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Charge no.1

36. This charge is to the effect that Smt. Tasneem Shaukat deposited a sum of Rs.6800/- on 8.9.2003 in her joint account on the cash counter of the delinquent employee Sh. Shyamlal Agrawal. Sh. Shyamlal Agrawal issued the counterfoil, in testimony of the deposit but the amount so received by him was not accounted for in the banker's book, applicant further did not credit the amount in the account of depositor & subsequently made manual entry in the passbook of the account holder under his initial. It has been argued by learned counsel for applicant that opposite party has failed to prove the charge levelled against the applicant because the account number of Smt. Tasneem Shaukat is 01190013832 jointly shared by Sh. Shaukat Ali whereas the account number mentioned in the charge is 01190013882 hence charge does not stand proved. Further, it has been alleged that the account holder has not been produced for cross examination during enquiry proceeding which is against the principle of natural justice. Countering the above argument it has been argued by learned counsel for opposite party that in relation to this charge contention of the applicant is wrong that charge has not been proved & there is only clerical error in the charge wherein in place of 01190013832 which is the correct number of account of Smt. Tasneem Shaukat 01190013882 has been mentioned & rest of the information relating to the account is completely correct & applicant has admitted in his reply to charge memo that he has made the entry under his initial therefore, the account holder is not required to be produced in evidence.

37. From perusal of charge & argument of both the parties it is very clear that a clerical error has taken place in mentioning the account number in the charge wherein in the last two digits of the charge in place of 32 in the charge, 82 has been mentioned. If we go through other details connected with the detail of account holder it is clear that name of the account holder is Smt. Tasneem Shaukat which has been mentioned in the charge & from the perusal of the detail of account this fact is also undisputed that she is the joint holder of the account with her husband Sh. Shaukat Ali. In his written reply to the charge applicant has already admitted that he has made manual entry in the passbook of Smt. Tasneem Shaukat without confirming the deposit by perusing the counterfoil. He has tried to explain the reason for making such entry & has alleged that passbook printer was defective & looking into the spirit of customers service & repeated persuasion by Smt. Tasneem Shaukat he made the entry of Rs.6800/- without looking into the deposit slip. The delinquent has further alleged that he enquired about the counterfoil from Smt. Tasneem Shaukat & she replied that counterfoil is not in her possession & she alleged that the counterfoil is at her home, yet entries was made by him with a view of customer's service. He has further tried to explain the situation with contention that as soon as the printer became operational he tried to make entry in the passbook with the help of printer & came to know that Rs.6800/- does not find place in the deposit. Thereafter, he looked into the scroll of the date of deposit & came to know that there is no entry of Rs.6800/- in any of the account. Applicant has further as part of his explanation alleged that after this incident a complaint was made by her husband & when he became aware about the complaint he visited the house of Sh. Shaukat Ali along with one staff of the bank & enquired about the counterfoil of Rs.6800/- . In reply to the query Sh. Shaukat Ali replied that he is not in possession of the counterfoil. Applicant in closing lines of the1784 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] explanation has alleged that he has committed the act of making manual entry by mistake & as there is no counterfoil with Smt. Tasneem Shaukat hence, charge levelled against the applicant is baseless.

38. In relation to the explanation offered by Sh. Shyamlal Agrawal in reply to charge number 1, it is pertinent to mention that if Smt. Tasneem Shaukat was present even after making manual entry in the passbook & delinquent tried to make entry in the passbook with the help of printer because the printer had become operational then a natural question crops-up from the situation is that if the lady was present & after checking the scrolls of the date of alleged deposit of Rs.6800/-, no entry was found in any of the account or register, then why applicant did not struck off the manual entry made by him in the passbook of Smt. Tasneem Shaukat. It is also pertinent to mention that nothing has been mentioned by applicant that since when the printer was not operational & how it became operational soon after making manual entry by the applicant.

39. Copy of the passbook entry available on record shows that delinquent has made entry of Rs.6800/- just below the balance Rs.10937.47 & adding the amount of Rs.6800/- he has shown the balance as Rs.17737.47in manual writing. There is no dispute that delinquent has admitted that this entry has been made by him which is clear from his explanation submitted by him. At the time when this entry was made by the delinquent he had completed nearly 10 years of service & was well aware that making of such entry was against the rule & instruction that making of manual entry was prohibited in computerised passbook, yet he opted to make manual entry which is sufficient to suggest that applicant after receiving the money did not credit it to the customer account & made the entry to satisfy the lady account holder. It is also clear from circumstances of the fact that all the exercise taken up by the delinquent has resulted on account of complaint made by husband of Smt. Tasneem Shaukat who is joint account holder of Smt. Tasneem Shaukat. Had he not made the complaint the delinquent would not have made any visit to her house. 40. It has been submitted by learned counsel for non-applicant that by paying the money back to the account holder applicant has secured the counterfoil from the account holder. It has been argued by learned counsel for the applicant & has been mentioned by applicant himself in his written argument also that no witness has been produced by non-applicant to prove the charge. As the applicant has already admitted the making of entry without any authority of rule & direction of the bank & has not assigned any valid reason for not deleting the entry which was without authority, I am of the view that the non-applicant has been successful in proving charge no. 1 against the delinquent.

Charge No.2

41. The charge against the applicant is that he withdrew a sum of Rs.5000/- from the account no. 01190010193 of Sh. Rajkumar Gadgil on 11.10.2003 by forging the signature of account holder on withdrawal form & pocketed the money.

42. Applicant in his written reply dated 31.12.2005 against the charge memo has alleged that he has not withdrawn the money & withdrawal has been made by Sh. Gadgil himself. He has further alleged that he contacted Sh. Rajkumar Gadgil who has accepted that withdrawal was made by himself & this fact has been admitted by him in writing & he has given in writing that money was withdrawn by Sh. Gadgil himself. Applicant has attached the written document given by Sh. Gadgil with his explanation.

43. In his final written argument filed in this tribunal by applicant on 25.10.17 & in oral argument it has been alleged that opposite party has admitted in letter dated 19.2.2005 that signature on withdrawal form belongs to Sh. Rajkumar Gadgil but opposite party bank has sent the withdrawal form for the opinion of handwriting expert unnecessarily. He has further submitted that document on which enquiry officer has based his report was not filed during enquiry hence, a disciplinary action cannot take place against the applicant. He has further submitted that during enquiry Sh. Rajkumar Gadgil was produced in evidence & he has not denied that withdrawal form is not bearing his signature yet the enquiry officer has held him guilty. He has further alleged that Sh. Lakhani, the manager of the bank has secured the letter written by Sh. Rajkumar Gadgil & the witnesses Sh. Ramkishan & Sh. Shankarlal. Countering the above argument it has been submitted by learned counsel for the non-applicant that Sh. Shyamlal delinquent has himself secured the letter dated 26.3.2004(P-8) written by Sh. Rajkumar Gadgil which bears the signatures of two witnesses Sh. Shankarlal & Sh. Ramkishan by approaching & influencing Sh. Rajkumar Gadgil. It has been further alleged that when Sh. Rajkumar Gadgil has received his money back from applicant thereafter, he has withdrawn his complaint. It has been further submitted that during enquiry Sh. Rajkumar Gadgil has admitted to have made the complaint & he has also admitted that he has received the money hence, he wants no action against the delinquent Sh. Shyamlal.

44. From perusal of enquiry record, this fact is undisputed that a complaint (P-10) dated 25.2.2004 was made to branch manager by Sh. Rajkumar Gadgil about withdrawal of a sum of Rs.5000/- on 11.10.2003 by Sh. Shyamlal Agrawal, the applicant. According to complaint (P-10) Sh. Rajkumar Gadgil deposited various amount of money on different date prior to 11.10.2003 & on 11.10.2003 also he came to bank to make further deposit of a sum of Rs.1000/- & he successfully deposited Rs.1000/- on 11.10.2003 but on that date i.e. 11.10.2003 Sh. Shyamlal secured the signature of Sh. Rajkumar Gadgil on one form of the bank. Applicant Sh. Rajkumar Gadgil could not know that what was that form on which signature was secured by Sh. Shyamlal. Applicant further says that when on 19.2.2004 he came to deposit a sum of Rs.2000/- he came to know that Sh. Shyamlal, cashier has cheated him by withdrawing a sum of Rs.5000/- on 11.10.2003 from his account. Addressing the complaint to the branch manager he has requested to have[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1785 his money given back failing which he will be compelled to take legal action for which management will be responsible. Further, a letter dated 26.3.2004 (P-8) has been written in which name or authority of the addressee has not been mentioned & this letter has been singed by witness Sh. Shankarlal & Sh. Ramkishan & alleged to have written by Sh. Rajkumar Gadgil & signed by him. From the content of this letter it appears that this letter has been written by Sh. Rajkumar Gadgil favouring applicant Sh. Shyamlal which is alleged to have been attached by Sh. Shaymal along with his reply to memo of charge. The content of this letter says that he had made the complaint against Sh. Shyamlal in mistaken impression & he had actually withdrawn the money himself on 11.10.2003. He has further said that now he is satisfied & complaint made by him against Sh. Shyamlal may be consigned.

45. During enquiry in examination-in-chief on 21.7.2006 Sh. Rajkumar Gadgil has admitted that complaint dated 25.2.2004 was made by him. He has also admitted that letter dated 26.3.2004 favouring Sh. Shyamlal alleged to have been signed by witnesses Sh. Shankarlal & Sh. Ramkishan was also written by him. About withdrawing the complaint vide letter dated 26.3.2004 he has admitted that he has got his money hence, he has written the letter dated 26.3.2004 & letter dated 26.3.2004 be treated as correct. It is evident from above statement that Sh. Rajkumar Gadgil has decided to favour Sh. Shyamlal only after receipt of money. In light of the above statement of Sh. Gadgil there is no doubt that letter dated 26.3.2004 has come into existence by influence of Sh. Shyamlal. This is no one's case that money from the account of Sh. Rajkumar Gadgil was not withdrawn & Sh. Rajkumar Gadgil has admitted that letter relating to withdrawal of complaint is written by him because he has received his money back. The letter dated 26.3.2004 is result of active role played by applicant Sh. Shyamlal which is evident from the statement of Sh. Shankarlal who has alleged in cross examination that letter dated 26.3.2004 was brought to him for signature by Sh. Shyamlal. Sh. Ramkishan has not been produced in evidence who has been shown to be another witness on letter dated 26.3.2004. Sh. Ramkishan in his letter dated 17.5.04 addressed to Branch Manager has alleged that father of Sh. Shyamlal approached him & alleged him to become a witness for delivery of money to Sh. Rajkumar Gadgil because Sh. Gadgil is proceeding with the case against Sh. Shyamlal & money was given to Sh. Rajkumar Gadgil before Sh. Ramkishan. P-17 is alleged to have been written in testimony of delivery of money to Sh. Rajkumar Gadgil. Here, it is pertinent to mention that P-16 signed by Sh. Shankar Lal & P-17 signed by Sh. Ramkishan are the documents proving the fact that money was given to Sh. Rajkumar Gadgil. Learned defence representative has raised this point before the enquiry officer that P-16 & P-17 are the papers created by branch manager by influencing these two witnesses because branch manager was interested in having Sh. Shyamlal Agrawal punished due to animosity. In this context, it is important to mention that in criminal proceeding instituted by Sh. Parmeshwar Lal, Sh. L.C.Lakhani, branch manager is co-accused before the criminal court due to his favour for Sh. Shyam Lal hence, this contention is not tenable that P-16 & P-17 are the documents created by branch manager with the help of these two witnesses. Nowhere these two witnesses or Sh. Shyamlal or his father have made any complaint before the superior authority or before the police that branch manager has been instrumental in securing the creation of P-16 & P-17 with the help of two witnesses. In fact, the true revelation appearing from the circumstances of the fact is that these two witnesses are the creation of applicant Sh. Shyamlal to assist him to escape from the complaint of Sh. Rajkumar Gadgil.

46. As far as the question of issue whether withdrawal form used by Sh. Shyamlal to withdraw Rs.5000/- is one which is said to be secured from Sh. Rajkumar Gadgil by having his signature on blank form or the one which has been prepared by Sh. Shyamlal by forging the signature of the Sh. Rajkumar Gadgil is concerned, in this context attempt has been made by defence representative to create a confusing position by saying that as per complaint of Sh. Rajkumar Gadgil Sh. Shyamlal had secured his signature on a form hence, there was no need to have the opinion of handwriting expert. In this context, it is important to mention that in FIR there has been only contention that Sh. Shyamlal had secured the signature of the complainant Sh. Rajkumar Gadgil but there is no specific mention that it was the signature on withdrawal form because in the complaint he has alleged that he was not aware as to what was the precise nature of the form. Report of handwriting expert reveals that the signature on the withdrawal form is not having similarity with admitted signature of Sh. Rajkumar Gadgil but it is a forged signature.

47. Looking into the facts of charge no.2 evidence produced thereon & attending fact & circumstances, I am of the view that withdrawal of the money from the account of Sh. Rajkumar Gadgil is undisputed. Sh. Rajkumar Gadgil has received the money from the applicant side is also undisputed due to which Sh. Rajkumar Gadgil has attempted to withdraw the complaint against the applicant unsuccessfully & receipt of money by him has been the prime reason to help the applicant to escape the charge. On the basis of above discussion, I am of the view that non-applicant has been successful in proving the charge no.2 against the applicant.

Charge no.3

48. Charge no. 3 is to the effect that delinquent Sh. Shyamlal Agrawal withdrew unauthorisedly a sum of Rs.3000/- on 4.9.2003 & Rs.5000/- on 13.9.2003 respectively from the saving account no. 01190007812 of Sh. Mahadev Prasad by forging the signature of account holder on withdrawal forms & pocketed the money. The charge further alleged that payment of both the withdrawals was made without passbook because entries relating to withdrawal do not find place in the passbook which is contravention of laid down instructions of the bank that pass-book must accompany the withdrawal form at the time of withdrawal to ensure entry of the withdrawal in pass-book which also concurrently ensures the identity of account holder .

49. The above levelled charge means that at the time of withdrawal passbook must be presented with withdrawal forms & without presentation of passbook with withdrawal form payments are not to be made to the account holder & making payment to the withdrawal form holder without accompanied with passbook contravenes the provision of instructions laid down by the bank.

50. From perusal of the enquiry record in connection with charge No.3 it appears that the account holder for account No. 01190007812 is Sh. Mahadev Prasad Sharma. A complaint (P-21) signed by Sh. Virmal Sharma on behalf of Sh. Mahadev Prasad Sharma was received by bank on 20.10.2004 wherein it was submitted to Branch Manager, Ratangarh that a sum of Rs.5000/- has been misappropriated from the above account of the account holder & when the statement of account was taken from the bank by account holder he noticed that on 4.9.2003 a sum of Rs.3000/- was withdrawn & credited on 10.9.2003 without knowledge of the account holder. It was further contended that all these three transactions must have been done by some employee of the bank only but his passbook does not contain any entry regarding all the above mentioned three transactions & on 8.12.2003 balance of Rs.5694/- has been shown in the statement of account. On 12.10.2004 when account holder visited the bank for withdrawal of a sum of Rs.5000/- he was informed by the bank about insufficient balance against the demand of Rs.5000/-. Thus, the applicant became aware of the fact that a sum of Rs.5000/- has been withdrawn by bank employee. Complainant has further mentioned that on 8.12.2003 balance of Rs.5694/- has been shown in computerised passbook issued by the bank which was issued by delinquent Sh. Shyamlal Agrawal & computerised passbook bears his signature but on 13.9.2003 a sum of Rs.5000/- has been withdrawn by adopting illegal means. The complainant has prayed that a sum of Rs.5000/- be restored to his account & legal action may kindly be taken against guilty person failing which applicant will be compelled to take recourse in the court of law.

51. In his explanation to the charge Sh. Shyamlal Agrawal has submitted that both the withdrawals dated 4.9.2003 & 13.9.2003 amounting to Rs.3000/- & Rs.5000/- respectively have been made by Sh. Mahadev Prasad Sharma himself & payment of Rs.5000/- have been done from another counter by another assistant & not by him. He has specifically denied about withdrawal of Rs.3000/- by him by forging the signature of Sh. Mahadev Prasad Sharma. He has further alleged that withdrawal form relating to Rs.3000/- bears the signature of Sh. Mahadev Prasad Sharma & he himself has drawn the amount & delinquent has not withdrawn any amount by forging signature, thus, charge levelled against him is baseless.

52. An application dated 23.10.2004(P-35) has been written by Sh. Mahadev Prasad Sharma addressed to Branch Manager, Ratangarh wherein he has made reference to his complain dated 20.10.2004 (P-21) as mentioned above & has alleged that the alleged amount was withdrawn by Sh. Shyamlal Agrawal in illegal manner & the complainant Sh. Mahadev Prasad Sharma has received the amount. He has further alleged that now he is not having complaint about the money & his complaint may be treated as disposed.

53. It has been submitted on behalf of presenting officer that on 4.9.2003 money was withdrawn by Sh. Shyamlal Agrawal & again deposited back after six days after utilising it for the alleged period. Again a sum of Rs.5000/- was withdrawn on 13.9.2003 by him forging the signature of account holder on withdrawal form. On complaint (P-21) made by Sh. Mahadev Prasad Sharma, the delinquent paid the money back to Sh. Mahadev Prasad Sharma & received the letter (P-35) from him. The presenting officer has quoted certain excerpts from the letter (P-35) which has been relied upon along with other material by the enquiry officer for coming to the conclusion that money was withdrawn by Sh. Shyamlal Agrawal & paid back to Sh. Mahadev Prasad Sharma as a result of complaint made by him. The letter (P-35) reads as under :-

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54. Countering the above submission on behalf of non-applicant it has been submitted by learned defence representative of the applicant before the Enquiry Officer that there is no specific mention in P-21 that money was withdrawn by Sh. Shyamlal Agrawal & the only contention against the delinquent is that Sh. Shyamlal Agrawal has made manual entry/statement with his initial in the complainant passbook which was done as per instruction of Branch Manager because electronic printer was out of order on that date. It has been further submitted that Rs.5000/- was never withdrawn with the user ID of Sh. Shyamlal Agrawal & it has not been proved by presenting officer that Sh. Shyamlal Agrawal has forged the signature on withdrawal form. It has been further submitted that there is no evidence that Rs.5000/- has been paid to the complainant by Sh. Shyamlal Agrawal & complainant was not produced before the enquiry officer in evidence.

55. It has been argued before this tribunal by learned counsel for the applicant & has been mentioned in the written argument by applicant that withdrawal form was not presented before the Enquiry Officer yet he has been held guilty by Enquiry Officer hence, disciplinary action cannot be taken against him. Further, it has been submitted that P-21 has not been signed by Sh. Mahadev Prasad Sharma & complaint of Sh. Mahadev Prasad Sharma was prepared by a forged person which means that there is no complaint of Sh. Mahadev Prasad Sharma & Sh. Mahadev Prasad Sharma has not been called in evidence to prove the documents. Countering the above argument it has been argued by learned representative of non-applicant that applicant Sh. Shyamlal Agrawal has himself received the document P-35 in which there is endorsement about withdrawal of money by Sh. Shyamlal Agrawal & receipt of misappropriated money by Sh. Mahadev Prasad Sharma hence, there remains nothing to be proved against the applicant by calling Sh. Mahadev Prasad Sharma in evidence because P-35 has been secured by applicant Sh. Shyamlal Agrawal himself.

56. It shall appear from the letter P-35 written by Sh. Mahadev Prasad Sharma that Sh. Mahadev Prasad Sharma has admitted that he has received the money beside mentioning the allegation that money was withdrawn by Sh. Shyamlal Agrawal from his account. This letter has been secured & taken by Sh. Shyamlal Agrawal himself which clearly appears from the submission made by presenting officer before the Enquiry Officer. This act of applicant clearly acknowledges the creation of P-35 by Sh. Mahadev Prasad Sharma at the initiation of Sh. Shyamlal Agrawal. In this circumstance, there remains nothing to be proved by securing attendance of Sh. Mahadev Prasad Sharma before the Enquiry Officer for proving the fact or for facilitating the cross examination by delinquent because delinquent has himself taken the document P-35 from Sh. Mahadev Prasad Sharma.

57. As far as the question of P-21 is concerned according to argument of applicant it is a document which has not been signed by Sh. Mahadev Prasad Sharma & has been prepared by a forged person in place of Sh. Mahadev Prasad Sharma but this argument is not tenable in view of the fact that Sh. Mahadev Prasad Sharma has admitted in P-35 that he had made a complaint on 20.10.2004 which is none other than P-21 in this connection. Further, it is pertinent to mention that disputed signature of Sh. Mahadev Prasad Sharma has been examined by admitted signature of Sh. Mahadev Prasad Sharma & handwriting expert has alleged in his report that disputed signatures on withdrawal forms are forged signature, thus, this fact stands proved that complaint of withdrawal made by the complainant is correct & alleged amount has not been withdrawn by account holder himself. As far as its withdrawal by delinquent is concerned securing & receiving document P-35 from Sh. Mahadev Prasad Sharma by applicant is sufficient proof of involvement of Sh. Shyamlal Agrawal because in the alleged circumstance when P-35 has been secured & received by Sh. Shyamlal Agrawal himself there is no need of attendance of Sh. Mahadev Prasad Sharma as witness before the enquiry officer. On the basis of above discussion, I am of the view that non-applicant has proved charge No.3 levelled against Sh. Shyamlal Agrawal.

Charge No.4

58. Charge No. 4 is to the effect that on 1.11.2003 applicant Sh. Shyamlal Agrawal received a sum of Rs.7000/- for crediting it to the saving account No. 01190012803 of Sh. Manoj Kumar Sharma on his counter & issued counterfoil in testimony of the said deposit but he did not account for the amount in the banker's book & pocketed the money for his own use.

59. In explanation against charge No. 4 it has been submitted by applicant Sh. Shyamlal Agrawal that on 1.11.03 amount of Rs.7000/- was not deposited by Miss Saroj Sharma, sister of account holder Sh. Manoj Kumar Sharma. He has further submitted that on the instigation of someone Miss Saroj Sharma has presented the complaint against me relating to charge number 4.

Charge No.5

60. Charge No.5 also relates to account number 01190012803 of Sh. Manoj Kumar Sharma wherein it has been alleged that delinquent Sh. Shyamlal Agrawal credited a sum of Rs.7000/- on 31.12.2003 by debiting this amount of Rs.7000/- from the account no. 01190010678 which relates to some other Manoj Kumar Sharma & this exercise of debiting from one account & crediting it to another account was done by delinquent without authority of the account holders.

61. From perusal of enquiry record it appears that Miss Saroj Sharma made a written complaint to Branch Manager, Ratangarh on 17.5.04 that she had deposited a sum of Rs.7000/- on 1.11.03 in the account of her brother Sh. Manoj Kumar Sharma. She had made endorsement of detail of currencies on deposit slip & counterfoil at the time of deposit on 1.11.03. She has further alleged that the deposit slip dated 4.11.03 shown by Branch Manager to Miss Saroj Sharma has not been filled by her & is not in her handwriting whereas deposit made on 1.11.03 was in her handwriting. She has further said that it appears that deposit made by her on 1.11.03 was not credited to the account of her brother & after utilising the money for a period of three days the money has been deposited by Sh. Shyamlal Agrawal in the account of another Manoj Kumar wherein deposit slip does not bear the signature of depositor. She has further alleged that Rs.7000/- has been deposited back in the account of her brother Sh. Manoj Kumar Sharma on 31.12.03 after laps of about two months consequent upon complaint made to branch manager. She has prayed to take action against the guilty person.

62. In his explanation against charge no.5 Sh. Shyamlal Agrawal has alleged that deposit of Rs.7000/- on 4.11.2003 was made by Sh. Manoj Kumar Sharma brother of Miss Saroj Sharma but instead of 4.11.2003 he had mentioned 1.11.2003 on the counterfoil (receipt). Delinquent Sh. Shyamlal Agrawal has further alleged that he accepted the amount & when he tried to make posting of the amount in computer then he found that account number was not written in deposit slip. Thereafter, he sought the appearance of all the accounts on the screen of computer in the name of Manoj Kumar & according to his guess he credited the amount by mistake to account number 10678 because printer was defective at that time. He has further alleged that on 31.12.2003 Miss Saroj Sharma came to the bank to have the entry made in passbook then she came to know that the amount had been credited in the account no.10678 in the name of Sh. Manoj Kumar Sharma. Thereafter, he gathered the vouchers of deposit & after securing the correct information about account number he on his own level debited the account no.10678 & credited it to the account no.12803 of Sh. Manoj Kumar Sharma i.e. brother of Miss Saroj Sharma. He has further alleged that single window operating system had authority of transferring only a sum of Rs.1500/- hence, he prepared the vouchers at his level. With above explanation he had claimed that the charge against the delinquent is baseless.

63. From the perusal of enquiry record it appears that it has been argued by presenting officer of the bank before the enquiry officer on behalf of bank in relation to charge No. 4 that on 1.11.2003 cash was received for deposit by Sh. Shyamlal Agrawal who has given counterfoil to the depositor but he did not credit the amount on 1.11.2003 & destroyed the deposit voucher & utilised the money for his own purpose & on 4.11.2003 deposited the amount in account of another Sh. Manoj Kumar Sharma to conceal the fraud committed by him under the garb of mistake. It has been further submitted that deposit slip filled on 4.11.03 is in different handwriting whereas counterfoil delivered on 1.11.2003 is in different handwriting bearing correct & clear account number, hence, charge against delinquent stands proved. Against above submission it has been argued by defence representative that charge No.4 has not been proved against delinquent because complainant has not appeared in evidence. It has been further submitted that no amount was deposited on 1.11.2003 as alleged in explanation by delinquent & on 4.11.2003 Miss Saroj Sharma came to the counter of Sh. Shyamlal Agrawal & as a courtesy towards a lady delinquent filled up the deposit voucher for the credit of Sh. Manoj Kumar Sharma to account no. 01190010678 & after searching in the system promptly credited the amount in the above said account. He has further alleged that thereafter she demanded the counterfoil which was not available with the delinquent & thereafter she presented a dully filled up counterfoil which was issued to her but the delinquent omitted to check the account number & date on the counterfoil hence, charge is baseless & unfounded that money was used by delinquent for three days & deposit was intentionally made in wrong account where it remained lying for about two month. Against charge No.5 it has been argued that debiting account of one customer & crediting that amount to another customer's account for rectification of wrong does not require confirmation from the account holder & passing of transfer entry was within the power & there was no malafied intention.

64. It has been argued before this tribunal by learned counsel for applicant that charge No.4 & 5 have not been proved by opposite party & complainant has not been produced in evidence because there was no deposit from complainant side on 1.11.2003 & when applicant Sh. Shyamlal Agrawal came to know about crediting of the amount in wrong account he has debited the amount & credited to the correct account of Sh. Manoj Kumar Sharma. Countering the above argument it has been submitted by learned counsel for non- applicant that applicant knowingly & deliberately has committed grave misconduct by temporarily misappropriating the amount deposited by account holder on 1.11.2003 & to conceal the wrong committed by him he has wrongly taken all the step of debiting & crediting without authority of the senior officer of the bank or the account holder & charge 4 & 5 have been proved by non-applicant against the delinquent.

65. From perusal of enquiry record it appears that charge No.4 & 5 have been found proved by the enquiry officer against the delinquent. The proof of charge No.4 has been based on the counterfoil P-18 filed by Miss Saroj Sharma on which stamp of the bank is dated 1.11.03 & this amount was deposited on 4.11.03 in the account No. 10678 of another Manoj Sharma. The stamp of 1.11.2003 on the deposit slip has been the basis of conclusion that amount was tendered for deposit on 1.11.2003. Charge No.5 has been treated as proved on the ground that P-19 deposit slip was prepared by delinquent employee himself on 4.11.2003 in the name of another Sh. Manoj Kumar Sharma & was deposited in the account No.10678 to cover the fraud. Further, delinquent prepared transfer voucher (P-19 A) on 31.12.2003 & P-19 B debit voucher which was without authorisation by a Senior Officer or by account holder.

66. From perusal of record it is evident that this fact is admitted that debiting & crediting of the amount has been admitted to have been done by delinquent himself in his own writing & signature. P-18 is the counterfoil on record in which Rs.7000/- has been shown to be deposited on 1.11.2003. The amount of Rs.7000/- is consisting of 7 notes of Rs.500/- & 35 notes of Rs.100/- denomination. The stamp affixed on P-18 bears the date 1.11.2003 & the date written by depositor on counterfoil is also 1.11.2003 hence, delinquent & his learned representative can not be permitted to say that no deposit was made in the account no.12803 of Sh. Manoj Kumar Sharma i.e. brother of Miss Saroj Sharma. Further, it is pertinent to note that in his explanation to charge No.5 delinquent has alleged that on 4.11.2003 Sh. Manoj Kumar Sharma had got the money deposited who did not mention the date on deposit slip whereas learned representative of the applicant in his submission before the Enquiry Officer has submitted that Miss Saroj Sharma had visited on 4.11.2003 to deposit the money & in courtsey towards lady vouchers were filled by Sh. Shyamlal Agrawal hence, both the contentions are contradictory. Further, it is pertinent to mention that if contention of the learned representative of the delinquent is correct that counterfoil was prepared by Miss Saroj Sharma on 4.11.2003 then how the counterfoil submitted by complainant bears the stamp dated 1.11.2003. From the above discussion, I am of the view that contention of the learned representative of the applicant is not sustainable that no deposit was made on 1.11.2003. From the circumstance, it is clear that applicant has been in the full knowledge of the fact that deposit was made on 1.11.2003 & all the explanations offered by him are baseless, fabricated & untenable. The enquiry officer has rightly held him guilty for charge no.4 & 5 levelled against him.

Charge No.6

67. Charge No.6 is to the effect that applicant issued cheque No. 536949 dated 1.2.2004 for a sum of Rs.10,000/- without keeping sufficient amount as balance in his current account No. 01090094052.

68. In his explanation dated 31.12.2005 by applicant against charge No.6 he has narrated that he had issued this cheque to one Sh. Jaswant Singh who was customer of the Ratngarh branch. He has further alleged that Sh. Jaswant Singh was an ex-serviceman who was frequently meeting the delinquent. One day during his visit to the bank he told the delinquent that if delinquent needs any goods from military canteen Sh. Jaswant Singh will bring it & give it to delinquent because he is a retired military personnel. Thereafter, in January, 2004 delinquent asked him for a 6 k.g. automatic washing machine. Sh. Jaswant Singh said that the alleged washing machine is available in his military canteen situated at Bikaner & he will have to make visit to Bikaner which requires spending money in visiting Bikaner beside spending of time. He further said that beside above expenditure certain amount will be required to be spent as commission. When delinquent agreed to fulfil above conditions to get the washing machine, Sh. Jaswant Singh asked for advance money. In return applicant issued to Sh. Jaswant Singh the above mentioned cheque dated 1.2.2004. The applicant has further alleged that after laps of sometime from the date of issuing the cheque applicant felt himself sick & he has further alleged that he was to receive money from someplace but the money was not received till then hence, he asked Sh. Jaswant Singh not to proceed with the purchase of washing machine & the delinquent will ask for the washing machine after 2-3 months & he directed him to return the cheque back to delinquent. Applicant has further said that after receiving above information from delinquent Sh. Jaswant Singh got annoyed & said that he has already placed the order for washing machine from the canteen & delinquent will have to take the washing machine. Delinquent replied that he is not in position to arrange the money for washing machine & asked Sh. Jaswant Singh to deliver the cheque back to the delinquent. On demanding the cheque back Sh. Jaswant Singh said that he will return the cheque back but delinquent will have to compensate for the labour that has been done by Sh. Jaswant Singh till then. The delinquent has narrated that annoyed by the denial of the delinquent Sh. Jaswant Singh placed the cheque in the bank for payment & made a complaint in this connection to the bank that he has to get Rs.10,000/- from Sh. Shyamlal Agrawal. Applicant has further alleged that he did not think that Sh. Jaswant Singh will act in that manner with the delinquent & when cheque was tendered to the bank for payment applicant was at his native village . From his village he contacted Sh. Jaswant Singh on telephone & ask him to return the cheque back to the delinquent. Applicant has annexed the copy of the cheque with his explanation. Further, applicant has alleged that he was unaware that the cheque book from which he had issued the cheque to Sh. Jaswant Singh was issued to the branch office of the bank which was kept in the almirah (rack) of the table of the delinquent & issued the cheque from that cheque book thinking that cheque book was personal belonging of the delinquent. Applicant has said that when he asked Sh. Jaswant Singh not to take the washing machine there was no need to keep sufficient balance in the account hence, charge No.6 levelled against him is baseless.

69. It has been argued by learned representative of the applicant before the tribunal that charge has been framed against the applicant for having insufficient money in his account & issuing a cheque of Rs.10,000/- to one Sh. Jaswant Singh on 1.2.2004 but such charge cannot be levelled against the delinquent because this event is related to section 138 Negotiable Instrument Act & proceeding under section 138 Negotiable Instrument Act cannot be initiated in absence of a written complaint by Sh. Jaswant Singh to the concerned Judicial Magistrate having jurisdiction to entertain the complaint. Countering the above argument it has been argued by learned representative for the opposite party that alleged act of the delinquent is a misconduct under the "RULES OF CONDUCT (AWARD STAFF" for employees of the bank & disciplinary action is permissible against the delinquent applicant for the alleged misconduct. Against this, it has been submitted by learned representative of the applicant that there is no such provision wherein it has been provided that issuing of cheque without sufficient balance in the account is an act of misconduct.

70. "RULES OF CONDUCT (AWARD STAFF" has been submitted by learned representative of the opposite party which is available on page 10 of the book named 'A BOOK ON DISCIPLINE & DISCIPLINARY PROCEEDINGS' ( 12TH Edition). The relevant part of provided provision reads as under :-

"An employee of the Bank may not :-

(i) Borrow money or permit any member of his family to borrow money or other wise place himself or a member of his family under a pecuniary obligation to a broker or a money lender or a subordinate employee of the bank or any person, association of persons, firm, company or institution, whether incorporated or not having dealings with the bank;

(ii) …………………………………".

71. From the perusal of enquiry record it appears that Sh. Jaswant Singh made a complaint against Sh. Shyamlal Agrawal that on 3.12.2003 by means of withdrawal form he had drawn a sum of Rs.29,000/- from his account but withdrawal form was filled by Sh. Shyamlal Agrawal & only signature on withdrawal form was made by applicant Sh. Jaswant Singh. Sh. Jaswant Singh had desired to draw Rs.29000/- only which was given to him by delinquent but delinquent had drawn Rs.39000/- by endorsing this amount in withdrawal form in place of Rs.29000/- & pocketed Rs.10000/- to himself. On 1.1.2004 he came to know about wrong withdrawal of Rs.29000/- & made a written complaint (P-31) about the matter to Assistant Manager & Manager of the branch. Sh. Jaswant Singh was asked to identify the employee of the bank present on the premises who was responsible for the wrong committed with him. After identification by Sh. Jaswant Singh it was found that none of the staff present in the bank was the person who was responsible for drawing Rs.39000/-. At that point of time Sh. Shyamlal Agrawal had gone for lunch. When Sh. Shyamlal Agrawal returned from lunch applicant Sh. Jaswant Singh identified him & asked Sh. Jaswant Singh to come tomorrow when Sh. Shyamlal Agrawal will explain as to how Rs.39000/- was withdrawn in place of Rs.29000/-. After this Sh. Shyamlal Agrawal issued the alleged cheque as mentioned above for a sum of Rs.10000/- dated 1.2.2004 with instruction that Sh. Jaswant Singh should tender the cheque for encashment on or after 1.2.2004 only. He further assured that he will pay the money within 10 days. Sh. Jaswant Singh take the cheque back. Sh. Shyamlal Agrawal fail to make payment within 10 days & approached the Manager of the bank with written complaint accompanied by alleged cheque & requested the Branch Manager to take the cheque in custody & ensure him the payment of Rs.10000/- by 1.2.2004.

72. It appears that subsequent to the complaint of Sh. Jaswant Singh, father of Sh. Shyamlal Agrawal, Sh. Girdhari Lal S/o Bhagumal Agrawal contacted Sh. Jaswant Singh along with witness Sh. Vinod Kumar Khemka on 5.2.2004 & paid the amount of Rs.10000/- & received the cheque back issued by Sh. Shyamlal Agrawal to Sh. Jaswant Singh. A letter (P-33) to this effect has been written by Sh. Jaswant Singh which has been signed by witness Sh. Vinod Kumar Khemka. In this P-33 Sh. Jaswant Singh has requested that as father of Sh. Shyamlal Agrawal he has paid the money back hence, Sh. Jaswant Singh has no complaint now against Sh. Shyamlal Agrawal & complainant's complaint may be consigned. During cross-examination Sh. Vinod Kumar Khemka has admitted his signature on P-33. Sh. Jaswant Singh has also been cross-examined by defence representative. Sh. Jaswant Singh has admitted that he had complained against Sh. Shyamlal Agrawal to the bank & the cheque was given by Sh. Shyamlal Agrawal to him & on 5.2.2004 he has received money from Sh. Girdhari Lal, father of Sh. Shyamlal Agrawal & after receipt of money he has no complaint now against Sh. Shyamlal Agrawal. An unsuccessful attempt has been made by defence representative to suggest the witness Sh. Jaswant Singh & Enquiry Officer that the person who paid Rs.10000/- was not the father of Sh. Shyamlal Agrawal & he was some unknown person interested in falsely implicating Sh. Shyamlal Agrawal but this suggestion is completely baseless in view of the fact that Sh. Shyamlal Agrawal has himself admitted in his explanation to the charge that cheque in original was returned by Sh. Jaswant Singh whose photocopy has been attached by Sh. Shyamlal Agrawal with his explanation consisting of different story. From the comparison of the story of washing machine placed by Sh. Shyamlal Agrawal & the complaint of Sh. Jaswant Singh, it is also evident that the plea of washing machine raised by Sh. Shyamlal Agrawal to cover his entire illegal act is unfounded & based on fabricated facts. On the basis of statement of Sh. Vinod Kumar Khemka also there remains no doubt that father of Sh. Shyamlal Agrawal was the person who delivered Rs.10000/- & P-33 was executed in correct prospective. On the basis of above discussion, I am of the view that opposite party has been successful in proving charge No.6 against the delinquent Sh. Shyamlal & plea of section 138 of Negotiable Instrument Act in defence of delinquent is unsustainable.

Charge no.7

73. This issue is to the effect that on 25.11.2003 delinquent Sh. Shyamlal Agrawal received a sum of Rs.12000/- from Sh. Parmeshwarlal for crediting it to the saving account no. 01190010807 which was received by him & a counterfoil was issued to the depositor but the amount received was not accounted to the account of bank's book.

74. Sh. Shyamlal Agrawal in his explanation to charge no.7 has alleged that Sh. Parmeshwarlal Singhania has made deposit of some money on 25.11.2003 & the counterfoil relating to the deposit was in his possession but it was not bearing the signature of Sh. Shyamlal Agrawal. He has further alleged that he had made a complaint in the bank as well as in the police station & police had submitted the investigation report in the court but Sh. Shyamlal Agrawal has not received any summon from the court till the date of his explanation on 31.12.2005. He has further submitted in his explanation that Sh. Parmeshwarlal has himself given in writing to Sh. Shyamlal Agrawal that Sh. Parmeshwarlal had not given any money to Sh. Shyamlal Agrawal for making deposit & the counterfoil was issued to Sh. Parmeshwarlal by mistake & Sh. Parmeshwarlal had filed a complaint against Sh. Shyamlal Agrawal by mistake on instigation of people. He has further contended that he is endorsing the photocopy of written note given by Sh. Parmeshwarlal to him & charge levelled against him is accordingly baseless.

75. In final argument submitted on 25.10.2017 in writing by applicant himself & it has also been argued by learned counsel for the applicant that the enquiry officer has based his finding on the basis of P-7 & P-6 documents but these documents have not come during enquiry proceeding hence, no disciplinary action can be taken on the basis of these documents. He has further submitted that neither counterfoil relating to Rs.12000/- was produced nor Sh. Parmeshwarlal was produced for examination & cross examination to depose that counterfoil was given to him by Sh. Shyamlal Agrawal. Further, he has relied on the judgement of criminal court which has been filed by him. Countering the above argument it has been submitted by learned counsel for non-applicant that there has been compromise between Sh. Shyamlal Agrawal & Sh. Parmeshwarlal & payment of Rs.12000/- has been made to Sh. Parmeshwarlal & only after that Sh. Parmeshwarlal has submitted an affidavit in favour of Sh. Shyamlal Agrawal & this fact is clear from the judgement of Hon'ble Criminal Court also.

76. As far as the proceeding during enquiry is concerned it has been submitted by presenting officer before the enquiry officer that Sh. Shyamlal Agrawal paid a sum of Rs.12000/- out of court to secure a compromise in his favour from Sh. Parmeshwarlal & this fact is clear from the document P-6 wherein he has admitted to have received the money & in consequence he has desired that the case before the criminal court may be dismissed.

77. Sh. Shyamlal Agrawal has himself filed the copy of judgement dated 16.2.2012 of the court of Additional Chief Judicial Magistrate, Ratangarh Distt: Churu. The criminal case no.128/2005, State of Rajasthan v/s Sh. Shyamlal Agrawal u/s 409, 120 B I.P.C. was based on an application u/s 156(3) Cr.P.C. wherein order on 19.1.2004 was passed for investigation of the case by Ratangarh police station. Based on order dated 19.1.2004 investigation was made by Ratangarh police station against accused Sh. Shyamlal Agrawal & the then Branch Manager, Sh. L.C.Lakhani & final report was submitted by the police before the court. However, vide order dated 26.5.2005 both the accused were summoned for trial. Sh. L.C.Lakhani preferred criminal revision against the order of cognizance dated 26.5.2005 by the court of learned magistrate which was allowed by Hon'ble Court of District & Session Judge vide order dated 19.6.2009. The criminal case no. 128/2005 continued against Sh. Shyamlal Agrawal & he was charged on 7.3.2011 for the offence u/s 409 I.P.C.

