7206 GI/2017

(9905)

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REGD. No. D. L. (N) 04/0007/2003—05

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PUBLISHED BY AUTHORITY

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WEEKLY

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No. 52]

NEW DELHI, DECEMBER 24—DECEMBER 30, 2017, SATURDAY/PAUSHA 3—PAUSHA 9, 1939

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Separate Paging is given to this Part in order that it may be filed as a separate compilation

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PART II—Section 3—Sub-section (ii)

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Statutory Orders and Notifications Issued by the Ministries of the Government of India

(Other than the Ministry of Defence)

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[iQk-la- 228@07@2017&,ohMh&II]

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9906

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 21st December, 2017

S.O. 2889.—In exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the

Delhi Special Police Estabilshment Act, 1946 (Act No. 25 of 1946), the Central Government with the consent of State

Government of Tripura, Home Department vide Notification No. F. 21(2)-PD/2012/365 dated 07.02.2017 hereby

extends the powers and jurisdiction of the members of the Delhi Special Police Estabilshment to the whole of the state

of Tripura for investigation of offences relating to huge cash deposit of specified Bank notes (SBN) of Rs. 500 and

Rs. 1000 under Government demonetization scheme total amounting of Rs. 25,44,500 by Shri Dilip Debbarma

(Employee No. 59105) SWO-A, Melaghar Branch of UCO Bank, Sepahijala District, Tripura in his three S/B account

during the period from 12.11.2016 to 17.11.2016, which is disproportionate to his known sources of income and

punishable u/s 13(1)(e) of P.C. Act, 1988 (Act No. 49 of 1988) and attempts, abetments and conspiracies in relation to

or in connection with the offences mentioned above and any other offence or offences committed in the course of the

same transaction or arising out of the same facts and simultaneously launching of criminal prosecution against the

guilty persons.

[F. No. 228/07/2017-AVD-II]

S. P. R. TRIPATHI, Under Secy.

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(lh-ih-oh- izHkkx)

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¹la- Vh&4330@01@2017º

izdk'k pUn] funs'kd (dksalqyj)

MINISTRY OF EXTERNAL AFFAIRS

(C.P.V. DIVISION)

New Delhi, the 18th December, 2017

S.O. 2890.—In pursuance of clause (a) of the Section 2 of the Diplomatic and Consular Officers (Oaths and

Fees) Act, 1948 (41 of 1948), the Central Government hereby authorises Shri Vikram Pal Singh, Assistant Section

Officers in Embassy of India, Bucharest to perform the Consular services as Assistant Consular Officers with effect

from 18th December, 2017.

[No. T-4330/01/2017]

PRAKASH CHAND, Director (Consular)

ubZ fnYyh] 18 fnlEcj] 2017

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¹la- Vh&4330@01@2015º

izdk'k pUn] funs'kd (dksalqyj)

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9907

New Delhi, the 18th December, 2017

S.O. 2891.—In pursuance of clause (a) of the Section 2 of the Diplomatic and Consular Officers (Oaths and

Fees) Act, 1948 (41 of 1948), the Central Government hereby authorises Shri Ashutosh Kumar Harsh, Assistant

Section Officers in Consulate General of India, San Francisco to perform the Consular services as Assistant Consular

Officer with effect from 18th December, 2017.

[No. T-4330/01/2015]

PRAKASH CHAND, Director (Consular)

पेोिलयम और ाकृितक गैस मंालय

नई द ली, 27 दस बर, 2017

का.आ.

का.आ. 2892

2892

2892.—तेल उोग (िवकास) अिधिनयम 1974 (1974 का 47) क धारा (3) क उपधारा (3)(ग) ारा द!

शि# तय$ का योग करते %ए, के' ( सरकार एत)ारा *ी शिश शंकर, अ, य- एवं बंध िनदेशक, ओएनजीसी को दनांक 01.10.2017 से

30.09.2019 अथवा अगले आदेश होने तक, जो भी पहले हो, तेल उोग िवकास बोड6 के सद7 य के 8प म9 िनयु# त करती है।

[फा. सं. जी-38011/41/2016-िव!- I]

पे;रन देवी, िनदेशक (आईएफडी)

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi, the 27th December, 2017

S.O. 2892.—In exercise of the Powers conferred by Sub-Section (3)(c) of Section 3 of the Oil Industry

(Development) Act, 1974 (47 of 1974), the Central Government hereby appoints Shri Shashi Shanker, CMD, ONGC

as a member of the Oil Industry Development Board w.e.f. 01-10-2017 to 30-09-2019 or until further orders, whichever

is earlier.

[F.No. G-38011/41/2016-Fin.-I]

PERIN DEVI, Director (IFD)

नई द ली, 27 दस बर, 2017

का.आ.

का.आ. 2893

2893

2893.—तेल उोग (िवकास) अिधिनयम 1974 (1974 का 47) क धारा (3) क उपधारा (3)(ग) ारा द!

शि# तय$ का योग करते %ए, के' ( सरकार एत)ारा *ी बी.सी. ि<पाठी, अ, य- एवं बंध िनदेशक, गेल को दनांक 01.08.2017 से

31.07.2019 अथवा अगले आदेश होने तक, जो भी पहले हो, तेल उोग िवकास बोड6 के सद7 य के 8प म9 िनयु# त करती है।

[फा. सं. जी-38011/41/2016-िव!-I]

पे;रन देवी, िनदेशक (आईएफडी)

New Delhi, the 27th December, 2017

S.O. 2893.—In exercise of the Powers conferred by Sub-Section (3)(c) of Section 3 of the Oil Industry

(Development) Act, 1974 (47 of 1974), the Central Government hereby appoints Shri B.C. Tripathi, CMD, GAIL as

a member of the Oil Industry Development Board w.e.f. 01-08-2017 to 31-07-2019 or until further orders, whichever is

earlier.

[F.No. G-38011/41/2016-Fin.-I]

PERIN DEVI, Director (IFD)

9908

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

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¹la- ,y&29012@56@2006&vkbZvkj (,e)]

la- ,y&29012@17@2007&vkbZvkj (,e)]

la- ,y&29012@35@2006&vkbZvkj (,e)]

la- ,y&29012@38@2007&vkbZvkj (,e)]

la- ,y&29012@78@2007&vkbZvkj (,e)]

la- ,y&29012@82@2007&vkbZvkj (,e)]

la- ,y&29012@06@2008&vkbZvkj (,e)]

la- ,y&29012@36@2008&vkbZvkj (,e)]

la- ,y&29012@43@2008&vkbZvkj (,e)º

Mh- ds- fgeka'kq] voj lfpo

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 20th December, 2017

S.O. 2894.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Common Award (Ref. No. 45/2007, 80/2007, 105/2007, 118/2007, 05/2008,

09/2008, 29/2008, 36/2008 & 41/2008) of the Central Government Industrial Tribunal/Labour Court, Bangalore now as

shown in the Annexure, in the industrial dispute between the employers in relation to the management of M/s. Mysore

Minerals Limited and their workman, which was received by the Central Government on 06.12.2017.

[No. L-29012/56/2006-IR (M),

No. L-29012/17/2007-IR (M),

No. L-29012/35/2006-IR (M),

No. L-29012/38/2007-IR (M),

No. L-29012/78/2007-IR (M),

No. L-29012/82/2007-IR (M),

No. L-29012/06/2008-IR (M),

No. L-29012/36/2008-IR (M),

No. L-29012/43/2008-IR (M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

BANGALORE

DATED : 06^th November, 2017

PRESENT : Shri V. S. RAVI, Presiding Officer

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9909

COMMON AWARD

(i)

C.R. No. 45/2007

I Party

II Party

Smt. B. Rangamma,

The Managing Director,

W/o Boregowda,

Mysore Minerals Limited,

Muddannahalli Village, Jamboor Post,

No. 39, M. G. Road,

Nuggehalli Hobli, Channarayapatna Taluk,

Bangalore.- 560001

Hassan District.

The Central Government vide Order No.L-29012/56/2006-IR(M) dated 07.03.2007 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule :

SCHEDULE

“Whether the management of Mysore Minerals Limited is justified in terminating the services of Smt. B.

Rangamma w.e.f. 22.05.1998? If not, to what relief the workman is entitled to?”

(ii) C.R. No. 80/2007

I Party

II Party

Sh. J. Thiramalegowda,

The Managing Director,

S/o Late Jade Rangegowda,

Mysore Minerals Limited,

MML Worker, Hullikere Village,

No. 39, M. G. Road,

Attihalli Post, Nuggehalli Hobli,

Bangalore.- 560001

Channarayapatna Taluk,

Hassan District.

The Central Government vide Order No. L-29012/17/2007-IR(M) dated 16.05.2007 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule :

SCHEDULE

“Whether the management of Mysore Minerals Limited is justified in terminating the services/premature

superannuating the services of Sri. J. Thirumalegowda w.e.f. 16.04.1998? If not, to what relief the

workman is entitled to?”

(iii) C.R. No. 105/2007

I Party

II Party

Smt. Thimmamma,

The Managing Director,

W/o Mari Gowda,

Mysore Minerals Limited,

Kembal Village and Post,

No. 39, M. G. Road,

Bagur Hobli, Channarayapatna Taluk,

Bangalore.- 560001

Hassan District.

The Central Government vide Order No. L- 29012/35/2006-IR(M) dated 23.08.2007 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule :

SCHEDULE

“Whether the action of the management of Mysore Minerals Limited is justified in terminating the

services of Smt. Thimmamma w.e.f. 29.06.1998 is legal and justified? If not, to what relief the workman is

entitled to?”

(iv) C.R. No. 118/2007

I Party

II Party

Sh. C. Rangappa,

The Managing Director,

S/o Late Hanumegowda,

Mysore Minerals Limited,

Chavenahalli Village, Nagrnavile Post,

No. 39, M. G. Road,

Bagur Hobli, Channarayapatna Taluk,

Bangalore.- 560001

Hassan District.

9910

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

The Central Government vide Order No. L-29012/38/2007-IR(M) dated 22.08.2007 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule :

SCHEDULE

“Whether the action of the management of M/s. Mysore Minerals Limited in terminating the services of

Sri. C. Rangappa w.e.f. 09.09.1998 is legal and justified? If not, to what relief the workman is entitled and

from which date?”

(v) C.R. No. 05/2008

I Party

II Party

Sh. V. Rangegowda,

The Managing Director,

S/o Late Venkate Gowda,

Mysore Minerals Limited,

Mavinahalli Village, Buvanahalli Post,

No. 39, M. G. Road,

Nuggehalli Hobli, Channarayapatna Taluk,

Bangalore.- 560001

Hassan District.

The Central Government vide Order No.L-29012/78/2007-IR(M) dated 06.02.2008 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule :

SCHEDULE

“Whether the termination of Sh. V. Rangegowda by the management of Mysore Minerals Limited w.e.f.

30.05.1998 is justified? If not, to what relief the workman is entitled to?”

(vi) C.R. No. 09/2008

I Party

II Party

Smt. Shankaramma,

The Managing Director,

W/o late Kattebasappa,

Mysore Minerals Limited,

MML Worker, Rajapur Village,

No. 39, M. G. Road,

Post and Taluk, Bellary District,

Bangalore.- 560001

Karnataka

The Central Government vide Order No. L-29012/82/2007-IR(M) dated 06.02.2008 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule:

SCHEDULE

“Whether the action of Mysore Minerals Limited, Bangalore in removal from service w.e.f. 30.06.1998 in

respect of Smt. Shankaramma W/o Late Kattebasappa 1998 is justified? If not, to what relief the

workman is entitled to?”

(vii) C.R. No. 29/2008

I Party

II Party

Smt. B. Lakshmamma,

The Managing Director,

W/o Boregowda,

Mysore Minerals Limited,

Averehalli Village, Jamboor Post,

No. 39, M. G. Road,

Nuggehalli Hobli, Channarayapatna Taluk,

Bangalore.- 560001

Hassan District, Karnataka.

The Central Government vide Order No. L-29012/06/2008-IR(M) dated 02.04.2008 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule:

SCHEDULE

“Whether the termination of Smt. B. Lakshmamma by the management of Mysore Minerals Limited

w.e.f 29.05.1998 is justified? If not, to what relief the workman is entitled to?”

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9911

(viii) C.R. No. 36/2008

I Party

II Party

Smt. M. Subbamma,

The Managing Director,

W/o Late Masthi Gowda,

Mysore Minerals Limited,

Honnamaranahalli Village, Jamboor Post,

No. 39, M. G. Road,

Nuggehalli Hobli, Channarayapatna Taluk,

Bangalore.- 560001

Hassan District, Karnataka.

The Central Government vide Order No. L-29012/36/2008-IR(M) dated 02.04.2008 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule:

SCHEDULE

“Whether the termination of Smt. M .Subbamma by the management of Mysore Minerals Limited w.e.f

26.05.1998 is justified? If not, to what relief the workman is entitled to?”

(ix) C.R. No. 41/2008

I Party

II Party

Smt. Dodda Honuramma,

The Managing Director,

W/o Late Sh. Krishnappa,

Mysore Minerals Limited,

Tara Nagar Village and Post,

No. 39, M. G. Road,

Dandur Taluk,

Bangalore.- 560001

Bellary District.

The Central Government vide Order No. L-29012/43/2008-IR(M) dated 02.04.2008 in exercise of the powers

conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute Act, 1947 has

made this reference for adjudication with following Schedule:

SCHEDULE

“Whether the action of M/s Mysore Minerals Limited, Bangalore in removal from service w.e.f 30.06.1998

in respect of Smt. Dodda Honuramma W/o Late Shri. Krishnappa is justified? If not, to what relief the

workman is entitled to?”

Appearance :

I party

M/s K.T. Govinde Gowda & Sh. C.G. Dileep Gowda, Advocates

II party

Mr. T.K. Vedamurthy & Mr. L. Venkatarama Reddy, Advocates

1. Brief details mentioned in the claim statement by I Party are as follows:-

(i) In CR No. 45/2007, the I Party submits that on 04.09.1982, she has joined the service of the II Party management at

its Mining Unit viz., Jamboor Chromite Mines, Channarayapatna Taluk, Hassan District, as a Mining Worker. At the

time of joining the I Party has furnished her age as 25 years i.e., her date of birth being 01.12.1957. Further, the II

Party, Jamboor Chromite Mines Officials, orally refused to allow the I Party to do her work w.e.f 22.05.1998. The I

Party has raised the I.D before the Assistant Labour Commissioner and Conciliation Officer (C), and the Central

Government have referred the Reference in CR No.45/2007.

(ii) In CR No. 80/2007, the I Party submits that on 07.08.1979, he has joined the service of the II Party management at

its Mining Unit viz., Jamboor Chromite Mines, Channarayapatna Taluk, Hassan District, as a Mining Worker. At the

time of joining the I Party has furnished his age as 37 years i.e., his date of birth being 07.04.1942. Further, the II

Party, Jamboor Chromite Mines Officials, orally refused to allow the I Party to do his work w.e.f 16.04.1998. The I

Party has raised the I.D before the Assistant Labour Commissioner and Conciliation Officer (C), and the Central

Government have referred the Reference in CR No.80/2007.

(iii) In CR No. 105/2007, the I Party submits that on 15.01.1979, she has joined the service of the II Party

management at its Mining Unit viz., Byrapura Chromite Mines, Channarayapatna Taluk, Hassan District, as a Mining

Worker under token no. 263. At the time of joining the I Party has furnished her age as 31 years i.e., her date of birth

being 15.01.1948. Further, the II Party, Byrapura Chromite Mines Officials, orally refused to allow the I Party to do

her work w.e.f 29.06.1998. The I Party has raised the I.D before the Assistant Labour Commissioner and Conciliation

Officer (C), Hubli and the Central Government have referred the Reference in CR No. 105/2007.

9912

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

(iv) In CR No. 118/2007, the I Party submits that on 19.12.1977, he has joined the service of the II Party management

at its Mining Unit viz., Byrapura Chromite Mines, Channarayapatna Taluk, Hassan District, as a Mining Worker under

token No. 344. At the time of joining the I Party has furnished his age as 25 years i.e., his date of birth being

19.12.1952. Further, the II Party, Byrapura Mines Officials, orally refused to allow the I Party to do his work w.e.f

09.09.1998. The I Party has raised the I.D before the Assistant Labour Commissioner and Conciliation Officer (C),

Hubli and the Central Government have referred the Reference in CR No. 118/2007.

(v) In CR No. 05/2008, the I Party submits that on 17.12.1978, he has joined the service of the II Party management at

its Mining Unit viz., Thagadur Chromite Mines, Channarayapatna Taluk, Hassan District, as a Mining worker. At the

time of joining the I Party has furnished his age as 29 years i.e., his date of birth being 17.12.1949. Further, the II

Party, Thagadur Mines Officials, orally refused to allow the I Party to do his work w.e.f. 30.05.1998. The I Party has

raised the I.D before the Assistant Labour Commissioner and Conciliation Officer (C), Hubli and the Central

Government have referred the Reference in CR No. 05/2008.

(vi) In CR No. 09/2008, the I Party submits that on 03.09.1980, she has joined the service of the II Party management

at its Mining Unit viz., Hublagandi Iron Ore Mines and later on transferred to Thimmappanagudi Iron Ore Mines,

Sandur Taluk, Bellary District, as a Mining worker. At the time of joining the I Party has furnished her age as 30 years

i.e., her date of birth being 17.01.1949. Further, the II Party, Thimmappanagudi Iron Ore Mines Officials, orally

refused to allow the I Party to do her work w.e.f. 30.06.1998. The I Party has raised the I.D before the Assistant

Labour Commissioner and Conciliation Officer (C), Hubli and the Central Government have referred the Reference in

CR No. 09/2008.

(vii) In CR No. 29/2008, the I Party submits that on 16.06.1979, she has joined the service of the II Party

management at its Mining Unit viz., Thagadur Chromite Mines, Channarayapatna Taluk, Hassan District, as a Mining

worker. At the time of joining the I Party has furnished her age as 29 years i.e., her date of birth being 16.06.1950.

Further, the II Party, Thagadur Chromite Mines Officials, orally refused to allow the I Party to do her work w.e.f.

29.05.1998. The I Party has raised the I.D before the Assistant Labour Commissioner and Conciliation Officer (C),

Hubli and the Central Government have referred the Reference in CR No. 29/2008.

(viii) In CR No. 36/2008, the I Party submits that on 01.09.1979, she has joined the service of the II Party

management at its Mining Unit viz., Thagadur Chromite Mines, Channarayapatna Taluk, Hassan District, as a Mining

worker. At the time of joining the I Party has furnished her age as 34 years i.e., her date of birth being 01.09.1945.

Further, the II Party, Thagadur Chromite Mines Officials, orally refused to allow the I Party to do her work w.e.f.

26.05.1998. The I Party has raised the I.D before the Assistant Labour Commissioner and Conciliation Officer (C),

Hubli and the Central Government have referred the Reference in CR No. 36/2008.

(ix) In CR No. 41/2008, the I Party submits that on 01.06.1977, she has joined the service of the II Party

management at its Mining Unit viz., Thimmappanagudi Iron Ore Mines, Sandur Taluk, Bellary District, as a Mining

worker. At the time of joining the I Party has furnished her age as 31 years i.e., her date of birth being 01.08.1946.

Further, the II Party, Thimmappanagudi Iron Ore Mines Officials, orally refused to allow the I Party to do her work

w.e.f. 30.06.1998. The I Party has raised the I.D before the Assistant Labour Commissioner and Conciliation Officer

(C), Hubli and the Central Government have referred the Reference in CR No. 41/2008.

Brief Common details mentioned on behalf of I Party are as follows:-

The date of birth of the I Party, in fact, has been entered in all the statutory records like EPF, B-register and

Service records, etc. The I Party is entitled to continue in the service with the II Party up to the reaching of the age of

superannuation i.e., 58 years in the II Party Organization. The II Party by way of an eye wash conducted the so called

illegal Medical Examination for the purpose of removing the I Party from the service before reaching the age of

superannuation. Further, the II Party has terminated the I Party on the plea that the I Party has reached the

superannuation age of 58 years as per the so called illegal Medical Examination. After illegal termination, the I Party

has faced unemployment problem and financial hardship, not only by I Party but also the family members of I Party.

The entire family has depended only upon the earnings of the I Party in the II Party Organization. The II

Party/Management similarly, has, prematurely, retired the co-workers of the I Party on the ground of Medical unfitness

and also as per the age certificate, issued by the Medical Officer. The said co-workers have challenged their pre-

matured retirement and the age certification, before the Hon’ble High Court of Karnataka, viz.,

(i) Writ Petition No. 5615/2001 between Smt. K.Dundamma Vs MML, and the same Management of II Party

challenged the same in Writ Appeal No. 3460/2001 C/W W.No. 3459/2001. The said Appeal has been rejected on

12.06.2002 confirming the single Judge order dated 29.03.2001. In view of the said decision the Management,

reinstated the above mentioned pre-matured retired employee with payment of back wages, and with continuity of

service thereon.

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(ii) Writ Petition No. 26101/2001, C/W W.P. Nos.23798/2001, 23797/2001 & 23794/2001 filed by Sri V.C.

Range Gowda and 8 others Vs MML, and the same have been allowed on 01.06.2006.

On account of the illegal payment and other lapses, in the Management of II Party, it has to face administrative

problems. The II Party adopted its own tactics, ways and means for terminating the Mining Workers in short cut

methods and also, in an illegal and irregular manner by adopting anti-labour and un-fair labour practice and victimized

the I Party and other co-workers by removing them enmasse by resorting to the so-called Medical Examination during

the year 1998 in illegal and irregular manner, without disclosing the true fact, to the I Party and also without notifying

the so-called Medical Examination, i.e., not by a Doctor of a Rank of Assistant Civil Surgeon as defined in Rule 29-C

of the Mines Rules 1995. Hence, the so-called Medical Examination conducted by the II Party is illegal and irregular,

and the same is not having any legal sanctity and not sustainable in law, as it is violative of Rule 29-C. The I Party has

repeatedly requested the officials of the II Party to provide the work to I Party till reaching the age of superannuation

i.e., 58 years. But all the efforts made by I Party to persuade the II Party to take the I Party, on duty, proved in vain

because of hostile and vindictive attitude on the part of the II Party. The II Party has no right to refuse the employment

to the I Party or to remove the name of the I Party from the muster rolls in the unilateral manner, without following the

due process of Law. The II Party used the above illegal, imaginary, hypothetical and unscientific Medical report, as its

tool for unilaterally deciding the age of I Party and other workers. The II Party unilaterally refused employment to the I

Party before the age of superannuation even though the I Party is hale and healthy and entitled to work, up to the

reaching of the age of superannuation i.e., 58 years. The II Party has not followed the Mandatory provision of Section

25 F, G, H & N of the Industrial Dispute Act, 1947 and Rules 78 and 79 thereon, and the action of the Management is,

therefore, void-ab-initio as laid by the Hon’ble Supreme Court of India in the case Sundaramani Vs State Bank of

India, Santhosh Gupta Vs State Bank of Patiala, Rober D’Souza Vs Southern Railway, K.S.R.T.C. Bangalore Vs

Boraiaha and others and also the same is violative of the Provisions of Industrial Dispute Act, 1947. The II Party has

un-necessarily created hardship to the I Party by not providing employment. The II Party Management is not justified

in retrenching the services of the I Party in the summary manner without following the principals of Natural justice and

fair play. Further, apart from the violation of various provisions of the I.D. Act as stated above, the II Party violated its

own Certified Standing Orders. The II Party acted contrary to its own Certified Standing Orders/Service Rules for

effecting the prematured, superannuation by way of illegal termination. The I Party submits that, the II Party failed to

issue 3 months prior notice or tendered payment of 3 months salary to the I Party before termination of service of the I

Party under Rule 24. The I Party belongs to socially and economically weaker section and also, the I Party is the Rural

based worker and used to work in Mines, which is in a remote place of the village and the I Party is also an illiterate

worker belonging to Economically weaker section & not a matching party to fight against the II Party for the injustice

done by the II Party. The I Party is facing financial hardship and mental agony due to stoppage of his/her monthly

earnings in the II Party organization and also, due to illegal termination. Also, the I Party is not able to maintain

himself and the family with day to day, food and basic needs. The I Party has faced the financial hardship to reach the

Labour Department like Assistant Labour Commissioner and Conciliation Officer (C), Hubli from I Party’s place, for

raising the dispute and also, to set right the I Party’s grievances. The Officials of the II Party/Management have taken

undue advantage of I Party’s poverty, illiteracy, economic weakness and social weakness. Ultimately with great

hardship, mental agony and with the help of well wishers, the I Party has raised the I.D before the Assistant Labour

Commissioner and Conciliation Officer (C), Hubli. The I Party is entitled for back wages, continuity of service and

other consequential benefits from the date of refusal of employment. The II Party has violated the Provisions of I.D.

Act as well as its own Certified Standing Orders/Service Rules as stated above. Under the I.D. Act there is no

limitation prescribed for raising the dispute and the Article 137 of Schedule to the limitation Act is not applicable to

proceedings under I.D. Act. This point is repeatedly decided by the Hon’ble Supreme Court of India and Hon’ble High

Courts of various states namely,

(i)

LLJ-II-2001-pg788-792 [SC], Sapan kumar Pandit Vs U.P. State Electricity Board and others.

(ii)

LLJ-I-1999-pg 1260-1265 [SC], Ajaib Singh Vs Sirhind Co-operative Marketing-cum-processing Service

Society.

(iii) LLJ-II-1999-pg-482-483[SC], Mahavir Singh Vs U.P. State Electricity Board and others.

(iv) LLJ-I-2003-pg 412-414 [MP], Ramadhar Tiwari Vs Union of India and others.

(v)

LLJ-I-1994-pg 468-471 [All], U.P. State Spinning Mills Co. Vs State of U.P & Others

(vi) LLJ-II-2003-pg 1143-1145[Ori], Management of Aska Co-operative Central Bank Ltd. Vs State of

Orissa

(vii) LLJ-I-2002-pg-204-206 [Mad], E.E. Construction Division 2, Mannarpuram, Trichy and Another Vs

M.Gajapathy and Another

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[PART II—SEC. 3(ii)]

(viii) LLJ-I-2002-pg-1079-1081[Del], Mangal Singh Vs Presiding Officer, Industrial Tribunal No.1, Delhi and

Another

(ix) LLJ-I-2002-pg-1129-1132[Bom], Haribhau S/o. Gaman Waghchaure Vs State of Maharastra and

Another.

Therefore, the I Party prays this Court to pass an award by holding that the action of the II Party Management is

not justified in terminating the services of I Party, namely, prematured superannuation of the services of the I Party and

also to direct the II Party to reinstate the I Party, with continuity of service, with payment of Full back wages and other

consequential benefits from the date of termination till providing employment/reaching the age of superannuation as

per the date of birth details registered in the Statutory records like B-register and EPF records and Service records

maintained by the II Party and EPF Authorities and to pay the interest at the rate of 18% from the said due date and also

up to the date of payment and further award of cost of the present proceedings, in the interest of justice and also,

equity.

3. Brief Common submissions made on behalf of II Party in the counter statement are as follows:-

The II Party states that, the dispute raised by the I Party is time barred and belated, and filed after the lapse of

time. Further, the I Party has waited for the result in the case filed by the co-workers, who approached Hon’ble High

Court of Karnataka. The success of co-worker of I Party in W.P. No. 5615/2001 and 26101/2001 before Hon’ble High

Court of Karnataka inspired the I Party to file this dispute after the lapse of time. Hence, the conduct of the I Party

does not deserve any relief at the hands of this Tribunal. Further, the II Party states that, the dispute raised by the I

Party is liable to be dismissed on the ground of delay and latches, since the claim made by the I Party is stale and time

barred. The II Party has conducted the Medical Examination and the said expert team have examined the I Party and

found that, the I Party is not capable to work in a mine, in view of the fact that, the I Party has already reached the age

of more than 58 years as on the date of Medical Examination. Further, as per the decision of Management, I Party has

been terminated and also given opportunity to prefer an appeal before Appellate Medical Board within 30 days, if the I

Party is aggrieved by the said Medical Report. The I Party, who has amicably received the terminal benefits from the II

Party, has no right to raise present dispute, after the lapse of time, at the instigation, for the wrongful gain. It is relevant

to submit that, the dispute referred by Government of India is itself not maintainable in law. Further, there is no

Industrial Dispute existed or is apprehended. The Medical Examination has been conducted in Scientific Manner on

thorough investigation. The I Party is not entitled for any benefits as per law. The I Party is happily working

elsewhere since from the date of termination. Further, the statement of the I Party that, the II Party officials failed to

consider the reasonable request of the I Party is totally incorrect and false. In fact, the I Party is employed elsewhere

and earning salary. The I Party has filed this dispute only for wrongful gain, at the instigation of well-wishers, as

admitted by the I Party in the claim statement. The II Party has not acted illegally or arbitrarily. Therefore, the II Party

prays to dismiss the dispute filed by the I Party with exemplary costs, in the interest of justice and equity.

