existing. Send the copies of the order to the Govt. of India,
Ministry of Labour, New Delhi, for information and needful.
The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 29 iQjojh] 2016
dk-vk- 442-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj bZlh,y ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la- 39@2005) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 29@02@2016 dks izkIr gqvk FkkA
[la- ,y&22012@144@2004&vkbZvkj (lh,e&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 29th February, 2016
S.O. 442.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 39/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Asansol as shown in the Annexure, in the industrial
dispute between the management of Ningah Group of
Mines of M/s. Eastern Coalfields Ltd., and their workmen,
received by the Central Government on 29/02/2016.
[No. L-22012/144/2004-IR (CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT :
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 39 OF 2005
PARTIES :
The management of Ningah Colliery, ECL
Vs.
Sri Sikandar Mian
REPRESENTATIVES :
For the management
:
Shri P. K. Goswami, Ld.
Advocate
For the union (Workman) :
Sri Rakesh Kumar,
President, KMC
Industry : Coal
State: West Bengal
Dated: 04.02.2016
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter No. L-22012/
144/2004-IR(CM-II) dated 17.05.2005 has been pleased to
refer the following dispute for adjudication by this Tribunal.
SCHEDULE
“Whether the action of the management of Ningah
Colliery under Sripur Area of M/s. ECL in dismissing
Sri Sikandar Mian, P.R. Group-III Mazdoor w.e.f. 07/
12.01.1999 is legal and justified? If not, to what relief
the workman is entitled and from which date?”
Having received the Order No. L-22012/144/2004-
IR(CM-II) dated 17.05.2005 of the above said reference
from the Govt. of India, Ministry of Labour, New Delhi for
adjudication of the dispute, a reference case No. 39 of 2005
was registered on 31.05.2005 and accordingly an order to
that effect was passed to issue notices through the
registered post to the parties concerned directing them to
appear in the court on the date fixed and to file their written
statements along with the relevant documents and a list of
witnesses in support of their claims. In pursuance of the
said order notices by the registered post were sent to the
parties concerned.
Case called out. Both parties are absent.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
957
On perusal for the case record I find that neither the
management nor the union has so far filed their written
statement in this case though 10 years have already been
passed. Registered notices were sent to the parties on
07.06.2005, 05.05.2009, 02.01.2012 and 16.10.2014. The last
notice was received by Sri Rakesh Kumar, president of the
union (KMC). But the union has never been taken a step. It
seems to me that the union / workman is not at all interested
to proceed with the case further. The case is also very old
– of the year 2005. As such the case is closed and a ‘No
Dispute Award’ is hereby passed accordingly.
ORDER
Let an “Award” be and same is passed as no dispute
existing. Send the copies of the order to the Govt. of India,
Ministry of Labour, New Delhi, for information and needful.
The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 29 iQjojh] 2016
dk-vk- 443-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;wlh,y ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] tcyiqj ds iapkV (lanHkZ la- 7@2002) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 29@02@2016 dks izkIr gqvk FkkA
[la- ,y&22012@59@2001&vkbZvkj (lh,e&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 29th February, 2016
S.O. 443.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 7/2002)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of Western Coalfields
Ltd., Pench Area and their workmen, received by the Central
Government on 29/02/2016.
[No. L-22012/59/2001-IR (CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/7/02
General Secretary,
RKKMS (INTUC),
PO Chandametta,
Chhindwara
...Workman/Union
Versus
General Manager,
WCL, Pench Area,
PO Parasia,
Distt. Chhindwara (MP)
...Management
AWARD
Passed on this 29th day of January, 2016
1.
As per letter dated 20-12-2001 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
59/2001-IR(CM-II). The dispute under reference relates to:
“Whether the action of the Sub Area Manager,
Newton Sub Area of WCL, PO Parasia, Distt.
Chhindwara in terminating the services of Shri Istak
Ali, S/o Sheer Ali, tub loader of Neewton/ Ganpathi
Mine w.e.f. 16-8-2000 is legal and justified? If not, to
what relief he is entitled to?”
2.
After receiving reference, notices were issued to the
parties. Workman submitted statement of claim at Page
8/1 to 8/5. Case of Ist party workman is chargesheet was
issued to him on 8-3-2000 alleging unauthorised absence
from 1-9-2000. Reply was filed to said chargesheet on
15-3-00. Shri S.R. Bhandari was appointed as Enquiry Officer
and Shri N.S.Bist was appointed as Management
Representative. enquiry officer completed enquiry as empty
formality. Any witness of the management was not
examined. Statement of management representative was
recorded by Enquiry Officer and closed the enquiry.
Principles of natural justice were not followed. Management
failed to prove the allegation against workman. the
statement of management representative recorded before
Enquiry Officer is not a material evidence. The persons
who maintained registers about the attendance of
employees was not examined. Enquiry Officer to access
evidence in enquiry, findings of Enquiry Officer are
perverse. The right to make representation to Disciplinary
Authority was taken away as dismissal of workman was
approved by the Disciplinary Authority. workman reiterate
that the charges are not proved from evidence in Enquiry
Proceedings. The order of his dismissal is illegal and
deserves to be quashed.
3.
Management filed Written Statement at Page 5/1 to
5/6 opposing claim of workman. 2nd party submit that
workman was working as tub loader in pench area. He was
habitual absentee. He was irregular in service. Workman
was absent from duty on various occasions. The matter
was considered sympathetically with a view to improve
habit of workman. There was no improvement in his habit.
Workman was on duty for nil in 1998 and 2000 and 4 days
in 1999. Chargesheet was issued to workman on 8-3-2000
under Clause 26.30 of standing orders. Shri S.R.Bandari
was appointed as Enquiry Officer, Management
Representative was also appointed. Enquiry was
958
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
conducted on 23-6-2000. Workman was allowed assistance
of co-worker Shri Ganguly. Statement of management
representative was recorded in support of charges and
past record of workman. Management representative was
cross examined by co-worker of Ist party. 2nd party submits
that Enquiry Officer submitted his findings that charges
against workman are proved. Considering the findings of
Enquiry Officer, Competent Authority imposed punishment
of dismissal. The punishment of dismissal is proper. 2nd
party prays to answer reference in its favour.
4.
Workman submitted rejoinder at page 11/1 to 11/2
reiterating its contentions in statement of claim.
5.
As per order dated 23-5-2014, enquiry conducted
against workman was found proper and legal.
6.
Considering pleadings between parties and findings
on preliminary issue, the points which arise for my
consideration and determination are as under. My findings
are recorded against each of them for the reasons as below:-
(i)
Whether the misconduct alleged
In Negative
against workman is proved from
evidence in Enquiry proceedings?
(ii) Whether the punishment of dismissal
In Negative
imposed against workman is proper
and legal?
(iii) If not, what relief the workman is
As per final
entitled to?”
order
REASONS
7.
Workman died during pendency, his LRs are brought
on record. Enquiry conducted against workman is found
proper and legal as per order dated 23-5-2014. Whether
misconduct alleged against workman are proved needs to
be decided from evidence in Enquiry Proceedings. Copy of
Enquiry Proceeding is produced at Exhibit M-1. Original
Enquiry Proceeding is also produced. The chargesheet was
issued to Ist party workman on 8-3-2000. He was alleged to
be absent from duty from 1-9-99. The chargesheet was
issued under Clause 26.30 related to unauthorized absence
more than 10 days. The statement of Shri N.S.Bist
Management Representative was recorded in enquiry on
8-3-2000. The workman was absent from duty after his
transfer on 28-8-98 . he was on duty for 4 days in the year
1999. Workman had not challenged material evidence of
the management representative. statement of deceased
workman was recorded. Workman explained that he was
suffering from illness. Medical certificates are produced in
the Enquiry Proceedings issued by Dr.R.K.Gupta dated
10-5-2000 is of subsequent period. Medical certificate
issued by Medical Officer Burkui Hospital for the period
17-10-99, medical Certificate issued by Medical Officer,
Community Health Centre about illness dated 7-7-99 to 4-
9-99 was produced in the Enquiry Proceedings. There is no
evidence on record that workman informed about his illness
to the management. The absence of workman for remaining
period is not explained by workman. the evidence in Enquiry
Proceedings cannot be re-appreciated. The evidence is
sufficient to prove the misconduct alleged against workman
of his unauthorized absence. Therefore I record my finding
in Point No.1 in Affirmative.
8.
Point No. 2- In view of my finding in Point no.1
charge of unauthorized absence under Clause 26.30 of
Standing Order is proved. However the workman had
explained that he was suffering from illness. The Medical
Certificate for certain period was produced by him. workman
had not given intimation of his absence. Workman in his
statement had explained that he could not receive treatment
in colliery hospital as medical card was insisted. He was
not having medical card. Considering the explanation given
by workman about his illness, he produced medical
certificates, dismissal of service would be justified. In my
considered view, the punishment of dismissal needs to be
modified to compulsory retirement. Accordingly I record
my finding in Point No.2.
9.
In the result, award is passed as under:-
(1)
The action of the management imposing punishment
of dismissal is not proper and legal.
(2)
Order of punishment of dismissal is modified to
compulsory retirement. 2nd party be directed to
consider the retiral benefits as per rules to the LRs of
deceased.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 29 iQjojh] 2016
dk-vk- 444-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj MCY;wlh,y ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] tcyiqj ds iapkV (lanHkZ la- 81@2009) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 29@02@2016 dks izkIr gqvk FkkA
[la- ,y&22012@39@2009&vkbZvkj (lh,e&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 29th February, 2016
S.O. 444.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 81/2009)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure, in the industrial
dispute between the management of Western Coalfields
Ltd., and their workmen, received by the Central
Government on 29/02/2016.
[No. L-22012/39/2009-IR (CM-II)]
RAJENDER SINGH, Section Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
959
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/81/09
General Secretary,
Samyukta Koyala Mazdoor Sangh (AITUC),
CRO Camp, Iklehra,
Chhindwara
...Workman/Union
Versus
Chief General Manager,
Western Coalfields Limited,
Kanhan Area, PO Dungaria,
Chhindwara
...Management
AWARD
Passed on this 27th day of January, 2016
1.
As per letter dated 30-9-09 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
39/2009-IR(CM-II). The dispute under reference relates to:
“Whether the action of the management in dismissing
Shri Vijay Kumar w.e.f. 23-1-03 is legal and justified?
to what relief is the workman concerned entitled for?”
2.
After receiving reference, notices were issued to the
parties. On behalf of Ist party workman, statement of claim
is filed by Secretary of SKMS Union. Case of Ist party
workman is that he was working as tub loader in 25/25
Damua Colliery. Chargesheet was issued to workman on
6-11-2000. Workman has not submitted reply to the
chargesheet contending that the chargesheet was not
served on the workman. Without explanation of workman
to chargesheet, Enquiry Officer was appointed illegally.
Workman had participated in the Enquiry Proceedings. He
denied charges against him. Management had allowed
Defence representative. However the Defence
Representative did not participate in enquiry. Workman
was dismissed from service as per order dated 21-1-03.
Workman was not allowed opportunity for his defence. On
such ground, workman prays for his reinstatement.
3.
Management filed Written Statement opposing claim
of workman. 2nd party submits that workman was working
as tub loader in Incline No. 24-3 in Damua colliery. The
particulars of his attendance are shown in 1998 for 34 days
& 1 day sick leave, in 1999 for 35 days working and 21 days
leave of different kinds, in 2000 for 2 days working and 15
days sick leave. Chargesheet was issued to workman.
Enquiry Officer was appointed. Enquiry was held on various
dates shown in Para-5 of the Written Statement. Workman
was given opportunity for his defence. Workman did not
appear in enquiry. Enquiry was proceeded exparte. Enquiry
Officer submitted his report holding charges against
workman proved, showcause notice was issued to
workman on 11-2-02. Representation was not received from
workman. considering charges proved against workman in
Enquiry Proceedings, the workman was dismissed from
service. Management reiterates that enquiry was properly
held. Management had appointed its representative and
Enquiry Officer. Workman is not entitled to any relief.
4.
As per order dated 15-10-14, enquiry conducted
against workman is found proper and legal. Therefore there
is no need to allow management to adduce evidence for
proving charges.
5.
Considering pleadings on record and documents on
record, the points which arise for my consideration and
determination are as under. My findings are recorded
against each of them for the reasons as below:-
(i)
Whether the misconduct alleged
In Affirmative
against workman is proved from
evidence in Enquiry proceedings?
(ii) Whether the punishment of dismissal
In Affirmative
imposed against workman is proper
and legal?
(ii) If not, what relief the workman is
Workman is
entitled to?”
not entitled
to any relief.
REASONS
6.
The workman has not participated in reference
proceeding. For absence of evidence, Enquiry was found
proper and legal. Management’s witness proved documents
of enquiry collectively marked as Exhibit M-1. Workman is
found unauthorisely absent. The charges held against
workman are supported by evidence of management’s
witness and documents produced before Enquiry Officer.
Therefore I record my finding in Point No.1 in Affirmative.
7.
The evidence of management’s witness in enquiry
proceeding is clear that working days of workman in 1998
for 34 days, in 1999 for 33 days, in 2000 only for 2 days.
Workman has not participated in reference proceeding. No
evidence is adduced. The punishment of dismissal imposed
against workman therefore cannot be interfered. For above
reasons, I record my finding in Point No.2 in Affirmative.
8.
In the result, award is passed as under:-
(1)
The action of the management in dismissing Shri
Vijay Kumar w.e.f. 23-1-03 is proper and legal.
(2)
Workman is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2016
dk-vk- 445-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,llhlh,y ds
960
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] xksnkojh[kkuh ds iapkV (lanHkZ la- 28@2013) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 02@03@2016 dks izkIr gqvk FkkA
[la- ,y&22013@1@2016&vkbZvkj (lh&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2016
S.O. 445.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award of the Cent. Govt.
Indus. Tribunal-cum-Labour Court, Godavarikhani (IT/ID/
28/2013) as shown in the Annexure, in the industrial
dispute between the employers in selation to the
management of SCCL, and their workmen, which was
received by the Central Government on 02/03/2016.
[No. L-22013/1/2016-IR (C-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.
DIST. & SESSIONS COURT, GODAVARIKHANI
Present:
SRI G. V. KRISHNAIAH, Chairman-cum-
Presiding Officer
INDUSTRIAL DISPUTE No. 28 OF 2013
Friday, the 29th day of January, 2016
Between :
1.
UTLA SUGUNAMMA, W/o.
Late Nagabhushanam,
Age 54 years,
Occ: House hold and widow,
R/o.Village Dubbapalli,
Post Sriripuram, Mandal Mutharam,
Dist. Karimnagar.
2.
U.Mohana Rangachary, S/o.
Late Nagabhushanam,
Age 22 years
3.
U.Shankara Chary, S/o.
Late Nagabhushanam,
Age 23 years
4.
Sadanadapu Jayaprada, D/o.
Late Nagabhushanam,
Age 28 years
5.
Sadanadapu Subhadra,
D/o. Late Nagabhushanam,
Age 26 years
...Petitioners
A n d
1.
The General Manager,
Singareni Collieries Co.Ltd.,
Ramagundam Area-I,
PO: Godavarikhani,
Dist.Karimnagar.
2.
The Chairman & Managing Director,
Singareni Collieries Co.Ltd.,
PO. Kothagudem,
Dist.Khammam
...Respondents
This case coming before me for final hearing in the
presence of Sri S.Bhagavantha Rao, Advocate for the
petitioner and of Sri D.Krishna Murthy, Advocate for the
respondents; and having been heard and having stood
over for consideration till this day, the Tribunal delivered
the following:-
AWARD
1.
This petition is filed U/Sec. 2(A)(2) of I.D. Act praying
to set aside the dismissal order dt.14-7-2000 passed by the
Respondent No.1 and give employment to the petitioner
No.3 as per settlements.
2.
Allegations in the petition are as follows:-
The petitioner No.1 to 5 are the Legal Heirs of late
U.Nagabushanam, ex-employee of the respondents’
company who was appointed on 2-3-1982. He was removed
from service on 18-7-2000. His health was not good and
opted for VRS on 1-11-1999. The respondents’ company
initiated disciplinary action against Nagabhushanam, ex-
employee under 25:25 of standing orders of company and
terminated him from service. The said Nagabhushanam,
ex-employee had put in 18 years of service. Because of ill-
health, he could not attend his duties in 1999. He was
issued show cause notice terminating him from service.
His services are governed by two settlements dt.1-1-2000
to 31-12-2004 U/S 12(3) of ID Act r/w 11 (B) of ID Act.
Nagabhushanam, ex-employee took treatment in company
hospital and also in Govt. Area Hospital, Godavarikhani
from 2000 to 2005 and he died on 9-8-2005. Hence, they
prayed to allow the petition as prayed for.
3.
In response to this challenge, respondents filed
counter justifying the dismissal of the deceased workman
(Utla Nagabhushanam). The dependents of the deceased
employee having kept quiet for 13 years and raising the
dispute which is bared by limitation under Sec.2A(3) of
Industrial Disputes Amendment Act, 2010 and it is liable to
be dismissed. The said deceased workman Nagabhushanam
was appointed in the respondents company on 02-03-1982
and was dismissed in the year 2000. He was never regular
to his duties during his service period and he had never
put in the minimum musters as required under Mines Act.
The following attendance particulars indicate that
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
961
Nagabhushanam, ex-employee was not regular to his duties
during the period from 1996-1999.
Sl.No.
Year
No. of musters
1.
1996
116
2.
1997
192
3.
1998
156
4.
1999
32
During the period from January, 1999 to December,
1999, Nagabhushanam had put in only 32 musters. As the
above act amounted to misconduct under Standing Orders
Clause No.25.25 of the company, the petitioner was charge
sheeted. After considering the documentary evidence and
other evidence on record, the enquiry officer submitted his
unbiased report holding that the petitioner is guilty of
misconduct under company standing orders.
4.
Nagabhushanam, ex-employee submitted an
application on 26-12-1999 with a request to consider his
case for voluntary retirement scheme on health grounds.
But it was not considered as the employee was facing
disciplinary proceedings for his misconduct.
Nagabhushanam, ex-employee being a chronic absentee,
was charge sheeted. The enquiry officer conducted the
enquiry duly following the principles of natural justice and
the petitioner participated in the enquiry on 1-3-2000.
During the enquiry Nagabhushanam, ex-employee stated
that due to ill-health, he could not attend his duties and
therefore he remained absent from services and voluntarily
accepted the charge levelled against him. The respondents’
company, having gone through the past record of
Nagabhushanam, was constrained to dismiss him from
service and accordingly a show cause notice was issued
for dismissing him from service. Hence, his case does not
fall within the ambit of the Memorandum of Settlements.
Therefore, the respondents pray to dismiss the petition
without granting any relief to the LRs of the deceased
Nagabhushanam.
5.
During the course of hearing, Ex.W-1 to Ex.W-14 and
Ex.M-1 to Ex.M-11 are marked.
6.
Heard both sides. Perused the material papers on
record.
7.
Respondents have filed written arguments.
8.
As per the contentions of both parties the following
points arise for consideration:-
1.
Whether the petition is barred by limitation.
2.
Whether the petitioners (LRs of the deceased
workman) are entitled to any relief.
9.
Point No. 1 : According to the petition allegations,
the respondent company held counseling in the years, 2005
& 2012 to consider the reinstatement of dismissed
workman. Even otherwise Sec.2 of ID Act as prevalent in
this State does not prescribe any limitation. Period of 3
years provided under Sub-Sec.3 of Central enactment is
not made applicable in this State. Further under Sec.5 of
Limitation Act, the delay if any can be condoned taking
into consideration the explanation offered by the petitioner
in the main petition itself and that filing of formal application
for condonation of delay is not sine qua non for exercising
the power to condone the delay available to the authorities,
as per the decision of the Hon’ble High Court reported in
2015 (2) ALT 534 between Gadde Krishna Murthy and others
Vs., Mandal Revenue Officer, Seethanagaram, East Godavari
District & others. Further Sec.5 and Article 137 of Limitation
Act are not applications confined to CPC and the words
“any other applications” under Article 137 would be any
application under any Act made to a court, as per the
decision of the Hon’ble High Court reported in 2014 (6)
ALT 543 between Desam Venkateswara Reddy and others
Vs., Special Deputy Collector & Competent Authority (Land
Acquisition), Gas Authority of India Ltd., Vijayawada and
another. Considering all the above facts, I hold that this
petition cannot be thrown out on the ground of bar of
limitation. This point is accordingly answered in favour of
petitioners.
10.
Point No. 2 : This petition is filed by the L.Rs., of
deceased workman Nagabhushanam. He joined in the
respondent company in the year 1982. He was regular to
his duties, but could not maintain minimum attendance in
the year 1996 and 1998 (1996-116 days, 1998-156 days).
However he maintained good attendance in the year 1997.
In the year 1999, Nagabhushanam attended for duty for
only 32 days. It is not in dispute that in December, 1999,
Nagabhushanam applied for voluntary retirement. Infact,
his application was forwarded by the Colliery Manager to
the Chief General Manager, RG-I. This letter is marked has
Ex.M-11, which was addressed on 13-04-2000. By the date
of this letter, enquiry was conducted against
Nagabhushanam and he submitted a mercy petition dated
8-04-2000. Nagabhushanam was aged 54 years by the year
2000. The Colliery Manager mentioned all the facts, made
enquiry about the reasons for absence and stated in the
letter as follows:-
“He was appointed in the company on 01-03-1982.
His age was assessed as 36 years as on 07-01-1982
i.e., 54 years. On enquiry it was revealed that he was
absent for duty due to ill-health on account of his
old age.
In view of the above, kindly examine his application
and consider his request on humanitarian grounds
to opt voluntary retirement in favour of his son, as
per rules.
His application is enclosed for further advice.”
11.
Obviously the above recommendation of the Colliery
Manager was not taken into consideration. However, the
962
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
request of the workman seeking voluntary retirement was
not considered and he was dismissed from service with
effect from 18-01-2000 as per the order dated 14-07-2000
(vide Ex.M-9). Prior to this the application of the workman
seeking voluntary retirement was rejected as per Ex.M-8
dated 10-08-2000. In fact, in his application dt.08-04-2000
the workman stated that he submitted an application for
voluntary retirement on 01-11-1999 itself and subsequently
only charge sheet was issued to him on 21-10-2000. Under
this application dated 08-04-2000 marked as Ex.M-7,
workman renewed his plea for voluntary retirement.
Surprisingly, in the enquiry proceedings marked as Ex.
M-3, it is mentioned as if the workman did not state anything
when questioned by the enquiry officer. But, in the statement
recorded in the enquiry Nagabhushanam clearly stated that
due to ill-health he was unable to attend duties but not
intentionally. Obviously the request of the workman asking
for voluntary retirement was completely ignored and
rejected without proper consideration. The workman
maintained good attendance up to 1998 and only after he
fell sick, he applied for voluntary retirement scheme. Thus
it is clear that the workman was given a raw deal.
12.
By any standards, the dismissal of the workman after
17 years of satisfactory service cannot be justified by the
management particularly, in view of the letter addressed by
the Colliery Manager under Ex.M-11. Therefore, the
dismissal order dated 14-07-2000 Ex.M-9 is set a side. The
workman Sri U.Nagabhushanam, Badli Filler died in the
year 2005. Since the stigma of dismissal is set aside, he is
deemed to have retired from service w.e.f, 26-12-1999 (date
of application by workman as per Ex.M-11). The petitioners
are entitled to all the consequential benefits there-of,
including dependent employment.
13.
In the result, the dismissal order dt.14-07-2000 marked
as Ex.M-9 is set aside. Since the stigma of dismissal is set
aside, Nagabhushanam is deemed to have retired from
service w.e.f, 26-12-1999 (date of application by workman
as per Ex.M-11). The petitioners are entitled to all the
consequential benefits there-of, including dependent
employment.
G. V. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman:-
For Management:-
-Nil-
-Nil-
E X H I B I T S
For workman :
Ex.W-1
Dt. 07-05-2012
Demand letter with courier
receipt
Ex.W-2
Dt. —
Medical certificate
Ex.W-3
Dt. 02-06-2012
Family members certificate
Ex.W-4
Dt. 10-10-2005
Death certificate x.copy
Ex.W-5
Dt. 08-04-2000
Reply to show cause notice
Ex.W-6
Dt. —
Representation of petitioner
(option for VRS on health
grounds)
Ex.W-7
Dt. 14-07-2000
Dismissal letter x.copy
Ex.W-8
Dt. 3/4-6-1993
Office order (appointment
order)
Ex.W-9
Dt. 03-01-1999
Memorandum of settlement
Ex.W-10 Dt. 21-06-2001
Memorandum of settlement
Ex.W-11 Dt. 02-11-2009
Memorandum of settlement
Ex.W-12 Dt. 09-04-2015
Circular for enhancement of
the lumpsum amount in lieu
of dependent employment
Ex.W-13 Dt. 03-12-2000
Office order (training at
MVTC, RG-I)
Ex.W-14 Dt. —
National coal wage agreement
in October, 2005.
For Management :
Ex.M-1
Dt. 21-02-2000
Charge sheet
Ex.M-2
Dt. 25-02-2000
Enquiry notice
Ex.M-3
Dt. 01-03-2000
Enquiry proceedings
Ex.M-4
Dt. —
Declaration of petitioner
conducting
enquiry
proceedings in English
language.
Ex.M-5
Dt. 16-03-2000
Enquiry report
Ex.M-6
Dt. 26-03-2000
Show cause notice
Ex.M-7
Dt. 08-04-2000
Reply to show cause notice
Ex.M-8
Dt. 10/11-7-2000
VRS letter rejection letter of
petitioner issued to the
Colliery Manager by the
respondent
Ex.M-9
Dt. 14-07-2000
Dismissal order
Ex.M-10 Dt. 26-12-1999
Representation
of
Nagabhushanam
Ex.M-11 Dt. 13-04-2000
Voluntary retirement of
Nagabhushanam, Coal Filler
consider and opt VR in favour
of his son letter issued to Chief
General Manager, RG-I by the
Colliery Manager, GDK.6
Incline.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
963
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New Delhi, the 2nd March, 2016
S.O. 446.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award of the Cent. Govt.
Indus. Tribunal-cum-Labour Court, Godavarikhani (IT/ID/
33/2013) as shown in the Annexure, in the industrial
dispute between the employers in relation to the
management of SCCL, and their workmen, which was
received by the Central Government on 02/03/2016.
[No. L-22013/1/2016-IR (C-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.
DIST. AND SESSIONS COURT, GODAVARIKHANI
Present:
SRI G. V. KRISHNAIAH, Chairman-cum-
Presiding Officer
INDUSTRIAL DISPUTE No. 33 OF 2013
Monday, the 25th day of January, 2016
Between :
U. RAJAIAH, S/o. Ashalu,
Age 48 years, E.C.No.281665,
Ex-Badli Filler,
C/o. Sri B.Amarender Rao, Advocate,
Ganga Nagar, PO : Godavarikhani,
Dist. Karimnagar-505 209
...Petitioner
And
1.
The Dy.Chief Mining Engineer,
Singareni Collieries Co.Ltd.,
RK New Tech Incline,
PO : Ramakrishnapur,
Dist.Adilabad.
2.
The General Manager,
Singareni Collieries Co.Ltd.,
Sreerampur Area, PO : Sreerampur,
Dist. Adilabad.
3.
The Chairman & Managing Director,
Singareni Collieries Co.Ltd.,
PO. Kothagudem,
Dist.Khammam
...Respondents
This case coming before me for final hearing in the
presence of Sri B.Amarender Rao, Advocate for the
petitioner and of Sri D.Krishna Murthy, Advocate for the
respondents; and having been heard and having stood
over for consideration till this day, the Tribunal delivered
the following:-
AWARD
1.
This petition is filed U/Sec. 2(A)(2) of I.D. Act
challenging the dismissal of the petitioner by the
respondent No.2 praying for his reinstatement into service
with continuity of service, all attendant benefits and full
back wages.
2.
Petitioner was dismissed from service by the
respondent vide office order dt.24-12-2001 with the
following charge.
CHARGE:-
“25 (25) - Habitual late attendance or habitual absence
from duty without sufficient cause during the year
2000”.
3.
Petitioner challenges his dismissal order stating that
he was appointed as Badli Filler in the year 1988 and his
services were utilized against the absenteeism/leave
vacancies of regular fillers in piece rated jobs only. The
performance of the petitioner during the last 3 years is as
follows:-
Sl.
Particulars
Total
No.
musters
1.
Total physical musters of 1998
(177)
(Pay sheet of 9/98 shows 117
cumulative musters)
2.
Total physical musters of 1999
(155)
3.
Total physical musters of 1999
(88)
As the underground atmosphere and coal dust not
suited to the petitioner’s health, he suffered from chronic
ill-health, fever, joint pains and body pain diseases from
the year 1999 onwards, he underwent prolonged medical
treatment in the respondents’ company hospitals and other
referral hospitals at regular intervals. But due to continuous
underground work, the petitioner’s health was not cured
completely. There was no deliberate or intentional absence
on the part of the petitioner in attending his duties regularly.
Domestic enquiry was not conducted fairly and properly.
2nd respondent passed the dismissal order straight away
without issuing any prior show cause notice proposing
the said capital punishment of dismissal from service. The
petitioner attended the interview before the High Power
964
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Committee, Kothagudem, but he was not given any posting
orders. Punishment of dismissal from service is extremely
harsh, highly excessive and shockingly disproportionate.
Hence, the petitioner prays to allow the petition.
4.
In response to this challenge, respondents filed
counter justifying the dismissal of the petitioner. Petitioner
was dismissed from service in the year 2001. Petitioner
kept quiet for all these years and filed this petition after
lapse of 12 years which is barred by limitation U/Sec.2A (3)
of Industrial Disputes Amendment Act, 2010. Petitioner
was appointed in the respondents company as Badli Filler
on 01-03-1988. Petitioner was irregular to his duties.
According to Section 52(2) of the Mines Act, 1952 an
underground employee is required to put in minimum
musters of 190 and surface employee is expected to put in
minimum of 240 musters. Petitioner was a chronic absentee
and had put in only 88 musters in the year 2000. The
following attendance particulars of the petitioner indicate
the fact that the petitioner was not regular to his duties and
in no year, he had put in 190 musters during the period from
1997-2001.
Sl.No.
Year
No. of musters.
1.
1997
119
2.
1998
155
3.
1999
155
4.
2000
86
5.
Jan – July 2001
26
During the period from January, 2000 to December,
2000, the petitioner had put in only 88 musters. As the
above act amounted to misconduct under Standing Orders
Clause No.25.25 of the company, the petitioner was charge
sheeted. After considering the documentary evidence and
other evidence on record, the enquiry officer submitted his
unbiased report holding that the petitioner is guilty of
misconduct under company standing orders.
5.
The petitioner never took treatment as in-patient or
out-patient in respondents’ company hospitals. The
respondents company after considering the past record of
the petitioner and on findings that there were no
extenuating circumstances for taking a lenient view was
constrained to dismiss the petitioner from service. The
respondents’ company conducted the enquiry proceedings
duly in accordance with the principles of natural justice
and law giving full opportunity to the petitioner who
participated in the enquiry. Therefore, the respondents pray
to dismiss the petition without granting any relief to the
petitioner.
6.
During the course of hearing, Ex.W-1 to Ex.W-6 and
Ex.M-1 to Ex.M-10 are marked.
7.
Counsel for the petitioner filed memo U/Sec. 11-A of
I.D., Act stating that he is not challenging the validity of
domestic enquiry conducted by the respondent and prayed
this Tribunal to decide the quantum of relief to which the
petitioner is entitled to.
8.
Heard both sides. Perused the material papers on
record.
9.
Respondents filed written arguments.
10.
The points for consideration are:-
1. Whether the petition is barred by limitation?
2. Whether the petitioner is entitled to be reinstated?
11.
POINT No. 1 : According to the petition allegations,
the respondents’ company held counseling in the years,
2005 & 2012 to consider the reinstatement of dismissed
workmen. Even otherwise Sec.2 of ID Act as prevalent in
this State does not prescribe any limitation. Period of 3
years provided under Sub-Sec.3 of Central enactment is
not made applicable in this State. Further under Sec.5 of
Limitation Act, the delay if any can be condoned taking
into consideration the explanation offered by the petitioner
in the main petition itself and that filing of formal application
for condonation of delay is not sine qua non for exercising
the power to condone the delay available to the authorities,
as per the decision of the Hon’ble High Court reported in
2015 (2) ALT 534 between Gadde Krishna Murthy and others
Vs., Mandal Revenue Officer, Seethanagaram, East Guava
District & others. Further Sec.5 and Article 137 of Limitation
Act are not applications confined to CPC and the words
“any other applications” under Article 137 would be any
application under any Act made to a court, as per the
decision of the Hon’ble High Court reported in 2014 (6)
ALT 543 between Desam Venkateswara Reddy and others
Vs., Special Deputy Collector & Competent Authority (Land
Acquisition), Gas Authority of India Ltd., Vijayawada and
another. Considering all the above facts, I hold that this
petition cannot be thrown out on the ground of bar of
limitation. This point is accordingly answered in favour of
petitioner.
12.
POINT No. 2 : The charge against the petitioner is
irregular attendance from January, 2000 to December, 2000.
According to the management, petitioner had put-in only
88 musters during the year, 2000. The explanation of the
petitioner is that due to illness, he did not attend duty. A
perusal of the enquiry report goes to show that the
petitioner stated in the enquiry that he will not repeat this
type of mistake in future. This was not properly considered
while giving punishment to the petitioner. The fact that
the petitioner regularly attended his duties for more than
11 years after joining duty in the year 1988 was also not
considered. The enquiry was held in a route manner. The
extreme punishment of dismissal from service was not
warranted. The explanation of the petitioner to the show
cause notice, contained the assurance given by the
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
965
petitioner that he will not remain absent in future. It is
quite probable that after 11 years of hard manual work,
petitioner could not maintain sufficient attendance during
the year 2000. Respondents admitted that the petitioner
appeared before the High Power Committee for
consideration of his re-instatement, but he was not
reinstated. There was a gap of 7 years between first
appearance of petitioner before the High Power Committee
in the year 2005 and second appearance of the petitioner in
the year 2012. Petitioner was neither reinstated nor informed
in the year 2005 itself that he cannot be reinstated.
Management successfully kept his career in abeyance. The
manner, in which the petitioner case was dealt with, showed
a prejudiced attitude but not a reasonable attitude to a
workman. In a DIVISION BENCH JUDGMENT OF
GUJARAT HIGH COURT REPORTED IN 1982 LAB.IC.1031
BETWEEN : R.M., PARMAR VRS., GUJARAT
ELECTRICITY BOARD, the following guide lines were laid
down in the matter of inflicting punishment of discharge
and dismissal:-
1.
In a disciplinary proceeding for an alleged fault
of an employee, punishment is imposed not in
order to seek retribution or to give vent to feelings
of wrath.
2.
The main purpose of a punishment is to correct
the fault of the employee concerned by making
him more alert in the future and to hold out
warning to the other employees to be careful in
the discharge of their duties so that they do not
expose themselves to similar punishment. And
the approach to be made is the approach parents
make towards an erring or misguided child.
3.
It is not expedient in the interest of the
administration to visit every employee against
whom a fault is established with the penalty of
dismissal and to get rid of him. It would be
counter-productive to do so for it would be futile
to expect to recruit employees who are so perfect
that they would never commit any fault.
4.
In order not to attract the charge of arbitrariness
it has to be ensured that the penalty imposed is
commensurate with the magnitude of the fault.
Surely one cannot rationally or justly impose the
same penalty for giving a slap as one would
impose for homicide.
5.
When different categories of penalties can be
imposed in respect of the alleged fault, one of
which is dismissal from service, the disciplinary
authority perforce is required to consult himself
for selecting the most appropriate penalty from
out of the range of penalty available that can be
imposed, having regard to the nature, content
and gravity of the default. Unless the disciplinary
authority reaches the conclusion that having
regard to the nature, content and magnitude of
the fault committed by the employee concerned,
it would be absolutely unsafe to retain him in
service, the maximum penalty of dismissal cannot
be imposed. If a lesser penalty can be imposed
without seriously jeopardizing the interest of the
employees the disciplinary authority cannot
impose the maximum penalty of dismissal from
service. He is bound to ask the inner voice and
rational faculty why a lesser penalty cannot be
imposed.
6.
It cannot be over looked that by and large it is
because the maximum penalty is imposed and
total ruination stares one in the eyes that the
employee concerned is obliged to approach the
court and avail the costly time-consuming
machinery to challenge in desperation the order
passed by the disciplinary authority. If a lesser
penalty was imposed, he might not have been
obliged to take recourse to costly legal
proceedings which result in loss of public time
and also result in considerable hardship and
misery to the employee concerned.
7.
When the disciplinary proceedings end in favour
of the employee, the employer has often to pay
back wages say for about 5 years without being
able to take work from the employee concerned.
On the other hand, the employee concerned
would have had to suffer economic misery and
mental torture for all these years. Even the misery
of being obliged to remain idle without work
would constitute an unbearable burden. And
when the curtain drops every one is left with a
bitter taste in the mouth. All because the extreme
penalty of dismissal or removal is imposed instead
of a lighter one.
8.
Every harsh order of removal from service creates
bitterness and arouses feeling of antagonism in
the collective mind of the workers and gives raise
to a feeling of class conflict. It does more harm
than good to the employer as also to the society.
9.
Taking of a petty article by a worker in a moment
of weakness when he yields to a temptation does
not call for an extreme penalty of dismissal from
service. More particularly, when he does not
hold a sensitive post of trust (pilferage by a
cashier or by a store keeper from the stores in his
charge, for instances, may be viewed with
seriousness). A worker brought up and living in
an atmosphere of poverty and want when faced
with temptation, ought not to, but may yield to it
in a moment of weakness. It cannot be approved,
but it can certainly be understood particularly in
an age when even the rich commit economic
966
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
offences to get richer and do so by and large
with impunity (and even tax evasion or
possession of black money is not considered to
be dishonorable by and large). A penalty of
removal from service is therefore not called for
when a poor worker yields to a momentary
temptation and commits an offence which often
passed under the name of kleptomania when
committed by the rich.
13.
Keeping in view the above observations which have
taken into consideration all aspects of the punishment
particularly the extreme penalty of the dismissal, I hold that
the punishment of dismissal from service was uncalled for
and unjustifiable. Therefore, this is a fit case where this
Court can exercise discretion U/Sec.11 of ID Act and the
petitioner deserves to be reinstated into service as Badli
Filler to meet the ends of justice.
14.
In the result, the order of dismissal dt.24-12-2001
marked as Ex.M-10 is set aside. The respondents’ company
is directed to reinstate the petitioner into service as Badli
Filler, without back wages, but with protection of service
of the petitioner from 1988 till his dismissal for the purpose
of service benefits including regularization and promotion.
The petitioner has to undergo medical fitness test as per
the rules of the management. If the petitioner fails the
fitness test, he is deemed to have retired voluntarily and
will be entitled to benefits flowing from such voluntary
retirement.
G. V. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman:-
For Management:-
-Nil-
-Nil-
E X H I B I T S
For workman :
Ex.W-1
Dt. 10-02-1998
Office order appointing as
Badli filler, x.copy
Ex.W-2
Dt. 24-12-2001
Dismissal order x.copy.
Ex.W-3
Dt. 09-04-2008
Interview call letter
Ex.W-4
Dt. 13-07-2001
Enquiry proceedings
Ex.W-5
Dt. —
Pay slip for the month of
Sept., 1998
Ex.W-6
Dt. 05-11-2012
Demand letter with postal
receipts and ack.,
For Management :
Ex.M-1
Dt. 17-03-2001
Charge sheet
Ex.M-2
Dt. 17-03-2001
Reply to charge sheet
Ex.M-3
Dt. 27-06-2001
Enquiry notice
Ex.M-4
Dt. 28-06-2001
Ack., card to the enquiry
notice
Ex.M-5
Dt. 13-07-2001
Enquiry proceedings
Ex.M-6
Dt. 17-07-2001
Enquiry report
Ex.M-7
Dt. 26-07-2001
Show cause notice
Ex.M-8
Dt. 26-07-2001
Ack., to show cause notice
Ex.M-9
Dt. 30-07-2001
Reply to show cause notice
Ex.M-10 Dt. 24-12-2001
Dismissal order.
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New Delhi, the 2nd March, 2016
S.O. 447.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award of the Cent. Govt.
Indus. Tribunal-cum-Labour Court, Godavarikhani (IT/ID/
35/2013) as shown in the Annexure, in the Industrial
Dispute between the employers in relation to the
management of SCCL, and their workmen, which was
received by the Central Government on 02/03/2016.
[No. L-22013/1/2016-IR (C-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.
DIST. AND SESSIONS COURT, GODAVARIKHANI
Present:
SRI G. V. KRISHNAIAH, Chairman-cum-
Presiding Officer
INDUSTRIAL DISPUTE No. 35 OF 2013
Monday, the 25th day of January, 2016
Between :
Kazipeta Venkatesham,
S/o. Rayapocham,
Age 40 years,
Occ: Ex-Badli Filler,
R/o. Gunjapadugu village,
Mandal Manthani,
Dist. Karimnagar
...Petitioner
¹Hkkx IIó[k.M 3(ii)º
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967
And
The Chief General Manager,
Singareni Collieries Co.Ltd.,
Ramagundam Area-I Sector,
PO Godavarikhani,
Dist. Karimnagar
... Respondent
This case coming before me for final hearing in the
presence of Sri S.Bhagavantha Rao, Advocate for the
petitioner and of Sri D.Krishna Murthy, Advocate for the
respondent; and having been heard and having stood
over for consideration till this day, the Tribunal delivered
the following:-
AWARD
1.