78. According to complaint made before the court of Magistrate u/s 156(3) Cr.P.C. the brief fact of the case against Sh. Shyamlal Agrawal is that on 25.11.2003 at about 11 a.m. complainant visited the Ratangarh branch of the bank to make deposit of a sum of Rs.12000/- in his saving account. He filled the deposit slip & handed over the money along with pass book to Sh. Shyamlal Agrawal for making the deposit before the witnesses Sh. Santosh Kumar & sh. Satyanarayan. Sh. Shyamlal Agrawal took the amount of Rs.12000/-, counted it & after making initial & stamping with seal of the bank on the deposit slip handed over the same to the complainant Sh. Parmeshwarlal. Returning the passbook to Sh. Parmeshwarlal he alleged the complainant that entry in passbook will be made latter by computer. Branch Manager, Sh. L.C.Lakhani told the complainant that complainant need not to worry & he must become assure that money has been deposited in the account. On 9.1.2004 complainant visited the bank & tendered the withdrawal form with passbook for withdrawing a sum of Rs.5000/- but no payment was made & it was alleged by bank that there is insufficient amount in his account. Thereafter, he contacted branch manager & complained against Sh. Shyamlal Agrawal. The branch manager told the complainant that payment will be made tomorrow i.e. next date & when no payment was made on 10.1.2004 he made written complaint to the Superintendent of Police & Collector of district Churu but no case was registered. He made repeated visit to bank & Sh. L.C.Lakhani told him that enquiry is going on in the matter & payment will be made latter. He has further alleged that Sh. Shyamlal Agrawal & Manager Sh. L.C.Lakhani have committed the offence of criminal conspiracy, criminal breach of trust with the complainant & misappropriated a sum of Rs.12000/- dishonestly. Similar incidents have occurred with other customers of the bank hence, accused persons be summoned & tried for offence u/s 409 & 120 B I.P.C.

79. Complainant Sh. Parmeshwarlal turned hostile & rest of the witnesses were discharged on the application of complainant. On the basis of complainant not supporting the case of prosecution accused Sh. Shyamlal Agrawal was acquitted of the charge u/s 409 I.P.C. with benefit of doubt.

80. From the perusal of the judgement it is evident that despite the fact that complainant has turned hostile he has admitted in cross examination that he was given counterfoil about deposit of the money but alleged counterfoil was not given by Sh. Shyamlal Agrawal but it was given by some other official of the bank. This statement goes to show that he had made the deposit in the bank & he was given a counterfoil in testimony of such deposit. Nothing has been asked further that who was the official who had given him counterfoil & why he initiated criminal proceeding against Sh. Shyamlal Agrawal. Nothing has been alleged by the delinquent also as to why he did not initiate a case of malicious prosecution against Sh. Parmeshwarlal.

81. Beside turning hostile before the criminal court Sh. Parmeshwarlal complainant has written a letter (P-7) to the Superintendent of Police, Churu on 12.4.2005 with copy to Station Officer, P.S. Ratangarh & Dy.S.P., Ratangarh wherein he has said that he had visited the bank on 25.11.2003 to make deposit of Rs.12000/- & for this purpose he filled the deposit slip & give to the cashier & the counterfoil was signed by cashier & given to him but he forgot to hand over the money to cashier due to his engagement in talking to one of his known person at that moment & he returned home without handing over money to cashier. He has further alleged that on instigation of people mistakenly filed criminal case before the court against Sh. Shyamlal Agrawal & Sh. L.C.Lakhani. He has further express his desire not to have any further action in the case & his case may be dismissed. It is evident that his contention is different about cash before the court & in P-7. It appears that basing on P-7 final report has been submitted by police after investigation. Another document before the enquiry officer is affidavit (P-6) which is affidavit filed by applicant before the criminal court. This affidavit dated 12.4.2005 has been submitted in the court by Sh. Parmeshwarlal as a favour to delinquent so that acquittal of the applicant may be secured. In this affidavit Sh. Parmeshwarlal deponent has alleged in first paragraph of the affidavit that on 25.11.2003 he deposited a sum of Rs.12000/- in Ratangarh branch of S.B.I. in his account no. 01190010007. He has further alleged in following paragraphs that on 9.1.2004 he visited the bank to withdraw the money from his above mentioned account but he did not get the money & got a case( ISTAGASA) instituted against manager Sh. L.C.Lakhani & cashier Sh. Shyamlal Agrawal of the bank about misappropriation of money & this act of getting the case instituted was done by him hurriedly on instigation of the people. He has further alleged that he has got the money that was deposited by him & he wants the case instituted by him dismissed against the accused because he does not want any further action against them. The learned enquiry officer has acted on the documents P-6 & P-7 as mentioned above. It is pertinent to mention that P-7 written to Superintendent of Police & P-6 affidavit have been prepared on the same date i.e. on 12.4.2005. Both the documents have been prepared at the instance of delinquent who has been aware about both the documents in view of the fact that P-7 has been filed in his favour in the criminal court where he was facing the trial. One can very safely conclude that P-6 has been prepared on the active participation of delinquent by making payment of Rs.12000/- the money which has been the cause of the complaint by Sh. Parmeshwarlal. Letter P-7 was written with a view to promote the filing of final report by police where investigation was going on.

82. A plea has been taken on behalf of delinquent before the enquiry officer as well as before this tribunal that Sh. Parmeshwarlal was not produced in evidence for cross examination hence, disciplinary proceeding cannot take place in above circumstance. It has been submitted by learned counsel for the opposite party that in above circumstance Sh. Parmeshwarlal was not required to be produced by bank for supporting his complaint because he had become hostile to the interest of the prosecution & to the bank & he was a good witness for the defence to favour him & he could have been rightly produced by delinquent by which the witness was won over. Documents P-6 & P-7 are the admitted document of the defence & their copies were supplied to the learned representative of the defence. Evidence was started during enquiry proceeding on 21.7.2006 & Sh. Parmeshwarlal has written both the documents P-6 & P-7 on 12.4.2005 favouring the delinquent. Sh. Shyamlal Agrawal delinquent himself or his defence representative before the enquiry officer or learned representative of applicant & applicant Sh. Shyamlal Agrawal himself before the tribunal have alleged nothing as to in what manner any prejudice has occurred to the delinquent during enquiry by his non- production as witness before the enquiry officer. They have also not been able to show as to why they have not chosen to produce him as defence witness before the enquiry officer when bank had failed to produce him as witness of the bank. Sh. Parmeshwarlal has already given a written note in favour of Sh. Shyamlal which is in return of money to Sh. Parmeshwarlal. In above circumstance it cannot be expected that management of the bank could produce him as witness.

83. On the basis of above discussion & for the reasons stated therein I am of the view that opposite party has proved the charge no.7 levelled against the applicant Sh. Shyamlal Agrawal.

Charge No.8

84. Charge no.8 is to the effect that delinquent managed to obtain a computerised passbook no. 000745 & issued it to Shri Mahadev Prasad, account holder of saving bank account no.01190007812 & made a entry manually in that saving account for a sum of Rs.400/- on 8.12.2003. This entry was relating to the difference amount of maturity value of two STDRs No. 441115 aggregating Rs.38888/- and issue of new STDR for Rs.38,488/- in the name of account holder on[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1793 4.9.2003. The entries in the said Pass Book were confirmed by Sh. Shyamlal Agrawal with his signatures at the place meant for Chief Manager.

85. Applicant Sh. Shyamlal Agrawal has submitted in his explanation against the above noted charge no.8 that Shri Mahadev Prasad is a retired policeman & he had got credited the amount relating to both the TDRs in his saving account from the another counter of the bank. When Shri Mahadev Prasad was leaving the bank Sh. Shyamlal Agrawal insisted him to get fresh TDR prepared for the alleged amount of above TDRs. According to contention of Sh. Shyamlal Agrawal Shri Mahadev Prasad was convinced with Sh. Shyamlal Agrawal & asked him to give him Rs.400/- in cash & invest rest of amount of both the TDRs by making a fresh single TDR. Sh. Shyamlal Agrawal has further said in his explanation that he acted according to the direction of Shri Mahadev Prasad & gave him Rs.400/- in cash & invested rest of the amount in TDR but looking into the old age of Shri Mahadev Prasad he prepared all the related vouchers & posted them in his own handwriting. Further explaining about the cause of the complaint by Shri Mahadev Prasad he has alleged that on the direction of branch manager he visited the house of Shri Mahadev Prasad & reminded his son about making payments relating to housing loan failing which legal action will be taken against him for which the debtor will be responsible. The loan account was in the name of Shri Mahadev Prasad's son. According to further part of explanation Shri Mahadev Prasad who was sitting beside his son at the time of conversation got annoyed & said that his son should have been called at branch of the bank to narrate him such warning because such visit to his house by a bank employee in relation to loan lowers the dignity of Shri Mahadev Prasad. He has further alleged that Shri Mahadev Prasad further told him that he was entitled to interest on TDR from the back date which was prepared by Sh. Shyamlal Agrawal. In rest part of the explanation Sh. Shyamlal Agrawal has tried to justify his act done by him in relation to preparation of TDR & misappropriation of Rs.400/-.

86. From perusal of enquiry record it appears that the enquiry officer has held the delinquent guilty of charge no.8. The learned disciplinary authority has not made any mention of charge no.8 in his order while proposing the punishment for dismissal of the applicant from service.

87. In his written argument before the tribunal nothing has been mentioned by applicant in relation to charge no.8. In oral argument it has been argued by learned representative of the applicant that Shri Mahadev Prasad has not been produced in evidence by opposite party hence, the enquiry officer has committed error in holding the charge no.8 proved against the applicant. Countering the above argument it has been argued by learned counsel for opposite party that admittedly entire documents relating to charge no.8 has been prepared by the delinquent himself & there remains nothing to be proved in view of his own admission by the applicant. It has been further argued that in spite of the fact that the act of the applicant Sh. Shyamlal Agrawal is self speaking yet respondent effort to bring Sh. Mahadev Prasad in evidence before enquiry officer failed due to sickness & old age of Shri Mahadev Prasad & he could not appear for evidence.

88. From perusal of enquiry record it appears that a complaint dated 8.12.2003 (P-48) was made by Shri Mahadev Prasad against Sh. Shyamlal Agrawal wherein it has been mentioned that two fixed deposits were continuing in the Ratangarh branch of the state bank being part of complainant's account no. 2812 & amount of money relating to both the FDs were to be reinvested as single FD. The total amount of both the FDs paid to him was Rs.400/- less than the required amount which must have been paid as total sum of both the FDs. Further it has been alleged that the amount of Rs.400/- has been paid to the complainant in cash by Sh. Shyamlal Agrawal on 8.12.2003 & has also been credited in the passbook of the complainant which was less paid on the date of investment of consolidated amount of both the FDs. Shri Mahadev Prasad has further said that Sh. Shyamlal Agrawal was strongly scolded by the officer of the bank because of which payment of Rs.400/- was made to him. Further he has stressfully said that he was paid his money because of scolding from the officer of the bank but delinquent may further defraud this institution again hence, it is requested that have the guilty person be punished so that he does not repeat such mistake in future.

89. From perusal of the record it appears that total consolidated amount of both the FDs was Rs.38888/- but complainant was paid only a sum of Rs.38488/- by Sh. Shyamlal Agrawal & remaining amount of Rs.400/- was misappropriated by the applicant. After complain dated 8.12.2003 Sh. Shyamlal Agrawal has paid the amount in cash & has credited the same in computerised passbook in his own handwriting. Thus, the explanation dated 31.12.2005 against the charge memo appears to be false, fabricated & baseless in background of what has happened on 8.12.2003 after complaint of Shri Mahadev Prasad. All the above act of the applicant has taken place in his own handwriting which he has admitted in his explanation & has tried to give a fake & fabricated explanation which does not stand correct to the scrutiny. Photocopy of computerised passbook no. 000745 is on record which bears the full signature of delinquent in which he has made entry on 8.12.2003 for a sum of Rs.400/- which bears his initial. P-47 is the deposit slip for Rs.400/- which has been admittedly prepare by delinquent Sh. Shyamlal Agrawal as alleged by him in his explanation dated 31.12.2005. In above admitted position there remains nothing to be proved with the aid of Shri Mahadev Prasad as witness because the complaint made by Shri Mahadev Prasad has also been admitted by applicant.

90. As far as the question of producing Shri Mahadev Prasad in evidence is concerned it appears from the enquiry proceeding dated 21.7.2006 that due to illness & old age of 85 Shri Mahadev Prasad could not appear as witness on 21.7.2006. Shri Mahadev Prasad was to appear as witness on 21.7.2006 & during enquiry massage was received from Shri Mahadev Prasad's home that he has become ill suddenly who is aged about 85. Thus, due to illness he could not1794 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] appear in person. Sh. Shyamlal Agrawal also has himself admitted about disability of Shri Mahadev Prasad due to old age in his explanation dated 31.12.2005 against charge no.8 that looking into customer's service & old age of Shri Mahadev Prasad he himself prepared all the vouchers of Shri Mahadev Prasad in his own handwriting & posted them. It has been argued that applicant could have got opportunity to cross examine Sh. Mahadev Prasad if he would have been produced in evidence as witness. Here, it is pertinent to mention that nothing has been mentioned in written argument that how non-production of Sh. Mahadev Prasad has prejudiced the applicant & how his appearance in witness box could have helped the delinquent. In background of above circumstance there remains nothing to assess that appearance of Shri Mahadev Prasad could have made any difference because independent of his presence, facts relating to charge no.8 are admitted facts of the delinquent & explanations offered by him stand fabricated & baseless.

91. Based on above discussion, I am of the view that opposite party has proved charge no.8 against applicant Sh. Shyamlal Agrawal.

92. In (1998) III LLJ 501 M.P., State Bank of India…….Petitioner v/s Central Government Industrial Tribunal Cum Labour Court & anr…..Respondents, referred from applicant side, respondent workman a cashier in the bank of petitioner. The charge against the applicant was that he had made in his own handwriting & authenticated the spurious entries in the passbook of account holder Sh. Dharmveer Prasad Bhatnagar (detail of various entries have been given). The second charge against the respondent was that he had authenticated without due authority balance in the account holder of charge no.1( detail mentioned). The act of the workman amounted to a major misconduct in the terms of para 521 of Shastri Award. In his explanation respondent workman submitted that he made the entries but entries were made without any ulterior motive in a passbook of which he was under the belief that it is unused & belongs to a closed amount. He further submitted about entries that he did so to demonstrate a person how entries are made in a passbook. The entries had no relevance to the entries of account maintained in the branch. It was further submitted that by making such entries, which, according to bank or spurious, the respondent workman had not received any financial gain as the passbook was unused & belonged to a closed account &, therefore, there was no occasion to make the entries of the passbook in the ledger. He further submitted that he acted in good faith with no intention to cause any loss to the bank or to any of the account holders. Not satisfied with the explanation a departmental enquiry was held by the bank. The enquiry officer held against charge no.1 that the bank was not put to any financial loss as a result of employee's act & the case of the presenting officer that entries in the passbook were made with ulterior motive was not established & the employee was proceeded against without making this aspect as part of the charge. Against charge no.1 it was further held that the presenting officer did not bring any material/evidence/argument to indicate that the bank was likely to suffer any financial loss as a result of employees act. Against charge no.2 similar finding was given by enquiry officer as charge no.1 the disciplinary authority however, did not agree with the findings of enquiry officer & recorded his own conclusion on the basis of entries made in the passbook & attending circumstances. After reply to show cause notice the disciplinary authority passed the order of discharge the applicant from service. Departmental appeal preferred by applicant was also dismissed. The Industrial Tribunal adjudicated the dispute referred to it & held that enquiry held by the enquiry officer was proper but punishment awarded is not commensurate with the misconduct of the respondent. Looking into past excellent service record of the respondent punishment awarded by disciplinary authority was altered to stoppage of two increments which cumulative effect & reinstatement in service with back wages.

93. Aggrieved by the order of tribunal petitioner bank filed writ petition before the Hon'ble High Court under Article 226/227 of the Constitution of India wherein finding of the tribunal was upheld with modification that respondent was not entitled to back wages from the date of discharge till the date of award.

94. From the perusal of the facts & circumstances of the case of State Bank of India…….Petitioner V/s Central Government Industrial Tribunal Cum Labour Court & anr…..Respondents, it is sufficiently clear that there is no mitigating circumstances existing in the case of Sh. Shyamlal Agrawal to derive any benefit in his favour from the cited case.

95. Reference has been made to the case reported in (2010) 2 SCC 772, State of U.P & Ors. …..Appellant V/s Saroj Kumar Singh …..Respondent & Court No.9, Writ- A No. 20337 of 1999, Shrish Singh ……Petitioner V/s Chairman, Gorakhpur Kshetriya Gramin Bank & others …..Respondents by learned representative of the applicant on the point that documents have been used in the enquiry case against the applicant for proving the charges but during enquiry proceeding those documents have not been proved by the witnesses which was necessary to be proved before placing reliance on those documents by enquiry officer. Repelling the above argument it has been argued by learned representative of the bank that law laid down by Hon'ble Supreme Court in (2010) 2 SCC 772, State of U.P & Ors. …..Appellant V/s Saroj Kumar Singh …..Respondent & Hon'ble Allahabad High Court in Court No.9, Writ- A No. 20337 of 1999, Shrish Singh ……Petitioner V/s Chairman, Gorakhpur Kshetriya Gramin Bank & others …..Respondents, does not apply to the facts of the present case. It has also been argued that in the present case three witnesses have been produced by management to prove the charges against the applicant wherein Sh. Jaswant Singh & Sh. Rajkumar are the complainant against Sh. Shyamlal & all the witnesses have been cross examined by the defence representative but in case of Shirish Singh no witness has been examined & finding has been given enquiry officer solely on the basis of report of handwriting expert. About the case of Sh. Saroj Kumar Singh it has been alleged by learned representative of non-applicant that in that case documents demanded by the charged officer were never[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1795 supplied by the management even after direction of Hon'ble High Court due to charged officer was unable to make reply of the charges levelled against him which resulted into failure of natural justice but in present case there is no such situation that any demanded document by delinquent was not supplied to him.

96. In (2010) 2 SCC 772, State of U.P & Ors. …..Appellant V/s Saroj Kumar Singh …..Respondent, respondent was an executive engineer at construction division-I, PWD, Rai Barielly during the period 6.1.2001 to 12.2.2001 & from 17.3.2001 to 28.4.2003. The appeal have been filed by appellant State of U.P. against the order passed by Hon'ble High Court at Judicature at Allahabad, Lucknow Bench, Lucknow whereby the Hon'ble High Court allowed the writ petition of the respondent by quashing & setting aside the order of his removal dated 24.12.2004 & further directing his reinstatement in service with all consequential benefits.

97. According to the facts of the case while functioning as executive engineer at Rai Barielly respondent was served with a charge sheet dated 24.2.2001 under rule 7 of U.P. Government Servant ( Discipline & Appeal) Rules, 1999 making serious allegations of misconduct against him about misappropriation of public money. Rule 7 (v) of the above mentioned U.P. Government Servant ( Discipline & Appeal) Rules, 1999 mandates as under :-

"(v) The charge sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation:

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer."

98. The above mentioned Rule clearly shows that disciplinary authority is duty bound to make available all relevant documents which are sought to be relied upon against the government servant in proof of the charges. It is only when the charge sheet together with documents is supplied that the government servant can be said to have had an effective and reasonable opportunity to present his written statement of defence. In view of the above mentioned mandate respondent made a written request dated 10.6.2001 to appellant demanding copies of documents relied in the charge sheet. Later number of reminders & requests were submitted by respondent but he was not supplied with the desired documents related to charge sheet. Respondent was compelled to move Hon'ble High Court for direction to supply the copy of documents but in spite of direction the documents were not supplied. It was neither disputed before the Hon'ble High Court nor before the Hon'ble Supreme Court that documents were not supplied to respondents on one pretext or other. The Hon'ble Divisional Bench has recorded the following conclusion :-

"After hearing the rival submission of learned counsel for the parties as well as the averments made in the affidavits, we are of the view that the inquiry officer has not afforded opportunities to the petitioner insofar as he fails to supply the documents to the petitioner which he has relied while framing the charges and further the petitioner was not afforded opportunity to lead the evidence and also denied the opportunities to cross-examination of the person. The inquiry officer has also failed to prove the charges during the inquiry proceedings by the recording any evidence. Thus, the inquiry is vitiated and is violation of principle of natural justice."

99. With above observation the writ petition was allowed, the appellant was directed to reinstate the respondent with all consequential benefits. However, the state was granted liberty to conduct fresh inquiry in accordance with law and the principles of natural justice. The Hon'ble Supreme Court in appeal has held in para 38 & 39 as under :

"38. In our opinion, the appellant have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal.

39. Taking into consideration the facts and circumstances of this case we have no hesitation in coming to the conclusion that the respondent had been denied a reasonable opportunity to defend himself the inquiry. We, therefore, have no reason to interfere with the judgment of the High Court." With above observation the appeal was dismissed by Hon'ble Supreme Court.

100. It shall appear from perusal of the entire case of Sh. Saroj Kumar Sinha that the case has been totally based on non-compliance of mandated provision of rule 7(v) of U.P. Government Servant ( Discipline & Appeal) Rules, 1999 & documents mandated to be supplied under rule 7(v) were not given to the respondent which resulted into failure of principles of natural justice. In the case of Sh. Shyamlal there is nothing to indicate that any demand of the document was not met by bank or that there was any dissatisfaction in relation to non-supply of any documents, hence, no benefit can be derived in favour of applicant from the cited case.

101. Reference has been made by the learned counsel for the applicant to the judgement of the Hon'ble Court No.9 of High Court, Allahabad in writ petition no.- A No. 20337 of 1999, Shrish Singh ……Petitioner V/s Chairman, Gorakhpur Kshetriya Gramin Bank & others …..Respondents, on the point of quantum of punishment and also on the point that documents & the witnesses relating to charges have not been produced in evidence before the enquiry officer including holders of the account, hence, it should be held that charges have not been proved. Opposing the above1796 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] argument it has been argued by learned representative of opposite party that nature & standard of proof required to prove a charge depends upon contention of the charge & attending circumstances relating to the facts. The facts & attending circumstances of the charges against the delinquent Sh. Shyamlal are distinguishable from the facts of the case of Shirish Singh, hence, judgement in case of Shrish Singh is not applicable in the fact & circumstances of the present case of Sh. Shyamlal. In the cited case the petitioner was an employee within the Junior Management Grade Scale-1 with respondent Gorakhpur Kshetriya Gramin Bank, established under the Regional Rural Banks Act, 1976. He was served with a charge sheet dated 20.11.1995 which was replied by him on 15.2.96. Dissatisfied with the reply a departmental enquiry was initiated wherein the enquiry officer submitted its enquiry report on 21.2.98. Disciplinary authority issued the petitioner notice on receipt of enquiry report to have his say on the recommendation on the report of enquiry officer. Petitioner replied the notice but disciplinary authority not satisfied with the explanation of the petitioner & after recording its satisfaction on the enquiry report proceeded to impose the punishment of degradation of six lower stages in the applicable pay permanently & also directed the recovery of a sum of Rs.17500/- from the petitioner vide order of punishment dated 21.9.98. The appeal against the order of dismissal was also dismissed by the Board of Directors of the bank under resolution dated 7.1.99 without recording any reason with regard to challenge made in the appeal to the order of disciplinary authority.

102. The enquiry proceeding was instituted against the petitioner on the complaint of one Ram Kewal, an account holder in the respondent bank. According to Ram Kewal he had handed over cash of Rs.3000/-, 7000/- & 6000/- totalling Rs.16000/- to the petitioner who was dealing officer in the matter at relevant time. The petitioner had also issued receipts in respect of amount received by him but on verification these receipts were found to be forged & the alleged amount of Rs.16000/- was not been deposited in account of Ram Kewal.

103. In writ petition against the order of dismissal it was contended on behalf of petitioner that the entire enquiry proceedings against the petitioner stands vitiated on the ground that neither Ram Kewal entered into the witness box to support the allegation of payment of Rs.16000/- nor he entered into the witness box to establish that the receipts which were stated to have been received by him were actually handed over by the petitioner. The other contention of the petitioner was that charge was found proved on the basis of an ex-parte report of Handwriting expert which was not permissible in law. It was further submitted that before accepting the imposition of punishment the board was to have at least examined as to whether in absence of complainant entering into the witness box to prove the payment of Rs.16000/- to the petitioner, and to prove the actual issuance of receipt by the petitioner the charge could have been brought home or not. Referring to its previous decision referred from both the side it was observed by Hon'ble High Court in para 10 & 11 of the judgement as under:-

"10. For the aforesaid reasons, we are satisfied that there has been no application of mind at the hands of the Board, while deciding the appeal filed by the petitioner, inasmuch as the Board necessarily ought to have examined as to whether in the absence of evidence led by the Bank to prove, the receipts to be genuine, and to have been issued by the petitioner, the charge as levelled against the petitioner could have been brought home or not.

11. We, therefore, set aside the order of the Board of Directors dated 7.1.1999 (Annexure-12 to the writ petition) and restore the appeal to its original number. The Board is directed to pass a fresh order in light of the observations made above, preferably within a period of eight weeks from the date of receipt of a certified copy of this order."

104. It is evident from the case of Sh. Shirish Singh that no material before the enquiry officer was available to prove the charge against the petitioner except the report/- of handwriting expert. The sole complainant Sh. Ram Kewal was not produced as witness who contended that on three different occasions Rs.3000, Rs.7000/- & Rs. 6000/- totalling Rs.16000/- were handed over to the petitioner who had issued receipts. In that circumstance, it was held that there was no evidence to support the finding of enquiry officer except the report of handwriting expert. The case of Sh. Shyamlal is distinguishable from the case of Sh. Shirish Singh because beside introduction of complainants as witness there has been other supporting admitted documents by delinquent & circumstances to support the charges against the applicant Sh. Shyamlal. In above fact & circumstances, I am of the view that no benefit can be derived in favour of Sh. Shyamlal from the cited cases of Sh. Saroj Kumar Singh & Sh. Shirish Singh respectively. On the point of quantum of punishment also there is no occasion to derive any mitigating situation in favour of Sh. Shyamlal because of the gravity of the nature of charges against Sh. Shyamlal are far graver than Sh. Shirish Singh.

105. Applicant Sh. Shayamlal in written argument has made reference in his favour to the case 2007(1) SCC 506, Jasbir Singh …..Appellant V/s Punjab & Sindh Bank & others …..Respondents. Learned counsel for the opposite party has submitted that the findings in the case of Sh. Jasbir Singh are not attracted to the case of Sh. Shyamlal because of difference in the fact & circumstances of both the cases. In 2007(1) SCC 506, Jasbir Singh …..Appellant V/s Punjab & Sindh Bank & others …..Respondents, the allegation against the petitioner Sh. Jasbir Singh was that he had forged the signature of a depositor Sh. Ratan Singh & fraudulently withdrawn a sum of Rs. 25000/- on 11.4.89. A departmental enquiry was started against him. A criminal case beside a departmental enquiry was also initiated under Section 409/201 IPC. He was acquitted of criminal charge. A purported confession alleged to have been made by him was found to have been done under undue coercion. It was noticed by learned Chief Judicial Magistrate that even Sh.

Ratan Singh did not make any complaint who was the account holder of the bank from whose account the alleged amount was said to have withdrawn. Other officers of the bank who were said to be involved were not proceeded against. It was held that on the alleged date of occurrence on 11.4.89 Rs.25000/- was not standing to the credit of Sh. Ratan Singh & Ratan Singh was not examined. Appellant was found to have been threatened by officers of the bank & his complaints soon after his release from the hands of the bank official had not been taken note of. It was also held that an adverse inference should be drawn against the prosecution witness Mukhtiar Singh in regard to encashment of withdrawal form without observing due formalities. The alleged fraudulent withdrawal was detected on 29.5.89 & the evidence produced by the prosecution was held to be so inconsistent, incompatible & weak that no order of conviction could be passed. There was no documentary evidence to connect the petitioner with offence, however, despite acquittal the departmental proceeding continued & ended in holding the charges proved against the petitioner ex-parte on the basis of intentional absence of petitioner during enquiry. The respondent bank had also filed a civil suit against the petitioner Jasbir Which was decreed but reversed in appeal by the court of Learned Additional District Judge. It was held by learned Additional District Judge that bank has miserably failed to prove that the petitioner had withdrawn Rs.25,000/- or embezzled the amount. This judgement had become final because its correctness was not challenged by the bank. Referring to it's various pronouncements by Hon'ble Supreme Court on the point of effects of judgement of civil court and judgement of acquittal in departmental proceeding when both the proceeding are based on identical facts, it was held by Hon'ble Supreme Court that neither the Hon'ble Court of Single Judge nor the Hon'ble Court of Division Bench considered the question on merit at all. It was held by Hon'ble Supreme Court that judgement of both the civil court and criminal court established that petitioner/appellant was treated very unfairly and unreasonably. Accordingly, writ appeal was allowed and appellant was ordered to be reinstated. The applicant has failed to explain as to how the principles of law in Jasbir Singh's case apply to the instant case of Shri Shyam Lal.

106. In R. Balakrishnan …….Petitioner V/s Food Corporation of India through its Managing Director & ors. ….Respondents. (decided on 7.2.2011 by Hon'ble Madras High Court), referred on behalf of applicant, six charges were levelled against the petitioner & five witnesses were named in the memo of charge to prove the charges levelled against the petitioner. The main charge against the accused was that he did not follow the advice of dealing assistant to restrict to the existing rate contract of Rs.244/- per Kg for purchase of Aluminium Phosphide & ordered for purchase of Aluminium at higher rate of Rs.305/- per kg overruling the observation of Associate Finance. This resulted into the loss of crores of rupees to the Corporation. To prove the charges only one witness was examined who was investigating officer of the case. No other witness was examined although five witnesses were named in the memo of charge. After conclusion of enquiry charge no.2,4 & 6 was held proved & charge no.1,3 & 5 was held not proved by enquiry officer. The disciplinary authority disagreed with the report of the enquiry officer on charges 1,3 & 5 which were held to be not proved. Petitioner Sh. R. Balakrishnan was dismissed vide order of respondent no.1 dated 24.7.2003.

107. Petitioner preferred petition under Article 226 of the Constitution of Indian before the Hon'ble Madras High Court on seven different grounds. The main grounds were that enquiry report of the enquiry officer was not given to the petitioner while asking his comment against disagreement with report of enquiry officer on charges 1,3 & 5, the enquiry officer acted as prosecutor & cross examined the witness of the management in lengthy manner which makes the enquiry perverse, the enquiry officer was holding equal rank to that of the petitioner & the charge was amended without giving opportunity to the petitioner of being heard.

108. The writ of the petitioner was allowed & the order of dismissal passed by first respondent was set aside. Petitioner had attained the age of superannuation hence, first respondent was directed to settle the pensionary benefits within a period of one week. It was held by Hon'ble High Court in para 13 of the judgement as under:-

"13. By applying the dictum laid down by the Supreme Court to the contents of the report of the Enquiry Officer, which is no doubt exhaustive in its nature, it shows that the prosecution has not proved the case cogently by producing documents through witnesses and placing such witnesses to be cross-examined on the side of the delinquent. In the absence of following such crucial method, which is the crux and basis of the concept of principles of natural justice, any amount of reasoning given by the Enquiry Officer regarding each and every one of the instance in so many pages is not going to validate the proceeding."

109. From the above decision of Hon'ble Madras High Court it is clear that beside the fact that documents were not made available to the petitioner on proper occasion to represent his case there was failure on the part of enquiry officer to follow the principle of natural justice by himself cross examining the witness & basing his finding without examining the relevant witnesses & providing opportunity to petitioner to cross examine them. In case of Sh. Shyamlal Agrawal it is evident from perusal of enquiry proceeding as mentioned above that there has been no occasion of non- supply of any document during enquiry proceeding. Even before this tribunal nothing has been pointed out at any stage that there has been non-supply of any document which was demanded by applicant or there has been failure of principle of natural justice for want of document. Similarly, the finding of the enquiry officer is based on the evidence of witnesses as well as attending circumstances. I am of the view that the case of R. Balakrishnan is distinguishable from the case of Sh. Shyamlal Agrawal & no benefit can be given to the applicant on the basis of the cited case. The matter of supply & non-supply of document & opportunity of cross examining the witness require to be produced by the management has been dealt at length while making disposal of issue of fairness of enquiry vide order 23.1.2017.

110. On the adequacy of quantum of punishment it has been argued by learned representative of applicant that punishment of dismissal from the service is disproportionate to the guilt of the delinquent Sh. Shyamlal Agrawal & his acts are innocent acts done in good faith in interest of the bank & its customers. Opposing the above contention it has been argued by learned representative of opposite party that all the acts committed by delinquent are fraud on the face of the record & has been done with intention of defrauding the customers of the bank in well planned manner for personal gain & awarded punishment is suitable & proportionate. It has also been argued that tribunal is not empowered to reduce the quantum of punishment in absence of any mitigating circumstances. Reliance has been placed on the various cases shown in the index cited by learned counsel for opposite party as discussed below.

111. In 2016 LAB I.C. (NOC) 333 (GAU.), Dambarudhas Barman ..Appellant v/s Central Bank of India & Ors ..Respondents, appellant was charged for misappropriation of amount deposited by customers on various dates. Evidence showed that various amounts were received from customers on various dates but they were not accounted & credited to the account of the customers. Enquiry officer found that employee had acted in violation of established norms & procedure of the bank. It was held by Hon'ble High Court that having regard to the nature of misconduct of the employee punishment of dismissal of the employee from the service is not disproportionate.

112. In 2016 LAB. I.C. 533 (Supreme Court), Prem Nath Bali …Appellant V/s Registrar, High Court of Delhi and another…..Respondents, appellant was appointed as LDC on 1.10.65 in the office of District & Session Judge, Delhi. On 23.1.90 while working as UDC & In-charge of copying agency (criminal) at Patiala House Court submitted a written complaint to the Officer-in-charge of copying agency, against one Window Clerk, namely Smt. Brijbala. In the complaint he stated that she is not discharging her duty effectively & she often used to close the counter of copying agency before the prescribed time & after lunch also she used to resume her duty after the prescribed time. Therefore, the litigants had occasion to make a complaint to the appellant & he had to depute other official to attend the work. In above circumstance, appellant requested for her transfer. On the same day Smt. Brijbala also made a statement to the superior officer on 22.1.90 after closing the application register at 1.00 pm that she came to know that some applications, which were not even entered in the register on that day, were entered in CD2/Dak register subsequently and the certified copies were got prepared of those applications on the same date. She was also pressurized to deliver the copies on the same date at 2.30 p.m. When she refused to deliver the copy, the appellant quarrelled with her and used unwanted words in the office, which were uncalled for. The officer-in-charge forwarded the statement of Smt. Brijbala to District Judge. On the basis of said complaint a preliminary enquiry was made & thereafter a departmental enquiry was also held against the appellant. Appellant was placed under suspension on 6.2.90. A memorandum of charge dated 18.7.90 was issued by office of District & Session Judge, Delhi that authority proposes to hold an enquiry against the appellant under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which was accompanied with statement of article of charges & relevant documents. The disciplinary proceeding which commenced on 18.7.90 continued for more than nine years. After conclusion of enquiry penalty of compulsory retirement was imposed on the appellant vide order of disciplinary authority dated 28.10.99 which was challenged before the Hon'ble Administrative Judge. the Hon'ble Administrative Judge was pleased to dismiss the appeal of the appellant vide order dated 21.8.2000 against order of compulsory retirement dated 28.10.99 passed by disciplinary authority i.e. District & Session Judge, Delhi.

113. Appellant filed writ petition before Hon'ble High Court against order dated 21.8.2000 which was dismissed. Aggrieved by the order of Hon'ble High Court passed in writ petition appellant preferred appeal by special leave before Hon'ble Supreme Court wherein beside other things it was contended that punishment of compulsory retirement imposed on appellant was not commensurate with the gravity of the charge & was wholly disproportionate to the nature of the charge hence, Hon'ble Court interfere on the point of quantum of punishment & reduce it to make it in tune with gravity of charge. Decision of the disciplinary authority & Hon'ble High Court was upheld by Hon'ble Supreme Court about holding the appellant guilty of charges levelled against him & punishment of compulsory retirement imposed on the appellant was held to be commensurate with gravity of charge.

114. In 2005 LAB I.C. 3682 (Supreme Court), State Bank of India and another….Appellants V/s Bela Bagchi and others….Respondents, allegations against the respondent employee was that he had received money from an account holder for depositing in his saving bank account but did not deposit the amount. A fictitious credit entry was made in the pass book of account holder on 10.10.1985. Again in May, 1996 account holder handed over money which was also not deposited & fraudulent entry was made in the pass book. On 9th April, 1985 by four withdrawal slips money was withdrawn. Similar was the position on the another date. A hand-note was executed in favour of account-holder. Cheques for repayment of the amounts collected were issued which were dishonoured. This happened on five occasions. According to the bank the acts committed constitute individually & collectively gross misconduct as defined in paragraph 521 (4)(j) of the Sastry Award as retained by the Desai Award. This also constituted moral turpitude as laid down in paragraph 521(1) of the aforesaid Awards. In the charge-sheet it was indicated that if established punishment as laid down in paragraph 521(5) of the aforesaid Awards i.e. dismissal without notice can be imposed. During continuation of the proceedings on 22nd April, 1988 the Bank by its order intimated the employee that it had been decided to grant extension of service by a period of three months w.e.f. 1st May, 1988 to 31st July, 1988 to facilitate completion of departmental proceedings pending. Accordingly, he was granted extension of service w.e.f. 1st[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1799 May, 1988. Show-cause reply was submitted by the employee on 31.5.1988. By order dated 2.7.1988 the employee was dismissed from Bank's service with immediate effect. An appeal was preferred before the Deputy General Manager, Regional Office, requesting that on humanitarian grounds the punishment inflicted may be remitted so that the employee could get his terminal benefits. The prayer was rejected. Writ petition filed by respondent/delinquent was allowed by Hon'ble Single Judge on the ground that order was passed after age of superannuation which was confirmed by Hon'ble Division Bench holding that departmental proceedings cannot be continued after retirement unless there was specific provision to that effect in service rules. Appeal against the order of Hon'ble Division Bench was allowed & order of Hon'ble Single Judge & Division Bench was set aside. It was held that the bank had discretion to continue the service of the employee for the purpose of continuance & conclusion of departmental proceeding. It was also held that withdrawal of grievances by the account holders & absence of any loss to the bank is no defence which can be pleaded by respondent/delinquent. In para 15 of the judgement it has been held by Hon'ble Supreme Court as under:-

"15. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority- cum-Regional Manager v. Nikunja Bihari Patnaik(1996) (9) SCC 69). It is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority., The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance."

115. In 2005 LAB I.C. 461 (Supreme Court), J.A.Naiksatam….Appellant V/s Prothonotary and Senior Master, High Court of Bombay and others ….Respondents, appellants were working as Senior Translators in the office of the Chief Translator of Hon'ble Bombay High Court. A complaint by an advocate was filed with allegation that translators working in the office of Chief Translator had been indulging in corrupt practices & for obtaining official translation of the documents these translators had been demanding illegal gratification. Pursuant to the complaint an enquiry was directed by Hon'ble High Court. The enquiry officer examined some of the witnesses & on the basis of information collected by enquiry officer disciplinary proceedings were initiated against the two appellants. The enquiry officer found that the appellants were not guilty of the charges framed against them. The report of the enquiry officer was placed before the disciplinary authority who disagreed with the finding of the enquiry officer & held the appellant guilty of having demanded illegal gratification from the complainant. Show cause notice were issued to appellant by disciplinary authority. Appellants gave detailed explanation & prayed for accepting the report of the enquiry officer dropping the proceeding against them. Appellants did not seek for a personal hearing. After receipt of explanation disagreeing with the report of enquiry officer an order was passed by the disciplinary authority. Copy of the order was furnished to the appellants for their explanation on the issue as to why the penalty of dismissal be not imposed on them. After receipt of explanation from appellants & rejecting their explanation order of punishment of removal of the appellants from service was passed.

116. Review petition filed by appellants were dismissed by Hon'ble High Court. Aggrieved by order of review dated 28.3.2000 appellants filed writ petitions which were dismissed. Appellants filed appeals before Hon'ble Supreme Court which were dismissed. On the point of punishment it was held by Hon'ble Supreme Court in para 8 of the judgement as under:-

"8. Lastly, it was contended that the punishments imposed on the appellants are disproportionate as there was no evidence at all to prove that these appellants received any illegal gratification. It was prayed that the appellants are innocent and the drastic punishment of dismissal should not have been imposed on them. In view of the present day situation of rampant corruption in public life, the High Court rightly imposed the punishment of dismissal on erring officers. In the result, we are not inclined to interfere with the findings arrived at by the High Court as the High Court considered all aspects before imposing such a penalty on the appellants. The appeals are dismissed accordingly…."

117. In 2016 LAB I.C. 1433 (Patna High Court), Uma Shankar Jha …….Petitioner V/s The Punjab National Bank and others….Respondent, petitioner, Sh. Uma Shankar Jha was initially appointed as clerk cum cashier at different branches before his termination from service. At the last leg of his service in the year 1999 while serving at Kulharia branch of the bank he was served with a letter dated 9.12.13 whereby he was placed under suspension with direction not to enter into the premises of the bank & not to touch any official records of the bank. Thereafter, a departmental proceeding was initiated against him vide chargesheet dated 27.12.2005 containing 12 various charges for different irregularities like debiting customers account unauthorisedly without their confirmation on the debit vouchers, unauthorisedly debiting/crediting accounts & releasing vouchers under his signature without consent or permission of the O.I.C. though O.I.C. was present in the bank, closing the account without the request of the customer & paying the1800 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] amount through cash order, debiting customers accounts unauthorisedly & getting the amount credited in his own account, preparing wrong debit/credit vouchers for covering of the fraud committed in the branch, conniving with late OIC Sh. Awadhesh Kumar in committing/concealing fraud in the branch & consequently getting benefit from the OIC etc of grave nature. Enquiry officer submitted the enquiry report wherein all the charges except charge no.4 was found proved. The petitioner was dismissed from the service. Aggrieved by the order of dismissal petitioner preferred writ petition before the Hon'ble High Court. It was contended on behalf of petitioner about quantum of punishment that there was no loss to the bank & it was only an innocent negligence on the part of petitioner on account of work pressure. On behalf of bank it was submitted that charges proved against the petitioner are very serious in nature & it was not a mere innocent negligence. The petition of the petitioner was dismissed by Hon'ble High Court. Referring to various pronouncements of Hon'ble Supreme Court it was held by Hon'ble High Court in para 11 of the judgement as under :-

"11. But in the present case, facts are quite different, as charge that has been proved against the petitioner cannot be said to be of innocent mistake when he has withdrawn the money of customers without their consent and credited to his account which cannot be said to be a mistake rather it is completely a fraud and dishonesty of highest degree."