Already this Court has passed common award dated 27.08.2014. Thereafter, in Writ Petition the Hon’ble

Karnataka High Court, has passed the following Order:- “The matter is remanded to the Central Government

Industrial Tribunal Cum- Labour Court for fresh adjudication of the dispute. The Tribunal shall decide the dispute after

giving notice to all the parties and pass an award in accordance with law. All the contentions of both the parties are left

open.” Further, notices have been sent for both sides and additional evidence recorded and arguments heard and after

the careful perusal and appreciation of material records in the proper perspective the present Common Award is passed.

The crucial points/issues that arise for consideration in the present matter are as follows:-

(i)

Whether the present claim has to be rejected on the ground of delay and latches as submitted by the II

Party?

(ii) Whether the I Party has to prefer an appeal as against the medical certificate issued by the medical

officer as submitted by the II Party in the counter statement?

(iii)

Whether after the receipt of the terminal benefits, the I Party cannot raise any dispute in the present case?

(iv) Whether the I Party is entitled to get the relief as claimed in the claim statement, after the careful

appreciation of the evidences adduced and documents produced by both the parties, in proper

perspective?

Analysis, Discussion and Findings with regard to the above mentioned point/issue No. 1:-

The I Party has clearly stated in the claim statement itself, and also in the deposition that, I Party belongs to

socially and economically weaker section, and the I Party is the rural based worker, and used to work in mines which is

in a remote place of a village and I Party is also an illiterate worker, belonging to economically weaker section, and not

a fit person, to fight against the II Party and the I Party has repeatedly requested the officials of II Party mines for

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permitting the I Party to work and also, due to I Party’s acute poverty, I Party has faced huge financial hardship to

reach the Labour Department like Assistant Labour Commissioner and Conciliation Officer (C), Hubli from I Party’s

place, for raising the dispute and also, to set right I Party’s grievances and in such circumstances, only the delay has

happened for raising the dispute and the delay caused is not intentional and deliberate one, but only due to the above

mentioned various reasons. The II Party has not specifically denied the above mentioned statements made by the I

Party in the claim statement. Further, the I Party has also stated that, the officials of the II Party/Management have

taken undue advantage of I Party’s poverty, illiteracy, economic and social weakness by way of refusing employment,

and also, after knowing fully, that the I Party is most incapable in approaching the Labour Authority for redressal of the

I Party’s grievances. The said details are also not specifically disputed by the II Party. Further, I Party has clearly

stated in the claim statement that ultimately with great hardship, mental agony and with the help of well wishers, the I

Party has raised the I.D before the Assistant Labour Commissioner and Conciliation Officer (C), Hubli and the present

central reference has been made to this Court by the Government of India, as per the above mentioned details. The said

submissions made on behalf of I Party are also not specifically disputed on behalf of the II Party. On the other hand,

the Assistant Manager of II Party, namely MW-1, has categorically admitted in his evidence that, I Party is an illiterate

person. Further, the I Party has filed copies of Order passed in W.P. No. 5615/2001 dated 29.03.2001, W.A. No.

3460/01 c/w W.A. No. 3459/01 dated 12.06.2002 and W.P. No. 26101/01 c/w W.P. Nos. 23798/01, 23797/01 &

23794/01 dated 01.06.2006, as exhibits marked herein below and also MW-1 has admitted in his evidence that the

success of the said co-workers in the said Writ Petition and Writ Appeal has inspired the I Party to file the present

reference. In the above mentioned facts and circumstances, it is seen that, the I Party is justified in claiming the legal

and statutory rights and benefits, due to the unlawful and illegal ways and means followed by the II Party to terminate

the service of I Party, without following the principles of natural justice.

Further, the I Party has pointed out, in the claim statement, itself that, there is no limitation prescribed for

raising the dispute and Article 137 Schedule of the Industrial Dispute Act is not applicable to the present case. Further,

the Hon’ble Supreme Court of India, dated 03.12.2010, Mr. Hon’ble Justice. P. Sathasivam and Mr. Hon’ble Justice

B.S. Chauhan, in Civil Appeal No. 10231/2010, between Kuldeep Singh Vs G.M, Instrument Design Development and

Facilities Centre and Another, it is clearly held as follows:- “The Labour Court dismissed the claim of the appellant on

ground of delay (of five and half years) in raising the dispute. The High Court confirmed the Labour Court’s award.

Hence this present appeal. The impugned award was set aside with costs of Rs. 50,000 to be paid by respondent-

management to appellant.” The Hon’ble Supreme Court observed that, there is no time limit prescribed for reference

under section 10 of the Industrial Dispute Act, 1947. In the present case also, on a careful perusal of above said

peculiar facts and vital circumstances and also due to the fact that, the I Party is facing poverty, illiteracy, economic

and social weakness and also in the light of the above mentioned various citations, mentioned in the claim statement, it

is seen that, the II Party is not justified in raising the objection to the effect that present reference is not maintainable,

due to the delay and latches. The I Party in the claim statement as well as in the evidence has pointed out that, the I

Party is an illiterate and the I Party has repeatedly requested the II Party officials to provide employment in the II Party

Organisation. Further, the MW-1, namely the Assistant Manager of the II Party has also admitted that I Party is an

illiterate person and it is true to suggest that in the mines there is no shelter from sun and rain and it is true to suggest

that there is no health unit and it is true to suggest that, the working conditions as per the mining act have not been

provided at the mines. In such circumstances, it is crystal clear that, II Party has not provided the basic and statutory

and also necessary facilities, for the proper working conditions and also, for the welfare of the I Party workers.

Further, Industrial Dispute Act is a social legislation brought into existence after various Industrial Revolutions,

stage by stage and the said act has been enacted to provide minimum and basic facilities for workman and protect

his/her employment. Further, II Party cannot take the super technical submission of delay and latches as a protective

shield to cover up their lapses and violation of laws. Further, it is the well settled law that, I Party can initiate

proceedings for the alleged illegal termination of services of workman en-mass by the II Party. Further, for the

effective implementation of the Labour enactment and protecting the interest of workman only the Government have

created a Labour Department. Further, it is very pertinent to point out that, the present reference is made by the

Government of India, Ministry of Labour with the above mentioned schedule. Hence, this Court is bound to pass

appropriate award in accordance with law based upon the facts and circumstances of the present matter. The II

Party/Management cannot take super technical and hyper technical measures, so as to avoid payment of the legitimate

amounts, payable to the I Party/Workman. Further, it is clearly held in the judgment reported in 1995-II-LLJ 835,

between H.S. Vasantsenaiah Vs The Divisional Controller, K.S.R.T.C & Anothers, as follows:- “Delay in approaching

the Labour Court- No ground to deny back wages and other consequential benefits.”

Further, it is held in the judgment reported in 1999-LLJ-II-pg 482-483 [SC], between Mahavir Singh Vs U.P.

State Electricity Board and others, as follows:- “Delay in raising dispute – Labour Court finding termination of

workman’s service illegal-reference could not be rejected.” Also in the judgment reported in 2003-LLJ-I-pg 412-414

[MP], between Ramadhar Tiwari Vs Union of India and others, it is clearly held as follows:- “No limitation laid down

for raising dispute under statute - dispute raised after about 5 years - not one which could be refused on ground of

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THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

delay.” Again, in the judgment reported in 1994-LLJ-I-pg 468-471 [All], between U.P. State Spinning Mills Co. Vs

State of U.P and others, it is specifically held as follows:- “Lapse of 11 years between raising a dispute and making

reference does not lose the character of industrial dispute.” Further, in the judgment reported in 2002-LLJ-I-pg 1079-

1081 [Del], between Mangal Singh Vs Presiding Officer, Industrial Tribunal No.1, Delhi and another, it is clearly held

as follows:- “Relief under Industrial Dispute Act, 1947 not to be denied to workman merely on ground of delay.”

Also, in the judgment reported in 2002-LLJ-I-pg 1129-1132 [Bom], between Haribhau S/o. Gaman Waghchaure Vs

State of Maharashtra and another, it is clearly held as follows:- “Limitation Act does not apply to proceedings under

Industrial Dispute Act, 1947- If plea of delay be raised, employer to show real prejudice caused by delay and not rely

on it as mere hypothetical defense.” In the present case also, considering the above mentioned socio-economic

conditions, poverty and illiteracy, of the I Party, it is found that, the appropriate relief, in accordance with law has to be

granted to the workman and the same cannot be denied, as per the mere hypothetical defence taken by the II Party

regarding the delay and in fact, the II Party has not established the real prejudice caused by the said delay.

10.

Further, in the judgment in the case of Basti Sugar Mills Co. Ltd. Vs State of U.P., (1979) 2 SCC 88, by V.

Kishna Iyer. J, it is pointed out as follows:- “Industrial Jurisprudence does not brook nice nuances and torturesome

technicalities to stand in the way of just solutions reached in a rough and ready manner. Grim and grimy life-situations

have no time for the finer manners of elegant jurisprudence.” Thus, the process of industrial adjudication is an onerous

task being guided by the constitutional mandates and aiming at settlement of the industrial dispute on a fair and just

basis, tested on the touchstone of social and economic justice. When an industrial dispute is raised, it is a commotion

to be pacified by dispensing justice. In such adjudication, not just the right to equality and other Constitutional

guarantees, but the aims and ideals of the Constitution enter into the consideration. It is the duty of the Courts to apply

directive principles in interpreting the Constitution and the laws. Also, it is reported in Lloyds Bank Ltd Vs. Bundy,

(1974) 3 All ER 757 that Lord Denning first clearly enunciated his theory of "inequality of bargaining power". His

Lordship began his discussion on this part of the case by stating (at page 763): "There are cases in our books in which

the courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms, when the

one is so strong in bargaining power and the other so weak that, as a matter of common fairness, it is not right that the

strong should be allowed to push the weak to the wall.” In the present case also, it is seen that, the II Party has clearly

admitted in the counter statement that, the success of the co-workers of I Party in W.P. No. 5615/2001 dated

29.03.2001, W.A. No. 3460/01 c/w W.A. No. 3459/01 dated 12.06.2002 and W.P. No. 26101/01 c/w W.P. Nos.

23798/01, 23797/01 & 23794/01 dated 01.06.2006, has inspired the I Party to file the present reference and in fact, the I

Party has specifically pointed out in the claim statement and evidence that, the I Party is an illiterate person and the I

Party is facing poverty, economic and social weakness and the I Party has repeatedly requested the II Party officials to

provide employment to the I Party and Assistant Manager of II Party MW-1 has also admitted in his evidence that, I

Party is an illiterate person and also the II Party has not established the real prejudice caused to the II Party, by the said

delay.

11.

Further, the Hon’ble High Court of Karnataka, in W.P. No. 9974/2006 (L-TER) dated 07.01.2015, (Before

Mr. Hon’ble Chief Justice D.H. Waghela and Mr. Hon’ble Justice Budihal. R. B), in the case of The Management of

National Aerospace Laboratories Vs Engineering & General Workers Union and the Managing Directors, it is

particularly held as follows:- “The jurisdiction of an Industrial Tribunal, therefore, is expansive and creative and not

restricted to only enforcing or interpreting the contract of service or the extant legal provisions and it is not-fettered by

the limitations of contracts and can even involve extension of existing agreement of the making of a new one, or in

general, creation of new obligations or modification of old ones.” In the present case also, for the above mentioned

facts and circumstances it is found that, I Party is entitled to get appropriate relief, in accordance with law, and the II

Party is not justified in raising the objection on the ground of delay and latches, as per the said jurisdiction of the

present Court. Thus, the point is answered in favour of the I Party.

12.

Analysis, Discussion and Findings with regard to the above mentioned point/issue No. 2:-

The MW-1 the Assistant Manger of II Party, who has given evidence on behalf of II Party has admitted that, it is

true to suggest that, there is no health unit and the working conditions as per the mining act have not been provided at

the Mines. The said admission is also clinchingly established the various above mentioned allegation made as against

the II Party. Further, MW-1 has admitted that, it is true to suggest that, as per the provisions of the mining act there

should be a qualified doctor to attend the I Party workers at the mining site. If it is so, then there is no need for the II

Party to get the doctor from Hatti Gold Mines and to subject the I Party to medical examination. On that ground only, I

Party has clearly stated in the claim statement that, as per the illegal medical certificate, the social and economic

weaker section, person of the I Party has been refused to continue the work by the II Party.

13.

Further, MW-1 namely, the Assistant Manager of II Party/Management has admitted that the II Party company

has suffered loss of 21 crores due to mis-management and it is also true to suggest that, due to the said mis-

management, the financial crisis has occurred and it is true to suggest, having suffered the said loss the management

thought of reducing the number of workers and it is true to suggest that, the Management ordered for medical

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examination of all the mining workers. For the said reasons only, I Party has categorically stated in the claim statement

that, II Party has suffered huge loss due to mis-management and in the way of reducing the number of workers they

have conducted illegal medical examination and terminated several workers including I Party. Further, MW-1 admitted

that, to examine the workers doctors, have come from Hatti Gold Mines Ltd. However, he has admitted, that he does

not know the names and qualifications of those doctors.

14.

Further, in the counter statement the II Party has stated that, the I Party has been given opportunity to prefer an

appeal before Appellate Medical Board within 30 days, if the I Party is aggrieved by the Medical Report. However, the

MW-1 has categorically admitted that, it is true to suggest that, they have not produced the Medical certificate issued

by the Doctor who has examined the I Party health condition and it is also true to suggest that, the Medical From ‘O’ is

in English language. At the same time, the MW-1 has admitted that, I Party workers are illiterate workers. Hence, it is

found that the said medical certificate has not been issued in the language known to the workers/I Party and also not

understood by the I Party and in fact, the said medical certificate is also not submitted to this Court by the II Party. In

such circumstances, it is too much on the part of II Party to content that I Party has got the appeal remedy as per the

medical certificate and the workers have not availed the appeal remedy and hence they cannot file the present case

before this Court. Further, MW-1 has admitted in his evidence that, the Doctors have not conducted the medical

examination in his presence and he does not know in what respect the I Party has been found unfit to continue in

service and he has to verify in the office whether copy of notice issued to I Party after medical examination or

acknowledgement regarding service of notice on the I Party is available or not. So, the MW-1 has not produced the

relevant records to establish that, after medical examination, proper record has been issued to I Party to appeal before

30 days. On the other hand, MW-1 has categorically admitted that, II Party has not produced the Medical certificate

issued by the Doctor who has examined the I Party. Above all, MW-1 has admitted that, it is true to suggest that, I

Party has not been issued with charge sheet and no enquiry has been conducted before the termination of his service.

The said categorical admission of MW-1 shows that, II Party has not terminated the I Party as per the principles of

natural justice.

15.

Further, MW-1 has admitted that, it is true to suggest that as per the clause 18 and 24 any termination has to be

followed by enquiry along with 3 months notice pay. However, MW-1has admitted that, I Party has not been issued

with charge sheet and also, enquiry has been conducted. Hence, it is crystal clear that, II Party has not terminated the I

Party in accordance with law. Further, MW-1 has admitted that, termination order has not been attached with copy of

Medical Certificate pertaining to I Party. Furthermore, MW-1 has admitted that, he does not know in what respect the

Medical Officer opined that, the I Party is being medically unfit. Further, MW-1 has admitted that, it is true that, II

Party has not taken any permission from Labour Ministry or Labour Secretary under the provisions of I.D. Act for

terminating services of several employees on the basis of medical grounds. Further, MW-1 has specifically admitted in

his evidence that, it is true to suggest that I Party is the illiterate person and it is true to suggest that company has not

furnished to the I Party the Kannada Version/translation of Medical Certificate which is in English and the company

has enhanced the age of employees to 60 years w.e.f 17.07.2008. In the light of the above mentioned facts and

circumstances it is found that, the II Party is not justified in submitting that, the I Party has to prefer only the appeal as

against the medical certificate issued by the medical officer. Thus, the point/issue is answered as against the II Party.

16.

Analysis, Discussion and Findings with regard to the above mentioned point/issue No. 3:- The I Party has stated

in the claim statement that, he is entitled to work till attending the age of superannuation and the I Party’s actual date of

birth is registered in EPF, B-register and Service records, etc and suddenly, the II Party has refused to provide

employment to the I Party, as per the so-called illegal medical examination and the co-workers have challenged the pre-

matured retirements and age certification before the Hon’ble High Court of Karnataka, viz.,

(i) Writ Petition No. 5615/2001 between Smt. K.Dundamma Vs MML, and the same Management of II Party

challenged the same in Writ Appeal No. 3460/2001 C/W W.No. 3459/2001. The said Appeal has been rejected on

12.06.2002 confirming the single Judge order dated 29.03.2001. In view of the said decision the Management

reinstated the above mentioned pre-matured retired employee with payment of back wages, with continuity of service

thereon.

(ii) Writ Petition No. 26101/2001,C/W W.P. Nos. 23798/2001, 23797/2001 & 23794/2001 filed by Sri V.C.

Range Gowda and 8 others Vs MML, and the same has been allowed on 01.06.2006. The MW-1, the Assistant Manger

of II Party has also admitted the said details, in his evidence. Further, the I Party has specifically pointed out that, on

account of administrative problems faced by the II Party, the II Party adopted its own tactics, ways and means for

terminating the Mining Workers in short cut methods and also, in an illegal and irregular manner by adopting anti-

labour and un-fair labour practice and victimized the I Party and other co-workers by removing them enmasse by

resorting to so-called Medical Examination during the year 1998 in illegal and irregular manner, without disclosing the

true fact, to the I Party and also without notifying the so-called Medical Report i.e., not by a Doctor of a Rank of

Assistant Civil Surgeon as defined in Rule 29-C of the Mines Rules 1995 and hence, the so-called Medical

Examination conducted by the II Party is illegal and irregular, and the same is not having any legal sanctity and not

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THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

sustainable in law as it is violative of Rule 29-C. The MW-1, Assistant Manger of II Party has candidly admitted in

his evidence that, due to mis-management, the II Party has suffered administrative problems, and hence, the II Party has

decided to terminate the services of the I Party workers.

17.

Further, it is specifically pointed out by the I Party that, II Party has no right to refuse the employment to the I

Party without following the due process of Law and the II Party used the illegal, imaginary, hypothetical and

unscientific Medical report as its tool for unilaterally deciding the age of I Party and other workers even though the

correct age is mentioned in the EPF, B-register and Service records, and I Party is hale and healthy and entitled to work

up to the age of superannuation. In the evidence also, I Party has stated the said details mentioned in the claim

statement. Further, in the cross examination, I Party has clearly pointed out that, it is not true to suggest that, as per the

request made by the union the II Party subjected the I Party to medical check up and found the I Party unfit to continue

in service. In the additional evidence also, the I Party has pointed out that, it is not true to suggest that as on

termination, all amounts due to I Party have been received and the I Party has filed the present case, without any

justification. Further, the II Party has also not produced any relevant records, to establish that, the II Party has paid all

the amounts due to I Party as on the date of termination. Further, it is observed in the judgment reported in 1984-I-LLJ

388(SC) as follows:- “Acceptance of retirement benefits – Acceptance of retirement benefits by the workmen

concerned – Whether precluded from raising Industrial Disputes Challenging Orders of retirement. On the materials

placed by the management, held, neither a case of acquiescence nor a case of waiver on the part of workmen was made

out – Held, the workmen were entitled to wages for the period between the dates of retirement and the dates of their

reaching the age of 58 years.” Also, in the judgment reported in 1997-II-LLJ 228(SC) it is held as follows:- “There is

no statutory estoppels in favour of the Officer.” Further, it is the settled law that, there is no estoppel as against the

statutory rights/benefits, which the I Party/workman is entitled to get under the provisions of the Industrial Disputes

Act, 1947 and the II Party has also not established that, the action has been taken by the II Party as against the I Party,

as per the principles of natural justice and also, as per the procedure and practice to be followed in accordance with

law. In the light of the above mentioned reasons, facts and circumstances it is found that, the II Party is not justified in

submitting that, after the receipt of the terminal benefits the I Party cannot raise any dispute in the present case and

thus, the point/issue is answered as against the II Party.

18. Analysis, Discussion and Findings with regard to the above mentioned point/issue No. 4:-

The I Party has categorically stated that, due to mis-management the II Party has suffered a loss and hence, the

II Party has found its own tactics, ways and means for terminating the mines workers in short cut methods and also in

an illegal and irregular manner by adopting anti-labour and un-fair labour practice and victimized the I Party and other

co-workers by removing them enmasse by resorting to so-called Medical Examination during the year 1998 in illegal

and irregular manner. Further, MW-1 has admitted in his evidence that the II Party has entrusted the work to private

party in spite of availability of technical persons and machinery in the year 1995-1996 and hence, the II Party company

has suffered a loss of about Rs. 21 crores and it is also true to suggest that, due to said mis-management the financial

crisis occurred and also it is true to suggest that, having suffered the said loss the management thought of reducing the

number of workers. Hence, it is clear that, the MW-1 of II Party has also admitted the said submissions made by the I

Party in the claim statement. Further, MW-1 has admitted that, he cannot right now give the date, month and year of

notice served to I Party and it is true to suggest that, I Party has not been issued with charged sheet and no enquiry has

been conducted before the termination of the I Party. Further, MW-1, admitted that, it is true to suggest that as per the

clause 18 and 24 any termination has to be followed by enquiry along with 3 months notice pay. However, MW-1 has

clearly admitted that 3 months notice pay has not been paid to the I Party by the II Party.

19.

Further, MW-1 has admitted in his evidence that, it is true to suggest that, there is Statutory Report, B Register

and Provident Fund Register. Further, I Party has categorically stated that, the date of birth has been entered in the

Statutory Report, B Register and Provident Fund Register and the II Party without any valid reasons pre-maturedly

terminated the service of the I Party. Further, the date of birth of I Party mentioned in the claim statement is the same

as mentioned in the employees register and pension payment order, which are marked as Ex M1/W1, except in the case

of CR No. 80/2007, CR No. 105/2007 and in CR No. 05/2008. Further, in the case of CR No. 80/2007, it is seen that,

as per Individual Workers History Sheet, the Age of I Party is 36 years, as on 07.04.1979 and in CR No. 105/2007, it is

seen that, as per Employees Register, the Date of Birth of I Party is mentioned as 15.01.1941 and also in CR No.

05/2008, it is seen that, as per Employees Register, the Date of Birth of I Party is mentioned as 17.12.1948. Also, the

Circular relating to, enhancing the superannuation age from 58 years to 60 years to the workers of II Party, is applicable

only to persons who are in employment as on 17.07.2008. Further, MW-1 has clearly admitted that, it is true to suggest

that, as per Clause 18.3 of CDPR rules, the changes in the date of birth, as entered in the company record, can only

effected on a judgment of a competent Court and except on a judgment of a Court, the date of birth once recorded, will

not be changed at the request of the Officer/Employee under any circumstances. For that reason only, I Party has

clearly stated that, the II Party has terminated the service of I Party pre-maturedly without any valid reasons. Further,

the act of the II Party, certainly, is not proper and legal and also, no valid reasons have been furnished by the II Party

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9919

for not producing the medical certificate issued to the I Party by the II Party and no valid reason has been furnished by

the II Party, as to what prevented the II Party in not following the principles of natural justice and also for not

producing the material records, though they are very important records, to prove the aforesaid details mentioned in the

counter statement filed on behalf of II Party. Further, on the careful perusal of material records mentioned in the

Exhibits list, it is seen that, II Party has refused to provide work to the I Party without following the due process of law.

20.

Further, it is found that, there is discrimination and also violation of fundamental right caused to the I Party and

it is not proper and also, not legal to give forceful retirement to I Party, by the II Party, without following the due

process of law. Further, it is seen that, the II Party has not terminated the service of the I Party as per the Principles of

Preponderance of Probability. Further, no injustice can be caused by the II Party to the I Party and I Party cannot be

victimized due to the actions of the II Party without any valid reasons. Further, it is relevant to mention that, the I

Party/workman has been punished by II Party without adopting the procedure known under law. Further, the

underlying aim and object of adjudication of an Industrial Dispute is, in effect, dispensation of social and economic

justice and translating fundamental rights as well as directive principles into some tangible relief. The ultimate object

is to see that industrial disputes are settled by industrial adjudication on principles of fair play and justice.

21.

Further, the awarding of reinstatement does not amount to automatic conferment of back wages as held in 2009

(4) LLJ 667 (SC) Malla C.N. Vs State of Jammu and Kashmir & others. Further, it is held by the Hon’ble Supreme

Court, in the case of APSRTC Vs B.S. David Pal, reported in 2006 (2) SCC 282, that the entitlement of back wages is

not automatic on reinstatement. Awarding of back wages, depend upon other factors and circumstances. The I Party

has pointed out in the claim statement that the I Party has been thrown out of employment and is facing hardship. In

the affidavit also, the I Party has stated that with no financial income the I Party is facing great hardship. However, the

claim of the workman that, the I Party is entitled for the full back wages, cannot be considered, having regard to fact

that the I Party has not performed any work for II Party from 1998 to the date of superannuation, for the several years,

and also, in order to balance the interest of both the parties, by adopting the balancing test or balancing process in the

proper manner, this Court is of the considered opinion that in the facts and situation of the present case, 50% back

wages and other consequential benefits only can be granted to the I Party. In the claim statement, the I Party has

claimed interest, however the I Party has not enlightened the fact that the I Party is entitled to get interest also as prayed

for in the claim statement by adducing relevant evidence and appropriate records. Hence, it is found that, the I Party is

not entitled to get interest amount for the above mentioned factual reasons and also legal grounds.

22.

Further, in the judgment reported in 2010-I-LLJ-861(SC), in C.A. No. 2874/2009, dated 28.04.2009, (Before

Mr. Justice Tarun Chatterjee and Mr. Justice H.L. Dattu), in the case of Malwa Vanaspati & Chemical Co. Ltd. Vs

Rajendra, it is held as follows:- “Back Wages – Entitlement for full back wages – Depends upon facts and

circumstances of each case – Employee reinstated in service – Question of termination or reinstatement not in dispute –

Employee only entitled to 50% back wages.” Also, in the judgment reported in AIR 2009 Supreme Court 240, in C.A.

No. 5425/2008, dated 02.09.2008, (Before Mr. Justice Tarun Chatterjee and Mr. Justice Aftab Alam), in the case of

M.P. Electricity Board & Ors Vs Maiku Prasad, it is held as follows:- “Industrial Dispute Act (14/1947), Sch. 2, Item 6

– Back wages – Curtailment – Respondents’ service terminated for unauthorised absence – Termination set aside by

Labour Court – Direction for reinstatement and payment of full back wages passed – Considering long period between

termination and reinstatement for which respondent has not worked – Back wages reduced to 50%.” Further, in the

judgment reported in 2010-I-LLJ-861(SC), in C.A. No. 2874/2009, dated 28.04.2009, (Before Mr. Justice Tarun

Chatterjee and Mr. Justice H.L. Dattu), in the case of Malwa Vanaspati & Chemical Co. Ltd. Vs Rajendra, it is held as

follows:- “Back Wages – Not to be granted mechanically, upon termination of service being held illegal- Service of

workman terminated in 1987 – Labour Court gave its award in 2002 holding termination illegal – In circumstances of

case, 50% back wages held proper and payment thereof accordingly directed.” In the present case also, it is found that,

the I Party is entitled to get 50% of the amount, out of the total amount of the monetary benefits with continuity of

service, and other consequential benefits that I Party would have received in the absence of the impugned punishment

of refusal to provide employment, by the II Party.