This petition is filed U/Sec. 2(A)(2) of I.D. Act
challenging the dismissal of the petitioner by the
respondents praying for his reinstatement into service with
continuity of service, all attendant benefits and full back
wages.
2.
Petitioner was dismissed from service by the
respondent vide office order dt.14-06-1999 with the
following charge.
CHARGE:-
“Absent to duties without leave or habitual absence
of duty which is misconduct Under Section 25(25)
standing orders of the Company”.
3.
Petitioner challenges his dismissal order stating that
he got employment in place of his father as Badli Filler by
the respondent’s company on 6-3-1995. The petitioner
discharged his duties to the fullest satisfaction of his
superiors till 1998. As the petitioner’s health was not in
good condition in the year 1998, the respondent issued
charge sheet and charge memo and dismissed him from
service on 16-6-1999. The petitioner submitted an
application and medical certificates, but they were not
considered while removing him from service. The
respondent did not conduct enquiry properly and no
subsistence allowance was paid to the petitioner.
Petitioner’s appointment was purely on temporary basis
and he had to attend his job as and when there was work in
the mine. The company is adopting “Hire and Fire” policy
while giving employment one way and taking another way
by initiating stigmatic proceedings against the petitioner.
Petitioner attended interview before the High Power
Committee, Kothagudem, but there was no response.
Punishment of dismissal from service is extremely harsh,
highly excessive and shockingly disproportionate. Hence,
the petitioner prays to allow the petition.
4.
In response to this challenge, respondent filed
counter justifying the dismissal of the petitioner. The
petitioner was dismissed from service in the year 1999.
The petitioner kept quiet for all these years and filed this
petition after lapse of 15 years which is barred by limitation
U/Sec.2A(3) of Industrial Disputes Amendment Act, 2010.
The petitioner was appointed in the respondents company
as Badli Filler on 24-03-1995. The petitioner was irregular
to his duties. According to Section 52(2) of the Mines Act,
1952 an underground employee is required to put in
minimum musters of 190 and surface employee is expected
to put in minimum of 240 musters. The petitioner was a
chronic absentee, had put in only 20 musters in the year
1998. The following attendance particulars of the petitioner
indicate the fact that the petitioner was not regular to his
duties since his appointment in the year 1995.
Sl.No.
Year
No. of musters.
1.
1995
137
2.
1996
191
3.
1997
108
4.
1998
20
During the period from January, 1998 to December,
1998, the petitioner had put in only 20 musters. As the
above act amounted to misconduct under Standing Orders
Clause No.25.25 of the company, the petitioner was charge
sheeted. After considering the documentary evidence and
other evidence on record, the enquiry officer submitted his
unbiased report holding that the petitioner is guilty of
misconduct under company standing orders.
5.
The respondents company after considering the past
record of the petitioner and on findings that there were no
extenuating circumstances for taking a lenient view was
constrained to dismiss the petitioner from service. The
respondent’s company conducted the enquiry proceedings
duly in accordance with the principles of natural justice
and law giving full opportunity to the petitioner who
participated in the enquiry. Therefore, the respondent
prays to dismiss the petition without granting any relief to
the petitioner.
6.
During the course of hearing, Ex.W-1 to Ex.W-8 and
Ex.M-1 to Ex.M-7 are marked.
7.
Counsel for the petitioner filed Memo U/Sec. 11-A of
I.D., Act stating that he is not challenging the validity of
domestic enquiry conducted by the respondent and prayed
this Tribunal to decide the quantum of relief to which the
petitioner is entitled.
8.
Heard both sides. Perused the material papers on
record.
9.
Respondent filed written arguments.
10.
The points for consideration are:-
1. Whether the petition is barred by limitation?
2. Whether the petitioner is entitled to be reinstated?
11.
POINT No.1 : According to the petition allegations,
the respondents’ company held counseling in the years,
968
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
2005 & 2012 to consider the reinstatement of dismissed
workmen. Even otherwise Sec.2 of ID Act as prevalent in
this State does not prescribe any limitation. Period of 3
years provided under Sub-Sec.3 of Central enactment is
not made applicable in this State. Further under Sec.5 of
Limitation Act, the delay if any can be condoned taking
into consideration the explanation offered by the petitioner
in the main petition itself and that filing of formal application
for condonation of delay is not sine qua non for exercising
the power to condone the delay available to the authorities,
as per the decision of the Hon’ble High Court reported in
2015 (2) ALT 534 between Gadde Krishna Murthy and
Others Vs., Mandal Revenue Officer, Seethanagaram, East
Godavari District & Others. Further Sec.5 and Article 137
of Limitation Act are not applications confined to CPC and
the words “any other applications” under Article 137 would
be any application under any Act made to a Court, as per
the decision of the Hon’ble High Court reported in 2014 (6)
ALT 543 between Desam Venkateswara Reddy and Others
Vs., Special Deputy Collector & Competent Authority (Land
Acquisition), Gas Authority of India Ltd., Vijayawada and
Another. Considering all the above facts, I hold that this
petition cannot be thrown out on the ground of bar of
limitation. This point is accordingly answered in favour of
petitioner. The petitioner did file a petition before this
Tribunal, it was not registered and the petitioner filed a writ
seeking registration of the petition. Therefore, it cannot be
stated that there was inordinate delay in approaching this
Tribunal. This point is answered in favour of respondent.
12.
POINT No. 2 : A perusal of the enquiry report goes
to show that it is a cyclostyled copy of enquiry report
format. Period of absence relates to 1998 (January to
December, 1998). Even the statement of management
witness was filled-up in the already cyclostyled format.
The explanation of the petitioner was noted but it was not
properly considered. Though irregular attendance is made
a ground for misconduct when there is explanation by
workman it should have been properly considered. The
cyclostyled enquiry proceedings marked as Ex.M-4 goes
to show that the enquiry was conducted in a routine manner.
The extreme penalty of dismissal from service was imposed
in a routine manner without providing a chance to the
petitioner to mend himself. The petitioner could have been
put under observation for a period of one year and then
the penalty could have been decided. Therefore, the
respondent is not justified in imposing the punishment of
dismissal. As per the decision report in DIVISION BENCH
JUDGMENT OF GUJARAT HIGH COURT REPORTED IN
1982 LAB.IC.1031 BETWEEN: R.M., PARMAR VRS.,
GUJARAT ELECTRICITY BOARD, the following guide
lines were laid down in the matter of inflicting punishment
of discharge and dismissal:-
1.
In a disciplinary proceeding for an alleged fault
of an employee, punishment is imposed not in
order to seek retribution or to give vent to feelings
of wrath.
2.
The main purpose of a punishment is to correct
the fault of the employee concerned by making
him more alert in the future and to hold out
warning to the other employees to be careful in
the discharge of their duties so that they do not
expose themselves to similar punishment. And
the approach to be made is the approach parents
make towards an erring or misguided child.
3.
It is not expedient in the interest of the
administration to visit every employee against
whom a fault is established with the penalty of
dismissal and to get rid of him. It would be
counter-productive to do so for it would be futile
to expect to recruit employees who are so perfect
that they would never commit any fault.
4.
In order not to attract the charge of arbitrariness
it has to be ensured that the penalty imposed is
commensurate with the magnitude of the fault.
Surely one cannot rationally or justly impose the
same penalty for giving a slap as one would
impose for homicide.
5.
When different categories of penalties can be
imposed in respect of the alleged fault, one of
which is dismissal from service, the disciplinary
authority perforce is required to consult himself
for selecting the most appropriate penalty from
out of the range of penalty available that can be
imposed, having regard to the nature, content
and gravity of the default. Unless the disciplinary
authority reaches the conclusion that having
regard to the nature, content and magnitude of
the fault committed by the employee concerned,
it would be absolutely unsafe to retain him in
service, the maximum penalty of dismissal cannot
be imposed. If a lesser penalty can be imposed
without seriously jeopardizing the interest of the
employees the disciplinary authority cannot
impose the maximum penalty of dismissal from
service. He is bound to ask the inner voice and
rational faculty why a lesser penalty cannot be
imposed.
6.
It cannot be over looked that by and large it is
because the maximum penalty is imposed and
total ruination stares one in the eyes that the
employee concerned is obliged to approach the
court and avail the costly time-consuming
machinery to challenge in desperation the order
passed by the disciplinary authority. If a lesser
penalty was imposed, he might not have been
obliged to take recourse to costly legal
proceedings which result in loss of public time
¹Hkkx IIó[k.M 3(ii)º
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969
and also result in considerable hardship and
misery to the employee concerned.
7.
When the disciplinary proceedings end in favour
of the employee, the employer has often to pay
back wages say for about 5 years without being
able to take work from the employee concerned.
On the other hand, the employee concerned
would have had to suffer economic misery and
mental torture for all these years. Even the misery
of being obliged to remain idle without work
would constitute an unbearable burden. And
when the curtain drops every one is left with a
bitter taste in the mouth. All because the extreme
penalty of dismissal or removal is imposed instead
of a lighter one.
8.
Every harsh order of removal from service creates
bitterness and arouses feeling of antagonism in
the collective mind of the workers and gives raise
to a feeling of class conflict. It does more harm
than good to the employer as also to the society.
9.
Taking of a petty article by a worker in a moment
of weakness when he yields to a temptation does
not call for an extreme penalty of dismissal from
service. More particularly, when he does not
hold a sensitive post of trust (pilferage by a
cashier or by a store keeper from the stores in his
charge, for instances, may be viewed with
seriousness). A worker brought up and living in
an atmosphere of poverty and want when faced
with temptation, ought not to, but may yield to it
in a moment of weakness. It cannot be approved,
but it can certainly be understood particularly in
an age when even the rich commit economic
offences to get richer and do so by and large
with impunity (and even tax evasion or
possession of black money is not considered to
be dishonorable by and large). A penalty of
removal from service is therefore not called for
when a poor worker yields to a momentary
temptation and commits an offence which often
passed under the name of kleptomania when
committed by the rich.
13.
Keeping in view the above observations which have
taken into consideration all aspects of the punishment
particularly the extreme penalty of the dismissal, I hold that
the punishment of dismissal from service was uncalled for
and unjustifiable. Therefore, this is a fit case where this
Court can exercise discretion U/Sec.11 of ID Act and the
petitioner deserves to be reinstated into service as Badli
Filler to meet the ends of justice.
14.
In the result, the order of dismissal dt.14-06-1999
marked as Ex.M-7 is set aside. The respondents’ company
is directed to reinstate the petitioner into service as “afresh
Badli Filler” and he shall be subjected to medical test for
the post. If the petitioner fails the fitness test, the dismissal
order stands good. Petitioner is not entitled to back wages.
G. V. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For the workman:-
For the Management:-
-Nil-
-Nil-
E X H I B I T S
For the workman :
Ex.W-1
Dt. 22-09-2006
Demand letter
Ex.W-2
Dt. 14-06-1999
Dismissal order x.copy
Ex.W-3
Dt. 21-04-1999
Show cause notice
Ex.W-4
Dt. 28-02-1999
Charge sheet x.copy
Ex.W-5
Dt. —
Pay slip for the month of Oct.,
1996
Ex.W-6
Dt. 20-06-1999
Fitness certificate issued by
Dr.Rama Upendar
Ex.W-7
Dt. 20-06-1999
Form-A (Medical certificate
for leave extension)
Ex.W-8
Dt. 10-12-2007
Order in W.P.No.24967/2007
For the Management :
Ex.M-1
Dt. 28-02-1999
Charge sheet
Ex.M-2
Dt. 17-03-1999
Reply to charge sheet
Ex.M-3
Dt. 17-03-1999
Declaration
given
by
petitioner stating that he has
no objection to conduct
enquiry proceedings in
English, x.copy
Ex.M-4
Dt. 28-02-1999
Domestic enquiry
proceedings
Ex.M-5
Dt. 18-03-1999
Enquiry report, x.copy
Ex.M-6
Dt. 21-04-1999
Show cause notice
Ex.M-7
Dt. 14-06-1999
Dismissal order.
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[la- ,y&22012@280@2001&vkbZvkj (lh,e&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
970
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
New Delhi, the 2nd March, 2016
S.O. 448.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 15/2002)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Asansol as shown in the Annexure, in the industrial
dispute between the management of Bhojudih Coal
Washery, M/s. BCCL, and their workmen, received by the
Central Government on 02/03/2016.
[No. L-22012/280/2001-IR (CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT :
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 15 OF 2002
PARTIES :
The management of Bhojudih Coal Washery,
M/s. B.C.C.L.
Vs.
Sri Sudhir Bouri and 61 others
REPRESENTATIVES:
For the management
:
Sri. P. K. Das, Ld.
Advocate
For the union (Workman) :
Sri. D. Mukherjee,
Ld. Advocate
Industry : Coal
State: West Bengal
Dated: 05.02.2016
AWARD
In exercise of the powers conferred by clause (d) of
Sub-section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter No. L-22012/
280/2001–IR(CM-II) dated 31.05.2002 has been pleased to
refer the following dispute for adjudication by this Tribunal.
SCHEDULE
“Whether the action of the management of Bhojudih
Coal Washery in terminating the services of
Sh. Sudhir Bouri and 61 others (list enclosed) instead
of regularizing their services is legal and justified? If
not, to what relief they are entitled to? “
Having received the Order No. L-22012/280/2001–
IR(CM-II) dated 31.05.2002 of the above said reference
from the Govt. of India, Ministry of Labour, New Delhi for
adjudication of the dispute, a reference case No. 15 of 2002
was registered on 24.06.2002. Accordingly an order to that
effect was passed to issue notices through the registered
post to the parties concerned, directing them to appear in
the court, on the date fixed and to file their written statements
along with the relevant documents and a list of witnesses
in support of their claims. In pursuance of the said order
notices by the registered post were sent to the parties
concerned. Both the parties appeared in the Tribunal,
through their representative.
1.
The case of the workmen as per averment in short is
that they had been working at Bhojudih Coal Washery
since 06.09.1994 regularly and continuously under the
direct control and supervision of the Management of
Bhojudih Colliery. They have been engaged by the
Management to perform regular job which are permanent
and perennial in nature and are directly connected with the
operation of the coal washery and for the ultimate benefit
of the Management. The implements are supplied by the
Management. The scheduled list of workmen includes fitter,
wielder, Cutter etc. and they are being engaged for more
than 240 days in work per year and worked in the premises
of the washery but are not paid wages by the Management
as per the National Coal Workers Agreement (NCWA).
Wages are being disbursed through different intermediaries
through sham and Camouflaging transaction. The
workmen approached the Management several times for
regularization of service but in vain. It resulted in annoying
the Management and consequently the Management
stopped the engagement of some of the workmen without
assigning any reason. The higher ups in the Management
asked them to wait assuring for favourable consideration
by the Head Quarter and in fact those workmen were re-
engaged w.e.f. 05.07.1997. They worked as usual like earlier
period of their engagement but the Management continued
to pay wages below the prescribed rate under NCWA
without paying any heed to their protest. The Industrial
Dispute was raised by them through the Union consequent
to the failure of conciliation and hence this reference. The
Union urged for regularization of service of the workmen
and to hold the action of the Management in terminating
their service instead of regularizing the service as illegal
and unjustified.
2.
The case of the Management on the other hand,
shun of all details and as borne out in their pleading is as
follows :-
The M/s. Bharat Coking Coal Ltd. (M/s. B.C.C.L. in
short) entered into agreement with one M/s. Triveni
Engineering works (T.E.W.) for con raising of 100 TPS
Froth Floatation Plant at a value of Rs. 7,11,64,000/- (Rupees
seven Crore Eleven Lakh and Sixty Four Thousand only)
at Bhojudih Coal Washery. The agreement was entered
upon between them for design, construction, supply of
machineries & equipments including all civil structural
works etc. Another agreement dated 16.10.1998
subsequently was also executed with M/s. Humboldt
Wedag for completing the job the plant on turn key basis.
¹Hkkx IIó[k.M 3(ii)º
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971
The construction erection and commissioning of the plant
is one time job and not a permanent in nature. As per the
work order the contractor was to supply the plant, the
design and commission the same through their Contractor,
engineer’s machine, tool and equipment. The colliery
Management had no manner of control over the men and
machineries of the contractor. Payment of wages was made
by the contractor Licensee to the contractor M/s. Humboldt
u/s 13 of Contract Labour (Regularization and abolition)
Act,1970 was granted by the Asst. Labour Commissioner
(Central) Asansol on 21.9.1999, the Employer Management
stood registered under the said Act earlier. The Contractor
employed some workers and retrenched the service of
contract labours on Completion of the work and disbursed
all benefits on them as per law. The workmen in this
reference are not workman as defined U/s 2(s) of the I.D.
Act. And that there has been no relation of Employer and
Employee between the Management and the workmen. The
Union has no locus-stand to raise the industrial dispute
and further that the reference by the Appropriate Govt. is
bad in the eye of laws. Denying all the assertion of the
workmen in specific and denying the allegation of violation
of natural justice, the Employer urged for holding there
action in not regularizing the workmen in service as legal
and justified entitling no relief to them.
3.
In view of the variance of the parties on both fact
and law the following vital issues are to be determined :-
(i)
Whether, Employer Employee relation exists
between the parties.
(ii)
Whether the job in question is permanent in
nature.
(iii) Whether the workmen are entitled for
regularization under the NCWA.
By pleading that the workmen were engaged and
worked under the direct control and supervision of the
Management which allegedly prepared records to show
that it was made by intermediaries like M/s. Tribeni
Engineering & M/s. Humboldt Wedag to camouflage the
fact, the union certainly does not tend to prove the
Employer Employee relationship by direct evidence either
documentary or oral and admittedly no such evidence exist.
The union, therefore bears the heavy burden of proving
the nature of the nexus of the principal Employer and the
said contractor to find out as to whether the said contractors
at all worked as the agent or intermediary of the M/s.
B.C.C.L. On that score the union mainly rely on the Muster
Roll Ext1(W) and the Register of workmen Ext.2 (W) and of
course on the admission of the Management in the pleading
as well as in the oral evidence of one Sri Sukendu Prasad,
Dy. Manager of Bhojudih Coal Washery. The evidence of
Sri Mahadev Mahatha (W.W.1) reveals that they were
engaged to work in the Bhojudih Coal Washery under the
direct control and supervision of the Management and the
Management paid them wages through intermediaries. They
were paid wages below the rate prescribed under NCWA.
Both the Ext. W-1 and Ext. W-2 show their engagement
under the contractor M/s. Humboldt but the documents
bear the signature of Company’s Welfare Officer. This fact
is bound to create suspicion as the terms of the licence
issued under the CL(RA) Act. in favour of the Principal
Employer and the contract do not stipulates the terms and
conditions of payment of wages through any other party.
The Management too has not hinted about it in their
pleading. The evidence of the workmen has not been
dislodged in the cross-examination who on the other hand
affirmed that they were getting salary from the
Management. The Dy. Manager Surendra Prasad who was
examined much later to the filing of the evidence-in-chief
of the workmen has also not refuted the above fact. The
witness admitted about his lack of knowledge about the
details of the entrustment of job to M/s. Tribeni Engineering
and to M/s. Humboldt for erection and commissioning of
the plant and about retrenchment of workers etc. Thus this
evidence is of no help to the Management to dislodge the
claim of the workmen on the above point. Rather it is fatal
to them as he admits that the ‘B’ register was not filed by
the Management and he has no idea at all about any
contract given to M/s. Universal Construction and M/s.
Minakshi Enterprises at all who figures in the Muster Roll.
Further it appears that both the said contractors have not
been granted licence under the CLRA Act. It is settled law
that, facts are to be decided on the basis of preponderance
of probabilities. As such in view of the Ext W-1 and Ext W-
2, the unimpeached evidence of the workmen (WW-1) and
admitted facts as indicated above, there is ample reason to
find the direct role of the principal Employer i.e. M/s.
B.C.C.L. in payment of wages to the workmen through the
said two contractors. The M/s. Humboldt Company does
not appear anywhere in the scene though as a licensee
under CLR Act, they are to make payment of salary directly
or through their contractors under him as the case may be.
4.
Surprisingly, the Management does not come forward
with the relevant documents to show their bonafide that
they have no role in engaging the workmen, in payment of
salary or in their retrenchment etc. Except the said two
Agreements with the M/s. Tribeni Engineering and
M/s. Humboldt and the two licences, the Management has
not relied on any documents which do not help proving
their bonafide or brushing aside the allegation \ against
them. Even, none from the M/s. Humboldt Company nor
any other material witness have been examined by the
Management. The terms of the licence stipulates strict
adherence of the terms & conditions including filing of
return to secure the status of the contract labours at per
with Company’s employees and against their exploitation.
With-holding of such vital facts and evidence by the
employer warrants adverse inference against their stand.
As such the Employer Employee relationship for purpose
of the I.D. Act in this case between them cannot be ruled
out from any stand point.
972
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
5.
It is found that the claims of the workmen stand to
the true test indicated in the decision of the Hon’ble
Supreme Court in the case of HUSSAINBHAI, CALICUT
v/s THE ALATH FACTORY THEZHILALI UNION
KOZHIKODE & others, reported in S.C.L.J., Vol.-15, Page-
112 to decide the Employer Employees relation. It has
been observed that “the true test may with brevity be
indicated once again where a worker or group of workers
labours to produce goods or services and these goods or
services are for the business of another, the other is, in
fact, the Employer. The economic control over workers
subsistence skills and continued employment if he, for any
reason chokes of the worker is virtually, laid off. The
presence of intermediate contractors with whom alone the
workers have immediate or direct relationship ex-contract
is of consequence. When on lifting the veil or looking at
the conspectus of factors governing employment, discern
the naked truth, though draped in different paper
arrangement, that the employer is the Management not the
immediate contractor”. The union‘s allegation that the
statutory records were not prepared by the M/s. B.C.C.L.
deliberately to camouflage the real fact cannot be ruled
out. The Management has not taken the pain to prove that
the M/s. Universal Construction and M/s. Minakshi
Enterprises were at all licensee under the CL(RA) Act.
against the concern work or at all worked at the behest of
M/s. Humboldt Wedag. No documents have been relied
by the Employer to prove the appointment of the workmen
by M/s. Tribeni Engineering and retrenchment made by
M/s. Humboldt. Thus it can be concluded safely that the
workmen in fact were engaged by the M/s. B.C.C.L. itself
and papers have been prepared otherwise to cover the
same for whatever purpose. As per the law laid down by
the Hon’ble Supreme Court in the reported decision in 1993
LAB IC 1323 (SECRETARY, HARYANA STATE
ELECTRICITY BOARD VS. SURESH & OTHERS) the
workmen in similar circumstances have been considered
as the legally employees of the Management.
6.
The Union cites the reported decision of the Apex
Court in LLR 2001 Page- 961 (STEEL AUTHORITY OF
INDIA LTD. VS. NATIONAL WATER FRONT WORKERS
& OTHERS) and 2002 LLR 449 (INDIAN FARMERS
FARTILIZER CORPORATIVE LTD. VS. INDUSTRIAL
TRIBUNAL). The rulings of the Hon’ble Apex Court in all
the above cases are unequivocally, in favour of the workmen
on the point.
7.
In the pleadings the Employer has persistently
pleaded that the job in question is one time job and the
workers were retrenched by the contractor after the
construction was over. As seen above the employer has
failed to substantiate their claim of absence of Employer
Employee relation and on this point too no credible
circumstances have been proved. Facts remain that the
workmen have been working in the premises of the Employer
under different contractors for a long period continuously
and receiving salary. The employer has very much remained
attached to it through their officials who have signed the
Muster Rolls etc. The claim of the workmen that they have
been working in different capacity for the employer’s benefit
has not been discredited by any sort of evidence. The
evidence of the Dy. Manager (MW-1) is conspicuously
silent on this point except in his evidence-in-chief it has
been mentioned that the job (meaning the job in which the
workmen were engaged by the Contractors) were not of
permanent nature. Certainly had it been proved that the
workmen were not engaged by the Employer but by the
Contractor and were retrenched by the contractors, the
above contention of the Employer would have been
believed. To repeat, no documents of appointment and
retrenchment of workmen by the Contractors and statutory
return made by the licensed contractor to the Labour
Commissioner have been proved. Such stealthy gesture
indicates about the endeavor of the Employer to cover up
the permanent or perennial nature of the job of the workmen.
From the undisputed muster rolls and other papers it can
be well gathered that the workmen have worked regularly
and continuously since 06.09.1994 putting in more than
240 days of each calendar year. There is no specific denial
of facts that the workmen were not paid wages in terms of
NCWA.
8.
In view of the above discussion and the fact having
amply proved by evidence that the contractors have been
interposed and the contract being found to be a camouflage
one the workmen in question are to be treated as the
employees of the principal Employer i.e. the M/s. B.C.C.L..
The above conclusion derives strength from the reported
decision of the Hon’ble Supreme Court in the case of
STEEL AUTHORITY OF INDIA AND OTHERS ETC. v/s
NATIONAL UNION WATER FRONT WORKERS AND
OTHERS (2001 LLR 961). It has been held that:-
“the industrial adjudicator will have to consider the
question whether the contractor has been interposed
either on the ground of having undertaken to produce
any given result for the establishment or for supply
of contract labour for work of the establishment under
a genuine contract or is a mere ruse/camouflage to
evade compliance of various beneficial legislations
so as to deprive the workers of the benefit there
under. If the contract is found to be not genuine but
a mere camouflage, the so-called contract labour will
have to be treated as employees of the principal
employer who shall be directed to regularise the
services of the contract labour in the concerned
establishment subject to the conditions that the
contract is found to be genuine and prohibition
notification under Section 10(1) of the CLRA
(Contract Labour Regulation & Abolition) Act in
respect of the concerned establishment has been
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
973
issued by the appropriate Government, prohibiting
employment of contract labour in any process,
operation or other work of any establishment and
where in such process, operation or other work of
the establishment the principal employer intends to
employ regular workmen he shall give preference to
the erstwhile contract labour, if otherwise found
suitable and, if necessary, by relaxing the condition
as to maximum age appropriately taking into
consideration the age of the workers at the time of
their initial employment by the contractor and also
relaxing the condition as to academic qualifications
other than technical qualifications.”
Reliance has also been put on many other reported
decisions (as per memo of argument) by the Union to bolster
their stand on the same point.
9.
In view of the above finding and conclusion reached
above on two vital question i.e. the Employers Employees
relation between the parties and the nature of the job and
above all finding that the workmen having been deprived
of their rights construed as above are certainly entitled to
be treated as the employee of the M/s. B.C.C.L. and
consequently the action of the Management of Bhojudih
Coal Washery in terminating the services of Sri. Sudhir
Bouri and 61 others named in the reference instead of
regularizing their service is held not legal and justified.
The workmen are entitled to be treated as the employee of
the M/s. B.C.C.L. and reinstatement. The workmen are
entitled to be reinstated from the date of their retrenchment
and the Management is required to pay them back wages
less the wages already paid as per prescribed wages under
the NCWA. The Management is to disburse the wages
and other monetary benefits within three months of the
notification of the award pending regularization of official
papers. Hence, it is ordered.
ORDER
Let an “Award” be and the same is passed as per
above discussion. Send the copies of the order to the Govt.
of India, Ministry of Labour, New Delhi for information and
needful. The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2016
dk-vk- 449-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj bZlh,y ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la- 141@2005) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 02@03@2016 dks izkIr gqvk FkkA
[la- ,y&22012@71@2005&vkbZvkj (lh,e&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2016
S.O. 449.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 141/
2005) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Asansol as shown in the Annexure, in the industrial
dispute between the management of Moira Colliery under
Bankola Area of M/s. ECL, and their workmen, received by
the Central Government on 02/03/2016.
[No. L-22012/71/2005-IR (CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT :
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 141 OF 2005
PARTIES :
The management of Moira Colliery, ECL
Vs.
Sri Swapan Majhi
REPRESENTATIVES:
For the management
:
Sri P. K. Das, Ld.
Advocate
For the union (Workman)
:
Sri S. K. Pandey, Gen.
Secy. , CMC (HMS)
Industry : Coal
State: West Bengal
Dated: 09.02.2016
AWARD
In exercise of powers conferred by clause (d) of
Sub-section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter NO. L-22012/
71/2005-IR(CM-II) dated 08.12.2005 has been pleased to
refer the following dispute for adjudication by this Tribunal.
SCHEDULE
“Whether the action of the management of Moira
Colliery under Bankola Area of M/s. Eastern
Coalfields Limited in dismissing Sh. Swapan Majhi,
U.G. Trammer (PR) U.M. No. 61295 from service w.e.f.
04.06.1996 is legal and justified? If not, to what relief
the workman is entitled?”
Having received the Order NO. L-22012/71/2005-
IR(CM-II) dated 08.12.2005 of the above said reference from
the Govt. of India, Ministry of Labour, New Delhi for
adjudication of the dispute, a reference case No. 141 of
974
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
2005 was registered on 23.12.2005 and accordingly an order
to that effect was passed to issue notices through the
registered post to the parties concerned directing them to
appear in the court on the date fixed and to file their written
statements along with the relevant documents and a list of
witnesses in support of their claims. In pursuance of the
said order notices by the registered post were sent to the
parties concerned.
Case called out. Both parties are absent.
On perusal for the case record I find that so many
dates have been fixed for evidence. But, workman did not
submit his evidence. The reference is of year 2005, which is
old one. Last 4 (Four) dates have been fixed as last chance.
But workman neither filed evidence, nor appeared. It
appears that the workman is not interested to contesting
the reference. Hence, I think it proper and just to close this
case. As such the case is closed and a ‘No Dispute Award’
is hereby passed accordingly.
ORDER
Let an “Award” be and same is passed as no dispute
existing. Send the copies of the order to the Govt. of India,
Ministry of Labour, New Delhi, for information and needful.
The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 2 ekpZ] 2016
dk-vk- 450-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj bZlh,y ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la- 95@2007) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 02@03@2016 dks izkIr gqvk FkkA
[la- ,y&22012@226@2007&vkbZvkj (lh,e&II)]
jktsUnz ¯lg] vuqHkkx vf/dkjh
New Delhi, the 2nd March, 2016
S.O. 450.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 95/2007)
of the Cent. Govt. Indus. Tribunal-cum-Labour
Court, Asansol as shown in the Annexure, in the industrial
dispute between the management of Kenda Area of M/s.
ECL, and their workmen, received by the Central
Government on 02/03/2016.
[No. L-22012/226/2007-IR (CM-II)]
RAJENDER SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT :
Sri Pramod Kumar Mishra, Presiding Officer
REFERENCE NO. 95 OF 2007
PARTIES :
The management of Lower Kenda Colliery, ECL
Vs.
Ukhra Colliery Mazdoor Union (INTUC)
REPRESENTATIVES:
For the management
:
Sri P. K. Das, Ld.
Advocate
For the union (Workman)
:
Sri Susil Banerjee, Org.
Secy. of the Union
Industry : Coal
State: West Bengal
Dated : 10.02.2016
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter No. L-22012/
226/2007-IR(CM-II) dated 30.10.2007 has been pleased to
refer the following dispute for adjudication by this Tribunal.
SCHEDULE
“Whether the action of the management of Lower
Kenda Colliery under Kenda Area of M/s. ECL in
denying payment of wages w.e.f. 01.07.2003 to
19.12.2003 is legal and justified? If not, to what relief
is the workman entitled?”
Having received the Order No. L-22012/226/2007-
IR(CM-II) dated 30.10.2007 of the above said reference from
the Govt. of India, Ministry of Labour, New Delhi for
adjudication of the dispute, a reference case No. 95 of 2007
was registered on 20.11.2007 and accordingly an order to
that effect was passed to issue notices through the
registered post to the parties concerned directing them to
appear in the court on the date fixed and to file their written
statements along with the relevant documents and a list of
witnesses in support of their claims. In pursuance of the
said order notices by the registered post were sent to the
parties concerned.
Case called out. Sri P. K. Das is present on behalf of
the management. Union / workman is absent.
Workman is absent from so many dates. On 24.05.2014
union representative was present on behalf of the workman
and the case was fixed for filing written statement on
18.07.2012. After 18.07.2012, 10 dates were fixed for filing
written statement of the workman but the union did not file
written statement. On 19.10.2014 tribunal passed order to
send notice to the union for filing written statement. Notice
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
975
was served on 21.10.2014. Dates were fixed, 02.12.2014,
09.02.2015 and 19.03.2015, neither the workman / union is
present nor files written statement. More than 7 years have
passes even workman has not filed written statement. It
appears that the workman is not anymore interested to
proceed with the case any further. As such the case is
closed and a ‘No Dispute Award’ is hereby passed
accordingly.
ORDER
Let an “Award” be and same is passed as no dispute
existing. Send the copies of the order to the Govt. of India,
Ministry of Labour, New Delhi, for information and needful.
The reference is accordingly disposed of.
PRAMOD KUMAR MISHRA, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2016
dk-vk- 451-—vkS|ksfxd fookn vf/fu;e] 1947 (1947 dk
14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ chlhlh,y
ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/dj.k@ Je U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k
20@1997) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 03@03@2016
dks izkIr gqvk FkkA
[la- ,y&20012@264@1993&vkbZvkj (lh,e&I)]
,e- ds- ¯lg] vuqHkkx vf/dkjh
New Delhi, the 3rd March, 2016
S.O. 451.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award of the Central Government
Industrial Tribunal-cum-Labour Court No. 1, Dhanbad (Ref.
No. 20/1997) as shown in the Annexure in the Industiral
Dispute between the employers in relation to the
management of M/s. BCCL and their workmen, which was
received by the Central Government on 03/03/2016.
[No. L-20012/264/1993-IR (CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), AT DHANBAD
In the matter of reference U/s 10 (1) (d) (2A) of
I.D. Act, 1947
Ref. No. 20 of 1997
Employers in relation to the management of
C.V. Area M/s. BCCL
AND
Their workmen
Present :
Sri Ranjan Kumar Saran, Presiding officer
Appearances:
For the Employers
:
Shri S.N.Ghosh, Advocate
For the workman
:
Shri U.P. Sinha, Advocate
State : Jharkhand
Industry : Coal
Dated 08/01/ 2016
AWARD
By Order No. L-20012/264/1993 -IR -(CM-I), dt. 04/01/1996,
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 by the Union that S/Sh.
Vyasdeo Pandey and 80 others ( as per list enclosed)
for regularisation by the management of Chanch
Victoria Area No. XII of M/s. Bharat Coking Coal
Limited, is legal and justified? If so to what relief are
there workmen entitled?”
ANNEXURE
List of workmen
Sl.
Name
S/o
Vill
Post
Thana
District
No.
1
2
3
4
5
6
7
1.
Arija Singh
Ramendra Singh
Nemrajpur
Akomi
Daudnagar
Aurangabad
2.
Vijay Kumar Verma,
S/o Late Ram
Dhanhar
Sundargan
Rishias
Aurangabad
Janam Verma
3.
Mahanand
Sahaeo Mahato
Shankarpur
Sarsola
Aurangabad
Aurangabad
4.
Amalendra Prasad
Sri Parasnath Singh
Meoabigah,
Samser Nagar
Daudnagar
Auranbad
976
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
5.
Shiou Gorai,
Sudhir Gorai
Palsia
Mugma
Nirsha
Dhanbad
( gosai Basti)
6.
Basant Singh
Late Ram Sudin
Mamrajpur,
Akosi
—
Aurangabad
Singh
( Daud nagar)
( Bihar)
7.
Satyadeo Singh
Ramnnath Singh
Jaga Bigha
Ancha
Daudnagar
Aurangabad
( Bihar)
8.
Subir Kumar
Shivdatt Verma
Bairi
Latta
Bairi ganj
Aurnangabad
( Bihar)
9.
Brahmadeo Singh,
Late Ramsudih
Mamrajpur
Akoni
Aurangabad
Aurangabad
Singh
( Daudnagar)
10.
Lalan Prasad
Maosafir Prasad,
Gira
Obra
Obra
Aurangabad
( Bihar)
11.
Jitendire Narayan
Sital Choudhary,
Sd
Choudhary
12.
Hari Ram
Srinath Kahar
Bahadurpur
13.
Ramlal Hemram
Laban Hemram
Koobita
Kalyansri
Kulti
Burdwan
(W.B)
14.
Surendra Kumar
Dhanuk Mahato
Shankarpur
Kaithi
Obra
Aurangabad,
Bihar
15.
Satyendra Prasad
Ganesh Prasad
Mamrejpur
Akona
Daudnagar
Auranbad,
Bihar
16.
Arjun Bhagat
Sri Deo Lal Bhagat
Saifganj
Dosma
Rariganj
Aurangabad
(Bihar)
17.
Surendra Prasad
Ganga Prasad
Gokul Bigha
Sarsoli
Jamhour
Auranhabad,
(Jamhour)
Bihar
18.
Ramswarun Verma
Janki Mehta
Saitganj
Uosma (Jalim)
Rafiganj
Aurangabad
(Bihar)
19.
Usman Mean,
Sri Suman Mean
Phawar
Phawar
Dailtanganj
Plalamu, Bihar
20.
Ramswarun Verma
Khaderan Verma
Baligaou
Baligaou
Rafiganj
Aurangabad,
Bihar
21.
Radheshyam Mahto Malik Chand Mahto Bahuria Barwa Mujhara
Mujhara
Aurangabad,
Bihar
22.
Ajit Kr. Singh
Harwah
Ambar ( Amba)
—
Aurangabad ,
Bihar
23.
Madan Shaw
Nawada
Nawada
—
Nawda, Bihar
24.
Ramjanm Singh
Sri Jadunandan
Shankarpur
Kaiathi
Obra
Aurangabad,
Singh
Bihar
25.
Rajeshwar Singh
Sukhdeo Singh
Memrejpur
Akona
Daudnagar
26.
Sd/-
27.
Rajendra Prasad
—
Kataiya
Deo
—
Aurangabad
28.
Satyendra kumar
Sri magan Yadav
Simarhua
Karhotia
Goha
Aurangabad
(Bihar)
29.
Dinu narayan Yadav Tribeni Yadav
Knorikhan
Sihull ( Dargah)
Goha
Aurangabad
30.
Bharat Prasad
Somar Mahto
Mamrejpur
Akoua
Daudnagar
Aurangabad
(Bihar)
1
2
3
4
5
6
7
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
977
31.
Nandkumar Prasad
Wakil Bhagat
Mansagar
Mansagar
Chardhkhri
Mojnur
( Ara, Bihar)
32.
Dinesh Prasad,
Sri Jagnandan
Lakhdihra
Lakhdihra
Obra
Aurangabad
Bhagat
(Bihar)
33.
Saligram Singh
Sri Satyadeo Singh,
Himatnur,
Surhia
Singhwalia
Gonalganj
(Bihar)
34.
Sohan Prasad
Doman Prasad
Shankar dih,
Shankardih
Goha
Aurangabad
(Bihar)
35.
Bhusan Singh
Soheb Singh
Shankardih
Shankardih
Goha
Aurangabad
(Bihar)
36.
Sd/-
37.
Pheku
—
—
—
—
—
38.
Arbind Kumar
Sri Ghandrajaswara
Jamin Kat
Hijamabad
Nijamabad
Ajamgarh
(U.P)
39.
Kemlesh Kumar
Baidhna th Mehta
Priraota
Ramchadra
Aurangabad
Aurangabad
Nagar
40.
Kishore Kumar
Muneshwar Prasad
Amhara
Lakhisaraisarai
Lakhisarai
Monghyer
(Bihar)
41.
Ashok Kr. Thakur
Sri Jaikisan Thakur
—
Bhurkundi
Banka
Bhagalpur
42.
Subhas Hambram,
Guhira hambram
Kithibita
Kalyanisri
Kulti
Burwan (W.B.)
Kalyanisri
43.
Brajesh Mehta
Nathun Mahata
Saifganj
Dosma
Aurangabad
Bihar
44.
Birendra Shaw
Lakshman Shaw,
Lohani
Kanshiya
Aurangabad
Aurangabad
Porhwa
(Bihar)
45.
Bhola Mahto
Bira Mahat
Kathria
Dkona
Daudnagar
Aurangabad
(Bihar)
46.
Vyasdeo Pandey
Ram Ashish Pandey Sultasnpur
Haldi
Haldi
Balia ( UP)
47.
Anil Majhi
Baburam Majhi
Bans Jaja
Mugma
Nirsha
Dhanbad
48.
Mukhra Tudu
Singhray Tundu
Batidih
Chirkunda
Chirkunda
Dhanbad
49.
Safhauddin
Abdul
Ledaharia
Ledaharia
Chirkunda
Dhanbad
50.
Panchu Sahu
Bancha Sah
Barhagaon
Nimia Maith
Kudla
Janjam
Orissa)
51.
Suryadeo Mahato
Thakur Mahto
Saifganj
Dosma
Rafiganj
Aurangabad
(Bihar)
52.
Cahdeswar Mehta
Gurudayal Mehta
Saifganj
Dosma
Rafiganj
Aurangabad
(Bihar)
53.