118. On the basis of discussions made above in relation to cases cited on behalf of both the parties & looking into the nature of charges levelled against delinquent Sh. Shyamlal Agrawal, it is clear that there is no scope to interfere with the quantum of punishment awarded by disciplinary authority & I am of the view that punishment awarded is not disproportionate to the nature & guilt of the delinquent.

119. Based on above discussion & for the reasons explained therein all the objections raised on behalf of applicant Sh. Shyamlal Agrawal are found to be meritless & rejected accordingly. Applicant has failed to prove that action of the management of State Bank of India through Asstt. General Manager, Jaipur in dismissing the services of Sh. Shyamlal Agrawal, Assistant vide order dated 11.4.2007 is unfair & unjustified. Applicant is not entitled to any relief from the opposite party bank. Statement of claim of the applicant is dismissed. The reference under adjudication is answered accordingly.

120. Award as above.

BHARAT PANDEY, Presiding Officer

नई दिल्ली, 26 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 399399399399....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

उत्तउत्तउत्तउत्तरीरीरीरी रेलवेरेलवेरेलवेरेलवे के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार य सरकार य सरकार य सरकार

औऔऔऔद्योगिक अधिकरण द्योगिक अधिकरण द्योगिक अधिकरण द्योगिक अधिकरण लखनऊलखनऊलखनऊलखनऊ,,,, के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––54545454/20/20/20/2011113333)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 26/2/2018 को प्राप्त

Fआ था ।

[सं. एल-41012/16/2013-आई.आर. (बी-1)]

रिव कु मार, अनुभाग अिधकारी

New Delhi, the 26th February, 2018

S.O. 399.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Rf. No. 54/2013) of the Central Government Industrial Tribunal-cum- Labour Court, Lucknow, as shown in the Annexure, in the Industrial Dispute between the management of Northern Railway and their workmen, received by the Central Government on 26/02/2018.

[No. L-41012/16/2013-IR (B-1)]

RAVI KUMAR, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1801

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESENT

RAKESH KUMAR, Presiding Officer

I.D. No. 54/2013

Ref.No. L-41012/16/2013-IR(B-I) dated 15.07.2013

BETWEEN

Sri Ram Awadh S/o Shri Merai

R/o Raipur Semraha, P.O. Naipur,

Gonda(UP)

AND

1. The Divisional Railway Manager,

Northern Railway,

DRM, Hazratganj,

Lucknow(UP)

AWARD

1 By order No. L-41012/16/2013-IR(B-I) dated 15.07.2013 the Central Government in the Ministry of Labour, New Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) referred this industrial dispute between Sri Ram Awadh S/o Shri Merai, Gonda and the DRM, NR, Lucknow for adjudication.

2. The reference under adjudication is:

"WHETHER THE ACTION OF THE MANAGEMENT OF NORTHERN RAILWAY,

LUCKNOW IN IMPOSING THE PUNISHMENT OF REMOVAL FROM SERVICES

UPON SRI RAM AWADH S/O SRI MERAI W.E.F. 27.08.2010 AND HIS APPEAL

DISMISSAL ORDER DATED 24.02.2011, IS LEGAL AND JUSTIFIED? TO WHAT

RELIEF THE CONCERNED WORKMAN IS ENTITLED?"

3. The workman in his claim statement W-6 has stated in brief that he was appointed as Porter on 5.12.1980, under the administrative control of the opposite parties, on 26.4.1999 he was transferred from Ayodhya to Sarai Harakhoo on 26.4.99 LPC was provided to him by Station Supdt., NR Ayodhya but did not give him the Spare Memo; and Duty Pass was also not given to him, yet the applicant reached Sarai Harakhoo to report for duty on his own expenses but he was not permitted by the Station Supdt., because he did not have Spare Memo. It has further been stated in the claim statement that the petitioner was compelled to run several times between Sarai Harakho and Ayodhya, but neither he was permitted to join duty at Sarai Harkhoo nor Spare Memo was provided to him. Therefore he was compelled to file OA no. 629/2005 before the CAT, Lucknow, vide order dated 7.09.2006 the CAT directed the opposite party to consider his request and to resolve his grievances.

4. The petitioner has further emphasized that opposite party no.2 DOM, NR was annoyed with him for filling the case before the CAT and did not permit him to resume his duty, issued him a major penalty charge sheet dated 04.05.2007 with the allegations that the workman has been abstaining himself from duty since 26.4.99, the aforesaid order in itself is not correct since the petitioner was intentionally harassed by Statio Supdt. Ayodhya and Sarai Harakhoo. It has further been stated that D&AR enquiry was delayed and he was kept out of job on the pretext of the pendency of enquiry, although representation dt. 24.12.2007, 20.1.2008 and 3.3.2008 were sent by him. Due to continuous alleged harassment the matter was raised before RLC( C ) Lucknow in Jan.2009 by the workman, after prolonged discussion under conciliation proceeding a settlement was made and the opposite party thereby agreed to provide Spare Memo so as to facilitate the joining of the workman.

5. The workman has stressed that he was asked to submit an affidavit regarding his sickness from 16.04.99 to 23.03.2008 before permitting him to join his duty. Under the compelled circumstances being faced since 1999 the1802 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] petitioner submitted an affidavit drafted by the opposite party, thereafter he was permitted to join on 05.06.2008 on the post of Porter at Sarai Harkhoo Station but the enquiry proceedings were not dropped. The workman has alleged that the enquiry was not conducted as per rules, no prosecution witness appeared before the enquiry officer, the workman was not given any opportunity to cross examine the material-witness, moreover he was not permitted to submit his defence. The enquiry report has allegedly been quite perverse, it lacked fairness and the consequent order of removal from service was patently illegal since it was passed after 2 years and 5 months from the date of receipt of the report of the enquiry officer. The aforesaid affidavit dt. 12.03.2008 drafted by the opposite party staff has been dealt with, it was infact fictitious and manipulated. Appeal filed by the workman was withdrawn on the advice of the office staff and the same was rejected with a non speaking order dt. 24.02.2011. It has further been stated in the claim statement that the Disciplinary Authority and the Appellatte Authority did not consider the material fact properly, 30 years service rendered by the workman was also ignored, and very harsh punishment of removal from service was passed which is disproportionate, unjust and illegal.

6. With the aforesaid pleadings request has been made by the workman to declare the termination order dt. 27.09.2001 as illegal, and prayer has been made for reinstatement with full back wages etc.

7. Several documents have been annexed with the claim statement.

8. With strong denial of the allegations leveled in the claim statement, management has filed written statement M- 7. It has been admitted that the workman was transferred on 26.04.99 from Ayodhya to Sarai Harkhoo but he failed to join duty and was treated as absent from 26.04.99 to 02.03.2008, therefore major punishment penalty charge sheet was issued under rules and an enquiry was conducted comprehensively. The opposite party has stated that because of being found guilty for unauthorized absence, enquiry report was submitted and penalty of removal from service was imposed. The management has admitted the proceedings before RLC ( C ) Lucknow. The enquiry was quite fair, proper and ample opportunity was provided to workman to defend himself and he has participated in the enquiry proceedings.

9. The opposite party has further stated that the workman himself on his own, has submitted affidavit before the Railway Authorities mentioning therein that he was sick from 16.04.99 to 20.03.2008 but before the Tribunal he wrongly alleged that the affidavit was taken by manipulation by the Railway Officers. Since the petitioner has abstained himself from the duty for about 8 years without any information of leave for his sickness etc, the order of removal from service is fully justified and proper.

10. Thereafter, rejoinder W-8 has been filed by the workman, reiterating the pleas taken in the claim statement, allegations made in the written statement have been denied. As per application M-12 certain documents have been filed by the management.

11. On 14.10.2015 following preliminary issues were framed;

1. Whether the departmental enquiry is fair and proper?

2. Whether the findings of the enquiry officer are perverse?

12. The workman has filed affidavit W-13 in evidence. He has been cross examined on behalf of the management. Opposite party filed an affidavit M-15 of an employee of the DRM office. MW has been cross examined on behalf of the workman. Vide order dt. 12.8.06 it has been held by this Tribunal that the departmental enquiry was not conducted in fair and proper manner. Consequential findings of the enquiry officer were treated as perverse. Both the preliminary issues were decided against the opposite party. However although several opportunities were provided to the management to adduce his evidence. It could not submit any evidence further the management furnished a copy of letter dt. 18.10.2016 informing thereby that the then Station Supdt. Ayodhya and Sarai Harkhoo who have retired much earlier, have died.

13. Arguments of both the parties have been heard at length. Record has been scanned thoroughly.

14. Learned AR for the workman has submitted that illegal and harsh order of removal from service was passed by the management and this fact was ignored that the petitioner could not attend the duty because of his ailment, his superior authority/Station Supdt. intentionally harassed him and did not permit him to join duty. On the contrary the management has emphasized that the workman has been quite habitual to abstain himself from duty without any genuine reason more over no prior permission was taken by the workman. The management has further submitted that the enquiry was conducted quite comprehensively and as per Rules, sufficient opportunity was provided to the workman to defend himself.

15. In this regard the so called memo of settlement dt. 29.02.2008, admitted to both the parties, is also quite relevant. The management although accepted this document, asserts that the varacity and legality can not be inferred since it has not been signed by the competent authority. Learned AR for the workman while taking strong objection to this submission asserts that the authority of RLC ( C ) is being challenged by the management before this Tribunal.

16. It is evident from the record that the then Station Supdt. Ayodhya and Sarai Harkhoo, Sri Tilak Dhari and Sri Govind NIgam were not produced in the enquiry on the ground that they had retired. This ground of non producing witness does not appear satisfactory. The address of retired railway officials, who have been taking regular pensionary benefits etc, could be easily obtained. More over no sincere effort was made by the management to adduce those retired officer before this Tribunal as well, although the learned AR for the management sought several adjournments on this ground, but his efforts were futile, since superior railway officers did not make any sincere endeavour in this regard.

17. Last para of the enquiry report dated 20.3.08 is very crucial wherein it has been mentioned by the enquiry officer that the charges can not be proved with cogent evidence, since the then Station Supdts., have retired earlier.

18. The findings recorded by this Tribunal/Court vide order dt. 12.8.16, have not been challenged before any other Hon'ble Competent Court. Despite being provided sufficient opportunity, no further evidence in support of the charges framed against the workman could be adduced by the management. This fact is not to be over looked that during the so called long absence of the petitioner, whether any memo/charge sheet was sent by the management or any such receipt therefore was obtained. The delay of about 28 months after the final findings of the enquiry officer having been received, has also not been genuinenly explained by the management. No doubt an affidavit dt. 12.3.08 is on record wherein fact of w.e.f. 16.4.99 to 2.3.08 has been mentioned. But on account of this affidavit the inference drawn by the enquiry officer and competent disciplinary authority can not be appreciated legally.

19. After having heard the intellect arguments of both the Learned Authorized Representatives, in the light of the record available before this court, it is inferred that the order of removal from service, passed by the management against the workman and further both the dismissal order dt. 27.08.2010 and the appellate order dated 24.02.2011, can not be adjudged as legal and justified. The termination order and the appellate order are set aside. The workman is entitled to reinstatement from the relevant date and he shall get all the pecuniary benefit as well. The management is directed to ensure the payment of arrears to the workman within 10 weeks from the date of publication of award failing which the workman shall also get interest @ 6% per annum.

20. Award as above.

LUCKNOW

11.01.2018

RAKESH KUMAR, Presiding Officer

नई दिल्ली, 26 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 400400400400....———— औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

उत्तउत्तउत्तउत्तरीरीरीरी रेलवेरेलवेरेलवेरेलवे के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार य सरकार य सरकार य सरकार

औद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरण,,,, लखनऊ लखनऊ लखनऊ लखनऊ के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––16161616/20/20/20/2014141414)))) को प्रकािशत करती है, जो के न्-ीय सरकार को 26/2/2018 को प्राप्त

Fआ था ।

[सं. एल-41011/08/2014-आई.आर. (बी-1)]

रिव कु मार, अनुभाग अिधकारी

New Delhi, the 26th February, 2018

S.O. 400.— In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Rf. No. 16/2014) of the Central Government Industrial Tribunal-cum- Labour Court, Lucknow, as shown in the Annexure, in the Industrial Dispute between the management of Northern Railway and their workmen, received by the Central Government on 26/02/2018.

[No. L-41011/08/2014-IR (B-1)]

RAVI KUMAR, Section Officer1804 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESENT

RAKESH KUMAR, Presiding Officer

I.D. No. 16/2014

Ref.No. L-41011/08/2014-IR(B-I) dated 19.03.2014

BETWEEN

The Mandal Sanghthan Mantri

Uttar Railway Karmchari Union,

C/o Sri Parvej Alam, 283/63 Kh, Ghari Kannora

Premvati Nagar, PO, Manak Nagar

Lucknow

AND

1. Sr.Divisional Personal Officer

Northern Railway, DRM office,

Hazratganj, Lucknow

AWARD

1. By order No. L-41011/08/2014-IR(B-I) dated 19.03.2014 the Central Government in the Ministry of Labour, New Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) referred this industrial dispute between the Mandal Sanghthan Mantri, Uttar Railway Karmchari Union, Lucknow and the Sr.Divisional Personal Officer, Northern Railway, Lucknow for adjudication.

2. The reference under adjudication is:

"KYA PRABNDHAN, UTTAR RAILWAY, LUCKNOW DWARA APNE KARMKAR SRI

GANGA PRASAD S/O SRI RAM LAL, MASSON, ADHINASTH VARI KHAND ABHIYANTA

(KARYA)/LOCO(E)/UTTAR RAILWAY/ CHARBAGH/LUCKNOW KO SEVANIVRAT HIT

LABHO KI GARNA MOOL VETAN RS.12600/- KE ANUSAR NA KIYA JANA UCHIT EVAM

VADHANIK HAI? YADI NAHIN TO KARMKAR KYA ANUTOSH PANE KA ADHIKARI

HAI?"

3. As per the claim statement W-4, the workman has stated in brief that he has retired as Masson on 28.2.2011, while working under the subordination of Sr. Div. Engineer(Loco) Charbagh, Northern Railway, Lucknow and at the time of his retirement his post retiral dues were paid as per the basic salary of Rs.11810/= while other benefits till 28.02.2011 were paid as per basic salary of Rs.12600/-. It is alleged that the post retiral dues calculation was violative of Railway Pension Rules 1993 as well as I.D. Act., 1947 and he has been subjected to continuous loss after his retirement and more over no show-cause notice was issued to him while reducing his salary. The workman has further asserted that till his retirement the pay fixation and payment of dues was determined by the employer himself and the workman had no role in it, neither any charge sheet etc. was given to him in this regard. He has submitted that the post retiral consequential benefits should not have been calculated as per the basic salary of Rs.11810/-.

4. With the aforesaid pleadings submissions has been made by the petitioner to ensure the payment of arrear pertaining to his post retiral dues taking into account his salary @ Rs.12600/-, further interest @ 12% has also been demanded.

5. The opposite party in its written statement M-6, has accepted that the workman was posted as Masson and got retired on 28.2.2011 and his last pay drawn was Rs.11810/- but his salary was wrongly fixed in pay band 1 Grade Pay 2800/-, resulting into over payment amount of Rs.49794/- which was recovered from DCRG of the ex-employee according to Railway Rules, and there has been no violation of principle of natural justice and post retiral dues were re-fixed according to Rs.11810/-, and the petitioner workman is not entitled to get[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1805 so called arrear according to the calculation of Rs.12600/- In para 6 of the written statement the management has given the pay fixation details of the workman. The management has requested to reject the claim statement.

6. With strong denial of the allegation leveled in the claim statement, the workman has filed rejoinder W-8, reiterating the pleas taken the claim statement. The workman has submitted that written statement has not been signed by the competent authority.

7. As per list W-9 photo copies of the certain documents have been filed by the workman.

8. The workman filed his affidavit W-7 in his evidence. He has been thoroughly cross examined on behalf of the management.

9. The management has filed affidavit M-9 of Sri R.K.Jain, ADEN, DRM Office, Northern Railway, Lucknow;

he has been cross-examined on behalf of the workman.

10. Arguments of both the parties have been heard at length. Record has been scanned thoroughly.

11. The main contention of the petitioner workman is that on his retirement although his retiral dues ought to have been paid as per the basic salary of Rs.12600/- but retirement benefits/dues were calculated as per salary of Rs.11810/- which was violative of Railway Rules as well as I.D. Act. The management has explained that the salary of the workman was wrongly fixed and consequently the over payment amount of Rs.49794/- was recovered from the DCRG of the ex-employee according to Railway Rules and there was no violation of principle of natural justice.

12. During the course of argument, the Learned Authorized Representative of the workman has referred Railway Board Circular No. 2016/F(E)/II/6/3, RBE No. 72/16 dated 22.6.2016. Learned Authorized Representative for the management submits that the Railway Board circular is legal and is to be interpreted as per Rules accordingly, and this does not help the case of the workman.

13. Learned AR for the workman has relied upon the following Rulings:

i. 2009(120) FLR, State of Bihar v/s Pandey Jagdishwar Prasad page 352, Hon'ble Supreme Court.

ii. 2010(127) FLR, Lalta Prasad Pandey v/s State of UP and others, page 54 Hon'ble High Court,Allahabad.

14. Learned AR for the management while refuting the submission of the workman, asserts that the said Rulings do not apply to the facts of the matter in issue.

15. I fully agree with the principle propounded by Hon'ble Supreme Court and Hon'ble High Court in the aforesaid two Rulings. Hon'ble Supreme Court in the Pandey Jagdishwar Prasad (Supra) has directed to State/Department for re-fixation of retiral benefits of the employee. The matter before the Hon'ble Apex Court was regarding "TWO DATES OF BIRTH BEING RECORDED IN THE SERVICE BOOK" And this controversy was raised by the employer State after 31 years. In the other case of Sri Lalta Prasad Pandey (Supra) the matter of sanctioning selection grade to the employee was found to have been wrongly calculated and the benefits were withdrawn after 10 years. Generally the sanction of selection grade is thoroughly scrutinized by the Competent Authority/Committee appointed by the department.

16. In the matter in issue before this Court/Tribunal, the petitioner workman retired on 28.2.2011, his actual last pay drawn was Rs.11810/- but it was wrongly fixed in higher scale, about 2 years back. In such circumstances the aforesaid Rulings, cited on behalf of the workman, do not apply to the present case and do not support the version adopted by the petitioner workman. The excess payment made to the workman, has to be recovered from him genuinely as per Rules. Apparently no procedural irregularities or illegality on the part of the management has neither been proved by the workman, nor it is reflected from the record available before this court.

17. After having heard both the parties at length, in the light of the evidence and documents available before this court it is inferred that the calculation conducted by the management regarding post retiral dues of the petitioner workman, ignoring his basic salary of Rs.12600/-.can not be adjudged as improper or illegal. The workman is not entitled to any relief.

18. Award accordingly.

LUCKNOW RAKESH KUMAR, Presiding Officer

07.12. 20171806 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

नई दिल्ली, 28 फरवरी, 2018

का.आ.का.आ.का.आ.का.आ. 401401401401....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैमैमैमैसर्ससर्ससर्ससर्स ई.सी.एल.ई.सी.एल.ई.सी.एल.ई.सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार य सरकार य सरकार य सरकार औद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं.----1 धनबाद 1 धनबाद 1 धनबाद 1 धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––44444444////1997199719971997)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/167/1995-आई.आर. (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 401.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Ref. No. 44/1997) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. ECL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/167/1995-IR (C-1)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10(1) (d) (2A) of I.D.Act.1947

Ref. No. 44 of 1997

Employer in relation to the management of Nirsa.Area M/S ECL

AND

Their workmen

Present : Shri R. K. Saran, Presiding Officer

Appearances :

For the employers : Shri D. K.Verma, Advocate

For the Workman : Shri D. Mukherjee, Rep.

State : Jharkhand. Industry : Coal.

Dated : 12/01 /2018

AWARD

By order No. L-20012 /167 /1995/ IR (C-I) dt. 04/02/1997 the Central Government in the Ministry of Labour has, in exercise of powers conferred by clause (d) of sub-section(1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal:

SCHEDULE

"Whether the demand of the Union that Sri Jitan Yadav and others (as per list enclosed) are

eligible for regularisation for retrospective effect in category-I by the management to

Gopalpura Colliery of M/S ECL is legal and justified ? If so, to what relief are these workman

entitled?"

List of workmen

Sl. No . Name Father's Name

1. Jitan Yadav Shri Shitoti Yadav

2. Shri Bhola Yadav Sri Meghan Yadav[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1807 3. Sri Jadu Pandit Sri Rasdular Pandit

4. Balesjhwar Pandit Sri Sitaram Pandit

5. Sri Dhananjay Thakur Sri Kusum Thakur

6. Sri Mohan Mahato Sri Balsundar Mahato

7. Sri Motor Lal Mahato Sri Hiru Mahato

8. Sri Baikunth Yadav Sri Chandradeo Yadav

9. Sri Prem Yadav Sri Rameshwar Yadav

10. Sri Guhi Roy Sri Tulsi Roy

11. Sri Subhas Yadav Sri Satyanarayan Yadav

12. Sri Omikant Yadav Sri Nabratan Yadav

13. Sri Arjun Yadav Sri Meghan Yadav

14. Sri Harinath Yadav Sri Sitaram Yadav

15. Sri Gupteshwar Yadav Sri Sitaram Yadav

16. Sri Harendra Yadav Sri Shashi Yadav

2. This Case is received from the Ministry on 10.02.1997. During the pendency of the case Ld. Secretary of sponsoring Union submits that, he does not want to contest case. It is felt that the dispute between parties is resolved in the meantime. Hence "No dispute" award is passed. communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 402402402402....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––50505050////2013201320132013)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/54/2013-आई.आर. (सीएम-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 402 .—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Ref. No. 50 of 2013) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/54/2013-IR (CM-1)]

M. K. SINGH, Section Officer1808 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL No.1, DHANBAD

In the matter of reference U/10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No. 50/2013

Employer in relation to the management of Lodna Area of M/s. BCCL,

AND

Their workman

Present : Shri R. K. Saran

Presiding Officer

Appearances:

For the Employers : None

For the workman. : None

State : Jharkhand. Industry: Coal

Dated- 03/01/ 2018

AWARD

By order No. L-20012/54/2013-IR(CM-I) dated 24/10/2013 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Lodna Area of M/s. BCCL in not correcting the date of

birth of Md. Islam as 10/12/1970 is fair and justified? To what relief the concerned workman is

entitled to?"

2. After receipt of the reference, both parties are noticed. But none appears from either side. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 403403403403....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––55559999////1998199819981998)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/655/1997-आईआर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 403.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 59 of 1998) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/655/1997-IR (C-1)]

M. K. SINGH, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1809

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL No. 1, DHANBAD

In the matter of reference U/s 10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No. 59/1998

Employer in relation to the management of Govindpur Area of M/s BCCL,

AND

Their workman.

Present: Shri R.K.Saran

Presiding Officer.

Appearances:

For the Employers      :  Shri D.K.Verma, Advocate
For the workman.       :  None
State : Jharkhand.

Industry: Coal

Dated- 12/01/2018

AWARD

By order No. L-20012/655/1997-IR(C-I) dated 14/08/1998 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Govindpur Area No. III M/s. BCCL in not

regularizing Shri Kameshwar Singh as Loading Inspector is legal & justified? If not, to what relief

the workman is entitled?"

2. After receipt of the reference, both parties are noticed. But appearing for certain dates by the workman, none appears subsequently. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 404404404404....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––73737373////1998199819981998)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/704/1997-आईआर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 404.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 73 of 1998) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/704/1997-IR (C-1)]

M. K. SINGH, Section Officer1810 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL No.1, DHANBAD

In the matter of reference U/10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No. 73/1998

Employer in relation to the management of Kusunda Area of M/s BCCL,

AND

Their workman.

Present: Shri R. K. Saran

Presiding Officer.

Appearances:

For the Employers : None

For the workman. : None

State : Jharkhand.

Industry: Coal

Dated: 12/01/ 2018

AWARD

By order No. L-20012/704/97-IR(C-I) dated 10/09/1998 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of Kusunda Area of BCCL in not regularizing S/Shri Ram Awadh Yadav and

Lchuman Singh as Dumpman/Tripman/ Munshi because they are non- Matriculate keeping in view of the Cadre

Scheme and I .I.40 of JBCCI is legal & justified? If not, to what relief are these workman entitled ?"

2. After receipt of the reference, both parties are noticed. But appearing for certain dates none appears subsequently. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 404040405555....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––78787878////1998199819981998)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/716/1997-आई.आर. (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 405.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 78 of 1998) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/716/1997-IR (C-1)]

M. K. SINGH, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1811

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D. Act. 1947.

Reference: No. 78/1998

Employer in relation to the management of Govindpur Area of M/s BCCL,

AND

Their workman

Present : Shri R.K.Saran

Presiding Officer.

Appearances:

For the Employers : None

For the workman. : None

State : Jharkhand.

Industry: Coal

Dated-12/01/ 2018

AWARD

By order No. L-20012/716/1997-IR(C-I) dated 10/09/1998 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of South Govindpur Colliery M/s BCCL for premature

retirement of Sh. Haldhar Bouri is legal & Justified? If not, to what relief the workman is entitled?"

2. After receipt of the reference, both parties are noticed. But appearing for certain dates none appears subsequently. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 404040406666....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––79797979////1998199819981998)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/717/1997-आईआर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 406.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 79 of 1998) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/717/1997-IR (C-1)]

M. K. SINGH, Section Officer1812 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10(1) (d) (2A) of I.D. Act.1947

Ref. No. 79 of 1998

Employer in relation to the management of Govindpur Area M/s BCCL .

AND

Their workmen

Present : Shri R.K.Saran

Presiding Officer

Appearances :

For the employers : None

For the Workman. : Shri S.C.Gour, Rep.

State : Jharkhand. Industry : Coal.

Dated 12/01/2018

AWARD

By order No. L-20012 /717 /1997/ IR (C-I) dt. 10/09/1998 the Central Government in the Ministry of Labour has, in exercise of powers conferred by clause (d) of sub-section(1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal:

SCHEDULE

" Whether the action of the management of Govindpur Area No. III M/s BCCL for denial/regularisation of

S/Shri Mochi Ram Barhi and Dashrath Gope transporting Munshi is legal & justified? If not, to what

relief the workman are entitled?"

2. This Case is received from the Ministry on 21.09.1998. During the pendency of the case Ld. Counsel of sponsoring Union submits that, union does not want to contest case. It is felt that the dispute between parties is resolved in the meantime. Hence "No dispute" award is passed. communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 404040407777....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––83838383////1998199819981998)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/732/1997-आईआर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 407.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 83 of 1998) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/732/1997-IR (C-1)]

M. K. SINGH, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1813

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/s 10 (1) (d) (2A) of I.D. Act. 1947.

Reference: No. 83/1998

Employer in relation to the management of Bagdigi Colliery of M/s BCCL,

AND

Their workman

Present: Shri R. K. Saran

Presiding Officer.

Appearances:

For the Employers    :-  None
For the workman.     :-  None

State : Jharkhand.

Industry- Coal

Dated- 12/01/ 2018

AWARD

By order No. L-20012/732/1997-IR(C-I) dated 10/09/1998 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

" Whether the action of the management of Bagdigi Colliery of M/s BCCL in not paying the wages to

Sri Saffique Khan for the period from 25.05.1995 to 23.02.1996 and other benefits as per the Golden

Hand shake scheme is legal & Justified? If not, to what relief is the workman is entitled?"

2. After receipt of the reference, both parties are noticed. But appearing for certain dates none appears subsequently. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 404040408888....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––83838383////1999199919991999)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/546/1998-आईआर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 408.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 83 of 1999) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/546/1998-IR (C-1)]

M. K. SINGH, Section Officer1814 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

In the matter of reference U/s 10 (1) (d) (2A) of I.D. Act. 1947.

Reference: No. 83/1999

Employer in relation to the management of Block-II Area M/s BCCL,

AND

Their workman

Present: Shri R. K. Saran

Presiding Officer.

Appearances:

For the Employers    :  Shri D. K. Verma, Advocate
For the workman.     :  None

State : Jharkhand.

Industry: Coal

Dated- 3/01/ 2018

AWARD

By order No. L-20012/546/1998-IR(C-I) dated 17/05/1999 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of BCCL in retiring Smt. Panumati Kamin without

referring her to Medical Board for deciding age is justified? if not to what relief the workman is

entitled?"

2. After receipt of the reference, both parties are noticed. But appearing none appears on behalf of the sponsoring Union/workman. Management is present. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 404040409999....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––92929292////1997199719971997)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/77/1996-आईआर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 409.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 92 of 1997) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/77/1996-IR (C-1)]

M. K. SINGH, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1815

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

In the matter of reference U/s 10 (1) (d) (2A) of I.D. Act. 1947.

Reference: No. 92/1997

Employer in relation to the management of Angarpathra Colliery of M/s BCCL,

AND

Their workman

Present: Shri R. K. Saran

Presiding Officer.

Appearances:

For the Employers    :  Shri D. K. Verma, Advocate
For the workman.     :  None

State : Jharkhand.

Industry: Coal

Dated- 8/01/ 2018

AWARD

By order No. L-20012/77/1996-IR(C-I) dated 03/04/1997 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Angarpathra Colliery of M/s. BCCL in denying to

provide employment to Sri Mahendra Rajwar dependent son of late Gujri Kamin Ex-Wagon Loader

of Angarpathra Colliery under para 9:4:2 of NCWA is justified? if not, ot what relief the dependent

son, Shri Mahendre Rajwar is entitled?"

2. After receipt of the reference, both parties are noticed. But none appears on behalf of the sponsoring Union/ workman. Management is present. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 444411110000....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 1111,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––106106106106////1998199819981998)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/575/1997-आईआर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 410.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 106 of 1998) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/575/1997-IR (C-1)]

M. K. SINGH, Section Officer1816 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No. 106/1998

Employer in relation to the management of Kusunda Area of M/s BCCL,

AND

Their workman

Present: Shri R. K. Saran, Presiding Officer.

Appearances:

For the Employers : None

For the workman. : None

State : Jharkhand.

Industry: Coal

Dated : 12/01/ 2018

AWARD

By order No. L-20012/575/1997-IR(C-I) dated 01/12/1998 the central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub –section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Kusunda Area of BCCL in demoting the workman

Sri Sudarshan Koiri from Cat. V to Cat. III from Oct, 96 is justified? If not, to what relief the workman

is entitled to?"

2. After receipt of the reference, both parties are noticed. But appearing for certain dates none appears subsequently. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 444411111111....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैसर्स बी.सी.सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्-ीय सरकार औद्योगिक अधिकरण/2म न्यायालय नं. 1, धनबाद के पंचाट (संदर्भ संख्या–110/1998) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/340/1998-आई आर- (सी. I)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 411.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 110 of 1998) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/340/1998-IR (C-1)]

M. K. SINGH, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1817

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No. 110/1998

Employer in relation to the management Koyla Bhawan of M/s BCCL,

AND

Their workman

Present : Shri R.K.Saran, Presiding Officer.

Appearances:

For the Employers : None

For the workman. : None

State : Jharkhand.

Industry: Coal

Dated : 12/01/ 2018

AWARD

By order No. L-20012/340/1997-IR(C-I) dated 01/12/1998 the central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub –section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the demand of the union to reinstate and pay back wages to Sri G. A. Gandhi, a dismissed

workman is justified? If no, to what relief the workman is entitled?"

2. After receipt of the reference, both parties are noticed. But appearing for certain dates none appears subsequently. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 444412121212....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैसर्स ई.सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्-ीय सरकार औद्योगिक अधिकरण/2म न्यायालय नं.1, धनबाद के पंचाट (संदर्भ संख्या–178/1999) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/218/1999-आई आर- (सी-I)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 412.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 178 of 1999) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. ECL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/218/1999-IR (C-1)]

M. K. SINGH, Section Officer1818 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No. 178/1999

Employer in relation to the management of Hariajam Colliery of M/s. ECL,

AND

Their workman

Present : Shri R.K. Saran, Presiding Officer.

Appearances:

For the Employers : None

For the workman. : None

State : Jharkhand.

Industry : Coal

Dated :12/01/ 2018

AWARD

By order No. L-20012/218/1999-IR(C-I) dated 03/11/1999 the central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the retrenchment of Shri Ram Naresh Singh, Foreman of Hariajam Colliery of Mugma Area

of M/s ECL W.e.f. 27/03/1996 is justified? If not, what relief the workman concerned is entitled to?"

2. After receipt of the reference, both parties are noticed. But appearing for certain dates none appears subsequently. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 444413131313....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैसर्स बी.सी.सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्-ीय सरकार औद्योगिक अधिकरण/2म न्यायालय नं. 1, धनबाद के पंचाट (संदर्भ संख्या–230/2000) को प्रकाशित करती है, जो के न्-ीय सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/54/2000-आई-आर- (सी-I)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 413.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 230 of 2000) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/54/2000-IR (C-1)]

M. K. SINGH, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1819

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No. 230/2000

Employer in relation to the management of P.B. Area M/s BCCL,

AND

Their workman

Present : Shri R.K.Saran

Presiding Officer.

Appearances:

For the Employers : None

For the workman. : None

State : Jharkhand.

Industry : Coal

Dated : 12/01/2018

AWARD

By Order No. L-20012/54/2000-IR(C-I) dated 24/07/2000 the central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub–section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the demand of union to regularize Sri Ramshankar Koiri as a pump Operator Supervisor

with Consequential benefits is proper and justified? If so, to what relief is the workman entitled and

from what date?"

2. After receipt of the reference, both parties are noticed. But none appears from either side. Case remains pending. It is felt that the disputes between the parties have been resolved in the meantime. Hence No Dispute Award is passed. Communicate.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ.का.आ.का.आ.का.आ. 414414414414....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 2222,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––01010101////2015201520152015)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 27/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/134/2014-आई आर- (सीएम-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 414.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 2, Dhanbad (Rf. No. 01 of 2015) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 27.02.2018.

[No. L-20012/134/2014-IR (CM-1)]

M. K. SINGH, Section Officer1820 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

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 01 OF 2015.

PARTIES : : The Secretary,

Bihar Colliery Kamgar Union,

Jharnapara, Hirapur, Dhanbad-826001

Vs.

The General Manager,

P. B. Area of M/s BCCL,

PO : Kusunda, Dhanbad (Jharkhand) 828116.

Order No.L-20012/134/2014-IR(CM-I) dt. 05.01.2015

APPEARANCES :

On behalf of the workman/Union   :        Mr. S. C. Gaur,   Ld. Advocate
On behalf of the Management      :        Mr. N. M. Kumar,  Ld. Advocate

State : Jharkhand Industry : Coal

Dated, Dhanbad, the 1st Jan., 2018

AWARD

The Government of India, Ministry of Labour, in exercise of the powers conferred on them under Sec.10(1)(d) of the I.D. Act.,1947 has referred the following dispute to this Tribunal for adjudication vide their Order No. L-20012/134/2014-IR(CM-I) dt. 05.01.2015

SCHEDULE

Whether the action of the Management of Simlabahal Colliery under P.B. Area of M/s BCCL in

dismissing Shri Shankar Bauri, Ex. M/Loader from the services vide letter dt.18.09.2006 is fair and justified ?

To what relief the concerned workman is entitled to?"

On receipt of the Order No.L-20012/134/2014-IR (CM-I) dt. 05.01.2015 mentioned reference from the Government of India, Ministry of Labour & Employment, New Delhi for adjudication of the dispute, the Reference Case No. 01 of 2015 was registered on 19.01.2015. and accordingly an order to that effect was passed to issue notices through the Registered Posts to the parties concerned, directing them to appear in the Court on the date fixed, and to file their written statements along with the relevant documents. In pursuance of the said order, notices by the Registered Posts were sent to the parties concerned.

Both the parties made their appearances and filed their pleadings and photocopies of their documents. The Union and the O.P./Management through their own Ld. Advocates respectively appeared, and contested the case to the extent the case stands reserved for Award.

2. This Reference case as narrated in the WS about the workman Sri Shankar Bauri, had been a permanent M/Loader at Simlabahal Colliery under the Management of M/s BCCL, a Group of collieries under the part of the Coal India Ltd. exclusively based at Dhanbad .He had been abruptly fallen sick early in 2006 and so he was escorted to his native place by family members for specialized treatment at the village by the Doctor there and the matter was kept informed to the Management about the workman's illness from time to time .As the treatment appeared exhaustive and prolonged in nature . keeping this fact in mind the workman concerned sought more time with request to defer the impending enquiry but the adamant Enquiry Officer under the instruction of Disciplinary authority struck to its instant and in a calculative move conducted the so called enquiry in July, 2006, thereby restricting the workman to take assistance of his co-worker as the workman concerned attributed quite ignorant about the enquiry and little knowledge especially about the proceedings .Thereafter the Management came with serving 2nd Show Cause Notice to the workman in July,2006 without furnishing therewith the alleged Enquiry proceedings, a move depriving[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1821 of the workman concerned the opportunity to come out with reply in true letters spirit. Finally the Management dismissed the workman in Sept., 2006 with denial of providing provide the copy of the Dismissal Letter which amounted to violation of the principle of natural justice to finally represent Appeal .However as the workman came to know about it the appeal was filed but till date no response came out as the Appellate Authority acted as a Punishing Authority.

Here the workman concerned had not exhibited adamantine attitude in not responding to the communication of the Management about his absence, as alleged by the Management .Further Petitioner assertion here that non-supply of the documents, as sought by the delinquent workman just to deprive the workman concerned of the opportunity to defend himself in the enquiry proceedings as in the instant case ,and hence, the same has vitiated the order of termination. It was found the extreme punishment of dismissal from service was too harsh and disproportionate to gravity of the charge the workman committed. Apart from it, the workman was thrown out of job and forced to sit idle since issuance of the charge sheet to the workman .

In the instant case logics are not at all material in determining the proportionality of the punishment ,inflicted upon the workman concerned as there is no vagueness in the claims of the workman as submission made in WS that claims are bare facts and punishment of dismissal deserves to be set aside and there is not much in force in Management contention by way of dismissal order..The petitioner as a matter of facts contends that he fairly explained the reasons for his absence by stating that he did not have an intention nor desire to disobey the order of his higher authority or violate Company's rules and regulations but the reasons was purely personal and beyond the control of the workman

3 In contrast the Management has miserably proved failure to file WS to counter the charges brought in by the Sponsoring Union against the OP/Management despite fresh notice and numerous adjournments availed over the issue. The prolong silence maintained over filing WS drops sufficient hints that the Management did not have objection to the extent the case is set to be rolling nor did anything to say .

4. Incidents like this are not exceptional and often heard of such cases as far as Group of the Collieries under the Management of M/s BCCL, a part of the Coal India Ltd., cases like this grab headlines since past couple of years where numerous cases on same ground might have been pouring in slowly but steadily and matter gets more complicated when the labour forces are involved .It serves as a stark reminder of the sorry state of affairs of the system fabricated all around the Managements of the collieries. The workmen mostly hailing to illiteracy back ground are usually scared of stepping into the underground Mines due to safety hazards and unhealthy conditions, surrendering in and around the site despite best of safety mechanism/technique in place. Workers of the colliery have early adopted safety norms and other safety platforms since they are simple, clean and accurate. The prevailing culture of apathy that gives the situation to turn into a fatal accident in the absence of stringent deterrents tells the story something else.

There is nothing adverse report against the workman barring this one. Though alleged absentism had cost him employment. The punishment of dismissal imposed upon the workman for his alleged misconduct under the name of penalty on ground of absentism appears to be disproportionate and too harsh.

5. As far as imposition of penalty as dismissal from service is concerned, having regards to sufferings leading to the workman post dismissal, and taking into consideration of his apologetic stand, it is ordered that the workman concerned who lost bread and butter in the days of hardship be provided one more last opportunity by offering him fresh appointment in the lowest Grade with two- year probation. Therefore it is ordered that the worker concerned be appointed as fresher in the lowest Cat-I with two-year period on probation with no question of back wages whatsoever.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. 415का.आ. 415का.आ. 415का.आ. 415....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य

सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं.----2222,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––04040404////2016201620162016)))) को प्रकाशित करती है, जो के न्-ीय

सरकार को 27/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/129/2015-आई.आर. (सीएम-1)]

एम. के . सिंह, अनुभाग अिधकारी1822 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

New Delhi, the 28th February, 2018

S.O. 415 .—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 2, Dhanbad (Rf. No. 04 of 2016) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 27.02.2018.

[No. L-20012/129/2015-IR (CM-1)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD.

PRESENT

Shri R. K. Saran, Presiding Officer.

In the matter of an Industrial Dispute under Section 10(1) (d) of the I.D.Act., 1947.

REFERENCE NO 04 OF 2016.

PARTIES : : The General Secretary,

Koyla Ispat Mazdoor Panchyat,

Chhatabad No.5, PO: Katrasgarh,

Dhanbad -828113

Vs.

The General Manager,

Katras Area of M/s BCCL,

PO : Katrasgarh, Dhanbad (Jharkhand) 828113.

Order No.L-20012/129/2015-IR(CM-I) dt. 11.12.2015

APPEARANCES :

On behalf of the workman/Union : Mr.B.B.Pandey, Ld.Advocate

On behalf of the Management : Mr.D.K.Verma , Ld.Advocate

.

State : Jharkhand Industry : Coal

Dated, Dhanbad, the 8th Jan., 2018

AWARD

The Government of India, Ministry of Labour, in exercise of the powers conferred on them under Sec.10(1)(d) of the I.D. Act.,1947 has referred the following dispute to this Tribunal for adjudication vide their Order No. L-20012/129/2015-IR(CM-I) dt. 11.12.2015.

SCHEDULE

Whether the action of the Management of Katras Area of M/s BCCL in dismissing Sri Raju Kumar

Bhuia, M/Loader from the services vide order dated 29.08.2000 is fair and justified? If not, to what relief the

concerned workman is entitled?

On receipt of the L-20012/129/2015-IR (CM-I) dt. 11.12.2015 mentioned reference from the Government of India, Ministry of Labour & Employment, New Delhi for adjudication of the dispute, the Reference Case No. 04 of 2016 was registered on 04.01.2016. and, accordingly an order to that effect was passed to issue notices through the Registered Posts to the parties concerned, directing them to appear in the Court on the date fixed, and to file their written statements along with the relevant documents. In pursuance of the said order, notices by the Registered Posts were sent to the parties concerned.