23. Further, in the judgment reported in 2009-I-LLJ 1 [SC], between Senior Regional Manager, TASMAC Ltd.,

and another Vs The M. Raviselvam, it is held as follows:- “Back wages-payment of back wages questioned- On

reinstatement, full back wages is not to be paid automatically. It depends upon facts of each case. In the present case

order for payment of back wages modified to the extent of 50% to be paid by the Management.” And in the judgment

reported in 1999-LLJ-I-pg 1260-1265 [SC], between Ajaib Singh Vs Sirhind Co-operative Marketing-Cum-Processing

Service Society, it is clearly held as follows:- “Delay in seeking relief by workman against Termination of Service-

Article 137 of Schedule to Limitation Act not applicable to proceedings under I.D. Act – Workman entitled to 60% of

back wages.” Further, in the judgment reported in 1990 [61] FLR 768, between Delhi Transport Corporation Vs

D.T.C. Mazdoor Congress and others, it is held as follows:- “A confirmed and permanent employee-Terminated

without one month’s notice or pay in lieu of and without holding enquiry and affording any opportunity-Termination

was illegal-Principles of natural justice violated.” In the present case also, the II Party has terminated the I Party

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THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

without following the Principles of natural justice and without holding enquiry and also without offering opportunity to

the I Party to put forth his/her defence. Further, in the judgment reported in 2010-I-LLJ 682 [Bom], between Santhosh

Kumar, S/o Babulal Gupta Vs Sub-Area Manager, Western Coal Fields Ltd., Maharastra and another, it is held as

follows:- “Dismissal of workman from service – no enquiry held – termination order not served on workman –

punishment held disproportionate – deprivation of 50% back wages with warning issued to workman held would be

proper.” Further, the II Party has stated in the counter statement that, the I Party, on medical examination, has been

found to be unfit to work. However, in the same counter statement II Party has stated that, I Party is happily working

elsewhere since the date of termination and the I Party is working elsewhere also earning salary. In such

circumstances, it is seen that, the submissions made by the II Party in the counter statement are self contradictory. On

that ground also II Party is not justified in terminating the services of I Party without following the principles of natural

justice, fairness and reasonableness. Further, on the totality of the above mentioned facts and circumstances, and also,

after taking into consideration the evidences and exhibits mentioned herein below, in the proper perspective, the

following award is passed, in the best interest of justice, equity and fair play.

(i) In C R No. 45/2007 Smt B. Rangamma Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of termination of I

party/Rangamma with effect from 22.05.1998 and II Party is directed to pay to the I Party 50% of the amount,

out of the total amount of back wages and other consequential benefits, salary and allowances and all benefits

due and payable to the I Party from the date of termination, namely, 22.05.1998 till the I Party attains the age of

retirement i.e, 01.12.2015 to which the I Party would have been entitled in the absence of the impugned

termination of service passed by II Party. In computing such benefits the I Party shall be deemed have been in

continuous service of II Party, till the date the I Party attains the age of retirement and the present reference is

answered, accordingly, without cost for the above mentioned peculiar facts and circumstances.

(ii) In C R No. 80/2007 Sh. J. Thiramalegowda Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of termination of I party/J.

Thiramalegowda with effect from 16.04.1998 and II Party is directed to pay to the I Party 50% of the amount,

out of the total amount of back wages and other consequential benefits, salary and allowances and all benefits

due and payable to the I Party from the date of termination, namely, 16.04.1998 till the I Party attains the age of

retirement i.e, 07.04.2001 to which the I Party would have been entitled in the absence of the impugned

termination of service passed by II Party. In computing such benefits the I Party shall be deemed have been in

continuous service of II Party, till the date the I Party attains the age of retirement and the present reference is

answered, accordingly, without cost for the above mentioned peculiar facts and circumstances.

(iii) In C R No. 105/2007 Smt. Thimmamma Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of termination of I party/Thimmamma

with effect from 29.06.1998 and II Party is directed to pay to the I Party 50% of the amount, out of the total

amount of back wages and other consequential benefits, salary and allowances and all benefits due and payable

to the I Party from the date of termination, namely, 29.06.1998 till the I Party attains the age of retirement i.e,

15.01.1999 to which the I Party would have been entitled in the absence of the impugned termination of service

passed by II Party. In computing such benefits the I Party shall be deemed have been in continuous service of II

Party, till the date the I Party attains the age of retirement and the present reference is answered, accordingly,

without cost for the above mentioned peculiar facts and circumstances.

(iv) In C R No. 118/2007 Sh. C.Rangappa Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of termination of I party/

C.Rangappa with effect from 09.09.1998 and II Party is directed to pay to the I Party 50% of the amount, out of

the total amount of back wages and other consequential benefits, salary and allowances and all benefits due and

payable to the I Party from the date of termination, namely, 09.09.1998 till the I Party attains the age of

retirement i.e, 19.12.2010 to which the I Party would have been entitled in the absence of the impugned

termination of service passed by II Party. In computing such benefits the I Party shall be deemed have been in

continuous service of II Party, till the date the I Party attains the age of retirement and the present reference is

answered, accordingly, without cost for the above mentioned peculiar facts and circumstances.

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(v) In C R No. 05/2008 Sh. V. Rangegowda Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of termination of I party/

V. Rangegowda with effect from 30.05.1998 and II Party is directed to pay to the I Party 50% of the amount, out

of the total amount of back wages and other consequential benefits, salary and allowances and all benefits due

and payable to the I Party from the date of removal, namely, 30.05.1998 till the I Party attains the age of

retirement i.e, 17.12.2006 to which the I Party would have been entitled in the absence of the impugned removal

of service passed by II Party. In computing such benefits the I Party shall be deemed have been in continuous

service of II Party, till the date the I Party attains the age of retirement and the present reference is answered,

accordingly, without cost for the above mentioned peculiar facts and circumstances.

(vi) In C R No. 09/2008 Smt. Shankaramma Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of removal of I party/Shankaramma

with effect from 30.06.1998 and II Party is directed to pay to the I Party 50% of the amount, out of the total

amount of back wages and other consequential benefits, salary and allowances and all benefits due and payable

to the I Party from the date of removal, namely, 30.06.1998 till the I Party attains the age of retirement i.e,

17.01.2007 to which the I Party would have been entitled in the absence of the impugned removal of service

passed by II Party. In computing such benefits the I Party shall be deemed have been in continuous service of II

Party, till the date the I Party attains the age of retirement and the present reference is answered, accordingly,

without cost for the above mentioned peculiar facts and circumstances.

(vii) In C R No. 29/2008 Smt. B. Lakshmamma Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of removal of I party/B.

Lakshmamma with effect from 29.05.1998 and II Party is directed to pay to the I Party 50% of the amount, out

of the total amount of back wages and other consequential benefits, salary and allowances and all benefits due

and payable to the I Party from the date of removal, namely, 29.05.1998 till the I Party attains the age of

retirement i.e, 16.06.2008 to which the I Party would have been entitled in the absence of the impugned removal

of service passed by II Party. In computing such benefits the I Party shall be deemed have been in continuous

service of II Party, till the date the I Party attains the age of retirement and the present reference is answered,

accordingly, without cost for the above mentioned peculiar facts and circumstances.

(viii) In C R No. 36/2008 Smt. M. Subbamma Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of removal of I party/M. Subbamma

with effect from 26.05.1998 and II Party is directed to pay to the I Party 50% of the amount, out of the total

amount of back wages and other consequential benefits, salary and allowances and all benefits due and payable

to the I Party from the date of removal, namely, 26.05.1998 till the I Party attains the age of retirement i.e,

01.09.2003 to which the I Party would have been entitled in the absence of the impugned removal of service

passed by II Party. In computing such benefits the I Party shall be deemed have been in continuous service of II

Party, till the date the I Party attains the age of retirement and the present reference is answered, accordingly,

without cost for the above mentioned peculiar facts and circumstances.

(ix) In C R No. 41/2008 Smt. Dodda Honuramma Vs MML

A W A R D

The II Party/Management is not justified in imposing the punishment of removal of I party/Dodda

Honuramma with effect from 30.06.1998 and II Party is directed to pay to the I Party 50% of the amount, out of

the total amount of back wages and other consequential benefits, salary and allowances and all benefits due and

payable to the I Party from the date of removal, namely, 30.06.1998 till the I Party attains the age of retirement

i.e, 01.08.2004 to which the I Party would have been entitled in the absence of the impugned removal of service

passed by II Party. In computing such benefits the I Party shall be deemed have been in continuous service of II

Party, till the date the I Party attains the age of retirement and the present reference is answered, accordingly,

without cost for the above mentioned peculiar facts and circumstances.

(Dictated, transcribed, corrected and signed by me on 06^th November, 2017)

V. S. RAVI, Presiding Officer

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THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

(i)

In C R No. 45/2007 Smt B. Rangamma Vs MML

List of Witness on the side of I Party:

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/

Management

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

Scheme Certificate issued by Employees

Provident Fund Organisation

Ex W-2

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-3

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-4

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

Ex W-5

22.08.2008

Circular relating to enhancing the superannuation

age from 58 years to 60 years

Exhibit marked on behalf of II Party:

Exhibits

Date

Description of Document

Ex M-1

(ii) In C R No. 80/2007 Sh. J. Thiramalegowda Vs MML

List of Witness on the side of I Party:

WW 1

Sh. J. Thiramalegowda, I Party/ workman and also, additional

evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/

Management

WW 1

Sh. B. Rangamma , I Party/ workman and also, additional

evidence

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9923

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

Medical Examination Report Form ‘O’

Ex W-2

22.05.1998

Termination Order issued to I Party

Ex W-3

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-4

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-5

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

Exhibit marked on behalf of II Party:

Exhibits

Date

Description of Document

Ex M-1

Individual Workers History Sheet

(iii)

In C R No. 105/2007 Smt. Thimmamma Vs MML

List of Witness on the side of I Party:

WW 1

Smt. Thimmamma, I Party/ workman and also, additional

evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/

Management

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

29.06.1998

Termination Order issued to I Party

Ex W-2

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-3

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-4

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

Exhibit marked on behalf of II Party:

Exhibits

Date

Description of Document

Ex M-1

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THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

(iv) In C R No. 118/2007 Sh. C.Rangappa Vs MML

List of Witness on the side of I Party:

WW 1

Sh. C.Rangappa, I Party/ workman and also, additional evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/ Management

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-2

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-3

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

Exhibit marked on behalf of II Party:

Exhibits

Date

Description of Document

Ex M-1

(v)

In C R No. 05/2008 Sh. V. Rangegowda Vs MML

List of Witness on the side of I Party:

WW 1

Sh. V. Rangegowda, I Party/ workman and also, additional evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/ Management

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

Membership Application Form

Ex W-2

06.06.1998

Termination order issued to I Party

Ex W-3

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-4

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-5

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9925

Exhibit marked on behalf of II Party:

Exhibits

Date

Description of Document

Ex M-1

(vi) In C R No. 09/2008 Smt. Shankaramma Vs MML

List of Witness on the side of I Party:

WW 1

Smt. Shankaramma, I Party/ workman and also, additional

evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/

Management

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

Ex W-2

30.07.1998

Termination order issued to I Party

Ex W-3

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-4

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-5

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

(vii) In C R No. 29/2008 Smt. B. Lakshmamma Vs MML

List of Witness on the side of I Party:

WW 1

Smt. B. Lakshmamma, I Party/ workman and also, additional

evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/

Management

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

06.06.1998

Termination order issued to I Party

Ex W-2

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-3

12.06.2002

Order passed in W.A. No. 3460/2001 c/w 3459/2001

9926

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

Ex W-4

01.06.2006

Order passed in W.P. No. 26101/2001 c/w 23798/2001,

23797/2001 & 23794/2001

Ex W-5

22.08.2008

Circular relating to enhancing the superannuation age

from 58 years to 60 years

(viii) In C R No. 36/2008 Smt. M. Subbamma Vs MML

List of Witness on the side of I Party:

WW 1

Smt. M. Subbamma, I Party/ workman and also, additional

evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/

Management

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

Membership Application Form

Ex W-2

06.06.1998

Termination order issued to I Party

Ex W-3

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-4

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-5

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

Ex W-6

22.08.2008

Circular relating to enhancing the

superannuation age from 58 years to 60 years

Exhibit marked on behalf of II Party:

Exhibits

Date

Description of Document

Ex M-1

(ix) In C R No. 41/2008 Smt. Dodda Honuramma Vs MML

List of Witness on the side of I Party:

WW 1

Smt. Dodda Honuramma, I Party/ workman and also, additional

evidence

List of Witness on the side of II Party:

MW 1

Sh. Somanna, Assistant Manager, II Party/

Management

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9927

Exhibit marked on behalf of I Party:

Exhibits

Date

Description of Document

Ex W-1

Pension Payment Order

Ex W-2

30.07.1998

Termination order issued to I Party

Ex W-3

29.03.2001

Order passed in W.P. No. 5615/2001

Ex W-4

12.06.2002

Order passed in W.A. No. 3460/2001 c/w

3459/2001

Ex W-5

01.06.2006

Order passed in W.P. No. 26101/2001 c/w

23798/2001, 23797/2001 & 23794/2001

ubZ fnYyh] 20 fnlEcj] 2017

dk-vk- 2895-—vkS|ksfxd fookn vf/fu;e] 1947 (1947 dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] eSllZ

izlkn LVksu oDlZ 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[;k 117@2004) dks çdkf'kr djrh gS] tks dsUnzh; ljdkj dks

07-12-2017 dks çkIr gqvk FkkA

¹la- ,y&29012@51@2004&vkbZvkj (,e)º

Mh- ds- fgeka'kq] voj lfpo

New Delhi, the 20th December, 2017

S.O. 2895.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 117/2004) of the Central Government Industrial Tribunal/Labour

Court-2, Dhanbad now as shown in the Annexure, in the industrial dispute between the employers in relation to the

management of M/s. Parsad Stone Works and their workman, which was received by the Central Government on

07.12.2017.

[No. L-29012/51/2004-IR (M)]

D. K. HIMANSHU, Under Secy.

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. 117 OF 2004

PARTIES

Sri Subhash Mondal,

C/o Shri Jagat Narayan Mondal

Vill & PO: Korka Ghat,

Jharkhand, Godda.

Vs.

Prop. Shri Vijay Kumar Sinha

Prasad Stone Works

PO: Pathana, Sahibganj

Order No. L-29012/51/2004-IR (M) dt. 08.11.2004.

9928

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

APPEARANCES :

On behalf of the workman/Union

Mr. S.N.Ghosh, Ld. Advocate

On behalf of the Management

None

State : Jharkhand

Industry : Mines

Dated, Dhanbad, 13 Oct., 2017

AWARD

The Government of India, Ministry of Labour, in exercise of the powers conferred on them under Sec.10(1)(d)

of the I.D. Act.,1947 has referred the following dispute to this Tribunal for adjudication vide their Order No. L-

29012/51/2004-IR (M) dt. 08.11.2004.

SCHEDULE

“Whether the action of the Management of M/s. Prasad Stone Works, Pathana Sahibganj in terminating the

services of Shri Subhas Mondal, workman without complying Section 25-F of I.D. Act is legal and or justified?

If not, to what relief the above workman is entitled?”

None from either side is reported to be present on date despite having sent a fresh Regd. notice dt 12.09.2017

at the address of the workman who availed adjournments more than five times since its rolling out on the status of

evidence of the workman. Undeniably earlier a series of notices dtt.09.02.2005, 18.02.2005, 18.04.2005, 11.09.2007,

11.12.2007, 04.02.2008 and 19.03.2008 apart from and on Show-Cause Notice dt. 22.08.2005 was sent at the address

of the workman referred in Order of the Reference itself. Similar was the side of the Management also by its nil

representation this time too. However, Management Representation had been nil since its inception and rolling out as

the Reference case. The case was fixed on ex-parte evidence of the workman. The case is all about termination of

service of the workman allegedly by not applying 25 F of I.D. Act, the issue is to be justified through trails.

On meticulous study of the case record, it stands cleared beyond doubt that after having received fresh Regd.

Notice and so many adjournments, the workman desperately proved failure to produce witness, the status the case has

been rolling out since long despite having availed sufficient times .It all show the Court has been dragging on evidence

of the workman, a proceeding that seems to come to a grinding halt due to nonappearance of witness on the part of the

workman. But added to the exposure the case either to has been resolved or workman’s own approach /initiatives paid

off, as it stayed rolling over one stage for a long span of time. As the workman is no longer interested to proceed with

hearings in the instant case to get to the final adjudication. So it should not be rolled out as Reference any more due to

sheer disinterestedness on part of the workman. Therefore, it does not see to hold it otherwise rather inclined to close

it down immediately just to save sheer wastage of time and energy. As such the case is closed as non-existence of

dispute between the parties concerned. An order of ‘No Industrial Dispute Award’ is passed, accordingly.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 20 fnlEcj] 2017

dk-vk- 2896-—vkS|ksfxd fookn vf/fu;e] 1947 (1947 dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] eSllZ

Hkkjrh; thou chek fuxe 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;] xqokgkVh ds iapkV (lanHkZ la[;k 07@2014) dks çdkf'kr djrh gS] tks dsUnzh; ljdkj

dks 12-12-2017 dks çkIr gqvk FkkA

¹la- tsM&16025@3@2017&vkbZvkj (,e)º

Mh- ds- fgeka'kq] voj lfpo

New Delhi, the 20th December, 2017

S.O. 2896.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 07/2014) of the Central Government Industrial Tribunal/Labour

Court, Guwahati now as shown in the Annexure, in the industrial dispute between the employers in relation to the

management of M/s. Life Insurance Corporation of India and their workman, which was received by the Central

Government on 12.12.2017.

[No. Z-16025/3/2017-IR (M)]

D. K. HIMANSHU, Under Secy.

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9929

ANNEXURE

IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, GUWAHATI, ASSAM

Present : Shri Mrinmoy Kumar Bhattacharjee, M.A., LL.B.

Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

Ref. Case No.07 of 2014

In the matter of an Industrial Dispute between :-

Workman Mr. Mrinal Saharia, Udalguri, BTAD, Assam,

…Claimant

-Vrs-

The Management of Life Insurance Corporation of India,

Divisional Office, Guwahati and 05 Others.

…Management

APPEARANCES :

For the Workman

Mr. S.K. Sahariah, Learned Advocate.

For the Management

Mr. A. Kundu, Learned Advocate.

Date of Award : 15.11.2017

AWARD

This Application under sub-Section (2) and (3) of Section 2A of the Industrial Dispute Act, 1947 read with Sub-

Section 2 of Section 33(C) of the Act was filed by the claimant/petitioner Sri Mrinal Saharia before this Tribunal on

01.05.2014. The claimant was originally engaged on contractual basis as Financial Service Executive at Life Insurance

Corporation of India, Mangaldoi for a period of three years and subsequently his contract was renewed for one more

year and later his contract was not extended further. On termination of his engagement he approached the Regional

Labour Commissioner (C), Guwahati but after holding of conciliation proceeding the matter ended in failure and

thereafter the workman filed this petition directly before this Tribunal as per the provision quoted above. Vide order

dated 08.05.2014 my learned Predecessor admitted the petition and registered as Reference Case u/s 2A of the I.D.Act.

On receipt of summons the management side appeared and submitted their written statement.

The facts averred by the claimant in his claim application was that with a desire of making a career in the field

of Insurance, he acquired license to canvas Life Insurance business and after having executed a bond on 08.09.2008 he

was engaged as a Financial Sales Executive in LICI, Mangaldoi for three years. As per terms and conditions executed

between the claimant and the LICI he was engaged for a period of 3 years which was renewable at the sole discretion of

the LICI for another 2 years. Minimum business parameters were laid down in the agreement. It was also claimed that

as per the guidelines of the LICI regarding allotment of alternate channel agents outlet to the Financial Service

Executive it was decided that each Financial Service Executive would be allotted not more than 30 channels but not

less than 15 outlets. According to the claimant in violation of the aforesaid guidelines the claimant was allotted only 6

bank outlets against the minimum 15 bank outlets. On execution of the agreement the claimant joined in the post of

Financial Sales Executive at Mangaldoi on 10.11.2008. It was also claimed that after his successful achievement of the

targets laid down for him he was granted an extension for another period of one year, after completion of three years,

and was allotted to the Mangaldoi Office of LICI. As per his engagement for the 4^th year he was required to bring a

total minimum new business of 360 lives and FPI of Rs.14,00,000/-. According to the claimant he managed to achieve

the target, rather his achievement was much more than minimum required. It was further claimed that vide

communication dated 28.07.2012 the LICI relaxed the target of Financial Service Executive who have completed the

yearly targets. It was also provided that in case a Financial Service Executive fails to manage to procure the stipulated

minimum eligible FPI in two consecutive quarters he will be liable for termination subject to the discretion of the

Authority to relax the same. It was also stated that a Policy No. 485762156 was wrongly credited to the Central Bank

of India Sipajhar Branch though the said policy ought to have been credited to the Central Bank of India in Dimakuchi

Branch. The claimant stated that he informed about the mistake to the Authorities vide his communication dated

01.02.2013 and 07.02.2013. It is further stated that while the claimant was continuing with his work he came to know

from the competent authority that his engagement was considered for termination on account of shortfall in the 3^rd and

4^th quarter of the 4^th year. The claimant then submitted a representation on 15.02.2013 to the Authority and explained

that the shortfall in the 3^rd and 4^th quarter of the 4^th year were beyond his control and was on account of flood and

communal violence in the locality during that time. The claimant thereby prayed for condonation of the aforesaid

shortfall. It was also mentioned that a termination letter dated 16.02.2013 was issued to him terminating his

engagement as Financial Service Executive with effect from 01.12.2012. Thereafter the claimant submitted a

9930

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

representation before the competent authority but no decision was taken on that. After waiting for reasonable time the

claimant approached the Regional Labour Commissioner (C), Guwahati for intervening in the said wrongful and illegal

termination. It was also stated that although the LICI terminated his service with effect from 01.12.2012, the LICI

accepted the premium collected by the claimant through his business efforts till the month of June, 2013 but did not pay

him any remuneration for the period December,2012 to June, 2013. The applicant, among other reliefs, sought relief of

setting aside of the order of termination letter dated 16.02.2013 and passing of an Award to direct re-engagement for

the 5^th year. The claimant also prayed for direction for releasing his remuneration from the month of December,2013 to

June, 2013.

The management/Opposite Party appeared and contested the claim by filing written statement wherein the main

plea taken by the management was that the claimant was never a workman of the management and he was just an

Agent for procuring business on behalf of the management. It was stated that his nature of work was neither

manual,unskilled, skilled, technical, operational, clerical nor supervisory, hence, he can not be considered as workman

as per Section 2(s) of the I.D.Act. It was also stated that the claimant was engaged for specified period through a

contract for procuring business for the Corporation as per the Agreement which was executed between the claimant and

the management of the LICI. It was also stated that as per the agreement the extension of the engagement of the

claimant was the sole discretion of the management and as he failed to achieve the stipulated target his contract was

not renewed after the completion of 4^th year. It was also stated that after his initial engagement for 3 years in the year

2008 as per the clause of the agreement he was given engagement for a period of one year with stipulated target to

achieve but as in the 3^rd and 4^th quarter of the 4^th appraisal year of his engagement he could not achieve the target, his

engagement was terminated. In brief the main contention of the LICI was that the claimant has never been a workman

of the management. Rather he was engaged as a Financial Service Executive and his engagement as well as the

termination as Financial Service Executive was strictly as per the agreement between the claimant and the management

of LICI. It was also stated that since the claimant was not a workman this Tribunal has got no jurisdiction to

decide the matter.

Upon consideration the pleadings of the parties my learned Predecessor framed the following issues for

decision.

“1)

Whether the Reference is maintainable in its present form under Sub Section (2) & (3) of Section 2A,

Section 33C (2) of the Industrial Dispute Act, 1947?

Whether the claimant is a workman under Industrial Dispute Act.?

Whether the contract entered into between the parties is a contract for service or contract of service?

Whether an agent of Life Insurance Corporation is an employee of the Corporation?

Whether the claimant fulfills the target fixed by the Management?

Whether the action of the Management in disengaging the claimant is arbitrary and against the principle

of natural justice?

Whether the claimant is entitled to any relief as prayed for ?”

During argument there was a broad argument that the prime issue in the matter will be whether the claimant was

a workman under the I.D.Act or not? If he is found to be a workman the remaining issues shall also have to be decided

but if it is found that the claimant was not a workman under the management and there was no relationship of employer

and employee between the management and the claimant, the remaining issue will be redundant.

It appears to me that for effective determination of the matter, Issues No. 1 & 2 are required to be decided first.

I shall therefore, deal with the evidence adduced by the parties in this matter to decide the aforesaid three issues. As the

aforesaid three issues are closely linked with each other these will be decided together as under.

Both sides examined one witness each. In his evidence the claimant Sri Mrinal Sahariah (W.W.1), narrated the

basic facts like his joining in the LICI at Mangaldoi as Financial Service Executive on 10.11.2008 on the basis of an

agreement for 3 years. This agreement was exhibited as Exhibit-1. Exhibit-2 is the copy of the letter of his appointment

wherein the details of the terms of selection and minimum business parameter etc. were mentioned. His joining report

was also exhibited as Exhibit-4. He further stated that on completion of 3 years of job contract successfully his contract

as Financial Service Executive was extended for one more year vide Exhibit-5 and Exhibit-5 specifically mentioned

the business parameter. It was also stated that on completion of extended 4^th year of his engagement the management

claimed that he could not achieve his target for the 3^{rd & 4th} quarter of the 4^th year. It was also stated that on scrutiny it

was found that one life was wrongly credited under the FSE Code of his own colleague and he made representation for

correction the same. He further claimed that on completion of 4^th year he was allowed to work with effect from

December,2012 to June,2013 but for this period he was not paid remuneration though the management accepted the

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9931

premium collected and deposited by him to the management during that period. He exhibited certain documents.

Exhibit-9 and 10 specified the business procured by him during the quarter December,2012 to March 2013 & April

2013 to June,2013. Another document sought to be exhibited by him showing his attendance for the period

December,2012 to June, 2013 was objected by the management side. He further stated that the termination letter was

handed over to him in the month of August,2013 though the date therein was 16.02.2013.

He was cross-examined at length by the management side and it appeared that the engagement of the claimant in

terms of the agreement was not in dispute in this matter. The witness also admitted that there was no specific provision

in the agreements (Exhibit-2) and (Exhibit-5) that the management was bound to re-engage him. He further admitted

that his job was marketing assessment and dealing with Bank Outlets and clients. During cross-examination the

witness stated that on Exhibit-6 and Exhibit-7 there clearly appeared erasing of dates. Admittedly those documents

were submitted and exhibited by the witness himself. The witness however denied the suggestion that he had tempered

the aforesaid documents. During cross-examination he was also confronted with the copy of a document as Exhibit-A

which was a representation submitted by the witness on 15.2.2013 to the Sr. Divisional Manager, LICI whereupon his

signature is also exhibited as Exhibit-A(1). The witness also admitted that in Exhibit-8 the number of life and EFPI in

respect of the 2^nd quarter of the 4^th year has been shown as 189 and Rs.822877/- respectively whereas in Exhibit-A the

number of life and EFPI in respect of the same quarter of the same year was shown as 190 and Rs.8.29/- lacs. He also

admitted that as per Exhibit-A the number of life and EFPI in respect of 3^rd quarter of the 4^th year was 68 & Rs. 2.36

lakhs respectively though in Exhibit-8 (proved by the witness), business procured by him in the 3^rd quarter of the 4^th

year was (the number of life and EFPI) were shown as 68 and Rs.2,55,000/-. The witness however denied the

management suggestion that Exhibit-8 was not issued by the management and he himself had manufactured the same.

He also admitted that in his evidence in-chief he mentioned that Exhibit-6 was his letter dated 09.02.2013 whereas

Exhibit-6 revealed that letter was dated 01.02.2013. He further admitted that in para-14 of his claim application he

mentioned that termination letter was issued on 16.02.2013 but in evidence-in-chief he stated that it was handed over to

him in the month of August,2013. The management suggestion was that the termination letter was issued to him on

16.02.2013. He also admitted that his contract for engagement was extended upto 4^th year and no further extension was

granted by the management. He however stated during cross-examination that after completion of his 4^th year he

continued to work. The witness also denied the management suggestion that the documents Exhibits-8, 9,10,11 and

12 were manufactured by him. He also admitted during the cross-examination that his job was mainly marketing and he

is bound to fulfill the target. He also stated during his cross-examination that due to his failure to fulfill the target for 3^rd

and 4^th quarter of his 4th year of service, his service was not continued by the management. He also stated that though

in his claim statement he mentioned that he was not paid remuneration for the month of December, 2012 but in reality

he has received his remuneration for the month of December,2012, which he mentioned in his evidence-in-chief.

Management side examined one Sri Prasanta Kumar Barman who was serving as Manager (Bank and Alternate

Channel), Life Insurance Corporation of India, Guwahati Division at the time of giving evidence. According to him the

Financial Service Executive are engaged by the LICI to canvass LICI business and their terms of appointment are

decided through an agreement with them. Their primary duty is to interact with the clients, visit Bank Branches and

outlets to canvass for new business for the Company but they are not subject to any direction from the Corporation as

to how and when they attend their client and visit Bank outlets. The witness further stated that the duty of the FSE is

one of promotional in nature by which he is supposed to promote the various products of the Company and they do not

receive any benefit like gratuity, bonus, Medical benefits and Pension etc which a regular employee is entitled to get.