Sd/
54.
Sd/-
55.
Nandkishore Mahto Uma Mahato
ahadurpur
Jakhim
Rafiganj
Auranbgabad
(Bihar)
56.
Baliram Singh
Muneshwar Singh
Mewasingh
Samshernagar
Daudnagar
Aurangabad
(Bihar)
1
2
3
4
5
6
7
978
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
57.
Bansidhar Ram
Shri Motilal Ram
Wadipatti
Sikria
Karakat ( Gorair)
Rohtas,
Sararam Bihar
58.
Rajiv Prasad
Sri Ramkrit Prasad
Akora Pilachi Daudnagar
Daudnagar
Aurangabad
(Bihar)
59.
Hriday Narayan
Sri Gansi Mahto
Daulat
Obra
Aurangabad
Aurangabad
purganj
(Bihar)
60.
Ramavtar Das,
Late Mui Das
Solra
Solra
Prarya
Gaya ( Bihar)
61.
Rakritram
Sri Jagan Ram
Berki
Berki
—
Gaya (Bihar)
62.
Krishna Ram
Sri Dhaneshwar ram Barhiwigah
Pakan Station
Chanauti ( Khas)
Gaya (Bihar)
63.
Sd/-
64.
Om Prakash
—
—
—
—
—
65.
Rama Shankar
Muneshwar Prasad Garsanda
Jamui
Jamui
Bihar
66.
Mahendra Prasad
Kusha Prasad
Beri
Lata Rafiganj
—
Aurangabad
67.
Udit Ram
Sri Baru Ram
Majhiaba
Balabigah
—
Gaya, Bihar
(Prarya)
68.
Kamla Dubey
—
—
—
—
—
69.
Rajendra Prasad
Brahmadeo Mahato Nidhi
Lediyari
Khiri
Allahabad
(U.P.)
70.
Brajesh Kumar
Sukaran Mehta
Chandobali
Sikandarpur
Madanpu
Aurangabad
71.
Dayanand Kumar
Sri Sukaran Mehta
Chandobali
Sika Darpur
Bhawanpur
Aurangabad,
(Baar)
Bihar
72.
Rajeshwar Prasad
Sukar Mahto
Chandobali
Sikahdarpur
Madanpur
Aurangabad,
(Baar)
Bihar
73.
Sunil Hansda
Sri Runai Hansda
Buatbari
Chirkunda
Chirkunda
Dhanbad
74.
Suchand Mallick
Late hasan Mallick
Kodanita
Alyaneshwari
Kulti
Burdwan, W.B.
75.
Sant Rabi Das
Late ram barat Ram
Majhiwada
Paraiya
Pariaya
Gaya (Bihar)
76.
Sarya Prasad
Late Basud Bhagat
Pawar
Rafigun
Rafigunj
Aurangabad,
Bihar
77.
Awadh Kishore
Prakash Nonia
—
—
Gaya
Bihar
78.
Bhola Nonia
Kunj Bihari Nonia
—
Kaunch
—
Gaya
79.
Ram Bhajan Nonia
Chanari Nonia
Itwa
Gajanpur
Pariya
Gaya
80.
Rajesh Kumar
Upendra Pd. Sinha
Darma
Darma
—
Aurangabad
1
2
3
4
5
6
7
2.
This case is received from the Ministry of Labour on
15.01.1997. After notice, both parties appeared. The
workman files their respective written statement on 11/
13.08.1997, The management files written statement on
05.11.1999 Thereafter rejoinder and documents filed by the
respective parties. One witness examined from each side
as well as two documents marked on behalf of the workman
as W-1 & W-2.
3.
The case of the workman is that the employers
engaged the concerned workmen i.e Vyasdeo Pandey and
80 other in various colliery. And they were engaged in the
job which falls under prohibited category under contract
Labour Act and there job are permanent in nature. And
they have been working regularly since 1989 and they have
put on 190 days attendance in case of underground and
240 days in case of surface in each calendar year since
1989,1990,1991 ,1992.
4.
It is also submitted by the workman that management
had brought in a co-operative society namely Koyla Khadan
Sramik Seheyog Samity under whom the concerned
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
979
workmen are alleged to be working on various job under
supervision, direction and control of the manager, Agent,
Overman etc of the colliery.
5. The Contract awarded to the aforesaid Co-operative
Society is nothing by a camouflage through which the
concerned workmen are exploited and deprived of their
legal dues. Therefore the concerned workman through their
union requested the management for regularisation them
as permanent workman but it was not heeded by the
management. Thereafter Industrial disputes arose.
6.
On the other hand, the case of the management is
that no employer-employee relationship exists between the
management and the concerned persons. Therefore the
present reference is liable to be summarily rejected.
7.
It is also submitted that the concerned persons
advanced their claim that they are the member of a registered
co-operative society named “Koyla Khadan Sramik
Sahayog Samitee” and they had worked at different
collieries of C.V Area as contract workers on the basis of
work orders issued in the name of Co-operative Society.
And some of the tenders submitted by the aforesaid Co-
operative Society were accepted and work orders were
issued for executing the works on the jobs for which there
is no restriction on engagement of contract labour.
8.
It is also submitted by the management, that the
contract jobs awarded to the Co-operative Society were
mainly and substantially confined to surface works of civil
nature and the duration of work was for a limited period
only. The Co-operative Society at no point of time could
engage workmen more than 10 or 15 at a time at any colliery.
The duration of engagement of contract labour hardly
could be for 15 to 20 days in a quarter and the question of
engagement of such contract labour on regular basis does
not and cannot arise.
9.
It is also submitted that the sponsoring Union could
not establish before the competent authority of the Central
Govt. i.e (conciliation Officer) that the workmen bearing
the names appearing in the list attached to the schedule of
reference had worked as contractor workers against the
work order issued in the name of the Co-operative Society.
The sponsoring Union failed to show any document of
any work . Hence the conciliation Officer refused to refer
the dispute for adjudication by Office order dated
02.02.1995. The sponsoring Union approached to the
Hon’ble High Court, Patna Ranchi Bench in CWJC No.
3301 of 96 ( R). The Hon’ble High Court advised the Central
Govt. to refer the matter to The Tribunal for adjudication
by giving opportunity to put up the case before an Industrial
Tribunal.
10.
The short point to be decided in this case, whether
the contract workers to be regularise as workmen of BCCL
or not.
11.
The present contract workers No. 81 have prayed to
be regularised in the colliery as workmen. The management
submitted that some of the workmen render mason and
labour work of building when there is necessity and
engaged through contractor. They never worked
continuously or permanently in any colliery.
12.
The workman witness has said, he cannot say name
of all the workmen and he says that they were engaged
through Co- operative Society they submitted no Identity
card and no pay slip of BCCL, like other employee of BCCL
. The WW-1 also submits in cross examination that “ we
used to get our wages from the Co-operative Society. We
used to work under the supervision of the said Co-operative
Society “. This being the situation the workmen cannot be
regularised under the management.
13.
Considering the facts and circumstances of this case,
I hold that the demand of the Union of S/Sh. Vyasdeo
Pandey and 80 others for regularisation by the management
of Chanch Victoria Area No. XII of M/S Bharat Coking
Coal Limited, is not legal and justified, Hence all the
workmen mentioned in the schedule are not entitled to get
any relief.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2016
dk-vk- 452-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ chlhlh,y
ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/dj.k@ Je U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k
99@2001) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 03@03@2016
dks izkIr gqvk FkkA
[la- ,y&20012@570@2000&vkbZvkj (lh,e&I)]
,e- ds- ¯lg] vuqHkkx vf/dkjh
New Delhi, the 3rd March, 2016
S.O. 452.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award of the Central Government
Industrial Tribunal-cum-Labour Court No. 1, Dhanbad (Ref.
No. 99 of 2001) as shown in the Annexure in the Industiral
Dispute between the employers in relation to the
management of M/s. BCCL and their workmen, which was
received by the Central Government on 03/03/2016.
[No. L-20012/570/2000-IR (CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD
In the matter of reference U/S 10 (1) (d) (2A) of
I.D. Act, 1947
980
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Ref. No. 99 of 2001
Parties : Employer in relation to the management of
Kustore Area, M/s. BCCL
AND
Their workmen
Present :
Sri R. K. Saran, Presiding Officer
Appearances:
For the Employers
:
Shri D.K. Verma, Advocate
For the Workman
:
Shri S. Sharma, Rep.
State : Jharkhand
Industry : Coal
Dated 23/12/2015
AWARD
By order No. L-20012/570/2000/ IR (CM-1), dated
27/04/2001, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub –section (1) and sub-section (2A) of Section 10
of the Industrial Disputes Act, 1947 referred the following
dispute for adjudication to this Tribunal:
SCHEDULE
“Whether the action of the management of M/S BCCL,
Kustore Area in not providing employment to
Sri Suresh Bhuia S/O Late Bineshwar Bhuia, wagon
Loader, East Bhugatdih Colliery is legal and justified?
If not, to what relief the dependant is entitled?”
2.
This case is received from the Ministry of Labour on
14/05/2001, After receipt of the reference, both parties are
noticed. The Sponsoring Union files their written statement
on 12/10/2001, The management files their written statement
on 09/05/2002. One witnesses adduced from each side,
And document of workman is marked as W-1 to W-7.as
well as document of the management is marked as M-1 to
M-7.
3.
The case of the workman is that Late Bineshwar
Bhuia was permanent employee of East Bhagatdih Colliery,
in 1990 the concerned workman was transferred to Kustore
Area Workshop . But the L.P.C. could not be send to the
Kustore Auto Workshop by the management. Matter was
raised before the authority of Kustore Area but the
management did not sent the same. Resulting the workman
was working at Kustore Auto Workshop and get the salary
from East Bhagatdih.
4.
Late Bineshwar Bhuia was designated as wagon
Loader but he was serving the management as mechanical
fitter. And he was died on 4.10.91. After the death of the
workman his eldest son Shri Suresh Bhuia applied for his
employment before the management of East Bhagatdih but
the matter was delayed by the management of East
Bhagatdih thereafter the management denied of
employment on the ground of belated case by the
management of Kustore Area. Therefore Industrial Dispute
arose.
5.
On other hand the case of the management is that
one workman named Bineshwar Bhuia was working at East
Bhugatdih Colliery and his designation was Wagon Loader.
In the year 1991 he was working as mechanical helper on
the surface considering his health ground. He met his
normal death on 4.10.1991 in the course of his medical
treatment. Thereafter the wife of the deceased workman
received all the legal dues in respect of the aforesaid
workman.
6.
Sri Suresh Bhuia is claiming employment under the
management posing himself as the son of Late Bineshwar
Bhuia who died on 4.10.1991 asserting the right of
employment under the provision of NCWA. It is also
submitted by the management that the provision of NCWA
can only be taken into consideration for providing
employment on compassionate ground only.
7.
It is submitted that no justifiable ground exist for
providing employment to the concerned person at this
stage. The management did not accede to his demand on
the ground of delay . It appears that the concerned person
was minor at the time of death of late Bineshwr Bhuia or
was not fully grown up to take up job of Miner Loader
inside the mine . The concerned person failed to justify the
demand for employment on compassionate ground
therefore he is not entitled to any relief.
8.
Short point to be decided in this reference is whether
the applicant is to get job in place of deceased Bineshwar
Bhuia , who died while in service as per NCWA. In the case
alongwith document one witness each has been examined
by the either side.
9.
The management witness has disputed the identity
of the applicant and says that his application has been
filed delayedly and as such the applicant is not entitled to
get employment and there is no harness. In the Written
statement of the management Identity of the workman is
also disputed but As per M-3 the name of Suresh Bhuia is
mentioned as son of the deceased workman.
10.
On the other hand the applicant’s case, that he was
minor when his father died and he is to get job.
11.
Delay in filing application with proper particular is
usual that should be condoned by the management . And
the second point is the identity, the workman however has
not filed any identity proof but his name is found entered
in service excerpt marked as Ext- M-3 . The M-3 is prepared
on 30.05.1987 on that point of time Sri Suresh Bhuia was 13
years old and on the date of death of the deceased
workman, he was about 17 years old.
12.
As per Ext. M-3 the date of Birth of the deceased
workman is 1939 hence the service tenure is ended on
1999. Sri S.S.Roy (MW-1) says in chief that in the year
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
981
1994-95, one Suresh Bhuia who claimed to be the son of
deceased employee submitted an application before the
management for providing him employment but in cross
examination of the same, the MW-1 being Sr. personal
Officer say’s “ There exists a provision in NCWA which
provides that after the death of an employee during his
service tenure his Dependant would be provided
employment in his place. No period of limitation has been
prescribed for submitting any application for providing
employment in place of deceased workman.” .
13.
Considering the facts and circumstances and as per
evidence of the management I hold that the action of the
management of M/s BCCL, Kustore Area in not providing
employment to Sri Suresh Bhuia S/o Late Bineshwar Bhuia,
wagon Loader, East Bhugatdih Colliery is not justified,
Therefore the management is directed to take the workman
in job verifying his identity proof.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2016
dk-vk- 453-—vkS|ksfxd fookn vf/fu;e] 1947 (1947 dk
14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ bUMql
VªklykbZuj ¯oxl ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa
ds chp] vuqca/ esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/dj.k@ Je U;k;ky;] dksydkrk ds iapkV (lanHkZ
la[;k 50@2014) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
03@03@2016 dks izkIr gqvk FkkA
[la- ,y&11012@12@2014&vkbZvkj (lh,e&I)]
,e- ds- ¯lg] vuqHkkx vf/dkjh
New Delhi, the 3rd March, 2016
S.O. 453.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award of the Central Government
Industrial Tribunal-cum-Labour Court, Kolkata (Ref. No.
50 of 2014) as shown in the Annexure in the Industiral
Dispute between the employers in relation to the
management of M/s. Indus Transliner Wings and their
workmen, which was received by the Central Government
on 03/03/2016.
[No. L-11012/12/2014-IR (CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 50 of 2014
Parties :
Employers in relation to the management of
M/s. Indus Transliner Wings
A N D
Their workman
Present :
Justice Dipak Saha Ray, Presiding Officer
Appearance :
On behalf of the
:
Mr. R.N. Majumder, Ld. Counsel
Management
with Mr. S. Bhattacherjee,
Ld. Counsel on behalf of
Air India Ltd.
None on behalf of M/s. Indus
Trans Liner Wings.
On behalf of the
:
None
Workmen/union
State : West Bengal
Industry : Civil Aviation
Dated: 28th January, 2016
AWARD
By Order No.L-11012/12/2014-IR(CM-I) dated
04.06.2014 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:
“(I) Whether the action of the Management of Air
India Ltd., Kolkata in terminating 30 numbers of
contractual workmen engaged by Ms. Indus
Transliner Wings (As per Annexure-I) is legal and
justified? To what relief the workmen are entitled to?
(2) Whether the action of the Management of Air
India Ltd. for not considering the candidature for
appointment of Ramp Driver in their subsidiary M/s
Air India Air Transport Services Ltd. (A wholly
owned subsidiary of Air India Ltd.) is legal and
justified? To what relief the concerned workmen are
entitled to?”
Annexure – I
1) Kalpataru Maity
16) Fatik Biswas
2) Biplab Biswas
17) Biswajit Roy Chowdhury
3) Sandip Roy
18) B.s. Rao
4) Gobinda Roy
19) M. Rahaman
5) Brindabon Mukherjee
20) M.d. Washim
6) Sanjay Thakur
21) Tapas Guine
7) Susanta Panja
22) Bidduit Sarkar
8) Somnath Jana
23) B. Poddar
9) James Sarkar
24) Ashoke Paswan
10) Prasenjit Panday
25) Arun Paswan
11) Sankar Singha
26) Lalbahadur Choudhury
12) Narayan Das
27) G. Balmiki
13) Bappa Datta
28) B. Sahani
14) Tarak Das
29) Manash Mrik
15) Bittu Mukherjee
30) Biswanath Paul
982
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
2.
When the case is taken up for hearing, none appears
either on behalf of the union or on behalf of M/s. Indus
Transliner Wings though the Airport Director, Air India
Ltd. is represented by its Ld. Counsel. It appears from the
record that the union is not appearing for the last 5
consecutive dates. Nor did it take any step to proceed with
the case.
3.
In view of the above, it may reasonably be presumed
that the union at whose instance the instant reference has
been initiated, is not at all interested to proceed with the
case. So, no fruitful purpose will be served in keeping the
matter pending.
4.
Considering the above facts and circumstances,
present referenced is disposed of by passing a “No Dispute
Award”.
Dated, Kolkata,
The 28th January, 2016
Justice DIPAK SAHA RAY, Presiding Officer
ubZ fnYyh] 7 ekpZ] 2016
dk-vk- 454-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr lapkj
fuxe fyfeVsM ds çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkj
ds chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;] dkuiqj ds iapkV (lanHkZ
la- 11@2008) dks çdkf'kr djrh gS] tks dsUnzh; ljdkj dks
07@03@2016 dks çkIr gqvk FkkA
¹la- ,y&40012@55@2007&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 7th March, 2016
S.O. 454.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 11 of
2008) of the Central Government Industrial Tribunal-cum-
Labour Court, Kanpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of the Bharat Sanchar Nigam Limited
and their workmen, which was received by the Central
Government on 07/03/2016.
[No. L-40012/55/2007-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SRI SHUBHENDRA KUMAR, HJS,
PRESIDING OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOR COURT,
KANPUR
Industrial Dispute No. 11 of 2008
Between :
Sri Om Pal Singh,
Son of Sri Veer Pal Singh,
Village – Chgandpur, Post Nawabganj,
District Farrukhabad.
And
Sub Divisional Officer (Phones)
Bharat Sanchar Nigam Limited,
Mainpuri.
AWARD
1.
Central Government, Mol, New Delhi vide notification
No.L-40012/55/07-IR (DU) dated 11.12.2007 has referred the
following dispute for adjudication to this tribunal.
2.
Whether the action of the management of Telecom
District Manager, BSNL, Mainpuri, Sub Divisional Officer
(Phones) BSNL Bhogaon, District Mainpuri, in terminating
the services of their workman Om Pal Singh with effect
from 16.05.2003 is legal and justified? If not to what relief
the workman is entitled?
3.
The case of the workman in short is that he was
appointed by the opposite party as Lorry Driver to drive
the lorry No. U.P. 84-A/2727 existing in the name of the
opposite party. The post against which the worker was
appointed was regular and permanent. The worker was
also maintaining Log Book of the lorry for the said vehicle
and he use to fill up the same in his own handwriting. It is
also the case of the worker that he continuously worked
for 240 days as lorry driver in each calendar year during the
course of his employment. The opposite party without
assigning any reason abruptly terminated his long service
w.e.f. 16.5.03. The opposite party at the time of dispensation
of the service of the worker neither paid notice, notice pay
or retrenchment compensation, therefore, the action of the
opposite party cannot be sustained in the eye of law. The
opposite party has also breached the provisions of section
25N of the Act hence the termination of the service of the
applicant is highly illegal arbitrary and against the principles
of natural justice. The opposite party instead of making
payment on scale rate allowed the worker a lump sum
amount of Rs.2500/- per month as wages though opposite
party was not entitled to act in such a manner being a
model employer of the company. The action of the opposite
party is also in breach of section 25F of the Act.
4.
On the basis of above allegations, the worker has
prayed for his reinstatement in the service of the opposite
party with full back wages, continuity of service and with
all benefits attached with the post.
5.
The opposite party in its reply has alleged that the
worker Om Pal Singh was engaged a casual driver on
contract basis at the fixed rate as and when required. The
worker was never appointed as lorry driver by any authority
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
983
of the opposite party and he was paid contractual amount
against the work doe from the cotingent funds for office
maintenance and other misc. expenses though vouchers.
It is denied that the worker was ever paid any wages by
Sub Divisional Officer (Phones) Bhogaon. There never
existed the relationship of employer and employee between
the opposite party and the worker as worker was never on
the rolls of the opposite party as also he never signed any
attendance register. Worker was never issued any
appointment letter by the opposite party for the post of
lorry driver. Worker did not hold any post and it is also
denied that he had worked against any regular and
permanent vacancy. Opposite party has denied that it had
ever terminated the services of the worker either from 16.5.03
or from any other date, therefore, question of his termination
does not arise. The engagement of the worker came to an
end automatically. The present claim of the worker is highly
belated. Worker is simply trying to gain back door entry in
the employment of the opposite party. Worker had no lien
against any regular and permanent post. Therefore, on the
basis of above pleadings, it is alleged by the opposite
party that the claim of the worker is devoid of merit and is
liable to be rejected.
6.
Worker has filed rejoinder but nothing new has been
given therein except reiterating the facts already pleaded
in the claim petition.
7.
The worker by means of his affidavit paper No.10/2
has filed certain documents in the shape of annexure I to IV
showing details of his working days for the year 2000 to
2003. Worker has also filed photocopy of payment voucher
as Annexure V with his affidavit. He has also filed
photocopy of educational qualification and registration
certificate in the form of Annexure VI and VII. All these
documents will be discussed at the appropriate stage.
8.
Worker has filed his evidence on affidavit and he
failed for his cross examination hence opportunity was
closed. But subsequently order dated 12.12.12 was recalled
by order dated 13.01.15 and the witness was allowed to
appear in the witness box for his cross examination. Witness
has examined himself as W.W.1 in support of his claim.
9.
Opposite party examined one Sri Lakhan Singh
Chauhan, Ex. Sub Divisional Officer, Bhogaon as M.W.1.
10.
I have heard the arguments of both the parties at
length and have also perused the whole record carefully.
11.
W.W.1 Om Pal Singh has filed his evidence on
affidavit and supported his case. In his cross examination
he deposed that there was no agreement in between him
and the employer for appointing him as lorry driver. He was
also not given any appointment letter. There was no
advertisement for the post nor he had given any application
for his appointment and he was engaged by SDO Sri UC
Mishra and payment of wages was made through vouchers.
His attendance was not taken on attendance register but
he was maintaining log book of the vehicle which was also
signed by the concerned officer. Lorry No. UP84A-2727
was taken back from him on 15.5.03. He was not given any
letter of termination and he has filed documents to show
that he had worked for more than 240 days continuously.
He is working as driver on contract basis from 2011 in Delhi
Transport Corporation. His payment was done monthly.
12.
On behalf of management M.W.1 Ram Lakhan Singh
Chauhan deposed that services of worker were taken as
and when required and he was never appointed and
payment was done through contingency. He had never
worked against any regular and permanent vacancy. He
was disengaged as vehicle was off route. He has admitted
the log book filed by the worker and deposed that these
papers belong to the department. He further deposed that
there was no written contract with the worker as per his
best knowledge.
13.
A perusal of log book paper no.10/9-68 which is
admitted by the management witness shows that it is
maintained from 1.09.2000 to 15.5.03 and the relevant entries
made by the worker in his own hand writing and the same
are countersigned by the officer of the management.
14.
It clearly establishes continuous working of worker
during the above period and also establishes that he had
completed 240 days of continuous working preceding 12
calendar months from the date of his termination.
15.
Worker has also filed copies of payment vouchers
which are paper no.10/69-99 which establish that worker
was receiving payment of wages month wise through
payment vouchers.
16.
From the above discussions, I come to the conclusion
that worker Om Pal Singh worked as casual driver with the
opposite party from 11.09.2000 to 15.05.2003 and has
completed 240 days of continuous working and he was
retrenched in breach of section 25F of the Act without
giving any notice, notice pay or retrenchment
compensation, therefore, his retrenchment is bad in law
and he is liable to be reinstated with full back wages as was
drawn by him at the time of his retrenchment, but he will
not be entitled for his back wages beyond December, 2010
as he himself has admitted that he is working as driver on
contract basis with Delhi Transport Corporation, Delhi from
the year 2011.
17.
Accordingly the worker is reinstated in the service
with back wages and continuity of service in the above
terms as mentioned in Para 16 of the award and the reference
is therefore, answered in favor of the worker and against
the management.
SHUBHEDRA KUMAR, Presiding Officer
984
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
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¹la- ,y&42011@129@2011&vkbZvkj (Mh;w)º
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New Delhi, the 7th March, 2016
S.O. 455.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 19 of
2012) of the Central Government Industrial Tribunal-cum-
Labour Court, Kanpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of the NTPC, Dibiyapur and their
workmen, which was received by the Central Government
on 07/03/2016.
[No. L-42011/129/2011-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SRI SHUBHENDRA KUMAR, HJS,
PRESIDING OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOR COURT,
KANPUR
Industrial Dispute No. 19 of 2012
Between :
The General Secretary,
NTPC Employees Union,
P.O. Dibiapur,
District Auraiya
And
The General Manager,
NTPC Dibiyapur,
Auraiya.
AWARD
1.
Central Government, Mol, New Delhi, vide
notification No.L-42011/129/2011-IR (DU), dated 03.02.2012
has referred the following dispute for adjudication to this
tribunal.
2.
Whether the action of the management of NTPC
Dibiyapur, Auraiya in not releasing promotion to its
workmen S/Sri Uma Shaker Yadav, P. K. Sharma and
M. Janardan is legal and justified? What relief the workmen
are entitled to and from which date?
3.
The case in short as set up by the union on behalf of
the workmen named in the reference order is that Sri Uma
Shanker Yadav, P. K. Sharma and M. Janardan were due for
their respective promotion from W-8 to W-9 with effect
from 1st July, 2009 and that all these workers are the members
of the union. It is also alleged that all the workers have
fulfilled the required eligibility as per the circular No. 660/
2009 and as per policy there is no constraint of vacancy
within the particular cluster and the workers involved in
the present dispute belongs to cluster –C. Despite
representations the management did not promote these
workmen and has indulged in an unfair labor practice. All
these workers have completed more than 3 years of service
in grade W-8 as required in Para 1.2 of the said circular and
they were considered for promotion by D.P.C. and their
names were published in the list dated 25.01.2010. The name
of P.K. Sharma, Uma Shanker Yadav and M. Janardan
appeared at serial no.3, 10 and 16 out of total 17 employees
selected by DPC-2009 for promotion from W-8 to W-9
category. Worker Uma Shanker Yadav was served with a
charge sheet on 24.06.09 and punishment was awarded. As
there was inordinate delay in the conclusion of the inquiry,
worker Uma Shanker Yadav moved before the Hon’ble High
Court, Allahabad, thereupon the inquiry was concluded
against the worker Sri Uma Shanker Yadav and appeal
preferred by him which was not considered whereupon
review petition was moved which is still pending. Again on
19.08.09 second charge sheet was issued on account of
being found absconding during duty by one hour at work
which was issued on false and frivolous grounds just in
order to harass the workman. This entire attempt on the
part of the management is deliberate and with malafide
intention just to prolong the promotion with a view to harass
the worker Uma Shanker Yadav. This domestic inquiry ad
delay are the part of strategy and design of the management
and under the garb of which the promotion of Sri Yadav
was not considered despite the fact that he was entitled for
the promotions during the year 2009, 2010, 2011 and 2012.
Later in the year M. Janardan was declared promoted in
July, 2010 but Uma Shanker Yadav and P. K. Sharma were
not promoted in the year 2009, 2010, 2011 and 2012 which
shows the adamant attitude and high handedness of the
management and the management is causing mental and
financial loss to the workmen for no reason. Therefore, the
said workers are entitled to the promotion without delay
from July, 09 in Grade W-9 and after 3 years in 2012 in Grade
W-10 for which they are entitled and the same should be
granted with all consequential benefits.
4.
Lastly it is prayed that that Sri Uma Shanker Yadav,
P. K. Sharma and M. Janardan be promoted to grade W-9
from W-8 from July, 2009 and from July grade W-10 from
W-9 with all consequential benefits.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
985
5.
Management has filed its reply denying vehemently
the claim of the union by asserting that the employer had
never adopted arbitrary policy and had violated the law
promoting to the next grade. Sri Uma Shanker Yadav is
eligible for promotion from W8 to W9 in DPC 2009 as per
NTPC promotion policy along with other eligible candidates.
The recommendation of DPC was kept in the sealed cover
by the DPC itself due to pending disciplinary cases and he
was awarded penalty on 17.03.2011. Consequent to the
above penalty he was gain considered for promotion in
DPC 2012 as per NTPC Promotion policy. DPC has
considered his case for promotion along with other eligible
candidates. Sri Yadav was not considered for promotion
by the DPC in 2012. It is admitted by the management that
the other two workers were considered for promotion by
the DPC 2009 but they were not found fit for promotion by
the DPC as Sri P. K. Sharma W-8 and Sri M. Janardan W-8
were considered for promotion by DPC along with other
eligible candidates. The DPC 2009 has not recommended
the above employees for promotion as per NTPC
Promotion policy. M. Janardan W-8 was recommended for
promotion by DPC 2010 and was promoted. Sri P. K. Sharma
W-8 was considered in DPC 2010 for promotion but as per
DPC 2010 the recommendation of DPC has been kept in the
closed envelop due to pending court case. It is denied that
promotion of Sri P. K. Sharma was delayed in 2005. It is
alleged that promotion is the administrative function of the
management and there are several norms for promotion
and the management has its own decision and management
has also considered the work, conduct, merit, suitability
and seniority.
6.
Lastly it is stated that the workers are not entitled for
any benefit or relief in this reference.
7.
Union has also filed rejoinder but nothing new has
been mentioned therein except reiterating the facts already
alleged in the claim petition.
8.
Both sides have also filed documents which shall be
discussed at the appropriate stage.
9.
Whereas union has examined Sri Uma Shanker Yadav
as W.W.1, management has examined its witness Sri
Manoranjan Sarangi as M.W.1.
10.
I have heard the arguments of the parties at length
and have also perused the whole record carefully.
11.
It appears that the reference sent by Mol, New Delhi,
is to consider the action of the management of NTPC in not
releasing promotions to its workers S/Sri Uma Shanker
Yadav, P. K. Sharma and Sri M. Janardan is legal and justified
and if not to what relief the workers are entitled and from
which date.
12.
In the reference General Secretary, NTPC Employees
Union has been made party which has filed the claim
petition on behalf of the workers with the prayer that all the
three workers be promoted to Grade W-9 from W-8 from
July and further to Grade W/10 from Grade W-9 from July,
2012.
13.
In this case claim petition has been filed by General
Secretary, NTPC Employees Union, but General Secretary
has not appeared in witness box to depose on behalf of all
the three workers but only one P. K. Sharma one of worker
alleging himself to be joint secretary has given his evidence,
nor he has filed any authorization from general secretary
permitting him to represent the case of all the three workers.
In his cross examination W.W.1 P. K. Sharma has deposed
that he is joint secretary and has been authorize to represent
the case of all the three workers which he can file but he
has not filed any such authority. He has deposed in his
cross examination that he cannot say about both the above
worker whether they will give any evidence but both of
them have been given promotion. He further added that
Uma Shanker Yadav has been promoted from W-8 to W-9
in 2013 and in the same year simultaneously he has been
promoted from W-9 to W-10. As regards Janardan he has
stated that he has been promoted from W-8 to W-9 in 2010.
It is further added that promotion of Uma Shanker Yadav
has been made effective from 2009.
14.
On behalf of management affidavit of M. W. 1 Sri
Manoranjan Sarangi, is filed wherein it is stated that
Sri U. S. Yadav and Sri Janardan have already been
promoted as per promotion policy of the company as such
their cases are not considered at this stage by the tribunal
as both of them have not come forward to contest their
claim nor they have adduced any evidence in the case.
15.
In his cross examination he has stated that promotion
of Sri Yadav is made effective from 01.07.09 from W-8 to W-
9 grade and second promotion of Sri Yadav to grade W-10
was done from 01.07.2013. He has given reasons for not
promoting Sri U. S. Yadav in the D.P.C. held in 2009 that
one departmental inquiry was pending against him. He
further added that Sri Yadav and Janardan have already
been promoted.
16.
From the above discussions regarding promotion of
Sri Yadav and Sri Janardan, it appears that they have not
challenged the ate of their promotion by appearing in person
in witness box nor their case has been contested by the
secretary of the union.
17.
The Tribunal is, therefore, of the opinion, the Sri U. S.
Yadav and Janardan appears to be satisfied after their
promotion and therefore, they have not given any evidence
by challenging the date of their respective promotion. Thus
no relief can be granted to U. S. Yadav and Janardan.
18.
Now the case of Sri P. K. Sharma is left to be examined
in the light of reference order.
19.
It is necessary to mention that despite order of the
tribunal passed on 10.02.2015 on the application of
workman paper No.11/1-2 for summoning mother policy of
promotion and proceedings of DPC conducted in 2009 to
986
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
2011 and report and result in respect of P K Sharma kept
under sealed cover, management did not file proceedings
of DPC and result in respect of Sri P K Sharma kept under
sealed cover. Management did not file proceedings of DPC
and report of DPC by which result regarding P K Sharma is
kept under sealed cover. In this regard M.W.1
Sri Manoranjan Sarangi has admitted that on the application
of the union records were summoned but minutes of DPC
are not filed by the management. He has further deposed
that there is no mother policy but management has filed its
promotion policy. It appears that management has
deliberately withheld the documents and has not filed the
minute/proceedings of DPC of any year which was very
relevant document to be seen by the tribunal to come to
the conclusion as to on which grounds promotion of
Sri P K Sharma was refused in 2009 and on what reasons it
was kept under sealed cover in subsequent years.
20.
The main reason shown by M.W. for not promoting
to Sri P K Sharma from W-8 to W-9 in the year 2009 is that
performance of Sri Sharma was not up to the mark in
preceding three years. It was entered in ACR.
21.
It has been argued by the representative for the
management that reference is bad as no specific date of
promotion is mentioned in the reference order. But it is
admitted to both the parties that promotion to Sri P K
Sharma was not recommended by DPC held in 2009 for his
promotion to Grade W-9 from Gr. W-8.
22.
Although his name was considered for promotion
by DPC 2009 and 2010 along with other candidates and
name of Sri P K Sharma was not recommended by DPC
2009 and his promotion was kept in sealed envelope by
DPC 2010, therefore, mentioning of date of promotion in
the reference has become redundant and it cannot be
accepted that reference is bad on account of non-
mentioning of date of promotion in the reference order.
23.
In the written statement filed by the management it is
stated in para 6 that promotion is the administrative
function of the management and there are several norms of
promotion. Management has also considered the work
conduct, merit, suitability and seniority as per promotion
policy of the company. In this regard worker P K Sharma
has filed review of promotion policy for employees in
workman category dated 24.08.09 which is paper No.
19/9-11, wherein eligibility period for promotion in grade
W-9 and W-10 is given three years.
24.
Management has relied upon promotion policy paper
No. 20/53-64 wherein several circular of previous years
from 1982—11 are compiled and this policy also includes
promotion policy of 2009 wherein in para 3.2.1 at page 20/
54 it is mentioned that promotion to next higher grade shall
also be subject to the condition that workman is not rated
unsatisfactory in any of the performance in the appraisal
report considered for promotion, which impliedly means
that if in appraisal report workman is rated unsatisfactory
his promotion can be refused. But contrary to it M.W.1
Sri Sarangi DGM Human Resource has stated in his cross-
examination that in the DPC ACR of 3 years is considered
and no adverse ACR was given to all the three employees
nor ACR was communicated to them which means that
ACR of P K Sharma was not adverse during these three
years. He has also deposed that promotion of Sri P K Sharma
was not recommended by DPC as his performance was not
up to the mark for continuous three years and entry was
made in ACR. He goes on to depose that according to
promotion policy an employee should be informed for his
poor performance and again he deposed that no information
is given to the employee if his performance is not up to the
mark and performance is reviewed orally and not in writing
and in provision is there for rating the workers but it is not
mentioned that the performance of the worker is not up to
the mark. The statement of M.W.1 appears to be self
contradictory on several points as he himself admitted that
no adverse CR given or communicated to Sri Sharma.
25.
Management has also not filed any such relevant
document to show that performance of Sri Sharma was not
up to the mark and also not filed any document to establish
that rating of the worker Sri Sharma was below required
rating for promotion. It was the burden on the management
to have filed relevant documents especially report of DPC
for the year 2009 to establish that promotion of Sri Sharma
was not recommended due to less rating and not performing
up to the mark. Management has not filed a chit of evidence
to establish its case and only produced M.W.1 Manoranjan
Sarangi, DGM, Human Resource, who has given his oral
evidence only which is also shaking on several points. His
evidence is not supported by any documentary documents
available with the management and considering that no
adverse ACR was given to Sri P K Sharma as admitted by
M.W. 1, there cannot be any justification for management
for refusing the promotion of P K Sharma from W-8 to W-9
in the DPC held in the year 2009, therefore, action of the
management of NTPC in not releasing promotion to
Sri Sharma in the DPC conducted in 2009 is held to be
unjustified and he is entitled for his promotion from July
2009 in grade W-9 from Gr. W-8.
26.
As far as promotion of Sri P K Sharma from W-9 to
W-10 with effect from July 12 is concern, M.W.1 Sri Sarangi
in his evidence has deposed that result of promotion of
Sri P K Sharma was considered in 2010 and recommendation
of DPC is kept in close envelope due to pendency of
criminal case No. 2925 of 2007 pending in the Court of Civil
Judge (Jr. Div.) Dudhi Sonebhadra. This fact is also admitted
by the worker Sri P K Sharma who in his cross-examination
has stated that a criminal complaint is filed by one Sri Neeraj
Maheshwari under section 138 of N.I. Act and under section
420 of I.P.C. against him and his wife which is still pending
and numbered as case no.2909 of 03 in which he has moved
discharge application. Management has also filed
photocopy of certified copies through list 20/1 and a perusal
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
987
of which reveals that Neeraj Maheshwari has filed criminal
complaint against the worker and his wife in which by the
order of the magistrate dated 16.01.04 cognizance is taken
under section 420 IPC and summons were issued against
the worker and his wife. It also appears that worker and his
wife has preferred application under section 482 Cr.P.C.
numbered as 2120 of 2004 before the Hon’ble High Court
for quashing the criminal proceedings which was dismissed
by order dated 2.12.13 by Hon’ble High Court and
opportunity was given to the applicant to move application
for discharge. In the said case before the Hon’ble High
Court contention of the learned counsel of the applicant
that no case against the applicant is disclosed and the
present prosecution has been instituted for harassment.
27.
Management has also filed copy of promotion policy
dated 2.12.93, wherein certain provisions were revised in
para 7.3. Revised provisions are that “no employee under
suspension or where the charge sheet has been issued or
where criminal case is pending against him shall be
promoted unless he is unconditionally reinstated or
exonerated”.
28.
In para 7.3.1 it is provided that the recommendation
of CPC shall be kept in sealed cover and in para 7.3.3 it is
provided that if the employee concern is finally acquitted
and is fully exonerated the sealed cover recommendation
shall be opened.
29.
Therefore, according to above discussions
management has kept the recommendation of subsequent
DPC under sealed cover as criminal case is pending against
worker Sri P K Sharma, there appears no illegality in it in
keeping the recommendation of DPC under sealed cover.
30.
Worker contended that pendency of criminal
complaint cannot be treated as prosecution against him as
it is not a police case. I do not find any force in this
contention as the worker himself filed an application under
section 482 of Cr.P.C for quashing the criminal proceedings/
prosecution.
31.
Worker has also contended that in accordance with
para 3.11.5 of promotion policy paper No.20/53-64 that in
the event of delay in the conclusion of criminal prosecution
which is not concluded after expiry of two annual CPC
from the date of meeting of first CPC, the appointing
authority may review the case of employee. It is argued
that as court was vacant and delay criminal proceedings
were not due to action of employee, his case should be
reviewed by the appointing authority but as it appears that
the provisions are not mandatory and it is the sole
discretion of appointing authority to review the case of
worker or not and the tribunal is not empowered to give
any direction on this point. In this regard it can be held that
promotion of Sri P K Sharma has not been refused by
subsequent DPCs and his promotion is only differed due
to pendency of criminal case and result of DPC is kept
under sealed cover in subsequent DPCs.
32.
Worker has cited case law of Hon’ble Apex Court
1991 AIR 2010, Union of India versus K V Jankiraman etc.
But this citation has no application in this case as facts of
present case differs.
33.
In view of above discussions, it is held that the action
of the management of NTPC in not releasing promotion to
Sri P K Sharma in the DPC 2009 is neither legal nor justified
and the workman Sri P K Sharma is entitled to the promotion
from W-8 to W-9 from July 2009. As regard future promotion
from Gr.W-9 to W-10 DPC has rightly kept the result of
Mr. Sharma in sealed cover due to pendency of criminal
proceedings against him.
34.
As other workers Sri Uma Shanker Yadav and
N Janardan have not come to prove their case probably for
the reasons that they have already promoted, therefore,
they are not entitled for any relief pursuant to the reference
order.
35.
Reference is answered accordingly.
SHUBHENDRA KUMAR, Presiding Officer
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¹la- ,y&40012@461@2000&vkbZvkj (Mh;w)º
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New Delhi, the 8th March, 2016
S.O. 456.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. Case No.
CGIT/LC/R/41/2001) of the Central Government Industrial
Tribunal-cum-Labour Court, Jabalpur now as shown in
the Annexure in the Industrial Dispute between the
employers in relation to the management of the Department
of Telecommunication, Bhopal and their workman, which
was received by the Central Government on 08/03/2016.