Both the parties made their appearances and filed their pleadings and photocopies of their documents. The Union and the O.P./Management through their own Ld. Advocates respectively appeared, and contested the case to the extent the case stands reserved for Award.

2. This Reference case as summarized in the WS by the Sponsoring Union that the workman concerned Sri Raju Kumar Bhuia a permanent employee of Ram Kanali Colliery of the M/s BCCL bearing Personal No,02951226 had been working as M/Loader .Since the workman concerned was charge sheeted citing absence from duty as the ground for misconduct .He submitted his explanation. The petitioner (workman) as a matter of facts contends that he fairly explained the reasons for his absence by stating that he did not have an intention nor desire to disobey the order of his higher authority or violate Company's rules and regulations but the reasons was purely personal and beyond the control of the workman over which he had a little choice . Contrary to it, the Management went ahead by conducting an departmental enquiry not in the line of the principle of natural justice .The said enquiry was conducted ex-parte and its report was a farce , as alleged by the workman concerned. The Management had all along been not certain as to the instant case of absentism was of which nature - minor or major punishment rather extracted the conclusion the punishment that totally disproportionate to the misconduct the workman committed .As such the order passed from 29.08.2000 based on the above proceedings and other matters is totally unfair and unjustified. With respect of the case under Reference the workman as stated he was on unauthorized absence only due to the fact that he had genuine constraints which prevented him from joining back to his duties .By making this written petition the workman want to establish that he is entitled to get lesser punishment than the order of the dismissal; which has been passed in the instant case caused tremendous sufferings. The workman has found himself on the verge of starvation that amounted to capital punishment in service arena In the instant case logics are not at all material in determining the proportionality of the punishment, inflicted upon the workman concerned as there is no vagueness in the claims of the workman as submission made in WS that the claims are bare facts and punishment of dismissal deserves to be set aside as there is not much in force in Management contention by way of dismissal order. So the alleged action of dismissal is unlawful, unfair and unjustified and thus liable to be set aside with reinstatement in service with continuity and back wages.

Further in its rejoinder the Sponsoring Union/petitioner categorically denied all the allegations raised by the Management by stating it all as baseless and far from facts and unfounded.

3 Whereas in contrast, Management argued by emphatically denial to all the allegations brought by the Sponsoring Union raised question over maintainability of the present Reference either in law or in fact with assertion that the Industrial Dispute is stale one, as the Union do not have locus standi as of now, to raise the dispute even after lapse fifteen years more from the date of dismissal by referring the 2A of the Industrial Dispute Act ,1947 as the dismissed employee can raise the I.D. in respect of dismissal within three years from the date of dismissal .As such the present Industrial Dispute is time barred as without offering of any explanation about undue delay of fifteen years so the Reference stands to be rejected summarily .

Further assertion by adding that the workman concerned was absenting himself from duty w.e.f. 19.04.1999 against which he was charge sheeted and for his past habitual absentism on 19.05.1999 , the aforesaid charge sheet was sent to the workman's native place at his permanent address through Registered post but surprisingly neither the letter returned back as undelivered nor did any information the Management receive about receipt of the letter by the workman. Going on further the Management appointed an Enquiry Officer ,who in turn, issued several notices to the workman concerned, despite this all the workman did not turn up before Enquiry Officer to participate in the enquiry restricting the Enquiry Officer with no option but to conduct the enquiry as ex-parte virtually in the absence of non- appearance of the workman ,by holding the workman guilty of the allegations levelled against him, and finally dismissed him from service for his proved misconduct .

Though the workman concerned filed a writ petition in the Hon'ble High Court by challenging the said dismissal order of the Management .The Hon'ble High Court, in turn, directed the Management to issue a Second Show Cause Notice together with concluded Enquiry Report .The Hon'ble High Court also directed to the workman concerned to submit his explanation to the said Show Cause Notice within fifteen days. Thereafter the Disciplinary Authority passed the reasonable order justifying decision of the dismissal imposed upon the workman concerned Raju Kumar Bhuia as no worthwhile explanation was forthcoming .The Management found no justification to interfere with the Enquiry Report as the workman concerned miserably failed to point out lapse or short coming in the Enquiry Report so as to disagree with .The representation against the dismissal is found to be devoid of any merit or substance ,hence in acceptance of the Departmental Enquiry Report penalty of dismissal from service has been inflicted upon the workman Shri Raju Kumar Bhuia .Thus neither there was any sort of violation of the principle of natural justice nor did it get mired at any stage as alleged by the petitioner/Union rather the alleged action for dismissal stands as fair, legal justified ,as claimed by the Management in its WS .

4. Incidents like this are not exceptional and often heard of such cases as far as Group of the Collieries under the Management of M/s BCCL, a part of the Coal India Ltd., cases like this definitely grab headlines since past couple of1824 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] years where numerous cases on same ground might have been pouring in slowly but steadily and matter gets more complicated when the labour forces are involved .It serves as a stark reminder of the sorry state of affairs of the system fabricated all around the Managements of the Collieries. The workmen mostly hailing to illiteracy back ground are usually scared of stepping into the underground Mines due to safety hazards and unhygienic conditions, prevailing in the vicinity of the collieries under the Management of the M/s BCCL despite best of safety mechanism/technique in place. The prevailing culture of apathy that gives the situation to turn into a fatal accident in the absence of stringent deterrents tells the story something else.

There is nothing adverse report against the workman barring this one. Though alleged absentism had cost him employment. The punishment of dismissal imposed upon the workman for his alleged misconduct under the name of penalty on ground of absentism appears to be disproportionate and too harsh.

5. As far as imposition of penalty as dismissal from service is concerned, having regards to sufferings leading to the workman post dismissal, and taking into consideration of his apologetic stand and to meet the ends of justice, the workman concerned who lost bread and butter in the days of hardship be provided one more last opportunity by offering him fresh appointment in the lowest Grade with two- year probation. Therefore it is ordered that the worker concerned be appointed as fresher in the lowest Cat-I with two-year period on probation subject to proper identification. So far back wages .it does not arise at all whatsoever.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 416416416416....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य

सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं.----2222,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––28282828////2015201520152015)))) को प्रकाशित करती है, जो के न्-ीय

सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/22/2015-आई.आर. (सीएम-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 416.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 2, Dhanbad (Rf. No. 28 of 2015) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/22/2015-IR (CM-1)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD.

PRESENT

Shri R.K.Saran, Presiding Officer.

In the matter of an Industrial Dispute under Section 10(1) (d) of the I.D.Act., 1947.

REFERENCE NO 28 OF 2015.

PARTIES : : The General Secretary,

Koyla Ispat Mazdoor Panchyat,

Chhatabad No. 5, PO: Katrasgarh,[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1825 Vs.

The General Manager,

Katras Area of M/s BCCL,

PO: Sijua, Dhanbad (Jharkhand) 828121.

Order No.L-20012/22/2015-IR(CM-I) dt. 27.04.2015

APPEARANCES :

On behalf of the workman/Union  :        Mr.B.B.Pandey,    Ld. Advocate
On behalf of the Management     :        Mr.D.K.Verma,     Ld .Advocate

.

State : Jharkhand Industry : Coal

Dated, Dhanbad, the 12th Jan., 2018

AWARD

SCHEDULE

Whether the action of the Management of West Modidih Colliery under Katras Area of M/s BCCL in

dismissing Sr Hari Lal Turi from the services vide letter dated 09.03.2006 is fair and justified? To what relief the

concerned workman is entitled to?

On receipt of the Order No.L-20012/22/2015-IR (CM-I) dt. 27.04.2015 mentioned reference from the Government of India, Ministry of Labour & Employment, New Delhi for adjudication of the dispute, the Reference Case No. 28 of 2015 was registered on 06.05.2015. and accordingly an order to that effect was passed to issue notices through the Registered Posts to the parties concerned, directing them to appear in the Court on the date fixed, and to file their written statements along with the relevant documents. In pursuance of the said order, notices by the Registered Posts were sent to the parties concerned.

Both the parties made their appearances and filed their pleadings and photocopies of their documents. The Union and the O.P./Management through their own Ld. Advocates respectively appeared, and contested the case to the extent the case stands reserved for Award.

2. The Reference as narrated & put forth the facts in WS by the Sponsoring Union/petitioner that workman concerned Hari lal Turi was a permanent employee of West Modidih Colliery under Katras Area of M/s BCCL, name of the Group of collieries exclusively based at Dhanbad. The workman concerned was charge sheeted on 21.07.2005 due to absence from duty against which the workman explained the genuine constraints which prevented him from joining back to his duties as the situation was compelling over which the workman had little choice to do but the Management did not consider his explanation being devoid of merits .Contrary to it, the Management went ahead by conducting an enquiry ignoring the principle of natural justice to which the workman declared the enquiry a farce one and its findings as perverse .Since the Management dismissed the workman from service of the Company dt.09.03.2006 , a move which the Sponsoring Union stated that the order is disproportionate to the misconduct the workman committed. The Petitioner contends that the workman had good reason for his absence from duty being ill health which the Management or Enquiry Officer did not consider .So the action of the Management in dismissing his service is quite disproportionate to the misconduct he committed rather sought reinstatement into service with back wages. It was found the extreme punishment of dismissal from service was too harsh and disproportionate to gravity of the charge the workman committed. Apart from it, the workman was thrown out of job and forced to sit idle with happening of this incident .

3. Whereas In contrast, by emphatically denial all the allegations brought out by the Sponsoring Union the Management argued by putting a question mark over maintainability of the Industrial Dispute either in law and facts since the Sponsoring Union has got no locus standi ,at least, as of now, to raise the Industrial Dispute under the I.D. Act after a gap of eight years as the workman concerned dismissed from services of the Company w.e.f. . 10.03.2006 and on that score, the Reference does not qualify to stand as ID rather liable to be rejected summarily referring the provision of 2A of the Industrial Dispute Act,1947 .Further assertion is that that the workman Hari Lal Turi bearing his personal no. 02989887 was an employee of West Modidih Colliery of the Katrs Area of M/s BCCL as M/Loader .The workman started absenting from his duty without permission and information of the Management w.e.f. 05.02.2005 against which he was charge sheeted by the Management on 21.07.2005 for commission of misconduct under clause 26.1.1. of the Certified Standing Order, an bye-laws ,in force in the Group of the Collieries under the1826 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] Management of the M/s BCCL . The workman submitted his reply which was not found up to the expectation leading to appointment of Enquiry Officer to conduct the enquiry so as to go to bottom of the facts to ascertain to what extent the workman committed misconduct apart from providing full, fair and reasonable opportunity to the workman to come out in his defence just on the line of the principle of the natural justice .The Enquiry Officer submitted his report holding therein the workman guilty of the charge of unauthorized absentism. The said enquiry was necessarily held in the presence of the workman concerned giving him an opportunity to rebut the allegation made against him as per the provision of the principle of natural justice. Thereafter the Disciplinary Authority issued 2nd Show Cause Notice together with copy of the concluded enquiry report .Finally the Disciplinary Authority considering the Enquiry Report and past record of the workman dismissed him from service of the Company for proved misconduct as his past three years attendances specially from 2002 to 2004 was very dismal amounting to gross negligence on the part of the workman that got deep rooted resulted in dismissal from service .So far the quantum of punishment by way of dismissal as given to the workman is fair and perfectly justified .There was no any sort of violation of the natural justice ,as claimed by the Union rather the enquiry was fair and justified .So long as fairness of the said Enquiry, if not convinced at all, the Management stands committed to adducing evidence afresh, as reiterated its claim in the WS on behalf of the Management.

In its rejoinder, the Management came out categorically denials of all the points of all the allegations levelled against them by stating the facts as baseless, far from facts and unfounded reiterating its stand for justifying the punitive action of dismissal, the workman deserved for.

4. Cases like this grab headlines since past couple of years where numerous cases on same ground might have been pouring in slowly but steadily and matter gets more complicated when the labour forces are involved .It serves as a stark reminder of the sorry state of affairs of the system fabricated all around the Managements of the collieries. The workmen mostly hailing to illiteracy back ground are usually scared of stepping into the underground Mines due to safety hazards and unhealthy conditions, surrendering in and around the site despite best of safety mechanism/technique in place. The prevailing culture of apathy that gives the situation to turn into a fatal accident in the absence of stringent deterrents tells the story something else.

There is nothing adverse report against the workman barring this one. Though alleged absentism had cost him employment. The punishment of dismissal imposed upon the workman for his alleged misconduct under the name of penalty on ground of absentism appears to be disproportionate and too harsh.

5. As far as imposition of penalty as dismissal from service is concerned, having regards to sufferings leading to the workman post dismissal, and taking into consideration of his apologetic stand, and to meet the natural justice, the workman concerned who lost bread and butter in the days of hardship be provided one more last opportunity for his survival by offering him fresh appointment in the lowest Grade with two- year probation. Therefore it is ordered that the worker concerned be appointed as fresher in the lowest Cat-I with two-year period on probation with no question of back wages whatsoever.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 417417417417....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

मैसर्स टिस्को िलिमटेड के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य

सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 2222,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––38383838////2006200620062006)))) को प्रकाशित करती है, जो के न्-ीय

सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/206/2005-आई आर (सीएम-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 417.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 1, Dhanbad (Rf. No. 38 of 2006) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. Tisco Ltd. and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/206/2005-IR (CM-1)]

M. K. SINGH, Section Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1827

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 38 OF 2006

PARTIES : The Jt. Gen. Secretary,

Janta Mazdoor Sangh,

Shastri Nagar,At/,PO: Jamadoba,

Dhanbad. (Jharkhand).

Vs.

The General Manager,

M/s Tisco Ltd.,

PO: Jamadoba , Dhanbad.-826001

Order No.L-20012/206/2005-IR(CM-I) dt.12.06.2006

APPEARANCES :

On behalf of the workman/Union : : Mr. Balmiki Pd., Ld. Advocate.

On behalf of the Management : Mr. D.K.Verma, Ld. Advocate

AWARD

The Government of India, Ministry of Labour, in exercise of the powers conferred on them under Sec.10(1)(d) of the I.D. Act.,1947 has referred the following dispute to this Tribunal for adjudication vide their Order No.L- 20012/206/2005-IR(CM-I) dt.12.06.2006.

SCHEDULE

"Whether the action of the Management of 6/7 Pits Colliery of M/s TISCO in denying employment to

Shri Goutam Ram, the dependent son of Late Ambika Ram on compassionate ground is justified? If

not, to what relief is the said dependent entitled?"

On receipt of the Order No.L-20012/206/2005-IR(CM-I) dt.12.06.2006 of the above mentioned reference from the Government of India, Ministry of Labour & Employment, New Delhi for adjudication of the dispute, the Reference Case No. 38 of 2006 was registered on 21.07.2006/08.10.2007 and accordingly an order to that effect was passed to issue notices through the Registered Posts to the parties concerned, directing them to appear in the Court on the date fixed, and to file their written statements along with the relevant documents. In pursuance of the said order, notices by the Registered Posts were sent to the parties concerned.

Both the parties made their appearances and filed their pleadings and photocopies of their documents. The Union and the O.P./Management through their own Ld. Counsels respectively appeared, and contested the case to the extent the case stands reserved.

2. The case as raised by the Sponsoring Union, all about denial of employment in r/o the petitioner –Goutam Ram, elder son of the deceased workman Late Ambika Ram who was Peon of 6/7 Pits Colliery under Tata Iron & Steel Co. Ltd,(Tisco) Management , prematurely expired on 12.10.2001 putting 29-year of continuous service .So long as his service track record, it remained intact and unblemished till his death .As per the provision in force among collieries under the Management of M/s Tisco and other Collieries under its Management covered under NCWA binding over the parties and also applicable in its sister collieries ,the wife of the deceased Smt. Lalmati represented before the Management to provide employment to her son Shri Goutam Ram in view of her husband premature death in terms of clause under National Coal Wages Agreement (NCWA).Though same has been acceded but kept in abeyance till date .So long as the question of providing employment be it in Tisco itself a or in Bhelatand Colliery or 6&7 Pit Colliery under the Management of Tisco, discriminatory tactics are more or less followed depending upon colliery to colliery as alleged by Sponsoring Union/Petitioner. The name of the dependent of the deceased worker had already been registered in the Employment Dependent Register (EDR) so refusal by the Management is totally illegal and unjustified .Therefore the claim of the petitioner is just and proper and must be considered on humanitarian ground as the alleged inaction of the Management put the family on the verge of starvation . Since Management's inaction in providing employment to the petitioner stands not only unjustified but arbitrary and bad in law also, seeking employment in favour of the dependent son - Goutam Ram with all other benefits on humanitarian ground setting aside the denial of the Management for employment . Whereas the whole object of granting dependent employment1828 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] is to enable the dependent of the deceased family to earn bread & butter and to come out from financial crisis ,who suffers on account of unexpected and untimely death of deceased servant .Therefore the order passed by the Management is illegal, arbitrary and malafide to victimize the kin of the deceased worker. Therefore, the Union claim is amply deserved. As a consequence, the Management may be directed to consider the claim of the petitioner of employment on humanitarian ground.

In its rejoinder, the Sponsoring Union categorically denied all the facts of the Management as incorrect and unfounded by sticking to its stand of all that the points raised are true with request to reject the prayer of the Management .

3 Whereas categorically denying all the allegations brought by the Sponsoring Union /petitioner OP/Management argued putting question mark over maintainable of Industrial Dispute either in law and facts as the Sponsoring Union has got no locus–standi to raise the dispute of the instant Reference of the Establishment as the Union namely - Janta Shramik Sangh is neither recognized nor in existence in any of the Establishments under the Management .As far as employment to the deceased worker is concerned, it is not automatic condition of the service , the Industrial Dispute can not be raised .The dependent son against whom the Sponsoring Union has raised the Industrial Dispute for employment has never been in employment under the Management of Tisco so question of any relationship in terms of Employer-employee does not exist at all. Management further pleading over the issue is that a pre-requisite condition does always exist for raising the Industrial Dispute with the Management that disputant must be an employee of the Management and that being the position, the Instant reference is not competent for adjudication rather the issue of the demand is a stale one as matter raised long after five years. Management pleading that Late Ambika Ram employed on 17.03.1972 with date of his birth 09.11.1947 and expired on 12.10.2001 after having put in about 29 years of service in the Company The procedure as spelt out in the Tata Steel for employment is that an employee desirous to get his dependents' name enrolled he must do so by applying for it for enrollment in the Employees Dependent Register (EDR) only after completion of 15 years of service in the Establishment and whenever vacancy arises name of dependent, as registered is to be considered for employment in the order of seniority. As for employment to the dependent of the deceased worker, Late Ambika Ram had never got enrolled the name of any dependent in the Employee Dependent Register (EDR) during his service tenure. There is no provision for providing employment in the Tata Steel after death of an employee. If go by the procedure; Late workman's dependent is not entitled for employment in the Company. Thereby dependent employment claim is hereby declared void and inoperative being unsustainable.

In its rejoinder the Management came out by emphatically denial of all allegations of the Union by stating these all as baseless ,incorrect and unfounded once again reiterating its stand that the petitioner is not entitled to any relief as the provision under which employment has been claimed is not applicable for Tata Steel rather the employment procedure exists in Tata Steel, is only applicable and, in wake of the said facts the disputant is not entitled for employment.

4. The resume of the fact as emerging from the record appears that short point in the issue of the instant Reference to be discussed is whether the applicant is entitled to get job in place of deceased father who was a workman under Tisco management .Both parties file W.S. and counter and also adduce evidence . The applicant submits that through he applied for job, the Management did not give him job though there is provision of law for that. On the other hand the Management Representative submits that if any workman dies, he has to apply to the concerned area for enrolling dependent name of the workman in the Employment Dependent Register (EDR).

5. Therefore it is ordered the petitioner /dependant son of the late workman to apply giving all details to be enrolled in the Employment Dependent Register(EDR).The deceased workman was a Sweeper, it is seen, that the Management, gave a reply to her that as no Sweeper post was available and regretted her claim. It is not proper. The applicant's dependent son be given the post of Sweeper/Peon or post of that Cadre wherever vacancy arises.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 418418418418....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

मैससर्मैससर्मैससर्मैसर्स बी.सीबी.सीबी.सीबी.सी.सी.एल..सी.एल..सी.एल..सी.एल. के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय य य य

सरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरणसरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय नं.यालय नं.यालय नं.यालय नं. 2222,,,, धनबाद धनबाद धनबाद धनबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––82828282////2012201220122012)))) को प्रकाशित करती है, जो के न्-ीय

सरकार को 14/2/2018 को प्राप्त Fआ था ।

[सं. एल-20012/158/2011-आई आर (सीएम-1)]

एम. के . सिंह, अनुभाग अिधकारी[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1829

New Delhi, the 28th February, 2018

S.O. 418.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, No. 2, Dhanbad (Rf. No. 82 of 2012) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 14.02.2018.

[No. L-20012/158/2011-IR (CM-1)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD

PRESENT

Shri R. K. Saran,

Presiding Officer

In the matter of an Industrial Dispute under Section 10(1) (d) of the I.D.Act., 1947

REFERENCE NO 82 OF 2012

PARTIES : : The Secretary,

Jharkhand Janta Mazdoor Union,

Vishwakarma Colony,Nutundih, PO: Jagjivan Nagar,Dhanbad 826003

Vs.

The General Manager,

Sijua Area of M/s. BCCL,

PO: Sijua, Dhanbad (Jharkhand) 828121.

Order No.L-20012/158/2011-IR(CM-I) dt. 12.09.2012

APPEARANCES :

On behalf of the workman/Union : Mr.P.Mandal , Union . Rep,

n behalf of the Management : Mr.D.K.Verma, Ld. Advocate

State : Jharkhand Industry : Coal Dated, Dhanbad, the 15th Jan, 2018

AWARD

The Government of India, Ministry of Labour, in exercise of the powers conferred on them under Sec.10(1)(d) of the I.D. Act.,1947 has referred the following dispute to this Tribunal for adjudication vide their Order No. L-20012/158/2011-IR (CM-I) dt. 12.09.2012

SCHEDULE

"Whether the action of the Management of Sendra Bansjora Colliery of M/s BCCL in not providing

employment to Smt. Suga Devi, dependent wife of Late Baneshwar Manjhi under the provisions of

NCWA is legal and justified? To what relief Smt. Suga Devi, dependant wife of Late Baneshwar

Manjhi is entitled?''

On receipt of the Order No.L-20012/158/2011-IR (CM-I) dt. 12.09.2012 mentioned reference from the Government of India, Ministry of Labour & Employment, New Delhi for adjudication of the dispute, the Reference Case No. 82 of 2012 was registered on 01.10.2012. and accordingly an order to that effect was passed to issue notices through the Registered Posts to the parties concerned, directing them to appear in the Court on the date fixed, and to file their written statements along with the relevant documents. In pursuance of the said order, notices by the Registered Posts were sent to the parties concerned.

Both the parties made their appearances and filed their pleadings and photocopies of their documents. The Union and the O.P./Management through their own Representative/Ld. Advocate respectively appeared, and contested the case to the extent it stands reserved for Award.

2. This Reference case as explained in the WS that Late Baneshwar Manjhi was a permanent employee of Sendra Bansjra Colliery bearing personnel No. 002306942 had died in harness on 17.10.2005 due to serious illness. Soon after1830 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] death of her husband Smt. Suga Devi, wife of the deceased made an representation for grant of death benefits as per the provisions of National Coal Wages Agreement (NCWA) as the deceased had been very much entitled to grant of payments of Live Cover Scheme ,Benevolent Fund ,expenses for funeral apart from employment in lieu of her late husband .The Management did not provide any benefits to Smt Suga Devi in according with the provisions of NCWA rather harassed the poor lady by not providing employment despite several request made by her .So finding no alternative way, the Sponsored Union raise an Industrial Dispute. During the pendency of the conciliation proceedings the Management by its appearance through Ld. Counsel stated in written comments that Smt Suga Devi W/o the Deceased employee is not entitled for employment as the Late workman was dismissed from service vide order dated 19.10.2005 to which the Sponsoring Union objected questioning the circumstances under which the Management dismissed a dead person .Note worthy to mention here that the Late Baneshwar Majhi died on 17.10.2005 whereas the Management dismissed him from the service on 19.10.2005 .During the conciliation the Management came out with the assurance that if the applicant submits her application in proper format , her application would be considered in proper perspective while, the conciliation Officer as he could not bring about mediation between the parties gave a failure report. On the strength of Failure of the Conciliation, the Management instructed to Smt Suga Devi to submit application for employment in proper format. In compliance with the instructions as pointed out by the Management the application was submitted in proper format with relevant documents. Thereafter the Management issued another letter to Smt Suga Devi on 22.10.2012 for rectification of some omission in application .Having rectified the omissions, as pointed out by the Management, the applicant resubmitted. Thereafter the management referred the applicant to Medical Board for pre-medical examination and accordingly she appeared before the Medical Board and declared medically fit but in the meanwhile Ministry refereed the dispute to this Tribunal for adjudication vide notification under reference referred above. After reference from the Ministry, the Management send the Death Certificate of the deceased employee for verification with assurance that the applicant would be provided employment subject to verification of the Death Certificate. Not to it, the Management got verified all the documents from the Competent Authorities of Government of Jharkhand as well the antecedent of the application from Police. Finally the Management came out with assurance as soon as they get approval from the Competent Authority she will be provided employment ,a move that the Management till date neither confirmed nor did deny , thereby forcing the applicant to run from pillar to post for her survival in a bid to avoid the starvation in the days of hardships. Significantly the Management all along remained non-committal about providing employment to her as alleged inaction of the Management of providing employment to the petitioner despite repeated assurance is unjustified, illegal and sought suitable direction to provide employment to Smt. Suga Devi with full back wages from the date of application, as stated by the petitioner . Unfazed by the said the said assurance petitioner contends that the Management is not committed to stand by its words in terms of providing employment.

3, No compensation can be adequate nor can it be of any respite for the victim but since on account of failure of the Management in providing employment in lieu of her late husband , the Management to some extent duty bound to provide employment/compensation which may held in victim's rehabilitation. So the Management's assurance of providing employment bears no substance.

Though the Management's Counsel made appearances intermittently but did not file much awaited the written statement -cum -rejoinder without specifying any reasons whatsoever as fact materials surfaced on the record.

4. The question which now survives for consideration is whether relief by way of compensation to the petitioner in place of her Late husband who died in harness, should have been granted. Short point to be decided in this reference is whether the applicant is entitled to be appointed in place of her husband who died while in service. The applicant soon after his husband death applied for job, her application was scrutinized but it is seen that she is overage and she was advised to apply for monetary compensation. But she did not accept the compensatory and raise this dispute. During the hearings the applicant who is the wife of the deceased workman, admitted to accept for monetary compensation in lieu of employment, and give in writing to this effect. Considering the same, it is ordered, the applicant be given monetary compensation from the date of reference .

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 419419419419....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

मैसर्स एयर इंिडया िलिमटेड के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में

के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालययालययालययालय अहमदाबाद अहमदाबाद अहमदाबाद अहमदाबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––111111115555////2006200620062006)))) को प्रकाशित करती है, जो

के न्-ीय सरकार को 01/02/2018 को प्राप्त Fआ था ।

[सं. एल-11012/45/2003-आई आर (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1831

New Delhi, the 28th February, 2018

S.O. 419.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, Ahmedabad (Rf. No. 115 of 2006) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. Air India Ltd., and their workmen, which was received by the Central Government on 01.02.2018.

[No. L-11012/45/2003-IR (C-1)]

M. K. SINGH, Section Officer

ANNEXURE

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

AHMEDABAD

Present:

Pramod Kumar Chaturvedi,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad, Dated 10th January, 2018

Reference: (CGITA) No- 115/2006

1. The Airport Director,

Air India Limited, Premchand House,

172/1, High Court Way, Ashram Road,Ahmedabad 2. M/s. Global Airport and Ground Services Pvt. Ltd.,

U 31-43, Samudra Office, C.G. Road, Sardar Patel Nagar Road,

Ellisbridge Bridge, Ahmedabad – 380006

3. M/s. Philipson Corporation,

392/2201, Shiv Shaktinagar, Chandkheda,

Ahmedabad - 382424 —First Party

V/s

Shri Deepak Kumar RamlalAmbabatia,

Block No. 3 B, Sardarnagar,

Ahmedabad —Second Party

For the First Party : Shri D.C. Gandhi Associates

For the Second Party : Shri Raghuvir Mali

AWARD

The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-11012/45/2003– IR(C-I) dated 20.04.2006 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule:

SCHEDULE

"Kya Shri Deepak Kumar Ramlal Ambabatia, Loader and Air Port Director Air India Limited and unke savindakaro, up-savindakaro M/s Global Air Port and Ground Services Pvt. Ltd. and M/s Philipson Corporation ke beech niyojak – karamkar kes ambandh hai?"

"Kya Karmachari Shri Deepak Kumar Ramlal Ambabatiaki M/s Air India Limited ke prabandhtantra se mang ki unhe sewa mein puneh sthapit kiya jaye and sabhi anuvarti labh diye jaye, uchit and nyaye sanghat hai?"

1. The reference dates back to 20.04.2006. After receiving the notices, the second party Deepak Kumar Ramlal Ambabatia submitted the statement of claim Ex. 5 on 08.01.2007 alleging that he was appointed / engaged by The Director Air Port, Air India Limited/ First Party, hereinafter referred to as "Air India" on 05.01.1997 on daily wage basis. He served the aforesaid first party for a year and three months till 31.08.1998. Initially, he was given an entry token for entering the Air Port. Later in July, 1997, he was given daily entry permit on monthly basis after getting police verification. He used to work for all the 30 days in a month and worked for 201 days in the year 1997 and 240 days in the year 1998 till 31.08.1998. Thus he became entitled to become workman of the first party. He used to work along with 25 other workmen as loader in the loading department of Air India. Air India was also having 20 other regular workmen in the loading department. Whatever he and other workmen perform the loading duty, was regulated1832 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] by Air India under the supervision of the Airport Authority of India. He was a regular worker as work was of the nature of continuity. He was paid wages at the rate of Rs. 60/- per day which was later increased to Rs. 70/- per day. He has further alleged that the Air India illegally entered into an agreement with M/s Global Airport and Ground Services Pvt. Ltd., as a contractor to provide casual labours including the second party workman under a camouflage and later entered into M/s. Philipson Corporation, a non-existing company for the said purpose. He and other workmen were used to perform their duties under the direct control of Air India but on 31.08.1998, the Air India without serving any notice or notice pay, removed him from service for no wrong and also retained the junior workmen. He has further alleged that it is the general practice of the Air India that every time it removed the older workmen and re-engaged new workmen, landing them into poverty and unemployment. Thus he has prayed in his statement of claim for reinstatement with back wages along with Rs. 10000/- as legal expenses and any other relief as the tribunal deems fit.

2. The first party in his written statement Ex. 9 denied all the averments made in the statement of claim submitting that by an order dated 22.08.2007 passed by the Ministry of Corporate Affairs, Government of India, New Delhi approving the scheme of amalgamation between Air India Limited and Indian Air Lines Limited with the National Aviation Company of India Limited and consequent upon the filing of the same with the registrar of company on 27.08.2007, aforesaid companies is to dissolved without being wound up with emergence of a new company National Aviation Company of India Limited, hereinafter referred to as "Air India". Air India in his written statement submitted that this workman was being engaged by the aforesaid contractors namely M/s. Global Airport and Ground Services Pvt. Ltd., and later M/s. Philipson Corporation, which were outsourcing company to provide the casual labours to Air India. Thus the workman was not having any master servant relationship with the Air India. He never served the Air India for 210 days in 1997 and 240 days in 1998 till the month of August. Truth is that, he was working under a contract with the aforesaid contractors. Thus he has no right to claim his reinstatement or regularisation with back wages.

3. The workman submitted number of documents vide list Ex. 12 and 22 and the first party Air India submitted number of documents vide list Ex. 13. Neither of the parties admitted the documents of their opposite party and all these documents are zerox copy which are not admissible under the Indian Evidence Act.

4. On the basis of the pleading, the following issues arise:

i. Whether the workman Deepak Kumar Ramlal Ambabatia was having master servant relationship with the Air India Limited and contractors M/s. Global Airport and Ground Services Pvt. Ltd. and later M/s. Philipson Corporation?

ii. Whether the workman Deepak Kumar Ramlal Ambabatia was entitled to be reinstated with back wages in the service of Air India Limited?

5. Issue No. i & ii: Both the issues are interrelated and will be decided together. The workman submitted his affidavit Ex. 11 as his examination-in-chief reiterating the averments made in the statement of claim but in his cross- examination, he failed to establish that he was ever appointed by Air India as its employee in the nature of casual labour. However, he has stated that he used to work under a camouflage contractors M/s. Global Airport and Ground Services Pvt. Ltd. and later M/s Philipson Corporation, who used to pay him the wages. The first party has also filed 3 photographs vide list Ex. 15 showing the workman running a shop in the name of Krishna Dabeli which has not been denied by the workman.

6. The first party examined Bhagwandas Manglani, Deputy Manager, Air India, by way of affidavit Ex. 21 stating that this workman was engaged by aforesaid contractors to the Air India for serving in the loading departments as a loader. He has never been appointed by Air India. He was simply outsourced employee and all the wages were paid by the contractors. Both the parties submitted their written arguments.

7. From the evidence of both the parties, it is crystal clear that the workman was serving the Air India under an outsourcing contract with the aforesaid contractors M/s. Global Airport and Ground Services Pvt. Ltd. and later M/s. Philipson Corporation. He was never appointed by the Air India as its employee. The argument that he was removed by Air India appointing the new workmen has no force because it is the discretion of the contractor whosoever enters into a contract with the Air India to have its own set of workmen. It is also an established law that Air India is a Public Sector Undertaking of Government of India with in the definition of State under Article 13 of the Constitution of India, therefore, is governed by the statutory rules regarding recruitments, therefore, Air India cannot be ordered by this tribunal to reinstate and regularised in service of the Air India.

8. The first party has referred Surendranagar District Panchayat V/s Gangaben Laljibhai and others, 2006-III-LLJ SC Page 48 wherein the apex court has held that it is the burden of the workman to prove that he served the employer for a continuous period of 240 days. He has further referred Glasstech Industries (India) Pvt. Ltd., V/s the workman, represented by Maharashtra General Kamdar Union, 2013 (1) LLN 119 (Bom.) wherein the Bombay High Court has held that the burden lies on the workman to prove that he was the direct employ of the alleged employer. Similar view was expressed in Leelaben Parmar V/s Physical Research Laboratory, 2011 II CLR 39.

9. From the aforesaid discussions, the workman has failed to establish that the outsourcing contract with the aforesaid contractors M/s. Global Airport and Ground Services Pvt. Ltd. and later M/s. Philipson Corporation was sham and camouflage and he was regularly appointed by Air India as per its recruitment rules, therefore, both the issues are decided in negative and against the workman and the workman cannot be given any relief in this reference. 10. The award is passed accordingly.

P. K. CHATURVEDI, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ.का.आ.का.आ.का.आ. 420420420420....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मैससर्मैससर्मैससर्मैसर्स ओ.एन.जी.सी.ओ.एन.जी.सी.ओ.एन.जी.सी.ओ.एन.जी.सी. िलिमटेडिलिमटेडिलिमटेडिलिमटेड के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण/9म न्या/9म न्या/9म न्या/9म न्यायालय यालय यालय यालय अहमदाबादअहमदाबादअहमदाबादअहमदाबाद के पंचाट (संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या(संदर्भ संख्या––––123123123123////2002002002004444)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 01/02/2018 को प्राप्त Fआ था ।

[सं. एल-30012/116/1997-आई.आर. (सी-1)]

एम. के . सिंह, अनुभाग अिधकारी

New Delhi, the 28th February, 2018

S.O. 420.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal-cum-Labour Court, Ahmedabad (Rf. No. 123 of 2004) as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of M/s. ONGC Ltd., and their workmen, which was received by the Central Government on 01.02.2018.

[No. L-30012/116/1997-IR (C-1)]

M. K. SINGH, Section Officer

ANNEXURE

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

AHMEDABAD

Present:

Pramod Kumar Chaturvedi,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad,

Dated 24th January, 2018

Reference: (CGITA) No. 123/2004

The Group General Manager (P),

ONGC Ltd., Mehsana,

Mehsana Project,

Mehsana (Gujarat) - 384002 …First Party

V/s

The Secretary,

ONGC Labour Union,

8, Samarpan Shopping Complex, Highway Road,

Mehsana (Gujarat)– 384002 …Second Party

For the First Party : Shri K.V. Gadhia

For the Second Party : Shri N.K. Trivedi1834 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

AWARD

The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-30012/116/97– IR(C-I) dated 09.11.1998 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule:

SCHEDULE

"Whether Shri Jayant D. Jadhav, was a workman or a contractor with ONGC, Mehsana for the period from 11.09.1986 to 01.03.1995? If Shri Jayant D. Jadhav was a workman then whether his termination w.e.f. 01.03.1995 is legal and justified? If no, then to what relief, he is entitled?"

1. The reference dates back to 09.11.1998.Both the parties were served vide notice Ex. 2. The second party workman Jayant D. Jadhav submitted his statement of claim Ex. 6 alleging that the first party Oil and Natural Gas Corporation, hereinafter referred to as "ONGC" was established under Section 3 of ONGC Act, 1959 (Act No. 43 of 1959) within the meaning of Article 12 of the Constitution of India, having its headquarter at Tel Bhawan, Dehradun which was registered as ONGC Limited. The main function of ONGC is carrying out of geological and geo-physical service for exploration of petrol, for carrying out drilling and other prospecting operations to prove and estimate the reserves of petroleum, to undertake, encourage and promote the production of petroleum from such reserves, for the transport and disposal of natural gas, to undertake, encourage and promote geological, chemical and other scientific investigations, to perform other functions which are supplemental, incidental or consequential to any of the aforesaid functions or which may be prescribed by the Central Government and directed to them through Ministry of Petroleum and Natural Gas from time to time. He has further alleged that ONGC is the employer within the meaning of Industrial Dispute Act, 1947 and owner within the meaning of Section 2 (C & I) of the Mines Act, 1952. He was appointed by the ONGC in his computer section on 11.09.1986 to operate, maintain and repair of the air conditioning units of ONGC for its smooth running of the computer section which was established in the year 1986 when the computers were installed therein. He served the ONGC continuously till 28.02.1995 and was terminated on 01.03.1995. ONGC invented a noble method while engaging him telling that if he will continue in job with ONGC, he will have to enter into an agreement offering bids/quotations before entering into an agreement. He entered into an agreement with the ONGC sometimes near to 23.01.1987. He has further alleged that ONGC did not follow the proper procedure of inviting bids or quotations while entering into an agreement. Initially, he was paid Rs. 1000/- per month for such service. He has further alleged that he worked full time for more than 240 days in each year in the direct control and supervision of the ONGC, therefore, his termination on 01.03.1995 was unjust and unlawful on the ground that the said work was of perennial nature and he has been serving as a full time worker, therefore, engaging a person on a fixed amount, is violative of Section 25 G of the Industrial Dispute Act and unfair labour practice for escaping the provisions of Employees Provident Fund Act and also escaping the obligations of regularising a workman who served the ONGC for more than 240 days in each year. Thus he has prayed that his termination from service be declared unlawful and also prayed for reinstatement in service.

2. The first party ONGC submitted the written statement Ex. 6 partly admitting the facts that the second party workman was engaged as a contractor to perform the duty of maintenance of air conditioning unit of the computer section of ONGC. Thus he was a contractor and cannot be said to be a workman as defined in the Section 2 S of the Industrial Dispute Act, therefore, no industrial dispute can be raised in the matter. The ONGC has denied the facts of engaging the second party as workman on a fix pay of Rs. 1000/- per month since his alleged appointment and termination. All the rest of the averments made in the statement of claim are denied by the first party. The reference is also barred by delay and latches. The real facts are that ONGC contracted M/s Jadhav Refrigeration Service, Mehsana as per the agreement entered into the ONGC and the alleged second party workman. Said agreement was extendable on mutual consent basis from time to time. He was never appointed as a workman by the ONGC, therefore, there exist no relationship of master and servant between them and the reference is liable to be rejected.

3. The second party submitted documents vide list Ex. 7 concerning certified standing orders of contingent employees of the ONGC and various circular/office orders/letters of ONGC besides a copy of award of Central Government Industrial Tribunal, Ahmedabad in Reference (ITC) No. 35/1987.

4. The ONGC has filed the copy of the alleged agreement between ONGC and M/s Jadhav Refrigeration Service, Mehsana.

5. On the basis of the pleadings, the following issues arise:

I. Whether Shri Jayant D. Jadhav, was a workman or a contractor with ONGC, Mehsana for the period from 11.09.1986 to 01.03.1995?

II. Whether Shri Jayant D. Jadhav was a workman and his termination w.e.f. 01.03.1995 is legal and justified?

III. If no, to what relief, if any,the second party is entitled?

6. Issue No. I, II &III: Both these issues are interrelated and decided together. The burden of prove of these issues was on the second party who has submitted the affidavit Ex. 17 reiterating the averments made in the statement of claim and in his cross-examination, he has stated that no advertisement for vacancy of the post which he alleged to have hold, was advertised by the ONGC. He has never been issued any appointment letter. He has also stated that he himself is a contractor and entered into a contract with ONGC to maintain the refrigeration unit at Mehsana. The said contract of maintenance of refrigeration unit of ONGC expired on 28.02.1995. He has been residing in Nehrunagar Colony of Ahmedabad since childhood and his date of birth is 04.10.1957. Though ONGC has not examined any witness but the second party has admitted that he was a contractor and entered into a contract with the ONGC to maintain the refrigeration unit of computer section of ONGC, thus his admission itself is indicative and established that he cannot be treated as a workman under Section 2 S of the Industrial Dispute Act, therefore, no dispute can be raised under Section 2 K of the Industrial Dispute Act. Secondly, his contract expired on 28.02.1995 and raised the dispute sometimes in 1998. Thus the dispute suffers with delay and latches. Third, the ONGC is a state being the instrumentality of the Government of India; therefore, no appointment can be made without following the due procedure of appointment of service and the second party himself admitted that no advertisement of vacancy was made and due procedure was not followed. Fourth, the second party in his statement on oath has admitted that his date of birth is 04.10.1957. Thus he has passed the superannuation age. Thus on the basis of the aforesaid discussions, the industrial dispute raised by the second party was not justified. He was a contractor and not a workman or employee. Thus the reference has no force and liable to be dismissed against the second party.The second party is also not entitled to get any relief.