The facts regarding engagement of the claimant in the LICI , Mangaldoi through an agreement are not in dispute in this

case. The witness further stated that if the Financial Service Executive failed to procure the stipulated minimum new

business in 2 successive quarters his engagement is terminated. He further stated that initially the claimant was engaged

through a contract for a period of 3 years from 2008 and later his engagement was extended by one more year. But in

the 3^rd and 4^th quarter of the 4^th year the claimant could not procure the stipulated new business and hence his

engagement was not extended after completion of the 4^th year. The witness further stated that the business procured by

the claimant after completion of the 4^th year with full knowledge that his contract had expired was completely illegal

and he illegally utilized his previous identity to procure business. He however stated that the LICI accepted those

business to protect its reputation and also to protect the interest of the policy holders and same could not be considered

to be a ground for his re-engagement.

10.

During cross examination he stated that he did not know whether the claimant was required to get 15 outlet but

was given 6 outlets for work. He also admitted that on 16.2.2013 by a letter the claimant was notified by the Chief

Manager ( MB & AC) that his engagement as FSE has been terminated by the competent authority with effect from

01.12.2012. The witness also admitted the document which was marked as Annexure-L and was exhibited by the

management witness as Exhibit-F. On perusal of the Exhibit-F it appears that the termination of the claimant as FSE

was noted down with effect from 01.12.2012 but was communicated to him vide letter dated 16.02.2013. The witness

also admitted that the claimant procured business for LICI till June, 2013 and the business procured by the claimant

9932

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

during the period December, 2012 to June, 2013 was accepted by the LICI in the interest of its reputation. The witness

also admitted that during that period from December, 2012 to June,2013 no remuneration was paid to the claimant.

11.

From the evidence of the parties, as discussed aforesaid, it appeared that the claimant was indeed engaged by the

management as Financial Service Executive for a period of three years through an agreement and there was a provision

that the period of engagement could be extended for further two years at the discretion of the management. From the

agreement (Ext 1), it was absolutely clear that the maximum period of engagement of the claimant could be five years

at the sole discretion of the management. It also clearly appeared that terms of engagement of the claimant was

extended for one more year with a rider that he would be obliged to procure a minimum amount of business for the

management. It also appeared from the evidence (including the documents) that the business procured by the claimant

during 3^rd & 4^th quarters of 4^th year of his engagement was short of the stipulated target. Admittedly, his

engagement did not appear to be in the nature of a workman and was wholly guided by the agreements between the

claimant and the management. As per the original agreement he was engaged for 3 years with a provision for extension

for 2 more years at the discretion of the management. However, his engagement was extended for one year but on

completion of the 4^th year his engagement was not extended on the ground that he failed to achieve the business target.

Failure to achieve the business target was clearly proved. On careful perusal of the engagement contract (Ext 1) of the

claimant and his designation (Financial Service Executive) and subsequent extension for one year (Ext 5) revealed that

he could not be considered as a “workman” as per the provisions of sec 2(s) of the I. D. Act, 1947. He was virtually an

agent of the management to procure new business and terms of his engagement was clear that he was not engaged as a

“workman” within the meaning of Industrial Dispute Act, 1947. In view of this, the reference brought under Sub

Section (2) & (3) of Section 2A, Section 33C (2) of the Industrial Dispute Act, 1947 appears to be not maintainable.

The issues No.1 & 2 are decided accordingly. Since the claimant has been held to be not a workman of the LICI, he

clearly, appears to be not entitled to any relief under the provisions of Industrial Dispute Act, 1947. This reference

therefore, is not maintainable. However, certain points, raised by the claimant regarding non- payment of remuneration

for a certain period for which he actually continued to procure business for LICI may be a matter for adjudication and

the claimant, is at liberty to approach appropriate forum for decision on those points, if he so desire. Since the claimant

is held to be not a workman, this point cannot be adjudicated by this Tribunal.

12.

Send the no relief Award to the Ministry as per procedure.

Given under my hand and seal of this Court on this 15^th day of November,2017 at Guwahati.

MRINMOY KUMAR BHATTACHARJEE, Presiding Officer

ubZ fnYyh] 20 fnlEcj] 2017

dk-vk- 2897-—vkS|ksfxd fookn vf/fu;e] 1947 (1947 dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] eSllZ ih-

lh- ckaxwj feujYl 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;] t;iqj ds iapkV (lanHkZ la[;k 30@2014) dks çdkf'kr djrh gS] tks dsUnzh; ljdkj dks

01-12-2017 dks çkIr gqvk FkkA

¹la- ,y&29012@6@2014&vkbZvkj (,e)º

Mh- ds- fgeka'kq] voj lfpo

New Delhi, the 20th December, 2017

S.O. 2897.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 30/2014) of the Central Government Industrial Tribunal/Labour

Court, Jaipur now as shown in the Annexure, in the industrial dispute between the employers in relation to the

management of M/s. P.C. Bangur Minerals Limited and their workman, which was received by the Central Government

on 01.12.2017.

[No. L-29012/6/2014-IR (M)]

D. K. HIMANSHU, Under Secy.

vuqca/k

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] t;iqj

lhlh

lh-th

th-vkbZ

vkbZ

vkbZ-VhVhVhVh- izdj.k la

izdj.k la

izdj.k la- 30 / 2014

Hkjr ik.Ms;] ihBklhu vf/kdkjh

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9933

jsQjsUl ua- L- 29012/6/2014 –IR(M) fnukad 02/04/2014

Shri Durgesh Kumar Kumawat & other,

C/o Mahamantri,

Pathar Khan kamgar Union,

Bengali Colony, Cantt.,

Kota (Rajasthan)

v/s

The Manager,

M/s P.C. Bangur Minerals Ltd.,

Chechut Lime Stone Mines,

Tehsil - Ramganj Mandi,

Dist - Kota (Rajasthan)

izkFkhZ dh rjQ ls

% Jh ujsUnz dqekj frokjh & ,MoksdsV

vizkFkhZ dh rjQ ls

% Jh :fiu dkyk & ,MoksdsV

% iapkV %

fnukad % 30- 10- 2017

dsUnzh; ljdkj }kjk vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 10 mi/kkjk 1 [k.M+ (?k) ds vUrxZr

fnukad 02-04-2014 ds vkns’k ls izsf"kr fookn ds vk/kkj ij ;g izdj.k U;k;fu.kZ;u gsrq lafLFkr gSA

dsUnzh; ljdkj }kjk izsf"kr fookn fuEuor~ gS %&

“Whether the action of the management of M/s P.C. Bangur Minerals Ltd., in terminating the

services of Shri Durgesh Kumar Kumawat S/o Shri Bhairulal and Shri Om Prakash Rathore

S/o Mangi Lal w.e.f. 08.11.2012 is legal and justified? What relief the workman are entitled

to?”

LVsVesUV vkWQ Dyse es fn;s x;s rF;ksa ds vuqlkj Jfedx.k Jh nqxZs'k dqekj dqekor iq= Jh Hks:

yky ,oa Jh vkSeizdk'k iq= Jh ekaxh yky jkBkSM+ dk dFku laf{kIrr% ;g gS fd Jh nqxZs'k dqekj dqekor

dh fu;qfDr 8-3-2005 dks gsYij (esdsfud) rFkk Jh vkSeizdk'k jkBkSM+ dh fu;qfDr 28-11-05 dks fu;qfDr

okVj iEi (gsYij) ds in ij gqbZ FkhA vkxs dFku gS fd os fu;kstd ds ;gka fnuakd 8-11-2012 dks tc

M;wVh dj jgs Fks rks osru Hkqxrku ds fy;s fnu ds yxHkx 12-30 cts dk;kZy; esa cqyk;k x;kA Jfedx.k

dks osru nsus ds le; Jfed vkseizdk'k ls rks /kks[ks ls nks jftLVjksa ij gLrk{kj djk fy;s x;s tcfd

izR;sd ekg ,d jftLVj ij osru Hkqxrku dj gLrk{kj djk;s tkrs FksA Jfed nqxZs'k dqekj us nks jftLVj

ij gLrk{kj djus ls euk dj fn;k rks mlds lkFk xkyh xykSp dh x;h ,oa Jfedx.k dks osru dk

Hkqxrku Hkh ugha fd;k x;k mUgksusa cksul dh ekax dh rks mUgsa cksul Hkh ugha fn;k x;k vkSj Hkxk fn;k

x;kA

Jfedx.k blds ckn ls jkStkuk fu;kstd ds ;gka lkIrkfgd vodk'k dks NksMdj M;wVh gsrq vk jgs

gS] ijUrq fu;kstd foi{kh us Jfedx.k dks M;wVh ij ugha fy;kA Jfedx.k us fnuakd 12-11-2012 dks i=

Hkstdj M;wVh ij ysus dh ekax dh ijUrq fu;kstd us Jfedx.k dks M;wVh ij ugha fy;k vkSj bl i= dk

mRrj Hkh ugha fn;kA blds ckn Jfedx.k us fnukad 29-11-12 dks M;wVh ij ysus ds lEcU/k esa fjiksVZ ds

lkFk fu;kstd ds ;gka viuh mifLFkfr nh ijUrq fu;kstd us mifLFkfr fjiksVZ dks ysus ls euk dj fn;k

vkSj Jfedx.k dks M;wVh ij ysus ls Hkh euk dj fn;k nksuksa Jfedx.k dks mifLFkfr jftLVj ij gLrk{kj

ugha djus fn;k vkSj dgk fd ^^rqedks tks djuk gks dj yks] dke ij ugha yxk;sxsa^^A Jfedx.k dks etcwjh

o'k mDr mifLFkfr fjiksVZ dks jftLVMZ ,-Mh- Mkd ls Hkstuk iMk tks fu;kstd dks izkIr gks pqdh gSA

fu;kstd us bldk Hkh Jfedx.k dks dksbZ mRrj ugha fn;kA bl izdkj ls fu;kstd us Jfedx.k dks

fnuakd 8-11-2012 ls gh fudky fn;k gS] tks voS/k gSA

9934

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

Jfedx.k us fu;kstd ds ;gka ij mDr vof/k esa 240 fnu ls dkQh vf/kd le; rd dk;Z fd;k

gSA

Jfedx.k dk fookn vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 2 (vks-vks-) ds vUrxrZ ^^NaVuh^^ dh

ifjHkk"kk esa vkrk gSA

fu;kstd us Jfedx.k dks ukSdjh ls fudkys tkus ds iwoZ vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk

25 ,Q ds izko/kkuksa ds vuqlkj ,d ekg dk uksfVl ugha fn;k vkSj u blds cnys esa ,d ekg ds vfxze

osru dk Hkqxrku gh fd;kA blds vfrfjDr fu;kstd us Jfedx.k dks ukSdjh ls fudkys tkus ds iwoZ

NaVuh dk eqvkotk Hkh ugha fn;k gS vkSj u gh nsus dk izLrko fd;k gSA

fu;kstd us Jfedx.k dks ukSdjh ls fudkyus ds iwoZ vkS|ksfxd fookn (dsUnzh;) fu;ekoyh 1957 ds

fu;e 77 ds izko/kkuksa ds vuqlkj ofj"Brk lwph dk izdk'ku Hkh ugha fd;k gSA Jfedx.k dks ukSdjh ls

fudkys tkus ds le; Jfedx.k ls dfu"B vU; dbZ Jfed fu;kstd ds fu;kstu esa ekStwn ,oa dk;Zjr

FksA bl izdkj fu;kstd us Jfedx.k dks ^^ykLV de QLVZ xks^^ ds fl)kUr dks udkj dj ukSdjh ls

fudkyk gS] tks vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 25 th ds izko/kkuksa dh vogsyuk gSA

fu;kstd us Jfedx.k dks ukSdjh ls fudkys tkus ds ckn vU; Jfed lsok esa fu;ksftr dj fy;s gS]

ijUrq Jfedx.k dks fu;kstu gsrq volj iznku ugha fd;k gS] tks vkS|ksfxd fookn vf/kfu;e 1947 dh

/kkjk 25 ,p ds izko/kkuksa dh vogsyuk gS rFkk fu;kstd dk ;g d`R; ^^vuqfpr Je O;ogkj^^ dh ifjHkk"kk

esa Hkh vkrk gSA

Jfedx.k us fu;kstd ls Hkkjr ljdkj }kjk le; le; ij ?kksf"kr U;wure osru nj ls de osru

nsus ij vkifRr dh Fkh] bl dkj.k ls fu;kstd us Jfedx.k dks uktk;t ijs'kku dj jgs gS vkSj M;wVh

ij ugha ys jgs gSA

10- izkFkhZ ;wfu;u us fu;kstd dks jftLVMZ ,-Mh-Mkd }kjk fnuakd 19-12-2012 dks i= Hkstdj i= izkfIr

ds 3 fnu esa Jfedx.k dks M;wVh ij ysus dh ekax dh] vU;Fkk vof/k lekIr gksus ij l{ke Je dkuwuksa ds

vUrxZr dkuwuh dk;Zokgh djus dh lwpuk nh tks fu;kstd dks izkIr gks x;k] ijUrq fu;kstd us Jfedx.k

dks M;wVh ij ugha fy;k vkSj bl i= dk Hkh dksbZ mRrj Hkh ugha fn;kA Jfedx.k us izkFkZuk dh gS fd

mUgsa fu;kstd ds ;gka fiNys lEiw.kZ osru lfgr leLr fiNys ykHkksa ds lkFk lsok esa iqu% fu;ksftr

djk;k tk; rFkk izkFkhZ ;wfu;u dks fu;kstd ls [kpkZ eqdnek ,oa vU; U;k;ksfpr lgk;rk fnyk;k tk;A

11- ;kfpdk ds fo:) tokc esa foi{k dk dFku gS fd foi{kh laLFkku esa izkFkhZx.k nSfud osruHkksxh ds

:i esa gsYij ds in ij dk;Zjr Fks ,oa nksuksa ;kphx.k fnuakd 8-11-12 dks nksigj ckn dk;Z ij vkuk Lo;a

cUn dj fn;sA foi{kh ;kphx.k ds fu;kstd ugha gS ,oa ;kphx.k }kjk mudh fu;qfDr dh n'kkZ;h x;h

frfFk;ka xyr gSA Jh nqxZs'k dqekj fnukad 1-11-08 rFkk Jh vkSeizdk'k fnuakd 24-7-06 dks izFke ckj dk;Z

ij mifLFkr vk;s FksA

12- vkxs dFku gS fd foi{k us izkFkhZx.k dks dk;Z ij okil vkus gsrq fnuakd 23-11-12 ,oa 12-12-12 dks

i= Hksts Fks rFkk fnuakd 12-12-12 dks iaftd`r Mkd ls Hksts x;s i= mUgsa izkIr Hkh gks x;s Fks fQj Hkh

izkFkhZx.k dk;Z ij okil ugha yksVsaA fnukad 8-11-12 dks jftLVj esa gLrk{kj djokus dk dFku izkFkhZx.k dk

eux<+Ur dFku gS D;ksafd ,slh dksbZ ?kVuk ml fnu izkFkhZx.k rFkk foi{kh ds e/; ugha gqvkA

13- izkFkhZx.k rFkk foi{k ds chp cksul vFkok osru Hkqxrku dk dksbZ fookn ugha jgk gS rFkk foi{k lnSo

osru rFkk cksul Hkqxrku gsrq rRij jgk gS ,oa fnukad 22-12-12 dks Hkh lgk;d Je vk;qDr] dksVk ds

le{k izkFkhZx.k dks dk;Z ij mifLFkr gksus rFkk cdk;k osru vFkok o"kZ 11&12 dks cksul dks dk;kZy; esa

vkdj izkIr djus ds fy, lwfpr fd;k Fkk] ysfdu ;wfu;u ds cgdkus esa u dk;Z ij mifLFkr vk;s u

Hkqxrku izkIr djus gsrq mifLFkr vk;sA izkFkhZx.k dks dHkh Hkh U;wure osru ls de osru Hkqxrku ugha fd;k

x;k gSA foi{k }kjk izkFkhZx.k dks /kedkus dh ckr Hkh xyr gSA

14- fnuakd 23-11-12 dks izkFkhZx.k O;fDrxr :i ls foi{k us dk;Z ij vkus ds fy, i= nsus dk izek.k

fd;k ftls izkFkhZx.k us ysus ls bUdkj dj fn;k FkkA izkFkhZx.k dk dFku xyr gS fd fnuakd 29-11-12 dks

dk;Z ij mifLFkfr nsus x;s rks mUgsa dk;Z ij mifLFkfr ysus ls euk dj fn;k x;kA izkFkhZx.k us fdlh Hkh

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9935

o"kZ esa 240 fnu ls ;k mlls vf/kd fnu dk;Z ugha fd;k gSA izkFkhZx.k dk okn /kkjk 2 (vks-vks-) ifjf/k esa

ugha vkrk gS D;ksafd mUgsa dHkh dk;Z ls ugha gVk;k x;k ,oa /kkjk 25 ,Q ds izkfo/kku izkFkhZx.k ds ekeys esa

ykxw ugha gksrs gSaA izkFkhZx.k dks dk;Z ls ugha gVk;k x;k] blfy, uksfVl nsus dh vko';drk ugha FkhA

izkFkhZx.k Loa; dk;Z ij vkuk cUn dj fn;s ,oa ;wfu;u ds cgdkos esa vkdj foi{k ds vkxzg ij Hkh dk;Z

ij ugha vk;sA bl izdkj foi{k ds fo:) /kkjk 25 th] 25 ,p ,oa fu;e 77 ds mYya?ku dk Hkh dksbZ

ekeyk ugha curk gS d;ksafd ;s izkfo/kku ykxw ugha gksrs gSA izkFkhZx.kksa dks foi{k }kjk dHkh Hkh de osru

ugha fn;k x;kA ;kfpdk ds fo:) izLrqr tokc esa fn;s x;s vk/kkjksa ij izkFkhZx.k dh ;kfpdk [kkfjt dh

tk;A

15- foi{k ds tokc ds fo:) ;kph i{k us izR;qRrj izLrqr dj ;kfpdk ds dFku dh iqujko`fRr dh gS ,oa

tokc esa izLrqr dFku dks vLohdkj fd;k gSA tokcqytokc ds dFku ds leFkZu esa ;kphx.k us vfHkys[k

layXu fd;s gSA

16- Jh nqxZs'k dqekj dqekor ,oa Jh vkseizdk'k jkBkSM+ us ;kfpdk ds leFkZu esa 'kiFk&i= izLrqr fd;k

vkSj Jh nqxZs'k dqekj dh izfrijh{kk dh x;hA Jh vkseizdk'k jkBkSM+ dh izfrijh{kk yfEcr jgus ds nkSjku

i{kdkjksa ds e/; lqyg djus dh okrkZ lEiUu gqbZA fnukad 30-10-17 dks yksd vnkyr esa i{kdkjksa us

lqygukek izLrqr fd;k ftlds vk/kkj ij izkFkhZ dh ;kfpdk dk fuLrkj.k fd;k x;kA lqygukek fnukafdr

30-10-17 fuEuor~ gS %&

le{k dsUnzh; ljdkj vkS|ksfxd U;k;kf/kdj.k o Je U;k;ky; t;iqj ¼jkt-½

okn la[;k lh-th-vkbZ-Vh- 30 / 2014

nqxsZ'k dqekj dqekor o vU; cuke

cuke

cuke ih-lh- ckaxM feujYl

okLrs le>kSrk vokMZ ikfjr fd;s tkus gsrq

egksn;]

mijksDr okn ekuuh; U;k;ky; ds le{k rFkk dfFkr fnukad 8-11-12 ds lsokeqfDr ds lEcU/k esa yfEcr gSA

foi{kh us tokc izLrqr dj fuosnu fd;k gS fd izkFkhZx.k us fnukad 8-11-12 dks nksigj i'pkr dk;Z ij

vkuk cUn dj fn;kA

izkFkhZx.k foi{kh laLFkku esa nSfud osru ij dk;Zjr FksA izkFkhZ nqxZs'k dqekj o vkseizdk'k us foi{kh ls izkFkZuk

dh gS fd os le>kSrk djuk pkgrs gS rFkk u;s fljs ls os dk;Z djuk pkgrs gSA izkFkhZ us fuosnu fd;k gS

fd mudk tks cdk;k Hkqxrku gS og mUgsa fnyk fn;k tkos RkFkk o fnuakd 8-11-12 ls vkt fnukad 30-10-

17 rd dh dksbZ jk'kh dh ekax ugha djsaxs u gh okn la[;k 30@14 eas izLrqr Dyse lEcfU/kr ekax djsaxsA

foi{kh us izkFkhZ dh izkFkZuk ij fopkj dj fu.kZ; fy;k gS fd izkFkhZ dk tks dksbZ 8-11-12 ls iwoZ dk dksbZ

cdk;k gS tks vkseizdk'k dk 40]000 gS o nqxZs'k dk 20]000 :i;s gS mls og ns nsaxsA rFkk u;s fljs ls iwoZ

dh Hkkafr ubZ fu;qfDr vkt ls rhu fnu esa iznku dj nsaxs rFkk 8-11-12 ls vkt fnu dk tks Hkqxrku @

jkf'k lsok dh fujUrjrk bR;kfn dk dksbZ ykHk ugha nasxsA

nksuksa i{k mDr le>kSrs ls jkth gaSA vr% bl ifjis'k dk le>kSrk vokMZ ikfjr djus dk Je djsaA

okLrs foi{kh

okLrs izkFkhZ

gLrk{kj viBuh;

nqxZs'k

(bUnznsoflag) fnukad 30-10-17

vkseizdk'k

izcU/kd

30-10-17

gLrk{kj iBuh; nqxsZ'k

gLrk{kj iBuh; vkseizdk'k

30-10-17

9936

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

17- lqygukes ds vk/kkj ij izkFkhZ dh ;kfpdk dk fuLrkj.k djrs gq, fuEu vkns'k ikfjr fd;k x;k %&

30-10-2017

yksd vnkyr

vkt i=koyh yksd vnkyr esa izLrqr gqbZA iqdkj dh x;hA mHk;i{k ds fo}ku izfrfuf/k mifLFkr

gSA ;kphx.k Jh nqxZs'k dqekj vkSj vkseizdk'k jkBkSj mifLFkr gSA foi{k dh rjQ ls Jh bUnznso flag

izcU/kd mifLFkr gSA

i{kdkjksa }kjk lqygukek izLrqr fd;k x;kA lqyg dh 'krsZa mHk;i{k dks i<+dj lqukbZ ,o¡ le>k;h

x;hA i{kdkjksa us lqygukek LosPN;k djuk Lohdkj fd;kA izcU/ku us Lohdkj fd;k gS fd vkt dh frfFk

ls rhu fnu ds vUnj nksuksa deZpkjhx.k@;kphx.k dks lqygukek esa vafdr /kujkf'k dk Hkqxrku dj nsaxs

,oa mUgsa lsok esa iqu% u;h fu;qfDr ij j[k ysxsaA ;g Hkh lgefr i{kdkjksa esa cuh fd izkFkhZx.k fu/kkZfjr

v|ru U;wure ost (wage) izkIr djasxsA lqygukek fnuakfdr 30-10-17 ,okMZ dk va'k gksxkA

18- U;k;fu.kZ;u gsrq izsf"kr funsZ’k dk mRrj mDr izdkj fn;k tkrk gSA iapkV rn~uqlkj ikfjr fd;k

tkrk gS A

Hkjr ik.Ms;] ihBklhu vf/kdkjh

ubZ fnYyh] 20 fnlEcj] 2017

dk-vk- 2898-—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 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 22@2012) dks çdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 07-12-2017 dks çkIr gqvk FkkA

¹la- ,y&30012@5@2012&vkbZvkj (,e)º

Mh- ds- fgeka'kq] voj lfpo

New Delhi, the 20th December, 2017

S.O. 2898.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 22/2012) 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. Hindustan Petroleum Corporation Limited and their workman, which was received by the Central

Government on 07.12.2017.

[No. L-30012/5/2012-IR (M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present : Sri Muralidhar Pradhan, Presiding Officer

Dated : the 7th day of November, 2017

INDUSTRIAL DISPUTE No. 22/2012

Between:

Sri Degala Ramu,

D.No.36-92-234,

ASR Nagar, Burma Camp,

Kancharapalem (Post)

Visakhapatnam-530008

…Petitioner

AND

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9937

The Executive Director/Director-Marketing,

HPCL, Headquarters Office,

Petroleum House, 17, Jamshedji Tata Road,

Mumbai - 400020

The General Manager,

BU SZ, HPCL, South Zone,

Post Box No.3045,

Gandhi Irwin Road,

Egmore, Chennai – 600 008

The Chief Installation Manager,

HPCL, Visakha Terminal,

PB No.1106, Malkapuram,

Visakhapatnam – 530 011

…Respondents

Appearances :

For the Petitioner

M/s. G.V.L.N. Murthy & M. Govind, Advocates

For the Respondent

M/s. M. Ravindranath Reddy & B. Sri Narayana, Advocates

AWARD

The Government of India, Ministry of Labour by its order No. L-30012/ 5/2012-IR(M) dated 4.6.2012 referred the

following dispute under section 10(1)(d) of the I.D. Act, 1947 requiring this forum to decide the question:

SCHEDULE

“Whether the action of the management of Hindustan Petroleum Corporation Limited, Visakha Terminal,

Visakhapatnam in dismissing the services of Shri Degala Ramu, Ex-Filler vide order dated 2.3.2010 is legal

and justified? What relief the workman is entitled to?”

On receipt of the reference this Tribunal has registered and numbered the reference as I.D. No. 22/2012 and

issued notices to both the workman and the management. They both appeared before the court and engaged their

respective counsels with the leave of the court and consent of either party.

The averments made in the claim statement in brief are as follows:

The Petitioner was appointed in the Respondents’ corporation on 6.11.1987 and since then he worked to the

utmost satisfaction of his superiors till his dismissal from service with effect from 2.3.2010. It is stated that while the

Petitioner was working as a Filler, the third Respondent has issued proceedings suspending his services with immediate

effect on the allegation that “information was received by the Executive Operating Officer (Planning) Sri V.

Chandrasekhar that Tank Truck No.AP 31 U 2529 was loaded under Product Delivery Report (PDR) No.7006225 R1

with “excess product” and was about to leave the terminal.” The above PDR number is incorrect and the correct No.

is 7005969 as per the records. Though the alleged incident allegedly occurred on 22.8.2007, no opportunity was given

to the Petitioner to explain the facts and he was suspended on 10.9.2007 followed by charge sheet dated 17.10.2007.

The Petitioner submitted his explanation denying all the charges explaining all the aspects in detail with respect to his

duties and the duties of other officers involved in the process of filling and delivery of commodities. One domestic

enquiry was ordered by the 2^nd Respondent without considering the explanation of the Petitioner. The Enquiry Officer

acted biasedly during the enquiry proceeding, and submitted his report biasedly. He purposefully ignored some

documentary evidence which is in favour of the Petitioner and as per his report 1^st charge was not proved. Without

application of mind, the 2^nd Respondent dismissed the services of the Petitioner vide order dated 2.3.2010. On the date

of the alleged incident i.e., on 22.8.2007, after completion of day’s duty, the Petitioner left the office by 16.30 hrs,

before his leaving the office he was verbally asked to narrate the facts regarding the loading T.T. and accordingly he

has submitted the same. But detection of excess load was not done in his presence, nor his explanation was called for.

All the officers who signed in the inspection report were not physically present at the time of detection, assessment and

unloading the alleged excess product load, which is a daily, mandatory practice to note the opening and closing

reading from the storage tanks. On 22.8.2007, the Petitioner was posted to fill the TTs from ST No.HSD 291 as per

the invoice. The “excess report” for that day prepared by Sri P. B. Murali Krishna, CIM does not show any variation

from which it is clearly evident that there is no possibility of excess loading by the Petitioner in any TT, particularly in

TT No.AP 31 U 2529. This aspect was ignored by the Enquiry Officer. In the enquiry the Ramp Officer to whom

power was given by the Respondents had clearly and categorically stated that when he has checked the T.T., with dip

rod, it was found OK and no excess product was filled. The procedure in vogue is as follows: the TT after necessary

9938

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

examination will be placed on one of the ramps. The filler like the Petitioner sits in between two ramps and operates

two taps levers on either side with his two hands. The driver/cleaner of the vehicle stands on top of the Tanker and

asks the filler to close the tap when the tank is filled to the approximate level. The filler does not contain any apparatus

(flow meter) for measuring the quantity. After filling, the Ramp Officer checks the quality as well as quantity with dip

rod and confirms the quantity and passes the invoice and the tanker will be allowed to leave the ramp in his presence.