[No. L-40012/461/2000-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/41/2001
988
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Shri Jainarayan Methal
S/o Shri Devial Methal,
Vill Awan, Tehsil Raghogarh,
Guna
...Workman
Versus
Chief General Manager,
Deptt. of Telecommunication,
Hoshangabad Road,
MP Circle,
Bhopal
Telecom District Engineer,
Guna
...Management
AWARD
Passed on this 11th day of February, 2015
1.
As per letter dated 18-1-01 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-40012/
461/2000/IR(DU). The dispute under reference relates to:
“Whether the action of the management of Telecom
Distt.Engineer, Guna in terminating Shri Jainarayan
Methal S/o Shri Devlal Methal in the year 1999 is
justified? If not, to what relief the workman is
entitled?”
2.
After receiving reference, notices were issued to the
parties. Workman submitted statement of claim at Page 3/1
to 3/7. Case of Ist party workman is that he was initially
appointed in Telegraph department as daily wage Mechanic
on 1-10-92. He was continued in service without any break
till 31-3-99. His services were terminated without notice, he
was not paid one month salary in lieu of notice or
retrenchment compensation. That he worked continuously
with 2nd party for 6 years 5 months. He completed more
than 240 days continuous service. 2nd party failed to prepare
list of workman of his category and display on notice board
as per Rule 77 of ID Central Rules 1957.
3.
That 2nd party not considered his case for appointing
in service as per the circular dated 1-11-95 issued by the
department as per the directions by Apex Court in AIR-
1987-SC-2342. Workman has also alleged that he was not
given proper category of the workman, his wages were not
properly paid. He was not absorbed in service. That he
was not given any employment as per Section 25 H of ID
Act though employees junior to him were provided
employment. That after termination of his service, workman
was unemployed. He borrowed money for survival of his
family. Juniors were continued in service. 2nd party has
committed violation of Section 25-G,H of ID Act. On such
ground, workman prays for his reinstatement.
4.
2nd party filed Written Statement at Page 5/1 to 5/2
opposing claim of workman. 2nd party denies that workman
was appointed in department on 1-10-92. It is submitted
that since 1985, the engagement of casual daily wagers
was bad. The workman was not posted on daily wages in
1992. 2nd party further submits that for petty works in
department, few labours were engaged. After completion
of petty works, such labours used to be retrenched
automatically. Workman had not completed 240 days
continuous service. There was no question of termination
of his service in violation of Section 25-F of ID Act. violation
of Rule 77 of principles of last come first go has been denied.
That judgment in case of casual labours by Hon’ble Supreme
Court cannot be applied to workman. He is not eligible as
workman has not completed 240 days continuous service.
On such grounds, 2nd party prays for rejection of claim of
workman.
5.
After the statement of claim was amended about
workman was unemployed after termination of his service,
additional Written Statement is filed by management
denying that the workman was unemployed. The service
of workman commenced in morning and automatically
ended on completion of the day.
6.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i) Whether the action of the manage-
In Negative
ment of Telecom Distt.Engineer,
Guna in terminating Shri Jainarayan
Methal S/o Shri Devlal Methal in the
year 1999 is justified?
(ii) If not, what relief the workman is
As per final
entitled to?”
orders.
REASONS
7.
Workman is challenging termination of his service
for violation of Section 25-F of ID Act. Workman also
alleged violation of Section 25-G,H of ID Act. Juniors were
continued in employment. He was not allowed employment
by department. Workman filed affidavit of his evidence.
Workman has stated that from 1-10-92, he was working on
daily wage. He had worked more than 240 days continuous
service. He acquired temporary status. He submitted
application for granting temporary status, his services were
orally terminated on 31-3-99 without notice, he was not
paid retrenchment compensation. In his cross-examination,
workman says the post on which he was working was not
advertised, his name was not sponsored through
Employment Exchange. Appointment letter was not given
to him. he was working all the day in the year, he was
getting holiday during Diwali. He was not engaged for
petty work. He was doing work of laying cables. He was
paid wages for his working days. He claims ignorance of
circular dated 10-9-93. Said circular is not produced on
record. Terms of reference doesnot pertain to the denial of
regularization to the workman therefore above said circular
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
989
cannot be said relevant for deciding dispute between
parties.
8.
Management filed affidavit of evidence of
Shri Gajendra Singh Sengar. His evidence is on point that
since 1985, engagement of daily wagers is prohibited.
Workman was not appointed as labour on 1-10-92. He not
completed 240 days continuous service. In his cross-
examination, management’s witness says during 1992 to
2000, he was not acquainted with the workman. Shri
Kashiram, Aditya Narayan Chourasia and Gokul Prasad
were working as Lineman. That the workman did not work
in the department. It was told by him after perusing legal
file in the case. Management’s witness has no personal
knowledge neither any office record is produced. In para
12 of Written Statement, it is pleaded that for petty works,
few labours were engaged. After completion of paid works,
the labours engaged were automatically retrenched. The
document Exhibit W-1 shows that the labours were
engaged on daily wages be immediately discontinued. In
cross-examination of workman, it is not challenged that
the workman was working in the department. I do not find
reason to disbelieve evidence of workman. the application
for production of document was submitted by Ist party on
19-9-07. In reply filed to said application dated 26-6-09, it is
contented that workman was only engaged for petty work.
Workman was neither appointed nor retrenched by
department. The documents about engagement of workman
is not produced. 2nd party has supplied material documents.
The evidence of workman therefore cannot be outright
rejected. From evidence, it is clear that workman completed
more than 240 days continuous service. His services are
terminated without notice in violation of Section 25-F of ID
Act. Therefore I record my finding in Point No.1 in Negative.
9.
Point No. 2- In view of my finding in Point
No.1Workman was terminated in violation of Section 25-F
of ID Act, question arises whether workman is entitled for
reinstatement with backwages. Considering the workman
was not issued appointment letter, he was engaged on
daily wages during the period 1-10-92 to 31-3-99, relief of
reinstatement would not be appropriate.
10.
Learned counsel for workman Shri N.K.Salunke relies
on ratio held in
Case of Ashok Kumar Sharma Versus Oberoi Flight
Services reported in 2010(1) SCC-142. In above case,
workman had admitted guilt of carrying 30KLMsoup
spoons illegally in his shoe. Order of dismissal was
issued without conducting enquiry, compensation
Rs.60,000/- was enhanced to Rs. 2 Lakhs.
The facts of present case are not comparable.
Workman was not given appointment letter. Considering
the workman was continuously working from 1992 to 1999,
compensation Rs. 75,000/- would be appropriate.
Accordingly I record my finding in Point No.2.
11.
In the result, award is passed as under:-
(1)
The action of the management of Telecom
Distt.Engineer, Guna in terminating Shri Jainarayan
Methal S/o Shri Devlal Methal in the year 1999 is
proper and legal.
(2)
2nd party is directed to pay compensation Rs. 75,000/-
to the workman.
Amount as per above order shall be paid to workman
within 30 days from the date of notification of award. In
case of default, amount shall carry 9 % interest per annum
from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 8 ekpZ] 2016
dk-vk- 457-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Oghdy iSQDVªh]
tcyiqj ds çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkj ds
chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV (lanHkZ la-
lhthvkbZVh@,ylh@vkj@292@97) dks çdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 08@03@2016 dks çkIr gqvk FkkA
¹la- ,y&42012@192&193@96&vkbZvkj (Mh;w)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 8th March, 2016
S.O. 457.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. Case No.
CGIT/LC/R/292/97) of the Central Government Industrial
Tribunal-cum-Labour Court, Jabalpur now as shown in
the Annexure in the Industrial Dispute between the
employers in relation to the management of the Vehicle
Factory, Jabalpur and their workmen, which was received
by the Central Government on 08/03/2016.
[No. L-42012/192-193/96-IR(DU)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/292/97
Shri Suresh Chandra Dongre,
Qr. No. 2346, Type-II,
Sector-1, Vehicle Factory Estate,
Jabalpur (MP)
Shri Sarjuram Yadav,
In front of Gyan Bharti School,
Ganga Maiya, Vehicle Factory Estate,
Jabalpur
...Workman
990
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Versus
General Manager,
Vehicle Factory,
Jabalpur (MP)
...Management
AWARD
Passed on this 19th day of February, 2016
1.
As per letter dated 14-10-97 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-42012/
192-193/96-IR(DU). The dispute under reference relates to:
“Whether the action of the management of Vehicle
Factory, Jabalpur in compulsory retiring Shri
Sarjooram Yadav, fitter (auto), H.S.Gr.II and Shri
Suresh Chandra Dongra is legal and justified? If not,
to what relief the workmen are entitled to?”
2.
After receiving reference, notices were issued to
parties. Workman submitted statement of claim at Page 3.
Case of Ist party workman is that enquiry was not properly
conducted. He was not given opportunity for his defence.
Documents were not supplied. The findings of Enquiry
Officer are perverse. Misconduct is not alleged is not
proved. On such ground, workman prays for his
reinstatement.
3.
2nd party filed Written Statement at Page 5/1 to 5/2
opposing claim of workman. 2nd party submits that
punishment of compulsory retirement was imposed against
workman after conducting enquiry. Proper procedure was
followed. Workman was given opportunity for his defence.
Relevant documents were supplied to workman. Enquiry
Officer submitted report. Charges against workman are
proved. Considering gravity of offence, punishment of
compulsory retirement is imposed. Action of the
management is proper.
4.
As per order dated 26-6-2015, enquiry conducted
against workman is found proper and legal.
5.
Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i)
Whether the charges alleged against
In Negative
workman is proved from evidence in
Enquiry proceedings?
(ii) Whether the punishment of dismissal
In Negative
imposed against workman is proper
and legal?
(ii) If not, what relief the workman is
As per final
entitled to?”
order
REASONS
6.
As per order dated 26-6-2015, enquiry conducted
against workman is found legal. Question arise whether
charges/misconduct alleged against workman are proved
from evidence in Enquiry needs to be decided considering
evidence in Enquiry Proceedings. The memorandum issued
to workman is at Page 14 of the Enquiry Proceedings. The
charge/ misconduct alleged against workman pertains to
misconduct and indulging while on duty conduct
unbecoming of Government Servant. Workman had pleaded
not guilty of the charges. The evidence of management’s
witness Shri B.S.Parihar Security Guard pertains to his
signature on envelope. The witness confirmed his signature
one packet No. 160 was shown by Enquiry Officer. Witness
admitted his signature on it. Witness says articles were not
sealed in his presence. When the envelope was opened, 2
satta patta were signed by him. Witness was unable to tell
the detailed amount recovered with alleged Satta patta.
The CSE in his further cross examination says that CSE
told that in that it was satta patti. The witness confirmed
that amount of Rs. 52/- & Thakur was written on the patti.
In his cross-examination by Defence Assistant, witness
admits that single number is written on patti. The witness
claims ignorance names of how many persons were written
on the patti. Witness Shri Singh Security Supervisor in his
evidence says that Satta patti and amount Rs.462.50 was
recovered from workman Shri Surjuram after his personal
search. Workman on interrogation disclosed that he was
receiving amount. Mr. S.C.Dongra was writing the
Sattapattis. In his cross-examination, above witness says
he had not seen writing Satta patti by the workman. In
reply to Q.8, witness says he did not remember what was
written in Satta patta. He had not seen persons paying
amount to the workman. In reply to Q.11 witness says how
satta patti are identified. In 2 pattis, numbers were written
therefore he felt these were satta pattis. In reply to Q.20,
witness says Shri Dongra had produced Satta patti before
search was taken. Any other articles were not recovered.
In reply to Q.22, witness says amount was recovered from
workman. He did not see Shri S.C.Dongre writing Satta
Patti. Witness No.3 Manhar lal in his evidence says that
workman Surju ram had disclosed he was working for 5 %
with Mr. Dongra. The Sattapatti was seized at Gate No.1.
the evidence of management’s witnesses 4,5 is on the point
of seizure of satta patthi. They did not see workman writing
satta patti. In his cross-examination, PW-5 says security
staff did not ask two satta pattis only he was asked to
accompany and he signed on blank paper. The incident
was not reported to police about offence , management
itself taken action alleging misconduct of satta gaming.
Satta patti is kept in envelope finds single number written,
name of any person offering Satta is not written in it. How
wagering are betting were offered is not clear from those
satta patti. The evidence about writing satta patti is not
consistent. The evidence is clear that witnesses have not
seen workman receiving amount or writing satta . The
evidence shows that Shri Dongra was writing Satta patti is
also not consistent. Therefore the charge alleged against
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
991
workman indulging in Satta activities under Section 4 of
Public Gambling Act 1867 while on duty cannot be proved
from evidence in Enquiry Proceedings. For above reasons,
I record my finding in Point No.1 in Negative.
7.
Point No. 2- In view of my finding in Point No.1
charge against workman is not proved. The punishment of
compulsory retirement imposed against workman is illegal
and deserves to be set- aside. Accordingly I record my
finding in Point No.2 in Negative.
8.
Management has produced cash Rs.462.50 and 2
alleged Satta patti. The same was opened. As workman is
denying seizure of those articles from him, the management
has produced all those articles. The same requires to be
returned to the management. In affidavit of evidence filed
by workman, his age is shown 62 years. As he has already
attained age of superannuation 2 years before filing his
affidavit of evidence, in view of my finding in Point No.1
that charges are not proved, workman deserves to be
granted wages/ salary from the period of his order of
retirement till date of his superannuation.
9.
In the result, award is passed as under:-
(1)
The the action of the management of Vehicle Factory,
Jabalpur in compulsory retiring Shri Sarjooram Yadav,
fitter (auto), H.S.Gr.II and Shri Suresh Chandra Dongra
is not proper and legal.
(2)
Punishment of compulsory retirement is set-aside.
As workman has already attained age of
superannuation, management shall pay salary to the
workman for period of compulsory retirement till date
of superannuation within 30 days of publication of
award. In case of default, amount due shall carry 9 %
interest from date of award till its realization.
(3)
Amount Rs.462.50 paise found in the envelope
produced in the case be returned to the management.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 458-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ vkj-ds-
ekcZy fyfeVsM ds çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa
ds chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;] mn;iqj ds iapkV (lanHkZ
la[;k 02@2010) dks çdkf'kr djrh gS] tks dsUnzh; ljdkj dks
04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&29012@27@2009&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 458.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 02/2010)
of the Industrial Tribunal/Labour Court, Udaipur now as
shown in the Annexure in the Industrial Dispute between
the employers in relation to the management of M/s. R.K.
Marble Ltd. and their workman, which was received by
the Central Government on 04-03-2016.
[No. L-29012/27/2009-IR (M)]
NAVEEN KAPOOR, Under Secy.
vuqca/
vkS|ksfxd fookn vfèkdj.k ,oa Je U;k;ky;] mn;iqj
izdj.k la[;k 02 lu~ 2010 I.T.C. (C)
la- ,y&29012@27@2009&vkbZvkj (,e)
rkjh[k 14&7&2010
Jh xksfoUnjke pkS/jh cuke eSus¯tx Mk;jsDVj vkj- ds- ekcZy
12&12&2015
izkFkhZ e; vf/oDrk Jh ,u- ds- fprkSMk mifLFkfr
foi{kh vf/oDrk Jh ,e ,l fNik ,oa rFkk vf/Ñr
gLrk{kjdrkZ Jh vpy¯lg jkBkSMk] izca/d & dk£ed mifLFkr
izkFkhZ i{k ,oa foi{kh us le>kbZ'k ds mijkUr jk"Vªh; yksd
vnkyr esa jkthukek is'k fd;k A tks nksuksa i{kksa dks lquk;k o
le>k;k x;k A nksuksa i{kksa us jkthukek lgh gksuk Lohdkj fd;k A
jkthukek izekf.kr fd;k x;k A
jkthukek 'kkfey i=kkoyh jgs A
jkthukes esa o£.kr 'krks± ds v/hu izkFkhZ dks foi{kh laLFkku
crkSj {kfriw£r ,d eq'r #i;s 1]12]000@& v{kjs ,d yk[k ckjg
gtkj #i;s ek=k vnk djsxk] rFkk mDr {kfriw£r dh jkf'k 30 fnu
dh vof/ esa vnk djsxk] vU;Fkk mDr jkf'k ij vokMZ dh rkjh[k
ls 10 izfr'kr ok£"kd nj ls C;kt ns;k gksxk A
iapkV izdk'kukFkZ leqfpr ljdkj dks Hkstk tkos A
i=kkoyh iSQly 'kqekj gksdj nkf[ky nÝrj gks A
vÕ;wc [kku] U;k;k/h'k
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 459-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 64@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
992
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
New Delhi, the 9th March, 2016
S.O. 459.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 64/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 19th day of January, 2016
INDUSTRIAL DISPUTE L.C.No. 64/2009
Between :
Sri Mothe Balaiah,
S/o Rajamallu,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Mothe Balaiah
and numbered in this Court as L.C. No. 64/2009 and notices
were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 31.3.2001. He
prayed this Court to set aside the termination order dated
31.3.2001 and direct the Respondents to reinstate the
Petitioner with continuity of service together with benefits
and full back wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs.40,000/- in lieu of reinstatement and other service
benefits towards full and final settlement and Petitioner
agreed to the settlement, which clearly indicates that the
dispute between the parties have been resolved. Thus,
the memo filed by the Petitioner to withdraw the dispute is
accepted. The case is disposed of accordingly. Hence, no
dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the 19th
day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 460-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 65@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 460.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
993
Government hereby publishes the Award (Ref. No. 65/
2009) of the Central Government Industrial Tribunal/
Labour Court, Hyderabad now as shown in the Annexure
in the Industrial Dispute between the employers in
relation to the management of M/s. Yak Granite Industries
Pvt. Ltd. and Other and their workman, which was received
by the Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 19th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 65/2009
Between :
Sri Kompally Narasimha Swamy,
S/o Mallesh,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Kompally
Narasimha Swamy and numbered in this Court as L.C. No.
65/2009 and notices were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 7.6.2000. He prayed
this Court to set aside the termination order dated
7.6.2000 and direct the Respondents to reinstate the
Petitioner with continuity of service together with
benefits and full back wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000 in lieu of reinstatement and other service benefits
towards full and final settlement and Petitioner agreed to
the settlement, which clearly indicates that the dispute
between the parties have been resolved. Thus, the memo
filed by the Petitioner to withdraw the dispute is accepted.
The case is disposed of accordingly. Hence, no dispute
Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
19th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 461-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 68@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 461.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 68/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
994
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 19th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 68/2009
Between :
Sri Katabathini Veeraiah,
S/o Eraiah,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Katabathini
Veeraiah and numbered in this Court as L.C. No. 68/2009
and notices were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 31.7.1997. He
prayed this Court to set aside the termination order dated
31.7.1997 and direct the Respondents to reinstate the
Petitioner with continuity of service together with benefits
and full back wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000 in lieu of reinstatement and other service benefits
towards full and final settlement and Petitioner agreed to
the settlement, which clearly indicates that the dispute
between the parties have been resolved. Thus, the memo
filed by the Petitioner to withdraw the dispute is accepted.
The case is disposed of accordingly. Hence, no dispute
Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
19th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 462-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 70@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 462.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 70/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
995
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 19th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 70/2009
Between :
Sri Mukkala Sammaiah,
S/o Mallaiah,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Mukkala Sammaiah
and numbered in this Court as L.C. No. 70/2009 and notices
were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 7.6.2000. He prayed
this Court to set aside the termination order dated 7.6.2000
and direct the Respondents to reinstate the Petitioner with
continuity of service together with benefits and full back
wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000 in lieu of reinstatement and other service benefits
towards full and final settlement and Petitioner agreed to
the settlement, which clearly indicates that the dispute
between the parties have been resolved. Thus, the memo
filed by the Petitioner to withdraw the dispute is accepted.
The case is disposed of accordingly. Hence, no dispute
Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
19th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 463-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 77@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 463.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 77/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
996
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 19th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 77/2009
Between :
Sri Sura Agaiah,
S/o Veeraiah,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Sura Agaiah and
numbered in this Court as L.C. No. 77/2009 and notices
were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 7.6.2000. He prayed
this Court to set aside the termination order dated 7.6.2000
and direct the Respondents to reinstate the Petitioner with
continuity of service together with benefits and full back
wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000 in lieu of reinstatement and other service benefits
towards full and final settlement and Petitioner agreed to
the settlement, which clearly indicates that the dispute
between the parties have been resolved. Thus, the memo
filed by the Petitioner to withdraw the dispute is accepted.
The case is disposed of accordingly. Hence, no dispute
Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
19th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 464-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 78@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 464.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 78/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
997
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 20th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 78/2009
Between :
Sri Katabathini Sambaiah,
S/o Buchiram,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Katabathini
Sambaiah and numbered in this Court as L.C. No. 78/2009
and notices were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 7.6.2000. He prayed
this Court to set aside the termination order dated 7.6.2000
and direct the Respondents to reinstate the Petitioner with
continuity of service together with benefits and full back
wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000/- in lieu of reinstatement and other service
benefits towards full and final settlement and Petitioner
agreed to the settlement, which clearly indicates that the
dispute between the parties have been resolved. Thus,
the memo filed by the Petitioner to withdraw the dispute is
accepted. The case is disposed of accordingly. Hence, no
dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
20th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 465-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 79@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 465.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 79/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
998
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 20th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 79/2009
Between :
Sri Gaddam Ilaiah,
S/o Ilaiah,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Gaddam Ilaiah
and numbered in this Court as L.C. No. 79/2009 and notices
were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 31.8.1997. He
prayed this Court to set aside the termination order dated
31.8.1997 and direct the Respondents to reinstate the
Petitioner with continuity of service together with benefits
and full back wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000 in lieu of reinstatement and other service benefits
towards full and final settlement and Petitioner agreed to
the settlement, which clearly indicates that the dispute
between the parties have been resolved. Thus, the memo
filed by the Petitioner to withdraw the dispute is accepted.
The case is disposed of accordingly. Hence, no dispute
Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
20th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 466-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 82@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 466.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 82/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
999
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 20th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 82/2009
Between :
Sri Kankanala Kommalu,
S/o Mankaiah,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Kankanala
Kommalu and numbered in this Court as L.C. No. 82/2009
and notices were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 31.7.1997. He
prayed this Court to set aside the termination order dated
31.7.1997 and direct the Respondents to reinstate the
Petitioner with continuity of service together with benefits
and full back wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000/- in lieu of reinstatement and other service
benefits towards full and final settlement and Petitioner
agreed to the settlement, which clearly indicates that the
dispute between the parties have been resolved. Thus,
the memo filed by the Petitioner to withdraw the dispute is
accepted. The case is disposed of accordingly. Hence, no
dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
20th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 467-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 83@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 467.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 83/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
1000
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 20th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 83/2009
Between :
Sri Gorantla Sambaiah,
S/o Ramulu,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Gorantla Sambaiah
and numbered in this Court as L.C. No. 83/2009 and notices
were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 7.6.2000. He prayed
this Court to set aside the termination order dated 7.6.2000
and direct the Respondents to reinstate the Petitioner with
continuity of service together with benefits and full back
wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000/- in lieu of reinstatement and other service
benefits towards full and final settlement and Petitioner
agreed to the settlement, which clearly indicates that the
dispute between the parties have been resolved. Thus,
the memo filed by the Petitioner to withdraw the dispute is
accepted. The case is disposed of accordingly. Hence, no
dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
20th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 468-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 84@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 468.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 84/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1001
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 20th day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 84/2009
Between :
Sri Katabathini Pedda Sadaiah,
S/o Buchiram,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Katabathini Pedda
Sadaiah and numbered in this Court as L.C. No. 84/2009
and notices were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 7.6.2000. He prayed
this Court to set aside the termination order dated 7.6.2000
and direct the Respondents to reinstate the Petitioner with
continuity of service together with benefits and full back
wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that
Respondent has offered to settle the issue out of the court
by offering Rs. 40,000/- in lieu of reinstatement and
other service benefits towards full and final settlement
and Petitioner agreed to the settlement, which clearly
indicates that the dispute between the parties have been
resolved. Thus, the memo filed by the Petitioner to
withdraw the dispute is accepted. The case is disposed
of accordingly. Hence, no dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
20th day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 469-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 91@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 469.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 91/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
1002
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 21st day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 91/2009
Between :
Sri Yadandla Komuraiah,
S/o Ilaiah,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Yadandla
Komuraiah and numbered in this Court as L.C. No. 91/
2009 and notices were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 7.6.2000. He prayed
this Court to set aside the termination order dated 7.6.2000
and direct the Respondents to reinstate the Petitioner with
continuity of service together with benefits and full back
wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that
Respondent has offered to settle the issue out of the court
by offering Rs. 40,000/- in lieu of reinstatement and
other service benefits towards full and final settlement
and Petitioner agreed to the settlement, which clearly
indicates that the dispute between the parties have been
resolved. Thus, the memo filed by the Petitioner to
withdraw the dispute is accepted. The case is disposed
of accordingly. Hence, no dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
21st day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 470-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 92@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 470.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 92/2009)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1003
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 21st day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 92/2009
Between :
Sri Katabathini Veera Swamy,
S/o Buchiram,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and their workman Sri Katabathini Veera
Swamy and numbered in this Court as (L.C. No. 92/2009)
and notices were issued to the parties concerned.
2.
The workman raised dispute against his illegal
termination by the Respondent No.2 on 31.7.1997. He
prayed this Court to set aside the termination order dated
31.7.1997 and direct the Respondents to reinstate the
Petitioner with continuity of service together with benefits
and full back wages.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits for his rendered service towards full and final
settlement. It is further stated in the memo that Respondent
has offered to settle the issue out of the court by offering
Rs. 40,000/- in lieu of reinstatement and other service
benefits towards full and final settlement and Petitioner
agreed to the settlement, which clearly indicates that the
dispute between the parties have been resolved. Thus,
the memo filed by the Petitioner to withdraw the dispute is
accepted. The case is disposed of accordingly. Hence, no
dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
21st day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 471-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 116@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 471.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 116/
2009) of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
1004
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 21st day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 116/2009
Between :
Sri Bakka Narasaiah,
S/o Ilaiah, (Since died per L.R.),
Bakka Suguna W/o Late Narasaiah,
R/o Peddapuram Village,
Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of
the I.D. Act, 1947 between the management of M/s. Yak
Granites Pvt. Ltd., and L.R’s of their deceased workman
Bakka Narasaiah and numbered in this Court as L.C. No.
116/2009 and notices were issued to the parties concerned.
2.
Smt. Bakka Suguna, W/o Late Bakka Narasaiah raised
dispute against the deceased workman’s illegal termination
by the Respondent No.2 on 31.7.1997. She prayed this
Court to set aside the termination order dated 31.7.1997
and direct the Respondents to treat as Late Bakka Narsaiah
died in harness and to pay full back wages, with benefits
from the date of termination to date of expiry of the workman
Late Bakka Narsaiah.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits of deceased workman for his rendered service
towards full and final settlement. It is further stated in the
memo that Respondent has offered to settle the issue out
of the court by offering Rs. 40,000/- in lieu of reinstatement
and other service benefits towards full and final settlement
and Petitioner agreed to the settlement, which clearly
indicates that the dispute between the parties have been
resolved. Thus, the memo filed by the Petitioner to
withdraw the dispute is accepted. The case is disposed of
accordingly. Hence, no dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
21st day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 472-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ;kd
xzsukbV baMLVªht izkbosV fyfeVsM vkSj nwljs ds çcaèkra=k ds lac¼
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV (lanHkZ la[;k 121@2009) dks çdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&27025@1@2016&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 472.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 121/
2009) of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Yak Granite Industries Pvt. Ltd.
and Other and their workman, which was received by the
Central Government on 04-03-2016.
[No. L-27025/1/2016-IR (M)]
NAVEEN KAPOOR, Under Secy.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1005
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present:
Sri Muralidhar Pradhan, Presiding Officer
Dated the 21st day of January, 2016
INDUSTRIAL DISPUTE L.C. No. 121/2009
Between :
Sri Thudum Saraiah,
S/o Yellaiah (Since died per L.R’s),
1.Thudum Laxmi, W/o Late Saraiah
2. Thudum Ravi, S/o Late Saraiah
3. Thudum Swarna, D/o Late Saraiah,
R/o Peddapuram Village, Atmakur Mandal,
Warangal District
...Petitioner
AND
1. The Managing Director,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Bangalore Road,
Chembaram Pakkam,
Chennai – 602 103.
2. The Manager,
Enterprising and Enterprises,
M/s. Yak Granite Industries Pvt. Ltd.,
Peddapuram (V), Atmakur (M),
Warangal District
...Respondents
Appearances :
For the Petitioner
:
M/s. A. Raghu Rama Aurava &
G. Srinivas, Advocates
For the Respondent
:
M/s. S. Venkateshwar Rao &
M. Govind, Advocates
AWARD
The above noted case is taken under Sec.2 A (2) of the I.D.
Act, 1947 between the management of M/s. Yak Granites
Pvt. Ltd., and L.R’s of their deceased workman Sri Thudum
Saraiah and numbered in this Court as L.C. No. 121/2009
and notices were issued to the parties concerned.
2.
Smt. Thudum Laxmi and 2 others raised dispute
against raised dispute against the deceased workman’s
illegal termination by the Respondent No.2 on 31.7.1997.
They prayed this Court to set aside the termination order
dated 31.7.1997 and direct the Respondents to treat as Late
Thudum Saraiah died in harness and to pay full back wages,
with benefits from the date of termination to date of expiry
of the workman Late Thudum Saraiah.
3.
Respondent also filed counter.
4.
The Petitioner filed a memo stating that the matter
was settled and the Petitioner received terminal service
benefits of deceased workman for his rendered service
towards full and final settlement. It is further stated in the
memo that Respondent has offered to settle the issue out
of the court by offering Rs. 40,000/- in lieu of reinstatement
and other service benefits towards full and final settlement
and Petitioner agreed to the settlement, which clearly
indicates that the dispute between the parties have been
resolved. Thus, the memo filed by the Petitioner to
withdraw the dispute is accepted. The case is disposed of
accordingly. Hence, no dispute Award is passed.
Award is passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant,
transcribed by her and corrected by me on this the
21st day of January, 2016.
MURALIDHAR PRADHAN, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 473-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ Hkkjr
isVªksfy;e dkiksZjs'ku fyfeVsM ds çcaèkra=k ds lac¼ fu;kstdksa vkSj
muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vfèkdj.k ,oa Je U;k;ky;] dksydkrk
ds iapkV (lanHkZ la[;k 46@2015) dks çdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 04-03-2016 dks çkIr gqvk FkkA
¹la- ,y&30011@24@2015&vkbZvkj (,e)º
uohu diwj] voj lfpo
New Delhi, the 9th March, 2016
S.O. 473.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 46/2015)
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. Bharat Petroleum Corporation
Ltd. and their workman, which was received by the Central
Government on 04-03-2016.
[No. L-30011/24/2015-IR (M)]
NAVEEN KAPOOR, Under Secy.
1006
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 46 of 2015
Parties:
Employers in relation to the management of Retail East,
Bharat Petroleum Corporation Ltd.
A N D
Their workmen
Present:
Justice Dipak Saha Ray, Presiding Officer
Appearance :
On behalf of the Managements
:
None
On behalf of the Workmen
:
None
State : West Bengal
Industry : Petroleum
Dated: 23rd February, 2016.
AWARD
By Order No. L-30011/24/2015-IR(M) dated 21.07.2015
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 Col. B.L.
Das, Operator of B.P. Birohi, contractor of Bharat
Petroleum Corporation Ltd. by changing the category
of contractual workmen from ‘Skilled’ to ‘Semi-skilled’
and ‘Semi-skilled’ to ‘Unskilled’ which caused
financial hardship by changing their service
condition under Section 9A of I.D. Act, 1947 is legal
and justified? If not, what relief the workmen are
entitled to?”
2.
When the case is taken up today for hearing, none
appears either on behalf of the managements or on behalf
of the union. It appears from the record that none appeared
on behalf of any of the parties even on the previous two
dates. In fact, none appeared on behalf of the parties since
the initiation of this reference.
3.
From the above facts and circumstances it may
reasonably be presumed that the union at whose instance
the present reference has been initiated has got no interest
in the matter. So, no fruitful purpose will be served in
keeping the matter pending.
4.
Considering the above, instant reference is disposed
of by passing a “No Dispute Award”.
Dated, Kolkata,
The 23rd February, 2016
Justice DIPAK SAHA RAY, Presiding Officer
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 474-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ fgUnqLrku
isVªksfy;e dkiksZjs'ku fyfeVsM ds çcaèkra=k ds lac¼ fu;kstdksa vkSj
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¹la- ,y&30011@73@2006&vkbZvkj (,e)º
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New Delhi, the 9th March, 2016
S.O. 474.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 19/2007)
of the Central Government Industrial Tribunal/Labour
Court-1, Mumbai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of M/s. Hindustan Petroleum Corporation
Ltd. and their workman, which was received by the Central
Government on 04-03-2016.
[No. L-30011/73/2006-IR (M)]
NAVEEN KAPOOR, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO.1 MUMBAI
Present :
JUSTICE S .P. MEHROTRA, Presiding Officer
REFERENCE NO. CGIT-1/19 OF 2007
Parties:
Employers in relation to the management of
Hindustan Petroleum Corporation Limited
And
Their workmen
Appearances :
For the first party/
:
Mr. Lancy D’Souza,
Management
Management Representative.
For the second party/
:
None present
Union
State
:
Maharashtra
Mumbai, dated the 29th day of February, 2016
AWARD
1.
By the Order dated 12.2.2007, the Central Government
in exercise of its powers conferred by clause (d) of sub-
section (1) and sub-section (2-A) of Section 10 of the
¹Hkkx IIó[k.M 3(ii)º
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1007
Industrial Disputes Act, 1947 has made the following
Reference to this Tribunal:
“Whether the demand of the 36 workmen (list
enclosed) is justified and proper to get regularised
their services in the Hindustan Petroleum Corporation
Ltd., who are working at the respective Petrol Pumps
of HPCL, especially at Hindustan Petroleum
Corporation Limited Petrol Pump at Chembur at par
with HPCL direct employees? If so, then what are the
relief these 36 workmen listed (list enclosed) are
entitled to?”
The said Reference has been numbered as Reference
No. 19 of 2007.
BACKGROUND FACTS
2.
The Statement of Claim dated 11.1.2012, was filed on
behalf of the Hindustan Petroleum Petrol Pump Kamgar
Union (hereinafter also referred to as “the second party/
Union”.) This Tribunal by the Award dated 25.2.2013
disposed of the present Reference, inter-alia, holding that
the concerned Workmen were not entitled to any relief. It
was noted by the Tribunal in the said Award dated 25.2.3013
that no Written Statement had been filed on behalf of
Hindustan Petroleum Corporation Ltd (hereinafter also
referred to as “the first party/Management” or “ the HPCL”
or “the Corporation” or “the First Party / Company” ) nor
had any evidence been led on behalf of Hindustan
Petroleum Corporation Ltd (i.e. “the first party/
Management” or “ the HPCL” or “the Corporation” or “the
First Party / Company” )
3.
The second party/Union thereupon filed a Writ
Petition being Writ Petition No.9772 of 2013, before the
Bombay High Court. The said Writ Petition was disposed
of by the Order dated 1.9.2014 which is reproduced below:
“(1) Mr. D’Souza, the learned Advocate appearing
for the respondent, concedes that the impugned
order cannot be said to be a speaking order and
that it does not even mention the decisions cited
by the petitioner during the course of hearing of
Reference (IDA) No. 19 of 2007. Therefore, he
consents for remand of the matter to the Central
Government Industrial Tribunal (CGIT)-cum-
Labour Court, Mumbai. He, however, requests
that the respondent be granted liberty to file an
application before the CGIT for leave to file
written statement.
(2) In view of the concession given, the petition is
disposed off in following terms:-
O R D E R
(i) The Award dated 25th February, 2013 passed in
Reference (IDA) No. 19 of 2007 passed by the
Learned Presiding Officer, Central Government
Industrial Tribunal (CGIT)-cum-Labour Court,
Mumbai in Reference (IDA) No. 19 of 2007 is set
aside.
(ii) Reference (IDA) No. 19 of 2007 is set aside.
(iii) The respondent is at liberty to file an application
before the CGIT, Mumbai for permission to file
Written Statement. The application, if any, shall
be filed within a period of 3 weeks from today.
On such application being filed, the same shall
be considered by the CGIT in accordance with
law.
(iv) The reference shall be heard and disposed off
by CGIT, Mumbai within a period of 8 months
from today.”
4.
Pursuant to the said order dated 1.9.2014, passed in
the aforesaid Writ Petition, an application was filed on
behalf of the first party/Management on 18.9.2014 before
this Tribunal. By the order dated 18.9.2014, the said
application was directed to be put up on 19.9.2014 alongwith
the record. It was, inter-alia, prayed in the said application
that the first party/Management be granted permission to
file its Written Statement in the matter as mentioned in the
order dated 1.9.2014 passed in the aforesaid Writ Petition.
5.
Pursuant to the order dated 18.9.2014, the said
application filed on behalf of the first party/Management
was placed before this Tribunal on 19.9.2014 alongwith the
record. Shri S.D.Paithane, learned counsel for the second
party/Union prayed for time to file Reply to the said
application filed on behalf of the first party/Management
seeking permission to file Written Statement. Accordingly,
by the order dated 19.9.2014, the case was fixed for
14.11.2014 so as to enable Shri S.D.Paithane, learned
counsel for the second party/Union to file his reply to the
aforesaid application filed on behalf of the first party/
Management seeking permission to file Written Statement.
6.
In the meantime, on 9.10.2014, an application was
filed by Shri S.D.Paithane, learned counsel for the second
party/Union, inter-alia, praying that the matter being urgent,
be taken on Board.
By the order dated 9.10.2014, the matter was directed to be
put up on 10.10.2014 alongwith the record.
7.
The matter was accordingly put up on 10.10.2014
alongwith the record.
8.
On 10.10.2014, an Application for Interim Relief was
filed on behalf of the second party/Union. By the order
dated 10.10.2014, time was granted to the first party/
Management for filing its Reply by 3.11.2014 to the
aforementioned Application for Interim Relief filed on behalf
of the second party/Union. Rejoinder if any, was to be
filed on behalf of the second party/Union by the next date
fixed in the matter. The case was directed to be put up on
14.11.2014 which was the date already fixed in the matter.
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[PART II—SEC. 3(ii)]
9.
Pursuant to the order dated 10.10.2014, Reply on
behalf of the first party/Management in respect of the
aforementioned Interim Relief Application filed on behalf
of the second party/Union, was filed on 5.11.2014.
Documents mentioned in the said Reply were also filed on
14.11.2014 on behalf of the first party/Management
alongwith the List dated 14.11.2014.
10.
Further, on 3.11.2014, an affidavit in support of the
aforementioned Interim Relief Application was filed by the
learned counsel for the second party/Union.
11.
On 14.11.2014, Reply on behalf of the second party/
Union in respect of the application filed on behalf of the
first party/Management seeking permission to file Written
Statement was filed. By the order dated 14.11.2014, the
case was directed to be put up on 19.11.2014.
12.
On 19.11.2014, order was passed on the aforesaid
application filed on behalf of the first party/Management
seeking permission to file Written Statement. The said
application was allowed subject to payment of Rs.10,000/-
as cost to the second party/Union by the first party/
Management.
13.
By the order dated 19.11.2014, the case was directed
to be put up on 28.11.2014. By the order dated 28.11.2014,
time for payment of cost of Rs.10,000/- and filing of Written
Statement on behalf of the first party/Management as
mentioned in the Order dated 19.11.2014, was extended for
the reasons mentioned in the order dated 28.11.2014. The
case was directed to be put up on 3.12.2014.
14.
Pursuant to the order dated 28.11.2014, cost of
Rs.10,000/- was paid to Shri S.D.Paithane, learned counsel
for the second party/Union on 2.12.2014. Written Statement
on behalf of the first party/Management was also filed in
the Office of the Tribunal on 2.12.2014.
15.
On 3.12.2014, the Tribunal directed the Written
Statement filed on behalf of the first party/Management to
be taken on record. On the same day, Shri S.D.Paithane,
learned counsel for the second party/Union filed Rejoinder
in respect of the Reply filed on behalf of the first party/
Management in the Interim Relief matter. On the same day,
Shri S.D.Paithane, learned counsel for the second party/
Union stated that he did not propose to file any Rejoinder
in respect of the Written Statement filed on behalf of the
first party/Management. Thereafter, arguments of the
learned counsel for the parties on the Interim Relief
Application commenced on the same day i.e. 3.12.2014.
The Interim Relief matter was thereafter heard on various
dates fixed in the case.
16.
Arguments of the learned counsel for the parties in
respect of the Interim Relief Application were concluded
on 19.1.2015. Thereupon, by the Order dated 19.1.2015, the
Tribunal reserved its Order in respect of the Interim Relief
Application.
17.
On 30.4.2015, the Tribunal pronounced its Order in
respect of the Interim Relief Application filed on behalf of
the second party/Union.
18.
It may be noted that as the time fixed by the
Honourable Bombay High Court in its order dated 1.9.2014
passed in Writ Petition No. 9772 of 2013, as mentioned
above, was going to expire on 30.4.2015, this Tribunal sent
a Communication dated 30.4.2015 to the Registrar General,
High Court of Bombay, Mumbai, inter-alia, stating that the
said Communication be placed “before the Honourable
High Court with the request that the period for disposing
of the aforesaid Reference may kindly be extended by a
further period of 10 months.”