7. Thus the reference is disposed of with the observation as under:"Shri Jayant D. Jadhav, was not a workman. He was a contractor with ONGC, Mehsana for the period from 11.09.1986 to 01.03.1995.As Shri Jayant D. Jadhav was not a workman therefore, his termination w.e.f. 01.03.1995 was not made rather his services as contractor was ceased w.e.f. 28.02.1995. Thus no relief can be granted."

8. The award is passed accordingly.

P. K. CHATURVEDI, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ.का.आ.का.आ.का.आ. 421421421421....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

प्रसारभारती ब्रॉडकास्टिंग कापQरेशन इंडिया ((((एआईआरएआईआरएआईआरएआईआर)))),,,, यवतमल यवतमल यवतमल यवतमल ((((एमएसएमएसएमएसएमएस)))) एवं उनके कर्मचारी के प्रबंधतंत्र के संबt स्टेस्टेस्टेस्टेशन िनदेशकशन िनदेशकशन िनदेशकशन िनदेशक,,,, प्रसारभारती ब्रॉडकास्टिंग कापQरेशन इंडिया प्रसारभारती ब्रॉडकास्टिंग कापQरेशन इंडिया प्रसारभारती ब्रॉडकास्टिंग कापQरेशन इंडिया

नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालय यालय यालय यालय

नागपुरनागपुरनागपुरनागपुर,,,, के पंचाट ((((CGIT/NGP/14/2013CGIT/NGP/14/2013CGIT/NGP/14/2013CGIT/NGP/14/2013)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 12.1.2018 को प्राप्त Fआ था ।

[सं. एल-40012/12/2013-आई.आर. (डीयू)]

राजें- जोशी, उप िनदेशक

New Delhi, the 28th February, 2018

S.O. 421.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (CGIT/NGP/14/2013) of the Central Government Industrial Tribunal- cum-Labour Court, Nagpur as shown in the Annexure, in the Industrial Dispute between the employers in relation to the Station Director, Prasarbharti Broadcasting Corp. India (AIR), Yavatmal (MS) and their workmen, which was received by the Central Government on 12.01.2018.

[No. L-40012/12/2013-IR (DU)]

RAJENDRA JOSHI, Dy. Director1836 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE SHRI J.P.CHAND, PRESIDING OFFICER, CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/14/2013 Date: 20.12.2017.

Party No.1 : The Station Director,

Prasarbharti Broadcasting Corp. India (AIR)

Akashwani,

Yavatmal(MS)

Versus

Party No.2 : Shri Himmat Uttamrao Kute

Chamdiya Nagar,

Yavatmal (MS).

AWARD

(Dated: 20th December, 2017)

In exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of section 10 of Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in short), the Central Government has referred the industrial dispute between the employers, in relation to the management of All India Radio and their workman, Shri Himmat Kute, for adjudication, as per letter No.L-40012/12/2013-IR (DU) dated 22.04.2013, with the following schedule:-

"Whether the action of the management of AIR, Yavatmal (MS) in terminating services of Shri Himmat

Uttamrao Kute and denying him to a suitable post in AIR, Yavatmal is legal and justified? To what

relief the workman is entitled to?"

2. On receipt of the reference, the parties were noticed to file their respective statement of claim and written statement and accordingly, the workman, Shri Himmat Kute, ('the workman" in short), filed the statement of claim and the management of All India Radio, ("Party No. 1" in short) filed their written statement.

3. Workman in his statement of claim stated that his initial appointment was made by party no.1 as a labourer on vacant post and he working continuously with party no.1 without any gap in service. In 1990 he was working for sweeping the office, attending the officers, serving the tea and water during the office hours. Initially he was paid Rs.154/- per day towards wages. On 20.10.2011 this amount raises up to 4000/- per month. The payment of wages was made on the basis of voucher not on muster roll. Despite working for more than 11 years management play unfair labour practice i.e. preparing vouchers for his payment in the name of other persons and compel to party no.2 workman signed in the name of another person with the alterim motive to avoid the benefit of permanency.

According to the workman he being a less educated person and with the fear in his mind of termination of his services, he followed the illegal directions of party no.1. He also requested the management to make him permanent but as a result his service came to terminated from 20.10.2011 without following the mandatory provisions of section 25-F, 25-G of I.D. Act. No notice was served to him. The retrenchment compensation was also not offered to him. So according to the workman his termination is illegal, arbitrary and contrary to the provision of law and he is entitled to be reinstated in service with full back wages in continuity.

4. The party no.1 filed written statement by denying measure important facts. According to the management the workman was engaged as contract labour in piecemeal basis for 11 to 12 months as Mali, Gardening and General cleaning of office for the amount mentioned therein. It was denied that he was worked for continuously. It was admitted that workman was performing the work of sweeping office, serving tea and water during the office hours. It is also admitted that the work was available in all time only during the office hours. It is also admitted that initially he was paid Rs. 154/- per day, thereafter, wages were increased from time to time on basis of list of latest rate of wages but it was denied that on the last date of termination of his service his wages was 4000/- per month. It was also admitted that party no. 1 pay the wages to the workman on vouchers not paying him on muster roll, despite working for more than 11 years, which amounts to unfair labour practice on behalf of party no.1. It was also admitted that party no.1 extracting work from the workman himself but preparing the vouchers for his payment in the name of other person, but it was denied by party no.1 compelling the workman to sign in the name of another person other than him with a ulterior motive to avoid him the benefit of permanency.

Party no.1 denied that the workman approached them that he was working continuously since past 11 years and not made permanent. It is also denied that no heed was paid to request of workman. It is also denied that party no.1 got annoyed with workman and as a result his services came to be terminated w.e.f. 20.10.2011 without following the mandatory provision of section 25-F and 25-G of I.D. Act. According to the management no notice or retrenchment[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1837 compensation is required to workman. It is also denied that his termination was illegal, arbitrary and contrary to the provisions of law. It is also denied that after termination of the services party no.1 has engaged another person to perform work of the workman. The question of having preferential right of the workman over the fresh appointee to perform the work prior to his termination does not arise. So party no.1 pray that as direction of the Hon'ble High Court this Tribunal any order as deem fit in the circumstances of the case and in interest of justice.

5. Workman filed rejoinder by stating that party no.1 gave the appointment of temporary status of mazdoor and station director had strongly recommended his name for engaging by granting T.S.M. status. Workman also asserted that he does work continuously for 11 years. According to the workman management admitted that all time work is available. According to him management without complying the due procedure of law terminated his services on 20.11.2011. He also prayed that management to reinstate his service from date on which his service was illegally terminated with full back wages and other consequential benefits.

6. Besides placing reliance on documentary evidence, both the parties led oral evidence to substantiate their respective stands. The workman examined himself as a witness in support of his case. In his examination-in-chief, which is on affidavit, the workman has reiterated the facts mentioned in the claim.

7. One Shri Harish Ramakant Wasnik an officer of the party no.1 has been examined as a witness on behalf of the party no.1. The evidence of this witness is also in the line of the stands taken in the written statement by party no.1.

8. Both the parties filed their written notes of argument.

9. Now I will discuss the legal facts of the case.

In support of the submissions, the learned advocate for the workman placed reliance on the decisions reported in Sandhya Vs. State of Maharashtra (SC) 2014, III CLR-17, Rajasthan State Sahakari Vs. Atal Bihari Bharadwaj (Rajasthan High Court 2017-IIICLR-480, Management of Dy. Director Vs. Chaitanya Sahani (Orissa High Court) and Resident Engr., RSRDC Vs. Judge Labour Court, Jaipur

(i) Whenever the termination of service of an employee/workman who has worked for a long period, is held to be illegal by the competent court/tribunal, he is entitled to not only the relief of reinstatement in service but also to regularisation in service, as per the Government Scheme or Resolution as the case may be.

(ii) It is a case of continuous employment and not one under different contracts but when his services were lastly dispensed with from 30.09.1995, he had admittedly worked for more than 240 days continuously in the preceding calendar year before his services were dispensed with.

Thus the court deems it appropriate that respondent apart from relief of reinstatement, is entitled to back wages to the extent of 25% for all these years.

While granting relief to the parties concerned the adjudicator has always consider the length of service put in by the workman, his current age as well as the long period the litigation is pending, financial soundness of the employer, etc.

(iii) It is settled principle that when competent judicial/quasi judicial authority, is of the opinion that termination of service of the workman, is illegal, the employee/workman is entitled to relief of reinstatement in service, or reasonable amount of compensation, considering the length of service he had put in, age of the workman, financial condition of the employer, etc.

10. Now I want to discuss the argument submitted by the advocate for the workman on basis of facts and evidence. He also pointed out some admission made by the management in his written statement and evidence. Now I want to point out these admissions:-

i) Party no.1 in his written statement admitted that the workman was engaged as contract labour on piecemeal basis for eleven to twelve months for the work of Mali, Gardening and General cleaning of the office.

ii) The workman was performing the work of serving the Tea and water to officer and staff during office hours. This work was available for all the time with party no.1. The party no.1 use to revise the rate of wages after every six months. The party no.1 extracted the work from the workman but prepare the vouchers for his payment in the name of other person.

Workman in his court statement admitted in para 7 that he was initially paid Rs. 154/- per day towards his wages. His name was not registered in the employment exchange. He had not filed any appointment letter which show that his engagement was against any permanent post. He did not file any document to show that he was getting Rs. 4000/- per month as wages. He also admitted that he was paid his wages on voucher basis. He also admitted that he did not file any document to show that he worked continuously for 21 years.

11. Now coming on document part:-

Document W-I dated 11.10.2004, W-II dated 07.12.2004 and W-III dated 07.05.2004, these are letters written by station officer Prasar Bharti Yavatmal to Director General All India Radio, New Delhi for workman appointment for temporary status mazdoor at AIR Yavatmal. Document W-VIII is written by Director General of All India Radio on 17.06.2012 regarding the workman's representation against his termination from services is intimated by this letter workman directly.

12. Management witness Mr. Harish Wasnik stated that the workman was working in this department from 1990 to 20.10.2011 as casual labour. He was not aware that workman did or did not work continuously for 240 days in each calendar year and what was the mode of payment. He was also not aware of any other appointed, in the place of workman in the department. On reading of his court statement it shows that he gave his statement on the basis of documents i.e. he don't have any personal knowledge.

13. On perusal of the records in my opinion the established facts are mentioned below:-

a) Management admitted that workman worked as casual labourer from 1990 to 20.10.2011 but he does not proved that he worked as full time worker for continuous 240 days in a calendar year.

b) Workman does not produce any document which shows his appointment and termination. In my opinion the burden of proof on these facts lies on the workman.

c) It is also disputed that payment of wages are on voucher or on muster roll. It is also admitted by the party no.2 that some time payment was made in the name of other person to the workman. It is also not prove that somebody was working in his place which indicates that there is clear and permanent vacancy.

d) Workman did not prove that he worked for 20 years continuously as a temporary or permanent worker. It is also not proved that there is a clear vacancy upon which he was appointed. It is also not proved that he apply for this post on advertisement basis or through employment exchange. He also does not prove that some recruitment procedure was followed or reservation quota was followed.

14. Workman advocate admitted that on 07.12.2018 the workman's age will be 60 years, but proof of the age is genuine in my opinion which was submitted by him during the argument marked C-1.

In case law--- Delhi Transport Corp. vs. Ombir Singh 2017 LLR 252, Hon'ble Lordship held that "Where principles of natural justice are not being complied with, then in such cases, compensation ought to be granted even if termination of service is found to be valid". On the basis of principle laid down in Engineering Laghu Udhyog Employees Union vs Judge, Labour Court and Industrial Tribunal & others – (2003) 12 SCC 1 in which it was held that:- "no difference whether the matter comes before the tribunal for approval under S.33 or on a reference under S.10 of the Industrial Dispute Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper." "A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper." The employer, thus, has got a right to adduce evidence before the Tribunal justifying its action, even where no domestic inquiry whatsoever has been held.

It will be open to the Tribunal to pay compensation even in a case where ultimately charges are proved, despite holding that the order of termination is valid for the reason that principles of natural justice have not complied with.

In the case law:- Management of Deputy Director, Agriculture, Kandhamal Range, Phulbani Vs. Chaitanya Sahani 2017 II CLR 841 it was held that:- "It is settled that in case of temporary or daily wagers, the order for reinstatement in service can only be passed in exceptional circumstances and the normal rule is to compensate the workman by way of making payment of lump sum compensation in case of violation of Section 25-F of the Industrial Disputes Act, 1947."

15. Judging the present case in hand with the touch stone of the principles as mentioned above, it is found that law is well settled that where principles of natural justice were not complied with then in such cases compensation out to be granted because termination of the services in my opinion is valid.

16. In view of the discussion made above and the materials on record, it is found that there is no scope to interfere with the order punishment of dismissal from services past against the workman. Hence, it is ordered:-

ORDER

The action of the management of AIR, Yavatmal (MS) in terminating services of Shri Himmat

Uttamrao Kute and denying him to a suitable post in AIR, Yavatmal is legal and justified. But due to lack of

procedure in termination from services and the mode of payment adopted to the workman the workman is

entitled for Lumpsum compensation of Rs. 1,00,000 (Rupees One lakh only) from party no.1 in lieu of

reinstatement which is payable within one month from the publication of this award in official gazette, failing

which, the amount due to the workman will carry interest of 6% per annum from the date of due to the

workman to the date of actual payment of the amount to the workman. The workman is not entitled for any

other relief.

SHYAM SUNDAR GARG, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 422422422422....————औद्यौगिक विवाद अिधिनयम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, मुख्यमुख्यमुख्यमुख्य स्टा स्टा स्टा स्टाफ अिधकारीफ अिधकारीफ अिधकारीफ अिधकारी,,,, पSिमी नौसेना कमानपSिमी नौसेना कमानपSिमी नौसेना कमानपSिमी नौसेना कमान,,,, मु ंबई और अन्यमु ंबई और अन्यमु ंबई और अन्यमु ंबई और अन्य के प्रबंधन के प्रबंधन के प्रबंधन के प्रबंधन एवं उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और उनके

ंबईमु ंबईमु ंबईमु ंबई,,,, के कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालय यालय यालय यालय नंनंनंनं.... II, मु पंचाट ((((संदर्भसंदर्भसंदर्भसंदर्भ संख्यासंख्यासंख्यासंख्या 02/2016 02/2016 02/2016 02/2016)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 13.2.2018 को प्राप्त Fआ था ।

[सं. एल-14011/22/2015-आईआर (डीयू)]

राजें- जोशी, उप िनदेशक

New Delhi, the 28th February, 2018

S.O. 422.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (ID No. 02/2016) of the Central Government Industrial Tribunal-cum- Labour Court No. II, Mumbai as shown in the Annexure, in the Industrial Dispute between the employers in relation to the Management of Chief Staff Officer, Western Naval Command, Mumbai & Other and their workmen, which was received by the Central Government on 13.02.2018.

[No. L-14011/22/2015-IR (DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.2, MUMBAI

PRESENT

M. V. Deshpande

Presiding Officer

REFERENCE NO.CGIT-2/2 of 2016

EMPLOYERS IN RELATION TO THE MANAGEMENT OF

(1) CHIEF STAFF OFFICER (P&A) WESTERN NAVAL COMMAND

(2) THE CCPO, HQ, WESTERN NAVAL COMMAND

The Chief Staff Officer (Personnel & Admn.),

Western Naval Command, Headquarters,

Shoorji Vallabhdas Road,

Ballard Estate,

Mumbai – 400 038.

The CCPO, Headquarters,

Western Naval Command, Headquarters,

Shoorji Vallabhdas Road, Ballard Estate,

Mumbai – 400 038.

AND

THEIR WORKMEN

The Secretary,

Rashtriya Raksha Karamchari Sangh,

06-C, Islami Building, Dhobiwada Road,

Jacob Circle, Mahalaxmi [E],

Mumbai – 400 011.

APPEARANCES:

FOR THE EMPLOYER : Mr. A.K. Roy,

Advocate

FOR THE WORKMEN : Mr. Ombir Yadav,

Representative Mumbai, dated the 8th December, 2017

AWARD

1. 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-14011/22/2015 – IR (DU) dated 29.12.2015. The terms of reference given in the schedule are as follows :

"Whether letter No. CPT (JCM)/3543/BMPS dated 08.08.2014 issued by Smt. R.A. Sehgal, PD, DCPS, Integrated Headquarters of Ministry of Defence (Navy), and the action of the management of HQ Western Naval Command Mumbai in dealing with the faction of Rashtriya Raksha Karamchari Sangh led by Shri Ravindra Yadav for all official purposes is amounting to violation of Section 25T read with Clause 2 (a) and Clause 3 of Fifth Schedule of ID Act, 1947 ? If so, what relief the Rashtriya Raksha Karamchari Sangh faction led by Shri Ombir Yadav is entitled to ?"

2. After the receipt of the reference, both the parties were served with the notices. They appeared through their respective representatives.

3. Second party union filed statement of claim Ex.4. It is the case of the second party union that Rashtriya Raksha Karamchari Sangh hereinafter referred as RRKS is a trade union registered under Indian Trade Unions Act, 1926 with the Registrar of Trade Union on 23.5.2000. The constitution of the said union was also approved by the Registrar. As per the said constitution any person who is employed in the units of Headquarter of Western Naval Command, Mumbai and who has attended the age of 18 years shall be entitled to become an ordinary member. In the said constitution there is provision of granting the Honorary membership to the member who is not eligible to become the ordinary member and the maximum number of Honorary member shall not exceed 4. There is provision under the said constitution that the union shall have President, Vice President, one General Secretary, one Joint Secretary, 5 Secretaries, one Treasurer and 12 Organising Secretaries. As per constitution, union shall have its managing committee of members upto 100 including office bearers who are elected with simple majority in the Annual General Meeting of the union for the 2 years and the entire affairs of the union will be conducted by the Managing Committee. As per the provisions, General Body Meeting has to be called by the President or General Secretary of the union. If any office bearers or members of the Managing Committee is to be removed, he is to be removed in general meeting by simple majority if it is found that he has committed any fraud or acted against the interest of the union.

4. It is also the case of the union that Ombir Yadav who is founder President of the union issued a notice calling a special meeting of the Managing Committee on 28.3.14 and agenda of the said special meeting was to decide the continuation of the affiliation of Bhartiya Mazdoor Sangh to which the RRKS union was affiliated earlier. In the said meeting dated 28.3.14, Ravindra Yadav, A. Raturi and 5 others had entered forcefully and made lot of shouting and behaved in indecent manner and therefore the President decided to adjourn the meeting and it was decided to hold an annual general meeting on 15.4.14. Accordingly, notice was given on 31.3.14 along with agenda of the said meeting. One of the agenda of the said meeting was to take action against the members against whom show cause notice was issued asking their explanation as to why the action should not be taken against them for committing anti-union activities in the meeting held on 28.3.14. In the meeting on 15.4.14 Resolution No.1 was passed whereby Shri Jogendra Pratap Singh, General Secretary, Yogendra Kumar, Vice President , Jayprakash Kadian and Shiv Kumar Singh were expelled. Thereafter RRKS union by its letter dt. 16.4.14 informed the Flag Officer Commanding – in – chief, WNC, Mumbai about the decision in the said general meeting. The registrar of the trade union was also informed / intimated regarding the change of office members of the union and decision taken in the annual general meeting held on 15.4.14.

5. It is also the case of the union that the Registrar of the trade union accepted the resolution passed on 15.4.14 by General body meeting and accordingly amended the constitution of RRKS. However, on 29.4.14, meeting was called[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1841 by Shri Jogendra Pratap Singh and in the said meeting Shri Dyaneshwar Ragunath Shinde, Uttam Singh, Sayed Sajjad Haider Taqvi and Sukesh Kumar Singh were removed as office bearers of the union. So according to the second party union, Shri Jogendra Pratap Singh was already expelled from the primary membership as per Resolution in General Body meeting dt. 14.4.14 and he has no legal right to hold or call any annual general meeting in the name of RRKS. Even General Secretary of the RRKS wrote letter dt. 9.6.14 to the Registrar of the Trade union explaining entire constitutional process of expulsion of Shri Jogendra Pratap Singh and others from the union and the Registrar of the Trade union examined the issues in detail and have decided to accord requisite amendment in constitution in accordance with the proceedings of annual general meeting of the union held on 15.4.14.

6. It is alleged by the union that the management despite of the situation issued a letter No. CPT[JCM]/3543/BPMS dated 8.8.14 addressed to the Flag Officer Commanding – in – chief for CSO [P&A], Head quarter, WNC, Mumbai authorizing the removed office bearers for functioning of RRSK without having any role and jurisdiction which is also violation of Trade Unions Act. The management thereby extended undue favour for dealing with the faction of RRKS led by Ravindray Yadav for all official purposes vide letter dt. 25.8.14 and it amounts to unfair labour practices under section 25 (T) read with section 2 [ra] and clause 2 and clause 3 of the Fifth Schedule of I.D. Act. The said letter is illegal and contrary to law. Second party union therefore wrote letter dt. 22.8.14 to the management and protested the letter issued by the management on 8.8.14. Again union has sent letter dt. 28.8.14 asking the management to withdraw the letter written by them and again made a request to the management by letter dt. 27.11.14 to withdraw the said letter. However, the management of the first party did not take cognizance of the request of the union. Union therefore raised the industrial dispute before ALC who submitted the report to appropriate government for necessary action stating that it is an industrial dispute under section 2 [k] of I.D. Act. Hence this reference.

7. First party management resisted the claim by filing written statement Ex.7. It is the contention of the management that in 2014 dispute has emerged among the members and office bearers of the union and thereby the second party union is bifurcated into two factions. First group seems to be represented by Shri Ombir Yadav and others and second group seems to be represented by Shri Ravindra Yadav and others. The reference has been made at the instance of first group led by Shri Ombir Yadav and so far first party is concerned, it is neutral party in this dispute.

8. It is also a case of the management that it has received a letter from both the factions making various allegations against each other. Therefore, the matter was first examined at the Mumbai head quarter and then forwarded to higher authorities at Integrated HQ, Ministry of Defence [Navy], New Delhi with all the letters received by the management from the factions. By its letter No. CPT[JCM]/3543/ BPMS dated 8.8.14, Integrated HQ, Ministry of Defence [Navy] directed that in accordance with the provisions, it was decided to accord concurrence to the faction led by Shri Ravindra Yadav as such the said faction was to be dealt with in future for all official purposes concerning the workmen. The said decision was taken in accordance with the 'dispute resolution guidelines' previously adopted by 3 trade federations namely All India Defence Employees Federation, INDWF & BPNS in a joint conference with defence authorities. All these guidelines were circulated in the letter from adjutant General's branch, IHQ, MoD [Army]. It is thus contention of the management that the reference is contrary to the directions of the Hon'ble Bombay High Court in civil revision application No. 69 of 2015 and therefore it is liable to be dismissed for non-joinder of necessary parties.

9. It is also a contention of the first party that the decision of the first party management to accord concurrence to faction led by Shri Ravindra Yadav for dealing with all purposes concerning labour issues is based on the directions of the higher authority namely Integrated HQ, Ministry of Defence [Navy] and there is no violation of the provisions of the trade union act or any labour law. No undue favour has been granted to the office bearers or the members of RRSK or any faction of the union. No unfair labour practices have been knowingly adopted by the first party management. Management has never interfered in the business of trade unions act and acted only as per the advice and guidelines of respective competent authorities and as such the tribunal has no jurisdiction to entertain the reference. It has thus sought the dismissal of the reference.

10. Following issues are framed at Ex.13. I reproduce the issues along with my findings thereon for the reasons to follow:

Reasons

Issue No.1.

11. So far contention go, it is the case of the second party union that during the Annual General Body Meeting of the union held by them on 15.4.14, they have removed some of the office bearers of the union and changed their office address as well as dis-affiliated from BMS Federation and communicated the same to Chief Personnel, Integrated Head quarters of Ministry of Defence [Navy]. In view of that, it is the case of the first party that the matter was examined by Mumbai Head quarters of Western Naval Command and forwarded to Integrated Head quarters of Ministry of Defence, New Delhi seeking necessary directions in the matter in particular regarding recognition of one of the factions because according to the first party due to dispute within the union there were two factions and the first party has received letter from both the factions of union on various allegations against each other. It is thus contention of the first party i.e. Integrated Head quarters of Ministry of Defence [Navy] vide letter No. CPT [JCM]/3543/ BPMS dated 8.8.2014 has communicated that in accordance of extent provisions it was decided to accord concurrence to the faction led by Shri Ravindra Yadav, RRKS which is backed by BPMS Federation who may dealt with in future for all purposes and this communication was conveyed in consonance with dispute regulation, guidelines adopted by AIDEF, INDWF and BPMS as brought out in IHQ of MOD[Army], AG's branch letter.

12. The question is whether the first party has authority / power to take such decisions authorizing one faction of the group of union to deal with in future for all official purposes or otherwise it is a violation of section 25 (T) read with classes 2 (a) and 3 of 5th Schedule of I.D. Act, 1947.

13. So far legal position is concerned, Registrar under the provisions of Trade Unions Act, 1926 is the authority charged with the duty of administering the provisions of the act. Power of the Registrar in this regard are dealt with in section 28 of the act which relates to filing of returns. Under section 28(i), a general statement has to be submitted annually to the Registrar duly audited for all receipts and expenditures of every registered trade union for the relevant period. Under sub section 2 together with general statement, the Registrar has to inform through a statement of all changes of office bearers made by the trade unions during the year to which the general statement refers. Sub section (2) of section 28 of the act provides as follows.

"(2) Together with the general statement there shall be sent to the Registrar a statement showing all changes of office bearers made by the Trade Union during the year to which the general statement refers together as with a copy of the rules of the Trade Union corrected up to the date of the dispatch thereof to the Registrar."

Sub section (4) of section 28 of the act provides as follows.

"(4) For the purpose of examining the documents referred to in sub-section (1), (2) and (3), and Registrar, or any officer authorized by him by general or special order, may at all reasonable times inspect the certificate of registration, account books, registers and other documents relating to a Trade Union, at its registered office or may require their production at such place as he may specify, in this behalf, but no such place shall be at a distance of more than ten miles from the registered office of a Trade Union."

14. The provisions of section 28(2) of the act indicate that the statement showing all changes of the office bearers made by the Trade Union during the year has to be sent to the Registrar together with general statement containing receipts and expenditures during the year. Under sub section (4) the Registrar is empowered to inspect annually the registers and other documents relating to the Trade Union for the purposes of examining the documents referred to sub- section (1), (2) and (3). It appears that second party union is a recognized union registered under the Indian Trade Union Act, 1926 with the Registrar of the Trade Union on 23.5.2000 and therefore the second party workman has informed to the Registrar of the Trade Union regarding office members of the union and decision taken in the annual general meeting held on 15.4.14 and the Registrar of the Trade Union accepted the resolution passed on 15.4.14 by general body meeting.

15. But then the fact remains that as per legal position, Registrar of the Trade Union does not possess any adjudicatory power to resolve election disputes. Under sub section (4) of section 28, he has the power to inspect among other things, the registers and other documents relating to the Trade Union for the purposes of examining the documents which are referred to in sub sections (1), (2) and (3). This however, does not convert the function of Registrar under section 28 of the act into that akin to judicial or quasi-judicial matter. These are the observations which I borrow from the decision in case of Choudhry Rajkumar Singh & Anr. V/S. State of U.P. & 3 Ors. in case of special appeal defective No. 264 of 2015 wherein it is held that all the disputed questions of the fact in regard to validity of the elections can be resolved by civil suit.

16. It is held in the decision in case of Bhokaro Steel Workers Union and Anr. V/S. State of Bihar & Ors. – 1995 O Supreme (PAT – 91) that the Registrar of the Trade Union could hardly assume the power to advise the employer or the officials of labour department to recognize and treat any particular person as having the right to represent the union. Obviously, therefore the enquiry made for the purposes of section 28 (2) was administrative in character and did not finally adjudicate the claims of the parties and in respect of the dispute between the members of the union or in respect of election of Trade Union remedy is of civil suit.

17. In view of that it appears that the first party management has referred the matter to the office of DLW Commissioner [C] Naval Dockyard, Mumbai for expert legal opinion since the matter pertains to the labour laws. The DLW [C] has examined the matter and submitted the note sheet on 3.9.14 to the management having noted that such matters are infact very complicated and cannot be decided by executive authorities. This is due to fact that Trade Union Central Act is silent about the same. Moreover, provisions of section 28 (1)(a) of Trade Union act, 1926 may also be referred which is inserted by Maharashtra Act No. 3 of 1969.

18. So far legal opinion is concerned, it was noted by DLW in his office note that it is only the civil court who can decide such disputes and in the light of above facts this office i.e. the management is not in a position to express any opinion being an advisory body. It appears that inspite of legal opinion given by DLW Commissioner [C], Naval Dockyard, Mumbai, the first party has issued letter dated 8.8.14 and decided to accord concurrence to the faction of one group which may be dealt with in future for all official purposes. This is in violation of legal provisions and also amounts to violation of section 25 (T) read with clause 2 (a) and clause 3 of 5th Schedule of I.D. Act, 1947.

19. Learned Counsel for the first party submitted that the second party union has concealed the fact in respect of civil litigation between the two factions of union and then as per order of Hon'ble High Court in civil Revision application No. 69 of 2015, the order of Trial Court dated 23.12.14 is quashed and set aside and the suit came to be dismissed as not maintainable. It appears on going through the copy of the said Revision application that the said litigation was in between the two groups of union wherein the first party was not the party and the impugned letter issued by the first party was not an issue. On the contrary, Shri MG Nair witness of the first party has admitted in his cross examination that the management referred the contested matter to Dy. Labour Welfare Commissioner, Naval Dockyard, Mumbai for expert opinion who advised the first party and gave legal opinion in that respect. He also admits that even thereafter management has received the letters from the second party union dated 27.9.14 and 5.1.15 but said letter dated 8.8.14 was not withdrawn. In view of this it can be observed that knowingly thorough well about the legal position, the first party management issued the letter dated 8.8.14 in violation of section 25 (T) read with clause 2 (a) and 3 of 5th Schedule of I.D. Act, 1947. The issue No. 1 is therefore answered accordingly in the affirmative,

Issue No. 2.

20. As per order on Ex.8, the first party No.3 held to be necessary party that order has not been challenged. Issue No.2 is therefore answered accordingly in the negative. As such the reference is not bad for non-joinder of necessary parties.

Issue No. 3 & 4.

21. In view of my findings to Issue No.1, it is declared that the letter No. CPT[JCM]/ 3543/BPMS dated 8th August 2014 is without jurisdiction and is amounting to violation of existing provisions of law. In view of that, I pass the following order.

ORDER

(i) Reference is allowed with no order as to costs.

(ii) It is declared that letter No. CPT[JCM]/ 3543/BPMS dated 8th August 2014 and the action of the management of IHQ, Western Naval Command, Mumbai in dealing with the faction of RRSK led by Shri Ravindra Yadav for official purposes is in violation of existing provisions of law.

Date: 08.12.2017

M.V. DESHPANDE, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 423423423423....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

राष्ट्रीराष्ट्रीराष्ट्रीराष्ट्रीय जूट मैन्युय जूट मैन्युय जूट मैन्युय जूट मैन्युफै क्चफै क्चफै क्चफै क्चVरंग कारपोरेशन लिमिटेड का प्रबंधनVरंग कारपोरेशन लिमिटेड का प्रबंधनVरंग कारपोरेशन लिमिटेड का प्रबंधनVरंग कारपोरेशन लिमिटेड का प्रबंधन एवं उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के

बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालय नंयालय नंयालय नंयालय नं....1111 धनबादधनबादधनबादधनबाद,,,, के पंचाट ((((संदर्भसंदर्भसंदर्भसंदर्भ

संख्यासंख्यासंख्यासंख्या 55552/2012/2012/2012/2013333)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 12.1.2018 को प्राप्त Fआ था ।

[सं. एल-42011/113/2013-आईआर (डीयू)]

राजें- जोशी, उप िनदेशक1844 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

New Delhi, the 28th February, 2018

S.O. 423.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (ID No. 52/2013) of the Central Government Industrial Tribunal-cum- Labour Court-I, Dhanbad as shown in the Annexure, in the Industrial Dispute between the employers in relation to the Management of National Jute Manufacturing Corporation Ltd. and their workmen, which was received by the Central Government on 12.01.2018.

[No. L-42011/113/2013-IR (DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947.

Reference: No.52/2013

Employer in relation to the management of National Jute Manufacturing Corporation Ltd.

AND.

Their workmen.

Present : Shri R.K.Saran

Presiding Officer.

Appearances:

For the Employers : None

For the workman. : Shri K.P.Singh, Adv

State : Jharkhand. Industry- Textile

Dated- 08/01/ 2018

AWARD.

By order No. L-42011/113/2013-IR (DU) dated 28/10/2013, the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub –section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of National Jute Manufacturing Corporation Limited is

erroneous in denying any wage- structure to its mill workmen /employees for such a long period and

why should it not do the same within a fixed time period?"

2. The case is received from the Ministry of Labour on 20.12.2013. After receipt of reference, both Parties are noticed, The workman files their demand on 23.01.2014 which is accepted by workman as written statement After long delay the management files their written statement-cum-rejoinder on 27.02.2015. thereafter rejoinder and document filed by the parties. No witness examined on behalf of the management but four witnesses produced by the workmen, but none is present to cross examined the withness by the management. Case is proceed ex-parte. But document of both side is marked as W-1 to W-03.

3. The group of workmen files an application for giving them adquate wage as that of other workmen of but inspite of due notice the representative of the management appears, but subsequently did not attend the court. The workmen files their claim and documents and examined four witnessess alongwith union representatives as witnessess. The documents clearly show that they were working under the Mill management .The PF. Slip , ESI paper, and election duty paper of workmen also filed.

4. On the other hand the case of the management is that the only dispute is adjudication of the justification of denial of wage structure for a long period and if not justified then a direction to the NMJC for providing a wage structure within a fixed time period . It is well settled that the authority has to confine only to the term of reference while adjudicating the dispute . No other dispute/demand is a subject matter of this reference case.

5. It is furether submitted by the management that the R. B.H.M was a private limited company initially. The Central Govt. in the year 1978 took over this mill along with few other under the provision of Indstries Act 1951. Thie mills were closed at the time of take over. After consideration of investigation reports feasibility reports etc, if was found[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1845 viable in public interst to nationalise this mill olong with four other jute mill. The mills were nationalised under the provision of the jute companies ( Nationalisation) Act 1980. There after the company namely jute Manufacturers Corporation Limited was also registered under the companies Act 1956. The Central Govt. under section 6 of the jute companies Act directed vesting of RBHM and other four companies in NJMC Limited.

6. At present NJMC has under control six units including RBHM . However presently only 3 mills are operative 2 in Kolkata and 1 in Katihar RBHM.The RBHM was referred to BIFR on 11.08.92 under Section 15 (1) of SICA 1985 to declare it for sick unit and necessary revical package was sent for the Board BIFR on 07.06.1993 declared the RBHM as sick unit under section 3(1)(o) of SICA Act and appointed IDBI as operating agency under section 17 (3) of the Act and directed to formulate scheme for revival of same.

7. On 24.03.2004 the mill was completely closed due to continued heavy losses, disconnection of power , heavy wastage of manpower etc. The BIFR passed order for winding up of RBHM which is set-aside and passed direction for revival. Keeping in view a scheme for voluntary retirement of the employees RBHM was announced, since production was totally stopped for 2004 . The voluntary retirement scheme dues will be cleared to workmen in 2007 . Staff and supervisors in 2009 and officers etc in 2011.

8. It is furether submitted by the management that ultimately a decision was taken by Ministry of Textile to run the mill by outscoucing and giving the entire operation of the mill to contractor . In view of that contractor by virtue of an agreement it was given the responsibility to supply staff and security personnel etc. to run the factory and the salary/wages ect of such employee were to be paid by the contractor. This contractor was duly licensed under contract Labour Act. Hence the contactor is responsible for the service condition of such employees and it was the pay master for them. For all purpose the contractor was the employer and RBHM/NJMC were not directly responsible.

9. It is further submitted by the management that in other jute mill of NJMC or even under private sector the salary wages paid to the employees are consolidated whenever there is any increase is their some amount is added into the consolidated wage. There is no wage scale in any jute factory in the reason nor it is of any benefit to the employeees concerned. As such employees of RBHM are neither entitled for any increase of wage nor any direction was required to frame any wage scale.

10. On perusal of all the documents as it appears, the documents are unchallenged, photocopies of the documents of the jute mill and insureance papers , PF papers and identity cards. The workmen witnesses have clearly stated that they are the contract workers. There is no doubt to disbelieve those documents. Hence it is ordered that the concerned workmen be immediately taken in job, as contract labourer and pay them wages as prescirbed rate of Government within one month from the publication of the award in the gazette.

This is my award.

R. K. SARAN, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 424424424424....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

महाप्रबंधकमहाप्रबंधकमहाप्रबंधकमहाप्रबंधक,,,, आयुध कारखाने संस्थाआयुध कारखाने संस्थाआयुध कारखाने संस्थाआयुध कारखाने संस्थान शिक्षण का स्थान शिक्षण का स्थान शिक्षण का स्थान शिक्षण का स्थानननन,,,, अम्बाअम्बाअम्बाअम्बाझरीझरीझरीझरी,,,, नागपुरनागपुरनागपुरनागपुर एवं उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और

उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालययालययालययालय,,,, नागपुरनागपुरनागपुरनागपुर के

पंचाट ((((CGIT/NGP/67/2013)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 08.02.2018 को प्राप्त Fआ था ।

[सं. एल-14011/09/2013-आई.आर. (डीयू)]

राजें- जोशी, उप िनदेशक

New Delhi, the 28th February, 2018

S.O. 424.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (CGIT/NGP/67/2013) of the Central Government Industrial Tribunal- cum-Labour Court, Nagpur as shown in the Annexure, in the Industrial Dispute between the employers in relation to the General Manager, Ordnance Factories Institute of Learning, Ambajhari, Nagpur and their workmen, which was received by the Central Government on 08.02.2018.

[No. L-14011/09/2013-IR (DU)]

RAJENDRA JOSHI, Dy. Director1846 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

ANNEXURE

BEFORE SHRI S.S. GARG, PRESIDING OFFICER, CGIT-CUM-LABOURT COURT, NAGPUR

Case No.CGIT/NGP/67/2013 Date: 09.01.2018.

Party No.1 : The General Manager,

Ordnance Factories Institute of

Learning, Ambajhari,

Nagpur-440021.

Versus

Party No.2 : The General Secretary,

Ordnance Factory Contractors' Employees Union, 39-C, Sadachar Griha Nirman

Society, Duttawadi, Wade,

Nagpur-440023.

AWARD

(Dated: 09th January, 2018)

In exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of section 10 of Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in short), the Central Government has referred the industrial dispute between the employers, in relation to the management of Ordnance Factory Ambajhari Nagpur and their union "Ordnance Factory Contractor's Employees Union," for adjudication, as per letter No.L-14011/09/2013-IR (DU) dated 30.08.2013, with the following schedule:-

"Whether the action of the management of Ordnance factories Institute of Learning, Ambajhari,

Nagpur in depriving the contract labours employed through various contractors from the payment of

house rent allowance in accordance with the provisions of the Maharashtra Worker's Minimum House

Rent Allowance Act, 1983 is fair and legal? To what relief the workmen are entitled to?"

2. On receipt of the reference, the parties were noticed to file their respective statement of claim and written statement and accordingly, the union, Ordnance Factory Contractor's Employees Union, ('the Union" in short), filed the statement of claim and the management of Ordnance Factories Institute of Learning, Ambajhari, Nagpur ("Party No. 1" in short) filed their written statement.

According to the union claimants were contract labours working in Ordnance Factory as well as Ordnance Factories Institute of Learning. That Institute was imparting and vocational training to the officers/supervisors/ employees of Ordnance Factory and was an integral part of Ordnance Factory. Their union duly registered under the Trade Union Act and Party no.1 was factory registered under the Factories Act and it was an industry within the meaning of I.D. Act 1947. They were governed by Central Civil Service Rules. It is also mentioned that OFIL and Ordnance Factory are situated at same premises. According to the union, it is one unit for the purpose of Factory Act as well as Industrial Dispute Act. In OFIL, around 33 contract labours were employed.

3. Contractor engaged by OFIL was required to obtain license and each contractor was also registered under Bombay Shops and Establishment Act, 1948. According to the union, contract labours were employed in core as well as non- core activities, which are perennial in nature. The contractors were merely commission agents. The workers were direct employees of the OFIL because entire arrangement of contract labours instead of regular labour amount to shame and bogus contract.

4. According to the union workers were paid wages and also deduct EPF and ESIC. According to the union primary responsibility of payment of wages to the contract labours was on contractor and same will be paid by the management but wages payable to the workmen, shall not be less than minimum wages prescribed by the Government. According to the union Maharashtra Workmen's Minimum House Rent Allowance Act, 1983 was applicable to the workers engaged by Party no.1 because factory management did not provide housing accommodation.

5. According to the union, several times they prayed to the management but management did not agree, so by filing statement of claim, they prayed that, their worker were entitled to House Rent allowance from the date of their respective appointment and they also pray that answer of reference in favour of union and also pray for other relief.

6. On the contrary, management by filing the written statement denied that contract labours were entitled for House Rent Allowance from the date of their respective appointment. They also denied that workers did indulge in trade union activities. According to them they were not employed by OFIL. OFIL is imparting training to the officers as well as other employees of Ordnance Factory. It is also denied that, it was an integral part of Ordnance Factory.

7. According to the management, no HRA was paid to the contract labours because RLC Nagpur was also not mentioning in the notification regarding the wages. Contract labours were doing a work of sweeping, cleaning and gardening. It is also denied that contract employees were direct employee of OFIL.

8. According to the management, OFIL is neither an industry nor comes in preview of factory, so Maharashtra Minimum House Rent Allowance Act, 1983 is not applicable. Party No. 1 also prayed that, this reference is liable to be dismissed.

9. Union also filed rejoinder by asserting this fact that, Maharashtra Act of Minimum House Rent Allowance was applicable to their workers. They also asserted that allegation in the Written statement was denied. So they prayed that in the interest of justice this Tribunal is awarded House Rent Allowance.

10. Both parties lead evidence. On behalf of the union, Shri P.K. Mohanan was examined as union witness. By supporting his statement of claim as a General Secretary of Union, asserted that no resolution was passed by the union to expose the dispute on behalf of the workmen. He also admitted that, claimants were contract labours. He also admitted that, he has not filed any document to show that, their union is recognized by the employer. It was also admitted that OFIL is Training Institute and separate from Ordnance Factory. After perusal of the statement of the witness, it appears to me that, claimants were contract labours and not employed by the Party No. 1.