It is clear that the Petitioner is not at all concerned with the variation of quantity loaded into the tank for which he can

not be penalised. Hence, the termination of the Petitioner is unfair, unreasonable, arbitrary and in violation of the

principles of natural justice. Therefore, it is prayed that the suspension order dated 10.9.2007 of the 3^rd Respondent and

dismissal order dated 2.3.2010 of the 2^nd Respondent be set aside and direct the Respondents to reinstate the Petitioner

into service with retrospective effect, full back wages and grant all other consequential benefits.

Respondents filed their counter with the averments in brief as follows:

It is submitted that the Petitioner during the relevant period, was working as Tank Truck Filler in Visakh

Terminal. While he was on duty on 22.8.2007 in General Shift commencing from 08.00 hrs to 16.30 hrs, Sri V.

Chandrasekhar, Executive Operations Officer (Planning) received a phone call that Tank Truck bearing No.AP 31U

2529 was loaded with excess product and was about to leave the terminal premises. Then he immediately informed

the security to inform as and when the said truck approaches for sealing/locking. When the said truck arrived, he

conducted surprise check and found the truck was filled up to the brim level in all the four compartments. The same

was appraised to the Chief Installation Manager, Visakha Terminal who appointed a team comprising of said V.

Chandrasekhar, B.V. Rao, Sr. Manager-Installation and Shri D.V.R.S. Rama Rao, Manager – Installation to take charge

of the truck and check once again the excess quantity filled. Accordingly, it was checked in presence of the Petitioner

and it was found loaded upto the brim in all the four compartments of the said truck to the tune of 5840 litres of HSD.

In view of the seriousness and gravity of the acts committed by the Petitioner he was placed under suspension under

clause 32(4)(a) of the Certified Standing Orders applicable to him with immediate effect by the 3^rd Respondent vide

proceedings dated 10.9.2007. The Petitioner submitted his explanation which was found unsatisfactory and an enquiry

was ordered and duly conducted. During the course of enquiry the Presenting officer examined 6 witnesses, marked

11 documents on behalf of the management. The Petitioner examined Sri G.G. Venkateswarlu, Loco Operator, on his

behalf. That the Petitioner participated in the enquiry proceeding and the witnesses examined on behalf of the

management were duly cross-examined. The Enquiry Officer submitted his report holding the Petitioner as guilty of

the charges under clause 31.4 of the certified Standing Orders. Then the 2^nd Respondent imposed the punishment of

dismissal from the services of the corporation on the Petitioner in terms of Clause 31(1)(g) of the Certified Standing

Orders applicable to him vide proceedings dated 2.3.2010. He was given fair opportunity to show-cause against the

dismissal order. Hence, he is not entitled to get any relief as prayed for and the reference be ordered in negative.

None disputed about the validity of the domestic enquiry conducted in this case and, as such, in the

circumstances, it is held that the domestic enquiry conducted in the present dispute is legal and valid vide order dated

12.11.2013.

Both the parties have advanced their arguments under Sec.11(A) of the Industrial Disputes Act, 1947, in

support of their claim.

In view of the above facts, the points for determination are:

Whether the action of the management of HPCL, Visakhapatnam in dismissing the services of Shri

Degala Ramu, Ex-Filler vide order dated 2.3.2010 is legal and justified?

II.

Whether the Petitioner is entitled for reinstatement into service?

III.

If not, to what other relief he is entitled?

The Learned Counsel appearing on behalf of the Petitioner contended that the Petitioner was appointed under

the Respondent management on 6.11.1987 and worked to the utmost satisfaction of his superiors till 2.3.2010. While

he was working as a Filler, the third Respondent issued proceedings suspending his services with immediate effect on

the allegation that “information was received by the Executive Operating Officer (Planning) Sri V. Chandrasekhar that

Tank Truck No.AP 31 U 2529 was loaded under Product Delivery Report (PDR) No.7006225 R1 with “excess

product” and was about to leave the terminal.” The above PDR number is incorrect and the correct No. is 7005969 as

per the records. Basing on such allegation the Petitioner submitted his show-cause and thereafter an enquiry was

conducted and in the enquiry though the allegation not proved he was found guilty of the charges on probability and

circumstances, the 2^nd Respondent dismissed the services of the Petitioner vide order dated 2.3.2010. It is also

contended that on the date of the alleged incident i.e., on 22.8.2007, after completion of day’s duty, the Petitioner left

the office by 16.30 hrs, before his leaving the office he was verbally asked to narrate the facts regarding loading of the

T.T. and accordingly he has submitted the same. Even though detection of excess loading was done but such detection

of excess load was not done in his presence, nor his explanation was called for. The officers who detected the excess

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9939

loading not prepared the report in his presence on 22.8.2007. In fact, on 22.8.2007, the Petitioner was posted to fill

the TTs from ST No.HSD 291 as per the invoice. The “excess report” for that day prepared by Sri P. B. Murali

Krishna, CIM does not show any variation from which it is clearly evident that there is no possibility of excess loading

by the Petitioner in any TT, particularly in TT No.AP 31 U 2529. But this aspect was not reflected by the Enquiry

Officer in his report. During the enquiry the Ramp officer who had been given power to verify and check, has

categorically stated that when he checked the T.T., with dip rod, it was found OK and no excess product was filled.

More over, the TT after necessary examination will be placed on one of the ramps. The filler like the Petitioner sits in

between two ramps and operates two taps levers on either side with his two hands. The driver/cleaner of the vehicle

stands on the top of the Tanker and asks the filler to close the tap when the tank is filled to the approximate level. The

filler does not contain any apparatus (flow meter) for measuring the quantity. After filling, the Ramp Officer checks

the quality as well as the quantity with dip rod and confirms the quantity and passes the invoice and the tanker will be

allowed to leave the ramp in his presence. It is clear that the Petitioner is not at all concerned with the variation of

quantity loaded into the tank but for this allegation the punishment imposed on the Petitioner is quite illegal. The

termination order passed by Respondent No.2 against the Petitioner is unfair, unreasonable, arbitrary and in violation

of the principles of natural justice.

On the other hand the Learned Counsel appearing on behalf of the Respondents contended that on 22.8.2007

while the Petitioner was on duty in General Shift commencing from 08.00 hrs to 16.30 hrs, Sri V. Chandrasekhar,

Executive Operations Officer (Planning) received a phone call to the effect that Tank Truck bearing No.AP 31U 2529

was loaded with excess product and was about to leave the terminal premises. There after he immediately informed

the security to intimate as and when the said truck approaches for sealing/locking. When the said truck arrived, he

conducted surprise check and found the truck was filled up to the brim level in all the four compartments. The same

was appraised to the Chief Installation Manager, Visakha Terminal who immediately appointed a team comprising of

said V. Chandrasekhar, B.V. Rao, Sr. Manager-Installation and Shri D.V.R.S. Rama Rao, Manager – Installation to

take charge of the Tank truck and check once again the excess quantity filled. Accordingly, it was checked in presence

of the Petitioner and it was found loaded upto the brim in all the four compartments of the said truck to the tune of 5840

litres of HSD. After receipt of the report considering the gravity of the offence committed by the Petitioner he was

placed under suspension under clause 32(4)(a) of the Certified Standing Orders applicable to him with immediate effect

calling upon the Petitioner to submit his explanation. The Petitioner submitted his explanation pleading innocence,

which was found unsatisfactory and accordingly an enquiry was ordered, and duly conducted. During the course of

enquiry the Presenting officer examined 6 (six) witnesses, marked 11 (eleven) documents on behalf of the

management. The Petitioner examined Sri G.G. Venkateswarlu, Loco Operator, on his behalf. The Petitioner

participated in the enquiry proceeding and the witnesses examined on behalf of the management were duly cross-

examined. The Enquiry Officer submitted his report holding the Petitioner as guilty of the charges under clause 31.4 of

the certified Standing Orders. Thereafter, 2^nd Respondent imposed the punishment of dismissal from services. The

Petitioner was given fair opportunity to file show-cause against the dismissal order. Even though the Petitioner

submitted his explanation, it was not accepted and the Petitioner was dismissed from services. The Petitioner has been

rightly dismissed from service and he is not entitled to get any relief.

On consideration of the rival contentions of both the sides, and on perusal of the materials available on record, it

is seen that the Enquiry Officer conducted the enquiry holding the Petitioner as guilty of the charges on the ground of

probability and circumstances. The guilty of the Petitioner has been proved basing on circumstances and probability.

But the guilty of the Petitioner should be proved beyond all reasonable doubt. One can not be held guilty only basing

on probability and circumstances. It is alleged that the Petitioner told the crew to fill the truck with excess product and

money could be transacted later on outside the premises, but, there is no cogent evidence available against the

Petitioner to show in which manner such type of conversation and transaction was made. In absence of any cogent

evidence it can not be stated that the Petitioner has done the excess filling of product. Furthermore, the filling is

alleged to have been done in presence of the Driver and the Cleaner of the T.T. But during the course of enquiry

though both of them has been examined but they have not supported the allegation of the Management, even they have

failed to identify the Petitioner when they were called upon to identify. Both the witnesses are even unable to

remember the incident. At the time of filling only the Driver and Cleaner were present. Both of them are the material

witnesses for the moment. But, none of the witnesses have seen the excess loading done by the Petitioner. When there

is no direct evidence available against the Petitioner only basing on surmise, it can not be stated that the Petitioner has

done the excess loading. Further more, admittedly at the time of filling the flou meters was not visible to the filler

from the operating place and as such it was not working. Moreover, the Tank Truck loading Ramp Officer (TT LRO)

being the superior officer was present at the time of filling of the TT by the filler with the help of the crew and in his

presence the TT is to be filled up. When there was excess loading of the TT how the TTLR was not vigilant and not

responsible for it and he has shifted his responsibility on the filler to get rid of the charges. The Petitioner being a

lower grade employee has been held responsible. When there is no cogent evidence available against him, the guilty

of the Petitioner has been proved only on consideration of probability and circumstances and basing on such

9940

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

probability, the main charge has been proved and the Enquiry Officer has also stated that other connected charges are

inter-alia found proved. All the charges should be proved independently. More over, one can not be punished only on

consideration of probability and circumstances. The charges are to be proved beyond of all reasonable doubt. In the

instant case, only basing on the probability and circumstances, the Petitioner has been found guilty which is not

tenable in the eye of Law and basing on such findings of the Enquiry Officer, the Management of HPCL,

Visakhapatnam has dismissed the Petitioner from the services and such dismissal order dated 2.3.2010 is not legal and

justified.

This Point No.I is answered accordingly.

10.

Point No.II:

In view of the aforesaid findings given in Point No.I, the Petitioner is entitled for

reinstatement into service and he is entitled for the benefits as prayed for.

This Point No.II is answered accordingly.

RESULT:

In the result, the reference is ordered as follows:

The action of the management of HPCL, Visakhapatnam in dismissing the services of Shri Degala Ramu, Ex-

Filler vide order dated 2.3.2010 is not legal and justified. The Petitioner is entitled to be reinstated into service. The

Respondent is directed to reinstate the Petitioner into service with 50% back wages, continuity of service and all other

consequential benefits.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri, Personal Assistant and corrected by me on this the 7^th day of

November, 2017.

MURALIDHAR PRADHAN, Presiding Officer

Appendix of evidence

Witnesses examined for the Petitioner

Witnesses examined for the Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 20 fnlEcj] 2017

dk-vk- 2899-—vkS|ksfxd fookn vf/fu;e] 1947 (1947 dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

eSllZ Hkkjrh; thou chek fuxe 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 49@2014) dks çdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 01-12-2017 dks çkIr gqvk FkkA

¹la- ,y&17012@32@2013&vkbZvkj (,e)º

Mh- ds- fgeka'kq] voj lfpo

New Delhi, the 20th December, 2017

S.O. 2899.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 49/2014) 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. Life Insurance Corporation of India and their workman, which was received by the Central

Government on 01.12.2017.

[No. L-17012/32/2013-IR (M)]

D. K. HIMANSHU, Under Secy.

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9941

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present : Sri Muralidhar Pradhan, Presiding Officer

Dated : the 9th day of October, 2017

INDUSTRIAL DISPUTE No. 49/2014

Between:

Sri Ch. Venkateswara Rao,

S/o Polaiah,

Indira Yanadi Colony,

Behind Taluka Office,

Repalle – 522265, Guntur District

…Petitioner

AND

The Sr. Divisional Manager,

LIC of India, Divisional Office,

Kenndy Road, Machilipatnam.

The Divisional Manager,

LIC of India, Repalle Branch,

Repalle, Guntur district.

…Respondents

Appearances :

For the Petitioner

None

For the Respondent

Representative

AWARD

The Government of India, Ministry of Labour by its order No. L- 17012/32/ 2013-IR(M) dated 5.3.2014 referred

the following dispute under section 10(1)(d) of the I.D. Act, 1947 for adjudication to this Tribunal between the

management of LIC of India, and their workman. The reference is,

SCHEDULE

“Whether the removal from service of Shri Ch. Venkateswara Rao, Ex-Temp. Class-IV, LIC of India, Repalle

Branch w.e.f. 28.1.2013 is justified or not? If not, what relief the workman is entitled to?”

The reference is numbered in this Tribunal as I.D. No. 49/2014 and notices were issued to the parties concerned.

The case was posted for filing of claim statement and documents by the Petitioner.

But, inspite of repeated calls, the Petitioner did not turn up. Several opportunities have been given to the

Petitioner to attend the court to prosecute his case. But the Petitioner failed to attend this Tribunal which clearly

indicates that perhaps the dispute of the Petitioner has already been settled and the Petitioner has nothing to raise any

claim. Hence, a ‘No dispute’ award is passed.

Award is passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri, Personal Assistant, corrected by me on this the 9^th day of

October, 2017.

MURALIDHAR PRADHAN, Presiding Officer

Appendix of evidence

Witnesses examined for the Petitioner

Witnesses examined for the Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

9942

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

ubZ fnYyh] 20 fnlEcj] 2017

dk-vk- 2900-—vkS|ksfxd fookn vf/fu;e] 1947 (1947 dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

eSllZ Hkkjrh; thou chek fuxe 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] eqEcbZ ds iapkV (lanHkZ la[;k 35@2009) dks çdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 07-12-2017 dks çkIr gqvk FkkA

¹la- ,y&17011@11@2008&vkbZvkj (,e)º

Mh- ds- fgeka'kq] voj lfpo

New Delhi, the 20th December, 2017

S.O. 2900.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 35/2009) of the Central Government Industrial Tribunal/Labour

Court-2, Mumbai now as shown in the Annexure, in the industrial dispute between the employers in relation to the

management of M/s. Life Insurance Corporation of India and their workman, which was received by the Central

Government on 07.12.2017.

[No. L-17011/11/2008-IR (M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : M.V. DESHPANDE, Presiding Officer

REFERENCE NO. CGIT-2/35 of 2009

EMPLOYERS IN RELATION TO THE MANAGEMENT OF

LIFE INSURANCE CORPORATION OF INDIA

The Sr. Divisional Manager

LIC of India, Mumbai Division-I

Yogashema

Jeevan Beema Marg,

Mumbai-400 021.

AND

THEIR WORKMEN

The General Secretary

Rashtriya Bima Karmachari Union

98/1, Belgrami Road

Kurla (W)

Mumbai-400 070.

APPEARANCES :

FOR THE EMPLOYER

Mr. M.V. Damle, Advocate.

FOR THE WORKMEN

Ms.Kunda Samant, Advocate.

Mumbai, dated the 26^thSeptember, 2017.\

AWARD PART-II

The Government of India, Ministry of Labour & Employment by its Order No.L-17011 / 11 /2008-IR (M), dated

23.03.2009 in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2 (A) of Section 10 of

the Industrial Disputes Act, 1947 have referred the following industrial dispute to this Tribunal for adjudication:

“Whether the action of the management of LIC of India, MDO-I, Mumbai by reducing the basic pay by five

stages permanently in time scale in respect of Shri B.R. Pai is justified? What relief the workman Shri B.R.

Pai is entitled to?”

After receipt of the reference, notices were issued to both the parties. In response to the notice, second party

union has filed its statement of claim at Ex-3. According to the union, its member Shri Baba Ramchandra Pai was

appointed as Typist in 1974. He served for more than 33 years and he is working as H.G.A. and was getting successive

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9943

promotions throughout. His service was unblemished. One Shri Ajay Vaish a policy holder bearing no.73662727 has

deposited a cheque of Rs.3911/- by way of yearly instalment of his policy. The said cheque was adjusted against the

policy of the workman bearing no.900196220 for his instalment of March 2001. Another cheque deposited by

Mr. Ajay Vaish through his agent Mr.Mayur Kapadia of Rs.4280/- for his policy. Instead of his policy it is alleged that

the said cheque was adjusted against the LIC policy of wife of the workman. It is alleged that the workman has also

claimed income tax deductions of the said amount for the respective years. Therefore the officials of the first party

alleged that, the policy numbers written at the rear side of the cheques were forged and changed by the workman.

Therefore the workman was charge-sheeted for the alleged fraud and forgery.

The first party appointed Inquiry Officer and Presenting Officer. The I.O. was bias. Mr. Vaish has deposited

the two cheques against his policy through his agent Mr. Mayur Kapadia. They are relevant witnesses, however they

were not examined in the inquiry proceeding. They were not made available for cross examination. No opportunity

was given to the workman to defend himself. The principles of natural justice were not followed in the inquiry

proceeding. The Inquiry Officer held the workman guilty. The findings of the Inquiry officer are perverse. On the

basis of inquiry report, the disciplinary authority has imposed punishment of reduction in basic pay of the workman by

five stages permanently. The disciplinary authority ignored the representation of the workman submitted to them. The

appeal of the workman was also dismissed. Therefore the union has raised industrial dispute before the ALC (C). As

conciliation failed, on the report of ALC (C), the Central Labour Ministry sent the reference to this Tribunal. The

union therefore prays that the punishment be set aside and first party be directed to restore the basic pay with

retrospective effect and consequential benefits and also prays for direction to pay arrears of the deducted amount with

interest @ 18 % p. a. and also prays for order to pay compensation to the workman with heavy cost of the proceeding.

The first party management resisted the statement of claim vide their written statement at Ex-6. According to

them workman Shri Pai was working as H.G.A. in Branch 901 under Mumbai Division. His LIC policy was bearing

no.900196620. The premium of Rs.3911/- was due and payable for the month March, 2001. A customer, Mr. Ajay

Vaish had to pay his insurance premium of his policy no.73662727. Thus he had drawn a cheque bearing no.365593

dated 14/03/2001 on Punjab National Bank, Juhu Scheme, Vile Parle (W), Mumbai and sent the same to LIC branch

No. 901, through his agent Shri. Mayur Kapadia. The policy no. was written on the reverse side of the cheque.

However the number was changed from 73662727 to 900196620 which is pertaining to workman Mr. Pai. Workman

Mr. Pai also claimed income tax rebate on the said fraudulent payments of renewal premium in the financial year 2000-

2001. Similarly another cheque of Shri Vaish for an amount of Rs.4168/- for premium due on August 1997 was found

to have been adjusted towards the premium of policy no.900189392 which is the policy of Smt. Sunanda Pai, wife of

the workman. The said cheque was deposited by Shri Ajay Vaish for his policy no.73662727 and the said number was

written at the rear side of the cheque which was forged and changed to 900189392. The workman had forged the

policy numbers on both the cheques and ultimately both these cheques were credited in the account of workman and his

wife respectively. Therefore workman was charge-sheeted for the alleged misconduct. Inquiry Officer was appointed.

He conducted the inquiry. Full opportunity was given to the workman to defend himself. He cross examined the

witnesses of management. He was also given an opportunity to lead his own evidence.

After hearing both the parties, the Inquiry Officer held the workman guilty for the charges levelled against him.

The inquiry was conducted after giving sufficient and fair opportunity to the workman to defend himself. He was also

allowed to appoint defence representative. The inquiry was conducted in accordance with the principles of natural

justice. As workman was held guilty for serious charges, the management instead of dismissing the workman from

services took lenient view and reduced his pay by five stages permanently. The inquiry was fair and proper. Findings

of the Inquiry Officer are not perverse. Therefore the first party prays that the reference deserves to be dismissed.

As per the Award Part – I passed by this tribunal the enquiry held is fair & proper and the findings of the

Enquiry officer are held not perverse. Thereafter the parties led evidence. I have also heard the arguments of both the

parties.

Following issues were framed at Ex.8A. I reproduce the issue Nos. 2, 3 & 4 and my findings thereon for the

reasons to follow are as under.

Sr.

No.

Issues

Findings

Whether the punishment of reducing the basic

pay of the said employee by 5 stages

permanently in time scale is adequate ?

Yes.

Whether the employee Mr. B.R. Pai is entitled

to any relief ?

No.

What order ?

As per final order

9944

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

REASONS

Issue No. 2 :

Learned Counsel for the second party workman submitted that the punishment imposed is shockingly dis-

proportionate because stagnation increments were already granted but revoked against the staff regulation No.39 (d)

Co-circular No. PER/ER/AG-364 dated 26.8.97. He submits that penalty reduction in basic pay in terms of Regulation

39 is to be imposed in the time scale only therefore stagnation increment, graduation allowance, fixed personal

allowance once granted cannot be withdrawn to give effect to the penalty imposed in Regulation 39. With this the

submission is that due to drastic punishment, he took voluntarily retirement on 1.11.2010.

In this respect if we see the evidence of concerned workman, he admits in his cross examination that his normal

date of retirement is 31.12.2011 and he has taken the voluntarily retirement w.e.f. 1.11.2010. He then admits in his

cross examination that in his application for retirement, he has mentioned that he was giving that application due to

unavoidable circumstances in family and personal life. It is clear therefore that in his application for retirement he has

not mentioned that the reason beyond his retirement was depression due to drastic punishment. It cannot be accepted

therefore that he took the retirement on account of depression due to drastic punishment. The question therefore creeps

in whether the punishment imposed by the management by reducing the basic pay by the stages permanently in time

scale in respect of the concerned workman is justified or not ?

10.

So far the legal position is concerned, the court would not interfere with the administrative decision unless it

was illegal or suffered from procedural impropriety or irrational in the sense it was outrageous, defiance of logic or

moral standards. It is held in the decision in case of Domoh Panna Sagar Rural Rational Bank & Ors V/S. Munnalal

Jain CA No. 8258 of 2004 [SC] that

“Unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the

conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in

exceptional and rate cases, impose appropriate punishment by recording cogent reasons in support thereof.

In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct

the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.”

11. The scope of judicial review is also limited to the deficiency of decision making process and not the decision. It

is therefore necessary to see whether the order of disciplinary authority imposing the punishment by reducing basic pay

by the stages permanently in the time scale is shockingly disproportionate.

12.

AT the first blush, I would observe that as per the observations of this tribunal in Part – I Award it is clear that

there is evidence to show that the cheques of Mr. Vaish were credited against the life policies of concerned workman

and his wife. Both the cheques were issued by Mr. Ajay Vaish drawn on his account maintained in Punjab National

Bank. Policy numbers of the life policy of Mr. Vaish were changed and the numbers of the policies of the workman

and his wife were written by forging the original numbers. These observations are based on documents such as entries

of cheques of Mr. Vaish credit against the policies of workman and his wife respectively. It cannot be said therefore

that the disciplinary authority has given disproportionate punishment for no fault of concerned workman when infact it

was admitted by him in his cross examination that the opportunity was not denied to him to disprove such documents

which are placed on record. Even he admits in his cross examination that his statement in his affidavit to the effect that

he was denied the opportunity to file memorial is incorrect. As a matter of fact, he had addressed a memorial dated

16.7.2007 under Regulation 39 of The LIC of India [Staff] Regulation, 1960 and Chairman has passed speaking order

dated 12.6.2008 in the said memorial. On the basis of these aspects it cannot be said that the punishment imposed upon

the workman for his serious misconduct is shockingly disproportionate.

13.

Even then the Learned Counsel for the concerned workman submitted that due to reduction in basic pay and

revoking two stagnation increments, the concerned workman suffered monetary loss. He submits that there is

difference of Rs.3641/- p.m. in his salary from March 2007 onwards as compared to Salary of February 2007 and due

to punishment imposed on him he suffered total loss in basic pension for 66 months to the tune of Rs.2,37,600/- and

D.A. difference loss to the tune of Rs.15,796/-. The submission is also to the effect that the concerned workman

suffered loss of gratuity amount to the tune of Rs.2,36,000/- and he also suffered loss in Group Saving Life Insurance

Scheme due to reduction in basic pay by 5 stages permanently at Rs.1,25,000/- instead of Rs.2,70,000/-. To be precise

the submission is that due to punishment he took voluntary retirement and therefore he suffered the monetary loss.

14.

This submission is not acceptable. Final payment of Provident Fund and the other monetary loss which he

suffered has no relevance because the misconduct is proved. Enquiry which was held is proper and findings of the

Enquiry Officer are also not perverse. It is not proved that he took retirement due to imposition of punishment. Infact

his retirement has no connection with the quantum of punishment. All these benefits which he would have received are

governed by different rules which have no connection with the Regulation 39 of The LIC of India [Staff] Regulation,

1960. Regulation 39 provides for the penalties which is to be imposed only in case of employees who commits breach

¹Hkkx IIµ[k.M 3(ii)º

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9945

of discipline or guilty of any other act pre-judicial to good conduct. Once the penalty of basic reduction is imposed the

workman cannot interpret the provisions of Regulation 39 of The LIC of India [Staff] Regulation, 1960.

15.

Considering all these facts and the limited scope of judicial review, I find that there is no scope to interfere with

the punishment imposed by the disciplinary authority.

16.

As a matter of fact, the appellate authority has also considered the grounds raised by the appellant and has come

to the conclusion that the contention raised by him are not tenable as the charges stand proved on the basis of evidence

on record. Even on going through the order of Chairman, it appears that memorial dated 16.7.2007 preferred by the

concerned workman was considered and the contentions raised by him were found not relevant to the charges levelled

against him stand proved on the basis of evidence adduced during the enquiry.

17.

In this respect hand can be laid on the decision in case of LIC of India & Ors. V/s. S. Vasanti, Civil Appeal No.

7717 of 2014 wherein Hon’ble Apex Court with reference to decision in case of Lucknow Kshetriya Gramin Bank

(Now Allahabad, Uttar Pradesh Gramin Bank) & Anr. V/S. Rajendra Singh (2013) 12 SCC 372 has held;

“a)

when charge(s) of misconduct is proved in an enquiry, the quantum of punishment to be imposed in a

particular case is essentially the domain of the departmental authorities.

The courts cannot assume the function of disciplinary / departmental authorities and to decide the

quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the

jurisdiction of the competent authority.

Limited judicial review is available to interfere with the punishment imposed by the disciplinary

authority, only in cases where such penalty is found to be shocking to the conscience of the court.

Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of

charges framed against the delinquent employee, the appropriate course of action is to be remit the

matter back to the disciplinary authority or the appellate authority with direction to pass appropriate

order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.”

18.

Learned Counsel for the concerned workman also seeks to rely on the decision in case of Girni Kamgar Sena &

Ors V/S. R.D. Rane & Ors. 1995 I CLR 851 to submit that when the punishment is shockingly disproportionate the

punishment can be reduced. In that case petitioners No. 1 & 2 participated in the strike and there was no allegation of

any violence whatsoever or incitement to violence. 2 out of 4 workers have been reinstated. In the circumstances, it

has been observed that even accepting that all the 4 workers participated in the illegal strike in view of fact that there

was absolutely no violence, that the strike was only for couple of hours and that admittedly 2 workers similarly situated

were reinstated suggest that misconduct was not of such degree and the nature, as to invite maximum penalty of

dismissal.

19.

So the facts in the cited case are quite different and distinguishable

20.

Learned Counsel for the concerned workman has placed reliance on the decision in case of Arjun Kumar Biswa

V/S. Union of India & Ors. 1995 I CLR 704. In that case there was finding of the Enquiry Officer that the constable

fell asleep because he was feeling very weak. They also show that constable was not deputed specifically and

exclusively to guard criminals. In the circumstances it has been observed that punishment of removal from service is

disproportionate to offence charged and proved. So the facts in this case are also distinguishable.

21.