In response to the said Communication dated
30.4.2015, a Communication dated 21.7.2015 was received
by this Tribunal, from the Bombay High Court. Relevant
portion of the said Communication dated 21.7.2015 is
reproduced below:
“With reference to your letter dated 30/4/2015 in
outward No.CGIT-1/19/07/189/15, for grant of further
extension of ten months for the disposal of Reference
No. CGIT-19 of 2007. I am directed to state that your
letter under reference along with the Writ Petition
was placed before the Court (CORAM: SMT.
R.P.SONDURBALDOTA.,J.) on 24/6/2015 for order,
and that the Court pleased to pass the following
order:
“Time extended as per the request”
Kindly take a note of the Court’s order and act
accordingly.”
Thus, the request made by this Tribunal for extending
the period for disposing of the Reference by a further period
of 10 months was accepted by the Honourable Bombay
High Court. The said period of 10 months is expiring on
29.2.2016.
19.
Reverting to the facts of the present case, by the
Order dated 30.4.2015, the matter was fixed on 5.6.2015 for
framing of Issues and filing of documents on behalf of the
parties. Thereafter, the case was adjourned on various
dates for the reasons mentioned in the Orders passed on
such dates.
20.
On 18.11.2015, an Application dated 18.11.2015 was
filed on behalf of the first party/Management, inter-alia,
praying for proceeding ex parte. None was present on
behalf of the second party/Union on the said date i.e.
18.11.2015. In the circumstances, by the Order dated
18.11.2015, the case was adjourned to 10.12.2015.
21.
On 10.12.2015, another Application dated 10.12.2015
was filed on behalf of the first party/Management.
¹Hkkx IIó[k.M 3(ii)º
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1009
22.
On 10.12.2015, the Tribunal passed Order in respect
of the aforesaid two Applications filed on behalf of the first
party/Management, namely, Application dated 18.11.2015
and Application dated 10.12.2015. The Tribunal by the Order
dated 10.12.2015, inter-alia, directed that the Reference
would proceed ex-parte as against the second party/Union.
The said Order dated 10.12.2015, is reproduced below:
“(1) ORDER ON APPLICATION DATED 18.11.2015
FOR PROCEEDING EX-PARTE FILED ON BEHALF
OF THE FIRST PARTY/MANAGEMENT.
(2)APPLICATION DATED 10.12.2015 FILED ON
BEHALF OF THE FIRST PARTY/MANAGEMENT.
It appears that this Tribunal by the Award dated
25.2.2013, disposed of Reference No. CGIT-1/19 of 2007.
The second party/Union filed a Writ Petition being Writ
Petition No. 9772 of 2013 before the Bombay High Court.
The Honourable Bombay High Court by its Order dated
1.9.2014 disposed of the said Writ Petition in terms as
mentioned in paragraph 2 of the said Order.
Pursuant to the said Order dated 1.9.2014, passed by
the Honourable Bombay High Court, the matter came up
before this Tribunal. An Application for Interim Relief was
filed on behalf of the second party/Union on 10.10.2014.
An affidavit in support of the said Interim Relief Application
was filed on behalf of the second party/Union on
14.11.2014, as noted in the order passed in the said date.
Reply in respect of the Interim Relief Application
was filed on behalf of the first party/Management.
Rejoinder on behalf of the second party/Union in respect
of the aforesaid Reply filed on behalf of the first party/
Management, was also filed on behalf of the second party/
Union.
The arguments in respect of the Interim Relief
Application were heard on various dates as mentioned in
the Order Sheet of the present case.
On 19.1.2015, arguments of the learned counsel for
the parties on Interim Relief Application concluded.
Thereupon, by the Order dated 19.1.2015, the Tribunal
reserved its Order in respect of the Interim Relief
Application. The Order dated 19.1.2015 is reproduced
below:
Pursuant to the order dated 15.1.2014, the case is put
up today.
Mr.Lancy D’Souza, learned counsel for the first party/
Management and Mr.S.D.Paithane, learned counsel for the
second party/Union are present.
Arguments of the learned counsel for the parties on
Interim Relief Application concluded today.
Order reserved.
On 30.4.2015, the Tribunal pronounced its Order on
the aforesaid Interim Relief Application filed on behalf of
the second party/Union. The Order dated 30.4.2015 is
quoted below:
Pursuant to the order dated 19.1.2015, the case has
been put up today for orders on Interim Relief Application
filed on 10.10.2014.
Intimation regarding the fixation of today’s date for
orders on the aforementioned Application was given to
Mr.Lancy D’Souza, learned counsel for the first party/
Management and Mr.S.D.Paithane, learned counsel for the
second party/Union on telephone by the Secretary to this
Tribunal.
Mr. Lancy D’Souza, learned counsel for the first
party/Management is present.
Mr. S.D. Paithane, learned counsel for the second
party/Union has informed the Secretary to this Tribunal
that as he is at present in Pune, one of the Workmen will be
present before the Tribunal on behalf of the second party/
Union today.
Accordingly, Shri Sugriv Kamble, one of the
Workmen is present on behalf of the second party/Union.
Order on Interim Relief Application filed on 10.10.2014, has
been pronounced today in Open Court.
Interim Relief Application has been rejected.
Order is on separate sheets.
Fix on 5.6.2015 for framing of issues and filing of
documents on behalf of the parties”.
From the perusal of the above Order dated 30.4.2015,
it is evident that Mr.Sugriv Kamble, one of the Workmen
was present on behalf of the second party/Union on the
said date. In the above Order dated 30.4.2015, it is also
recorded that intimation regarding the fixation of the said
date for orders on the aforesaid Interim Relief Application
was given to Mr.Lancy D’Souza, learned counsel for the
first party/Management and Mr.S.D.Paithane, learned
counsel for the second party/Union on telephone by the
Secretary to this Tribunal
The above Order further records that “Mr. S.D.
Paithane, learned counsel for the second party/Union has
informed the Secretary to this Tribunal that as he is at
present in Pune, one of the Workmen will be present before
the Tribunal on behalf of the second party/Union today”.
It is thus evident that the second party/Union as
well as its counsel Mr. S.D. Paithane were fully aware of the
said date i.e. 30.4.2015 fixed for pronouncing the Order on
the aforesaid Interim Relief Application filed on behalf of
the second party/Union.
By the said Order dated 30.4.2015, the matter was
fixed on 5.6.2015 for framing of Issues and filing of
documents on behalf of the parties.
It may be noted that as the time fixed by the
Honourable Bombay High Court in its order dated 1.9.2014
passed in Writ Petition No. 9772 of 2013, as mentioned
above, was going to expire on 30.4.2015, this Tribunal sent
1010
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
a Communication dated 30.4.2015 to the Registrar General,
High Court of Bombay, Mumbai, inter-alia stating that the
said Communication be placed “before the Honourable
High Court with the request that the period for disposing
of the aforesaid Reference may kindly be extended by a
further period of 10 months.”
In response to the said Communication dated
30.4.2015, a Communication dated 21.7.2015 was received
by this Tribunal, from the Bombay High Court. Relevant
portion of the said Communication dated 21.7.2015 is
reproduced below:
“With reference to your letter dated 30/4/2015 in
outward No.CGIT-1/19/07/189/15, for grant of further
extension of ten months for the disposal of Reference
No. CGIT-19 of 2007. I am directed to state that your
letter under reference along with the Writ Petition
was placed before the Court (CORAM:
SMT. R. P.SONDURBALDOTA.,J.) on 24/6/2015 for
order, and that the Court pleased to pass the following
order:
“Time extended as per the request”
Kindly take a note of the Court’s order and act
accordingly.”
Thus, the request made by this Tribunal for extending
the period for disposing of the Reference by a further period
of 10 months was accepted by the Honourable Bombay
High Court. The said period of 10 months would be expiring
on 29.2.2016.
Reverting to the facts of the present case, pursuant
to the Order dated 30.4.2015, the case was put up before
the Tribunal on 5.6.2015. On the said date, i.e. 5.6.2015, as
noted in the order passed on the said date, Mr.Lancy
D’Souza, learned counsel for the first party/Management
was present. However, none was present for the second
party/Union.
In the circumstances, by the Order dated 5.6.2015,
the case was adjourned to 15.7.2015 for framing of issues
and filing of documents on behalf of the parties.
Pursuant to the Order dated 5.6.2015, the case was
put up on 15.7.2015.
On 15.7.2015, as noted in the Order passed on the
said date, Ms.Deepika Agrawal, holding brief for Mr.Lancy
D’Souza, learned counsel for the first party/Management
was present.
Mr. Ambadar Kamble, one of the Workmen was
present on behalf of the second party/Union.
By the Order dated 15.7.2015, the case was adjourned
to 27.8.2015 for framing of issues and filing of documents
on behalf of the parties.
Pursuant to the Order dated 15.7.2015, the case was
put up on 27.8.2015.
On 27.8.2015, as noted in the Order passed on the
said date, Ms.Deepika Agrawal, holding brief for Mr.Lancy
D’Souza, learned counsel for the first party/Management
was present. However, none was present for the second
party/Union.
Ms.Deepika Agrawal, holding brief for Mr.Lancy
D’Souza, learned counsel for the first party/Management
submitted Draft Issues in the present case on the said date
i.e. 27.8.2015. However, as none was present on behalf of
the second party/Union, the Tribunal by its Order dated
27.8.2015 adjourned the case to 1.10.2015.
Pursuant to the Order dated 27.8.2015, the case was
put up on 1.10.2015.
On 1.10.2015, as noted in the Order passed on the
said date, Ms.Shehwar Qureshi, holding brief for Mr.Lancy
D’Souza, learned counsel for the first party/Management
was present. However, none was present for the second
party/Union. In view of the absence of the second party/
Union, the Tribunal by its Order dated 1.10.2015, adjourned
the case to 18.11.2015.
On 18.11.2015, as noted in the Order passed on the
said date, Ms.Shehwar Qureshi, learned counsel for the
first party/Management was present. However, none was
present on behalf of the second party/Union. Ms.Shehwar
Qureshi, learned counsel for the first party/Management,
filed an Application dated 18.11.2015 on the said date i.e.
18.11.2015, inter-alia, praying that Reference be proceeded
ex parte.
In the circumstances, by the Order dated 18.11.2015,
the case was adjourned to 10.12.2015.
Pursuant to the Order dated 18.11.2015, the case is
put up today.
Today, Mr. Lancy D’Souza, learned counsel for the
first party/Management is present. However, none is
present for the second party/Union.
An Application dated 10.12.2015 has been filed today
on behalf of the first party/Management. Alongwith the
said Application, a copy of the Communication dated
19.11.2015 alongwith enclosures thereto sent by Mr. Lancy
D’Souza, learned counsel for the first party/Management
to Shri S.D. Paithane, learned counsel for the second party/
Union has been enclosed.
A perusal of the said Communication dated
19.11.2015 shows that alongwith the said Communication,
copy of the Draft Issues submitted on behalf of the first
party/Management on 27.8.2015 as well as copy of the
Application dated 18.11.2015 filed on behalf of the first
party/Management, inter-alia praying that the Reference
be proceed ex parte, were enclosed.
A perusal of the said Communication dated
19.11.2015 further shows that the said Communication, inter-
alia informed Mr. S.D. Paithane, learned counsel for the
¹Hkkx IIó[k.M 3(ii)º
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1011
second party/Union that the Reference would now be
listed on 10.12.2015 i.e. today.
A perusal of the said Communication dated
19.11.2015 further shows that on the said Communication,
Shri S.D.Paithane, learned counsel for the second party/
Union made the following endorsement: “We have not
received any Court Notice. Whether extension has been
granted and to whom?”
It is thus evident that despite having intimation
regarding today’s date, none is present today on behalf of
the second party/Union.
As noted above, the extended time granted by the
Honourable Bombay High Court is going to expire on
29.2.2016.
Having regard to the facts and circumstances narrated
above and keeping in view that the extended time fixed by
the Honoruable Bombay High Court is going to expire on
29.2.2015, there is no option but to proceed with the
Reference ex-parte as against the second party/Union.
It is accordingly directed that the Reference will
proceed ex-party as against the second party/Union.
Let the matter be fixed on 06.01.2016 for framing of issues
and filing of documents.”
23.
Pursuant to the Order dated 10.12.2015, the case was
put up on 6.1.2016. On the said date, Mr.Lancy D’souza,
learned counsel for Hindustan Petroleum Corporation Ltd
(i.e. “the first party/Management” or “ the HPCL” or “the
Corporation” or “the First Party / Company”) was present.
However, none was present for the second party/Union.
By the Order dated 6.1.2016, the Tribunal framed Issues in
the case. As the matter was proceeding ex-parte against
the second party/Union, and none was present even on
6.1.2016 on behalf of the second party/Union, the evidence
on behalf of the second party/Union was closed by the
Order dated 6.1.2016, and the matter was fixed on 28.1.2016
for evidence on behalf of Hindustan Petroleum Corporation
Limited (“the first party/Management” or “ the HPCL” or
“the Corporation” or “the First Party / Company”).
24.
The said Order dated 6.1.2016 is reproduced below:
“Pursuant to the order dated 10.12.2015, the case is
put up today
By the order dated 10.12.2015, the Reference was
directed to proceed to ex-parte as against the second
party/Union (Hindustan Petroleum Petrol Pump
Kamgar Union).
By the said order dated 10.12.2015, the case was
directed to be fixed on 6.01.2016 i.e, today for framing for
Issues and filling of documents.
The case is accordingly put up today.
Shri Lancy D’Souza, learned counsel for
Hindustan Petroleum Corporation Ltd. (i.e. first party/
Management or first party/Company) is present.
None is present for the second party /Union
I have perused the pleadings exchanged between
the parties and heard the submissions made by Shri Lancy
D’Souza, learned counsel for Hindustan Petroleum
Corporation Ltd.(i.e.first party/Management or first party/
Company).
Having perused the pleadings exchanged between
the parties and having considered the submissions made
by Shri Lancy D.’Souza, learned counsel for Hindustan
Petroleum Corporation Ltd. (i.e. first party /Management
or first party/Company), the Issues as mentioned in
separate sheet are framed in the present case.
No other Issue arises in the present case nor has any
other Issue been pressed by the learned counsel for
Hindustan Petroleum Corporation Ltd. (i.e. first party/
Management or first party/Company).
As the matter is proceeding ex-parte against the
second party/ Union, and none is present even today on
behalf of the second party/Union, the evidence on behalf
of the second party/Union is closed.
Let the case be fixed on 28.01.2016 for evidence on
behalf of Hindustan Petroleum Corporation Ltd. (i.e. first
party/Management or first party/Company).”
25.
Pursuant to the said Order dated 6.1.2016, the case
was put up on 28.1.2016.
26.
On 28.1.2016, Mr.Lancy D’Souza, learned counsel
for Hindustan Petroleum Corporation Ltd (“the first party/
Management” or “ the HPCL” or “the Corporation” or “the
First Party / Company”) was present. However, none was
present on behalf of the second party/Union. Mr.Lancy
D’Souza, learned counsel for Hindustan Petroleum
Corporation Ltd (i.e. “the first party/Management” or “the
HPCL” or “the Corporation” or “the First Party / Company”)
filed Affidavit of Evidence sworn by Girish Vithalrao Raut
(MW-1) on behalf of Hindustan Petroleum Corporation
Ltd.(“the first party/Management” or “ the HPCL” or “the
Corporation” or “the First Party / Company”). An
Application was also filed alongwith the said Affidavit,
inter-alia, stating that documents filed on behalf of
Hindustan Petroleum Corporation Ltd. (i.e.“the first party/
Management” or “the HPCL” or “the Corporation” or “the
First Party / Company”) by lists dated 14.11.2014, 3.12.2014
and 13.1.2015 be considered as its documents on the merit
of the matter; and that the said documents had been referred
to in the said Affidavit of Evidence.
27.
In view of the averments made in the said Application
filed on behalf of the Hindustan Petroleum Corporation
Ltd (“the first party/Management” or “ the HPCL” or “the
Corporation” or “the First Party /Company”), the Tribunal
by the Order dated 28.1.2016, directed that the dcouments
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[PART II—SEC. 3(ii)]
filed with the lists dated 14.11.2014, 3.12.2014 and 13.1.2015
be treated as documents filed on behalf of Hindustan
Petroleum Corporation Ltd. (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”) on merits of the matter.
28.
Further, having regard to the averments made in the
aforesaid Affidavit of Evidence sworn by Girish Vithalrao
Raut (MW-1), the documents filed with the aforesaid lists
were marked exhibits as mentioned in the Order dated
28.1.2016.
29.
It was inter-alia, further noted in the said Order dated
28.1.2016 that “as the matter is proceeding ex-parte against
the second party/Union, and none is present even today
on behalf of the second party/Union, cross-examination of
the aforesaid Girish Vithalrao Raut (MW-1) whose Affidavit
of Evidence has been filed today, is closed”.
30.
The Tribunal by the said Order dated 28.1.2016, fixed
the case for arguments on 19.2.2016.
31.
Pursuant to the Order dated 28.1.2016, the case was
put up on 19.2.2016.
Mr. Lancy D’Souza, learned counsel for the first
party/Management was present on the said date. None
was present on behalf of the second party/Union.
32.
Arguments of Mr.Lancy D’Souza, learned counsel
for the first party/Management were heard on the same
day, i.e., 19.2.2016. After conclusion of arguments of
Mr.Lancy D’Souza, learned counsel for the first party/
Management, the Tribunal by the Order dated 19.2.2016
reserved its Award.
PLEADINGS: Let us now consider the relevant
averments made in the pleadings exchanged between the
parties.
33.
It is, inter-alia, stated in the Statement of Claim filed
on behalf of the second party/Union that the demand of 36
workmen had initially been filed. However, many workmen
retired and hence now 19+2=21 workmen are pursuing the
matter. It is, inter-alia, further stated in the Statement of
Claim that the demand as contained in the Reference is
justified and proper to get regularized services of the
workmen in Hindustan Petroleum Corporation Limited, who
are working at Hindustan Petroleum Corporation Limited
Petrol Pump at Chembur at par with Hindustan Petroleum
Corporation Limited direct employees.
34.
In para 5 of the Statement of Claim, it is, inter-alia,
stated that “the workers are working in the said Petrol Pump
since many years”, and that “the workers are working
continuously for more than 240 days in a year for many
years however, they are denied permanency by the
Government owned Corporation is a serious matter as it
shows that the Central Government is not following Labour
Laws”, and that “ the HPCL Company appointed agents
on their behalf to run the business for them”, and that “the
name of the Petrol Pump is Hindustan Petroleum, the logo
on uniform is of Hindustan Petroleum”, and that “this clearly
shows that the Petrol Pump is owned and managed and
controlled by Hindustan Petroleum Corporation Limited”.
35.
It is, inter-alia, prayed in the Statement of Claim that
the Reference be allowed in respect of 21 workmen whose
names are mentioned in Annexure ‘A’.
36.
In the Written Statement filed on behalf of the first
party/Management in reply to the aforesaid Statement of
Claim, it is, inter-alia, stated that the present Reference has
been made at the instance of one Rajya Rashtriya Kamgar
Sangh (INTUC), and the Hindustan Petroleum Petrol Pump
Kamgar Union has no locus standi even to prosecute the
Reference much less to file a Statement of Claim as the said
Kamgar Union is not a party to the Reference. It is, inter-
alia, further stated in the Written Statement that the dispute
referred for adjudication does not partake the care of an
Industrial Dispute within the meaning of Section 2(k) of
the Industrial Disputes Act, 1947 in-asmuch none of the
persons concerned in the present Reference is a workman
of the first party/Company as defined in Section 2(s) of the
Industrial Disputes Act, 1947. It is, inter-alia, further stated
in the Written Statement that the first party/Company is a
Government of India Undertaking, falling under the
Administration jurisdiction of the Ministry of Petroleum
and Natural Gas, New Delhi; and that the first party/
Company is engaged in the refining of imported and
indigenous crude oil, storage and marketing of petrol,
Diesel, HSD, LPG, ATF, Asphalt, Lube Oils, Furnace Oil,
Hexane, and other Petroleum products; and that for the
purpose of marketing of various petroleum products such
as MS (Motor Spirit-Petrol), HSD (High Speed Diesel) etc.,
the Retail outlet Dealerships are awarded by the first party/
Company to the Individual/Firm /Association/Company
etc., by following Dealership Selection Guidelines framed
under the Government of India Directives, and such Retail
Outlets are managed and controlled by the concerned
Individual/Firm/Association/Company etc., as the case may
be, wherein they themselves appoint/engage their
employees to operate the Retail Outlet and the first party/
Company has no control of whatsoever nature with their
affairs as they are separate/Independent establishments
solely responsible to operate the Retail Outlets; and that
the first party/Company has awarded more than 13,000 such
Retail Outlets across the country.
37.
It is, inter-alia, further stated in the Written Statement
that the first party/Company had entered into a Dealership
Agreement for retail outlet at Chembur with Mr.Munir
Mitha, Mr.Fateh Mitha and Mrs.Razia A. Mitha whereby
dealership was granted on partnership basis, for supply of
MS, HSD, and Lubricants of the first party/Company; and
that the partnership was conducted in the name and style
of M/s. Chhagan Mitha and Co. It is, inter-alia, further
stated in the Written Statement that in furtherance of the
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1013
obligations under the contract of dealership dated
Jan. 1, 1977, M/s. Chhagan Mitha and Co. selected and
appointed their own employees for administering and
managing the petrol pump; and that the service conditions
of the personnel appointed by the dealers, such as their
Wages, Leave, Bonus, Work timings etc. were determined
by the said dealer and the first party/Company did not
have any say of any nature whatsoever in this regards;
and that the work of these personnel, appointed by the
dealer, was supervised and controlled by the dealer
themselves or through Supervisors appointed by the dealer.
38.
It is, inter-alia, further stated in the Written Statement
that on account of various malpractises and other acts/
omissions on the part of M/s. Chhagan Mitha and Co., the
first party/Company was left with no other alternative but
to terminate the agreement with M/s. Chhagan Mitha and
Co. and accordingly, by Termination Letter dated 4.5.2005,
Dealership of M/s. Chhagan Mitha & Co. was terminated.
39.
It is, inter-alia, further stated in the Written Statement
that upon termination of the Dealership Agreement with
M/s. Chhagan Mitha & Co., the first party/Company
appointed M/s. Mumbai Taxi Association Co-operative
Consumer Society Ltd. as an ad-hoc dealer w.e.f.
May 4, 2005; and that the ad-hoc dealership awarded to
M/s. Mumbai Taxi Association Co-operative Consumer
Society Ltd was renewed from time to time till 16.5.2010. It
is, inter-alia, stated in the Written Statement that the
persons who were working with M/s. Chhagan Mitha and
Co. approached the ad-hoc dealer M/s. Mumbai Taxi
Association Co-operative Consumer Society Ltd. for work/
employment; and that since the terms and conditions
offered by M/s. Mumbai Taxi Association Co-operative
Consumer Society Ltd. were acceptable to the said persons,
they took up employment with M/s. Mumbai Taxi
Association Co-operative Consumer Society Ltd.
40.
It is, inter-alia, further stated in the Written Statement
that upon completion of tenure of M/s. Mumbai Taxi
Association Co-operative Consumer Society Ltd. as ad-
hoc dealer, M/s.Kapadia Brothers was appointed as ad-
hoc dealer by letter dated 10.5.2010 who had taken over the
said outlet effective 17.5.2010; and that ad-hoc dealership
of M/s.Kapadia Brothers was continued up to 29.4.2012;
and that thereafter, M/s.Suburban Service Station was
appointed as ad-hoc dealer by letter dated 30.4.2012; and
that ad-hoc dealership of Suburban Service Station was
continued upto 30.9.2014.
41.
It is, inter-alia further stated in the Written Statement
that upon completion of tenure of M/s. Suburban Service
Station, effective 30.9.2014, M/s. Renuka Enterprises has
been awarded contract to operate the said outlet as Service
Provider; and that M/s. Renuka Enterprises has been
appointed after following procedure which is normally
followed by Central Public Sector Enterprises as per
Government of India Guidelines; and that in order to appoint
service provider at the said outlet, public bids were invited
through News paper Notification; and that M/s. Renuka
Enterprises has started operations at the said outlet by
deploying its own manpower.
42.
It is, inter-alia, further stated in the Written Statement
that the persons whose names are set out in the Annexure
to the Order of Reference are not the employees of first
party/Company and were never employed by the first party/
Company in any capacity whatsoever; and that there is/
was no employer-employee relationship between the first
party/Company and the persons whose names are set out
in the Annexure to the Order of Reference. It is, inter-alia,
further stated in the Written Statement that the Workmen
concerned in the present Reference were engaged by M/s.
Mumbai Taxi Association without any pressure, directives
or directions or requisition of any nature whatsoever of or
from the first party/Company; and that subsequently, some
of the workmen among the said workmen were engaged by
M/s. Kapadia Bros who was subsequent ad-hoc dealer;
and that thereafter M/s. Suburban Service Station employed
about 21 workers among 37 workmen under Reference. It
is, inter-alia, further stated in the Written Statement that
the first party/Company is not aware of and is also not
concerned in any manner whatsoever with the terms of
employment and/or engagement of the persons concerned
in the present Reference with various ad-hoc dealers; and
that the first party/Company is not the employer of the
persons whose names are listed in the Schedule to the
Reference; and that there was/is no supervision or control
of whatsoever nature over these persons by the first party/
Company; and that the first party/Company has not, at
any point of time whatsoever, paid the salary or allowances
or other benefits to the persons concerned in the present
Reference.
43.
It is, inter-alia, further stated in the Written Statement
that the first party/Company awards dealerships to parties
after following the due procedure and diligences prescribed
by the Ministry of Petroleum and Natural Gas, Govt. of
India, New Delhi; and that the first party/Company is not
concerned with and is therefore, not aware of and does
not admit any arrangements or agreements between the
dealers inter se or between the dealers and these persons.
It is inter-alia, further stated in the Written Statement that
there is no privity of contract between the first party/
Company and the workmen represented by the Union. It
is, inter-alia, further stated in the Written Statement that
the persons engaged in the said Petrol Pump are not doing
identical jobs which are being carried out by the regular
employees of the first party/Company.
44.
It is inter-alia, further stated in the Written Statement
that the first party/Company has absolutely no voice in
the selection, appointment, supervision and working of
the workmen engaged by the concerned Dealers/ad-hoc
dealers; and that being Government of India Undertaking,
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[PART II—SEC. 3(ii)]
the service of first party/Company is the public employment
and recruitment in the service is done through public
notification by following due recruitment procedure which
is followed by Government of India/Public Sector
Undertakings; and that the first party/Company engages
its workmen as per its recruitment policy and as per
statutory compliance such as Employment Exchange Act,
The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act 1995, and
Public Notifications offering equal opportunity to the
People of India who are fulfilling the Qualification, Age,
Reservation, and Experience etc; and that all vacancies are
compulsorily notified to the Employment Exchange and
Open Public advertisement for compliance of Reservation
Policy for various categories like SC/ST/OBC etc.
45.
It is, inter-alia, further stated in the Written Statement
that in the instant case, the workmen under Reference have
been engaged by the Dealer/Ad-hoc Dealer and, their claim
for employment and regularization is merely an attempt for
back-door entry, which is clearly in utter disregard of the
various pronouncement of the Apex Court and against the
Public Policy; and that the first party/Company being a
Public Sector Undertaking is bound to recruit persons who
are eligible under the Rules, Regulations and the Directions
of the Central Government in this regard. It is, inter-alia,
further stated in the Written Statement that there cannot
be any demand for regularization of services by persons
who have not even entered in the employment of the first
party/Company; and that their employment with the dealers
cannot be construed as employment with the first party/
Company; and that although the said persons were working
at the first party/Company’s petrol pump at Chembur, they
were so working as employees of the respective Dealers
which fact has been admitted by the concerned persons as
well as the Union in several judicial and statutory
proceedings.
46.
Denying the allegations made in paragraph 5 of the
Statement of Claim, it is stated in paragraph 46 of the Written
Statement that the first party Company appointed dealers
to manage and control the petrol pump, and that “it is
denied that the first party/Company appointed any Agents
on their behalf to run their business”; and that the name of
Hindustan Petroleum Corporation Limited and its logo, if
any, on the uniforms does not create any employer-
employee relationship between itself and the employees of
the dealers; and that although the petrol pump is owned
by the first party/ Company, the same was managed and
controlled by the respective dealers appointed by the
Company from time to time.
47.
As regards Rejoinder in respect of the Written
Statement filed on behalf of the first party/Management, it
has already been noted, that on 3.12.2014, Mr.S.D.Paithane,
learned counsel for the second party/Union stated that he
did not propose to file any Rejoinder in respect of the
Written Statement filed on behalf of the first party/
Management.
48.
ISSUES :
By the Order dated 6.1.2016, following Issues have
been framed in the present case:
1.
Whether Hindustan Petroleum Petrol Pump
Kamgar Union (hereinafter also referred to as
“the second party/Union”) has locus standi to
prosecute the present Reference and file
Statement of Claim on behalf of the persons
mentioned in the Order of Reference (hereinafter
also referred to as the “concerned persons”)?
2.
Whether any relationship of Employer and
Workmen between Hindustan Petroleum
Corporation Ltd. (hereinafter also referred to as
“ the first party/Management” or “ the first party/
Company”) and the concerned persons has been
proved by the second party/Union? If not, its
effect?
3.
Whether the demand of the concerned persons
for regularization of their services in the services
of Hindustan Petroleum Corporation Limited (i.e.
the first party/Company” or “the first party/
Management”) at par with the direct employees
of Hindustan Petroleum Corporation Ltd. (i.e.
“the first party/Company” or “the first party/
Management”) is justified and proper?
4.
To what relief, if any, the second party/ Union is
entitled?
49.
EVIDENCE:
As noted earlier, by the Order dated 6.1.2016, the
Tribunal, inter-alia, directed that “as the matter is proceeding
ex-parte against the second party/Union, and none is
present even today on behalf of the second party/Union,
the evidence on behalf of the second party/Union is
closed.” Thus, no evidence has been led on behalf of the
second party/Union in support of its case.
50.
Further, as noted earlier, on an Application filed on
behalf of Hindustan Petroleum Corporation Ltd. (“the first
party/Management” or “ the HPCL” or “the Corporation”
or “the First Party / Company” ) on 28.1.2016, the Tribunal
by the Order dated 28.1.2016, directed that the documents
filed with the lists dated 14.11.2014, 3.12.2014 and 13.1.2015
on behalf of Hindustan Petroleum Corporation Ltd. (“the
first party/Management” or “ the HPCL” or “the
Corporation” or “the First Party / Company” ) be treated as
documents filed on its behalf on merits of the matter.
51.
Again as noted earlier, on 28.1.2016, an Affidavit of
Evidence sworn by Girish Vithalrao Raut (MW-1) was filed
on behalf of Hindustan Petroleum Corporation Ltd. (“the
first party/Management” or “the HPCL” or “the
Corporation” or “the First Party / Company”).
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1015
52.
Further, having regard to the averments made in the
aforesaid Affidavit of Evidence sworn by Girish Vithalrao
Raut (MW-1), the documents filed with the aforesaid lists
were marked exhibits as mentioned in the Order dated
28.1.2016.
53.
Again , the Tribunal in the Order dated 28.1.2016,
inter-alia, noted that “as the matter is proceeding ex parte
against the second party/Union, and none is present even
today on behalf of the second party/Union, cross-
examination of the aforesaid Girish Vithalrao Raut (MW-1)
whose Affidavit of Evidence has been filed today, is
closed”. Therefore, the statement of the aforesaid Girish
Vithalrao Raut (MW-1) as contained in the said Affidavit
of Evidence, has gone unchallenged.
54.
ARGUMENTS:
As noted earlier, by the Order dated 28.1.2016, the
Tribunal fixed the case for arguments on 19.2.2016.
Pursuant to the Order dated 28.1.2016, the case was
put up on 19.2.2016.
Mr. Lancy D’Souza, learned counsel for the first
party/Management was present on the said date. None
was present on behalf of the second party/Union.
Mr. Lancy D’Souza, learned counsel for the first
party/Management made his submissions and concluded
the same.
Submissions made by Mr.Lancy D’Souza, learned
counsel for the first party/Management will be considered
at the appropriate places in the present Award while
recording findings on various Issues.
55.
FINDINGS:
ISSUE NO.1: Issue No.1 as noted above is “Whether
Hindustan Petroleum Petrol Pump Kamgar Union
(hereinafter also referred to as “the second party/Union”)
has locus standi to prosecute the present Reference and
file Statement of Claim on behalf of the persons mentioned
in the Order of Reference (hereinafter also referred to as
the “concerned persons”)?”
56.
A perusal of the Reference Order dated 12.2.2007
shows that the Reference was made at the instance of “The
Secretary, Rajya Rashtriya Kamgar Sangh (INTUC)”. On
the first page of the Statement of Claim dated 11.1.2012, in
the array of parties, the second party has been described
as “The Secretary, Rajya Rashtriya Kamgar Sangh
(INTUC).” However, in the Verification Clause on the last
page of the Statement of Claim, the verification has been
done by Jalinder Salve, describing himself to be “Secretary,
Hindustan Petroleum Petrol Pump Kamgar Union”.
57.
It is submitted by Mr.Lancy D’Souza, learned counsel
for the first party/Management that the second party/Union
has no locus standi to file the Statement of Claim in the
present matter. It is submitted that by the List
dated 3.12.2014, Report dated 17.10.2006 (Ex.M-1) was filed
on behalf of the first party/Management. The said Report
was a Report sent by the Assistant Labour Commissioner
(Central), Mumbai, to the Secretary, Government of India,
Ministry of Labour, New Delhi regarding failure of
conciliation in respect of the “Industrial Dispute between
the Management of Hindustan Petroleum Corporation Ltd
and Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC)”.
It is submitted that the said Report, inter-alia, categorically
stated that “the Secretary, Maharashtra Rajya Rashtriya
Kamgar Sangh (INTUC) has raised an industrial dispute
vide its letter dated 10.2.2006 over the demand for
permanency of workmen who are working the petrol
Pumps…………….”. Thus, the Industrial Dispute was
raised by the Secretary, Maharashtra Rajya Rashtriya
Kamgar Sangh (INTUC). In the Order of Reference dated
12.2.2007, party described at Item No.2 is The General
Manager (Retail), Hindustan Petroleum Corporation Ltd.,
while the party described at item No.3 is the Secretary,
Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC).
Thus, the parties to the Industrial Dispute were Hindustan
Petroleum Corporation Ltd. and the Secretary, Maharashtra
Rajya Rashtriya Kamgar Sangh (INTUC). The Order of
Reference nowhere refers to Hindustan Petroleum Petrol
Pump Kamgar Union i.e. the second party/Union. Thus,
the second party/Union i.e. Hindustan Petroleum Petrol
Pump Kamgar Union was not a party to the Reference. On
page 2 of the Order of Reference dated 12.2.2007, the
submission proceeds, it is mentioned that “ the parties
raising the dispute shall file a Statement of Claim………”
Thus, the parties to the Reference were required to file a
Statement of Claim. It is submitted that Rule 10-B of the
Industrial Disputes (Central) Rules, 1957 makes similar
requirement in sub-rule (1) wherein, it is, inter-alia, stated
that “ ………..the Central Government shall direct the party
raising the dispute to file a Statement of Claim…………”
58.
As noted earlier, in the Written Statement filed on
behalf of the first party/Management, it is, inter-alia, stated
that the present Reference has been made at the instance
of one Rajya Rashtriya Kamgar Sangh (INTUC), and the
Hindustan Petroleum Petrol Pump Kamgar Union (second
party/Union) has no locus standi to prosecute the present
Reference much less to file a Statement of Claim as the said
Kamgar Union is not a party to the Reference.
59.
It is submitted by Mr.Lancy D’Souza, that from the
above, it is clear that the Statement of Claim was to be filed
on behalf of the Secretary, Maharashtra Rajya Rashtriya
Kamgar Sangh (INTUC). In fact, on the first page of the
Statement of Claim in the array of parties, the second party
has been described as “The Secretary, Rajya Rashtriya
Kamgar Sangh (INTUC)” However, in the Verification
Clause on the last page of the Statement of Claim, the
verification has been done by Jalinder Salve, describing
himself to be “Secretary, Hindustan Petroleum Petrol Pump
Kamgar Union.” Therefore, the submission proceeds, the
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[PART II—SEC. 3(ii)]
Statement of Claim cannot be read as part of the
proceedings as it has been filed by a party who has no
locus standi and who has not raised the Industrial Dispute.
60.
Again, Shri Lancy D’Souza, learned counsel for the
first party/Management submits that there is nothing on
record to show that the name of Maharashtra Rajya
Rashtriya Kamgar Sangh (INTUC) has been changed to
Hindustan Petroleum Petrol Pump Kamgar Union, nor has
the second party/Union (Hindustan Petroleum Petrol Pump
Kamgar Union) got itself impleaded as a party to the
Reference.
61.
It is further submitted by Mr.Lancy D’Souza, learned
counsel for the first party/Management that there is no
evidence or affidavit to show that the concerned workmen/
concerned persons in the present Reference have given
any authorization to the second party/Union to prosecute
the Reference on their behalf or file Statement of Claim in
the present Reference.
62.
It is submitted that Vakaltnama filed by
Mr.S.D.Paithane has been issued in his favour to represent
the second party/Union, which, as per the Reference as
well as the Statement of Claim, is “Rajya Rashtriya Kamgar
Sangh”, and not “Hindustan Petroleum Petrol Pump
Kamgar Union”.
63.
It is further submitted that to show locus standi, the
second party/Union (i.e. Hindustan Petroleum Petrol Pump
Kamgar Union) must show that the concerned workmen/
concerned persons in the Reference are its members.
64.
I have considered the submissions made by Mr.Lancy
D’Souza, learned counsel for the first party/Management.
65.
As noted earlier, the Report dated 17.10.2006 (Ex.M-1)
sent by the Assistant Labour Commissioner (Central),
Mumbai to the Secretary, Government of India, Ministry of
Labour, New Delhi shows that the Industrial Dispute was
raised by the Secretary, Maharashtra Rajya Rashtriya
Kamgar Sangh (INTUC). The Order of Reference also
shows that the parties to the Industrial Dispute were
Hindustan Petroleum Corporation Ltd. and the Secretary,
Rajya Rashtriya Kamgar Sangh (INTUC). As noted earlier,
on the first page of the Statement of Claim in the array of
parties, the second party has been described as “The
Secretary, Rajya Rashtriya Kamgar Sangh (INTUC)” while
the verification in the Verification Clause on the last page
of the Statement of Claim has been done by Jalinder Salve,
describing himself to be “Secretary, Hindustan Petroleum
Petrol Pump Kamgar Union”.
66.
The Tribunal by the Award dated 25.2.2013 disposed
of the present Reference, inter-alia, holding that the
concerned workmen/concerned persons in the present
Reference were not entitled to any Relief.
67.
Thereupon, a Writ Petition being Writ Petition
No. 9772 of 2013 was filed before the Bombay High Court.
The said Writ Petition was entertained by the Hon’ble
Bombay High Court, and disposed of by the Order dated
1.9.2014, as noted earlier.
68.
As would be evident from a perusal of the Order
dated 1.9.2014 passed in the said Writ Petition No. 9772 of
2013, the said Writ Petition was filed before the Bombay
High Court describing “Rajya Rashtriya Kamgar Sangh
(INTUC) now Hindustan Petrol Pump Kamgar Union” as
the Petitioner. By the said Order dated 1.9.2004 passed in
the said Writ Petition, the matter was remanded to this
Tribunal. No objection was raised on behalf of the first
party/Management in the Writ Petition before the
Honourable Bombay High Court regarding locus standi of
the second party/Union (Hindustan Petroleum Petrol Pump
Kamgar Union) to file the said Writ Petition describing
“Rajya Rashtriya Kamgar Sangh (INTUC) now Hindustan
Petrol Pump Kamgar Union” as the petitioner. In view of
the fact that the Order dated 1.9.2014 was passed by the
Honourable Bombay High Court in the aforesaid Writ
Petition No. 9772 of 2013 after hearing the learned counsel
for the first party/Management, and no objection was taken
by the first party/Management before the Honourable
Bombay High Court regarding locus standi of the second
party/Union, namely, Hindustan Petroleum Petrol Pump
Kamgar Union to file Statement of Clam before this Tribunal
or the Writ Petition before the Honourable Bombay High
Court, it is no longer open to the first party/Management
to question the locus standi of the second party/Union i.e.
Hindustan Petroleum Petrol Pump Kamgar Union to file the
Statement of Claim in the present Reference and to
prosecute the present Reference.
69.
There is another aspect of the matter. In view of the
facts and circumstances stated above, the concerned
workmen/concerned persons in the present Reference will
be deemed to have acceded to their being represented by
the second party/Union, and the second party/Union will
be deemed to be party to the Reference, and the Award
passed by this Tribunal will be binding on the concerned
workmen/concerned persons in the present Reference as
well as on the second party/Union representing the
concerned workmen/concerned persons in the present
Reference.
70.