11. On behalf of the management, Mr. V. Maruti was examined as management witness. He holds the post of Dy. Director of OFIL. He asserted that, HRA is not a part of minimum wages. According to the witness, contract labours are not being paid the HRA. The OFIL is not dealing with the contract labours but contractors used to pay the wages, which were checked by OFIL.

After reading the statement, my opinion is that, he asserted correct facts, which are based on records. I feel, he is giving correct and genuine statement. Nothing is shown that, he prejudices any claimant of Party no.2. Now we come to the legal position.

12. The Section 13 of The Maharashtra Workmen's Minimum House Rent Allowance Act, 1983 provides the power of State Government to exempt in special cases. In exercise of these powers Maharashtra Government issued notification in official gazette dated 26.12.1990 which runs as follows:-

"In exercise of the powers conferred by sub-section (i) of Section 13 of the Maharashtra Workmen's Minimum House- rent Allowance Act, 1983 (Mah XXIII of 1988), the Government of Maharashtra, being satisfied that it is just and proper so to do in the public interest, hereby directs that, with effect from 1st January, 1991, the provisions of the said Act shall not apply to the factories and establishment in the industries:-

(a) Carried on by or under the authority of any Department of the Government of India; and

(b) The management of which has been taken over by the Government of India under any law for the time being in force.

13. Case laws:- Union of India through Secretary Ministry of Defence vs. M.M. Rangari, Ordnance Factory Chandrapur and others, 2011 III CLR-800(Bombay High Court) and Dr. Ajay Choudhary Vs. Government of NCT Delhi, 2001 LIC 3847 in which following principles were laid down :-

(i) In Nagpur city without obtaining "No Accommodation Certificate" from the authority concerned, any government servant including defence employees, is not entitled to HRA; (ii) Unless a binding law or specific Regulation governing is pointed out for payment of HRA , respondents are not entitled to claim the same, (iii) Impugned order is unsustainable and hence quashed and set aside.

There is a Government Circular that no Government servant availing Government accommodation is entitled to claim House Rent Allowance. In view of the same, the junior and senior resident Doctors who are availing Government accommodation are not entitled to benefit of House Rent Allowance.

14. Judging the present case in hand with the touch stone of the principles as mentioned above, it is found that, law is well settled that, Section 4 of the Maharashtra Workmen's Minimum House-rent Allowance Act, 1983, is not applicable to party no.1 in regards to contract labours working in factory because Maharashtra Govt. notification dated 26.12.1990 in which Central Government Industries were exempted from HRA provisions of this Act. So the reference is answered in negative. Hence, it is ordered:

ORDER

The action of the management of Ordnance factories Institute of Learning, Ambajhari, Nagpur in

depriving the contract labours employed through various contractors from the payment of house rent allowance

in accordance with the provisions of the Maharashtra Worker's Minimum House Rent Allowance Act, 1983 is

fair and legal. The workmen are not entitled to any relief.

S. S. GARG, Presiding Officer1848 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 425425425425....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, महाप्रबंधकमहाप्रबंधकमहाप्रबंधकमहाप्रबंधक,,,, आयुध निर्माणीआयुध निर्माणीआयुध निर्माणीआयुध निर्माणी,,,, अम्बाअम्बाअम्बाअम्बाझाझाझाझारीरीरीरी,,,, नागपुर नागपुर नागपुर नागपुर एवं उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालय नागपुरयालय नागपुरयालय नागपुरयालय नागपुर,,,, के पंचाट ((((CGIT/NGP/49/2013)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 08.02.2018 को प्राप्त Fआ था ।

[सं. एल-14011/07/2013-आई आर (डीयू)]

राजें- जोशी, उप िनदेशक

New Delhi, the 28th February, 2018

S.O. 425.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (CGIT/NGP/49/2013) of the Central Government Industrial Tribunal- cum-Labour Court, Nagpur as shown in the Annexure, in the Industrial Dispute between the employers in relation to the General Manager, Ordnance Factories Ambajhari, Nagpur and their workmen, which was received by the Central Government on 08.02.2018.

[No. L-14011/07/2013-IR (DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

BEFORE SHRI S.S. GARG, PRESIDING OFFICER, CGIT-CUM-LABOURT COURT, NAGPUR

Case No.CGIT/NGP/49/2013 Date: 09.01.2018.

Party No.1 : The General Manager,

Ordnance Factory Ambajhari,

Nagpur-440021.

Versus

Party No.2 : The General Secretary,

Ordnance Factory Contractor's Employees Unit, Sirsat Niwas, Plot no. 67, Navneet Nagar, Wadi, Nagpur-440023.

AWARD

(Dated: 09th January, 2018)

In exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of section 10 of Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in short), the Central Government has referred the industrial dispute between the employers, in relation to the management of Ordnance Factory Ambajhari Nagpur and their union "Ordnance Factory Contractor's Employees Union," for adjudication, as per letter No.L-14011/07/2013-IR (DU) dated 02.09.2013, with the following schedule:-

"Whether the action of the management of Ordnance Factory, Ambajhari, Nagpur in depriving the

contract labours employed through various contractors from the payment of house rent allowance in

accordance with the provisions of the Maharashtra Worker's Minimum House Rent Allowance Act,

1983 is fair and legal? To what relief the workmen are entitled?"

2. On receipt of the reference, the parties were noticed to file their respective statement of claim and written statement and accordingly, the union Ordnance Factory Contractor's Employees Union, ('the Union" in short), filed the statement of claim and the management of Ordnance Factory Ambajhari Nagpur ("Party No. 1" in short) filed their written statement.

According to the union claimants were contract labours working in Ordnance Factory. Their union duly registered under the Trade Union Act and Party no.1 was factory registered under the Factories Act and it was an industry within the meaning of I.D. Act 1947. In this industry workers were categorized as Industrial and non- industrial employees. They were governed by Central Civil Service Rules. Party no.1 had been manufacturing various[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1849 defence components as well as equipments and in factory around 1000 contract labours were employed. The work being done by contract labours was of regular nature.

3. Contractor engaged by Ordnance Factory was required to obtain licence and each contractor was also registered under Bombay Shops and Establishment Act, 1948. According to the union contract labours were employed in core as well as non-core activities which are perennial in nature. The contractors were merely commission agents. The workers were direct employees of the Ordnance Factory.

4. According to the union workers were paid wages and also deduct EPF and ESIC. According to the union primary responsibility of payment of wages to the contract labours was on contractor and same will be paid by the management but wages payable to the workmen shall not be less than minimum wages prescribed by Government. According to the union Maharashtra Workmen's Minimum House Rent Allowance Act, 1983 was applicable to the workers engaged in Party no.1 because factory management did not provide housing accommodation.

5. According to the union several times they pared to the management but management did not agree, so by filing statement of claim they prayed that their worker are entitled to House Rent allowance from their dates of respective appointment and they also pray that answer of reference in favour of union and also pray for other relief.

6. On the contrary management by filing the written statement denied that contract labours were entitled for House Rent Allowance from their dates of respective appointment. They also denied that workers did indulge in trade union activities. According to them they were not employed by Ordnance Factory. Contract Labours are also debarred from entering OFAJ estate and factory. It is also denied that 1150 labours were deputed during current period through contract labours for a period varies from 4 months to 1year. According to the management after expiry of period of contract, fresh contract will be issued by following due process.

7. According to the management no HRA is paid to the contract labours because RLC Nagpur is also no mentioning in the notification regarding the wages. Contract labours were doing a work of sweeping of shop floor, loading and unloading materials. It is also denied that contract employees were direct employee of Ordnance factory. According to the management a claimant had made this false statement to gain certain benefit.

8. According to the Management OFAJ was not reimbursing any HRA to contractors so employees of the union were not entitled for HRA. They also pray that there was no merit in this case and hence the same may request to be dismissed.

9. Union also filed rejoinder by asserting this fact that Maharashtra Act of Minimum House Rent Allowance was applicable to their workers. They also asserted that allegation in the Written statement was denied. So they pray that in interest of justice this Tribunal is awarded House Rent Allowance.

10. Both parties lead evidence. On behalf of the union Shri P.K. Mohanan was examined as union witness. By supporting his statement of claim as a General Secretary of Union asserted that no resolution was passed by the union to expose the dispute on behalf of the workman. He also admitted that claimants were contract labours. He also admitted that contractors had not being made party in this case. He also admitted that workmen were not the employees of Ordnance factory. He also admitted that payment of HRA to the contract labours was the primary responsibility of the contractor. The contractors were used to be change. After perusal of the statement it appears that the claimants were contract labours and not employees of the party no.1 of the management.

11. On behalf of the management Mr. Sanjay Roy Choudhary was examined as management witness. He holds the post of junior work manager at party no.1 since June 2010. He also admitted that in factory both permanent and non-permanent employees are engaged in production activities. All these employees are paid their wages on monthly basis. He also admitted that after expiry of contract they issue fresh advertisement in newspaper for contractor for specific work. The successful bidder was given the contract for employees. Labour payment was given as per the prescribed rate mentioned by RLC. Witness also said that in their factory productive link bonus was applicable.

After reading the statement my opinion is that he asserted correct facts which are based on documents. I feel he is giving correct and genuine statement. Nothing is show that he prejudices any party no.2. Now we come to the legal position.

12. The Section 13 of The Maharashtra Workmen's Minimum House Rent Allowance Act, 1983 provides the power of State Government to exempt in special cases. In excersie of these powers Maharashtra Government issued notification in official gazette dated 26.12.1990 which runs as follows:-

In exercise of the powers conferred by sub-section (i) of Section 13 of the Maharashtra Workmen's Minimum House- rent Allowance Act, 1983 (Mah XXIII of 1988), the Government of Maharashtra, being satisfied that it is just and proper so to do in the public interest, hereby directs that, with effect from 1st January, 1991, the provisions of the said Act shall not apply to the factories and establishment in the industries:-

(a) Carried on by or under the authority of any Department of the Government of India; and1850 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] (b) The management of which has been taken over by the Government of India under any law for the time being in force.

13. Case laws:- Union of India through Secretary Ministry of Defence vs. M.M. Rangari, Ordnance Factory Chandrapur and others, 2011 III CLR-800(Bombay High Court) and Dr. Ajay Choudhary Vs. Government of NCT Delhi, 2001 LIC 3847 in which following principles were laid down :-

(i) In Nagpur city without obtaining "No Accommodation Certificate" from the authority concerned, any government servant including defence employees, is not entitled to HRA; (ii) Unless a binding law or specific Regulation governing is pointed out for payment of HRA , respondents are not entitled to claim the same, (iii) Impugned order is unsustainable and hence quashed and set aside.

There is a Government Circular that no Government servant availing Government accommodation is entitled to claim House Rent Allowance. In view of the same, the junior and senior resident Doctors who are availing Government accommodation are not entitled to benefit of House Rent Allowance.

14. Judging the present case in hand with the touch stone of the principles as mentioned above, it is found that law is well settled that Section 4 of the Maharashtra Workmen's Minimum House-rent Allowance Act, 1983, is not applicable to party no.1 in regards to contract labours working in factory because Maharashtra Govt. notification dated 26.12.1990 in which Central Government Industry were exempted from HRA provisions of this Act. So the reference is answered in negative. Hence, it is ordered:

ORDER

The action of the management of Ordnance Factory, Ambajhari, Nagpur in depriving the contract labours employed through various contractors from the payment of house rent allowance in accordance with the provisions of the Maharashtra Worker's Minimum House Rent Allowance Act, 1983 is fair and legal. The workmen are not entitled for any relief.

S.S. GARG, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 426426426426....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, महाप्रबंधकमहाप्रबंधकमहाप्रबंधकमहाप्रबंधक,,,, राष्ट्रीराष्ट्रीराष्ट्रीराष्ट्रीय एके डमी ऑफ डिफें सय एके डमी ऑफ डिफें सय एके डमी ऑफ डिफें सय एके डमी ऑफ डिफें स,,,, नागपुर नागपुर नागपुर नागपुर एवं उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालय नागपुरयालय नागपुरयालय नागपुरयालय नागपुर,,,, के पंचाट ((((CGIT/NGP/65/2013)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 08.02.2018 को प्राप्त Fआ था ।

[सं. एल-14011/08/2013-आई आर (डीयू)]

राजें- जोशी, उप िनदेशक

New Delhi, the 28th February, 2018

S.O. 426.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (CGIT/NGP/65/2013) of the Central Government Industrial Tribunal- cum-Labour Court, Nagpur as shown in the Annexure, in the Industrial Dispute between the employers in relation to the General Manager, National Academy of Defence,, Nagpur and their workmen, which was received by the Central Government on 08.02.2018.

[No. L-14011/08/2013-IR (DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

BEFORE SHRI S.S. GARG, PRESIDING OFFICER, CGIT-CUM-LABOURT COURT, NAGPUR

Case No. CGIT/NGP/65/2013 Date: 09.01.2018.

Party No.1 : The General Manager,

National Academy of Defence

Production, Ambajhari,

Nagpur-440021.

Versus

Party No. 2 : The General Secretary,

Ordnance Factory Contractors' Employees

Union, 39-C, Sadachar Griha Nirman

Society, Duttawadi Wade,

Nagpur-440023.

AWARD

(Dated: 09th January, 2018)

In exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of section 10 of Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in short), the Central Government has referred the industrial dispute between the employers, in relation to the management of Ordnance Factory Ambajhari Nagpur and their union "Ordnance Factory Contractor's Employees Union," for adjudication, as per letter No.L-14011/08/2013-IR (DU) dated 30.08.2013, with the following schedule:-

"Whether the action of the management of National Academy of Defence Production, Ambajhari,

Nagpur in depriving the contract labours employed through various contractors from the payment of

house rent allowance in accordance with the provisions of the Maharashtra Worker's Minimum House

Rent Allowance Act, 1983 is fair and legal? To what relief the workmen are entitled to ?"

2. On receipt of the reference, the parties were noticed to file their respective statement of claim and written statement and accordingly, the union, Ordnance Factory Contractor's Employees Union, ('the Union" in short), filed the statement of claim and the management of National Academy of Defence Production, Ambajhari, Nagpur ("Party No. 1" in short) filed their written statement.

According to the union claimants were contract labours working in Ordnance Factory as well as National Academy of Defence Production. Their union duly registered under the Trade Union Act and Party no.1 was factory registered under the Factories Act and it was an industry within the meaning of I.D. Act 1947. In this industry workers were categorized as Industrial and non-industrial employees. They were governed by Central Civil Service Rules. It is also mentioned that NADP and Ordnance Factory are situated at same premise. According to the union, it is one unit for the purpose of Factory Act as well as Industrial Dispute Act. In NADP, around 125 contract labours were employed. The work being done by contract labours was of regular nature.

3. Contractor engaged by NADP was required to obtain license and each contractor was also registered under Bombay Shops and Establishment Act, 1948. According to the union, contract labours were employed in core as well as non- core activities, which are perennial in nature. The contractors were merely commission agents. The workers were direct employees of the Ordnance Factory.

4. According to the union workers were paid wages and also deduct EPF and ESIC. According to the union primary responsibility of payment of wages to the contract labours was on contractor and same will be paid by the management but wages payable to the workmen shall not be less than minimum wages prescribed by Government. According to the union Maharashtra Workmen's Minimum House Rent Allowance Act, 1983 was applicable to the workers engaged by Party no.1 because factory management did not provide housing accommodation.

5. According to the union, several times they prayed to the management but management did not agree, so by filing statement of claim they prayed that, their worker are entitled to House Rent allowance from their date of respective appointment and they also pray that, answer of reference in favour of union and also pray for other relief.

6. On the contrary, management by filing the written statement denied that contract labours were entitled for House Rent Allowance from the date of their respective appointment. They also denied that workers did indulge in trade union activities. According to them they were not employed by NADP. NADP is imparting technical and vocational training to the officers of Ordnance Factory. It is also denied that, it was an integral part of Ordnance Facto. According to the management after expiry of period of contract, fresh contract would be issued by following due process.

7. According to the management no HRA is paid to the contract labours because RLC Nagpur is also not mentioning in the notification regarding the wages. Contract labours were doing a work of sweeping of shop floor, loading and unloading materials. It is also denied that contract employees were direct employee of NADP. According to the management a claimant had made this false statement to gain certain benefit.

8. According to the management, NADP was not reimbursing any HRA to contractors, so employees of the union were not entitled for HRA. In a specific pleading, management has also submitted that, Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970, the Government was empowered to prohibit employment of1852 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] contract labours in any process, operation or other work in any establishment. They also mentioned that, Industrial Tribunal has no jurisdiction to adjudicate upon the dispute relating the contract labour. According to the management, claimant is not entitled HRA. They also pray that there was no merit in this case and hence the same may request to be dismissed.

9. Union also filed rejoinder by asserting this fact that, Maharashtra Act of Minimum House Rent Allowance was applicable to their workers. They also asserted that allegation in the Written statement was denied. So they pray that in interest of justice this Tribunal is awarded House Rent Allowance.

10. Both parties lead evidence. On behalf of the union, Shri P.K. Mohanan was examined as union witness. By supporting his statement of claim as a General Secretary of Union, asserted that no resolution was passed by the union to expose the dispute on behalf of the workmen. He also admitted that claimants were contract labours. He also admitted that, he has not filed any document to show that, their union is recognized by the employer. It was also admitted that NADP is Training Institute and separate from Ordnance Factory. After perusal of the statement of the witness, it appears to me that, claimants were contract labours and not employed by the Party No. 1.

11. On behalf of the management, Mr. Prem Prakash was examined as management witness. He holds the post of Director of NADP. He was working in Nagpur office from January, 2017. Wages were being paid on monthly basis on the basis of statutory laws. According to the witness, contract labours do the peripheral job of housekeeping, gardening and repairing etc. He also admitted that, contractors got valid registration and license.

After reading the statement, my opinion is that, he asserted correct facts, which are based on records. I feel he is giving correct and genuine statement. Nothing is show that he prejudices any claimant of Party no.2. Now we come to the legal position.

12. The Section 13 of The Maharashtra Workmen's Minimum House Rent Allowance Act, 1983 provides the power of State Government to exempt in special cases. In excersie of these powers Maharashtra Government issued notification in official gazette dated 26.12.1990 which runs as follows:-

"In exercise of the powers conferred by sub-section (i) of Section 13 of the Maharashtra Workmen's Minimum House- rent Allowance Act, 1983 (Mah XXIII of 1988), the Government of Maharashtra, being satisfied that it is just and proper so to do in the public interest, hereby directs that, with effect from 1st January, 1991, the provisions of the said Act shall not apply to the factories and establishment in the industries:-

(a) Carried on by or under the authority of any Department of the Government of India; and

(b) The management of which has been taken over by the Government of India under any law for the time being in force.

13. Case laws:- Union of India through Secretary Ministry of Defence vs. M.M. Rangari, Ordnance Factory Chandrapur and others, 2011 III CLR-800(Bombay High Court) and Dr. Ajay Choudhary Vs. Government of NCT Delhi, 2001 LIC 3847 in which following principles were laid down :-

(i) In Nagpur city without obtaining "No Accommodation Certificate" from the authority concerned, any government servant including defence employees, is not entitled to HRA; (ii) Unless a binding law or specific Regulation governing is pointed out for payment of HRA , respondents are not entitled to claim the same, (iii) Impugned order is unsustainable and hence quashed and set aside.

There is a Government Circular that no Government servant availing Government accommodation is entitled to claim House Rent Allowance. In view of the same, the junior and senior resident Doctors who are availing Government accommodation are not entitled to benefit of House Rent Allowance.

14. Judging the present case in hand with the touch stone of the principles as mentioned above, it is found that, law is well settled that, Section 4 of the Maharashtra Workmen's Minimum House-rent Allowance Act, 1983, is not applicable to party no.1 in regards to contract labours working in factory because Maharashtra Govt. notification dated 26.12.1990 in which Central Government Industries were exempted from HRA provisions of this Act. So the reference is answered in negative. Hence, it is ordered:

ORDER

The action of the management of National Academy of Defence Production, Ambajhari, Nagpur in depriving the contract labours employed through various contractors from the payment of house rent allowance in accordance with the provisions of the Maharashtra Worker's Minimum House Rent Allowance Act, 1983 is fair . The workmen are not entitled to any relief.

S. S. GARG, Presiding Officer[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1853

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 427427427427....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, िनदेशकिनदेशकिनदेशकिनदेशक,,,,परमाणु खिनज िनदेशकपरमाणु खिनज िनदेशकपरमाणु खिनज िनदेशकपरमाणु खिनज िनदेशक,,,,अन्वेअन्वेअन्वेअन्वेषण और अनुसंधानषण और अनुसंधानषण और अनुसंधानषण और अनुसंधान,,,, परमाणु ऊर्जा विभागपरमाणु ऊर्जा विभागपरमाणु ऊर्जा विभागपरमाणु ऊर्जा विभाग,,,, जयपुर जयपुर जयपुर जयपुर और उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायाल याल याल याल जयपुरजयपुरजयपुरजयपुर,,,, के पंचाट ((((संदर्भसंदर्भसंदर्भसंदर्भ संख्यासंख्यासंख्यासंख्या 24/2011 24/2011 24/2011 24/2011,,,, 25/201125/201125/201125/2011,,,, 26/201126/201126/201126/2011,,,, 27/201127/201127/201127/2011,,,, 28/201128/201128/201128/2011)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 20.02.2018 को प्राप्त Fआ था ।

[सं. एल-14012/4/2009-आई.आर. (डीयू),

सं. एल-14012/3/2009-आई.आर. (डीयू),

सं. एल-14012/5/2009-आई.आर. (डीयू),

सं. एल-14012/2/2009-आई.आर. (डीयू),

सं. एल-14012/1/2009-आई.आर. (डीयू)]

राजें- जोशी, उप िनदेशक

New Delhi, the 28th February, 2018

S.O. 427.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (ID No. 24/2011, 25/2011, 26/2011, 27/2011, 28/2011) of the Central Government Industrial Tribunal-cum-Labour Court, Jaipur as shown in the Annexure, in the Industrial Dispute between the employers in relation to the Director, Atomic Mineral Directorate for Exploration and Research, Department of Atomic Energy, Jaipur and their workmen, which was received by the Central Government on 20.02.2018.

[No. L-14012/4/2009-IR (DU),

No. L-14012/3/2009-IR (DU),

No. L-14012/5/2009-IR (DU),

No. L-14012/2/2009-IR (DU),

No. L-14012/1/2009-IR (DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, JAIPUR

Bharat Pandey, Presiding Officer

(1) I.D.24/2011

Reference No.L-14012/4/2009(IR(DU)) dated: NIL

Shri Ram Sharma

S/o Shri lallulal Sharma

R/o Plot No. 13/14,

Punchwati Colony, Tonk Road,

Sanganer, Jaipur.

V/s

The Director

Atomic Mineral Directorate for Exploration and Research

D/o Atomic Energy, AMD Complex,

Sector-5 Extn. Pratap Nagar,

Sanganer, Jaipur – 302011.

(2) I.D.25/2011

Reference No.L-14012/3/2009(IR(DU)) dated: 13.7.2011

Shri Danna Lal

S/o Shri Jagdish Bairwa

R/o 34/22,

Sector-3, Pratap Nagar,

Sanganer, Jaipur - 302011.

V/s

The Director

Atomic Mineral Directorate for Exploration and Research

D/o Atomic Energy, AMD Complex,

Sector-5 Extn. Pratap Nagar,

Sanganer, Jaipur – 302011.

(3) I.D.26/2011

Reference No.L-14012/5/2009(IR(DU)) dated: 13.7.2011

Shri Rakesh Kumar Upadhyay

S/o Shri Harikishan Sharma

R/o Sector- 82/271

Chetak Marg, Pratap Nagar,

Sanganer, Jaipur - 302011.

V/s

The Director

Atomic Mineral Directorate for Exploration and Research

D/o Atomic Energy, AMD Complex,

Sector-5 Extn. Pratap Nagar,

Sanganer, Jaipur – 302011.

(4) I.D.27/2011

Reference No.L-14012/2/2009(IR(DU)) dated: 13.7.2011

Shri Chhagan Lal Dhanka

S/o Shri Gulab Chand Dhanka

R/o Village Shopur

Dhankaon Ka Mohalla

Pratap Nagar,Sanganer,

Jaipur - 302011.

V/s

The Director

Atomic Mineral Directorate for Exploration and Research

D/o Atomic Energy, AMD Complex,

Sector-5 Extn. Pratap Nagar,

Sanganer, Jaipur – 302011.

(5) I.D.28/2011

Reference No.L-14012/1/2009(IR(DU)) dated: 13.7.2011

Shri Manoj Kumar Pipliwal

S/o Shri Kanhaiya Lal

R/o Plot No. 23, Moji Nagar Colony

Pratap Nagar,Sanganer,

Jaipur - 302011.

V/s

The Director

Atomic Mineral Directorate for Exploration and Research

D/o Atomic Energy, AMD Complex,

Sector-5 Extn. Pratap Nagar,

Sanganer, Jaipur – 302011.

Present

For the Applicant        :        Sh. Kunal Rawat, Advocate.
For the Non-applicant    :        Sh. T.P.Sharma, Advocate.

AWARD

Dated:. 22.12.2017 1. The Central Government in exercise of the powers conferred under clause (d) of Sub Section 1 & 2(A) of Section 10 of the Industrial Disputes Act 1947 has referred the following Industrial dispute to this tribunal for adjudication:-

CGIT 24/2011

"Whether the action of the management of Atomic Mineral Directorate for Exploration and

Research, Department of Atomic Energy, Jaipur in terminating the services of Shri Ram Sharma

S/o Shri Lallulal Sharma w.e.f. 30.4.2008 is legal and justified? What relief the workman is

entitled to?"

CGIT 25/2011

"Whether the action of the management of Atomic Mineral Directorate for Exploration and

Research, Department of Atomic Energy, Jaipur in terminating the services of Shri Danna Lal

S/o Shri Jagdish Bairwa w.e.f. 30.4.2008 is legal and justified? What relief the workman is entitled

to?"

CGIT 26/2011

"Whether the action of the management of Atomic Mineral Directorate for Exploration and

Research, Department of Atomic Energy, Jaipur in terminating the services of Shri Rakesh

Kumar Upadhyay S/o Shri Harikishan Sharma w.e.f. 30.4.2008 is legal and justified? What relief

the workman is entitled to?"

CGIT 27/2011

"Whether the action of the management of Atomic Mineral Directorate for Exploration and

Research, Department of Atomic Energy, Jaipur in terminating the services of Shri Chhagan Lal

Dhanka S/o Shri Gulab Chand Dhanka w.e.f. 30.4.2008 is legal and justified? What relief the

workman is entitled to?"

CGIT 28/2011

"Whether the action of the management of Atomic Mineral Directorate for Exploration and

Research, Department of Atomic Energy, Jaipur in terminating the services of Shri Manoj Kumar

Peepliwal S/o Shri Kanhaiya Lal w.e.f. 30.4.2008 is legal and justified? What relief the workman is

entitled to?"

2. All the five cases mentioned above are similar & based on same cause of action. All the applicants related to the cases have been terminated on same date & all of them are said to have been working on same post of Helper, Technical Assistant. Their cases are also based on similar evidence hence, all the cases are taken together for disposal. CGIT case no. 24/2011, Shri Ram Sharma V/s The Director, Atomic Mineral Directorate for Exploration and Research will be leading case.

3. According to statement of claims submitted by applicants briefly facts of the case are that applicant Shri Ram Sharma was appointed as class IV employee ( Helper, Technical Assistant) on 6.7.2006, Shri Rakesh Kumar Upadhyay & Shri Chhagan Lal on 5.7.2005, Shri Manoj Kumar Peepliwal on 10.1.2006 & Shri Danna Lal in the month of July, 2006 on unknown date. Applicants are a ' workman' within the meaning of section 2(S) of I.D.Act, 1947. They were doing the work of crushing the samples of stones, filtering the crushed samples and putting the filtered power into boxes and putting label on the boxes. They were also performing the job of stone rubbing and pasting the proceeds on glass-slide and polishing etc. Beside above mentioned work applicants were further performing the work of waterman, preparation of tea, table cleaning, telephone attending, mail distribution & photocopy preparation. All the above mentioned work were carried out by them on the direction of officers and scientist of the opposite party. Analysis and identification of uranium was made on the basis of all the abovementioned work carried out by applicants and on that basis government of India was carrying out the production of uranium. The abovementioned process is covered within the meaning of ' Industry' as defined under section 2(j) of I.D.Act, 1947.

4. Applicants have further alleged in para 7 of statement of claim that their removal from service by non-applicant on 30.4.2008 is illegal and void on the following grounds:-

i. Applicant was working in complete supervision, control and direction of the officers of opposite party, employer which proves employer-employee relationship between non-applicant and applicant. Applicant was working for more than eight hours daily and paid on monthly basis. He was appointed against regular work and he was carrying out the work of continuing nature.

ii. Applicant has worked continuously for more than 240- days & has been removed from service in violation of section 25-F, 25-G 25-H & 25-N of I.D.Act, 1947 and rule 77 & 78 of Industrial Disputes (Central) Rules, 1957.

iii. Applicant has been removed from service without any domestic enquiry conducted against him and non-applicant has adopted unfair labour practice in removal of applicant from service. Non-applicant has victimized the applicant by removing him from service and removal has been done to escape from regularization of the applicant in service.

iv. It has been further alleged that applicant was also working on Saturday and Sunday of the week but opposite party was deliberately not showing the attendance of the applicant in attendance register and attendance on these two days were made only in the register kept at the gate which is indicative of planned unfair labour practice of the non- applicant. Applicant has alleged himself to be jobless since his removal from service and has prayed to declare his removal from service on 30.4.2008 as illegal and void with reinstatement in service with continuity and all consequential benefits.

5. Replies filed by opposite party against statement of claim of applicants consists two parts. Part one describe preliminary objection and part two describes parawise reply.

6. In preliminary objection it has been alleged that applicants were not appointed on any post and they were engaged as part time casual workers on contract basis according to availability of budget and necessity of work. Further it has been alleged that when applicants were not appointed on any specific post according to rules of recruitment, the question of their removal from service or absence from place of duty does not arise.

7. Further it has been alleged that any direct or indirect work of the Atomic Mineral Directorate for exploration and Research, Western Zone, Department of Atomic Energy is not covered within the definition of 'Industry' as per section 2(j) of I.D.Act,1947 hence, applicants are not entitled to any relief under the act. Applicants were engaged under the contract on availability of work to complete definite work in definite time based on availability of budget. Such engagements are covered under section 2(oo) (bb) of I.D.Act, 1947 hence, applicants are not entitled to the benefit of section 25-F of I.D.Act.

8. It has been further alleged that earlier reference in the present cases were denied by Ministry of Labour on the ground that applicants had failed to show on the basis of evidence that they had worked for 240 days continuously during calendar year, hence, claim of applicants is not maintainable. Applicants have not worked for 240 days in any calendar year because they were called for work as a casual worker based only on need of the work and their services were automatically coming to end with end of the work. Information about end of work was posted in writing on the[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1857 notice board beside informing the applicant orally. Applicants were not entitled to any notice under section 25-F of I.D.Act.

9. In parawise reply issue of appointment letter or appointment of the applicants in IVth class on any post has been specifically denied, thus, statement in para 1 & 2 have been denied.

10. Statement in para 3 to 7 have been denied. Repeating the contentions of preliminary objection, 240 days work by applicants in any calendar year has been denied with contention of their engagement on contract based on availability of work. It has been alleged that their engagement was ending with end of work hence, notice to remove them from work was not required.

11. It has been alleged against statement of para 4 to 5 of claim that work done by applicants were not existing all the time with non-applicant and because of this applicants were engaged on contract on part time basis for the period of existence of work only and at the time of engagement applicants were specifically and clearly told orally that their engagement is purely casual & they are not entitled to the benefit of the provisions of I.D.Act.

12. Non-applicant has specifically denied that removal of the applicants are based on animosity. It has been alleged that services were automatically coming to end at the end of the work. No assurance was ever given by non-applicant about regularization of the applicants.

13. Denying contention in para 7 of the claim it has been alleged that when no appointment was given to the applicants the question of termination of their services in illegal manner does not arise. Applicants were not appointed on any post. All contention in para 7(a) to 7(q) have been specifically denied and further alleged that there is no employer-employee relationship between opposite party and applicants. Applicants were engaged as part time casual labourer on contract based on availability of work and corresponding budget and after completion of work they were leaving on their own accord.

14. Further, against reply to para 7(D) it has been alleged that no notice was required to be given to applicants because notice is necessary only in relation to permanent employee or an employee who has completed 240 days and department is not satisfied with performance of the employee then in such case of unsatisfaction employee may be removed after one month's notice.

15. It has been further alleged that neither any person has been engaged since the applicants left the place after finishing the work nor any person junior to them has been retained for work. Applicants have not worked for 240 days in any calendar year.

16. It has been alleged against para 7(m) that applicants have neither been appointed nor removed from service by opposite party. It has been alleged against para 7(n) to 7(q) that because of the temporary nature of the work the applicants were himself leaving the place of work on non availability of work and they were engaged only on availability of work.

17. In rejoinder, preliminary objections have been repelled by denying the contentions of objection and against parawise reply to statements of claim, applicants have reiterated the contention of their statement of claims.

18. Applicants have filed their affidavit in evidence and have been cross-examined by opposite party. Opposite party has filed affidavit of Shri Vinod Kumar C.K. S/o shri A.P.K. Nambiar, Assistant Personnel Officer, who has been cross examined by applicants side.

19. Applicant Shri Ram Sharma has filed documentary evidence Ex-w1 to Ex-w-16 which are photocopies of attendance record, payment record, sanction of service contract etc. Similarly other applicants have filed similar documents. Opposite party has filed documentary evidence Annexure R/1 to R/5 relating to detail of period of work done by applicant in various calendar year, quotation for work and request and sanction order relating to work to be carried out on contract. Document filed by opposite party management are in response to the demand of documents made by applicants vide their application dated 27.11.2012. There is no other documentary or oral evidence on record filed by parties.

20. Heard the argument of learned representative of the applicant and opposite party management and perused the record carefully.

21. It has been argued by learned representative of the applicants that they were appointed on the post of Helper, Technical Assistant by opposite party and their services were terminated by opposite party on 30.4.2008 in violation of the provision of section 25-F, 25-G & 25-H of the I.D.Act, 1947 & rule 77 & 78 of Industrial Dispute (Central) Rules, 1957. It has been further argued that applicants had worked for more than 240 days immediately preceding the date of termination without notice or pay in lieu of notice or payment of retrenchment compensation. Countering the above argument it has been argued by learned counsel for the opposite party that applicants were not appointed by opposite party on any post and because they were not appointed by opposite party hence, question of termination of services of the applicants by opposite party does not arise and provisions of I.D.Act, 1947 do not apply in the case of the applicants. Further, it has been argued that on the basis of availability of the budget engagement of the applicants were1858 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] made on contract on the basis of tenders issued by department for definite work to be completed in fixed time and case of the applicants are covered under section 2(oo)(bb) of I.D.Act, 1947. It has also been argued that there is no employer-employee relationship between opposite party & applicants. Further, it has been submitted that opposite party is not an 'Industry' within the meaning of section 2(j) of I.D.Act, 1947 hence, provision of I.D.Act, 1947 are not attracted against opposite party & thus statement of claim of the applicants are liable to be dismissed. Learned counsel for applicants has repelled the argument that opposite party is not an "Industry" & has alleged that activities in the premises of opposite party is within the definition of "Industry".

22. No case has been cited by opposite party. Following cases have been referred by learned counsel for the applicants:-

1. AIR 2006 Supreme Court 355(1), R.M.Yellatti………Appellant V/s Assistant Executive Engineer……..Respondent.

2. 2011 (128) FLR 121 (Supreme Court), Kuldeep singh………Appellant v/s G.M., Instrument Design Development and Facilities Centre……..Respondent.

3. 2010 Supreme Court 1236, Director Fisheries Terminal Division ………Appellant v/s Bhikubhai Meghajibhai Chavda ……..Respondent.

4. 2011 (130) FLR 337, Devedra Singh ………Appellant v/s Municipal Council, Sanaur ……..Respondent.

5. Civil appeal no. 4980 of 2014, Supreme Court, Tapash Kumar paul…..petitioner v/s BSNL & Anr… ……..Respondents.

6. 2010 LAB.I.C. 1723 (Supreme Court), Krishan Singh…. ………Appellant v/s Executive Engineer Haryana State Agricultural Marketing Board, Rohtak ……..Respondent.

7. 2010 LAB. I.C. 3926 (Orissa High Court), Divisional Manager, Boudh Commercial Division, Orissa Forest Development Corporation Ltd. ………Appellant v/s Godabarish Badajena & anr. ……..Respondents.

8. 2008 (118) FLR 460 (Himachal Pradesh High Court), Block Development Officer, Pragpur ………petitioner v/s Yoginder Kumar & others ……..Respondents.

9. RLR 1987 (1) (Rajasthan High Court), Bhanwar lal & Ors ………petitioner v/s Municipal board, Nagaur & Ors. ……..Respondents.

10. 2010 LAB I.C. 1433 (Supreme Court), Harjinder Singh ………Appellant v/s Punjab State Warehousing Corporation ……..Respondent.

23. Looking into argument of both the parties I proceed to determine first whether opposite party is an 'Industry' within the meaning of section 2(j) of the I.D.Act, 1947. In their statement of claim & in affidavit applicants have alleged that they were doing the work of crushing the samples of stones, filtering the crushed samples and putting the filtered power into boxes and putting label on the boxes. They were also performing the job of stone rubbing and pasting the proceeds on glass-slide and polishing etc. Beside above mentioned work applicants were further performing the work of waterman, preparation of tea, table cleaning, telephone attending, mail distribution & photocopy preparation. In cross examination also applicants have alleged that they were doing the work of crushing the samples & remaining five workers were also performing the same work.

24. Annexure-R/1 filed by opposite party is a letter dated 29.10.99 which has not been disputed or challenged by applicants. This letter has been written to by Secretary, Ministry of Labour, Government of India, New Delhi to Chairman, Atomic Energy Commission, Department of Atomic Energy, Mumbai, wherein it has been mentioned that it has been decided that ' Atomic Mineral Division' will not be considered as an 'Industry' within the meaning of section 2(J) of the I.D.Act, 1947. As this fact has not been disputed that ' Atomic Mineral Directorate for Exploration & Research' situated at Jaipur is within the ambit of "Atomic Mineral Division" of Atomic Energy Commission, Department of Atomic Energy, hence, I am of the view that opposite party is covered within the definition of 'Industry' as provided u/s 2(J) of I,.D.Act, 1947.

25. Now, as far as the question of appointment of the applicants in the organization on the post of Helper, Technical Assistant and their dismissal on 30.4.2008 is concerned, these facts have been specifically denied by opposite party. Applicants have stated in cross examination that they were not issued with any appointment letter by opposite party. They have also not given any reason in their claim or affidavit in evidence that why they were removed from service. It is not the case of the applicants that they had oral appointment and removal. From perusal of entire cross-examination of the witness for non-applicant Sh. Vinod Kumar C.K., Assistant Personnel Officer, there appears nothing to say that applicants were appointed by non-applicant.

26. On the basis of above discussion I am of the view that applicants have failed to prove that they were appointed by non-applicant to the post of Helper, Technical Assistant on their respective date of appointment as alleged by them.

27. As far as the determination of the question about nature of engagement of applicant with non-applicant is concerned in opening part of cross examination applicant Shri Ram Sharma has alleged that he was not engaged on contract but on page two of cross examination he has admitted that identity card (w-3) belongs to him which contains the detail of the person to work on contract. He has also admitted that he had applied to work on contract & in the year 2007 also he had applied to work on contract. W-3 identity card is in nature of pass for the period of 1.7.2006 to 31.10.2006 which serves as gate pass against security staff to permit the holder for making entry to the establishment for executing the work for which he has been engaged. W-3 does not indicate that holder is an employee of the non- applicant. Applicant has further admitted that person coming to work on contract were required to make signature for their attendance. The case of other applicants are similar to Shri Ram Sharma and identity cards and other documents filed by them are also similar to that of Shri Ram Sharma.

28. From perusal of document R/2, R/3 & R/5 status of Sh. Manoj Kumar Peepliwal emerges out to be a contractor and not a workman and status of Shri Ram Sharma as a contract worker for Shri Manoj Kumar Peepliwal. Same documents are appearing in CGIT case no. 28/2011 relating to Shri Manoj Kumar Peepliwal to contend that he is a workman of opposite party which is neither tenable nor acceptable.

29. Documents W/8, W/10 & w/11 filed by Sh. Chhagan lal in case no. 27/2011 relating to him are disclosing his status as contractor and not a workman. W/8 shows that he has received payment as contractor and not as a workman. All these documents and their content have been accepted by Sh. Chhagan lal in his cross examination. Sh. Chhagan lal has accepted that he has not filed document to support the requirement of section 25-F.

30. Documents w-1/1/2, W/4 & w/5 on record of case no. 26/2011 relating to Shri Rakesh Kumar Upadhyay show that he has taken work as contractor to carry out the work with help of two workers for the period 1.5.2006 to 31.10.2006 and these documents are admitted to have been filed by applicant in his cross examination. There is no evidence on record to draw a conclusion in favour of applicant Shri Rakesh Kumar Upadhyay about section 25-F. In CGIT case no. 25/2011 relating to Sh. Danna lal he has admitted that he was getting work on the basis of quotation along with other persons relating to remaining four cases. He is standard VIIIth pass. He has also admitted that documents relating to Sh. Manoj Kumar regarding award of work on contract. There is no document on record to prove his case for extending benefit of section 25-F to him or to show that he was appointed by opposite party. Cross examination of witness of non-applicant does not provide any aid in favour of applicants that they are workmen appointed by non-applicant. Based on above discussion I am of the view that there is no employer-employee relationship between the parties on any ground e.g. mode of engagement, payment, attendance on work, leave, deduction of contributing provident fund etc.