Reliance is also made on the decision in case of Jagdishchandra Maganlal Trivedi V/S. State Bank of India,

2005 I LLJ Pg. 236. In that case it was finding of the fact that non-reporting of shortage of cash promptly to the higher

authority was considered by the bank as negligence on the part of appellant. But no specific period has been specified

for such reporting in any circular. In the circumstances the Hon’ble High Court held that no misconduct of negligence

or other lapse has been proved against the appellant and the punishment itself imposed by the appellate board was

illegal.

22.

Here in the instant case misconduct is proved, enquiry is held to be fair and proper, findings are proper and

therefore it cannot be said that the misconduct is not proved.

23.

In the facts of present case, I find that the punishment imposed by disciplinary authority on account of

misconduct of the concerned workman cannot be said to be shockingly disproportionate. The punishment imposed

upon him is of reducing basic pay of the said employee by 5 stages permanently in time scale. He took retirement due

to unavoidable circumstances in family and personal life and therefore monetary loss which he suffered was because of

his decision of taking voluntary retirement, 14 months prior to his normal date of retirement. So far punishment is

concerned that has been imposed on the ground of his misconduct which has been proved and therefore this issue will

have to be answered in the affirmative.

9946

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

Issues Nos. 3 & 4 :

24.

In view of my findings to issue No.2, the concerned employee is not entitled to any relief. Hence the order:

ORDER

Reference is rejected with no order as to costs.

Date: 26/09/2017

M. V. DESHPANDE, Presiding Officer

ubZ fnYyh] 20 fnlEcj] 2017

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New Delhi, the 20th December, 2017

S.O. 2901.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 37/2009) of the Central Government Industrial Tribunal/Labour

Court-2, Mumbai now as shown in the Annexure, in the industrial dispute between the employers in relation to the

management of M/s. New India Assurance Company Limited and their workman, which was received by the Central

Government on 06.12.2017.

[No. L-17012/54/2008-IR (M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : M.V. DESHPANDE, Presiding Officer

REFERENCE NO. CGIT-2/37 of 2009

EMPLOYERS IN RELATION TO THE MANAGEMENT OF

NEW INDIA ASSURANCE COMPANY LTD.

The Chief Manager-Corp. HRM IDD

New India Assurance Company Ltd.,

New India Assurance Bldg., 87,

M.G. Road, Fort,

Mumbai – 400 001.

AND

THEIR WORKMEN

Smt. Joytica Chunawala,

Flat No.11, Divya Jyoti Apartment,

S.F.S. Flat, Pocket C,

Rohini, Sector - 19,

New Delhi - 110085.

APPEARANCES :

FOR THE EMPLOYER

Ms. Nandini G. Menon, Advocate

FOR THE WORKMEN

Mr. M. B. Anchan, Advocate

Mumbai, dated the 21^st September, 2017

¹Hkkx IIµ[k.M 3(ii)º

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9947

AWARD PART - I

This is reference made by the Central Government in exercise of powers under clause (d) of sub-section (1) and

sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 vide Government of India, Ministry of Labour &

Employment, New Delhi vide its order No. L-17012/54/2008 – IR (M) dated 02.04.2009. The terms of reference given

in the schedule are as follows :

“Whether the action of management of New India Assurance Company Ltd., Mumbai by terminating the

services of Smt. Jyotica Chunawala w.e.f. 12.8.2005 is justified ? What relief the workman, Smt. Jyotica

Chunawala is entitled to ?“

After the receipt of the reference, both the parties were served with the notices. They appeared through their

respective representatives.

The concerned workman has filed statement of claim Ex.9 contending therein that she was employed in the year

1997 to the post of Assistant [Typing]. She had absolutely clean and unblemished service record and had reached the

grade of Sr. Assistant in the employment of company at Mumbai. She had completed about 18 years of service.

According to the concerned workman, she was enable to report for work for some days on account of personal

difficulty and injury caused to her while in foreign country. She had gone abroad with permission and sanctioned

leave. It was only on account of unavoidable circumstances, she was enable to report and there was no intention to

cause inconvenience or disobey the orders of her superiors. However, the enquiry was conducted and by letter dated

12.8.05 the company has imposed major penalty of removal from service in respect of concerned workman. The

departmental appeal in respect of the same is also dismissed vide orders dated 2.9.05 and 28.6.07 passed by the

appellate authority and the Chairman & Managing Director. She therefore filed WP No. 6920 of 2007 challenging the

said order. The said writ petition came up for hearing on 9.1.08 and Hon’ble High Court opined that the writ petition

was not maintainable in view of alternate remedy under the Industrial Disputes Act, 1947.

According to the concerned workman, ex-parte enquiry was held in the matter in breach of principles of natural

justice. Even though the concerned workman has informed about her inability to attend the enquiry due to burn injuries

suffered by her. Inquiry officer as well as Appellate authority committed gross error on the face of record in totally

ignoring the explanation given by the concerned workman in her several letters. As such the enquiry conducted in the

matter was totally one sided and illegal. The Enquiry Officer was biased. The report of the Enquiry Officer suffered

from non-application of mind. As such the enquiry is not fair proper and the findings are perverse. The impugned

punishment as well as orders of the authority and CMD are passed without considering all the material on record

especially the written explanation and medical certificates submitted by the concerned workman. As such the

punishment imposed upon the workman is grossly unjust. She therefore raised the dispute for adjudication. She is

therefore asking for reinstatement with full back wages and continuity of service.

The first party New India Assurance Company Ltd. [employer] resisted the claim by filing written statement

Ex.19 contending therein that the second party workman remained absent continuously and unauthorisedly without

prior sanction / approval of the competent authority from 20.7.2003 to 28.1.2004 for a period of 193 days. Since she

was failing and neglecting to abide by the lawful orders of her superiors and since she was remaining absent from duty

and not reporting for work without any prior sanction of her superiors and without having any leave to her credit, the

first party was of the opinion that the second party has violated rule 3.1 (i), (ii), (iii), (iv), Rule 18 (1) which are termed

as ‘misconduct’ under Rule 4 (5), (6), (7), (17) and (20) of The New India Assurance Company Limited (Conduct,

Discipline and Appeal ) Rules 2003. Accordingly, the concerned workman was issued charge sheet vide memorandum

dated 28.1.2004, statement of imputation of misconduct dated 28.1.2004 and Articles of charges dated 28.1.2004

setting out in detail the charges of misconduct made against her. She was charged with remaining unauthorisely absent

without prior approval and sanction of competent authority from 20.7.2003 till 28.1.2004 and for failing and neglecting

to abide by the lawful orders of her superiors. Mrs. Alka Banage was appointed as Enquiry officer. Mrs. S.R. Tarkar,

was appointed as Presenting Officer. Several opportunities were given to the concerned workman to remain present

and defend herself but she remained absent. Enquiry officer commenced and completed the enquiry proceedings in

strict compliance with applicable rules, principles of natural justice and after complying with the procedural rules. The

Enquiry officer held that all the charges against the concerned workman as set out in the memorandum have been

proved. The copy of the report was furnished to the concerned workman and she was called upon to submit her

representation. The concerned workman made her submission against report and findings of the Enquiry officer. The

second party workman did not submit her representation. Since the disciplinary authority concurred with the report and

findings of the Enquiry officer, looking into the gravity and seriousness of charges of misconduct proved against the

second party workman, the disciplinary authority imposed the major penalty of removal from service of the company

which shall not be disqualification for future employment as provided under Rule 23 (g) of the General Insurance

(Conduct, Discipline and Appeal) Rules, 1975.

9948

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

It is thus case of the management that the enquiry is fair and proper and the penalty imposed on second party

workman is within the scope and ambit of applicable rules. It is thus denied by the management that service record of

the second party workman was unblemished. It is also denied by the management that the second party workman is

unemployed after her removal from service and that she tried but could not get the employment due to her age factor.

First party management has thus sought the rejection of reference.

Following issues are framed at Ex.20. The issue No.1 is treated as preliminary issue. Hence, I reproduce the

issue No.1 along with my findings thereon for the reasons to follow:

Sr. No.

Issues

Findings

Whether the inquiry conducted by the inquiry officer

against the workman Smt. Jyotica Chunawala was

fair and proper and findings are not perverse ?

Yes

REASONS

Issue No. 1

Learned Counsel for the concerned workman submitted that the concerned workman on 15.5.2002 has made an

application to the management for sanction of 47 days leave from 3.6.2002 and the said leave was sanctioned. During

the leave period itself she had requested the management to extend her leave for one year without pay or extra-ordinary

leave but the same was not considered. She made an application dated 16.5.2002 for leave and seeking permission to

go abroad. That leave was sanctioned to her vide letter dated 4.6.2002 and she was also granted permission to go

abroad. He submits that the management has sanctioned her leave on loss of pay for one year from 19.7.2002 and the

concerned workman had then requested the management for permission to work at Port Louis branch of the

management at Mauritius but the same request was rejected and even the application dated 10.8.2003 for extension of

leave for further one year from 10.8.2003 was also not replied. In this view the submission is that the charge of

unauthorisedly remained absent for duty for the period of 190 days was not sustainable but then the ex-parte enquiry

was conducted which was against the principles of natural justice.

10.

In this respect, if we see the evidence of the concerned workman she admits in her cross examination that the

management had sent her letter informing that she was not eligible for foreign service as per foreign service rules of the

company. She even admits that leave was sanctioned by the company and she went abroad and the company had

repeatedly sent her letters asking her to report for duty. So admittedly the concerned workman was absent on duty

since her husband’s posting was at Mauritius from 2002 to December 2015 and for this period though she had made an

application for foreign posting. It was rejected on the ground that she was not eligible for foreign service. The

question is whether her absence from duty can be considered as gross misconduct and whether the enquiry in that

respect was conducted in fair and proper manner or not ?

11.

For, it is explicit, from the enquiry proceedings that second party workman was issued charge sheet and she

denied the allegations of misconduct made against her. Thereafter Mrs. Alka Banage was appointed as Enquiry Officer

vide letter dated 22.4.2004 which is at Sr. No.12 to Ex.21. Mr. S.R. Tarkar was appointed as Presenting Officer vide

letter dated 22.4.2004 which is at Sr. No.13 to Ex.21. The names of the Enquiry Officer and Presenting Officer were

informed to the concerned workman by the disciplinary authority vide letter Ex.45. By letter Ex.47 the concerned

workman requested for speaking order detailing the grounds on which her submissions were found satisfactory before

holding domestic enquiry and vide letter Ex.46, the first party advised the second party to report for duty and attend the

enquiry proceedings. By letter at Sr. No.18 to Ex.21, second party expressed her inability to attend the enquiry

proceedings on the ground of under going medical treatment for accidental injury sustained by her and requested that

the enquiry proceedings be adjourned. So, it appears that at the time of enquiry held on 9.7.2004, the second party

chose to remain absent.

12.

In her cross examination the second party workman has stated that she was not admitted in the hospital for the

treatment of burn injuries. Even the fact remains that after taking rest for six weeks as required as per medical

certificate the concerned workman was requested to remain present by giving notice / letter dated 13.7.2004 which is at

Ex.48 and she was requested to remain present for domestic enquiry on 3.8.2004. But then again on 3.8.2003 the

concerned workman chose to remain absent and then thereafter also on 11.8.2004 the concerned workman was absent

during the enquiry proceedings and that she had not even replied letter dated 3.8.2004. It appears from the enquiry

proceedings that by letter dated 20.8.2004 the concerned workman requested for adjournment of the enquiry

proceedings scheduled on 31.8.2004 and she was informed by letter dated 25.8.2004 which is at Ex.50 by disciplinary

authority that her request for extension of leave could not be allowed and she was directed to report for duties and to

attend the enquiry proceedings. But then she remained absent on 31.8.2004 at the time of enquiry hearing. Again on

¹Hkkx IIµ[k.M 3(ii)º

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9949

3.9.2004 vide Ex.51 the Enquiry officer requested the second party to remain present at the enquiry on 1.11.2004 but

then the concerned workman chose to remain absent. This would show that the second party workman was repeatedly

asked to remain present and to participate in the enquiry proceedings but she chose to remain absent. It appears

therefore that there was complete compliance of the principles of natural justice and fair & adequate opportunity was

given to the concerned workman to appear in the enquiry proceedings. When she elected to remain absent then the

management cannot be penalized for the second party workman’s decision to remain absent.

13.

So far findings of the Enquiry officer are concerned, the record shows that second party workman remained

absent continuously from duties without any prior permission. Initially she had applied for leave and the leave was

sanctioned. She made an application for going to Mauritius and permission was granted. But then the fact remains that

thereafter she did not join the services and made an application with a request to permit her to work at Port Louis

branch of the management at Mauritius but and that was rejected because she was not eligible for the same. Thereafter

she again made an application for leave for one year which was not sanctioned and then she remained absent though

her leave was not sanctioned. On the basis of this record it can be observed that she remained absent from duty after

sanctioned leave period was exhausted. The concerned workman has also not adduced satisfactory evidence to justify

her absence from duty. In view of that it can be observed that the findings of the Enquiry officer are based on

evidence.

14.

Even then the Learned Counsel for the concerned workman submitted that there were errors in the enquiry

report. He points out that the memorandum served upon her was dated 28.1.2004 and as per the articles of charges

which were framed against her vide memorandum dated 16.9.2003. He also pointed out that the daily order sheets are

neither been sent to the concerned workman and these were the discrepancies in the enquiry report.

15.

But then fact remains that the Enquiry officer corrected the mistakes and re-submitted the enquiry report vide

Ex.55. That report was communicated to the second party workman who was called upon to submit her fresh

representation in respect of report of the Enquiry officer. So the errors which were pointed out were corrected and

those errors did not change the enquiry proceedings. It is because the Enquiry officer has not changed the enquiry

report and the findings, the documents placed and proved in the enquiry proceedings speak for themselves.

16.

Considering all these documents it can be said that the findings of the Enquiry officer are not perverse and infact

these findings are based on evidence. Hence I answer issue No.1 accordingly in affirmative.

17.

Hence, I pass the following order.

ORDER

Enquiry is held fair & proper.

Findings of the Enquiry officer are not perverse.

Parties are directed to argue / lead evidence on the point of quantum of punishment.

Date: 21.09.2017

M. V. DESHPANDE, Presiding Officer

ubZ fnYyh] 20 fnlEcj] 2017

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¹la- ,y&30012@38@2002&vkbZvkj (,e)º

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New Delhi, the 20th December, 2017

S.O. 2902.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 29/2011) of the Central Government Industrial Tribunal/Labour

Court-1, New Delhi now as shown in the Annexure, in the industrial dispute between the employers in relation to the

management of M/s. Hindustan Petroleum Corporation Limited and their workman, which was received by the Central

Government on 30.11.2017.

[No. L-30012/38/2002-IR (M)]

D. K. HIMANSHU, Under Secy.

9950

THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE PRESIDING OFFICER: CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT No. 1 : ROOM No. 511, DWARKA COURT COMPLEX, SECTOR 10, DWARKA, DELHI – 110 075

ID No. 29/2011

The Secretary,

Petroleum Worker Union,

C-160, Sarvodaya Enclave,

New Delhi – 110 017

…Workman

Versus

The General Manager,

Hindustan Petroleum Corporation,

11^th Floor, Tower I, 124, Indira Chowk,

New Delhi 110 001

…Management

AWARD

Pursuant to receipt of reference vide letter No.L-30012/38/2002-IR(M) dated 21.02.2003 clause (d) of sub-

section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947(in short the Act), this court is

required to adjudicate an industrial dispute, terms of which are as under:

‘Whether the demands of the Petroleum Workers Union, New Delhi in regard to reinstatement and

regularization of services of 12 numbers of contract labours (list enclosed) worked at Shakurbasti Installation

of M/s Hindustan Petroleum Corporation Ltd. New Delhi are just, fair and legal? If yes, to what relief the

workmen are entitled to and for which period?’

Both parties were put to notice and it is clear from statement of claim filed by the claimant that the claimants,

namely S/Shri Ram Payare, Waris Ali, Jagan Nath, Kali Prasad, Prabhu Dayal, Mangal Singh, Ram Narain Rai, Bharat

Singh, Basant Lal, Sarda Sewak, Ram Parkash and Ram Karan were employed by Hindustan Petroleum Corporation

Ltd. (in short the management ) in Shakur Basti installation, New Rohtak Road.

It is alleged in the statement of claim that the claimants were employed by the management through some

contractors for the purpose of loading, unloading, removing of empty and filled lube oil drums and cartons containing

mobil oil tins, stacking them and doing other various jobs connected with the main jobs carried on by the permanent

employees of the Corporation. The aforesaid work is permanent and perennial in nature and handled by trained

workmen. Claimants were employed regularly for the last 17-18 years by the management through various contractors

and the said contractors were not genuine but a mere camouflage to employ the workman at the cost of 30 to 50% of

the cost of regular labour.

Aforesaid claimants have been employed by the management since 1986 and all the claimants are members of

Petroleum Workers Union, which is a registered trade union duly recognized by the management.

It is the case of the claimant that that engagement of contract labour in the Corporation has been a matter of

concern to the unions in respect of job security of the claimants and the union has been taking up their matter with the

management from time to time. On 18.09.1986, management signed a long term settlement with all the trade unions

and in respect of their permanent workmen under Section 12(3) of the Act before the Regional Labour Commissioner

(Central) in Bombay., wherein matter of contract labour was also discussed under Clause 21, is as under:

‘The Corporation will take steps to review engagement of contract labour at its various establishments with a

view to reduce/eliminate employment of such labour, as far as feasible. The first discussions will commence

within six months from the date of signing of the settlement.’

In the year 1986-87, union took up the case of the workers regarding their engagement through contractors in in

all the petroleum companies and finally the Under Secretary:Labour, Delhi Administration, issued the following orders

prohibiting the employment of contract labour in the following process in any terminals/plants/depots/factories of

petroleum industry from one month from the date of its publication:

(i)

Loading/unloading of LPG cylinders

(ii)

Loading/unloading of mobil oil tines and other miscellaneous materials

(iii)

Removal of cylinders from one place to another and their stacking etc.

(iv)

Putting the seal cap on the LPG cylinders

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % fnlEcj 30] 2017@ikS"k 9] 1939

9951

(v)

Painting and number of gas cylinders

(vi)

Supply of mobil oil containers from store to work place and putting back filled mobil oil tins to the

stores

(vii)

Packing of cartons of mobil oil tins

Thereafter a writ petition was filed by the management vide CWP No.1525 of 1987 in the High Court of Delhi,

wherein management gave an undertaking and the Hon’ble High Court of Delhi passed the following order on

24.11.1987:

‘Notice for January 7, 1988. Meanwhile the impugned notification of Delhi Administration is stayed to the

extent that no prosecution should be launched to either of the petitioners for non-compliance with the terms of

the notification. Counsel for the petitioner states that pending disposal of the writ petition neither the petition

nor any of the authorized contractor will alter the conditions of service of the workmen to their prejudice

whether by way of termination of their employment or inrgard to the emoluments payable to them. In other

words, the status quo will continue so far as the workmen are concerned.

Since management in the above agreement had agreed to take steps to regularize contract labour in 9 months and

had verbally agreed to take steps within 2-3 months union vide its letter dated 07.04.1989 addressed a letter to the Chief

Regional Manager to expedite the matter, but of no use. In the meantime, another long term settlement with the All

India Workmen of the Corporation became due. Management again signed a long term settlement under Section 12(3)

of the Act on 05.03.1991 and clause 29 of the said settlement deals with contract labor. It is alleged that the claimants

herein are shown to be workmen of the contractor only for namesake, otherwise they were performing regular nature of

work in the premises of the management. Keeping in view the just demands of the workmen, letter dated 05.08.2001

was written for absorbing them against permanent vacancies. However, on 14.08.2001, management at Shakur Basti

installation stopped entry of the claimants herein in the premises of the management and the so called contractors were

directed to employ new workmen in place of the existing workers whose names are given above. The claimants had

put in almost 17 years of continuous service and action of the management has been alleged to be totally unfair, illegal

and against the provisions of Section 25-F and N of the Act.

It is also the case of the claimants that the so called contractors have not obtained licence as required under the

Contract Labour (Regulation and Abolition) Act, 1970 (in short the CLRA Act) nor has the management obtained

licence as required in terms of the provisions of the said Act. There is also reference to a number of judgements in the

statement of claim, including that of Secretary HSEB vs Suresh and Others (1999) SCC 601 wherein the Hon’ble Apex

Court has dealt with the question of genuineness of the contract between the principal employer and the contractors.

Lastly, claimants have claimed that their termination/retrenchment be set aside and they be reinstated in service with all

consequential benefits. The statement of claim is supported by affidavit.

10.

Claim was demurred by the management who filed a detailed written statement taking various preliminary

objections, including that of maintainability etc. It is also alleged that there is no relationship of employer and

employee between the claimants and the management and the claimants are no more working with the management.

There is no reference regarding contract being not genuine, sham etc., as such, thus point cannot be gone into by the

Tribunal. On merits, management has denied most of the material averments. There is also reference to agreement

dated 09.03.1994 between the management and the workmen whereby all matters and disputes pertaining to contract

workmen at LPG Shakur Basti installation stood fully settled and there was no dispute was left between the parties.

Claim is totally misconceived and false. It is also denied that the claimants are members of Petroleum Workers Union,

New Delhi. It is further denied that the claimant union took up the cause of the claimants in the year 1986-87 with the

management. It is also denied that the management has engaged new workers nor the management has dispensed with

the services of the claimants herein. Therefore, there is no question of reinstatement. On the contrary, contractor was

assigned the job under an agreement at Shakurbasti depot and had only 11 employees on his pay roll. Around May

2001, land was surrendered to Railway and lube handling was shifted to Shakurbasti main depot. Due to the merger of

lube handling facilities and decrease in lube business there was reduction in requirement of manpower by the contractor

as a result of which some of the claimants were not further engaged by the contractor. Subsequently, there was change

of contractor who employed his own workmen with effect from 25.08.2002.

11.

Claimant union filed rejoinder to the written statement filed by the management, reasserting that the claimants

sere initially appointed by the management and they were directly in the said Corporation for the last 15-18 years. The

management, from 01.06.1984, changed a number of contractors, whose names are as under:

(i)

M/s Ranjit Singh & Co. from 01.06.1994

(ii)

M/s Jagdish Enterprises from 01.12.1989

(iii)

M/s Ranjit Singh & Co. from 01.01.1992

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(iv)

M/s Shyam Builders from 01.04.1993

(v)

M/s Dinesh Enterprises from 01.01.1996

(vi)

M/s Om Builders from 01.01.1999

12.

The other averments made in the written stamen have been controverted.

13.

Against this factual background, this Tribunal on the basis of the pleadings of the parties, vide order dated

30.11.2005, framed the following issues:

(i)

Whether there exists relationship of employer & employee between the workman & management. If

so, its effects?

(ii)

Whether the management contractor is holding a valid registration u/s 7 of the Contract Labour Act?

If so, its effects?

(iii)

Whether the contractor holds valid licence u/s 12 of Contract Labour Act for the relevant period?

(iv)

In terms of reference

14.

Both parties adduced evidence in order to prove the averments contained in the respective pleadings. Claimants,

in order to prove their case against the management, examined Shri Ram Pyare, Shri Prabhu Dayal, Shri Sharda Sewak

and Shri K.L. Chhabra as WW1, WW2, WW3 respectively. Management in order to rebut the case of the claimant

union examined Shri Ashwani Kumar Gupta as MW1 and Shri Balbir Singh Babberwal as MW2.

15.

I have heard Shri K.L. Chhabra, A/R for the claimant union and Ms.Raavi Birbal, A/R for the management.

Issue No.(i)

16.

This issue is legal in nature and it is clear from the averments made in the statement of claim that the claimants

whose names are mentioned in the statement of claim alleged that they were working under the management directly

from the beginning. However, after 1984, they were shown to be under different contractors for namesake only whereas

management has come with the plea , as is clear from the pleadings that there is no relationship between the employer

and employee, i.e. the claimants and the management. Management has also alleged in the written statement that

management has assigned work to the contractors regarding loading, unloading, removing of empty and filled lube oil

drums and cartons containing mobil oil tins, stacking them etc. During the course of arguments, learned A/R for the

management in all fairness admitted that the claimants herein were working admittedly in the premises of the

management at Shakur Basti installation but no officer of the management was exercising any kind of supervisory or

administrative control over the claimants herein, who in fact, are employees of the contractors and not that of the

management. It was also alleged that the salary of the above claimants were being paid directly by the contractor and

officials of the management had noting to do with them. To my mind, there is no merit in the contention of the

management that since the management has allotted the work of loading, unloading, removing of empty and filled lube

oil drums and cartons containing mobil oil tins, stacking them etc., as is clear from the stand taken in the written

statement, it was incumbent upon the management to have specifically mentioned name of the contractors to whom

work was allotted, under the provisions of CLRA Act or otherwise from time to time. Admittedly as per the stand of

the claimant, management was the principal employer and so called contractor was simply name lender or an agent of

the principal employer. It is also neither in doubt nor in dispute that the claimants were doing work for benefit of the

management in the premises of the management. Various documents filed by both the parties, particularly MW1/W2

to MW1/W8 shows that the claimants herein were working with the management and their EPF amount was also being

deposited from time to time right from 1996-97. It is also clear from the wage/pay register Ex.MW2/W3 that claimants

were working in the premises of the management, i.e. HPCL, from the year 1993 and deduction of ESI was also being

made from the salary of the claimants, as required under the law. There is also memorandum of settlement dated

05.03.1991 , which was not disputed during the course of arguments and the name of Shri K.L. Chhabra, General

Secretary, Petroleum Workers Union is mentioned and he has also signed the said settlement. This also shows that

there was a dispute between the management and the workers regarding contract labour, including other issues. Shri

Ashwani Kumar Gupta has also admitted in his cross examination that after perusal of record, he has found that the

claimants herein were engaged in the premises of the management through contractor and their services were also

terminated by the contractor. It is pertinent to point out here that Shri Ashwani Kumar Gupta, MW1, was given

sufficient opportunity by this Tribunal to produce copy of the agreements between the management and the contractors,

particularly the last contractor, which was signed between the management with the said contractor. However, at that

time, no such copy was filed and MW1, in his further cross examination on 29.12.2011 he stated that he could not lay

his hands any of the agreements entered into between the management and the contractor. He had also not brought on

that day, list of contractors as mentioned in the registration certificate. To my mind, it would have been useful for the

management to have examined atleast some of the contractors to whom work was allotted by the management from

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time to time and copies of the agreements which was entered into between the management and such contracts were

required to be proved in accordance with law so as to prove the plea or the claim that they were employees of the

contractors and not that of the management. Since there is serious dispute of relationship of master and servant between

the management and the contractor, , therefore production of these agreements was essential. All these documents

were admittedly in possession of the management, who had initially taken the stand that no contract agreement is

available in the office of the management. The case was deferred several times when statement of Shri Ashwani

Kumar was recorded. Law is fairly settled that if a party in possession of documents does not produce such documents

despite directions of the court and no plausible explanation is given by he said party for non-production of the same, in

that eventuality, court is at liberty to draw adverse inference against the said party, more so when some of the

documents which are favourable to the management have been placed on record whereas the other documents, despite

directions, were not placed. In this regard, it is appropriate to refer to the admission made by Shri Ashwani Kumar

MW1 who has clearly stated in his cross examination dated 25.05.2012 that the management deducted EPF

subscription out of the wage of the claimants and he has given specific answer to the question put on behalf of the

claimant. However, when appeared on the next date of hearing, he shifted the stand and said the management is the

principal employer and there is no record available in the office of the management regarding deduction of EPF. When

arguments were partly heard in the case, learned A/R for the management came with an application so as to show that

the management was exempted from payment of ESI and in this regard invited attention of the court to Ex.MW2/2

which relates to exemption of ESI by the management. The question before this Tribunal is not whether the claimants

ESI or EPF was being deducted or not. The sole question before this Tribunal is whether claimants are liable to

regularized in view of order of termination passed against the said claimants.

17.

Since engagement of the claimants herein is not directly in issue in the sense that the only dispute is whether the

demand of the claimant union regarding termination or regularization of claimants is just and fair and the same would

be decided while considering the reference made to this court by the appropriate Government. So far as the limited

question of employer and employee relationship is concerned, management being the principal employer cannot be

permitted to say that the claimants were not its employees. Management has also not examined any of the contractors

so as to show that it was the contractors who has engaged the claimants herein or was exercising any kind of

supervisory and administrative control over the said employees. In such a situation, this Tribunal is bound to draw

adverse inference against the management. Accordingly, it is held that for limited purpose, the claimants herein, since

they were working in the premises of the management, were employees of the management.

Issue No. (ii) and (iii)

18.