There is yet another aspect of the matter. As is
evident from a perusal of the Reference Order dated
12.2.2007, list of the concerned workmen/concerned persons
in the present Reference was enclosed with the Reference
Order, and their demand was the subject-matter of the
Reference. Thus, the concerned workmen/concerned
persons in the present Reference were parties to the
Reference, and Rajya Rashtriya Kamgar Sangh (INTUC)
was only representing them. Therefore, it was the option
of the concerned workmen/concerned persons in the
present Reference to be represented by another Union,
namely, Hindustan Petroleum Petrol Pump Kamgar Union
(i.e., second party/Union), and they have evidently chosen
to do so. As the concerned workmen/concerned persons
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1017
in the Reference have no objection to the second party/
Union representing them in the Reference, the objection
raised by the first party/Management in this regard is mere
technicality, and such objection cannot be accepted.
Reference in this regard may be made to a decision of the
Supreme Court in The Manager, Hotel Imperial vs. The
Chief Commissioner and Others, AIR 1959 SC 1214: 1960
SCR (1) 279.
In view of the above discussion, it is held that
Hindustan Petroleum Petrol Pump Kamgar Union (i.e., the
second party/Union) has locus standi to prosecute the
present Reference and file Statement of Claim on behalf of
the concerned workmen/ concerned persons in the
Reference. Issue Nos. 1 is decided Accordingly.
71.
ISSUE NO.2: as noted above is “Whether any
relationship of Employer and Workmen between Hindustan
Petroleum Corporation Ltd. (hereinafter also referred to as
“ the first party/Management” or “ the first party/
Company”) and the concerned persons has been proved
by the second party/Union? If not, its effect?”
72.
It is, inter-alia, averred in the Statement of Claim that
21 workmen whose names are mentioned in Annexure A are
pursuing the matter; and that the demand as contained in
the Reference is justified and proper to get the workmen
regularized in services of Hindustan Petroleum Corporation
Limited, who are working at Hindustan Petroleum
Corporation Limited Petrol Pump at Chembur at par with
Hindustan Petroleum Corporation Limited direct employees.
73.
In the Written Statement filed on behalf of the first
party/Company (Hindustan Petroleum Corporation
Limited), it is, inter-alia, averred that the persons whose
names are set out in the Annexure to the Order of Reference
are not the employees of the first party/Company and were
never employed by the first party/Company in any capacity
whatsoever; and that there is/was no employer-employee
relationship between the first party/Company and the
persons whose names are set out in the Annexure to the
Order of Reference.
74.
Mr. Lancy D’Souza, learned counsel for the first
party/Management submits that for grant of any relief as
claimed in the present Reference, it is necessary that there
should be relationship of employer-employee between
Hindustan Petroleum Corporation Ltd. and the concerned
workmen/ concerned persons in the present Reference.
Unless this relationship is established and proved, no order
can be passed against Hindustan Petroleum Corporation
Limited in regard to the concerned workmen/ concerned
persons in the present Reference. It is submitted that unless
employer-employee relationship between Hindustan
Petroleum Corporation Limited and the concerned
workmen/ concerned persons in the present Reference is
established, relief cannot be granted to the concerned
workmen/ concerned persons in the present Reference as
against Hindustan Petroleum Corporation Limited.
Elaborating his said submissions, Mr. Lancy D’Souza,
learned counsel for the first party/Management has made
following submissions:
(1)
As the demand raised by the concerned workmen/
concerned persons in the Reference is for
Regularisation in the services of Hindustan Petroleum
Corporation Limited (the first party/Management),
it is open to Hindustan Petroleum Corporation Ltd
(i.e., the first party/Management) to raise the question
that the concerned workmen/concerned persons in
the Reference were not workmen/employees of
Hindustan Petroleum Corporation Ltd. (i.e, the first
party/Management), and as such, there was no
industrial dispute which could be referred to this
Tribunal.
Mr. Lancy D’Souza, learned counsel for the first
party/Management has placed reliance on the
following decisions:
(a)
Iqbal Ahmad Kamaruddin vs. P.L.Majumdar and
Another,1992 I CLR 1034 (Bom) (Paras 6,7,8 and
9)
(b)
Bongaigaon Refinery & Petrochemicals Ltd. vs.
Samijuddin Ahmed, 2001 III CLR 565 (SC) paras
6 and 7)
(c)
Mukand Ltd vs Mukand Staff and Officers’
Association, 2004 I CLR 1062 (SC) ( paras 47 &
50)
(2)
It is for the second party/Union to aver and prove
that the concerned workmen/concerned persons in
the Reference were the workmen /employees of
Hindustan Petroleum Corporation Ltd. (i.e., first
party/Management). Reliance in this regard is placed
by Mr.Lancy D’Souza, learned counsel for the first
party/Management on a decision in Somnath
Tulshiram Galande vs Presiding Officer and Others,
2008 I CLR 656 (Bom) (para 7).
(3)
In the Statement of Claim, there is no allegation that
Hindustan Petroleum Corporation Ltd. appointed the
concerned workmen / concerned persons in the
Reference or they are employees of Hindustan
Petroleum Corporation Ltd. What is alleged in the
Statement of Claim is that they were working at the
Petrol Pump in question since many years. However,
it has not been specifically alleged as to under whose
employment the concerned workmen/concerned
persons in the present Reference were working.
There is no pleading in the Statement of Claim as to
who appointed the concerned workmen/concerned
persons in the Reference, as to who has been
controlling and supervising the concerned workmen/
concerned persons in the Reference, as to who has
been paying the wages to the concerned workmen/
concerned persons in the Reference and as to who
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[PART II—SEC. 3(ii)]
has been having a right to dismiss or terminate the
concerned workmen/concerned persons in the
Reference. In the absence of the relevant pleadings,
the second party/Union has failed to show any
relationship of employer and employee between
Hindustan Petroleum Corporation Ltd. and the
concerned workmen/concerned persons in the
Reference. Moreover, no evidence has been led on
behalf of the second party/Union to prove much
relationship.
(4)
There are no pleadings on behalf of the second party/
Union that the Dealership Agreements entered into
between Hindustan Petroleum Corporation Ltd. and
various Dealers from time to time were sham and
bogus. If the concerned workmen/concerned persons
in the Reference claim to be the employees of
Hindustan Petroleum Corporation Ltd. then there has
to be pleading that the Agreements between
Hindustan Petroleum Corporation Ltd. and various
Dealers were sham and bogus but there is no such
pleading on behalf of the concerned workmen/
concerned persons in the present Reference.
No evidence has been led on behalf of the second
party/Union to show that the Dealership Agreements
were sham and bogus. Thus, the second party/Union
has failed to aver and prove that the Dealership
Agreements entered into between Hindustan
Petroleum Corporation Ltd and various Dealers were
sham and bogus. The onus was on the second party/
Union. Reliance in this regard is placed by Mr.Lancy
D’Souza, learned counsel for the first party/
Management on a decision of the Supreme Court in
General Manager (OSD), Bengal Nagpur Cotton
Mills, Rajnandgaon vs. Bharat Lal and Another, 2011
I CLR I (SC) (paras 8 and 9).
(5)
In the Written Statement filed on behalf of the first
party/Management in respect of the Statement of
Claim, it has been specifically pleaded in various
paragraphs of the Written Statement that the
concerned workmen/concerned persons in the
present Reference were always the employees of the
Dealers, and there was no Master and Servant
relationship/ Employer and Employee relationship
between Hindustan Petroleum Corporation Ltd. and
the concerned workmen/concerned persons in the
present Reference. Reliance is, inter-alia, placed on
the averments made in paragraphs 10, 29, 30, 31, 38,
39, 40 and 41 of the Written Statement filed on behalf
of the first party/Management in respect of the
Statement of Claim.
It is submitted that in view of sub-rule (4) of Rule 10
B of the Industrial Disputes (Central) Rules, 1957, it
was open to the second party/Union to file Rejoinder
in respect of the Written Statement filed on behalf of
the first party/Management, but the second party/
Union has chosen not to do so. Therefore, the
averments made in the Written Statement have not
been disputed by the second party/Union.
The averments made in the Written Statement have
been proved by the Affidavit of Evidence sworn by
Girish Vithalrao Raut (MW-1), and the said Affidavit
of Evidence has gone unchallenged.
(6)
Assertions were made in the said Written Statement
filed on behalf of the first party/Management,
regarding all Dealership Agreements, and copies of
all Dealership Agreements were also filed alongwith
the List dated 14.11.2014. However, the second party/
Union did not file any Rejoinder in reply to the Written
Statement filed on behalf of the first party/
Management even though sub-rule (4) of Rule 10 B
of the Industrial Disputes (Central) Rules, 1957
permits the second party/Union to do so. Therefore,
the averments made on behalf of the first party/
Management in the Written Statement have not been
disputed by the second party/Union.
The averments made in the Written Statement have
been proved by the Affidavit of Evidence sworn by
Girish Vithalrao Raut (MW-1), and the said Affidavit
of Evidence has gone unchallenged. Thus, it has
not been established by the second party/Union that
the concerned workmen/concerned persons in the
Reference were employees of Hindustan Petroleum
Corporation Ltd. There is no denial regarding the
averments made in the Written Statement filed on
behalf of the first party/Management, which were
proved by the Affidavit of Evidence of MW-1, that
there is no relationship of Master and Servant/
Employer and Employee between Hindustan
Petroleum Corporation Ltd. and the concerned
workmen/concerned persons in the Reference.
(7)
Under the Industrial Disputes Act, 1947, Master and
Servant relationship must be established. Unless
such relationship is established, no relief can be
granted to the concerned workmen/concerned
persons in the present Reference as against
Hindustan Petroleum Corporation Ltd.
(8)
In addition to the above, there are also admissions
on record on behalf of the concerned workmen/
concerned persons in the present Reference where
they have accepted employer-employee relationship
with the respective Dealers. Reference in this regard
is made to the following :
(a) Averments made in the Writ Petition No.2651 of
2007 filed before the Bombay High Court (Ex.
M-7)appearing at page 60 of the documents filed
on behalf of the first party/Management
alongwith the List of Documents dated
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1019
14.11.2014.
(b) Copies of Provident Fund Slips of workers (Ex.M-
9) appearing at page 89 onwards of the
documents filed on behalf of the first party/
Management alongwith the List of Documents
dated 14.11.2014.
(c) Copies of ESI Return (Ex-M 9) appearing at page
95 onwards of the documents filed on behalf of
the first party/Management alongwith List of
Documents dated 14.11.2014.
(d) Order dated 22.1.2010 (Ex.M-11)passed by the
Bombay High Court in Criminal Writ Petition
No.54 of 2009, copy whereof appears at page
102 of the documents filed on behalf of the first
party/Management alongwith List of
Documents dated 14.11.2014.
.
In view of the admissions made by the concerned
workmen/concerned persons in the present Reference
in Judicial Proceedings before the Bombay High
Court, the concerned workmen/concerned persons
in the present Reference cannot be granted any relief
as against Hindustan Petroleum Corporation Ltd.
Reliance is placed on the decision of the Bombay
High Court in Hindoostan Spinning and Weaving
Mills, Mumbai vs. Hindustan Crown Mills
Siddhivinayak Kamgar Karmachari Sanghaha
Sanghatana and Others, 2008 – I LLJ 43 (Bom.) for
the proposition that admission in pleadings before
another Court are judicial admissions, and these can
be made foundation of rights.
(9)
Documents pertaining to the proceedings under the
Minimum Wages Act, 1948 in respect of M/s.
Suburban Service Station appearing at pages 160,
163, 166, 171, 174, 176 and pages 179 to 196 of the
Documents filed with the List of Documents dated
14.11.2014.. The said documents clearly show that
the Dealer M/s. Suburban Service Station accepted
the concerned workmen/concerned persons in the
present Reference as the employees of the said Dealer.
(10)
The above documents show that there was no
relationship of Employer and Employee between
Hindustan Petroleum Corporation Ltd and the
concerned workmen/concerned persons in the
present Reference. Therefore, no relief can be granted
to the concerned workmen/concerned persons in the
present Reference as against Hindustan Petroleum
Corporation Limited.
(11)
From 1.1.1977 till 4.5.2005, M/s.Chhagan Mitha &
Co. was the dealer for running the Petrol Pump in
question. From 4.5.2005 till May 2010, Mumbai Taxi
Association was the dealer. From May 2010 till April
2012, M/s.Kapadia Bros. was the dealer. From
1.5.2012 till 30.9.2014, M/s.Suburban Service Station
was the dealer. With effect from 1.10.2014, Hindustan
Petroleum Corporation Limited has appointed
M/s.Renuka Enterprises as contractor or service
provider, and not a dealer. There is basic difference
between a “Dealer” and a “Contractor”. A
“Contractor” is defined under Section 2 (c ) of the
Contract Labour (Regulation and Abolition) Act,
1970. The word “dealer” is not defined in the
Industrial Disputes Act, 1947 or in the Contract
Labour (Regulation and Abolition ) Act, 1970. The
dictionary meaning of the word ‘dealer’ is “ a person
who buys and sells goods…….as a principal ( rather
than as a broker or agent)”. Therefore, Dealership
Agreements with various Dealers up to M/s.
Suburban Service Station were on principal to
principal basis where the dealer would buy the
products of Hindustan Petroleum Corporation
Limited and sell these products. Various clauses of
the Agreement with M/s.Chhagan Mitha & Co. as
well as with subsequent Dealers are referred to in
this regard. Under the Dealership Agreements, the
dealer was to employ his own persons to whom the
payment was to be made by such dealer. The
concerned workmen were employed by the dealers
and thus were not the employees of Hindustan
Petroleum Corporation Limited.
(12)
There are no pleadings in the Statement of Claim
filed on behalf of the second party/Union that the
Dealership Agreements were bogus or sham. From a
perusal of the Dealership Agreements, it is evident
that the concerned workmen were the employees of
the Dealers, and there was no employer- employee
relationship between Hindustan Petroleum
Corporation Limited and the concerned workmen.
As there is no challenge in the pleadings by the
second party/Union to the genuineness of the
Dealership Agreements, the Dealership Agreements
would be deemed to be genuine. It is submitted that
if there are no pleadings and even if there is evidence
on the issue, such evidence cannot be looked into.
Reliance in this regard is placed on the decision of
the Supreme Court in Shankar Chakravarti v/s
Britannia Biscuit Co. Ltd and Another, 1979 Labour
and Industrial Cases 1192 (SC) (paragraphs 31 and
32)
(13)
Apart from the fact that there are no pleadings that
the Dealership Agreements were sham and bogus,
there are no pleadings that the concerned workmen
were appointed by Hindustan Petroleum Corporation
Limited, or that the concerned workmen were paid
wages by Hindustan Petroleum Corporation Limited,
or that the concerned workmen were under control
and supervision of Hindustan Petroleum Corporation
Limited. No appointment letters in respect of the
concerned workmen have been brought on record.
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THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
In the absence of pleadings claiming Employer-
Employee relationship with Hindustan Petroleum
Corporation Limited, the second party/Union cannot
seek any relief for the concerned workmen/concerned
persons in the present Reference as against
Hindustan Petroleum Corporation Limited.
(14)
As regards M/s.Renuka Enterprises appointed as
Service Provider or Contractor w.e.f.1.10.2014, the
relevant documents showing compliance of the
provisions of the Contract Labour (Regulation and
Abolition) Act, 1970 have been filed on behalf of the
first party/Management on 15.1.2015, alongwith the
List of Documents dated 13.1.2015. One of the said
documents is Certificate of Registration dated
28.10.2014 (Ex.M-24) granted in favour of Hindustan
Petroleum Corporation Limited under Section 7(2) of
the Contract Labour (Regulation and Abolition ) Act,
1970, while the other document is Licence dated
18.11.2014 (Ex.M-25) granted under Section 12 of the
said Act in favour of M/s. Renuka Enterprises. It is
further submitted that even if there is failure to obtain
Registration or Licence under the Contract Labour
(Regulation and Abolition) Act, 1970, the same would
not result in direct relationship of employer and
employees between the principal employer and the
contract labour. Reliance in this regard is placed on
a decision of the Supreme Court in Denanath and
Others vs. National Fertilizers Limited and Others,
1992 (I) CLR 1 (SC).
I have considered the submissions made by Mr.
Lancy D’Souza, learned counsel for the first party/
Management on the question of relationship of employer-
employee or Master and Servant between Hindustan
Petroleum Corporation Limited and the concerned
workmen/concerned persons in the present Reference.
Submissions made by Mr.Lancy D’Souza, learned counsel
for the first party/Management are being dealt with as
under:
75.
(A). A perusal of the Reference Order shows that the
same pertains to the demand of the concerned
workmen/concerned persons in the Reference for
regularization in the services of Hindustan Petroleum
Corporation Ltd. (i.e. first party/Management). It is,
therefore, open to Hindustan Petroleum Corporation
Ltd. (i.e. the first party/Management) to raise the
question that the concerned workmen/concerned
persons in the Reference were not the workers/
employees of Hindustan Petroleum Corporation Ltd.
(i.e. first party/Management), and as such, there was
no industrial dispute which could be referred to this
Tribunal. This conclusion is supported by the
Principles underlying the decisions relied upon by
Mr. Lancy D’Souza, learned counsel for the first
party/Management, namely, the decisions in (a) Iqbal
Ahmad Kamaruddin vs. P.L.Majumdar and Another,
1992 I CLR 1043 (Bom) (paras 6, 7, 8 & 9); (b)
Bongaigaon Refinery and Petrochemicals Ltd vs.
Samijuddin Ahmed, 2001 III CLR 565 (SC) (paras 6
and 7); and ( c ) Mukand Ltd. vs. Mukand Staff and
Officers’ Association, 2004 I CLR 1062 (SC) (paras 47
& 50).
(B). For grant of any relief in the present Reference,
it is necessary that there should be relationship of
employer-employee between Hindustan Petroleum
Corporation Ltd and the concerned workmen/
concerned persons in the present Reference. Unless
employer-employee relationship between Hindustan
Petroleum Corporation Ltd and the concerned
workmen/concerned persons in the present Reference
is established, no relief can be granted to the
concerned workmen/concerned persons in the
present Reference as against Hindustan Petroleum
Corporation Ltd. As the second party/Union is
seeking relief of regularization of the concerned
workmen/concerned persons in the present
Reference, it is for the second party/Union to aver
and prove that there was relationship of employer-
employee between Hindustan Petroleum Corporation
Ltd. and the concerned workmen/concerned persons
in the present Reference. This follows from the
Principles underlying the decision of the Bombay
High Court in Somnath Tushiram Galande vs.
Presiding Officer And others, 2008 I CLR 656 (Bom)
(para 7).
(C). As regards pleadings on the question of
relationship of employer and employee or Master
and Servant between Hindustan Petroleum
Corporation Ltd and the concerned workmen/
concerned persons in the present Reference,
reference may be made to paragraph 5 of the
Statement of Claim. Paragraph. 5 of the Statement of
Claim reads as under:
“The Second Party Union submits that the workers
are working in the said petrol pump since many years
and their date of joining services on the Hindustan
Petroleum Corporation Ltd. Petrol Pump are
mentioned in Annexure-B in this matter. The workers
are working continuously for more than 240 days in
a year for many years however they are denied
permanency by the Government owned Corporation
is a serious matter as it shows that the Central
Government is not following Labour Laws. The
Second Party Union submits that the HPCL Company
appointed agents on their behalf to run the business
for them. The Second Party Union submits that the
name of the Petrol Pump is Hindustan Petroleum, the
logo on uniform is of Hindustan Petroleum. This
clearly shows that the Petrol Pump is owned and
managed and controlled by Hindustan Petroleum
Corporation Ltd.”
¹Hkkx IIó[k.M 3(ii)º
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1021
76.
In paragraph 5 of the Statement of Claim quoted
above, it has, inter-alia, been alleged that “the workers are
working in the said Petrol Pump since many years and their
day of joining services on the Hindustan Petroleum
Corporation Ltd. Petrol Pump are mentioned in in Annexure
‘B’ ”. It is, inter-alia, further averred that “the HPCL
Company appointed Agents on their behalf to run the
business for them”. It is, inter-alia, further averred that the
“name of the Petrol Pump is Hindustan Petroleum, the logo
on uniform is of Hindustan Petroleum. This clearly shows
that the Petrol Pump is owned and managed and controlled
by Hindustan Petroleum Corporation Ltd.”.
77.
It will thus be seen that the case of the second party/
Union is that the Petrol Pump is owned and managed and
controlled by Hindustan Petroleum Corporation Ltd. The
concerned workmen/concerned persons in the present
Reference joined services on the said Petrol Pump and
have been working in the said Petrol Pump since many
years. It is, however, admitted by the second party/Union
that Hindustan Petroleum Corporation Ltd. appointed
Agents on their behalf to run the business for them.
78.
In view of the above, it is evident that there are no
pleadings on behalf of the second party/Union as to who
appointed the concerned workmen/concerned persons in
the present Reference for working in the said Petrol Pump.
Again, there are no pleadings as to who was paying the
wages to the concerned workmen/concerned persons in
the present Reference.
79.
It is again, not pleaded as to who had power to dismiss
the concerned workmen/concerned persons in the present
Reference. While it is averred that Petrol Pump is owned,
managed and controlled by Hindustan Petroleum
Corporation Ltd., there is no specific pleading as to under
whose control and supervision, the concerned workmen/
concerned persons in the present Reference were working.
Thus, no proper foundation has been laid in the pleadings
submitted on behalf of the second party/Union to show
the existence of employer and employee relationship
between Hindustan Petroleum Corporation Limited and the
concerned workmen/concerned persons in the present
Reference. Moreover, no evidence has been led on behalf
of the second party/Union to prove such relationship.
(D) In Written Statement filed on behalf of the first
party/Management in respect of the Statement of
Claim, it was pleaded that the concerned workmen
were appointed by the Dealers and they were
employees of the Dealers and they were not the
employees of Hindustan Petroleum Corporation
Limited. Reference in this regard may made to the
averments made in paragraphs 10, 29, 30, 31, 38, 39,
40 and 41 of the Reply filed on behalf of the first
party/Management in respect of the aforementioned
Statement of Claim. The said paragraphs of the Reply
are reproduced below:
“10. It is submitted that in furtherance of the
obligations under the contract of dealership dated
January 1, 1977, M/s. Chhagan Mitha and Company
selected and appointed their own employees for
administering and managing the petrol pump. The
service conditions of the personnel appointed by
the dealers, such as their wages, leave, bonus, work
timings etc. were determined by the said dealer and
First Party did not have any say of any nature
whatsoever in this regard. Further, the work of these
personnel, appointed by the dealer, was supervised
and controlled by the dealer themselves or through
supervisors appointed by the dealer”.
“29. It is submitted that from the above chronology
of fact/events, it is apparent that the persons whose
names are set out in the Annexure the Order of
Reference are not the employees of First Party and
were never employed by the First Party in any
capacity whatsoever. It is submitted that there is/
was no employer-employee relationship between the
First Party and the persons whose names are set out
in the Annexure to the Order of Reference. It is
submitted that the workmen concerned in the present
Reference were engaged by M/s.Mumbai Taxi
Association without any pressure, directives or
directions or requisition of any nature whatsoever
off or from the first Party. It is subsequently, some
of the workmen among said workmen were engaged
by M/s. Kapadia Brothers who was subsequent ad-
hoc dealer. Thereafter M/s. Suburban Service Station
employed about 21 workers among 37 workmen under
Reference. It is submitted that First Party is not
aware of and is also not concerned in any manner
whatsoever with the terms of employment and/or
engagement of the persons concerned in the present
Reference with various ad-hoc dealers”.
“30. It is submitted that First Party is not the employer
of the persons whose names are listed in the Schedule
to the Reference. It is submitted that the said
workmen cannot be termed as workmen of First Party,
as defined under Section 2(s) of the Industrial
Disputes Act, 1947. Thus, there is no employer-
employee relationship between the First Party and
the said workmen. In the absence of such a
relationship, the dispute raised by the said Second
Party as against the First Party cannot be termed as
an industrial dispute within the meaning of Section
2(k) of the Industrial Disputes Act, 1947.”
“31. It is submitted that there was/is no supervision
or control of whatsoever nature over these persons
by the First Party. It is submitted that First Party has
not, at any point of time whatsoever, paid the salary
or allowances or other benefits to the persons
concerned in the present Reference. It is submitted
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THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
that First Party cannot be vested with any
responsibility or liability regarding wages or
discriminatory treatment, if any given to these
persons. It is submitted that the dispute raised by
Second Party on behalf of said persons does not
hold good and is absolutely bad in the eyes of law. It
is submitted that Second Party has no locus standi
to raise such industrial dispute against First Party”.
“38. It is submitted that payment of wages to the
concerned workmen under reference has been made/
is being made by their employer i.e. the Dealer/ad-
hoc Dealer and First Party has never made any
payment of wages to the said workmen at any point
of time.”
“39. It is submitted that Dealer/ad-hoc Dealer has
been granting/is granting leaves to the said workmen
as per the provisions of the applicable law and First
Party has never granted any leave to the said
workmen.”
“40. It is submitted that entire control and
supervisions of the said workmen under Reference
is with their employer i.e. Dealer/ad-hoc Dealer and
First Party does not at all supervises or controls the
jobs of said workmen.”
“41. It is submitted that Disciplinary Action, if any,
against the said workmen, under Reference, is taken
by the concerned Dealer/ ad-hoc Dealer who is the
employer, and First Party has never taken any
Disciplinary Action against the said workmen.”
It may be mentioned that the averments made in the
Written Statement filed on behalf of the first party/
Management in respect of the Statement of Claim have
been supported by the Affidavit of Evidence of Girish
Vithalrao Raut (MW-1) filed on behalf of the first party/
Management.
80.
It is noteworthy that in view of the sub-rule (4) of
Rule 10B of the Industrial Disputes (Central) Rules, 1957,
the second party/Union could file Rejoinder in reply to the
Written Statement filed on behalf of the first party/
Management. But the second party/Union did not file any
Rejoinder in respect of the Written Statement filed on behalf
of the first party/Management, and thus, the averments
made in the Written Statement were not disputed by the
second party/Union.
Further, the Affidavit of Evidence of Girish Vithalrao
Raut (MW-1) remained unchallenged.
81.
Again, specific averments were made in the Written
Statement filed on behalf of the first party/Management in
respect of the Statement of Claim regarding various
Dealership Agreements. Further, amongst documents filed
on behalf of the first party/Management alongwith the List
of Documents dated 14.11.2014, copies of various
Dealership Agreements were filed. However, the second
party/Union did not file any Rejoinder regarding the
averments made in respect of various Dealership
Agreements in the Written Statement filed on behalf of the
first party/Management even though sub-rule (4) of Rule
10B of the Industrial Disputes (Central) Rules, 1957 permits
the second party/Union to do so. Thus, the existence and
genuineness of various Dealership Agreements have not
been disputed by the second party/Union.
Moreover, no evidence has been led on behalf of the
second party/Union to show that the Dealership
Agreements were sham and bogus.
82.
Thus, the second party/Union has failed to aver and
prove that the Dealership Agreements entered into between
Hindustan Petroleum Corporation Ltd. and various Dealers
were sham and bogus. The onus was on the second party/
Union. This follows from the principles underlying the
decision of their Lordships of the Supreme Court in General
Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon
vs. Bharat Lal and Another, 2011 I CLR I (SC) (paras 8 and
9).
(E) As noted earlier, it has been pleaded on behalf
of the first party/Management that the concerned
workmen/concerned persons in the present Reference
were recruited by Dealers and they were employees
of the Dealers, and there was no relationship of
employer and employee between Hindustan
Petroleum Corporation Limited and the concerned
workmen/concerned persons in the present
Reference. In this regard, it is noteworthy that there
are admissions on record on behalf of the concerned
workmen/concerned persons in the present Refernce
where it has been accepted that there was employer-
employee relationship between the concerned
workmen/concerned persons in the present Reference
and the respective Dealers. Thus, in Writ Petition
No.2651 of 2007(Ex.M-7) filed by Deepak Tanaji
Kamble on behalf of the concerned workmen/
concerned persons in the present Reference(see
paragraph 2 of the Writ Petition), M/s. Chhagan
Mitha & Co. was impleaded as Respondent No.5
while Mumbai Taxi Association was impleaded as
Respondent No.6. Hindustan Petroleum Corporation
Ltd. was impleaded as Respondent No.2 in the said
Writ Petition. In paragraph 2 of the said Writ Petition,
it is, inter-alia, stated that “the Petitioner submits
that there are about 37 employees including the
petitioner are working with Respondent No.5”. It is,
inter-alia, further alleged in paragraph 2 of the Writ
Petition that “the petitioner submits that Hindustan
Petroleum Petrol Pump, Hindustan Petroleum
Corporation Ltd. Companies out-let is taken over
by Bombay Taxi Men Association. The Petitioner
submits they are deducting Provident Fund
Contribution from 37 employees including the
Petitioner from May 2005”. It is, inter-alia, further
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1023
averred in paragraph 2 of the Writ Petition that “ the
Petitioner submits that they have contributed for the
E.S.I.C. Scheme still their employers i.e. Respondent
Nos. 5 and 6 have not given benefits of the Scheme
under the Employees’ State Insurance Act, 1948".
Prayer was made in the said Writ Petition for action
being taken against the Respondent Nos.5 and 6 for
non-compliance with the provisions of Employees’
State Insurance Act, 1948 as also for not depositing
with the Provident Fund Authority, the amounts of
Provident Fund deducted in respect of the 37
employees including the petitioner. Copy of the said
Writ Petition (Ex.M-7)appears at page 60 of the
Documents filed on behalf of the first party/
Management alongwith the List dated 14.11.2014.
83.
It is further noteworthy that in the said Writ Petition
No.2651 of 2007, a Reply –Affidavit (Ex.M-9) was filed on
behalf of Mumbai Taxi Association (Respondent No. 6 in
the said Writ Petition), copy whereof appears at page 86 of
the Documents filed on behalf of the first party/
Management alongwith the List dated 14.11.2014.
Alongwith the said Reply-Affidavit, copies of Provident
Fund slips in respect of the concerned workmen were filed
which appear at pages 89 to 93 of the Documents filed on
behalf of the first party/Management alongwith the List
dated 14.11.2014. In the said Provident Fund slips, the name
of employer has been shown as Bombay Taxi Association.
Again, alongwith the said Reply-Affidavit, copy of E.S.I
Return in Form -6 has been filed which appears at page 95
of the Documents filed on behalf of the first party/
Management alongwith the List dated 14.11.2014. The said
E.S.I. Return was submitted by Mumbai Taxi Association
as the Employer.
84.
Again, another Writ Petition, namely, Criminal Writ
Petition No.54 of 2009 (Ex. M-11)was filed by the aforesaid
Deepak Tanaji Kamble. M/s. Chhagan Mitha & Co. was
impleaded as the Respondent No.5 while Mumbai Taxi
Association was impleaded as the Respondent No.6 in the
said Writ Petition Hindustan Petroleum Corporation Ltd.
was impleaded as the Respondent No.2 in the said Writ
Petition. The said Writ Petition was filed on behalf of the
37 employees as is evident from the averments made in
paragraph 2 of the said Writ Petition. In paragraph 1 of the
said Writ Petition, it was averred that “the Petitioner is
employee of Respondent No.5 …………and Respondent
No.6………. He is in service with Respondent No.5 Petrol
Pump since 1977 and now he is in service with Respondent
No.6”. In paragraph 2 of the said Writ Petition, it is averred
that “ the Petitioner submits that there are about 37
employees including the petitioner are working with
Respondent No.5 and now with Respondent No.6”. It is
further averred in paragraph 2 of the Writ Petition that “the
Petitioner submits that Respondent No.5 is M/s. Chhagan
Mitha & Company Petrol Pump with whom the Petitioner
and other 37 workmen were working on outlet of Hindustan
Petroleum. The Petitioner submits that Respondent No.6
is the present employer i.e. Mumbai Taxi Association Co-
operative Consumer Society Ltd., Mumbai which is out-let
of Hindustan Petroleum”.
85.
Prayer is made in the said Writ Petition No. 54 of 2009
for initiating action against the Respondent Nos. 5 and 6
by filing prosecution in the Court of Law for violating the
provisions of Employees’ State Insurance Act, 1948 as also
for not depositing the Contributions of Provident Fund
deducted from the Petitioner and other workmen. Copy of
the said Writ Petition (Ex.M-11)appears at page 107 of the
Documents filed on behalf of the first party/Management
alongwith the List dated 14.11.2014.
86.
The said Writ Petition No. 54 of 2009 was disposed
of by their Lordships of the Bombay High Court by the
order dated 22.1.2010 (Ex.M-11), copy whereof has been
filed at page 102 of the Documents filed on behalf of the
first party/Management alongwith the List dated 14.11.2014.
87.
It will thus be seen that in the aforesaid Writ Petitions
filed on behalf of the concerned workmen/concerned
persons in the present Reference, the Dealers were described
as the employers of the concerned workmen/concerned
persons in the present Reference, and not Hindustan
Petroleum Corporation Ltd. Prayers were made seeking
reliefs against the Dealers. Their Lordships of the Bombay
High Court passed order dated 22.1.2010 in the said Criminal
Writ Petition No.54 of 2009 disposing of the said Writ
Petition having regard to the grievance raised in the said
Writ Petition. Thus, in the judicial proceedings before the
Bombay High Court, the concerned workmen/concerned
persons in the present Reference maintained that they were
employees of the Dealers, and there was no claim that they
were employees of Hindustan Petroleum Corporation
Limited.
88.
Reference may be made to the decision in Hindoostan
Spinning and Weaving Mills case, 2008-I LLJ 43 (Bom)
(para 67), relied upon by Shri Lancy D’Souza, learned
counsel for the first party/Management. In the said case,
their Lordships of the Bombay High Court have opined
that the statements in pleadings are admissions against
the Party making them. Admissions in pleadings are judicial
admissions. They can be made foundation of rights.
Admission in the Written Statement in some other case is
an important piece of evidence.
(F) Besides above, there are various documents
pertaining to proceedings under the Minimum Wages
Act, 1948 which have been relied upon by the first
party/Management in support of its plea regarding
there being no relationship of employer and employee
between Hindustan Petroleum Corporation Limited
and the concerned workmen, while such relationship
being there between the Dealers and the concerned
workmen. An application under Section 20(2) of the
Minimum Wages Act, 1948 (Ex.M-17) was filed by
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[PART II—SEC. 3(ii)]
the Labour Enforcement Officer against M/s.
Suburban Service Station, copy whereof appears at
page 160 of the Documents filed on behalf of the
first party/Management alongwith the List of
Documents dated 14.11.2014. In paragraph 3 of the
said application, it is stated that the Opponent (M/s.
Suburban Service Station) “ is an employer as defined
under Section 2 (e ) of the Minimum Wages Act,
1948”. In paragraph 1 of the said application, it is,
inter-alia, stated “that the Opponent has been
engaged in Retailer of HPCL Petrol Pump (Re-filling
and Service) at Sion-Trombay Road, Mumbai by
engaging 9 workers in scheduled employment……...”
89.
From the averments made in the said application, it
further appears that the Labour Enforcement Officer visited
the site and prepared an Inspection Note as also the List of
workmen. At the time of inspection, 9 workmen were found
at the site as is recorded in the Inspection Note (Ex.M-17),
copy whereof appears at page 163 of the Documents filed
on behalf of the first party/Management alongwith the List
of Documents dated 14.11.2014. The said Inspection Note
in Item 1 mentions the name of establishment as “M/s.
Suburban Service Station”. In Item 2 dealing with the name
of employer, the same name i.e. M/s. Suburban Service
Station has been mentioned as the employer. In Item 4(a)
dealing with the nature of the work of the establishment, it
is mentioned “Retailer of HPCL Petrol Pump (Ref and
Service) at Chembur”. List of 9 workmen (Ex.M-17) appears
at page 166 of the Documents filed on behalf of the first
party/Management alongwith the List of Documents dated
14.11.2014. The said 9 workmen are included in the
concerned workmen/concerned persons in the present
Reference involved in the present Reference.
90.
In the said proceedings under the Minimum Wages
Act, 1948, M/s. Suburban Service Station filed its Reply
(Ex.M-19), copy whereof appears at page 171 of the
Documents filed on behalf of the first party/Management
alongwith the List of Documents dated 14.11.2014. In
paragraph 2 of the said Reply, M/s. Suburban Service
Station has stated that “as per condition 16 of the said
letter Opponent has to employ at their own cost persons
for all the jobs required to be carried out………….and the
persons so appointed shall not be construed under any
circumstances to be working under the Corporation (HPCL).
Section 2( e ) defines employer and Hindustan Petroleum
Corporation Limited have not employed any of the workers
at Petrol Pump. As per requirement Opponents have
appointed required staff including casual workers The
Opponents have applied on 12.10.2012 for Factory License
with Director of Industrial Health and Safety, Maharashtra
which is in process. There is no employer- contractor
relationship between Opponent and Hindustan Petroleum
Corporation Limited”.
91.
Thus, the above documents pertaining to the
proceedings under the Minimum Wages Act, 1948 show
that the Dealer M/s. Suburban Service Station was treated
to be employer of the concerned workmen/concerned
persons in the present Reference, and the said position
was accepted by M/s. Suburban Service Station. M/s.
Suburban Service Station denied that any of the workers at
Petrol Pump was employed by Hindustan Petroleum
Corporation.
92.
It is further relevant to note that in the proceedings
under the Minimum Wages Act, 1948, M/s. Suburban
Service Station filed Additional Reply (Ex.M-20) alongwith
copies of the wage register which appear at pages 179 to
196 of the Documents filed on behalf of the first party/
Management alongwith the List of Documents dated
14.11.2014. A perusal of the wage register shows that the
name of establishment/employer has been mentioned as
M/s. Suburban Service Station. These documents again
show that M/s. Suburban Service Station was the employer
of the concerned workmen.
(G ) In Reference No.CGIT-18 of 2007 wherein similar
controversy is involved, Mumbai Taxi Association
(i.e. “Society”) has been impleaded as a party, and it
has filed its Written Statement (Ex.M-6), copy
whereof appears at page 54 of the Documents filed
on behalf of the first party/Management alongwith
the List of Documents dated 14.11.2014. Certain
paragraphs of the said Written Statement have been
referred to by Shri Lancy D’Souza, learned counsel
for the first party/Management in support of his
submissions. Sub-paras (d), (f), (g), (h), (i) and (j) of
paragraph 3 of the said Written Statement which have
been referred to by the learned counsel for the first
party/Management are reproduced below:
“(d ) The Society submits that soon after the
aforesaid petrol pump was given by H.P.C.L. on
conducting basis; it retained the employees who
were working therein without any continuity of
service. The Society was neither the successor
in interest of Chhagan Mitha nor did it acquire
the ownership or rights of the said petrol pump
from its erstwhile owner. The assignment of
conducting of the said petrol pump was given by
H.P.C.L. for a specified period. The Society, in
order to ensure that its members as well as the
customers having patronage to the said petrol
pump are given prompt, efficient and proper
service, delegated some of its employees from
other petrol pump to the Chembur Petrol Pump.
This was to provide better service to the customers
as well as improve the sales, which otherwise was
very much low and working was uneconomical.
It was largely with the efforts of the delegated
employees, that the sales improved”.
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1025
“(f) The Society, herein that it was allotted the
petrol pump situated at Chembur by Hindustan
Petroleum Corporation Ltd. Admittedly, the said
petrol pump, prior to being allotted, was functional.
The Society on taking over the operation and
functioning of the said petrol pump, the same of
which was for a specific period, preferred to give
employment to the existing employees. Since the
Society was already allotted a code number by
the E.S.I. Corporation and the Provident Fund
Authority, the contributions in respect of the
workmen were deposited in the code number
allotted to the Society. The records thus reveal
that the employees working with the Society were
not in permanent capacity by that being already
employed by the erstwhile Employer was given
employment by the Society. The Society denies
that it had 37 workmen working in the said petrol
pump under its employment.”
“(g) The Society submits that the workmen
employed in working under the society for a
specified period in the said petrol pump were
provided with all the statutory benefits including
Bonus”.
“(h) The Society submits that the conducting of
the said petrol pump was for the Corporation. The
Society was neither the owner of the premises
nor the petrol pump. So much so, the products
sold in the said petrol pump were neither
manufactured nor owned by the Society. They
were infact, were owned by the Corporation”.
“(i) The Society submits that it is not aware as to
how long the workmen were parties in the above
reference were working in the said pump. It is,
however true that the society engaged the services
of their workmen who were already working in the
said pump for a period till it was permitted by the
Corporation to operate the pump. The Society
submits that the names of 37 persons together
with the details of service record are not true and
correct. The Society undertakes to submit the list
of the workmen who were in its employment during
the period it was conducting the operations of
the said pump”.
“(j) The Society submits that it is true and correct
that the pump is popularly known as Chhagan
Mitha Petrol Pump. The Society is not aware as
to who were the owners and or the persons who
were running the pump prior to the same being
allotted by the Corporation to the Society. The
Society denies that it had reduced the previous
wages of the workmen as alleged. It is not aware
of the wages as earlier earned by the workmen.
However subsequent of being allotted, the Society
had been paid without any deduction and
reduction”.
93.