31. Shri Ram Sharma has further alleged that he is not aware that work carried out by him were done on the basis of sanctioned budget but he is aware that he was allotted work on the basis of annexure of R/5. R-5 is a work order which has been issued to another applicant of Case no. 28/2011 Sh. Manoj Kumar to complete the work of four hundred samples within the period of two month at the cost of Rs.6000/-. Applicant has admitted that work was allotted to him on the basis of R-5. R-4 is the document which is sanction order for spending Rs.6000/- & R-3 is the quotation submitted by Sh. Majoj Kumar to complete the work of grinding & crushing the four hundred samples with help of one person along with him. R-2 is the order which shows that quotation of Sh. Manoj Kumar has been accepted which is lowest in rate out of three quotations. From perusal of document R-2 to R-5 & from admission by Shri Ram Sharma in cross examination that work was allotted to him through R-5 it appears that his engagement is purely on contract based on quotation for a period of two month against fix amount of Rs. 6000/- to be shared by Sh. Manoj Kumar with him. Engagements of other applicants are also on quotation made by them to complete a given work on contract.

32. W-14 is another document of sanction of Rs.9000/- which shows that Sh. Ram Sharma applicant has been given work contract for a period of six months from 1.5.2007 to 31.10.2007 at the rate of Rs.1500/- per month for doing various miscellaneous work such as cleaning of tables, dusting of rooms, filling water in cooler on third floor of Block A. Applicant has alleged in cross examination that he was performing the work of grinding and crushing the samples and remaining five persons also were doing the same thing.

33. From above discussion it is clear that nature of engagement of the applicants has been for different periods on contract for various types of work as indicated in the tenders and corresponding work order according to availability of sanctioned funds. These engagement do not prove that applicants have been in employment of the opposite party on the basis of appointment. Due to submission of tenders by them to secure work on contract there was no reason for issue of appointment letters to them.

34. As far as the continuity of services of the applicant Shri Ram Sharma immediately preceding the alleged date of termination for a period of 240 days is concerned annexure-3 is the record of attendance which has been admitted to be true according to statement of the applicant in his cross examination. Detail of working days in annexure-3 does not support the contention in statement of claim that applicant has completed 240 days immediately preceding to the date of termination or in any calendar year. Thus, I am of the view that applicant has failed to prove violation of provisions of section 25-F of the I.D.Act, 1947. Other applicants also have not completed the condition of section 25-F.

35. On the basis of above discussion and for the reasons stated therein I am of the view that provision of section 25-F of the I.D.At, 1947 is not attracted in the case of the applicants and their case falls within the ambit of section 2(oo)(bb) of the I.D.Act, 1947.

36. Section 25-G & section 25-H are also not attracted because applicant Sri Ram Sharma has alleged that all persons working with him on contract have been removed and none of them has been taken for work again. He has also alleged that after 2008 since the time of disengagement on contract none has been taken on work again. In above fact & circumstances ingredients of section 25-G & 25-H have neither been proved not attracted. Similarly rule 77 & 78 of I.D.(Central) Rules are also not attracted due to non application of provision of section 25-G & 25-H of the I.D.Act, 1947.

37. In support of case of the applicants reference has been made by learned counsel for the applicants to the case reported in AIR 2006 Supreme Court 355(1) on the point that on demand made by applicant if documents are not produced by non-applicant for the period of work done by applicant presumption should be made in favour of applicants that they have worked for 240 day. Countering the argument it has been argued by learned counsel for opposite party that cited case does not support the contention of the learned counsel for the applicants & burden of proof is always with the applicants to support their case with their own evidence & no such presumption can be drawn in favour of applicants unless there exists proof of existence of documents with opposite party. In the cited case of R.M.Yellatti, success of the appellant was not based on presumption. Reliance was placed by Hon'ble Supreme Court on the certificate issued by Assistant Executive Engineer as referred in para 18 of the judgement & accordingly appeal was allowed. Thus, I am of the view that case of R.M.Yellatti provides no benefit in favour of applicant.

38. In 2011 (128) FLR 121 (Supreme Court), Kuldeep Singh………Appellant v/s G.M., Instrument Design Development and Facilities Centre……..Respondent, it has been held by Hon'ble Supreme court that no limitation has been prescribed for making reference under section 10 of I.D.Act, 1947. It is found that industrial dispute exists it is incumbent on the part of the government to make reference.

39. In 2010 Supreme Court 1236, Director Fisheries Terminal Division ………Appellant v/s Bhikubhai Meghajibhai Chavda ……..Respondent, the question before the Hon'ble Supreme Court was whether the appellant was a seasonal Industry with reference to section 25-A of I.D.Act. It has been held by Hon'ble Supreme Court in para 11 of the judgement that appellant is not a seasonal industry. The finding of the learned Labour Court has been upheld on this point.

40. In 2011 (130) FLR 337, Devedra Singh ………Appellant v/s Municipal Council, Sanaur ……..Respondent,it has been held by Hon'ble Supreme Court that termination of services of an employer in violation of provision of section 25-F & 25-G is legally untenable. In this case order of termination of services of appellant was set aside by Labour Court with award of reinstatement of appellant without back wages. Award was set aside by Hon'ble Division Bench on the ground that appointment was contrary to recruitment rules and Article 14 & 16 of the Constitution and it would not be in public interest to sustain the award of reinstatement after long lapse of time. Appellant was simultaneously held entitled to wages in terms of section 17-B of the I.D.Act, 1947. The appeal against the order of Hon'ble Division Bench was allowed ad order of learned Labour Court was restored.

41. In Civil appeal no. 4980 of 2014, Supreme Court, Tapash Kumar paul…..petitioner v/s BSNL & Anr… ……..Respondents, award of reinstatement without back wages with Rs.20000/- as compensation toward back wages was passed by learned tribunal because management had failed to produce relevant documents to disclose the actual number of days for which appellant had worked hence termination was held to be violative of section 25-F of the I.D. Act, 1947. This award was affirmed by Hon'ble Single Judge. However, award of Hon'ble single Judge was set aside by Hon'ble division Bench restricting the award only to the extent of Rs.20000/- and setting aside the reinstatement of the appellant. Appeal against the judgement of hon'ble Division Bench was allowed by Hon'ble Supreme Court and award of Labour Court & Hon'ble single Judge was restored. In the present case before this tribunal Sh. Ram Sharma has alleged in his cross-examination that detail of working days produced by opposite party is correct and he has received the payment for all the days he has worked. Detail produced by opposite party does not constitute 240 days immediately prior to date of reference. Rest of the applicants also have admitted to have received all the payments for the days they have worked. They have not placed any specific contention that detail of working days filed by non- applicant is incorrect or he has withheld part of them to defeat their case on the basis of section 25-F. Thus, I am of the view that no benefit occurs in favour of applicants in matter of section 25-F from the cited case.

42. Facts & circumstances of the present case of five applicants are completely distinguishable from the facts & circumstances of the cases reported in 2010 LAB I.C. 1433 (Supreme Court), Harjinder Singh ………Appellant v/s Punjab State Warehousing Corporation ……..Respondent, RLR 1987 (1) Bhanwar lal & Ors ………petitioner v/s Municipal board, Nagaur & Ors. ……..Respondents 2010 LAB. I.C. 3926, Divisional Manager, Boudh Commercial Division, Orissa Forest Development Corporation Ltd. ………Appellant v/s Godabarish Badajena & anr. ……..Respondents & 2010 LAB.I.C. 1723 (Supreme Court), Krishan Singh…. ………Appellant v/s Executive Engineer Haryana State Agricultural Marketing Board, Rohtak ……..Respondent & I am of the view that observations[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1861 made by Hon'ble Supreme Court, Hon'ble Rajasthan High Court & Hon'ble Orissa High Court in the above mentioned cases are not applicable.

43. In 2008 (118) FLR 460 (Himachal Pradesh High Court), Block Development Officer, Pragpur ………petitioner v/s Yoginder Kumar & others ……..Respondents, respondents were retrenched in violation of mandatory provision of section 25-F. Their claim before the labour court was resisted by petitioner that workmen were engaged on project work & the project name was "Integrated Waste Land Development Project for Kangra District" hence, notice was not required to issued to them at the end of project. Learned labour court answered the award in affirmative in favour of respondents. Writ petition against the award of labour court was dismissed & award was upheld on the ground that there was no evidence on record that workmen were engaged in a project as recorded by labour court. In the present case of applicant Shri Ram Sharma & others non-applicant has not based his claim that engagement of applicants are connected with any project. Accordingly, no benefit can be derived in favour of applicants. It is pertinent to mention that in none of the cited cases the issue of section 2(J) of the I.D.Act is in question.

44. On the basis of above discussion & for the reasons stated therein I am of the view that applicants Shri Ram Sharma, Shri Danna Lal, Shri Rakesh Kumar Upadhyay, Shri Chhagan Lal Dhanka & Shri Manoj kumar Peepliwal have failed to prove that the action of the management of Atomic Mineral Directorate for Exploration and Research, Department of Atomic Energy, Jaipur in terminating their services w.e.f. 30.4.2008 is illegal & unjustified. Applicants are not entitled to any relief. Their statement of claims are dismissed accordingly.

45. Award as above.

46. Copy of the award be placed on I.D.25/2011, I.D.26/2011, I.D.27/2011 & I.D.28/2011.

BHARAT PANDEY, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 428428428428....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, आयुक्तआयुक्तआयुक्तआयुक्त,,,, एनडीएमसीएनडीएमसीएनडीएमसीएनडीएमसी,,,, नई दिल्लीनई दिल्लीनई दिल्लीनई दिल्ली एवं उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालय यालय यालय यालय दिल्लीदिल्लीदिल्लीदिल्ली सं सं सं सं.... 1111 के पंचाट ((((संदर्भसंदर्भसंदर्भसंदर्भ संख्यासंख्यासंख्यासंख्या 236/2015 236/2015 236/2015 236/2015)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 20.02.2018 को प्राप्त Fआ था ।

[सं. एल-42011/138/2015-आई आर (डीयू)]

राजें- जोशी, उप िनदेशक

New Delhi, the 28th February, 2018

S.O. 428.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (ID No. 236/2015) of the Central Government Industrial Tribunal-cum- Labour Court No. 1, Delhi as shown in the Annexure, in the Industrial Dispute between the employers in relation to the Commissioner, NDMC, New Delhi and their workmen, which was received by the Central Government on 20.02.2018.

[No. L-42011/138/2015-IR (DU)]

RAJENDRA JOSHI, Dy. Director

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.236/2015

Shri Raj Singh S/o Shri Bhan Singh, represented by

MCD General Mazdoor Union,

C/o Room No.95, Barrack No.1/10,

Jam Nagar House, Shah Jahan Road,

New Delhi – 110 001

…Workman1862 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] Versus

The Commissioner,

North Delhi Municipal Corporation,

4th Floor, Civic Centre, Minto Road,

New Delhi – 110 002

…Management

AWARD

This award shall dispose of a reference received from Ministry of Labour and Employment vide Order No. L-42011/138/2015-IR(DU) dated 02.11.2015 under clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947(in short the Act) for adjudication of an industrial dispute, terms of which are as under:

'Whether the action of the management of North Delhi Municipal Corporation in not granting promotion as Garden Chaudhary in the pay scale of Rs.3050-4590 revised from time to time with effect from 01.01.1997 to Shri Raj Singh, S/o Shri Bhan Singh, is fair and legal? If not, what relief the workman is entitled to?'

2. Both the parties were put to notice and the workman Shri Raj Singh filed his statement of claim, wherein it is alleged that he has been allotted work of Chaudhary with effect from 01.01.1997 by the competent officers of Horticulture Department and was posted under West Zone. No qualification is prescribed for promotion to the post of Garden Chaudhary. However, he has been denied pay scale of Chaudhary, revised from time to time. The workman has got payment of salary in the lower pay scale of mali, i.e. Rs.2610-4000 revised from time to time and has been denied the scale of Chaudhary, i.e. for his performing the duty of Chaudhary with effect from 01.01.1997. Management has fixed different pay scales of mali, Chaudhary etc. in accordance with their job and non-grant of pay scale to the claimant herein amounts to forced labour and unfair labour practice. Duties of mali is presently of an unskilled workman whereas duties of Chaudhary is skilled in nature belonging to Group C category of employees. Action of the management is alleged to be illegal & unjustified and amounts to unfair labour practice.

3. It is also averred in para 8 of the statement of claim that Hon'ble High Court, Delhi, in the matter of Jai Chand vs Municipal Corporation of Delhi (CW 6514/2001) has disapproved the non-payment of wages for those malis who are working on the post of Chaudhary vide its judgement dated 02.05.2003. After the above judgement of the Hon'ble Court, Municipal Corporation of Delhi (Horticulture Department) has also issued order No.ADC(Hor.)/AO(Hort)/DA-VII/05/457 dated 04.03.2005. It is also averred that similar situated workmen who were performing duty of Chaudhary were granted pay scale of Chaudhary from the date when they were asked to perform duty on the higher post and management has challenged the order dated 27.07.2011 of the Labour Court in the matter of MCD vs Sultan Singh as well as before the Hon'ble Supreme Court of India by Special Leave to Appeal No.S20069/2011 and the plea by MCD has been dismissed by both, before the High Court as well as the Hon'ble Supreme Court. Workman, herein, is also similarly situated and doing work of Chaudhary and as such, entitled to same benefits.

4. Management has demurred claim of the workman by taking preliminary objections, inter alia, present dispute has not been espoused by the union, is not an industrial dispute as no notice has been served upon the management, delay and laches etc. The claimant cannot be designated as Garden Chaudhary as he has never worked on the said post. There is prescribed procedure for promotion to the post of Garden Chaudhary and there must be sanctioned/vacant post of Garden Chaudhary to which the workman can lay claim when he has passed trade test conducted by the department. Claimant has not passed the said trade test nor is he performing duties of Garden Chaudhary. No such office order has been issued by the competent authority for assigning duties of garden chaudhary. On merits, management has admitted the factum of regularization of the claimant as mali on 15.01.2000 and 01.04.1989. As per the existing rules for the post of Garden Chaudhary, malis having eight years of regular service in the grade and possessing qualification of 10th pass with Agriculture are eligible for promotion to the next post. Management has denied the other material averments contained in the statement of claim. Accordingly, it is prayed that claim of the workman herein is liable to be dismissed, being devoid of merits.

5. From the pleadings of the parties, vide order dated 07.10.2016, following issues were framed:

(i) Whether the reference is not maintainable in view of the various preliminary objections?

(ii) As in terms of reference

6. Claimant, in order to prove his case against the management examined himself as WW1 and Shri B.K. Prasad as WW2 whose affidavits are Ex.WW1/A and Ex.WW2/A respectively. They have also tendered in evidence documents Ex.WW1/1 & Ex.WW1/2 and Ex.WW2/1 to Ex.WW2/4 and I would be referring to the same during the course of my discussions in the subsequent paras. Management, in order to rebut the case of the claimant, examined Shri Harbir Singh, Assistant Director as MW1, whose affidavit is Ex.MW1/A and he has relied on documents Ex.MW1/1 to Ex.MW1/24.

7. I have heard Shri B.K.Prasad, A/R for the claimant and Shri Madan Sagar, A/R for the management.

Findings on Issue No. (i)

8. It was strongly urged on behalf of the management by Shri Anand Sagar that the claimants had not sent demand notice to the management regarding grant of status of Garden Chaudhary in the pay scale of Rs.3050-4590 with effect from 01.01.1997 with all consequential benefits and that there was no proper espousal by the union nor there is acceptable evidence on record to prove the same. It is also clear from the preliminary objections taken in the written statement by the management that the management has raised objections that no demand notice has been served upon the management nor the MCD General Mazdoor Union has any locus standi to raise the present dispute as the union is not a recognized union of the management. To my mind, there is no requirement of law that a dispute can be raised only by a recognized union. In this regard, it is appropriate to refer to the judgement of the Hon'ble Apex Court in the case of State of Bihar Vs. Kripa Shankar Jaiswal (AIR 1961 (2) SC Report 1) wherein also objection was taken on behalf of the management that the union was not a registered under the Trade Union Act on the date of the settlement and said plea was rejected by observing as under:

'Held, that for a dispute to constitute an industrial dispute it is not a requisite condition that it should be sponsored by a recognized union or that all the workmen of an industrial establishment should be parties to it. A settlement arrived at in course of conciliation proceedings falls within Section 18(3)(a) and (d) of the Industrial Disputes Act and as such binds all the workmen though an unregistered union or only some of workmen may have raised the dispute. The absence of notice under Section 11(2) by the Conciliation Officer does not affect the jurisdiction of the conciliation officer and its only purpose is to apprise the establishment that the person who is coming is the conciliation officer and not a stranger. Any contravention of Section 12(6) in not submitting the report within 14 days may be a breach of duty on the part of the conciliation officer; it does not affect the legality of the proceedings which terminated as provided in Section 20(2) of the Act.

9. Courts have gone to the extent of observing that issuance of demand notice is not essential for raising an industrial dispute and said notice can even be given orally to the management. This view has been taken in Workmen of MCD vs. MCD in WP(C) 13023/2005 decided on 06.08.2007 wherein above view was taken after putting reliance upon the case of Shambunath Goyal vs Bank of Baroda (1978 (2) SCR 793), wherein it was observed as under:

"A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the disputes or difference is connected with the employment or non- employment or the terms of employment or, with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute Would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine ,qua non, unless of course in the case of public utility service, because s. 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are 'dispute' or 'difference'. What is the connotation of these two words. In Beetham v. Trinidad Cement Ltd.(1). Lord Denning while examining the definition of expression 'Trade dispute' in s. 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:

"by definition a 'trade dispute' exists whenever a 'difference" exists and a difference can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for an opening".

Thus the term 'industrial dispute' connotes a real and Substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the Undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non- employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section."

10. In fact, there is no precise definition of espousal under the law and it simply means that the dispute of an individual workman is adopted by the union as its own dispute or majority of workmen present has given support to the cause of the individual workman. It was held in the case of Workmen Union vs Industrial Tribunal (1994 (68) FLR 710 Calcutta) that once a dispute is referred to the Tribunal by the appropriate Government, presumption of it being an industrial dispute is there and court can draw inference and legitimately hold that there has been proper espousal of the case through the union.

11. It is also clear from espousal certificate Ex.WW2/3 that a meeting of MCD General Mazdoor Union was held on 09.07.2013 wherein issue of grant of pay scale of Chaudhary to the claimant herein, Shri Raj Singh was adopted. In view of this, it is held that there was espousal of the case of the claimant. Hence, issue No.(i) is decided accordingly.

Findings on Issue No.(ii)

12. During the course of arguments it was not denied that the claimant was appointed as regular mali with effect from 01.04.1989. Case of the claimant is that he is performing duties of officiating Chaudhary since 01.01.1997 on the directions of officials of Horticulture Department. During the course of arguments, it was not denied that the claimant was appointed as regular mali with effect from 01.04.1989. The case of the claimant is that he is performing duties of Garden Chaudhary on the directions of Horticulture Department. It was strongly urged on behalf of the claimant that in view of decision given by Hon'ble High Court in the case of MCD vs Sultan Singh as well as MCD vs Mahipal Singh there is hardly any scope for the plea being raised by the management that the claimant was not having requisite qualification so as to promote him to the post of Garden Chaudhary. It is clear from perusal of Ex.WW1/1 which is the list of malis looking after the work of Garden Chaudhary employed with Horticulture Department of Civil Lines Zone, that they are regular Garden Chaudhary who were performing duties as regular/officiating Chaudhary. In the said list, name of the claimant appears at serial No.43. There is also a column 'Working Since and in the same is mentioned as '1997'.

13. The main attack of the management is that the claimant herein was not having requisite qualification, as such, there is no question of grant of pay scale of Garden Chaudhary to the claimant from 1997. There is no merit in the stand taken by the management in its reply, that the workman herein is not entitled for promotion to the post of Chaudhary inasmuch as he neither has the requisite qualification nor has he appeared in the trade test conducted by the department. To my mind, this plea is devoid of any merit inasmuch as similarly situated other workers who were performing duties of Chaudhary, i.e. acting Chaudhary have been granted pay scale of Garden Chaudhary after judgement dated 27.07.2011 rendered by the Hon'ble High Court in the case of MCD vs. Sultan Singh as well as MCD vs. Mahipal(WP 5550 of 2010). Operating portion of the judgement in Sultan Singh (supra) of the Hon'ble Division Bench is as under:

"28. Considering the entire facts and circumstances it is apparent that the claim of the respondents have always been that they should be paid the difference in pay of Mali/Chowkidar and the Garden Chaudhary as they were made to work on the post of Garden Chaudhary whereas the petitioner had first denied that they worked as Garden Chaudharies, then took the plea that the Assistant Director (Horticulture) was not competent to ask the respondents to work as Garden Chaudharies and that the respondents cannot be appointed to the post of Garden Chaudharies in accordance with the recruitment rules. There is no doubt that respondents are not claiming appointment to the post of Garden Chaudharies on account of having worked on ad-hoc basis on the post of Garden Chaudhary contrary to rules or that some of them not having the requisite qualifications are entitled for relaxation.

29. In the entirety of facts and circumstances therefore, the learned counsel for the petitioner has failed to make out any such grounds which will impel this Court to exercise its jurisdiction under Article 226 of the Constitution to set aside the orders of the Tribunal dated 29th January, 2010 and 7th October, 2010 as no illegality or un- sustainability or perversity in the orders of the Tribunal has been made out.

30. The writ petition is, therefore, dismissed. Parties are left to bear their own cost."

14. It is further clear that SLP was also filed by MCD before the Hon'ble Apex Court vide IA No.2 WP for special leave S20069/2011 MCD vs. Sultan Singh and others which was also dismissed as withdrawn vide order dated 09.04.2012. It is further clear that the Hon'ble High Court in Sultan Singh case strongly deprecated the stand taken by the management that the workmen were not possessing requisite qualification or have not qualified the test etc. It was clarified that since the workmen were discharging duties to the post of Garden Chaudhary, a such, workmen were entitled for the salary of Garden Chaudhary and competent authority need not look into anything else except the fact that the workman had worked as Garden Chaudhary. Therefore, stand taken by the management that the workman herein could not qualify the test conducted by Education Consultant India Limited is without any merit and has no relevance so far as question of grant of salary against the post of Garden Chaudhary is concerned.

15. It is not out of place to mention here that even if the workman herein was not a party in Sultan Singh case referred above, judgement of the Hon'ble High Court is binding on the management and management is required to implement the same in letter and spirit and the same is judgement in rem, and all similarly situated workmen are required to be accorded the benefit of the said judgement of the Hon'ble High Court, which have become final. There is no question of even plea of delay and laches when management had not led any evidence to prove the same. The Hon'ble High Court has decided an abstract proposition of law, i.e. a mali who is performing duty as officiating/acting Chaudhary is entitled to the salary/wages of Chaudhary. Law is fairly settled that if a person is working on a higher post, on adhoc or temporary basis, even such workman is entitled to salary/wages of higher post, unless rules or regulations specifically provides otherwise. I find support to this view from Secretary vs. Lieutenant Governor Port Blair (1998 Lab.I.C. 598), yet in another case, Hon'ble Apex Court while considering that question of grant of[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1865 benefits to similarly situated employees who were not party to the writ petition or lis in the case of State of Uttar Pradesh vs. Arvind Kumar Srivastava (2015) 1 SCC 347 observed as under:

"The moot question which requires determination is as to whether in the given case, approach of the Tribunal and the High Court was correct in extending the benefit of earlier judgment of the Tribunal, which had attained finality as it was affirmed till the Supreme Court. The legal principles that can be culled from the judgments, cited both by the appellants as well as the respondents, can be summed up as under:

(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

16. Similarly, contention of the management that the claimant is not having requisite qualification, including passing of trade test was raised in the case of MCD Vs. Rajbir Singh. The workman, in the contention of the management, was not entitled to the pay scale of Garden Chaudhary from the date from which he was officiating as Garden Chaudhary. The above contention of the management was out-rightly rejected by the Hon'ble High Court of Delhi by upholding the decision of the learned Tribunal by putting reliance on the case of MCD Vs. Sultan Singh which was decided on 27.07.2011.

17. Since the claimant is officiating on the post of Garden Chaudhary since 01.01.1997, as such, he is entitled to the pay scale of Garden Chaudhary with effect from 01.01.1997. As a corollary, management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary. 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 : February 8, 2018 A. C. DOGRA, Presiding Officer

नई दिल्ली, 28 फरवरी, 2018

का.आ. का.आ. का.आ. का.आ. 429429429429....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार,

अखिल भारतीय चिकित्साअखिल भारतीय चिकित्साअखिल भारतीय चिकित्साअखिल भारतीय चिकित्सा वि[ान संस्था वि[ान संस्था वि[ान संस्था वि[ान संस्थानननन,,,, नई दिल्लीनई दिल्लीनई दिल्लीनई दिल्ली और अन्य और अन्य और अन्य और अन्य एवं उनके कर्मचारी के प्रबंधतंत्र के संबt नियोजकों और उनके

कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरणय सरकार औद्योगिक अधिकरण एवं 9म न्याएवं 9म न्याएवं 9म न्याएवं 9म न्यायालय दिल्लीयालय दिल्लीयालय दिल्लीयालय दिल्ली सं सं सं सं.... 1 1 1 1 के

पंचाट ((((संदर्भसंदर्भसंदर्भसंदर्भ संख्यासंख्यासंख्यासंख्या 135135135135/201/201/201/2017777)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 09.02.2018 को प्राप्त Fआ था ।

[सं. एल-42011/154/2016-आई.आर. (डीयू)]

राजें- जोशी, उप िनदेशक1866 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

New Delhi, the 28th February, 2018

S.O. 429.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (ID No. 135/2017) of the Central Government Industrial Tribunal-cum- Labour Court No. 1, Delhi as shown in the Annexure, in the Industrial Dispute between the employers in relation to the All India Institute of Medical Sciences, New Delhi & Others and their workmen, which was received by the Central Government on 09.02.2018.

[No. L-42011/154/2016-IR (DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

IN THE COURT OF SHRI AVTAR CHAND DOGRA, PRESIDING OFFICER, CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT NO.1, ROOM NO. 511, DWARKA COURT COMPLEX,

SECTOR-10 DWARKA, DELHI-110075

ID. NO. 135/2017

Shri Ajay Kumar Mahlik Through,

Jagriti Labour Union,T- 42/1,

Malviya Nagar Corner, Opposite Post Officer,

New Delhi-110017. —Claimant.

Versus

1.All India Institute of Medical Sciences,

Ansari Nagar,

New Delhi.

2.M/s HSCC (India) Ltd.

E-6 (A) Sec-1, Noida,

Uttar Pradesh.

3.M/s RDB Reality & Infrastructure Ltd.,

Bikaner Building , Ist Floor, Room No. 10,

8/1 Lal Bazar Street, Kolkata,-700071 (WB) —Managements.

AWARD

In the present case, a reference was received from the appropriate Government vide letter No. L-142011/154/2016-IR(DU) dated 12.05.2017 under clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Act, for adjudication of a dispute, terms of which are as under:

"Whether the workman Shri Amar Mohanty is entitled to receive Rs. 120000/- on account of pending legal dues from Shri Ajay Kumar Mahlik who had employed the workman for M/s RDB reality & Infrastructure Ltd., for executing the contract awarded by M/s Rites Ltd. to construct a building for AIIMS? If yes, what directions are necessary in this respect?"

2. In the reference order, the appropriate Government commanded the party/ies raising the dispute to file statement of claim, complete with relevant documents, list of reliance and witnesses with this Tribunal within 15 days of receipt of the reference order and to forward a copy of such statement of claim to the opposite parties involved in the dispute. Despite directions so given, Claimant opted not to file his claim statement with the Tribunal.

3. On receipt of the above reference, notice was sent to the workman as well as the managements. Neither the postal article sent to the claimant, referred above, was received back nor was it observed by the Tribunal that postal services remained affected during the period, referred above. Therefore, every presumption lies in favour of the fact that the above notice was served upon the claimant. Despite service of the notice, claimant opted to abstain away from the proceedings. No claim statement was filed on his behalf. Thus, it is clear that the claimant is not interested in adjudication of the reference on merits.

4. Since the claimant has neither put in his appearance nor has he led any evidence so as to prove his cause against the managements, as such, this Tribunal is left with no choice, except to pass a 'No Dispute/Claim' award. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.

Date: 06 February, 2018 . A. C. DOGRA, Presiding Officer

नई दिल्ली, 1 मार्च, 2018

का.आ. का.आ. का.आ. का.आ. 430430430430....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, भारतीय स्टेभारतीय स्टेभारतीय स्टेभारतीय स्टेट बैंकट बैंकट बैंकट बैंक के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार य सरकार य सरकार य सरकार औद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरण नं.नं.नं.नं. 2222,,,, मुम्बमुम्बमुम्बमुम्बई ई ई ई के पंचाट ((((संदर्भसंदर्भसंदर्भसंदर्भ संख्यासंख्यासंख्यासंख्या 68686868/20/20/20/2008080808)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 01/03/2018 को प्राप्त Fआ था ।

[सं. एल-12012/73/2008-आई.आर. (बी-1)]

रिव कु मार, अनुभाग अिधकारी

New Delhi, the 1st March, 2018

S.O. 430.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 68/2008) of the Central Government Industrial Tribunal-cum- Labour Court No. 2, Mumbai as shown in the Annexure, in the Industrial Dispute between the management of State Bank of India and their workmen, which was received by the Central Government on 01/03/2018.

[No. L-12012/73/2008-IR (B-1)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT

M. V. Deshpande

Presiding Officer

REFERENCE NO. CGIT-2/68 of 2008

EMPLOYERS IN RELATION TO THE MANAGEMENT OF

STATE BANK OF INDIA

The Dy. General Manager [Personnel) & HRD,

State Bank of India,

Mumbai Branch,

Mumbai Samachar Marg, P.B. No. 13,

Mumbai – 400 023.

AND

THEIR WORKMEN.

Shri Prashant Deshpande,

53/106, Sagar Housing Society,

Chhatrapati Shivaji Raje Complex,1868 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] Opp. Ekta Nagar, Malad [East],

Mumbai – 400 067.

APPEARANCES:

FOR THE EMPLOYER : Mr. M.G. Nadkarni,

Advocate

FOR THE WORKMEN : Mr. M.B. Anchan,

Advocate

Mumbai, dated the 23rd January, 2018.

AWARD PART - I

1. 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-12012/73/2008 – IR (B-1) dated 18.12.2008. The terms of reference given in the schedule are as follows :

"Whether the action of the management of State Bank of India, Main Branch, Mumbai in imposing the penalty of dismissal of Sri Prashant Deshpande vide order No. MMB/DGMS/538 dated 4.1.2007, is justified ? If not, to what relief the concerned workman is entitled ?"

2. After the receipt of the reference, both the parties were served with the notices. They appeared through their respective representatives.

3. Second party workmen filed statement of claim Ex.5. According to the second party workmen, he was working as Assistant in Mumbai Main branch of S.B.I. He was telephonically informed by the Personnel officer that his departmental enquiry will be held on 12.9.2006. Till that time he was not served with the charge sheet. On 12.9.2006 he was served with the charge sheet for the alleged misconduct of fraud of Rs.32558.64 in A/c. of Shri N. Narayan Pai's A/c. No. 913599.

(i) allegations are that the application for duplicate passbook was undated.

(ii) address thereon was at variance with one recorded on ledger folio.

(iii) style of a/c. given in the letter was different than one on record and the signature of the applicant was also at variance with one on record.

4. In this respect according to the concerned workman though the application was undated he had put the rubber stamp of the bank of having received the said application and registered the same in Inward Register on 29.10.03 and sent the application to the Manager Mr. Chhabria. Mr. Chhabria forwarded those desks to the concerned Desk Officer Mr. Kishore Vavia and Mr. Kishore Vavia signed the application of Shri N. Narayan Pai having received the same and other entries are signed by Mr. Ajit Sakhardande in the Inward Dak Register having received the said documents. This application was sent to Mr. Chhabria's cabin after 2.00 p.m. at the close of bank hours. When he sent the application Form – H to Mr. Chhabria with Inward Dak Register, Mr. Chhabria sent the register with application Form – H to the concerned Desk Officer Mr. Kishore Vavia. The application was for urgent duplicate passbook. The duplicate passbook of Mr. Pai was prepared on the same day i.e. on 29.10.03 and the same was given to the representative of Mr. Pai on 31.10.03 by the Desk Officer Mr. Kishore Vavia. The cheque was prepared by Mr. Jaishree Vedak and delivered by Mr. Ajay Pawar to the representative of Mr. Pai, verifying the signature of the concerned parties and address of the parties letter of the Desk Officer Mr. Kishore Vavia. Therefore he is not involved in fraud of Mr. Pai's A/c. As such the charge is baseless.

5. It is also a case of the workman that in Form – C for closing the a/c. he has given the date 4.11.03. However, the cheque was prepared on 3.11.03 and delivered on the same day without his knowledge. In Form – C, closure form the signature of the account-holder was verified by the Desk Officer Mr. Kishore Vavia. In the form there is no column for address. He sent that form to the concerned officer who was duty-bound to verify the signature of the account- holder and address of the account-holder. As such the allegations are baseless.

6. According to the concerned workman, with regard to charge of fraud in PPF A/c. No. 913964 of Shri C.H. Pardiwala for Rs.3491000/-, allegations are that he had received the letter of authority to collect the cheque on 19.2.04 and not referred the letter to the concerned officer nor he did establish the identity of the person Shri Tiwari who had brought the letter of authority and handed over the cheque to him. In this respect it is the case of the concerned workman that he had not received the letter of authority from Mr. Tiwari nor he handed over the cheque to Mr. Tiwari since the cheque was not ready on 19.2.04 when Mr. Tiwari came to the bank to collect the cheque. The withdrawal form and extention form were received by him on 13.2.04. He registered the form in Inward Dak Register and forwarded the same to Mr. Chhabria, the Manager. On the same day Mr. Chhabria acknowledged the same by signing[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1869 the Dak Register. Thereafter Mr. Chhabria sent the same to the concerned Desk Officer Mr. Kumaran. Mr. Kumaran sent the Form – C to concerned clerk Mrs. Surekha Niman without verifying the signature of the customer Mr. Pardiwala. Mrs. Niman prepared the cheque for Rs.3533000/- vide cheque No. 922739. Subsequently, that cheque was acknowledged and another cheque was prepared for Rs.3491000/- vide cheque No. 982743 on instructions of Mr. Kumaran, the clerk Mrs. Niman handed over the cheque to Mr. Tiwari. Mr. Kumaran without verifying the signature of the customer instructed his clerk Mrs. Niman to prepare the cheque of Mr. Pardiwala and after obtaining two signatures one of Mr. Kumaran, Desk Officer and another Mr. Ansari Officer, handed over the cheque to Mr. Tiwari. As such he had no role in handing over the cheque to Mr. Tiwari. Hence the charge is baseless.

7. According to the concerned workman, the departmental enquiry held against him is against the principles of natural justice. On 12.9.06, he attended the enquiry and requested the Enquiry Officer to grant him time to arrange his defence counsel. Since the charges were of serious nature, he told to the E.O. on that day that he will engage the service of advocate Mr. Ashfaq. However, on 15.9.06 he was not permitted by the E.O. to defendant his case with the help of advocate and adjourned the enquiry on 19.9.06. He was not handed over the copies of the preliminary enquiry proceedings. Before proceeding with the enquiry, the E.O. did not ask him to submit his reply to the charge sheet. Before examining the management witnesses the E.O. allowed the Presenting Officer to thoroughly cross examine him and after his cross examination the P.O. examined 3 management witnesses. After completing the evidence of management witnesses the E.O. did not record his statement. The E.O. did not consider the documents submitted by him i.e. the statement of Mr. Vavia recorded in preliminary enquiry by MRA Marg Police Station stating that it is not relevant. The E.O. has not properly recorded the enquiry proceedings. Those who involved in preparation of cheques and delivered the cheques were not examined in enquiry proceedings and as such he was denied an opportunity to defendant properly in enquiry. Findings of the E.O. are perverse.

8. According to the concerned workman, on receipt of the enquiry report the disciplinary authority vide his letter dt. 13.1.06 given only 3 days time to submit his comments on E.O.'s findings. He submitted his comments challenging the enquiry proceedings and further findings of the E.O. He was served with show cause notice dt. 4.11.06. He submitted his reply to the show cause notice on 10.1.07. After giving him personal hearing the departmental authority vide order dt. 13.2.07 confirmed the punishment of dismissal from services. He preferred an appeal dt. 8.3.07 to the General Manager. His appeal has been rejected vide order dt. 6.8.07. Aggrieved by the decision of the Appellate authority he raised the dispute before ALC [C], Mumbai. Since the conciliation failed, the conciliation officer submitted his failure report to the Central Govt. and hence present reference.

9. The concerned workman is therefore asking for reinstatement in service with full back wages and continuity of service.

10. The first party No.1 resisted the statement of claim by filing written statement Ex.7 stating therein that the bank lodged FIR with MRA Marg Police station on the basis of which the concerned workman was arrested on 11.6.04. He was placed under suspension w.e.f. 11.6.04. Departmental proceedings were also initiated against him and a charge sheet dt. 29.3.06 was issued to him by disciplinary authority and enquiry into the charges framed against the workman was held by Mr. M.Y. Desai who was appointed as E.O. The said enquiry was held strictly in accordance with the principles of natural justice and the workman was afforded full opportunity to defendant himself.

11. It is also a case of the management that the E.O. submitted his report on 7.10.06 in which he held that the allegations leveled against the workman relating to fraud in PPF A/c. of Shri N. Narayan Pai and Shri C.H. Pardiwala stood proved on the basis of oral & documentary evidence led at the enquiry. E.O.'s report was forwarded vide letter dt. 13.11.06 to the workman and he was advised to submit comments. The workman made his submissions on E.O.'s report. After duly considering entire material on record, the E.O.'s report CSE's submissions thereon, the departmental authority recorded his observations on 4.1.07. Considering the gravity of the charges proved against the workman, the departmental authority felt that one of the major penalty was warranted and accordingly departmental authority proposed imposition of penalty of dismissal without notice from bank service on the workman in terms of clause 6 (a) of the Memorandum of Settlement dated 10.4.02. The workman was called upon to show cause as to why the penalty should not be imposed upon him. The workman sought the personal hearing in the matter which was granted. After carefully examining the proceedings of the enquiry related papers, the report of E.O., submissions made by the workman during the course of personal hearing given to him the departmental authority did not find any tenable ground for reducing the punishment. Therefore the departmental authority passed his final order on 13.2.07 confirming the penalty of dismissal on the workman.

12. It is also a case of the management that the delay in serving the charge sheet was mainly attributable to the workman as he was not available on the last recorded address with the bank at which all the communications for effecting service of the charge sheet were sent but were returned 'undelivered'. The E.O. during enquiry had advised the workman that since the matter did not have legal intricacies and as the matter was not complicated, he may choose to be represented by member of registered union of the employees of which he was the member or any other member of the registered union of the bank to which the workman replied that he would depose on his behalf. As such the1870 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] workman was provided an opportunity to engage a defence representative to defendant his case. But the workman himself chose to defendant his case in person.

13. It is also a case of the management that the workman has signed the proceedings of the enquiry without any demur. Since the statement of Mr. Vavia, officer of the bank recorded by the MRA Marg Police station was not relevant to the departmental enquiry, it was so clarified by the E.O. to the concerned workman and therefore the E.O. was justified in rejecting the request of the concerned workman to bring the said statement on record. The workman himself has not objected to his examination before bank's witness being examined. He has made use of his evidence in the written submission filed by him and therefore no prejudice has been caused to the workman on account of his examination before examination of other witnesses of the bank.

14. It is then contention of the management that it was not necessary to record workman's statement after completing the recording of the evidence and no prejudice has been caused to the workman on this count. Even it was not necessary for the E.O. to ask the concerned workman to file his reply and produce defence witness since he was specifically advised in the charge sheet itself that he may submit his written statement and list of witnesses. Hence no prejudice is caused to the workman on this count. Since the workman has submitted his written submission on 4.10.16 which contained all the statements which the workman wanted to make in his defence, it was not necessary for the E.O. to record the statement of concerned workman after completing the evidence.

15. It is the case of the management that the workman was manning the counter and was thus the first point of control for the customers. His duties include handling of the documents received at the counter before forwarding the same to higher authorities. He has miserably failed to discharge his duties of processing and scrutinizing the documents received at the counter. The voucher Rs.100/- towards commission recovered from the account holder for issue of duplicate pass book was admittedly prepared by the concerned workman on 31.10.2003. The application submitted by the account holder for closure of the account was received by the workman on 31.10.2003 and the same was not scrutinized by him. He had recorded '4/11' at the top of the said application which specified that the workman himself had called the person, tendering the said application on 4.11.03 for receiving the bankers' cheque. He thus failed to discharge his duty of subjecting the said document to proper scrutiny. The said bankers' cheque was ready on 3.11.2003 and it was part of his duty to deliver the bankers' cheque if it was ready. He therefore handed over the said cheque to the holder of authority letter without obtaining his acknowledgement for having received the bankers' cheque.

16. It is thus case of the management that the findings of the E.O. are not perverse. He has reached the conclusion on the basis of evidence led at the enquiry. Since the charges proved against the workman were of grave nature, there cannot be any punishment other than dismissal. So according to the management the punishment imposed on the workman was quiet proportionate to the charges proved against him. On the premise the management has sought rejection of reference.

17. The concerned workmen reiterated by filing rejoinder Ex.8 that the charge is baseless. He has only received the application for duplicate pass book. That application was undated. He does not know whether that application was brought by Mr. Pai or his representative. After entering it in the Inward Dak Register he forwarded it to Mr. Chhabria. Since it was not his duty to identify the person who has brought the application for duplicate pass book as he was not having computer and ledger to verify their identity, he forwarded it to the officer concerned. Commission voucher was prepared by him since he was told by Mr. Vavia to prepare it and hand over it to him. Mr. Vavia after singing the commission voucher had told the customer to make the payment at cash counter and after the receipt of the cash payment of the commission the customer handed over that receipt to Mr. Vavia and after verifying the receipt, Mr. Vavia handed over the pass book to customer. He also reiterated that after receiving the application for closure of PPF A/c. of Mr. Pai on 31.10.03, he made the entry in Inward Dak Register and forwarded the same to Mr. Chhabria. Thereafter, he does not know what had happened to the closure application form. The bank prepared cheque on 3.11.03 and Mr. Vavia handed over the same to the customer on the same day and this has admitted by Mr. Vavia in his statement before police Ex. D-5. He was not involved in the said fraud as alleged and the charge that he collected for bankers' cheque dt. 3.1.03 for Rs.3273558/- is not correct. Shri Vavia had admitted in his statement before police that he and Mr. Shirodkar, second officer had signed the cheque and the same was given to Mr. Ajay Pawar, counter clerk to hand over the cheque to customer. Since he had not handed over the cheque, question of obtaining of acknowledgement letter does not arise.