It is the case of the claimant union that the principal employer, i.e. management herein has not obtained

registration for the purpose of awarding contractors to private contractors as required under Section 7 of the CLRA Act

nor the so called contractors were duly licenced in terms of provisions of Section 12 of the CLRA Act. During the

course of arguments, it was not disputed that before awarding any contract to a private contractor, the principal

employer of the establishment must apply to the appropriate Government for its registration before the registering

officer within the prescribed time. The CLRA act also provides the format which should contain necessary particulars

of the establishment which is seeking registration under Section 7 of the CLRA Act. Contravention of provisions of

Section 7 of the CLRA Act constitutes offence under the law. Similarly, the private contractor is also required to

obtain licence and must apply to the appropriate Government by fulfilling all the requisite conditions. Contractor is also

required to mention details of the workers who are to be engaged for execution of the work under the principal

employer. Primary object is to stop exploitation of contract labour by the contractor or by the establishment.

19.

It is pertinent to mention here that the management when filing written statement has not filed certificate of

registration as required under provisions of Section 7 of the CLRA Act or the contract documents entered into in terms

of Section 12 of the CLRA Act. Even when MW1 Shri Ashwani Kumar Gupta was examined, he was not in a position

to explain as to where these documents are. Shri MW2, Shri Babberwal was also examined by the management as

MW2. He has also tendered in evidence various documents and certain documents were accepted by the management.

This witness has clarified that the contractor used to visit the office of the management. However, he has not

specifically named any contractor, year-wise, under whom various workers were working nor he has mentioned names

of any official of the contractor in his statement who was supervising work of the claimants herein, who were

admittedly working in the premises of the management. However, management was not in a position to produce record

relating to the name of the supervisor. He has denied that the contract documents Ex.MW2/29 and Ex.MW2/30 are

fabricated documents but he has not explained from where the documents have come when on an earlier occasion,

despite directions of the court, the said documents were not produced. To my mind, examination of the contractor

while filing these documents was necessary as the contractor is alive and is available for his examination. It is not the

case of the management that the contractor is no more in this world or his whereabouts are not known to the

management. Law is fairly settled that merely marking of documents as exhibits will not dispense with the proof such

documents. Party relying upon such a document is required to prove the same in accordance with law. From where

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[PART II—SEC. 3(ii)]

photocopies of these documents were obtained was not explained by the learned A/R for the management during the

course of arguments when originals of none of these documents have been shown to the court. In such a situation,

merely placing on record the photocopies during the statement of MW2 by the management cannot be said that the

management has duly proved the documents, as required under the law, particularly when there is no examination of

the officials who were there at the time of execution of such documents and the contractor who has signed the same.

Shri Balbir Singh Babbarwal, MW2 is not signatory to these documents. In view of this, issue No.2 and 3 are decided

in favour of the claimant and against the management.

Issue No. (iv)

20.

Learned A/R for the management raised the plea that question of sham and bogus agreements cannot be

entertained and this Tribunal cannot travel beyond the terms of reference in view of the specific provisions contained in

Section 10 of the Act. There is hardly any dispute with the proposition of law that this Tribunal is required to answer

the reference made by the appropriate Government. However, all the incidental questions relevant to the main issue

which are integral part of the reference are also required to be answered by this Tribunal. Moreover, reference before

this Tribunal is not to the effect that whether the claimants herein are employees of some contractor or that of the

principal employer, i.e. management herein. The reference is very specific and this Tribunal is required to answer the

question whether demand of claimant union regarding termination of the job of the claimants herein by the

management is fair and justified.

21.

Learned A/R for the management during the course of arguments relied upon a number of authorities so as to

support her plea that the claimants herein are employees of the contractor and are not in the employment of the

management. In this regard, reliance was placed upon the case of International Airport Authority of India Vs.

International Air Cargo Workers Union (2009) 13 SCC 374, General Manager Bengal Nagpur Cotton Mills Vs. Bharat

Lal & another, (2011) 1 SCC 635, National Aluminum Company Limited vs. Ananta Kishore Raut & Others (2009) 9

SCC 462, S.C. Chandra Vs State of Jharkhand (2007) 8 SCC 279, Hari Shankar Sharma Vs. Artificial Limbs

Manufacturing Corporation (2002) 1 SCC 274, India General Navigation and Railway Company Ltd. vs their

Workmen (Civil Appeal No.514 of 1964), NC John Vs. Secretary, Thooupzma Taluk Shop (1973 1 LLJ 366 Kerala

High Court), Oshiar Prasad & Others Vs. the Employees in relation to management of Sudamdih Coal Washery of M/s

BCCL, Dhanbad, Jharkhand (SLP(C) 33509/2011 decided on 02.02.2015, Oil and Natural Gas Corporation KG Project

Rajahmundry Vs. N. Satyanarayan (2003) 3 ALD 711 Andhra High Court(, Dyes and Chemical Workers Union Vs.

Bombay Oil Industries Ltd. (2001) 89 FLR 638. Reliance was also placed on a few other authorities related to deposit

of EPF, ESI etc. which is not to be considered as relevant or decisive factors for deciding relationship of employer and

employee.

22.

Learned A/R for the claimants urged that in the present case there is ample evidence on record to suggest that

the claimants have been working in the premises of the management for the last more than 15-18 years and having

performed their duties sincerely and regularly. Claimants were not in the knowledge that in the record of the

management they have been shown to be working under any contractor. It was further urged that in view of the ratio of

the case in Steel Authority of India Vs. National Union Water Front Workers (2001) 7 SCC 1 as well as Anoop Sharma

Vs Executive Engineer (2010)SCC 5497, management was required to serve notice upon the claimants before

terminating their services and retrenchment compensation was also required to be paid to the claimants at the time of

their termination.

23.

During the course of arguments it was not disputed on behalf of either of the parties that no written notice was

served upon the claimants when their services were terminated either by the contractor or by the management nor were

they paid any retrenchment compensation as per Section 25-F of the Actbefore their termination. In such

circumstances, it is thus clear that there is clear-cut violation provisions of section 25-F of the Act. It is also clear from

record of the case that claimants herein are working continuously with the management, may be on papers through

contractors for some time and they have completed 240 days in a year prior to their termination. Management has also

not adduced any evidence so as to show that they were not directly engaged initially. As discussed above, management

in its reply has only mentioned names of M/s Tiwari& Co. and M/s Flora Automobiles who were engaged by the

management as contractors. The most relevant period in the present case was when services of the claimants herein

were terminated, i.e. 31.03.2002, as to who was the so-called contractor engaged by the management.

24.

Hon’ble Apex court in the case of SAIL Court in Steel Authority of India and others Vs. National Union

Waterfront Workers and others (2001) 7 SCC 1) was primarily concerned with the meaning of the expression

‘appropriate Government’ as used in Section 2(1)(a) of the Contract Labour (Regulation and Abolition) Act, 1970 and

in Section 2(a) of the Industrial Disputes Act, 1947 in relation to State Government or the Central government. The

other issue involved before the Apex Court was the automatic absorption of contract labour in the establishment of the

principal employer as a consequence of abolition notification issued under Section 10A of the CLRA

Act 1970. Supreme Court while partly overruling the judgement in Air India Statutory Corporation Vs. United

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Labour Union [1997 (9) SCC 377] prospectively held that neither section 10 of the CLRA Act nor any other provisions

of the Act, whether expressly or by necessary implication, provides for automatic absorption of the contract labour on

issuance of notification under the said section, prohibiting contract labour and consequently principal employer is not

required to absorb contract labour working in such establishments. In the said case, another incidental issue whether

relationship of master and servant between the principal employer and contract labour emerges after issuance of

notification under section 10 of the CLRA Act was also considered by the Court. After discussing the entire spectrum

of the case law on the subject in Para 125 of the judgement, it was held as under:

(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary

implication, provides for automatic absorption of contract labour on issuing a notification by appropriate

Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process,

operation or other work in any establishment. Consequently the principal employer cannot be required to order

absorption of the contract labour working in the concerned establishment;

“(4) We overrule the judgment of this Court in Air India case prospectively and declare that any direction

issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour

following the judgment in Air India case shall hold good and that the same shall not be set aside, altered of

modified on the basis of this judgment in cases where such a direction has been given effect to and it has

become final.”

(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment

of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to

conditions of service, the industrial adjudicator will have to consider the question whether the 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 with various beneficial legislations so as to deprive the workers of the

benefit there-under. If the contract is found to be not genuine but a mere camouflage, the so called contract

labour will have to be treated as employees of the principal employer who shall be directed to regularize the

services of the contract labour in the establishment concerned subject to the conditions as may be specified by

it for that purpose in the light of para 6 hereunder.

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in

respect of the establishment concerned has been issued by the appropriate Government, prohibiting

employment of contract labour in any process, operation or other work of any establishment and where in such

process, operation or other work of the establishment the principal employer intends to employ regular

workmen, he shall 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.”

25. A critical examination judgement in SAIL case (supra) would show that this judgement shines like a pole star in

the galaxy of precedents in the field of industrial laws and provides a beacon light to all those who are lost in the mist

of legal confusion.

26.

It is clear from the various judgements that there are a number of factors which are required to be considered in

order to determine whether the workmen are directly in the employment of the principal employer, i.e. management

herein or were employees of the so-called contractors. One fact which is apparent from the perusal of the entire file is

that different contractors have been engaged by the management on paper from time to time but the workmen remained

the same despite engagement of different contractors by the management. It is, thus, a sheer case of name-lending by

the contractor to the principal employer or company. Admittedly, all the claimants were working in the premises of the

management and were doing the work of repair etc., which fact was not disputed by any of the parties. There is no

mention of name of any supervisor of any of the contractors who was having any kind of control over the claimants

herein. Rather, evidence of the claimants herein is explicit on the point that they were doing work at Shakur Basti

installation on the orders of the officials of the management who were getting all kinds of work from them. Onus to

prove the contract or agreement between the principal employer and the contractor was on the management and also as

to exercise of supervisory or administrative control by the contractor on the employees was very heavy on the

management, who has not examined even a single contractor so as to prove any of the contract as well as period of

contract, including number of workers to be engaged by such contractor for performance of the work. At this stage, it

is also appropriate to refer to the provisions of CLRA Act which clearly provides that no contractor shall undertake or

execute any work through contract labour unless Licence has been issued in favour of such contractor by the Licensing

Officer in terms of Section 12 of the CLRA Act. Similarly, the principal employer is also required to register itself by

making an application to the registering Officer in the prescribed manner so that the principal employer could engage

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[PART II—SEC. 3(ii)]

contractor for execution of the work. Contravention of Section 7 or 12 of the CLRA Act is also an offence under the

law. It is further clear from perusal of section 21 of the CLRA Act that the principal employer shall nominate a

representative to be present when wages are paid to the workmen and in case contractor fails to make payment of

wages, it is the duty of the principal employer to make payment of such wages. Further Rule 72 enjoins upon the

principal employer to authorize a representative when salary is paid to the workmen and his signatures are also

required to be appended on the register of wages. After payment of salary to the workmen, a copy of the same is

required to be sent to the principal employer by the contractor. In the case on hand, the above requirements have not

been followed at all by the principal employer as management has not produced the salary record of the claimant right

from the beginning when the claimants were working till the date of their termination on 31.03.2002. Management has

selectively filed only some of the record pertaining to 2-3 contractors whose names are mentioned in the written

statement. Even the said contractors have not been examined so as to prove that it was the contractor who was getting

work from the claimants herein in the premises of the management. In such circumstances, merely because payment

was made through contractors cannot be said to create relationship of employer and employee between the contractors

and the claimants herein.

27.

I have carefully gone through the ratio of the authority in International Airport Authority of India Vs.

International Air Cargo Workers Union(2009) 13 SCC 374 and a scrutiny of the facts of the above rulings would show

that the appellant company, International Airport Authority of India(IAAI) in the said case gave licence to a private

contractor for groundling of cargo and the contractor was entitled to collect charges from the consignor and consignee.

The said private contractor employed its own workers for ground handling of cargo. When the appellant company

(IAAI) terminated the licence of the private contractor. Workers then requested the appellant company (IAAI) to give

them employment. appellant company (IAAI) gave them casual employment for some time purely as temporary

measure and on humanitarian grounds. Subsequently, the said workers formed a co-operative society to which contract

of ground handling was given. The issue before the court was whether the contract between appellant company (IAAI)

and the Co-operative society was sham and the workers were direct employees of the appellant company (IAAI).

Initially award was passed by the Industrial Adjudicator in favour of the contract workers holding that the contract

between the appellant company (IAAI) and the society was sham. However, in writ petition, Single Judge of the High

Court quashed the award given by the Industrial Court but the Division Bench of High Court in writ appeal reversed

the decision of the Single Judge. It was thereafter that the matter was taken by appellant company (IAAI) before the

Hon’ble Apex Court and their plea was allowed by holding that ultimate supervision and control of the handling work

in the said case was with the contractor as it is he who decides where an employee is to work and how long he will

work, subject to other job conditions. It was the contractor who was assigning and sending workers to work from one

place to another. In view of this factual scenario, it was ruled that the contract workers were employees of the

contractor and not that of the appellant company (IAAI). The factual situation in the case on hand is entirely different

from the factual scenario discussed above as in the case on hand there is ample evidence on record to suggest that the

claimant here were doing /performing work at Shakur Basti installation under the direct supervision and control of the

officials of the management and this fact is amply clear even from the statement of the witnesses examined by the

management as well as other evidence on record. There is not even an iota of evidence on record to suggest as to any

contractor or his supervisor had ever visited premises of the management so as to give directions to the claimants, who

were admittedly doing work in the premises of the management. Management has also not examined, as discussed

above, any contractor or any supervisor who was engaged by such contractors so as to prove the factum of ultimate

supervision and control of the work on the claimants, as such, ration of this authority is not of any help to the case of

the management. Moreover, in the authority relied upon by the management there is ample evidence on record to

suggest that it was the contractor who was exercising every kind of control over the contract workers and adhoc

employment was given to the said workers of the said contractor on humanitarian grounds for a short period. In the

above authority, i.e International Airport Authority of India vs. International Air Cargo Workers Union [AIR (2009) SC

3063], it was held as under:

“When the contract labour contends that the contract between principal employer and contractor is sham and

nominal, the remedy is purely under the ID Act. The principles in Gujarat Electricity Board continue to govern

the issue. The remedy of the workmen is to approach the industrial adjudicator for adjudication of their dispute

that they are the direct employees of the principle employer and the agreement is sham, nominal and merely a

camouflage, even when there is no order under section 10(1) of CLRA Act. The industrial adjudicator can

grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal

and merely a camouflage to deny employment benefits to the employees.”

28.

Similarly, ratio of the judgement in General Manager Bengal Nagpur Cotton Mills Vs. Bharat Lal & another,

(2011) 1 SCC 635 is also not of any help to the management. In the said case, as is clear from the fats, respondent was

engaged through contractor as security guard for duties at the appellant mill in December 1980 and services of such

contract guard was terminated in July 1982 as the appellant mill terminated services agreement with such contractor on

16.08.1982. The contract worker, after five years of this termination filed a dispute for declaring that his termination

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from service is illegal and he be given all consequential relief. Labour Court partly allowed the plea of the workman

and directed the principal employer to reinstate the contract worker to his post and pay him arrears. Thereafter, the

principal employer went in appeal before the Hon’ble High Court wherein the employer was directed to pay full

wages during pendency of the appeal to the contract worker. It so happened thereafter that the mill of the principal

employer was closed in October 1992 as it was declared a sick unit. It was also held by the Industrial Court that the

agreement between the principal employer and the private contractor was sham and nominal. High Court had also

dismissed the appeal filed by the principal employer and the matter finally reached Hon’ble Apex Court wherein appeal

filed by the principal was allowed and order of the Industrial Court and High Court was set aside. In the said case,

Hon’ble Apex Court laid down two basic tests in order to determine whether contract in the given case is sham and

nominal and in para 10 of the judgement, it was observed that the Industrial Court is required to keep in mind the well-

recognized tests to find out whether the contract labour are the direct employees of the principal employer are

(i)whether the principal employer pays the salary instead of the contractor; and(ii) whether the principal employer

controls and supervises the work of the employee. The Industrial Court in the case decided the case in favour of the

contract employees. However, Hon’ble Apex Court observed that the Industrial Court committed a serious error in

arriving at the said conclusion as onus was wrongly placed upon the management to prove the material issue of

contract being sham and nominal. It was also found by the Apex Court that the contract worker has misrepresented

facts that he was not in employment after termination whereas on record employment certificate of the contract worker

was filed by the company, which was not even denied by the contract worker. It was on account of this reason that due

to deliberate suppression and misrepresentation of facts, contract labour was held not entitled for reinstatement,

including payment of back wages.

29.

Strong reliance was also placed by the management in the case of National Aluminum Company Limited Vs.

Ananta Kishore Raut & Others (2009) 9 SCC 462. It was a case where NALCO had established various schools and

provided infrastructure as well as financial support to the said schools. Management Committee of the Schools were

constituted to run administration of school, including engagement of staff etc. It was the Management Committed

which recruited staff and all decisions regarding their service conditions was taken by the said managing committee

without any control or approval from NALCO. Later on, administration of the school was given to some other society

on the decision of the Management Committee. The school has made recruitment of various staff and later on terms of

the same agreement expired, resulting in retrenchment of the employees. Ultimately, question which arose for

consideration was whether the said employees are in the employment of the Management Committee of the School or

that of NALCO. It was held that there was no supervisory control over working of the staff or canteen of NALCO and

everything was being done by the managing committee of the school. Day to day supervision and control is vested

with the managing committee from appointment till termination of the workers.

30.

I really fail to understand as to how this ruling is helpful to the case of the management when evidence of the

management is to the contrary and the management has not examined any contractor or its supervisors so as to show, as

discussed above, that any direct supervision or control was exercised by such contractor or supervisor on the spot

upon the claimants. Shri Balwinder Singh Babberwal, MW2 has admitted in his cross examination that the claimants

were working in the premises of the management from 1985 till 2002 under different contractors. They were doing the

work of maintenance and repairing of company vehicles, which was upto the mark. Though he has denied that the

claimants were directly employed by the management. However, he has not mentioned name of any contractor to

whom work was given in the year 1985. There is no document of the management on record to show that in the year

1985 or immediately thereafter as to who was the contractor engaged by the management for doing such work. Rather,

this witness as well as MW1 Shri Ashwani Kumar have stated that contract documents are not available with the

management as the same could not be traced despite best efforts. Later on, Shri Babbarwal, in his cross examination

dated 04.06.2013 produced agreements Ex.MW2/W29 to Ex.MW2/W30. He has further admitted that there are no

signatures of the contractor on these documents. Underneath the signature of the witnesses, his parentage and address

have not been mentioned. Further, photocopy of non judicial stamp paper on which Ex.MW2/W29 and Ex.MW2/W30

does not project the contents on the reverse of the stamp paper. Therefore, mere placing of photocopies of these

documents on record without examination of the persons who have prepared and signed such documents is not of any

help to the case of the management.

31.

Reliance was also placed upon the case of S.C. Chandra Vs State of Jharkhand (2007) 8 SCC 279. In this case,

the issue of employer and employee relationship was involved. In fact, the issue before this Court was for parity of

wages and question of agreement/contract being sham or nominal was not directly involved; It was further held in this

case that simply because nature of the work was same would not entitled the employee for equal pay with the other

employees whose mode of employment, experience etc. is different. The employer of Subhash Chander was not being

maintained by BCCL in any manner, as such, it was held that they are employees of the School.

32.

I have also gone through the judgement in Hari Shankar Sharma Vs. Artificial Limbs Manufacturing

Corporation (2002) 1 SCC 274. To my mind, the factual scenario in the said case depicts entirely a different picture

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THE GAZETTE OF INDIA : DECEMBER 30, 2017/PAUSHA 9, 1939

[PART II—SEC. 3(ii)]

from the controversy on hand. In the said case, the company owned a factory where more than 200 workers were

employed and a canteen was set up on the premises for the employees. From time to time agreements were into

between the contractor of the company and it was the contractors who were preparing and serving foodstuff. Workmen

claimed themselves to be direct employees of the company and sought regularization. When they failed before the

Labour Court, matter was taken by the workers of the canteen before the Apex Court and in this case reference was

made to Section 46 of the Factory Act, 1947 in which a company is cast with statutory obligation to provide and

maintain a canteen for the use of its employees. It was against this background that held that setting up of the canteen

by the company was a statutory requirement and employer of the canteen cannot be said to be employer of the

management. Again, as discussed above, control regarding mode of work and nature of duty in the case relied upon

was with the manager of the canteen and the principal employer has nothing to do with the same, whereas in the case

on hand, everything is vice versa as it was the management who is having full effective control over the employees, i.e

the claimants herein who were performing and taking vehicles for filling, repair etc. to various places as is clear from

the documents discussed above. Resultantly, ratio of this authority is also is not of any help to the case of the

management.

33.

In India General Navigation and Railway Company Ltd. vs their Workmen (Civil Appeal No.514 of 1964), it

was case of termination of 56 workers who alleged themselves to be in the direct employment of the company whereas

the case of the management was that they were not its employees and termination of their services was a result of

closure of the business and the said closure was held to be bonafide by the Tribunal. It was also held that there was no

direct relationship of master and servant between the company and the workers.

34.

Learned A/R for the management also relied upon certain other authorities regarding regularization of the

workmen. There is no dispute to the proposition of law that there cannot be regularization of daily wage workers unless

there is policy of the management to regularize such workmen. Moreover, question of regularization would arise only

when termination of the workmen is held to be bad under the law or such workmen are ordered to be reinstated.

35.

The learned A/R for the claimant also relied upon a number of authorities so as to prove that there is gross

violation of provisions of Section 25-F of the Act as well as other provisions. In this regard, strong reliance was

placed on the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana), reported

in (2010) 5 SCC 497 has discussed in detail provisions of Section 25F of the Act and held as under:

25-F Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has

been in continuous service for not less than one year under an employer shall be retrenched by that employer

until -

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the

period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the

notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen

days' average pay for every completed year of continuous service or any part thereof in excess of six months

16. An analysis of the above reproduced provisions shows that no workman employed in any industry who has

been in continuous service for not less than one year under an employer can be retrenched by that employer

until the conditions enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of

Clause (a), the employer is required to give to the workman one month's notice in writing indicating the

reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to

pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for

every completed year of continuous service or any part thereof in excess of six months.

17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance

thereof renders the retrenchment of an employee nullity

36.

Reliance was also placed by the learned A/R for the claimant upon the case of Secretary, Haryana State

Electricity Board vs. Suresh Kumar (1999) LLR 433). In this case, Electricity Board has awarded contracts to private

contractors to undertake work of maintenance and cleaning of plants at various places in the State. When the said

contract expired, services of the contract employees were terminated by the contractor and the matter was taken to the

Industrial Court. Labour Court ordered reinstatement with continuity of service to the said contract employees

alongwith 10% back wages. When matter was taken to the Hon’ble High Court by the management of Electricity

Board, it was held that there existed relationship of employer and employee between the Electricity Board and the

karamcharis (contract employees). As such, to this extent order of the Labour Court was upheld. However, no back

wages were granted. It was held by the Hon’ble High Court that maintenance of plant is not seasonal work in nature

and overall control over such contract labour was that of the officials of Electricity Board who were issuing necessary

directions to such employees from time to time and were also exercising administrative control. Electricity Board

¹Hkkx IIµ[k.M 3(ii)º

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9959

finally took up the matter with Hon’ble Apex Court wherein strong plea was raised that karamcharis were employees of

the contractor and not that of Electricity Board inasmuch as wages were being paid to the said employees through the

contractor. It was proved on record that the employees in the above case were in continuous employment though

private contractors kept on changing from time to time. In this background, it was observed by the Hon’ble Apex

Court that doctrine of lifting of veil as enunciated in the case of Solomon vs. Solomon can be applied to decide the

relationship of employer and employee in cases falling under contract labour. It was also held that the work of

maintenance cannot by any stretch of reasoning be ascribed to be of seasonal nature. The number of employees

required for maintenance and upkeeping of the plants are also mentioned in the contract. Finally, in para 19, Hon’ble

Apex Court, held as under:

It has to be kept in view that this is not a case in which it is found that there was any genuine contract labour

system prevailing with the Board. If it was a genuine contract system, then obviously, it had to be abolished as

per Section 10 of the Contract Labour Regulation and Abolition Act after following the procedure laid down

therein. However, on the facts of the present case, it was found by the Labour Court and as confirmed by the

High Court that the so called contractor Kashmir Singh was a mere name lender and had procured labour for

the Board from the open market. He was almost a broker or an agent of the Board for that purpose. The

Labour Court also noted that the Management witness Shri A.K. Chaudhary also could not tell whether

Shri Kahsmir Singh was a licensed contractor or not. That workmen had made a statement that Shri Kashmir

Singh was not a licensed contractor. Under these circumstances, it has to be held that factually there was no

genuine contract system prevailing at the relevant time wherein the Board could have acted as only the

principal employer and Kashmir Singh as a licensed contractor employing labour on his own account. It is also

pertinent to note that nothing was brought on record to indicate that even the Board at the relevant time, was

registered as principal employer under the Contract Labour Regulation and Abolition Act. Once the Board was

not a principal employer and the so called contractor Kashmir Singh was not a licensed contractor under the

Act, the inevitable conclusion that had to be reached was to the effect that the so called contract system was a

mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced

and the real contractual relationship between the Board, on the one hand, and the employees, on the other,

could be clearly visualized.”

37.

In the case on hand also, as is clear from evidence on record that the claimants herein are virtually in continuous

employment since 1985/86 onwards and they are performing their duties in the premises of the management since then.

Management has not examined, as discussed above, any contractor or supervisor engaged by such contractors so as to

show that supervisory and administrative control over the said claimants was that of the contractor and not that of the

management. Rather, evidence on record is very explicit to the effect that duties are being assigned to different

claimants by the officials of the management regarding filling of diesel as well as other duties regarding repair and

maintenance of vehicles. There is not even a shred of evidence on record to show that any contractor or his supervisor

had at any point of time issued any kind of direction regarding performance of duties in the premises of the

management where such employees were admittedly working in various shifts. There is also no specific evidence on

record to prove as to who was the last contractor engaged by the principal employer, i.e. management herein to whom

work was assigned by the management by executing valid contract. Moreover under what circumstances termination

of services of the claimant on 31.03.2002 was done either by such contractor or the management? All this was within

the knowledge of the management who is admittedly the principal employer and management should have submitted

entire record pertaining to engagement of such contractors from time to time. There also appears to be violation of

provisions of CLRA Act by the management. It is clear from provisions of the CLRA Act and rules made therein that

whenever a contract is entered into between the parties, the number of workers to be engaged with their full names and

details is also required to be mentioned in the contract documents. It is further the duty of the principal employer to

ensure that wages are paid to such employees on the spot by the contract as is clear from Rule 72 of Contract Labour

(Central) Rules 1971. The principal employer is also required to ensure compliance of other provisions of CLRA Act

as well as rules made therein. There is also an obligation upon the management to maintain register of contractors in

terms of Rule 74 in Form XII and form XIII requires every contractor to append names of the employees engaged by

him. Since in the case on hand, employees, i.e. claimants herein, remained the same though contractors kept on

changing from time to time, which fact was not disputed even by the management, it is clearly suggestive of the fact

that such contractors were simply name lenders and they were not having any effective or supervisory control over the

employees on the spot. Since, no contractor has been examined by the management, as such merely filing of contract

documents which do not even contain signatures of the contractors is not of much value. In such circumstances, this

Tribunal is of the firm view that the claimants herein cannot be said to be employees of the contractor as was being

strongly urged on behalf of the management and they are held to be employees of the principal employer.

38.

Admittedly, in the case on hand, there is blatant violation of provisions of Section 25-F of the Act and there is a

long line of decisions of Hon’ble Apex Court that non-compliance of provisions of section 25-F of the Act would

render action of the management to be totally illegal and void under the law.

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[PART II—SEC. 3(ii)]

39.

Now, the residual question before this Tribunal is as to what relief the claimants herein are entitled to? Since

this Tribunal has already held that the above claimants were in employment of the management since 1985 onwards

and they were also performing their duties continuously and as such, it cannot be said that the work which they were

performing is seasonal or temporary in nature.

40.