In sub-para (f) of paragraph 3, quoted above,
Mumbai Taxi Association has stated that “the Society on
taking over the Operation and Functioning of the said Petrol
Pump, the same of which was for a specific period, preferred
to give employment to the existing employees”. Again, in
sub-para (i) of paragraph 3 of the Written Statement,
Mumbai Taxi Association has stated that “ It is however
true that the Society engaged the services of their workmen
who were already working in the said Pump for a period till
it was permitted by the Corporation to operate the Pump”.
It is thus evident that Mumbai Taxi Association admitted
that it took in its employment workmen who were already
working in the Petrol Pump in question. There is thus
admission by Mumbai Taxi Association that the concerned
workmen/concerned persons in the present Reference were
in its employment.
94.
The averments made in sub-para (f) of paragraph 3
of the Written Statement that “ the Society denies that it
had 37 workmen working in the said Petrol Pump under its
employment”, is to be read in the context of the entire
averments made in sub-para (f) wherein, as noted above,
Mumbai Taxi Association has stated that “the Society on
taking over the operation and functioning of the said Petrol
Pump, the same of which was for a specific period, preferred
to give employment to the existing employees”. The
averment made in sub-para (f) of paragraph 3 of the Written
Statement that “the Society denies that it had 37 workmen
working in the said petrol pump under its employment”,
refers to the denial in respect of the number of workmen
working in the petrol pump and not in regard to the factum
of the workmen being in the employment of Mumbai Taxi
Association. This is further evident from the averments
made in sub-para (i) of paragraph 3 of the Written Statement
wherein it has been averred that “the Society submits that
the names of 37 persons together with the details of service
record are not true and correct”.
(H) As noted earlier, from 1.1.1977, till 4.5.2005, M/s.
Chhagan Mitha & Co. was the Dealer. From 4.5.2005
till May 2010, Mumbai Taxi Association was ad-hoc
Dealer. From May 2010 till April 2012, M/s. Kapadia
Bros. was ad-hoc Dealer. From 1.5.2012 till 30.9.2014,
M/s. Suburban Service Station was ad-hoc Dealer.
Thereafter w.e.f.1.10.2014, M/s. Renuka Enterprises
has been appointed as Service provider or
Contractor, and not a dealer. Question arises as to
what was the status of various Dealers vis-a-vis
Hindustan Petroleum Corporation Ltd. Whether
Dealer appointed under the Dealership Agreement
and Contractor appointed under the Contract Labour
(Regulation and Abolition) Act, 1970 are different,or
there is no difference between the two. In this regard,
it is noteworthy that the word “Dealer” has not been
defined in the Industrial Disputes Act, 1947 or in the
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[PART II—SEC. 3(ii)]
Contract Labour (Regulation and Abolition) Act,
1970. The word ‘contractor’ has been defined in
clause ( c ) of sub-section (1) of Section 2 of the
Contract Labour (Regulation an Abolition) Act, 1970
as under:
“contractor”, in relation to an establishment,
means a person who undertakes to produce a
given result for the establishment, other than a
mere supply of goods or articles of manufacture
to such establishment, through contract labour
or who supplies contract labour for any work of
the establishment and includes a sub-contractor”.
Thus “Contractor” in relation to an establishment,
means a person
(i) Who undertakes to produce a given result for
the establishment, other than a mere supply of
goods or articles of manufacturer to such
establishment, through contract labour
Or
(ii) Who supplies contract labour for any work of
the establishment
and includes a sub-contractor.
95.
As the word “Dealer” is not defined, as noted above,
in the Industrial Disputes Act, 1947 or in the Contract
Labour (Regulation and Abolition) Act, 1970, it will be
relevant to refer to the dictionary meaning of the word
‘Dealer”. In Concise Oxford English Dictionary, 11th
Edition, the meaning of the word ‘Dealer’ has been given
as under:
“1. A person who buys and sells goods - a person
who buys and sells shares or other financial assets
as a principal (rather than as a broker or agent).
2. A player who deals cards in a card game”.
96.
Thus, one of the meanings of the word “Dealer” is
“a person who buys and sells goods as a principal (rather
than as a Broker or Agent)”.
97.
Keeping in view the meanings of the word
“Contractor” and “Dealer”, let us now refer to various
Clauses of the Dealership Agreement dated 1.1.1977
(Ex.M-2) between Hindustan Petroleum Corporation Ltd
(i.e. “the Corporation”) and M/s. Chhagan Mitha & Co.
(i.e. the “Dealer”). It may be mentioned that the said
Agreement was executed in the Standard Dealership
Agreement of Hindustan Petroleum Corporation Ltd. It
may further be mentioned that in respect of subsequent
ad-hoc Dealers also, the terms and conditions as contained
in the Standard Dealership Agreement were made applicable
as is evident from the Documents filed on the record on
behalf of the first party/Management alongwith the Reply
to the aforementioned Interim Relief Application.
98.
The Agreement dated 1.1.1977, inter-alia, recites
that “And Whereas the Corporation is the Owner/Lessee
of a plot of land………….and of the structures
thereon…………and has installed and/or is about to instal
at and under the said premises the apparatus and
equipment…………(hereinafter called “ the outfit”)”. The
said Agreement, inter-alia, further recites that” And
Whereas at the request of the dealer the Corporation has
agreed to appoint the dealer as its dealer for the retail sale
or supply at the said premises of certain petroleum products
on the terms and conditions hereinafter contained”.
Clause 1 of the said Agreement states that “ the Corporation
hereby appoints the dealer as its dealer for the retail sale or
supply at the said premises of Petrol/Diesel/Motor Oils/
Greases and such other products as may hereafter be
specified by the Corporation from time to time (All of which
are hereinafter collectively referred to as “the Products”)
in accordance with the terms and conditions hereunder
appearing”.
99.
Clause 2 of the Agreement states that “the
Corporation doth hereby grant to the dealer leave and
licence and permission for the duration of this agreement
to enter on the said premises and to use the premises and
outfit for the sole and exclusive purpose of storing, selling
and handling the products purchased by the dealer from
the Corporation, save as aforesaid, the dealer shall have
no right, title or interest in the said premises or outfit and
shall not be entitled to claim the right of lessee, sub-lessee,
tenant or any other interest in the premises or outfit, it
being specifically agreed and declared in particular that
the dealer shall not be deemed to be in exclusive possession
of the premises.”
100.
From the above Clauses of the Agreement, it is
evident that while the premises and outfit belonged to
Hindustan Petroleum Corporation Ltd, the said Corporation
granted leave and licence and permission to the dealer to
enter on the said premises and to use the said premises
and outfit for the sole and exclusive purpose of storing,
selling and handling the products purchased by the Dealer
from the Corporation. Thus, the products were to be
purchased by the Dealer from the Corporation.
101.
Clause 5 of the said Agreement, inter-alia, provides
that “for the use of the said premises including the
construction thereon and outfit, the dealer shall pay to the
Corporation a monthly licence fee of Rs.400 payable in
advance on the first day of each calendar month, free of all
deductions…….” Hence, the Dealer was required to pay
licence fee to the Corporation for the use of the said
premises and outfit as mentioned above.
102.
Clause 4 of the said Agreement provides that “the
Licence and permission granted as aforesaid for the use of
the said premises and outfit shall terminate immediately on
the termination of this agreement or on any breach of any
of the terms thereof.”
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103.
Clause 6 of the said Agreement, inter-alia, states
that “the dealer will instal and maintain at his own expense
at the said site the equipment described in the III Schedule
hereto and such other equipment as may be considered
necessary by the Corporation from time to time and
intimated to the Dealer. The Dealer shall purchase the said
equipment only from the manufacturer or manufacturers
approved by the Corporation”. Thus, various equipment
were to be purchased, installed and maintained by the Dealer
at the said site.
104.
Clause 8 of the said Agreement, inter-alia provides
that “the Corporation will from time to time supply to the
Dealer such quantities of the products as the Corporation
may consider expedient to meet the current day demands,
and the Dealer shall maintain such stocks thereof as the
Corporation may consider adequate or necessary from time
to time……”
105.
Clause 9 of the said Agreement, inter-alia, provides
that “the Dealer undertakes to further the sales of the
products supplied by the Corporation. It is specifically
agreed and declared that it is a basic condition of the grant
of the Dealership rights by the Corporation to the Dealer
herein that the Dealer hereby agrees, undertakes and
covenants to uplift and pay for the following minimum
quantity of the products supplied by the Corporation per
year……”
106.
Clause 10 of the said Agreement, inter-alia, provides
that “the Corporation will deliver its said products to the
Dealer at the rates therefor ruling on the date of delivery.
The Corporation will make delivery of products to the Dealer
against payment in Cash or by Demand Draft……….”
107.
It will thus be noticed that the Dealer was required to
uplift and pay for the products supplied by the Corporation.
Further, as noted above, the Dealer was required to pay
licence fee for the use of the premises and outfit belonging
to the Corporation. The Dealer was also required to
purchase, instal and maintain various equipment at the
site. These provisions of the Agreement clearly show that
the “Dealer” under the Dealership Agreement is different
from the “Contractor” under the Contract Labour
(Regulation and Abolition) Act, 1970 as such requirements
are not to be fulfilled by a Contractor under the said Act.
108.
Clause 13 of the said Agreement, inter-alia, states
that “the Corporation has installed at its own expense at
and under the premises the outfit described in the Second
Schedule hereunder written. The Corporation may instal
at the premises such other apparatus and equipment from
time to time as it may deem necessary for the efficient
working of the Retail Outlet and all such other apparatus
and equipment shall be deemed to be and form part of the
outfit………….”
109.
Clause 14 of the said Agreement provides that “the
Corporation will maintain the outfit in proper working
condition at its own expense.”
110.
Clause 15 of the said Agreement, inter-alia, provides
that “the Dealer will take such care of the outfit and of the
building and structures on the premises as also of the
receptacles or containers in which the Corporation’s
products will be supplied to him as a business man of
ordinary prudence would take of like premises, outfit,
receptacles and containers belonging to himself………..”
111.
Clause 16 of the said Agreement, inter-alia, lays down
that “ No repairs to the outfit shall be done by the Dealer
unless previously authorized by the Corporation in
writing……………..”
112.
Clause 18 of the said Agreement, inter-alia, provides
that “the Dealer shall not remove the outfit or any part
thereof from its position on the said premises nor deliver
possession thereof to any other person, Firm or Company
other than the Corporation……”
113.
Clause 19 of the said Agreement provides that “the
said premises and outfit shall be and remain the absolute
property of the Corporation and the Corporation may at
any time enter upon the said premises to inspect, test,
repair, add to reduce and/or remove the outfit of the
buildings and structures on the premises or any part
thereof, affix the Corporation’s name plates thereto and
lock and/or seal the whole or any part thereof against
interference by the Dealer or third parties”.
114.
Clause 21 of the said Agreement provides that “the
Dealer will at all times keep and maintain clean intact and
legible on the said premises and outfit, all trademarks and
other signs and marks of identification of the Corporation
placed thereon by the Corporation or forming part thereof.”
115.
Clause 22 of the said Agreement, inter-alia, lays
down that “the Dealer shall not add to or alter the premises
layout or outfit in any manner whatsoever……………..”.
The above Clauses of the Agreement show that the
premises and outfit belonged to the Corporation, and the
Dealer was required to take reasonable care thereof as a
prudent business man. The Corporation was also
authorized to take appropriate steps to safeguard its interest
in respect of the premises and the outfit.
116.
Clause 27 of the said Agreement provides that “The
Dealer shall not during the currency of this agreement sell
or be in any way be concerned in selling the petroleum
products of any other Oil Company or Producer through
the outfit or at the premises without the previous consent
in writing of the Corporation”.
117.
Clause 28 of the said Agreement lays down that “The
Dealer shall not purchase from any person, Firm or Company
other than the Corporation Petroleum or allied products
used, stocked, or sold at the said premises, without the
previous consent in writing of the Corporation”.
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[PART II—SEC. 3(ii)]
118.
Clause 29 of the said Agreement provides that
“The Dealer shall not make supplies of petroleum products
of the Corporation to any other person, Firm or Company
whose supplies have been stopped by the Corporation.”
119.
Clause 30 of the said Agreement provides that “the
Dealer shall not make supplies of petroleum products of
the Corporation to any Dealer/Agent/Distributor
appointed by any of the other Oil Companies”.
The above Clauses are evidently incorporated as
the Dealer was granted licence to use the premises and
outfit belonging to Hindustan Petroleum Corporation Ltd.
for the sale of products of the said Corporation, and it
could not be left open to the Dealer to deal in the products
of other Oil Companies.
120.
Clause 31 of the said Agreement, inter-alia, provides
that “The Dealer shall not sell the Corporation’s products
at higher rates or prices than those which the Corporation
or the Competent Central /State Government shall time to
time prescribe……….”.
The above Clause is evidently incorporated keeping
in view the nature of products which were to be sold by
the Dealer.
121.
Clause 35 of the said Agreement, inter-alia, provides
that “the Dealer shall not do any act whereby the
Corporation’s rights in its trademarks or any of them be
jeopardized…………”.
122.
Clause 36 of the said Agreement provides that “The
Dealer will provide and maintain the standard of courtesy
and service for the public in all respects as established by
the Corporation from time to time………”
123.
Clause 37 of the said Agreement lays down that “The
Corporation will be entitled at all times to enter into and
inspect the Management of the Retail Outlet by the said
Dealer in all respects and the Dealer shall be bound to
render all assistance and give all information to the
Corporation and its duly authorized Representatives in that
behalf”.
124.
Clause 38 of the said Agreement lays down that “The
Dealer shall keep and maintain such records of sales etc. as
may be prescribed by the Corporation and submit the same
for inspection on demand by any Officer of the
Corporation.”
125.
Clause 39 of the said Agreement provides that “The
Dealer shall not carry on from the said premises any
business other than that of the sale of the products supplied
by the Corporation save and except and only to the extent,
if any, to which the Dealer may be permitted in writing by
the Corporation at its sole discretion to carry on such other
business at or from the said premises.”
126.
Clause 40 of the said Agreement provides that “the
Corporation will obtain in its name a storage licence from
the Controller of Explosives for the storage of petroleum
products at the said premises. The dealer shall faithfully
observe and perform all the terms and conditions of such
licence(s).”
127.
Clause 42 of the said Agreement, inter-alia provides
that “the Dealer undertakes faithfully and promptly to carry
out, observe and perform all directions or rules given or
made from time to time by the Corporation for the proper
carrying on of the Dealership of the Corporation……….”
128.
Clause 43 of the said Agreement, provides that “ the
Dealer shall indemnify and save harmless the Corporation
from all losses, damages, claims, suits or actions which
may arise out of or result from any injury to any person or
property or any violation of any statutory enactments,
rules or regulations or other written orders or other laws or
caused by or resulting from non-observance by the Dealer
of the provisions of this agreement”.
The above Clauses have evidently been incorporated
in the Agreement in order to safeguard the interest of the
Corporation which has granted dealership to the Dealer.
129.
Clause 46 of the said Agreement provides that “The
Dealer shall be solely responsible for and shall himself
bear all expenses of and in connection with the Dealership
Business, including Administration, Office, Insurance
Premia, Telephone, Licence or other fees, rates, taxes and
all other charges and outgoing of every kind connected
with the said business and shall pay the same promptly
and without fail. The Dealer shall also be solely responsible
for any breach or contravention by himself, his servants
or Agents of any laws, rules, regulations or byelaws passed
or made by the Central and /or State Government and/or
Municipal, local and/or other authorities as may be
applicable from time to time to the business including,
without prejudice to the generality of the foregoing, the
concerned authorities respectively appointed under the
Petroleum Act, Payment of Wages Act, Shops and
Establishments Act, Factories Act, and the Workmen’s
Compensation Act, or any statutory modifications or re-
enactments of the said statutes or rules and the Corporation
shall not be responsible in any manner for any liability
arising out of non-compliance by the Dealer with the same.
The Dealer shall at all times indemnify and keep indemnified
the Corporation against all actions, proceedings, claims
and demands made against it by the Central Government
and/or State Government and/or Municipal, Local and/or
other Authorities and/or by any Customer of the product
and/or by any other third party as a result of or in
consequence of any act or omission of whatsoever nature
of the Dealer, his servants or Agents, including, without
prejudice to the generality of the foregoing, any accident
or loss or damage arising out of the storage, handling and/
or sale of the products or attributable to the use of the said
premises for the aforesaid purposes whether or not such
act or omission or accident or loss or damage was due to
any negligence, want of care or skill or any misconduct of
the Dealer, his servants or agents.”
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130.
Clause 47 of the said Agreement provides that “the
Dealer shall at his own cost maintain an adequate and
competent staff to attend to the work of filling the
Corporation’s products into the Customers’ vehicles and
for providing certain free service to the Customers in
accordance with the general instructions given or laid down
by the Corporation from time to time.”
From the above Clauses, it is evident that the Dealer
is solely responsible for all expenses of and in connection
with the Dealership Business. The Dealer has to maintain
his own staff for doing the Dealership Business. The Dealer
is solely responsible for any breach or contravention of
various laws by himself, his servants or Agents. The Dealer
has to keep indemnified the Corporation against all actions,
proceedings etc. on account of any act or omission of
whatsoever nature of the Dealer, his servants or Agents.
131.
From an analysis of the Recitals and various
Clauses of the said Agreement dated 1.1.1977, the following
position emerges:
(i)
The premises and the outfit belong to Hindustan
Petroleum Corporation Ltd.
(ii)
The Dealer was appointed for the retail sale or
supply at the said premises of Petrol/Diesel/
Motor Oils/Greases etc. in accordance with the
terms and conditions contained in the said
Agreement.
(iii)
The Dealer was granted leave and licence and
permission for the duration of the agreement to
enter on the said premises and to use the said
premises and outfit for the sole and exclusive
purpose of storing, selling and handling the
products.
(iv)
The products were to be purchased by the
Dealer from the Corporation.
(v)
For the use of the said premises and outfit, the
Dealer was required to pay monthly licence fee
of Rs.400/-
(vi)
The Dealer was to instal and maintain at his own
expense at the said site the equipment necessary
for doing the business.
(vii)
The Dealer was to maintain its own staff for doing
the Dealership business and the Dealer was
solely responsible for all the expenses etc in
connection with the Dealership business.
(viii)
The Dealer was solely responsible for act or
omission on the part of the Dealer, his servants
or Agents.
(ix)
The Dealer was solely responsible for any breach
or contravention of statutory requirements
under various laws.
(x)
Various rights were given to the Corporation
under the Agreement including right of
inspection etc. so that the Corporation may
ensure that the premises and outfit belonging
to the Corporation were not adversely affected
by any act or omission on the part of the Dealer
and also to ensure that the terms and conditions
laid down in the Agreement were complied with
by the Dealer.
(xi)
Various terms and conditions were laid down in
the agreement which were to be complied with
by the Dealer so as to ensure that the Dealership
undertaken by the Dealer was properly run and
the interest of the Corporation is not adversely
affected.
(xii)
Subject to complying with various terms and
conditions laid down in the Agreement and
keeping within the limits laid down in the
Agreement, the Dealer had full discretion to carry
on the business of the retail sale or supply of
Petrol etc. at the petrol pump in question.
132.
From the above, it is evident that the Dealership
Agreement dated 1.1.1977 entered into between Hindustan
Petroleum Corporation Ltd and M/s. Chhagan Mitha & Co.
was an agreement on principal to principal basis where the
Dealer would buy the products of Hindustan Petroleum
Corporation Ltd and sell these products in accordance
with the terms and conditions laid down in the Agreement.
The said conclusion is supported by the Dictionary
meaning of the word “Dealer”, as noted earlier.
133.
As regards the averment made in paragraph 5 of the
Statement of Claim that “the Petrol Pump is owned and
managed and controlled by Hindustan Petroleum
Corporation Ltd”., I am of the opinion that an analysis of
various Clauses of the Agreement shows that the premises
and the outfit belonged to Hindustan Petroleum
Corporation Limited, and in order to safeguard its interest
therein, various rights were given to the Corporation under
the said Agreement. Further, as the Dealer was to do the
business of the retail sale or supply of the products of
Hindustan Petroleum Corporation Ltd in accordance with
the terms and conditions of the Agreement, various rights
were given to the Corporation under the Agreement in order
to ensure compliance of the terms and conditions of the
said Agreement. However, within the limits laid down in
the Agreement and in accordance with the terms and
conditions laid down in the Agreement, the Dealer was free
to do the business of retail sale or supply of petrol etc. at
the petrol pump in question with its own staff, and the
Dealer was solely responsible for act or omission on the
part of the Dealer or his servants or agents. Thus, even
though the premises and the outfit belonged to Hindustan
Petroleum Corporation Ltd, the Corporation was not having
control over the business of the Dealer conducted in the
petrol pump in question and the employees employed by
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[PART II—SEC. 3(ii)]
the Dealer for doing the said business. Therefore, from
the terms and conditions as contained in the agreement, it
does not follow that the employees employed by the Dealer
were the employees of the Corporation.
134.
(I) As noted earlier, the Standard Dealership
Agreement of Hindustan Petroleum Corporation Ltd
was also made part of the agreement entered into
with subsequent ad-hoc Dealers also. Reference in
this regard may be made to the letter dated 4.5.2005
(Ex.M-4) issued by Hindustan Petroleum Corporation
Ltd to Mumbai Taxi Association appointing the latter
as ad-hoc Dealer. Copy of the said letter dated
4.5.2005 appears at page 18 of the Documents filed
on behalf of the first party/Management alongwith
the List of Documents dated 14.11.2014. It was, inter-
alia, stated in Clause 13 of the said letter that “in the
operation of the said Outlet, the terms and conditions
as contained in our Standard Dealership Agreement
shall apply to the extent they are not inconsistent
with your said appointment on a temporary basis…”.
135.
Clause 3 of the said letter provided that “Accordingly,
we hereby appoint you as a temporary Dealer to operate
the said Outlet solely on temporary basis subject to
termination by either party giving to the other 15 days
written notice in that behalf”.
136.
Clause 5 of the said letter, inter-alia, stated that “We
hereby give you the necessary leave and licence and
permission for the duration of this temporary arrangement
to enter on the premises including the
structure………………We also hereby give you the
necessary licence to use the apparatus and equipment
installed and/or is about to be installed at the said
premises…………………”
137.
Clause 6 of the said letter provided that “the
Corporation doth hereby grant to you the leave and licence
and permission for the duration of this arrangement to enter
on the said premises and to use the premises and outfit for
the sole and exclusive purpose of storing, selling and
handling the products purchased by you from the
Corporation. Save as aforesaid you shall have no right,
title or interest in the said premises or outfit. It is being
specifically agreed and declared in particular that you shall
not be deemed to be in exclusive possession of the
premises”.
138.
Clause 9 of the said letter provided that “You shall
pay to the Corporation Service Station Licence fee and
such charges, which may be applicable under the
Corporation’s rules by ways of compensation for use of
occupation of the site, structures and outfit”.
139.
Clause 7 of the said letter provided that “The said
arrangement shall remain in force for a period of one year
commencing from 4.5.2005 appointment of a regular dealer
or till terminated earlier by the Corporation as hereinafter
stated. If felt necessary, the said arrangement can be
renewed at the sole discretion of the Corporation for a
period of another one year.” The Agreement as contained
in the said letter dated 4.5.2005 was renewed from time to
time as is evident from the Extension letters (Ex M-5)
appearing at pages 21, 22, 28 and 29 of the Documents filed
on behalf of the first Party/Management alongwith the List
of Documents dated 14.11.2014.
140.
The Agreement with M/s. Mumbai Taxi Association
came to an end in May 2010. Thereafter, by the letter dated
10.5.2010 (Ex.M-13), M/s. Kapadia Bros was appointed as
ad-hoc Dealer. Copy of the letter dated 10.5.2010 (Ex.M-
13), appears at page 142 of the Documents filed on behalf
of the first party/Management alongwith the List of
Documents dated 14.11.2014.
141.
Clause 13 of the said letter dated 10.5.2010, inter-alia,
provided that “in the operation of the said Outlet, the terms
and conditions as contained in our Standard Dealership
Agreement shall apply to the extent they are not
inconsistent with your said appointment on a temporary
basis……”.
142.
Clause 17 of the said letter dated 10.5.2010 provided
that “you shall at your own cost employ persons, for all
the jobs required to be carried out by you for operation
and maintenance of the Retail Outlet during the period of
the arrangement and the persons so appointed shall not be
construed under any circumstances to be working under
the Corporation”.
143.
Clause 15 of the said letter dated 10.5.2010, inter-alia,
provided that “ you shall comply with the provisions of
the following Acts and all amendments/ modifications
thereto or re-enactment thereof or any other law relating
thereto and Rules made thereunder from time to time and
comply with all provisions therein and/or make all the
payments specified therein………………..”.
144
Mention in the said Clause was made to 11 Statutes
including Payment of Wages Act, 1936, Workmen’s
Compensation Act, 1923, Industrial Disputes Act, 1947 etc.
145.
Clause 12 of the said letter dated 10.5.2010 provided
that “the statutory licences as are normally required for
running the Dealership shall be in your name and you shall
be responsible for all aspects of running the retail outlet”.
146.
Ad-hoc Dealership of M/s. Kapadia Bros continued
till April 2012. Thereafter, by the letter dated 30.4.2012 (Ex.
M-14), M/s. Suburban Service Station was appointed as
ad-hoc Dealer. Copy of the said letter dated 30.4.2012 (Ex.M-
14)appears at page 149 of the Documents filed on behalf of
the first party/Management alongwith the List of
Documents dated 14.11.2014.
147.
Clause 12 of the said letter dated 30.4.2012, inter-alia,
provided that “ in the operation of the said Outlet, the
terms and conditions as contained in our Standard
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1031
Dealership Agreement shall apply to the extent they are
not inconsistent with your said appointment on a
temporary basis….”
148.
Clause 4 of the said letter dated 30.4.2012, inter-alia,
provided that “We hereby give you the necessary leave
and licence and permission for the duration of this
temporary arrangement to enter on the premises including
the structure which belongs to the Corporation……”
(hereinafter referred to “premises”). We also hereby give
you the necessary license to use the apparatus and
equipment installed and/or about to be installed at the said
premises. The apparatus and equipment are described in
the annexed Schedule as Schedule II (hereinafter called
“outfit)”.
149.
Clause 5 of the said letter dated 30.4.2012, inter-alia,
provided that “the Corporation doth hereby grant to you
the leave and licence and permission for the duration of
this arrangement to enter on the said premises and to use
the premises and outfit for the sole and exclusive purpose
of storing, selling and handling the products purchased
by you from the Corporation….”
150.
Clause 8 of the said letter dated 30.4.2012 provided
that “you shall pay to the Corporation Service Station
Licence fee and such charges, which may be applicable
under the Corporation’s rules by ways of compensation
for use and occupation of the site, structures and outfit”.
151.
Clause 11 of the said letter dated 30.4.2012 provided
that “the statutory licences as are normally required for
running the Dealership shall be in your name and you shall
be responsible for all aspects for running the retail outlet”.
152.
Clause 16 of the said letter dated 30.4.2012 provided
that “you shall at your own cost employ persons, for all
the jobs required to be carried out by you for operation
and maintenance of the Retail Outlet during the period of
the arrangement and the persons so appointed shall not be
construed under any circumstances to be working under
the Corporation”.
153.
Clause 17 of the said letter dated 30.4.2012, inter-alia,
provided that “all payments shall be made by you to the
Labour employed by you in accordance with the various
rules and regulations stated above…………..”.
154.
Clause 6 of the said letter dated 30.4.2012 provided
that “ the said arrangement shall remain in force for a period
of one year commencing from 1.5.2012, till appointment of
a regular dealer or till terminated earlier by the Corporation
as hereinafter stated. If felt necessary, this said arrangement
can be renewed at the sole discretion of the Corporation
for a period of another one year.”
155.
Clause 7 of the said letter dated 30.4.2012, inter-alia,
provided that “the Corporation shall always be at liberty to
terminate this arrangement and your licence hereinabove
granted at any time by giving to you 15 days notice, without
assigning any reason and without any liability to pay any
compensation to you…………..”.
156.
Agreement as contained in the letter dated 30.4.2012
appointing M/s. Suburban Service Station as ad-hoc Dealer
for the petrol pump in question was renewed from time to
time as is evident from the Extension letters (Ex.M-15)
appearing at pages 154, 155, 156, 157 and 158 of the
Documents filed on behalf of the first party/Management
alongwith the List of Documents dated 14.11.2014.
157.
Letter dated 30.7.2014, appearing at page 158 of the
Documents filed on behalf of the first party/Management
alongwith the List of Documents dated 14.11.2014. extended
the ad-hoc Dealership of M/s. Suburban Service Station
till 30.9.2014. The said letter, inter-alia, stated that” hence
we wish to inform you that you have to continue the ad-
hoc operations on temporary basis till 30.9.2014.” It is,
inter-alia, also stated in the said letter that “please note
that the terms and conditions as mentioned in the above
referred letter dated 30.4.2012 will remain unchanged.”
158.
By the letter dated 1.9.2014, (Ex.M-16), appearing at
page 159 of the Documents filed on behalf of the first party/
Management alongwith the List of Documents dated
14.11.2014, the ad-hoc Dealership of M/s. Suburban Service
Station was terminated with effect from 30.9.2014.
159.
It will thus be noticed that the Agreements entered
into with various ad-hoc Dealers subsequent to the
termination of the Dealership Agreement with M/s.
Chhagan Mitha & Co., contained similar terms and
conditions as were there in the Dealership Agreement with
M/s. Chhagan Mitha & Co. In the Agreements with ad-hoc
Dealers, it was clearly provided that ad-hoc Dealers will
employ persons at their own cost for all the jobs in relation
to the running of the Retail Outlet and the persons so
appointed would not be construed under any
circumstances to be working under the Corporation. Hence
in view of the discussion in respect of M/s. Chhagan Mitha
& Co. the Dealership Agreements with subsequent ad-hoc
Dealers were also on principal to principal basis. In the
circumstances, the averment made in paragraph 5 of the
Statement of Claim that “the HPCL Company appointed
agents on their behalf to run the business for them”, cannot,
in my view, be accepted.
(J) From an analysis of the Dealership Agreement
between Hindustan Petroleum Corporation Ltd and
M/s. Chhagan Mitha & Co. and also Dealership
Agreements with subsequent ad-hoc Dealers, it is
evident that M/s. Chhagan Mitha & Co. and the
subsequent ad-hoc Dealers were doing the business
as Dealers in their own rights. For their business,
they employed the concerned workmen as their own
employees. Neither M/s. Chhagan Mitha & Co. nor
any of the subsequent ad-hoc Dealers was covered
under the definition of “Contractor” as contained in
Clause (c ) of sub-section (1) of Section 2 of the
Contract Labour (Regulation and Abolition) Act,
1970. In this regard, it is pertinent to refer to the
Reply (Ex.M-18) filed on behalf of Hindustan
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THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Petroleum Corporation Ltd in the proceedings under
the Minimum Wages Act, 1948 initiated against M/s.
Suburban Service Station as mentioned earlier. Copy
of the said Reply appears at page 167 of the
Documents filed on behalf of the first party/
Management alongwith the List of Documents dated
14.11.2014. In paragraph 11 of the said Reply, it is
stated on behalf of Hindustan Petroleum Corporation
Ltd that “It is submitted that the Retail Outlet Dealer
so appointed through a valid dealership agreement
cannot be termed as ‘Contractor’ as defined in
Contract Labour (Regulation and Abolition) Act, 1970
and therefore, the Provisions of Contract Labour
(Regulation and Abolition) Act, 1970 are not
applicable in respect of the persons so engaged by
the dealer i.e. M/s. Suburban Service Station in the
instant matter and said persons cannot be termed as
Contract Labourers”.
160.
As regards M/s. Renuka Enterprises, it has been
noted earlier that M/s. Renuka Enterprises has been
appointed as service provider or contractor. As pointed
out earlier, on 15.1.2015, documents have been filed on
behalf of the first party/Management alongwith the List of
Documents dated 13.1.2015. One of the said Documents is
Certification of Registration dated 28.10.2014 (Ex.M-24)
granted in favour of Hindustan Petroleum Corporation Ltd.
under Section 7(2) of the Contract Labour (Regulation and
Abolition) Act, 1970, while the other document is Licence
dated 18.11.2014 (Ex.M-25)granted under Section 12 of the
said Act in favour of M/s.Renuka Enterprises. Thus, in
case of M/s.Renuka Enterprises, the requirements of the
Contract Labour (Regulation and Abolition) Act, 1970 have
been complied with.
(K) It is open to Hindustan Petroleum Corporation
Ltd to entrust the work of marketing its products to
dealers appointed under the dealership agreements
who would do the business in the products of
Hindustan Petroleum Corporation Ltd. This practice
was continuously adopted by Hindustan Petroleum
Corporation Ltd since the appointment of M/s.
Chhagan Mitha & Co. as Dealer under the Dealership
Agreement dated 1.1.1977. The practice continued
till the term of M/s. Suburban Service Station came
to an end on 30.9.2014. The Dealers were doing their
business as per the terms and conditions of the
Dealership Agreements through the employees
appointed by the Dealers. The successive Dealers
in their own discretion continued to employ the
concerned workmen as their employees, and
Hindustan Petroleum Corporation Ltd was evidently
having no say in the matter. The concerned workmen
were not the employees of Hindustan Petroleum
Corporation Ltd. After M/s. Suburban Service
Station, Hindustan Petroleum Corporation Ltd.
appointed M/s. Renuka Enterprises as service
provider or contractor. Copy of the Agreement dated
30.9.2014 (Ex.M-22), between Hindustan Petroleum
Corporation Ltd and M/s. Renuka Enterprises
appears at page 199 of the Documents filed on behalf
of the first party/Management alongwith the List of
Documents dated 14.11.2014. It is stated in the said
agreement that “ And Whereas the Corporation
desires to run a Retail Outlet for retail sale or supply
of Petrol/Diesel/Motor Oils/Grease and such other
products as may hereafter be specified by the
Corporation from time to time at the said premises
(hereinafter referred to as COCO/COMCO) by its own
officials pending selection and appointment of a
regular Dealer”. It is, further stated in the said
Agreement that “ And Whereas the Corporation
intends to engage ‘the service provider’ in performing
various jobs as mentioned herein at the said COCO/
COMCO to be operated by the Corporation on the
following terms and conditions.” Clause 2.1 of the
said Agreement enumerates the jobs to be performed
by the service provider at the said COCO/COMCO
as per the requirement and need in the manner
directed by the Corporation.
161.
Clause 12.1 of the said Agreement provides that “the
service provider shall at his own cost employ suitable
qualified persons for all the jobs required to be carried out
by him under this agreement”.
162.
Clause 12.2.1 of the said Agreement provides that
“the persons so appointed shall not be construed under
any circumstances to be working under the Corporation”.
Clause 12.3 provides that “all payments shall be made by
the Service Provider to his employees in accordance with
the various Rules and Regulations stated above………….”
163.
It will thus be noted that pending selection and
appointment of a regular Dealer, the Corporation has
appointed M/s. Renuka Enterprises as the Service Provider
for performing various jobs at the petrol pump in question
as enumerated in the said Agreement, and for performing
the said jobs, the Service Provider has to employ its own
employees, and such employees will not be the employees
of the Corporation. Thus, the Service Provider has to
employ its own employees, and Hindustan Petroleum
Corporation Ltd has no say in the matter. M/s.Renuka
Enterprises in its discretion has appointed its own
employees.
(L) It may be mentioned that having title to and
control over the assets using which a business is
run, is different from having title to and control over
the business which is run using such assets. Various
provisions have been incorporated in the Dealership
Agreement in order to safe-guard and protect the
assets which belonged to the Corporation. Similarly,
the business run by the Dealer in the Petrol Pump in
question was in respect of the products manufactured
by the Corporation. Therefore, various provisions
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1033
have been incorporated in the Dealership Agreement
in order to safe-guard and protect the reputation,
good-will and trade-mark etc. of the Corporation in
respect of the products in respect of which the Dealer
was doing business. Again, as the business
belonged to and was run by the Dealer by employing
its own employees, various provisions have been
incorporated in the Dealership Agreement to protect
the Corporation from any action/claim etc on account
of defaults of the Dealer or his servants etc. However,
as noted earlier, subject to complying with terms and
conditions laid down in the Agreement and keeping
within the limits laid down in the Agreement, the
Dealer had full discretion to carry on the business of
the retail sale or supply of Petrol etc. at the petrol
pump in question.
(M) In view of the above discussion, it is evident
that the second party/Union has failed to establish
relationship of employer and employee between
Hindustan Petroleum Corporation Ltd and the
concerned workmen/concerned persons in the
present Reference. Consequently, it is held that the
second party/Union has not proved any relationship
of Employer and Workmen/Employee between
Hindustan Petroleum Corporation Limited (i.e., the
first party/Management or the first party/Company)
and the concerned workmen/concerned persons in
the present Reference. Therefore, the concerned
workmen/concerned persons in the present Reference
were not in the employment of Hindustan Petroleum
Corporation Ltd (i.e, the first party/Management or
the first party/Company). As such, no relief can be
granted to the second party/Union in respect of the
concerned workmen/concerned persons in the
present Reference as against Hindustan Petroleum
Corporation Ltd,. (i.e, the first party/Management or
the first party/Company).
Issue No.2 is decided accordingly.
164.
ISSUE NO.3: is “Whether the demand of the
concerned persons for regularization of their services in
the services of Hindustan Petroleum Corporation Limited
(i.e. “the first party/Company” or “the first party/
Management”) at par with the direct employees of
Hindustan Petroleum Corporation Ltd. (i.e. “the first party/
Company” or “the first party/Management”) is justified
and proper?”.
165.
As noted earlier, it is, inter-alia, stated in the Statement
of Claim that the demand contained in the Reference is
justified and proper to get regularized services of the
concerned workmen/concerned persons in the present
Reference in Hindustan Petroleum Corporation Limited, who
are working at Hindustan Petroleum Corporation Limited
Petrol Pump at Chembur at par with Hindustan Petroleum
Corporation Limited direct employees.
In the Written Statement filed on behalf of Hindustan
Petroleum Corporation Limited (i.e, the first party/
Management or the first party/Company), the said demand
has been disputed on various grounds as detailed earlier.
166.
It is submitted by Mr.Lancy D’Souza, learned counsel
for the first party/Management that the question of
regularization of services of the concerned workmen/
concerned persons in the present Reference in the services
of Hindustan Petroleum Corporation Ltd (“the first party/
Management” or “ the HPCL” or “the Corporation” or “the
First Party / Company”) would only arise if there is
relationship of employer and employee/workmen between
Hindustan Petroleum Corporation Ltd (“the first party/
Management” or “ the HPCL” or “the Corporation” or “the
First Party / Company”) and the concerned workmen/
concerned persons in the present Reference. In the absence
of any such relationship, the submission proceeds, there
cannot be any question of regularization of the services of
the concerned persons in the services of Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”) at par with the direct employees of Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”). It is submitted that as no relationship of
employer-employee/workmen between Hindustan
Petroleum Corporation Ltd (“the first party/
Management” or “ the HPCL” or “the Corporation” or “the
First Party / Company”) and the concerned workmen /
concerned persons in the present Reference has been
established, the demand of the concerned workmen/
concerned persons in the present Reference for
regularization of their services in the services of Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”) at par with the direct employees of Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”) is liable to be rejected. It is further submitted
by Mr.Lancy D’Souza, learned counsel for the first party/
Management that Hindustan Petroleum Corporation Ltd
is Government of India Undertaking, and it is covered within
the definition of “State” as contained in Article 12 of the
Constitution of India. Recruitment in the services of
Hindustan Petroleum Corporation Ltd is done through
Public Notification by following due Recruitment procedure
which is followed by Government of India/Public Sector
Undertakings. Grant of relief to the concerned workmen/
concerned persons in the present Reference for
regularization in the services of Hindustan Petroleum
Corporation Ltd would amount to back-door entry and
would be hit by Article 14 of the Constitution of India.
167.
I have considered the submissions made by Mr.Lancy
D’Souza, learned counsel for the first party/Management.
1034
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
168.
In Issue No.2, it has been held that no relationship
of Employer and Employee/Workmen between Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”) and the concerned workmen / concerned
persons in the present Reference has been established.
Evidently therefore, the concerned workmen/concerned
persons in the Reference are not in the employment or
services of Hindustan Petroleum Corporation Ltd (“the first
party/Management” or “ the HPCL” or “the Corporation”
or “the First Party / Company”) in any capacity whatsoever.
Consequently, there cannot be any question of
regularization of the alleged services of the concerned
workmen / concerned persons in the present Reference in
Hindustan Petroleum Corporation Ltd (“the first party/
Management” or “the HPCL” or “the Corporation” or “the
First Party / Company”). It is to be noted that regularization
in the services of Hindustan Petroleum Corporation Ltd
(“the first party/Management” or “the HPCL” or “the
Corporation” or “the First Party / Company”) would only
be possible if there is any subsisting relationship of
Employer-Employee/Workmen between Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”) and the concerned workmen / concerned
persons in the present Reference, and the concerned
workmen/concerned persons in the present Reference are
in the employment or services of Hindustan Petroleum
Corporation Ltd (“the first party/Management” or “ the
HPCL” or “the Corporation” or “the First Party / Company”)
in any capacity. There being no relationship of Employer-
Employee/Workmen between Hindustan Petroleum
Corporation Ltd (“the first party/Management” or “ the
HPCL” or “the Corporation” or “the First Party / Company”)
and the concerned workmen / concerned persons in the
present Reference, the concerned workmen/concerned
persons in the Present Reference are not in the employment
or services of Hindustan Petroleum Corporation Ltd in any
capacity whatsoever. As such, no relief of regularization
of services in Hindustan Petroleum Corporation Ltd (“the
first party/Management” or “ the HPCL” or “the
Corporation” or “the First Party / Company”) can be granted
to the concerned workmen / concerned persons in the
present Reference. Reference in this regard may be made
to a decision of the Gauhati High Court in WP (C ) 255 (K)
of 2011, Dr.Atonzo Pienyu and others vs. The State of
Nagaland & Others, decided on 14.11.2014, relied upon by
Mr.Lancy D’Souza, learned counsel for the first party/
Management. In paragraph 13 of the decision, it was, inter-
alia, observed that “Regularization in service law connotes
official formalization of an appointment which was made
on stop gap/ad-hoc basis without following normal rules
of appointment. Such formalization makes the appointment
regular”.
169.
There is another aspect of the matter. As submitted
by Mr.Lancy D’Souza, learned counsel for the first party/
Management Hindustan Petroleum Corporation Ltd is a
Government of India Undertaking and is covered within
the purview of “State” under Article 12 of the Constitution
of India [See: Bharat Petroleum Corporation Ltd. vs.
Maddula Ratnavalli, (2007) 6 SCC 81, 88 (para 13)].
Recruitment in services of Hindustan Petroleum
Corporation Ltd is to be done by due Public Notification
and in accordance with the Due Recruitment Procedure
which is required to be followed as per the relevant Rules,
Regulations, Notifications etc., issued in this regard. It is
not permissible for Hindustan Petroleum Corporation Ltd
to make any recruitment de-hors relevant Rules,
Regulations, Notifications etc., and without due Public
Notification. Granting Regularization to the concerned
workmen/ concerned persons in the present Reference, in
the services of Hindustan Petroleum Corporation Ltd (“the
first party/Management” or “ the HPCL” or “the
Corporation” or “the First Party / Company”) would
evidently amount to recruiting these persons through back-
door without complying with the relevant Rules,
Regulations, Notifications etc., and without due Public
Notification, and such action on the part of Hindustan
Petroleum Corporation Ltd would be hit by Article 14 of
the Constitution of India.
170.
In this regard, reference may be made to the decision
of the Supreme court in Hari Nandan Prasad and Another
vs. Employer I/R to Management of Food Corporation of
India and Another, 2014 II LLJ 54 (SC). In this case, the
judgements in Secretary, State of Karnataka vs. Umadevi
and Others [AIR 2006 SC 1806: (2006) 4 SCC 1 : 2006-II-LLJ
222)], U.P. Power Corporation vs. Bijlee Mazdoor Sangh
and Others [2007) 5 SCC 755: 2007 – II- LLJ – 832] and
Maharashtra State Road Transport Corporation and
Another vs. Casteribe Rajya Parivahan Karmachari
Sanghatana [(2009) 8 SCC 556: 2009 – IV-LLJ-286], were
considered by their Lordships of the Supreme Court, and
on harmonious reading of the latter two Judgments, their
Lordships of the Supreme Court observed as under
(paragraph 34):
“On harmonious reading of the two judgements
discussed in detail above, we are of the opinion that
when there are posts available, in the absence of any
unfair labour practice the Labour Court would not
give direction for regularization only because a worker
has continued as daily wager worker/adhoc/
temporary worker for number of years. Further, if
there are no posts available, such a direction for
regularization would be impermissible. In the
aforesaid circumstances giving of direction to
regularize such a person, only on the basis of number
of years put in by such a worker as daily wager etc.
may amount to backdoor entry into the service which
is an anathema to Art.14 of the Constitution. Further,
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1035
such a direction would not be given when the
concerned worker does not meet the eligibility
requirement of the post in question as per the
Recruitment Rules. However, wherever it is found
that similarly situated workmen are regularized by
the employer itself under some scheme or otherwise,
and the workmen in question who have approached
Industrial/Labour Court are at par with them, direction
of regularization in such cases may be legally justified,
otherwise, non-regularization of the left over workers
itself would amount to invidious discrimination qua
them in such cases and would be violative of Art.14
of the Constitution. Thus, the Industrial adjudicator
would be achieving the equality by upholding Art.
14, rather than violating this constitutional
provisions”.
This decision thus lays down, amongst others, the
following principles:
(1) Normally direction to regularize cannot be given
as the same amounts to backdoor entry into the
service which is anathema to Article 14 of the
Constitution of India.
(2) However, If the employer has granted
regularization to similarly situated workmen
under some scheme or otherwise then the
aggrieved workmen who have not been granted
regularization may approach Industrial/Labour
Court for appropriate relief.
171.
In the present case, neither any averment has been
made on behalf of the second party/ Union nor any evidence
has been led on behalf of the second party/Union to show
that any workman who is similarly situated as the concerned
workmen/concerned persons in the present Reference has
been granted regularization in the services of Hindustan
Petroleum Corporation Ltd. Therefore, the present case
does not fall under Principle No.2 mentioned above but
falls under Principle No.1 mentioned above. Hence, grant
of relief of regularization to the concerned workmen/
concerned persons in the Reference, in the services of
Hindustan Petroleum Corporation Ltd would amount to
back-door entry, and the same would be hit by Article 14 of
the Constitution of India.
172.
In view of the above discussion, I am of the opinion
that the demand of the concerned workmen/concerned
persons in the present Reference for regularization of their
alleged services in the services of Hindustan Petroleum
Corporation Ltd (“the first party/Management” or “ the
HPCL” or “the Corporation” or “the First Party / Company”)
at par with direct employees of Hindustan Petroleum
Corporation Ltd (“the first party/Management” or “ the
HPCL” or “the Corporation” or “the First Party / Company”)
is neither justified nor proper.
Issue No.3 is decided accordingly.
173.
ISSUE NO. 4 : Issue No. 4 is “To what relief, if any,
the second party/ Union is entitled?”
174.
In view of the findings recorded on Issue No.2 and
Issue No.3 above, I am of the opinion that no relief can be
granted to the second party/Union in the present Reference.
It is, therefore, held that no relief can be granted to the
second party/Union.
Issue No.4 is decided accordingly.
175.
In view of the above discussion, the Reference is
answered by stating that the demand of the concerned
workmen / concerned persons in the present Reference for
regularization of their alleged services in Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “the HPCL” or “the Corporation” or “the First Party /
Company”) at par with the direct employees of Hindustan
Petroleum Corporation Ltd (“the first party/Management”
or “ the HPCL” or “the Corporation” or “the First Party /
Company”) is neither justified nor proper . No relief in this
regard can be granted in respect of the concerned workmen/
concerned persons in the present Reference.
Award is passed accordingly.
Justice S. P. MEHROTRA, Presiding Officer
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 475-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj if'pe jsyos
ds çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@ Je U;k;ky;] vgenkckn ds iapkV (lanHkZ la-
695@2004) dks çdkf'kr djrh gS] tks dsUnzh; ljdkj dks
09@03@2016 dks çkIr gqvk FkkA
¹la- ,y&41012@228@99&vkbZvkj (ch&I)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 9th March, 2016
S.O. 475.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 695/
2004) of the Central Government Industrial Tribunal-cum-
Labour Court, Ahmedabad as shown in the Annexure in
the Industrial Dispute between the management of
Western Railway and their workmen, received by the
Central Government on 09/03/2016.
[No. L-41012/228/99-IR (B-I)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
1036
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Present :
Pramod Kumar Chaturvedi, Presiding Officer
CGIT-cum-Labour Court,
Ahmedabad,
Dated 11th January, 2016
Reference: (CGITA) No. 695/2004
1.
The Divisional Railway Manager,
Western Railway,
Pratapnagar,
Baroda-390004
2.
The Asst. Engineer (North),
Western Railway,
Bharuch (Gujarat)
...First Party
Vs.
Their Workman
Sh. Ambalal Chhagan,
Through the Divisional Secretary,
Paschim Railway Karmachari Parishad,
Shastri Pole,
Kothi,
Baroda-390001 (Gujarat)
...Second Party
For the First Party
:
-
For the Second Party
:
-
AWARD
The Government of India/Ministry of Labour ,New
Delhi by reference adjudication Order No. L- 41012/228/99/
-IR(B-I) dated 24.12.1999 referred the dispute for
adjudication to the Industrial Tribunal, Baroda (Gujarat) in
respect of the matter specified in the Schedule:
SCHEDULE
“Whether the action of the Railway Administration
of Baroda Divisionn, Baroda through its officers, in
terminating the services of Shri Ambalal Chhagan,
Gangman by way of ‘Removal from railway services
with immediate effect vide NIP dated 17.04.1998 is
legal, proper and justified?”
And
“whether the punishment of ‘Removal from service’
is proportionate to the gravity of alleged misconduct.
If not, to what relief the concerned workman Shri
Ambalal Chhagan is entitled to and what directions
are necessary in the matter?”
2.
This reference dates back to 24.12.1999.Second party
submitted the statement of claim first party also filed the
written statement. Despite giving dozens of opportunities
to second party to lead the evidence, they did not prefer to
give their evidence. Thus, it appears that second party is
not interested in the proceedings of the reference.
Therefore, Tribunal has no option but to dismiss the
reference in default of the second party.
The reference is dismissed in default of the second
party.
P. K. CHATURVEDI, Presiding Officer
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 476-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;&1] paMhx<+ ds iapkV (lanHkZ la- 23@2013)
dks çdkf'kr djrh gS] tks dsUnzh; ljdkj dks 09@03@2016 dks çkIr
gqvk FkkA
¹la- ,y&12025@01@2016&vkbZvkj (ch&I)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 9th March, 2016
S.O. 476.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 23/2013)
of the Central Government Industrial Tribunal-cum-
Labour Court No. 1, 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 09/03/2016.
[No. L-12025/01/2016-IR (B-I)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
ID No. 23 of 2013
filed directly U/S 2(a) 2 of the amended ID Act, 1947
Sh. Krishan Kumar Ghawri,
C/o #1432, Sector-15,
Panchkula, Haryana
...Workman
Versus
1. General Manager,
State Bank of India,
Local Head Office,
Chandigarh.
2. Deputy General Manager-
cum-Circle Dev. Officer,
State Bank of India,
Sector 17A, Chandigarh.
3. Dy. General Manager,
State Bank of India,
Admin Office, Punjab.
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1037
4. Branch Manager,
State Bank of India,
Muktsar Branch, Punjab
...Respondents
Appearances :
For the Workman
:
None
For the Management
:
Sh. S.K. Gupta Advocate
AWARD
Passed on 27.01.2016
1.
Workman Krishan Kumar Ghawri filed the present
case under amended Section 2 of the ID Act, 1947 directly
before this court against the management of State Bank of
India in view of the certificate dated 28.11.2011 issued by
the Assistant Labour Commissioner( Central), Chandigarh.
2.
Today the case was fixed for evidence of the workman.
None is appearing on behalf of the workman for the last
many hearing. It appears that the workman is not interested
to pursue with the present dispute. In view of the above,
the present dispute is returned to the Central Govt. for
want of prosecution.
3.
The dispute is returned accordingly. Central Govt.
be informed. Soft as well as hard copy be sent to the Central
Govt. for publication.
Chandigarh
27.01.2016
S. P. SINGH, Presiding Officer
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 477-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ,fDll
izfrHkwfr vkSj lsYl fyfeVsM ds çcaèkra=k ds lac¼ fu;kstdksa vkSj
muds deZdkjksa ds chp] vuqcaèk esa fu£n"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;&1] paMhx<+ ds
iapkV (lanHkZ la- 87@2013) dks çdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 09@03@2016 dks çkIr gqvk FkkA
¹la- ,y&12012@65@2013&vkbZvkj (ch&I)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 9th March, 2016
S.O. 477.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 87/2013)
of the Central Government Industrial Tribunal-cum-
Labour Court No. 1, Chandigarh as shown in the Annexure
in the Industrial Dispute between the management of
M/s. Axis Securities and Sales Ltd. and their workmen,
received by the Central Government on 09/03/2016.
[No. L-12012/65/2013-IR (B-I)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
ID No. 87 of 2013
Reference No. L-12012/65/2013-IR(B-I) dated 24.07.2013
Sh. Narinder Pal Singh son of
Shri Bohar Singh, resident of
House No. 1706/628,
Street No.4, Preet Nagar,
Shimla Puri Ludhiana (Punjab)
...Workman
Versus
1. The Managing Director,
M/s. Axis Securities and Sales Ltd,
Corporate Office, 5th Floor,
Bombay Mutual Annexe,
Gunbow Street, Off.D.No. Road,
Fort,Mumbai-400001.
2. The Branch Manager,
M/s. Axis Securities and Sales Ltd.,
7th Floor, 108, The Mall,
Surya Tower, Ludhiana-141002
...Respondents
Appearances :
For the Workman
: Shri B.N. Sehgal Advocate
For the Management : Shri Anil Kumar Kalia Advocate
AWARD
Passed on 14.01.2016
Government of India Ministry of Labour vide
notification No. L-12012/65/2013-IR(B-I) dated 24.07.2013
has referred the following dispute to this Tribunal for
adjudication:
“Whether the action of the management of Axis
Security and Sales Ltd Ludhiana in dismissing the
services of Shri Narinder Pal Singh w.e.f. 20.4.2010 is
legally just and valid? To what relief the workman
concerned is entitled and from which date?”
2.
In brief the case of the workman is that he was
appointed by Axis Sales Limited which was converted into
Axis Securities and Sales Ltd. It is pleaded that although
he was designated as Team Leader (grade S-1) in the Home
Loan Department, however he was never performed any
administrative, managerial or supervisory duties but his
main duties were of sales i.e. operational duties and he was
covered under the definition of workman as defined under
Section 2(s) of the ID Act. His salary was fixed as Rs. 11900/
- and later on increased to Rs. 13250/-and he was confirmed
in service w.e.f. 9.6.2008 vide letter dated 19.9.2008. It is
pleaded by the applicant that he was placed under
suspension and he was also issued a charge sheet dated
1038
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
19.3.2010. The applicant sent reply to the charge sheet by
speed post on 26.3.2010 and the same must have been
received by the management on 27.3.2010. The management
dismissed him from services vide order dated 20.4.2010. It
is further pleaded that the applicant submitted an application
dated 6.5.2010 for recall/ review of the dismissal order but
his application was rejected vide order dated 25.5.2010
which is illegal, wrong, null and void, arbitrary and against
the rules and against the principles of natural justice as no
departmental enquiry was held against the applicant. The
complaint on the basis of which the applicant was
dismissed from service had been withdrawn by the
complainant Shri Charan Singh. It is further pleaded by the
applicant that he was not given any notice, notice pay and
retrenchment compensation and his juniors were retained
in services and other employees were appointed after his
services were terminated. The management violated the
mandatory provisions of section 25F,N,G and H of the
I.D.Act 1 947. It is further prayed by the applicant that the
management may be directed to reinstate the workman with
continuity of services with full back wages and with costs
as the applicant could not secure any other alternative
employment inspite of his best efforts.
3.
The management filed reply in which the plea has
been taken that the claim is not maintainable under the
I.D.Act 1947 and he has no locus standi and no cause of
action to file the present claim. It is further pleaded by the
management that the applicant is not “workman” as defined
under Section 2(s) of the I.D.Act 1947 therefore, this
Tribunal has no jurisdiction to try and to adjudicate upon
the present dispute. On merits the management pleaded
that the applicant was performing the duties of Team
Leader(Sales) and was fully responsible for achieving
targets through sales team member who were directly
working under the control and supervision of the applicant
who was performing the duties in managerial capacity. It is
further pleaded that admittedly the applicant was drawing
salary of Rs. 13250/-PM and so he is not covered under
the definition of the workman.. It is further pleaded that
applicant indulged in unethical practice of taking money
from the client of the management and the said client made
complaint to the management in writing and due to which
the applicant was suspended w.e.f. 9th of March 2010. The
applicant was issued show cause notice as described in
Company code of Conduct NO.13.3. The applicant failed
to reply to the notice within stipulate time and the
disciplinary authority passed the order of dismissal of
service vide order dated 20.05.2010. It is further pleaded
by the management that one Charan Singh himself made a
complaint with regard to unlawfully taking money and now
the same Charan Singh gave a letter stating that now there
is nothing recoverable from the applicant which clearly
indicates that the applicant unlawfully taken money from
Charan Singh. The applicant also failed to file reply to the
show cause notice within stipulated time. The management
prayed that as the management has lost confidence upon
the applicant therefore, the claim of the applicant may be
dismissed with cost being devoid of merits.
4.
The applicant filed replication to the written
statement in which he has reiterated that he is a workman
as defined under Section 2(s) of the I.D.Act 1947.
5.
In evidence, the applicant filed his own affidavit as
Ex.W1 and documents Ex.W2 to W13. In evidence the
management filed one affidavit of Shri Tarun Khandelwal
Branch Head as Ex.M1 who also relied on documents Ex.M2
to M15. Both the witnesses of the parties were cross-
examined by the learned counsels for the parties.
6.
I have heard the parties, gone through the evidence
and record of the case. I have also carefully gone through
the written arguments filed by the workman.
7.
The management has raised objection that applicant
Narinder Pal Singh is not workman and this Tribunal has
no jurisdiction to adjudicate the present reference. The
management referred Section2(s) of the I.D.Act 1947 which
reads as under:
“Section 2(s) of the Industrial Disputes Act 1947
(s) “workman” means any person (including an
apprentice) employed in any industry to do any
manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward,
whether the terms of employment be express or
implied, and for the purposes of any proceeding
under this Act in relation to an industrial dispute,
includes any such person who has been dismissed,
discharged on retrenched in connection with, or as
consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute,
but does not include any such person –
(i) ...............
(ii)..............
(iii)..............
(jv) who, being employed in a supervisory capacity,
draw wages exceeding one thousand six hundred
Rupees per mensem or exercises, either by the nature
of the duties attached to the office or by reason of
the powers vested in him, functions mainly of a
managerial nature”.
By the Industrial Disputes (Amendment) Act, 2010,
words” one thousand six hundred rupees”,
substituted as “ ten thousand rupees”.
8.
The management further submitted that workman
admittedly drawing Rs. 13250/- and in view of the salary
prescribed under the Industrial Disputes (Amendment) Act
2010, the applicant can not be considered as workman. The
management referred appointment letter Ex.W2 of the
applicant Narinder Pal Singh. In this appointment letter
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1039
Narinder Pal Singh was appointed as team leader( Grade S-
I) in the home loan department and was drawing Rs. 11500/
- monthly remuneration. In this letter it is also mentioned
that all other terms and conditions of his employment remain
the same. Ex.W4 is the letter whereby his remuneration
was increased. In this regard applicant cited Ex.M2 wherein
senior team leader in Table 4, the structure in the non-
managerial sales cadre at the branch has been shown
wherein S-1 team leader to which cadre the applicant
belongs shown in non managerial cadre. In this Ex.M2 the
management itself shows the applicant in non managerial
cadre. The witness of the management MW1 Shri Tarun
Khandelwal Branch Head stated in cross-examination that
he can not show any document that Narinder Pal Singh
has taken any disciplinary action or appointed, promoted
any body or has had given leave to any employee. The
learned counsel for the workman also relied on 2004(3)
SCT page 373 Harish Kumar Gupta Vs. Presiding Officer,
Industrial Tribunal Haryana, 2007(2) SLR 158 Anand
Regional Co-op Oil Seedgrowers Union Ltd. Vs. Shailesh
Kumar Harshadbhai Shah and 1985 SCC(L&S) 808 Arkal
Govind Raj Rao Vs. Ciba Geigy of India Ltd. Bombay. In
these case laws the Hon’ble Supreme Court and the Hon’ble
High Courts have held that for determining whether a
particular person is workman or not,it is to beseen what
kind of duties hehasbeen assigned and performing. In this
regard management’s document Ex.M2 itself shows that
Grade S-1and S-2 Team Leader and senior Team Leader
were in non-managerial cadre. Besides this, witness of the
management MW1 Shri Tarun Khandelwal Branch Head
stated in cross-examination that he can not show any
document that Narinder Pal Singh has taken any
disciplinary action or appointed, promoted any body or
has had given leave to any employee. There is nothing on
the record to show that applicant was performing
supervisory or managerial duties. Therefore, in the facts
and circumstances of the case, it is held that the applicant
Narinder Pal Singh is a workman as defined under Section
2(s) of the I.D.Act 1947.
9.
Now coming to the merits of the case in hand,
admittedly the workman Narinder Pal Singh was suspended
vide letter dated 9th of March 2010 (Ex.W7). He was charge
sheeted vide letter dated 19th of March 2010( Ex.W8). As
per management the workman has not submitted his reply
to the charge sheet and vide letter dated 20th of April 2010
(Ex.W11) the workman was dismissed from service. The
learned counsel for the workman submitted in arguments
that the workman was dismissed from service without
holding any enquiry into the charges, therefore, the
dismissal of the workman from service is arbitrary, illegal
and against the principles of natural justice and against
the settled principles of law. Therefore, the workman is
entitled to be reinstated in service with full back wages and
all other service benefits.
10.
On the other hand. The learned counsel for the
management submitted that the applicant was issued charge
sheet. No reply has been filed by the workman to the charge
sheet. The workman was rightly dismissed from service as
serious allegation of corruption was levelled against the
workman by one Charan Singh. The workman was dismissed
from service as per terms and conditions mentioned in his
appointment letter and there was no necessity of
conducting of enquiry in the allegations levelled against
the workman by one Charan Singh.
11.
From the perusal of the record, Ex.W8 is the memo of
charges-cum-Show cause notice dated 19.3.2010 which was
issued by the management to the workman Narinder Pal
Singh Team Leader Ludhiana Branch. The charge No.1
reads as below:
“Charge 1:
You had taken unlawfully Rs. 12,000/- from one
applicant of Home Loan.The applicant, Mr.Charan
Singh had given the written complaint against you.
Please find the Copy of the same attached herewith.
This fact is easily established as the same applicant
given a letter stating that now there is nothing
recoverable from you. The same applicant has
acknowledged the fact of taking the money back from
you, by stating that now he has nothing to be given
or taken from Mr. Narender by him. There words
clearly indicate that you have unlawfully taken money
from the applicant Mr. Charan Singh and later you
returned it to Mr. Charan Singh. The second letter of
Mr. Charan Singh has been attached herewith.
Further, circumstances indicate that the second letter
was written by Mr. Charan Singh only after you have
suggested Mr. Charan Singh to do so and returned
the money illegally taken from Mr. Charan Singh to
avoid any disciplinary / legal action against you.
Thus, aforesaid allegations amount to breach in the
Code of Conduct No.13.3 and 13,20 of the Company.
The Code of Conduct no.13.3 reads as
“every employee shall discharge his duties with
utmost integrity, honesty, devotion and diligence and
do nothing which is unbecoming of him/her or which
is likely to tarnish the image of the Company. Cases
of fraud and dishonesty will attack penalty of
dismissal or suspension from the services.” And the
Code of Conduct No.13.20 of the Company reads as,
“ An employee shall not demand and/or accept and/
or offer/give any gift/bribe, in cash or kind, directly
or indirectly, from/to any customer/potential
customer of the Company for providing any service/
facility/ benefit from the Company to such customer/
potential customer.”
In this connection, you are requested to submit your
written explanation to undersigned at Axis Sales
Limited , Corporate Office – 5th Floor, Bombay
1040
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
Mutual Annexe, Gunbow Street, Off D.N. Road, Fort,
Mumbai- 400 001 charge levelled against you on/or
before 27th March 2010. It is brought to your notice
that in case, if you fail to submit the explanation
within the stipulated date it would be deemed that
you have nothing to say with respect to the above
allegations and the Company shall be at liberty to
proceed further and take appropriate disciplinary
action in this regard.”
12.
As per the contention of the workman he sent his
reply to the memo of charges-cum-show cause notice on
26.3.2010 vide speed post. The reply of the charge sheet
was to be submitted on or before 27.3.2010. From the
perusal of Ex.W11, it appears that the management on the
ground that workman failed to submit reply to the charge
sheet on or before 27.3.2010, he was dismissed from service
with immediate effect vide letter dated 20.4.2010. Workman
submitted an application dated 6.5.2010 to review/recall
the order of dismissal. This application was also rejected
by the management.
13.
From the above set of facts it is clear that the workman
submitted his reply to the charge sheet through speed
post on 26.3.2010. As the reply of the workman did not
receive by the management within stipulated period i.e.
27.3.2010, the management proceeded further and passed
the dismissal order of the workman. Admittedly no enquiry
was held. Workman submitted that the complainant Charan
Singh has withdrawn his complaint vide Ex.W6, hence the
action taken by the management was unwarranted, unfair
and void.
14.
The management in this regard submitted that even
if it is taken to be correct that Charan Singh has withdrawn
his complaint, it was done only on the persuasion of the
workman himself and this fact strengthened the complaint
of Charan Singh.
15.
Therefore, in the present facts and circumstances of
the case, the management was under obligation to conduct
full fledged enquiry to the charge sheet issued by the
management and the workman should have been provided
full opportunity to place his defence in the enquiry. It is
also revealed from the record that the management witness
MW1 Shri Tarun Khandelwal in his affidavit mentioned
that “as the applicant/claimant indulged in unethical
practice of taking money from the customer, hence the
company/management has lost confidence upon applicant/
claimant.”
16.
Considering all the facts and circumstances of the
case, as no enquiry was conducted against the workman
into the charges levelled against him and he was not
provided opportunity of defence, therefore, the order of
dismissal is not tenable and same is setaside with a liberty
to the management to conduct a fair and proper enquiry
into the charges levelled against the workman.
17.
In sofaras the back wages are concerned, there was
serious complaint of taking money from the customer and
it was incumbent upon the management to hold enquiry.
But the management has not held any enquiry into the
charges levelled against the workman. In this regard, the
workman cited 1979(3) SLR 296 Hari Palace Ambala City
Vs. The presiding officer,Labour Court, Rohtak and another
and 2001(1) SCT 296 Ram Surat Vs. Presiding officer, Labour
Court, Ludhiana. With utmost respect to the case laws
cited above, the facts and circumstances of the case in
hand are quite different from the facts and circumstances
of the case laws cited, therefore, are not applicable on the
facts and circumstance of the case in hand.
18.
In view of the above, the management is directed to
reinstate the workman within one month from the
publication of this award but without back wages. It is
made clear that the management would be at liberty to hold
full fledged enquiry as per rules following the principles of
natural justice into the charges levelled against the
workman.
19. Reference is disposed off accordingly. Central Govt.
be informed. Soft copy as well as hard copy be sent to the
Central Govt. for publication.
Chandigarh
14.01.2016
S. P. SINGH, Presiding Officer
ubZ fnYyh] 9 ekpZ] 2016
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos ds
çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@
Je U;k;ky;] y[kuÅ ds iapkV (lanHkZ la- 40@2011) dks çdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 09@03@2016 dks çkIr gqvk FkkA
¹la- ,y&41011@109@2010&vkbZvkj (ch&I)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 9th March, 2016
S.O. 478.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 40/2011)
of the Central Government Industrial Tribunal-cum-
Labour Court, Lucknow now as shown in the Annexure in
the Industrial Dispute between the management of the
Northern Railway and their workmen, received by the
Central Government on 09/03/2016.
[No. L-41011/109/2010-IR (B-I)]
P. K. VENUGOPAL, Desk Officer
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1041
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT :
RAKESH KUMAR, Presiding Officer
I.D. No. 40/2011
Ref. No. L-41011/109/2010-IR(B-I) dated: 14.03.2011
BETWEEN :
Mandal Sangthan Mantri
Uttar Railway Karmchari Union
283/63 Kh, Garhi Kananora(Premwati Nagar)
PO – Manak Nagar
Lucknow-16
(Espousing cause of Sri Iqbal Ali)
AND
Senior Divisional Railway Manager (Personnel)
Northern Railway, Hazratganj
Lucknow
AWARD
1.
By order No. L-41011/109/2010-IR(B-I) dated:
14.03.2011 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 Mandal Sangthan Mantri, Uttar
Railway Karmchari Union, 283/63 Kh, Garhi Kananora
(Premwati Nagar), PO – Manak Nagar, Lucknow and Senior
Divisional Railway Manager (Personnel), Northern Railway,
Hazratganj, Lucknow for adjudication to this CGIT-cum-
Labour Court, Lucknow.
2.
The reference under adjudication is:
WHETHER THE DEMAND OF THE UNION
REGARDING PLACING SHRI IQBAL ALI S/O SHRI
SHAMSHAD ALI, ASSISTANT LOCO PILOT,
LOCO-SHED, LUCKNOW IN THE PENAL OF 1983-
84 ABOVE HIS JUNIORS AND GRANT OF PAY
BENEFITS ACCORDINGLY IS LEGAL AND
JUSTIFIED? TO WHAT RELIEF THE UNION IS
ENTITLED?”
3.
The case of the workman’s union, in brief, is that the
workman was appointed as cleaner w.e.f. 10.11.1975 and
worked as such till 03.09.1981 continuously, when he had
been retrenched w.e.f. 04.09.1981 illegally. The workman
challenged his retrenchment before CGIT-cum-Labour
Court, Kanpur in I.D. No. 48/83 and 163/1983 and the
Tribunal was pleased to reinstate the workman with back
wages from the date of retrenchment vide their award dated
19.02.1987 and 25.11.1985. The management challenged
the award of CGIT, Kanpur before Hon’ble High Court,
which was rejected; likewise the SLP too before Hon’ble
Apex Court was rejected; accordingly, the workman was
reinstated on 03.08.1983. It is alleged that the management
vide its order No. 220 E/1-5/Screening/ Loco dated 30.08.1991
regularized the workman on the post of Loco Cleaner;
whereas it absorbed other junior workmen in the panel for
the year 1983-84 on the basis of 120 days working up to
30.09.1998, which is in violation to the provisions of Railway
Rules. It is submitted by the workman’s union that Shri
Amarjeet Singh & Sri Abdul Aziz were also included in the
panel for year 1992 but later on included in the panel of
year 1983-84 on the orders of Hon’ble CAT, Lucknow.
Likewise, other workmen viz. Sri Pratap Bahadur & Ahmad
Ali, who were earlier included in panel for the year 1992
were included in the panel for year 83-84 as per order of
this Tribunal. Accordingly, the workman’s union has prayed
that the name of the workman, be included in the panel of
the year 83-84 with consequential benefits.
4.
The management of the railways has filed its written
statement, denying the claim of the workman’s union and
has contended that the workman’s union has sought the
relief placing the name of the workman in the panel of year
1983-84, which is not permissible because of the seniority
of other employees will be effected and they are not arrayed
as party in present industrial dispute and if the relief is
granted, several other workers may prefer the matter in
courts since their seniority shall be affected. The
management has specifically submitted that the industrial
dispute has been referred after lapse of more than 25 years
without any rhyme or reason or any sufficient explanation;
and accordingly, the same is liable to be rejected on the
point of limitation.
5.
The workman’s union has filed its rejoinder wherein
apart from reiterating facts already mentioned in the
statement claim has submitted that there is no limitation
provided in the industrial disputes Act, 1947.
6.
The parties filed documentary as well as oral evidence
in support of their respective case and forwarded oral
arguments.
7.
Heard learned authorized representatives of the
parties at length and perused entire evidence on record.
9.
The authorized representative of the workman has
contended that since the termination dated 04.09.81 has
been held illegal and the workman had been reinstated
with consequential benefits, therefore he is entitled for
inclusion in the panel of year 1983-1984. He has relied
upon:
(i) N. Balakrishnan vs. M. Krishnamurthy 1998 ACJ
1347.
1042
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
10.
In rebuttal, the authorized representative of the
management has contended that the workman was screened
and rightly placed in the seniority panel vide order dated
30.08.1991. The management has vehemently contended
that the workman is not entitled to be included in the panel
for the year 1983-84, inasmuch as the present industrial
dispute is time barred and the workman has raised this
industrial dispute when he found that some other workmen
got benefit from different Court/Tribunals. The
management has relied on:
(i) M. Ramakotaiah & others vs. Union of India &
others 2007 (6) AWC 6556 (SC).
11.
I have given my thoughtful consideration to the rival
contentions of the learned authorized representatives of
the parties and scanned the entire evidence available on
record.
12.
Admittedly, the workman had been terminated w.e.f.
04.09.1981 and his termination had been declared to be
illegal and was reinstated with back wages by the CGIT-
cum-Labour Court, Kanpur. Also, the Hon’ble High Court
in writ petition, filed by the management of railways, upheld
the award regarding reinstatement and the management in
compliance of award reinstated the workman and paid him
back wages. However, the management’s contention over
the issue referred to this Tribunal is, that the workman was
screened and was rightly placed in the seniority panel for
1991 and he is not entitled for inclusion in the panel for
year 1983 as he was not in service at that point of time;
more so because the present industrial dispute has been
raised after lapse of more than 25 years. Moreover, it has
come in the evidence of the workman that he has also
taken voluntary retirement on 18.02.2013.
13.
Thus, the question to be adjudicated is as to whether
the workman is entitled to be included in the seniority panel
of 83-84, which was denied to him, consequent upon his
termination in the said year? It is admitted fact that the
workman was not in service due to illegal termination in the
relevant year 1983, when the seniority panel was drawn
and his name was not considered. The termination of the
workman was quashed by the CGIT-cum-Labour Court,
Kanpur and in compliance thereof the management
reinstated the workman, treating the termination as non-
est and paid back wages in compliance of the order of the
Hon’ble High Court.
As per award of the CGIT-cum-Labour Court, Kanpur,
the reinstatement order was not qualified one to be given
effect to the extent of monetary benefits only. As per settled
procedure, logically and legally reinstatement required grant
of all service benefits including seniority as if the
termination had not taken place. The management complied
with the order of reinstatement without giving seniority
and released monetary benefits to the workman. On the
quashing of termination order, it has to be assumed that
the workman was never been terminated and continued to
be in service notionally. The effect of the reinstatement is
that the workman would be deemed in service on the last
post held on the date of termination. Accordingly, he is
entitled for preference over his juniors and to be included
in the seniority panel for the year 1983-1984.
14.
The management of the railways has come up with a
contention that the present industrial dispute is time barred
as it has been raised after lapse of more than 25 years. The
workman’s witness during his cross-examination stated that
he moved an application before DRM; but has not filed its
copy before this Tribunal. He further, stated that when the
management did not act upon his repeated representations,
then he raised the present industrial dispute. The authorized
representative has contended that the workman has not
given any reliable explanation for inordinate delay of 25
years; rather he turned up when the other got successful.
He stressed that the order of the Hon’ble CAT, Lucknow
Bench, Lucknow in respect of Amarjeet Singh was delivered
on 26.04.1993; but the workman has raised present industrial
dispute in 2011, without any explanation.
15.
The management has relied upon N. Balakrishnan vs
M. Krishnamurthy 1998 ACJ 1347; wherein Hon’ble Apex
Court while dealing with the matter of delay has observed
that length of delay does not matter, acceptability of the
explanation is the only criterion.
In Chennai Metropolitan Water Supply and
Sewerage Board & others vs T.T. Murali Babu 2014 (141)
FLR 772, Honble Apex Court has observed as under:
“The Court should bear in mind that it is exercising
an extraordinary and equitable jurisdiction. As a
Constitutional Court it has a duty to protect the rights
of the citizens but simultaneously it is to keep itself
alive to the primary principle that when an aggrieved
person, without adequate reason, approaches the
Court at his own leisure or pleasure, the Court would
be under legal obligation to scrutinize whether the
lis at a belated stage should be entertained or not.
Be it noted, delay comes in the way of equity. In
certain circumstances delay and laches may be fatal
but in most circumstances inordinate delay would
only invite disaster for the litigant who knocks at the
doors of the Court. Delay reflects inactivity and
inaction on the part of a litigant – a litigant who has
forgotten the basic norms, namely, “procrastination
is the greatest thief of time” and second, law does
not permit one to sleep and rise like a phoenix. Delay
does bring a hazard and causes injury to the lis. In
the case at hand, though there has been four years’
delay in approaching the Court, yet the writ Court
chose not to address the same. It is the duty of the
Court to scrutinize whether such enormous delay is
to be ignored without any justification.”
¹Hkkx IIó[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 12] 2016@iQkYxqu 22] 1937
1043
Further, in Dr. Jawahar Lal Rohatgi Memorial Eye
Hospital vs State of U.P. & others 2013 (138) FLR 11 Hon’ble
Allahabad High Court upholding the action of the State
Government in denying the making reference of case after
22 years held that it is not expedient for State Government
to refer against order of termination dated 26.6.1982 being
old and stale case, where the workman filed an application
raising industrial dispute after 22 years in 2004. Hon’ble
High Court observed that there is nothing to indicate as to
why the workman could not approach the authority under
the ID Act. On the issue of delay the workman has tried to
explain his delay by pleading that he kept on making
representations before the authorities; but in the absence
of any copy thereof his contention cannot be relied upon.
There is no other explanation about delay.
Thus, from the face of record it is crystal clear that
the workman did not bother to approach the management
or any legal forum for redressal of his grievances for more
than 20 years; and he approached this Tribunal when he
come to know about favourable order of courts in similar
nature of cases, which points out towards opportunitism
of the workman. Moreover, the explanation forwarded by
the workman’s union before this Tribunal is insufficient.
16.
In the present case, admittedly there is delay of
approximately 20 years as he was screened vide order dated
30.08.1991. The workman’s union failed to give any logical
explanation for this inordinate delay of 20 years. Hon’ble
Apex Court in Ajaib Singh vs. Sirhind Co-operative
Marketing-cum-Processing Services Society Ltd. & another
1999 LAB IC 1435 where there was admitted delay of seven
years has held that the Court can mould relief by refusing
back wages or directing payment of part of back wages.
17.
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 Railway in
not including the name of the workman in the panel for
year 83-84 was illegal and unjustified. Accordingly, I come
to the conclusion that the workman is entitled for placement
in the panel of 1983-1984 above his juniors, subject to his
suitability under Rules. He shall be entitled to services
benefits under Rules; however, he would be liable for
payment of only 1/3rd of back wages, in view of delay in
raising the present industrial dispute.
18.
The reference under adjudication is answered
accordingly.
19.
Award as above.
LUCKNOW
18th January, 2016
RAKESH KUMAR, Presiding Officer
ubZ fnYyh] 9 ekpZ] 2016
dk-vk- 479-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds çcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k] vgenkckn ds iapkV (lanHkZ la- 84@2005) dks çdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 09@03@2016 dks çkIr gqvk FkkA
¹la- ,y&12012@37@2005&vkbZvkj (ch&I)º
ih- ds- os.kqxksiky] MsLd vf/dkjh
New Delhi, the 9th March, 2016
S.O. 479.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 84/2005)
of the Central Government Industrial Tribunal-cum-
Labour Court, Ahmedabad now as shown in the Annexure
in the Industrial Dispute between the management of State
Bank of India and their workmen, received by the Central
Government on 09/03/2016.
[No. L-12012/37/2005-IR (B-I)]
P. K. VENUGOPAL, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
Present :
Pramod Kumar Chaturvedi, Presiding Officer
CGIT-cum-Labour Court,
Ahmedabad,
Dated 11th January, 2016
Reference: (CGITA) No. 84/2005
1. The Assistant General Manager,
State Bank of India,
1st Floor, Paradise Complex,
Sayajiganj
Baroda
...First Party
Vs.
Their Workman
Sh. Mayur Jambubhai Shah,
C/o. Narsinhji Ni Pole,
Opp. PurshottamNivas,
Mandvi,
Vadodara (Gujarat)
...Second Party
For the First Party
:
-
For the Second Party
:
-
1044
THE GAZETTE OF INDIA : MARCH 12, 2016/PHALGUNA 22, 1937
[PART II—SEC. 3(ii)]
AWARD
The Government of India/Ministry of Labour ,New
Delhi by reference adjudication Order No. L-12012/37/2005-
IR(B-I) dated 13.09.2005 referred the dispute for adjudication
to the Industrial Tribunal, Ahmedabad(Gujarat) in respect
of the matter specified in the Schedule:
SCHEDULE
“Whether the action of the management of State
Bank of India, Service Branch, Baroda through the
Assistant General Manager, Baroda removing the
services of Sh. Mayur Jambubhai Shah with
superannuation benefits i.e. pension and/or
provident fund and gratuity is legal, proper and
justified? If not, to what relief the concerned workman
Sh. Mayur Jamubhai Sha is entitled to and from which
date and what other directions are necessary in the
matter?”
2.
This reference dates back to 13.09.2005. First party
filed the vakilpatra (Ext.3) on 03.01.2006 of his advocate
Sh. B.K. Oza. Second party filed statement of claim (Ext.4).
First party filed the written statement on 17.08.2008 again
Sh. B.K. Oza filed the vakilpartra(Ext.13) on 08.01.2014 but
second party did not come forward to lead evidence despite
giving number of opportunities to him.Thus, it appears
that second party is not interested in the proceedings of
the reference. Therefore, Tribunal has no option but to
dismiss the reference in default of the second party.
The reference is dismissed in default of the second
party.
P. K. CHATURVEDI, Presiding Officer
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.