No doubt, earlier a view was articulated by the Hon’ble Apex Court in several authorities and legal position was

that if termination of a workman is found to be illegal or against the principles of natural justice, in that eventuality,

relief of reinstatement with back was would follow. This view was taken by Hon’ble Apex Court in Deepali Gundu

Survase Vs. Kranti Junior Adhyapak Mahavidyalaya (2013 AIR SCW 5330). However, in the recent past, there is

change in this trend and now in several cases a view has been taken that relief by way of reinstatement alongwith back

wages is not automatic even though the action of the management has been found to be totally illegal or void under the

law. Question of grant of back wages as well as reinstatement, in fact, would depend upon a number of factors, e.g.

nature of post, mode of recruitment, duration of engagement, delay in raising the industrial dispute, nature of the work

being performed by the workman etc. However, there cannot be any straight jacket formula to be applied in a

mechanical manner by the courts.

41.

At this stage, it is necessary to mention that in Oshiar Prasad Vs. Sudamdih Coal Washery (2015) 4 SCC 71,

Hon’ble Apex Court while dealing with almost similar case held that when services of a workman have been

terminated long back prior to making of the reference and such workmen were either not in the services of either

Contractor or/and the previous employer, in that eventuality, question of their absorption or regularization did not arise

nor this issue could have been gone into on its merits for the reason that they were not in service. Question of

regularization thus can only be considered when contract of employment subsists. In the case on hand, as is clear from

the pleadings as well as evidence on record, services of the claimants herein were terminated on 31.03.2002 and

thereafter they are virtually out of employment and evidence on record is quite clear that they have been in service of

the management for the last more than 15-18 years prior to their termination. In view of this, reference is answered

accordingly, partly in favour of the claimant holding that instead of reinstatement or regularization of their services,

they are entitled for reasonable compensation. Having regard to the length of their service and the latest trend of the

Hon’ble Apex Court reflected in the various judgements, I am of the view that an amount of Rs.5 lakh appears to be

just and reasonable. It is also made clear that in case any of the claimant/s expired during pendency of the proceedings

before this court, in that eventuality, compensation would be paid to the legal heirs of such deceased claimant/s. In

case compensation of Rs.5 lakh is not paid within a period of one month from the date of publication of the award, the

claimants would also be entitled to interest at the rate of 9% per annum upon the said amount from the date of the

reference till its payment. An award is accordingly passed. Let this award be sent to the appropriate Government, as

required under Section 17 of the Industrial Disputes Act, 1947, for publication.

Dated : November 15, 2017

A. C. DOGRA, Presiding Officer

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New Delhi, the 20th December, 2017

S.O. 2903.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 156/2011) of the Central Government Industrial Tribunal/Labour

Court-1, New Delhi now as shown in the Annexure, in the industrial dispute between the employers in relation to the

management of M/s. Hindustan Petroleum Corporation Limited and their workman, which was received by the Central

Government on 30.11.2017.

[No. L-30011/20/2003-IR (M)]

D. K. HIMANSHU, Under Secy.

¹Hkkx IIµ[k.M 3(ii)º

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9961

ANNEXURE

BEFORE PRESIDING OFFICER: CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT No. 1 : ROOM No. 511, DWARKA COURT COMPLEX, SECTOR 10, DWARKA, DELHI

ID No. 156/2011

The Secretary,

Petroleum Worker Union,

C-160, Sarvodaya Enclave,

New Delhi – 110 017

…Workman

Versus

The General Manager,

Hindustan Petroleum Corporation,

11^th Floor, Tower I, 124, Indira Chowk,

New Delhi 110 001

…Management

AWARD

Pursuant to receipt of reference vide letter No.L-30011/20/2003-IR(M) dated 19.06.2003 clause (d) of sub-

section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947(in short the Act), this court is

required to adjudicate an industrial dispute, terms of which are as under:

‘Whether the demand of the Union that Shri Balwinder Singh and seven others (list enclosed) for

reinstatement /regularization in view of the notification dated 10.05.2002 of the Ministry of Labour, New

Delhi is justified? If yes, to what relief the workmen are entitled?’

Later on, corrigendum was received from the appropriate Government vide letter No.L-30011/20/2003 dated

27.05.2014, which is as under:

‘In partial modification of this Ministry’s reference order of even number dated 19.06.2003, in the second line

of the schedule, the words ‘in view of termination with effect from 31.03.2002 without following the

provisions of ID Act, 1947 and consequent’ may be treated as added between the words ‘reinstatement’ and

‘regularization’.

Both parties were put to notice and it is clear from statement of claim filed by the claimant that the claimants,

namely S/Shri Balwinder Singh, Roshan Lal, Satish Kumar, Badri Prasad, Jai Singh, Madho Singh, Baru Ram and Shri

Vidya Bhushan were employed by Hindustan Petroleum Corporation Ltd. (in short the management ) in Shakur Basti

installation, New Rohtak road, except Shri Baru Ram, who has been working Brijwasan tap off point. Later on, Shri

Vidya Bhushan was also shifted to Corporation tap off point at Brijwasan. All the claimants herein are members of

Petroleum Workers Union, New Delhi since 1985-86. This is a registered trade union and is duly recognized by the

management.

It is the case of the claimants that they were engaged as contract labour in the Corporation and the work carried

out by them was permanent and perennial in nature and even served the management directly for 15-18 years. They are

being continued as contract labour. The sole objection of the management is of earning higher profits at the cost and

exploitation of the workmen. Claimants are in great stress and strain and there is constant danger of termination of

services by the management as Ministry of Labour is in the process of issuing prohibition notification of contract

labour under the law. Contractor neither had requisite licence which is violation of Section 12 of the Contract Labour

(Regulation and abolition) Act(in short the CLRA Act nor the management has got valid registration under Section 7 of

the CLRA Act for engaging contract labour. There is also reference to the CLRA Act in the pleadings, particularly

Section 21 and 29 of the said Act.

It is specifically alleged in Para 12 of the claim that under Section 10 of the CLRA Act, Central Government has

issued prohibition notification dated 10.05.2002 and above notification prohibits employment of contract labour in the

process, operation of work of maintenance of vehicles and equipment, namely truck, jeep, DG set, fire engine in the

establishment of the management at Shakur Basti installation. Nature of work performed by the claimant is permanent

and perennial in nature and the claimants have been working with the management without any break for the last 16-17

years. Main livelihood of the claimants is totally dependent on the present work and they have long experience of work

with the management. There is also reference to the judgement of the Hon’ble Apex Court in para 14 of the claimant

in Haryana State Electricity Board Vs Suresh and others (1999) 3 SCC 601) wherein the Tribunal/Court could lift the

veil so as to ascertain the true or genuine nature of the contract.

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[PART II—SEC. 3(ii)]

It is also the case of the claimant that they have earlier filed writ petition 2001 of 2000 with the Hon’ble High

Court of Delhi for continuation of their service. In the said writ petition, Contract Labour Court was directed by the

Hon’ble High Court to decide the reference filed by the contract labour. Thereafter the Contract Labour Board in its

meeting on 30.01.2001 decided to recommend to the Government to abolish contract labour system in the bob of

maintenance of vehicle and equipment etc. at Shakur Basti installation of the management. It was thereafter that

necessary notification dated 10.05.2002 for prohibition of contract labour in the managements installation was issued.

Claimants have also made reference to the judgement of the Hon’ble Apex court in the case of Steel Authority of India

Vs. National Waterfront Workers Union wherein Hon’ble Apex Court has dealt with the question of issuance of

prohibition notification under Section 10 of the CLRA Act. It is further alleged that the management who is the

principal employer has violated the prohibition notification issued by the central Government by engaging new contract

labour and terminating services of the claimants herein i.e. Shri Baru Ram & Shri Vidya Bhushan on 31.01.2002, Shri

Balwinder Singh, Shri Roshan Lal, Shri Satish Kumar and Shri Badri Prasad, Shri Jai Singh and Shri Madho Singh on

31.03.2002 , is arbitrary, illegal and in violation of Section 25-F, G, M and N of the Act. It is also prayed that the

claimants have been serving the management for the last 14-17 years, as such, their services are liable to be reinstated.

Management has demurred the claim of the claimants by filing written statement. Management has taken

preliminary objections that the present reference is barred by doctrine of estoppel as all demands of the union for

reinstatement/regularization cannot be considered. It is also alleged that the appropriate Government issued

notification on 20.04.1987 whereby it had abolished contract labour system in certain processes at terminal, plant,

depots and factories of the management. There is also reference to the writ petition filed in Hon’ble High Court

challenging the said notification. Subsequently, the union has entered into agreement with the management on

09.03.1984 whereby all the matters and disputes pertaining to contract workmen engaged by the Society in the

installation at Shakur Basti were settled. Again there was an agreement between the management and the union on

28.06.2001 which was valid for a period of 10 years commencing from 01.10.1998. It is mentioned in the said

agreement that settlement is in full and final settlement of the demands raised by the union. Now, the union cannot

raise this point by filing the present claim before this Tribunal. Union has also not approached this Tribunal with clean

hands. There is also no proper espousal and making of reference by the appropriate Government is stated to be without

application of mind. Thus, it is abuse of process of court. Claim is also bad for mis-joinder and non-joinder of

necessary parties. It is the case of the claimants that they were in the employment of Tiwari and Co. and Floria

Automobiles. It is also their case that their respective contactors/employers who have employed the claimants had

terminated their services. However, claimants are claiming reinstatement with the management who had not

terminated services of the claimants. On merits, all the material averments have been denied by the management.

However, in reply in Para 1 (ii)a) it is submitted that the claimants had worked only upto 31.03.2002 when it was

decided by the management that no fresh contract for repair/maintenance at Shakur Basti installation. It is denied that

the claimants were working for maintenance of vehicles of the management. It is also denied that the claimants were

continuously and regularly for more than 240 days in each completed year of service from 1984 to 2002. It is also

denied that the work performed by the claimants is permanent and perennial in nature. It is denied that the claimants

were employed as casual workers for carrying work of permanent and perennial in nature. It is also denied that the

claimants were performing their duties under the direct control and supervision of the officials of the management.

Further, it is denied that the contractor did not have requisite licence under Section 12 of the CLRA Act or the

management does not have valid license under Section 7 of the said Act. It is also denied that the management is

violated the notification and continues to employ new contract labour.

Rejoinder was also filed by the claimant to the written statement filed by the management wherein the

claimants have reiterated the stand taken in their claim statement and denied material averments contained in the

written statement.

Against this factual background, my learned predecessor based on the pleadings of the parties, vide order dated

19.05.2005 framed the following issues:

(i)

Whether the claim filed by the union and the consequent terms of reference are barred by doctrine of

estoppel as stated in preliminary objection No.1 of the written statement?

(ii)

Whether the claim filed by the union is barred by principles of resjudicata?

(iii)

Whether the union is authorized to raise demands on behalf of the claimants who are not its

members?

(iv)

Whether there is any employer-employee relationship between the parties? If so, its effects?

(v)

As per terms of reference

10.

Claimant, in order to prove their case examined S/Shri Balwinder Singh, Baru Ram, Madho Singh, Roshan Lal,

Satish Kumar, Badri Prasad, Jai Singh, Vidya Bhushan and K.L. Chhabra, whose affidavits are Ex.WW1/A,

¹Hkkx IIµ[k.M 3(ii)º

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9963

Ex.WW2/A, Ex.WW3/A, Ex.WW4/A,Ex.WW5/A, Ex.WW6/A, Ex.WW7/A, Ex.WW8/A, Ex.WW9/A respectively

and they relied on various documents. Management, in order to rebut the case of the claimants examined Shri Ashwani

Kumar Gupta and Shri Balbir Singh Bahherwal as MW1 and MW2 and their affidavits are Ex.MW1/A and Ex.MW2/A

respectively. Various document were relied by the management witness and many adjournments wee also taken by the

management for production of the documents during the course of cross examination, which was allowed by this

Tribunal in the interest of justice.

11.

I have heard Shri K.L. Chhabra, A/R for the claimants and Ms.Raavi Birbal, A/R for the management.

Issue No. i and ii

12.

Both these issues are being taken together for the purpose of discussion as they are inter-related and can be

conveniently disposed of. No doubt management has taken the plea of estoppel in Para 1 of preliminary objections of

the written statement and there is also mention of the fact that the present reference is barred by principles of

resjudicata. During the course of arguments, attention of the Tribunal was invited by the learned A/R for the

management to settlement dated 09.03.1994 Ex.MW1/1. Learned A/R for the management also urged that the said

agreement was valid for a period of 10 years commencing from 01.10.1998 to 30.08.2008. The said settlement is full

and final between the parties and the demands raised by the union were considered and settled between the parties.

Demands which were not specifically mentioned in the above settlement will be treated as not pressed by the union and

will not be raised by the union during operation period of this settlement.

13.

Shri K.L. Chhabra, appearing on behalf of the claimant urged that so called settlement ExMW1/1 has nothing to

do with the reference which has been made by the appropriate Government and the said settlement has nothing to do

with the illegal termination of the claimants herein Moreover, issue raised in the present reference are not at all

covered, in the contention of the A/R for the claimant, by terms and conditions contained in the settlement Ex.MW1/1.

14.

I have also gone through the contents of the settlement Ex.MW1/1 and a bare perusal of the various clauses of

the above settlement would show that the issues raised in the said mutual settlement between the union and the

management were entirely different from the controversy which has been raised in the present reference. When the

above settlement was arrived at between the parties, writ petition was already pending in the Hon’ble High Court of

Delhi and it appears that in view of the above agreement, no order on merit was passed by the Hon’ble High Court of

Delhi.

15.

Since reference made to this Tribunal is regarding reinstatement/ regularization of the services of the claimant in

view of the notification dated 10.05.2002 and claimants have also challenged their termination to be wrong and illegal,

as such, this Tribunal is of the considered opinion that settlement Ex.MW1/1 between the management and the

claimant is not a bar for the entertainment and disposal of the reference made by the appropriate Government. It is trite

law that when a reference has been made by the appropriate Government under Section 10 of the Act, the Tribunal is

required to pass an award in terms of section 15 of the Act, on merits.

16.

Moreover, the plea of resjudicata was not seriously pressed by the learned A/R for the management. Further,

there is no adjudication of the claim on merits regarding regularization/reinstatement of the claimants herein in view of

their termination on 31.03.2002 by a court of competent jurisdiction or Industrial Tribunal previously. Law is fairly

settled that in order to attract the plea of resjudicata, the court has to keep in mind that before claim can be allowed to

be barred by principles of resjudicata, it must be shown that plea in question has not only been pleaded but it has been

heard and finally decided in the previous case by court of competent jurisdiction and between the same parties. The

party raising such a plea is also to not only to prove that the cause of the claimant in the earlier case was the same but

also claimants had opportunity to seek such relief in the earlier proceedings. Since the question of reinstatement or

termination of the claimants herein has not been earlier considered by a court of competent jurisdiction or Tribunal nor

there is any mention of present dispute in any proceedings between the parties. Therefore, there is no question of

barring of the claimants herein on the basis of plea of estoppels or resjudicata. Both these issues are decided

accordingly in favour of the claimants and against the managements.

Issue No. iii

17.

Learned A/R for the management has not specifically pleaded that the union is not authorized to raise demand of

the claimants herein. Shri K.L. Chhabra, while appearing as WW9 has tendered in evidence his affidavit Ex.WW9/A.

He has specifically mentioned in para 1 that he is Secretary of the Petroleum Workers Union and the said union is duly

recognized by the management. He is also signatory to the various settlements, including settlement Ex.MW1/1

wherein his designation is mentioned as Secretary There is also copy of membership/subscription slip which bears

signatures of Shri K.L. Chhabra and the fees have been charged from the various workmen as membership

fee/subscription. Since Shri K.L. Chhabra, in the capacity of Secretary of the workman union has signed

memorandum of settlement on the last page of E.MW1/1 and another settlement Ex.MW2/W1 dated 27.02.1982 and

the said settlement is also duly signed by the officials of the management, which also clearly shows that Shri K.L.

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Chhabra was duly accepted by the officials of the management as General Secretary of the Union. Moreover, this

objection that the claimants were not members of the union of which Shri K.L. Chhabra is General Secretary was not

put to Shri K.L. Chhabra seriously before the Assistant Labour Commissioner.

18.

So far as question of raising of demand by the claimants herein in its meeting is concerned, there are even

rulings to this effect that members of a union, whether registered or unregistered, can also raise a demand orally and

there is no need or requirement under the law to specifically raise any demand in writing by the aggrieved workmen.

Hon’ble Apex Court in the case of Associated Cement Company Ltd vs. [AIR (1960) SCC 777] held as under:

‘We have already noticed that an industrial dispute can be raised by a group of workmen or by a union even

though neither of them represent the majority of the workmen concerned; in other words, the majority rule on

which the appellant’s construction of Section 19(6) is based is inapplicable in the matter of the reference

under Section 10 of the Act. Even a minority group of workmen can make a demand and thereby raise an

industrial dispute which in a proper case would be referred or adjudication under Section 20.’

19.

In view of the ratio of the judgement discussed above, it is clear that espousal of a dispute by the union is not

sine qua non for adjudication of such dispute in terms of Section 10 of the Act. It is, further, clear from the above

judgement that even the union is not required to be registered so as to raise a dispute of the workmen under the law.

Accordingly, this issue is decided accordingly.

Issue No. (iv) and (v)

20.

Both these issues are also being taken up together for the purpose of discussion as they can also be conveniently

disposed of. It is clear from the pleadings of the parties that the claimants herein have come with the specific plea that

they were employed by the management of HPCL at Shakur Basti for the last 15 to 18 years and they are members of

Petroleum Workers Union since 1985-86. Management has come with the specific stand that the claimants had worked

with the management only upto 31.03.2002 as is clear from para 2(a) of the written statement when it was decided by

the management that no fresh contract for repair and maintenance of vehicles were to be given at Shakur Basti and

Brijwasan installation. In para 6 of the preliminary objections, management has also stated that the claimants in fact

were in the employment of M/s Tiwari & Co and M/s Floria Automobiles and the claimants were terminated by the

said contractor. Management has not terminated services of the claimant, hence there is no question of their

reinstatement /regularization by the management.

21.

It is clear from the pleadings of the parties that the claimants were admittedly working at Shakur Basti and they

have been performing duties for the management. Claimants in order to prove relationship of employer and employee

examined Shri K.L. Chhabra, General Secretary as WW9, who has filed a detailed affidavit. It is clear from affidavit of

Shri K.L. Chhabra Ex.WW9/A that management has engaged services of 8 claimants for maintenance and repair of

vehicles, whose details are also mentioned in the affidavit. During the course of arguments, it was not denied that

previously the claimants were doing the work of repair and maintenance of vehicles at Shakur Basti depot. Case if the

management, as discussed above, is that it was being done through contractors to whom management has awarded

work as per law. There is hardly anything in the cross examination of Shri K.L. Chhabra WW9 so as to help the case

of the management in any manner. Similarly, affidavit of other claimants Ex.WW1 to Ex/WW1/8, S/Shri S/Shri

Balwinder Singh, Roshan Lal, Satish Kumar, Badri Prasad, Jai Singh, Madho Singh, Baru Ram and Shri Vidya

Bhushan also show that they were engaged for maintenance and repair of vehicles belonging to the management. One

of the workman is a auto electrical, two were mechanics, 2 were helper, one a foreman. All the claimants have

clarified in their affidavits that have been shown to be working under various contractors. However, the management

had direct control and supervision and directions regarding performance of work was being done by officials of the

management. Management has also allotted code number fo the workmen and ESI cards have also been issued to the

claimants wherein the name of HPCL is mentioned. There is also mention of the fact that the management has been

changing contractors since 1984-85. Services of the claimants herein always remained continuous with the

management. Affidavit further shows that the contractors were only name lenders and used to come only when

making payment of wages at the close of the month. There are also averments to the effect in para 8 of the affidavit of

the claimants that the contractors were not holding licence nor management got itself registered under the CLRA Act.

Affidavits of the various workmen contain one vital fact and the same is that they are working with the management

since 1985-86 onwards.

22.

There is also evidence on record to show that entry passes bear the headnote of BPCL, regarding which there is

mention in the affidavit also. During the course of arguments, learned A/R for the management in all fairness,

admitted that such passes are issued in a routine manner so that the workman who are working under the contractor can

be given entry into the premises of the establishment.

23.

There are also copies of ESI card issued by the management and the same is Ex.WW4./1(colly) which shows

that under the ESI scheme, cards were issued to the various claimants. Ex.MW1/W2 are copies of EPF slips, which

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shows that EPF was being deducted from the wages of the claimants under the provisions of EPF Act 1995. Copy of

entry passes are Ex.WW4/3(colly) which bears the name of HPCL in the headnote and have been issued in the name of

Balvinder Singh, Satish Kumar, Jai Singh, Babu Ram, Vidya Bhushan.

24.

Management in order to rebut the case of the claimant examined Shri Ashwani Kumar Gupta as MW1 whose

affidavit is Ex.MW1/A and he has stated in his deposition that the claimants herein were working under various

contractors for the management and he was supplied this information by the officials of the department and he is

making statement on the basis of official record. Claimants were terminated by the contractor. He was specifically put a

question whether he can produce copy of the agreement between the management and the contractor through which

claimants herein are alleged to be engaged and the contractor under whose contract the claimants were working. He

sought time to produce the said record which was granted by this court. On the next date of hearing, he has produced

only one copy Ex.MW1/W1 and he sought further time so as to examine the same. When this witness appeared again

on 29.12.2011, he deposed that he had tried to trace the record but could not lay his hands on any other

contract/agreement entered into between the management and the contractor. He has not even brought the list of

contractors or the registration certificates issued in favour of the management. Though he has made mention of Tiwari

& Co. and M/s. Flora Automobiles, their licences were not admittedly produced by him. Though, he said that

Ex.MW1/W2 to Ex.MW1/W52 are disputed but he has not deposed as to how these documents can be said to be

doubtful. Rather, learned A/R for the management at the time of final arguments filed additional documents to show

that it was through contractor EPF was being deducted from the wages of the claimant. However, these documents

have been admitted by the learned A/R for the management. There is no mention of the name of any contractor in the

above documents which again clearly suggests that EPF of the claimants concerned were being deducted directly by the

management. Payment of EPF pertains to the year 1991-92 and onwards.

25.

Shri Ashwani Kumar Gupta, in his cross-examination, has also admitted that the management used to deduct PF

out of the wages of employer of the claimant. A/R for the claimant also specifically asked this witness to submit list of

employees from whose wages PF was being deducted by the management and this witness has simply replied that since

the record is very old, as such, he requires more time to peruse the record. Thereafter, this witness was examined by

this court on 16.07.2012 and he straightway deposed before this Court that no record as desired by the court was

available. He further clarified that as principal employer, management ensures that PF subscriptions were deducted by

the contractor from the wages of the employees and this subscription alongwith managements contribution were

deposited with the authority concerned. He further stated that original Ex.MW1/1 to Ex.MW1//8 are not available. He

further stated that the PF and ESI contribution of the claimants were paid by the management in the capacity of

principal employer. Then the management used to deduct the ESI and PF contribution of the employees out of the bill

of the contractor. He could not produce any document to show that the above contribution was deducted out of the bill

of the contractor. It is pertinent to note here that there is no mention of the name of the contractor in the documents

referred above. Lastly, this witness admitted that the management cannot produce copy of any agreement executed

between the management and the contractor as no record is available to this effect. He further admitted that the

management cannot produce any record to show that the claimants have not worked for more than 240 days in a

calendar year.

26.

Shri Balbir Singh Babberwal was examined as MW2 whose affidavit is Ex.MW2/A. It is almost on the same

lines as the affidavit of MW1. Cross-examination of this witness would show that he is stated that work awarded to

the contractor was not for supply of manpower but it was for doing a specific job. He further made a vital admission

that the claimant worked in the premises of the management from 1985 till 2002 under different contractors. Work of

maintenance and repair of company vehicles was being done by the claimants under their supervision and the same was

up to the mark. This witness tried to depose that all the claimants were employed through contractors and are not

engaged by the management directly. However, he has not referred to any specific agreement nor any name of the

supervisor given as to who was supervising the work being done in the premises of the management by the claimant.

He further deposed that there were 60 tankers and lorries owned by the management. He has not disputed document

Ex.MW2/W2 which pertain to the provident fund contribution of the various claimants. Even otherwise, these

documents have been admitted by the management. He has also produced copies of contracts/agreements Ex.MW2/W2

to Ex.MW2/W5 but he has admitted that these copies do not pear signatures of the contractor. He further deposed that

original of the above documents are not in possession of the management. Ex.MW2/W2 is the duty roster of drivers

which shows that with the vehicle, names of helpers are also mentioned.

27.

It is clear from the resume of evidence discussed above that the management has come with the specific plea

that the members of the claimant union are workmen of the contractor and not that of the principal employer whereas

the case of the claimants herein throughout is that they have been directly working in the employment of the

management who was having supervisory as well as administrative control over the performance of their work.

Admittedly, in the case on hand, neither the claimants nor the management had examined the contractors to whom the

work was allotted by the management from time to time. There is mention of a few contractors in the pleadings of the

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[PART II—SEC. 3(ii)]

parties and perusal of licence Ex.MW2/5 and certificate of registration Ex.MW2/12 shows that on 11.03.1999

certificate of registration was issued. However, the certificate of registration does not bear the name of the contractor as

the same is mentioned in Annexure B. There is another document Ex.MW2/13 wherein there is mention of particulars

of the contractors and the contract labour working at Shakur Basti installation. It is further clear from perusal of the

said document that the name of the contractor M/s. Tiwari and Co, Om Builders, MP Sambi and Sons alongwith their

addresses are mentioned. The said document also mentions the period which is up to the year 2000. There are also

similar other documents Ex.MW2/14 to Ex.MW2/17 wherein the principal employer has been shown as Hindustan

Petroleum Corporation Ltd. and name of the contractor is mentioned on the said documents. There is another letter

Ex.MW2/19 which pertains to the engagement of contract labour for maintenance of vehicles. There is also mention

of writ petition No.7200 of 2000 before the Hon’ble High Court of Delhi. This letter also contains names of number of

vehicles, jeeps etc. which are required to be repaired and maintained by the labour, i.e. claimants herein who are

working in the premises of the management. There are also other documents such as Ex.MW2/22 as well as extract of

wage/pay register Ex.MW2/6 wherein names of the claimants herein who are working in the premises of the

management are shown ant it pertains to the month of November 1999, January 2000, February 2000 and July 2001.

These documents are not helpful to the case of the management in any manner as there is no mention of the name of the

contractor in any of the columns. Rather it contains the names of the various workmen and in the last column,

signatures of the workman are obtained regarding receipt of wages by them.

28.

To my mind, it would have been useful for the management to have examined atleast some of the contractors to

whom work was allotted by the management from time to time and copies of the agreements which was entered into

between the management and such contracts were required to be proved in accordance with law so as to prove the plea

of the claim that they were employees of the contractors and not that of the management. Since there is serious dispute

of relationship of master and servant between the management and the contractor, therefore production of these

agreements was essential. All these documents were admittedly in possession of the management, who had initially

taken the stand that no contract agreement is available in the office of the management. The case was deferred several

times when statement of Shri Ashwani Kumar was recorded. Law is fairly settled that if a party in possession of

documents does not produce such documents despite directions of the court and no plausible explanation is given by

he said party for non-production of the same, in that eventuality, court is at liberty to draw adverse inference against the

said party, more so when some of the documents which are favourable to the management have been placed on record

whereas the other documents, despite directions, were not placed. In this regard, it is appropriate to refer to the

admission made by Shri Ashwani Kumar MW1 who has clearly stated in his cross-examination dated 25.05.2012 that

the management deducted EPF subscription out of the wage of the claimants and he has given specific answer to the

question put on behalf of the claimant. However, when appeared on the next date of hearing, he shifted the stand and

said the management is the principal employer and there is no record available in the office of the management

regarding deduction of EPF. When arguments were partly heard in the case, learned A/R for the management came

with an application so as to show that the management was exempted from payment of ESI and in this regard invited

attention of the court to Ex.MW2/2 which relates to exemption of ESI by the management. The question before this

Tribunal is not whether the claimants ESI or EPF was being deducted or not. The sole question before this Tribunal is

whether claimants are liable to e regularized in view of order of termination passed against the said claimants.

29.

Learned A/R for the management raised the plea that question of sham and bogus agreements cannot be

entertained and this Tribunal cannot travel beyond the terms of reference in view of the specific provisions contained in

Section 10 of the Act. There is hardly any dispute with the proposition of law that this Tribunal is required to answer

the reference made by the appropriate Government. However, all the incidental questions relevant to the main issue

which are integral part of the reference are also required to be answered by this Tribunal. Moreover, reference before

this Tribunal is not to the effect that whether the claimants herein are employees of some contractor or that of the

principal employer, i.e. management herein. The reference is very specific and this Tribunal is required to answer the

question whether demand of the claimants terminating the job of the claimants herein by the management is fair and