18. It is also reiterated by the concerned workmen that Mrs. Niman handed over the cheque to the customer. This has been admitted by Mr. Kumaran in his statement before police. He has tried to produce that document in the enquiry. The E.O. refused to take it on record. His duties are only to receive the documents and enter them in the Inward Dak Register and forward it to the Manager. With this it is reiterated that the charges are not proved and the findings are perverse.

19. Following issue No.1 & 2 are framed at Ex.9. I reproduce the issues along with my findings thereon for the reasons to follow:

Reasons

Issue No.1 & 2.

20. So far contention go, it is the contention of the concerned workman that he attended the enquiry on 12.9.06 and informed the E.O. and the P.O. that he wanted time to engage the service of the defence counsel. On going through the enquiry proceedings, it appears that preliminary hearing in the case was held on 15.9.06 on which the workman was present and that day the E.O. when asked to the CSE i.e. concerned workman whether he wanted to defendant his case on his own or through a representative. That time the concerned workman [CSE] specifically told to the E.O. that he would like to be defended by an advocate to which the E.O. had told him that he did not permit so since the matter does not have any legal overtones or legal intricacies and the matter is of not complicated nature. The fact remains that the concerned workman specifically told to the E.O. that he wanted to be defended by an advocate and his request was turned down on the ground that matter is not complicated in nature.

21. As a matter of fact, on going through the charges leveled against the concerned workman, it appears that charges are of serious nature since he came to be dismissed on the basis of charges alleged to have been proved. It cannot be said therefore that the charges were of simple allegations and therefore it was necessary for the concerned workman to have been represented by the advocate. On the contrary on going through the enquiry proceedings, it appears that the concerned workman wanted to be defended by advocate Shri Ashfaq but then he was advised to get himself defended by defence representative and then it appears that the concerned workman deposed for himself. There is nothing on the record to show as to why the request of the concerned workman to have a lawyer as his defence representative was rejected. Even the management bank has not examined the E.O. who rejected the request of the concerned workman to satisfy in what circumstances the request of the concerned workman to have a lawyer as defence representative was rejected. In my considered view since the charges leveled against the concerned workman were of serious nature, a police complaint was filed against him, he was arrested and prosecuted and criminal proceedings were initiated against him then in that circumstances even in departmental enquiry he should have been given an opportunity to have lawyer as his defence representative and it appears that for no good reason his request was turned down.

22. In this respect if we see the cross examination of the management's witness who was P.O. during the course of enquiry. In his cross examination he has specifically admitted that there is provision in Bipartite Settlement to engage an advocate but then the permission of bank is essential for the same. He even admits that on 15.9.06 the workman had brought his advocate but then his advocate was not allowed as his defence representative in enquiry proceedings. He even admits that the workman wanted advocate as his defence representative because the bank employees were not ready to defendant him. When there is provision in the Bipartite Settlement that in such circumstances the CSE could be permitted to be represented by an advocate then there was no reason for the E.O. to turn down the request of the employee especially when he had made it clear that the bank employees were not ready to defendant him and therefore he had brought the advocate before the E.O. on 15.6.06.

23. Learned Counsel for the management bank submitted that paragraph 12.A of the Memorandum of Settlement dt. 10.4.02 stipulates that the CSE can avail the services of lawyer as defence representative only with the bank's permission and such permission can be refused if the allegations are very simple and they are not complicated. He seeks to rely on the decision in case of Hari Narayan Srivastava V/s. United Commercial Bank & Anr. – 1997 (4) SSC 384 to submit that there is no violation of natural justice by the respondent bank in not permitting the petitioner to be represented by the advocate in departmental enquiry. In para 5 of the judgment, it has been observed that on going through the charge sheet in the enquiry the allegations were very simple and they are not complicated. Under such circumstances it was considered that the failure to permit the petitioner to engage the advocate is not violative of principles of nature justice.

24. In the instant case on going through the allegations in the charge sheet it appears that allegations are pertaining to misappropriate huge amount of the bank respect of which police complaint was filed and the delinquent employee came to be arrested by the police and even during enquiry the employee came to be suspended. The allegations cannot be said to be very simple and not complicated. So the facts in the present case are quiet distinct and distinguishable. Even otherwise nothing has come on record as to why the E.O. has turned down the request of the concerned workman to have an advocate as his defence representative. It cannot be said that the workman on his own showed to defendant his case in person when infact he was entitled to be defended by lawyer as per the provisions of Bipartite settlement.

25. The next contention of the concerned workman in respect of fairness of the enquiry is concerned is in respect of production of copy of statement of Mr. Vavia, an officer of the bank recorded by MRA Marg police station which was refused by the E.O. to take on record on the ground that the said statement was not relevant to the departmental enquiry. Learned Counsel for the management bank submitted that the statement of Mr. Vavia recorded by the police was quiet distinct and separate from the departmental proceedings and therefore the E.O. was justified in rejecting the request of the workman to bring the said statement of Mr. Vavia on record of the enquiry proceedings.

26. At the first brush I would observe that the statement recorded by police u/s. 161 of Cr.P.C. during the course of investigation and enquiry though cannot be used at an enquiry or trial in respect of offence under investigation at the time when said statement was made but as per the proviso to section 162 of Cr.P.C. it can be used to contradict such witness in the manner provided by section 145 of the Evidence Act when any part of such statement so used. In view of that such statement can be part of the enquiry proceedings if it is relevant.

27. The statement was recorded by the police during the course of investigation in respect of facts known to Mr. Vavia who shall be bound to answer truly all questions relating to said case and in respect of facts which were also relevant in the enquiry proceedings and therefore there is no reason for the E.O. to reject the production of copy of said statement of Mr. Vavia on the ground that it was not relevant to the departmental enquiry especially when it was case of the concerned workman by way of defence in the enquiry proceedings that the statement of Mr. Vavia is the important document who was working in GAD during the material time and the concerned workman after registering the application which was undated on which he put the rubber stamp of the bank of having received said application, send it to Manager Mr. Chhabria and Mr. Chhabria forwarded those desks to the concerned Desk Officer Mr. Vavia who signed the application of Mr. Narayan Pai having received the same and that the signatures of the concerned parties and address of the parties are to be verified by the Desk Officer Mr. Vavia and that the Desk Officer Mr. Vavia instructed Mr. Ajay Pawar to prepare the duplicate pass book and then the duplicate pass book was given to the representative of Mr. Pai by Desk Officer Mr. Vavia. In respect of these facts the statement of Mr. Vavia recorded by police during investigation can be said to be relevant and then in the absence of evidence of E.O. it cannot be said that he was justified in rejecting the request of the workman to bring the statement of Mr. Vavia on record of the enquiry proceedings as defence exhibit.

28. On going through the enquiry proceedings even it appears that the statement of Mr. Vavia has not be recorded during the enquiry proceedings. It appears that during enquiry, statement of Mr. M.A. Khatib was recorded who stated in the enquiry that the CSE had told him that the representative of the party has approached for taking delivery of B/C and also the letter of authority but then the document in respect of PPF A/c. of Mr. C.H. Pardiwala and the application about the closure of PPF A/c. of N. Narayan Pai were not found. But then it appears that during his cross examination when he was asked by CSE that when the application of Mr. Pai was received on 29.10.03 how it was that the duplicate pass book was also issued on the same day on which this witness Mr. Khatib could not comment. Similarly, he could not comment on the question when it was asked to him during the enquiry by CSE as to how the B/C by Smt. M.N. Irani was issued on the same day i.e. on 23.9.03 on which the application of withdrawal was received. The second witness has been examined during the enquiry was Mr. Chhabria who appears to have stated in respect of Dak Register sent to him who used to put his initials whenever he had received it and in his cross examination by the concerned workman he could not say who was the Desk officer who initiated on the PPF Inward Dak Register on 29.10.03.

29. Third witness examined during the enquiry was Ms. Jayshree Vedak who appears to have stated during the enquiry that updation of pass book is handed by EMO and in case of discrepancy as to non-credit to cheque tendered by the customer, EMO would direct to the Assistant at the PPF Desk Officer. On the basis of this evidence the E.O. appears to have come to the conclusion that the charge No.1 as against the concerned workman is proved that since the application was received for duplicate pass book was received by the CSE and the commission voucher was prepared by him he considered the allegations as regards the fraud of Rs.3273558.64 as proved.

30. In respect of the allegations of charge of fraud in PPF A/c. No. 913964 of Mr. C.H. Pardiwala of Rs.3491000/- it was alleged that letter of authority was not intentionally referred to the Desk officer by the concerned workman and the identity was not established of the person who had brought the letter of authority and bankers cheque was handed over to him. On the basis of this evidence the E.O. found the charge to be proved on the ground that the concerned workman was handling the desk during the material period and since the withdrawal form – C does not bear the initials of Desk officer it indicates that it was not referred to the Desk officer intentionally and the bankers' cheque was delivered to the person without establishing his identity. The reasoning is based on the findings that since the concerned workman has not given any direct reply to the charge of the prosecution nor he has given any material argument against the charges of the prosecution he considered the charge as proved. This is one line reasoning of the E.O. in respect of this charge.

31. On going through the enquiry report, it appears that charge No.3 is not proved. It appears therefore that the E.O. without examining the material witnesses such as Mr. Vavia Desk officer etc. and without considering the documents in proper perspective has considered that the charges leveled against the concerned workman are proved. As such findings of the E.O. are perverse.

32. I say so because as a matter of fact it has come on record that the bank has filed proceedings for recovery of sum of Rs.4365442.66 with interest against defendant No.1 to 10. In that proceedings defendant 10 is NN Pai who is an account holder and who maintained the PPF A/c. No. 913599. In the said case it is contended that defendant No.1 in collusion with defendant No.2, 8, 9 defrauded the applicant bank and fraudulently obtained an amount of Rs.3273558.64 belonging to defendant No.10. In that proceedings concerned workman is defendant No.2. As per the judgment & order in that case the application as against the defendant No.2 & 9 stood dismissed and defendant No.1 & 3 to 8 are held liable to pay the amount. So far as contention of concerned workman in that case it was considered that he was only a counter clerk who has no authority to act upon the withdrawal form as well as the authority letter and it was finding of the fact that the bank could not establish by evidence that defendant No.2 who is a concerned workman has received the letter of authority and acted upon at the counter. The fact remains that the E.O. on the basis of same facts held the concerned workman guilty on the basis which Debts Recovery Tribunal held him not liable to pay the amount or to fasten any liability to claim the amount from him. This would also show that the findings of the E.O. are perverse.

33. As a matter of fact, it has also come on record that in criminal case which was initiated on the basis of same facts, ended in acquittal of the concerned workman. From the copy of judgment of the Session Court at Bombay in Criminal Appeal No. 110/2008 the judgment & the order of the conviction passed by the Metropolitan Magistrate convicting the concerned workman was set aside and the concerned workman is acquitted of the charges leveled against him.

34. In view of that the Learned Counsel for the management bank submitted that the acquittal in the criminal case is not determinative of the commission of the misconduct and it is open to the authorities to proceed with the departmental proceedings. It would per-se not entitle the employee to claim immunity from the proceedings. In the context he seeks to rely on the decision in case of Chairman & M.D., UCO Bank V/s. P.C. Kakkar – 2003 (4) SSC 364. He also seeks to rely on the decision in case of Sr. Suptdt. of Post Offices Pathamthitta & Ors. V/S. A. Gopalan – 1997 (II) SSC 239 to submit that the nature & scope of proof in criminal case is very different from that of departmental disciplinary proceedings and order of acquittal in the former cannot conclude the departmental proceedings. In criminal case charge has to be proved by proof beyond reasonable doubt where as in the departmental proceedings the standard of proof for proving the charge is mere preponderance of probability and therefore the order of removal from service emanating from departmental proceedings can very well be passed even after the acquittal in of the delinquent employee in criminal case.

35. He also seeks to rely on the decision in case of Avinash Sadashiv Bhosle [Dead] through LR V/S. Union of India – 2012 (13) SSC 142 to submit that the finding of the E.O. cannot be nullified so long as there is some relevant evidence in support of the consequence recorded by the E.O.

36. There can be no dispute about these legal propositions but then the fact remains that the E.O. has considered the charge as proved on the basis of same facts which were considered by the court and then acquitted the concerned workman.

37. So far as findings of the E.O. are concerned, it can be said that the findings are not based on the evidence. The question of fairness of enquiry and perversity are to be scrutinized on the basis of material on record of the enquiry proceedings and on going through the enquiry proceedings and the report of the E.O. it can be said that these findings are not based on evidence. The evidence as discussed above during the course of enquiry would show that the findings are perverse and without any reasons. It can also be said that the opportunities were not given to the concerned workman to have an advocate as his defence representative especially when the charges are serious in nature. The material witnesses such as Mr. Vavia and others have not examined to have some evidence on record to establish the alleged fraud, when infact it was contended by the concerned workman that he is only a counter clerk who has no authority to act upon withdrawal form as well as the authority letter which is subject matter of the enquiry. Even in the civil proceedings before Debts tribunal the bank did not controvert the said averment of the defendant No.2 who is the concerned workman.

38. Considering all the facts I find that the enquiry is not fair & proper and the findings of the E.O. are perverse hence I answer above issues accordingly as indicated against each of them and proceed to pass the following order.

ORDER

1. Enquiry is not fair & proper.

2. Findings of the E.O. are perverse.

3. Party No.1 to justify its action in the next stage of reference.

Date: 23.01.2018 M. V. DESHPANDE, Presiding Officer1874 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)]

नई दिल्ली, 1 मार्च, 2018

का.आ. का.आ. का.आ. का.आ. 431431431431....————औद्यौगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में के न्-ीय सरकार, स्टैंस्टैंस्टैंस्टैंडर्ड डर्ड डर्ड डर्ड चार्टर्ड चार्टर्ड चार्टर्ड चार्टर्ड बैंकबैंकबैंकबैंक के प्रबंधतंत्र के संबt नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निiर्दष्ट औद्योगिक विवाद में के न्Fीके न्Fीके न्Fीके न्Fीय सरकार य सरकार य सरकार य सरकार औद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरणऔद्योगिक अधिकरण संसंसंसं.... 2222 मुम्बमुम्बमुम्बमुम्बई ई ई ई के पंचाट ((((संदर्भसंदर्भसंदर्भसंदर्भ संख्यासंख्यासंख्यासंख्या 62626262/20/20/20/2008080808)))) को प्रकाशित करती है, जो के न्-ीय सरकार को 01/03/2018 को प्राप्त Fआ था ।

[सं. एल-12012/152/2008-आई आर (बी-1)]

रिव कु मार, अनुभाग अिधकारी

New Delhi, the 1st March, 2018

S.O. 431.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 62/2008) of the Central Government Industrial Tribunal-cum- Labour Court No. 2, Mumbai as shown in the Annexure, in the Industrial Dispute between the management of Stabdard Chartered Bank and their workmen, which was received by the Central Government on 01/03/2018.

[No. L-12012/152/2008-IR (B-1)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.2, MUMBAI

PRESENT

M. V. Deshpande

Presiding Officer

REFERENCE NO.CGIT-2/62 of 2008

EMPLOYERS IN RELATION TO THE MANAGEMENT OF

STANDARD CHARTERED BANK

The Head Employees Relations – India,

Standard Chartered Bank,

Human Resources Divn.,

23-25, M.G. Road, Fort,

Mumbai – 400 001.

AND

THEIR WORKMEN

Shri Jeroo Dastur & 12 Ors.,

92-B, 1st Floor,

Bhiwandi House,

Cumballa Hill,

Mumbai – 400 036.

APPEARANCES:

FOR THE EMPLOYER : Mr. Ashok D. Shetty &

Smt. P.S. Shetty

Advocates

FOR THE WORKMEN : Mr. R. D. Bhat,

Advocate[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1875

Mumbai, dated the 4th January, 2018

AWARD

1. 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-12012/152/2008 – IR (B-I) dated 18.11.2008. The terms of reference given in the schedule are as follows :

"Whether THE Petitioners viz., S/Shri Dastur & 12 others are workmen ? If these petitioners are workmen, whether the action of the management of Standard Chartered Bank, Mumbai by retiring them by force, is justified ? If not, what relief these petitioners are entitled ?''

List of Workman.

1. Jeroo J. Dastur.

2. Vasantha Dorairajan

3. Ingrid Pereira

4. Prafulla Sanjeev

5. Dilip Pathare

6. Anandkumar Y. Limaye

7. Shrikant G. Chodankar

8. Nandkumar M. Kelkar

9. Nitant D. Bandekar

10. Rita Talwar

11. Mariya Sylvia Aranjo

12. Kersi Ichhaporia

13. Sukrita Y. Nakray

2. After the receipt of the reference, both the parties were served with the notices. They appeared through their respective representatives.

3. Second party workmen filed statement of claim Ex.7. Ms. Jeroo J. Dastur joined the bank on 10.9.73 as a Typist at the 19, N.S. Road, Kolkata office of the bank and moved to Mumbai thereafter. She was required to take calls, do filing work and assist her superior with all secretarial jobs. Sometime in the middle of June 2001 she was suddenly summoned without prior notice and told to meet her superior Mr. Abhay Pandey who along with one officer of HR Dept. handed over resignation letter to her and called upon her to sign the same. She was also handed over the work sheet of her settlement details; however she resisted signing the letter. But thereafter she was inundated with calls from HR Dept. reminding her to sign and return the retirement papers. On 29.6.2001 she received a warning e-mail from Mr. Adrian Andrade of HR Dept. which stated that she will have to send the request for early retirement and sign the papers within a day. On 30.6.2001, HR Dept. warned her against coming to work after that day. Humiliated and traumatized her asking her to hand over the papers as directed, submitting her resignation letter dated 29.6.2001 which was accepted vide letter dated 30.6.2001 and was thus out of service w.e.f. 1.7.2001. That time she was serving as Secretary as Finance Information Systems office of the bank at 270, D.N. Road, Mumbai.

4. Mrs. Vasantha Dorairajan joined the bank on 2.5.74 as a Steno-cum-typist. Her job entailed compiling expense vouchers and capital exp. from all over the country and posting into proper account, balance the ledger, preparing tax returns, TDS returns and other supplementary returns. On 27.10.2001 she was called by HR Manager and told that they did not have any job for her in the new set up and hence she should not come to the office from 1.11.2001. Consequently, she submitted her resignation letter on 30.10.2001 which was accepted vide letter of even date i.e. on the same day and ceased to be in service w.e.f. 1.11.2001.

5. Ms. Ingrid Pereira joined the bank on 7.4.84 as Telephone Operator. The nature of work assigned to her was non-supervisory and totally routine in nature. The job entailed accepting the telex messages and sorting them out1876 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] alphabetically and numbering them for the officers to test and authenticate them and to see that they are being transmitted. In the end of May 2001 she was summoned by the Head of Zonal Processing Unit Mr. Abhijat Thakar and told to resign. But then she continued working as usual. After a month one Mr. Venkatesh of HR Dept. sent his Secretary Ms. Jenny Menezes to the workman to convey her that she has to resign. She resisted and asked for reason for the same to which she was informed that entire department was being outsourced and hence there was no position available for her. Thereupon she handed over the typed letter of resignation and told to sign the same. Her I-card was snatched from her. She then requested Mr. Mervin D'Silva to absorb her in the new set up or atleast employ her on contract basis but he flatly refused. Under the circumstances she submitted her resignation dated 27.7.2001 which was accepted on 1.3.2002.

6. Ms. Prafulla Sanjeev joined the bank on 25.9.74 as a Typist-cum-clerk. She was made an officer in 1983 and continued to do routine work throughout her tenure with the bank. She was working in Service Delivery Section of the bank. She served in several departments such as bills, share issue, clearing, documentation etc. In June 2001 her superior Ms. Manisha Agaskar was after her to submit her resignation but she did not submit her resignation. Thereafter Mr. Adrian Andrade from HR Dept. personally met her and told her if she would not do as told she would be sacked with inevitable disgrace and stigma. Upon being given an ultimatum to resign she made an appeal to the management vide letter dt. 15.6.2001. Lastly, she left with no option but to act at the biding of her superiors and finally submitted her resignation dt. 25.6.2001. Management accepted the resignation vide letter dt. 25.6.2001 relieving her of her services w.e.f. 1.7.2001.

7. Mr. Dilip S. Pathare joined the bank on 29.5.74. as typist-cum-clerk. He was made an officer on 1.12.87 and continued to do routine work throughout his tenure in the bank. He was working with domestic bills, back office section of the trade finance dept. of the bank. His job entailed receiving documents from the front office which were then scrutinized by the special assistant pointing out the discrepancy if any. Documents were then forwarded by the workman to the A/cs. Manager for his approval who then decide whether the documents were to be negotiated against customer limits or sent on collection basis through the correspondent bank. On 13.3.2001 Manager of the Dept. Mr. Vilas Risbud informed him that he was required to present in the conference room of the bank to meet the segment head. He entered the conference room. He found 3 officials present there who told him that due to restructuring within the bank there was no suitable position available for him and that he would have to quit. He was again called to the office conference room and told to submit retirement application immediately failing which he would be dismissed. Mr. Gulati informed him that he had no choice in the matter. He was held out a threat that he would be thrown out of premises with the help of security guards and would be forced to led a life of ignominy. Despite his request the management relieved him of services on 14.6.2001.

8. Mr. A.Y. Limaye joined the bank on 26.10.70 as Typist-cum-clerk. He was subsequently designated as officer on 10.4.1982 but continued to do routine work throughout his tenure in the bank. He was working with the finance dept. as Insurance Officer. In April 2001 he was summoned by his superior Mr. Mobedji and given ultimatum that he would have to submit his resignation since there was no job available for him in the new set up of the bank. He was forced to give resignation on 1.5.2001.

9. Mr. Shrikant Chodankar joined the bank on 1.4.72 as Typist-cum-clerk. He was subsequently designated as officer in 1991 but continued to do routine work throughout his tenure with the bank. His job entailed mechanically inputting data provided to him by his superiors. Till his promotion as officer, he worked as a Typist in Bills Dept, Securities Dept and later on as a Clerk in All depts. such as Savings, Current, Fixed Deposit, Remittance, Accounts, Clearing etc. He did the job under the supervision of his superiors. In July 2002 he was informed by his immediate superior Mr. Kishore Lad that he has to meet the panel of senior management. Management informed him that there was no job available for him anywhere that he would have to be out of the service of the bank by 30.9.2002. On 16.9.2002 his immediate superior received mail from Mr. Sachin of HR Dept. enquiring about the status of his resignation. He was threatened saying that if he would found on bank premises on 1.10.2002 he would be physically thrown out with the help of security guards. In the circumstances he submitted resignation letter dt. 20.9.2002.

10. Mr. Nandkumar Kelkar joined the bank on 16.1.92 as Systems Officer and was assigned technical and clerical work. He was working with Information & Technology Dept. of the bank. The job entailed taking print outs of the report and providing application and hardware support to the user departments. In January 2003 he received calls from the superiors demanding his resignation. In January 2003 he was called by his superiors – Kishore Lad, Vijay Reddy, Love Tandon and officer from Hongkong who communicated to him that his services were no longer required by the bank and that he should submit his resignation to the bank else he would be issued a letter of termination and public notice would be issued against him. Under these circumstances he submitted his resignation on 28.1.2003 which was accepted on 31.10.2003 effective on the same day. However, thereafter he received the letter from the Trustees of the bank on the preceding date i.e. 20.1.2003 advising him that his pension benefits have been finalized.

11. Mr. Nitant Bandekar joined the bank on 31.10.86 as Clerk-cum-typist and was assigned technical and clerical work during his tenure with the bank. He was promoted as System Operator on 17.11.88. The job entailed giving application and hardware support to the user departments and to upkeep the data centre and keeps the systems ready as per SLA. In January 2003, he was called by his superiors – Kishore Lad, Vijay Reddy, Love Tandon and officer from[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1877 Hongkong who communicated to him that his services were no longer required by the bank and that he should submit his resignation to the bank else he would be issued a letter of termination and public notice would be issued against him. Under these circumstances he submitted his resignation on 28.1.2003 which was accepted on 31.1.2003 effective on the same day. However, thereafter he received the letter from the Trustees of the bank on the preceding date i.e. 20.1.2003 advising him that his pension benefits have been finalized.

12. Ms. Rita Talwar joined the bank on 15.2.98 as Typist-cum-Cashier. Subsequently, she was given designation of officer on 21.6.91 but continued to do the routine work throughout her tenure with the bank. She was working with the bank office operations of the bank under the name of SCOPE International P. Ltd. She worked in diverse depts. such as Cards Division, retail lending & clearing. She was handling stop payment, attached accounts, deceased accounts and unclaimed accounts. The job entailed calculation of charges for stop payments, receipt of attachment orders, notices from statutory authorities, tagging the accounts processing the payments. She was required to manually input thousands of accounts details on the computer. On 3.9.2001 she was issued a letter deputing her to SCOPE International P. Ltd. In April 2002 she was summoned by her superiors Mr. Abhijat Thakar and Mr. Arun Ganpathy who informed him that she should stop coming to the office from 1.5.2002 and that she should submit her resignation. She was told that in case she did not resign, she should not be allowed to enter the premises after 30.4.2002. Under these circumstances she handed over the resignation letter to Mr. Ganpathy which was accepted vide letter dt. 26.8.2002.

13. Ms. Maria S. Aranjo joined the bank on 1.4.74 in the non-management cadre of the bank. She worked in the depts. of Finance, Accounting Control and General Administration. The nature of work assigned to her was non- supervisory and totally routine in nature. Duties entrusted to her were primarily the processing of expense vouchers, various claims of medical, water, light and fuel, car expenses vouchers, preparation and updation of data base of the employees of the bank and helping the general administration. On 17.10.2001 she was told that there was no job available for her. She was handed over sheet giving details of settlement dues. Under these circumstances she handed over the letter on 31.10.2001 and left the premises. Bank accepted the resignation on 31.10.2001.

14. Mr. Kersi Ichhaporia joined the bank as clerk on 19.5.69 and promoted as officer on 3.1.88. He was assigned various duties which were routine and clerical in nature. He was required to make entries in the pass book which were then authenticated by his superiors. He was given task of posting vouchers on machines etc. In November 2002 he was summoned by his superiors and told not to come to the office from 1.12.2002. He sent legal notice to the bank on 27.9.2003 which was replied by the bank on 24.10.2003. No resignation letter was sought from him.

15. Ms. Sukrita Y. Nakray joined the bank on 11.2.1971 as a Clerk-cum-Typist. She was promoted as an officer on 16.12.1988. She worked in the Funds Transport, bank office operations, output control and Consumer banking Services of the bank. In March 2001 she was called by her superiors Mr. Inder Camotra, Mr. Shantanu Shyam and Mr. Radhakrisnan and told that her services were no longer required by the bank and she should submit her resignation. She was told that in case she refused for the same she would be issued termination letter and the bank will also come out with public notice to that effect which would jeopardize the chances of seeking another employment. Under duress she submitted her resignation letter on 22.6.2001 along with covering letter that speaks for itself. Resignation was accepted vide letter dt. 25.6.2001.

16. It is the case of the concerned workmen that they have not tendered the resignation on their own volition. Entire exercise of tendering resignations and their acceptance was colourable exercise of the powers by employer upon the employees. They were coerced into tendering their resignations for paltry amount and their statutory rights were muzzled as such the first party employer arbitrarily terminated their services under the garb of resignation without following the due process of law. The terminations are malafide, vindictive, illegal and stigmatic.

17. It is also a case of the concerned workmen that the action on the part of first party employer was on account of restructuring the functioning of the bank and a permanent reduction in number of employees. The first party was therefore required to give notice as per the provisions of section 9A read with item 11 of Fourth Schedule and Rule 34 of the Industrial Disputes Act, 1947. There is breach of section 25 (F) and Section 25 (G) of the Industrial Disputes Act, 1947. Therefore they made an application before RLC under the provisions of the Industrial Disputes Act, 1947 for conciliation on 29.9.2003. Vide order dated 6.1.2004 / 11.2.2004, ALC [C] – III dismissed their applications. Aggrieved by the said order the workmen preferred writ petition before the Hon'ble High Court being WP No. 2882/2005. Vide order dt. 10.11.2007. The Hon'ble High Court allowed the petition of the workmen. Pursuant thereto ALC sent a failure report to the Central Govt. whereupon the instant reference has been made. They are therefore asking to hold & declare that their services have been terminated by the first party and that the resignations procured by the first party are void and illegal. They are also asking to direct the employer to treat them as in continued employment of the first party or in the alternative direct reinstatement of the workmen and to pay full back wages to them with continuity of service and benefits.

18. First party management resisted the claim by filing written statement Ex.9. It is the contention of the first party that the concerned workmen are not workmen as defined by section 2 (s) of I.D. Act, 1947 and as per the records of job description of the 13 persons they were to perform duties of the management staff of the bank and by no stretch1878 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] of imagination the said duties would be called as clerical duties. They were drawing salaries in the pay scale of management staff of the bank and also availed of loans and pre-requisites from the bank as per the terms applicable to management staff.

19. It is then contended by the management that the concerned workmen accepted all financial benefits. They chose to raise this matter of alleged illegal termination only after accepting all the financial benefits. The bank infact did not seek their resignation but the employees themselves obtained for early retirement on their own volition. They are receiving their pension in terms of their service conditions from the bank and hence the question of reinstatement with full back wages as claimed by them does not arise.

20. It is also a case of the management that Standard bank acquired ANZ Grindlays Bank in the year 2000 and as part of the integration processes, some of ANZ Grindlays Bank officers opted for early retirement. As per normal process of retirement the bank accepted the applications of the employees of the early retirement and gave them financial benefits as per the policy prevailing at that time which was accepted by them. Final settlements were made to their salary accounts after all the formalities were completed including deduction of tax at source. They have been paid PF dues, gratuity dues and additional amount of ex-gracia. They are now pensioners and the pension amount is being credited to their S.B. A/c. in the bank for every month. They have not resigned from the bank by giving letters expressing their desire to retire from the services. They were not even entitled to ex-gracia which the bank paid out of goodwill. The letters dated 14.1.2002 by them by way of appeal, were afterthought to create the record for the purpose of litigation as is evident from the fact that the signatories to the letter had already submitted letter of resignation which was duly accepted by the management of first party. Their PF, ex-gracia, gratuity were already settled and signatories to the letters are already receiving pension.

21. It is then case of the management that Ms. Jeroo J. Dastur submitted her resignation letter on 29.6.2001 out of her own freewill without any coercion from the superior officers of the first party and it was accepted by the bank on 30.6.2001. Ms. Vasantha Dorairajan was relieved of her services on 1.11.2001 after she submitted letter of resignation dt. 30.10.2001 which was accepted. Ms. Ingrid Periera also submitted the resignation dt. 27.7.2001 to the management which was accepted vide letter dt. 1.3.2002. Ms. Prafulla Sanjeev submitted her resignation dt. 25.6.2001 to the first party on her own volition which was accepted on the same day and she was relieved w.e.f. 1.7.2001. Mr. Dilip s. Pathare submitted his resignation which was accepted by the bank only after receipt of his letter requesting the bank to consider his resignation and accordingly he was relieved from services w.e.f. 14.6.2001. Mr. Shrikant Chondankar submitted his resignation on 20.9.2002 which was accepted by the management. Mr. Nandkumar Kelkar submitted his resignation on 28.1.2003 which was accepted by the bank on 31.10.2003. Mr. Nitant Bandekar also submitted his resignation by letter dt. 28.1.2003 which was accepted on 31.1.2003. Ms. Rita Talwar submitted her resignation out of her own freewill without any force which was accepted by the management and she was relieved from her services. Ms. Maria S. Aranjo also submitted her resignation dt. 31.10.2001 by her own freewill without any force which was accepted on the same date. Ms. Sukrita Y. Nakray submitted resignation dt. 22.6.2001 willingly without any force and on her own volition.

22. It is precisely the case of the management that there was no any breach of section 25 [F] and 25 [G] of I.D. Act. There was no retrenchment of any staff in case of these workmen and therefore the question of paying compensation to them does not arise. The concerned workmen had willingly submitted their resignations which were accepted by the management. On these premises, the first party management has sought rejection of the reference.

23. Following issues are framed at Ex.13. I reproduce the issues along with my findings thereon for the reasons to follow:

Reasons

Issue No.1.

24. So far contention go, the averments contained in the affidavits of the concerned workmen and in the statement of claim, is to the effect that none of them has any authority to take any decision on his / her own and that all the[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1879 actions were taken by them as per the instructions of the management of the dept. There is no cross examination in this respect. Even though it was tried to believe that they were promoted in the course of their service and that they were drawing salaries in the pay scale of the management staff of the bank and also availed of loans and pre-requisites of the bank as per the terms applicable to management staff.

25. In this respect it will have to be said that the designation of the employee is not relevant. What is required to be ascertained is the dominant nature of the work. The word 'supervise' and its derivatives are not words of process import and must often be construed in the light of context for unless controlled them cover and easily simple oversight and discretion as manual work coupled with the power of inspection and superintendent of the manual work of others. In the context the hand can be laid on the decision in case of Sharad Kumar V/S. Govt. of NCT of Delhi – 2002 (93) FLR 826.

26. From the evidence of the concerned workmen it has come on record that Ms. Jeroo J. Dastur the concerned workman was working as a Secretary in the Finance Information Systems and the nature of work assigned to her was non-supervisory and totally routine in nature. She was required to take calls, do filing work and assist her superior with all secretarial jobs. So far evidence of Ms. Vasantha Dorairajan is concerned, he claims that he was promoted as staff on special rates of pay and his designation was below that of officer. The nature of his work consists compiling express vouchers and posting into designated accounts, balancing the ledger, filing of returns, TDS returns and other supplementary returns. Similarly the job entailed to Ingrid Periera was accepting of telex messages, sorting them out alphabetically and numbering them and putting them upto officers to test of messages and then see that they are being transmitted. The work assigned to Prafulla Sanjeev was of checking the telex received and tallying the amount given in the telex with cheque and was initial check and putting it up to his superior before dispatch. The work assigned to Dilip Pathare was automation work of various branches and doing the balancing and reconciliation of savings bank, current a/c. fixed deposits etc. Similarly the work assigned to Anandkumar Y. Limaye was also in respect of issuing pay orders based on telexes received. According to him he had no powers whatsoever to make any change in the mandate given in telex messages. Shrikant G. Chodankar was assigned the duties in various depts. as Typist in bills inland trade securities, current accounts, fixed deposits, remittances, clearing etc. Nandkumar M. Kelkar was also assigned duties pertaining to data centre operations. Nitant D. Bandekar was assigned duties of processing the deposits of all the cluster branches of Bombay including statutory deductions of taxes and pertaining all international external returns as per laid down audit norms. Maria S. Aranjo was assigned duties of clerical and secretarial work as of routine. Kersi Ichhaporia was assigned routine duties which were clerical in nature. Sukrita Y. Nakray was assigned duties of processing of all inward authenticated messages received from corresponding bank.

27. Considering the nature of duties assigned to the concerned workmen it can be said that though they are said to be promoted as officers, nature of their work which they were doing while service was not supervisory.

28. In case of all India RBI employees & Anr. V/S. RBI & Anr. – AIR 1966 – SC 305, it is held that the work of the bank involved layer upon layer of checking and checking is hardly supervision but where there is power of assigning duties and distribution of work there is supervision.

29. It can be said therefore that to have supervisory work the employee must occupy the position of command and direction and should be authorized to act without sanction of the Manager or Supervisors. The name or the designation of the employee is not determining test. Mere checking work of others is also not enough because checking is a part of accounting and not of supervision. The work done in the audit dept. of the bank was not supervision. In view of this legal position if we see the work assigned to the concerned workmen it can be said that the work which they were doing while in service was not supervisory. Therefore their designation is not relevant. Merely saying that they were promoted as officers does not mean to say that they were not the workmen within the meaning of section 2 (s) of the act.

30. Even then the Learned Counsel for the first party submitted that Dilip Pathare in his cross examination has accepted that his work was of supervisory in nature. He submits that the concerned workmen were drawing the salaries in the pay scale of the management staff of the bank. The submission is also to the effect that the concerned workmen have not produced any documents to show that they were performing the duties of the workmen when infact it was burden on the workmen to clear and prove the duties performed by them. Since they were promoted to the cadre of officers and drawing salary in the pay scale of management staff. They were not the workmen within the meaning of section 2 (s) of the act.

31. Learned Counsel for the management seeks to rely on the decision in case of Standard Chartered Bank V/S. Vandana Joshi – 2010 II LLJ 409 to submit that in order that a person can be designated as workman u/s. 2 (s), he must be employed to do the work which falls within the stipulated categories i.e. manual, un-skilled, skilled, technical, operational, clerical or supervisory.

32. To be precise the submission is that the 13 concerned workmen can no stretch of imagination be deemed to be of clerical nature and routine work. It is not possible to countenance the view propounded by the Learned Counsel for the management in this respect because as per the contention of the management the concerned workmen are relieved from their services. Obviously, they were not in a position to procure the documents maintained by the bank. On the1880 THE GAZETTE OF INDIA : MARCH 3, 2018/PHALGUNA 12, 1939 [PART II—SEC. 3(ii)] contrary the management witness No.2 has merely identified Ex.42 to 55. He clearly admits that he has not filed the documents to show that the concerned workmen were doing any important work. He admits that his involvement was restricted to calculation of dues of the employees. He then admits that employees covered by Bipartite settlement are getting Rs.9000/- p.m. but the concerned workmen with the reference are getting Rs.2000/- p.m. by way of pension. As per his own admission he does not know whether any of the employees concerned in the reference is given power of attorney of the bank. Under these circumstances there is no evidence on the part of bank to prove that the concerned workmen in this reference are not the workmen under the law. It appears that in the present case, employees concerned with the reference have been doing routine clerical work. They were not doing pre-dominantly any managerial or administrative work. They did not have authority to take any independent decision.

33. Considering the evidence that has come on record and the legal position that stands, I have come to the conclusion that the concerned workmen are workmen within the meaning of section 2 (s) of the act. Issue No.1 is therefore answered accordingly in the affirmative.

Issue No. 2 & 3.

34. So far contentions go, it is again the contention of the concerned workmen that the resignations were obtained from them under coercion and under influence of management. In the cross examination the workmen concerned have admitted that they submitted resignations which were accepted by the management and their retirement benefits were credited in their saving accounts. Vasantha Dorairajan has admitted in cross examination that he received the amount of gratuity and PF. Amounts were credited in his account. Even he has withdrawn the money from his account. Even Prafula Sanjeev has admitted in her cross examination that she is getting some amount by way of pension. She received gratuity, PF, other statutory benefits which were credited in his account till the date of her service and she had withdrawn the same and also utilized the same. Similarly, the other workmen namely Dilip Pathare, Anandkumar Y. Limaye, Shrikant G. Chodankar, Nandkumar M. Kelkar, Nitant D. Bandekar have admitted that they received the pensionery benefits and also utilized the same. It appears therefore that on one hand these workmen have accepted the pensionery benefits and also utilized the same, they even did not make any complaint to the authorities concerned mentioning therein that they were forced to resign. But then after submitting the resignations they have accepted the benefits without any protest.

35. Therefore the question creeps in, in what manner they were forced to give resignations ? In this respect if we see the evidence of Jeroo J. Dastur, she states that she received warning email from Mr. Adrial Andrade of HR Dept who warned him on telephone that she should ask for early retirement and if she would not do so then she would be denied statutory terminal benefits. So far evidence of Sukrita Y. Nakray is concerned, she claimed that she has written a letter dt. 15.6.2001 wherein she had given the details mentioning that Mr. Inder Camotra, Mr. Shantanu Shyam and Mr. Radhakrisnan told her that there was no position available to her in the bank and therefore she handed over the letter for early retirement. In her evidence Manisha Agaskar stated to the effect that she received message from Mr. Inder Camotra mentioning therein that Mr. Camotra wanted to wish her the very best ahead who gave his personal regret to the effect that he could not do much. As seen earlier, Ms. Sukrita Y. Nakray refers to the letter dt. 14.1.2002 addressed to Patrik Gillam, Chairman of the bank wherein she wrote as under.

"During January 2001 to October 2001, all of us were asked to resign under duress though healthy,

capable and giving best in the bank, we were forced to resign by calling each one of us individually and

asking us to submit resignation or else face the consequences for non-compliance."

36. Learned Counsel for the concerned workmen submitted that the letter dt. 14.1.2002 has been replied by Shri Jaywant Nair which is at Ex.39 and then there are letters independently written by the workmen which are pertaining to pressure brought on them to resign from the services of the bank. He also refers to the evidence of Smt. Prafula Sanjeev, Dilip Pathare, S.V. Chondankar, N.D. Bandekar, Smt. Jeroo J. Dastur to submit that in their evidence they have categorically stated about the pressure brought on them to resign from services of the bank. In this view the submission is that the evidence of these witnesses would show that they were forced to resign.

37. It is not possible to accept this sort of evidence and the submission of the Learned Counsel for the concerned workmen. It is because on going through the resignation letters it clearly appears that these letters simply mention about the wish of the concerned workmen to have retired early from the services of the bank. The letters simply mention as follows.

"I wish to retire early from the services of the bank. Would appreciate if you could kindly relieve me

at the earliest."

38. The resignation letter of Ingrid Periera is dt. 27.7.2001. Thereafter the resignation was accepted and she was relieved from the services of the bank w.e.f. 1.9.2001 and by this letter dt. 2.8.2001 she was informed that the payments after adjusting the dues if any will be processed only after the receipt of completed forms. Similarly, the resignation letter of Ms. Maria S. Aranjo dt. 31.10.2001 simply mentions that she wishes to apply for early retirement from the services of the bank and her request may be considered. It appears that the letters to which the reference is made by the Learned Counsel for the concerned workmen are dt. 14.1.2002, 30.5.2001. But there is obviously no evidence to show[भाग II—खण्ड 3(ii)] भारत का राजपत्रा : मार्च 3, 2018/पफाल्गुन 12, 1939 1881 that the concerned workmen before submitting resignations or subsequent to resignations had given complaint to the police station mentioning therein that they were pressurized for signing the resignation letters. On the contrary it is admitted by them in their cross examination that no such complaint was given by them.

39. If really it could have been a fact that the concerned officers of the bank threatened them saying that they should give resignations otherwise they would not be given pensionery benefits then in that circumstances it was expected of them to lodge such complaint or to protest against the concerned officers at the earliest before submitting the resignation and then not to accept the pensionery benefits in pursuant to the resignations which were given under duress as is alleged by them. On one hand the concerned workmen are accepting the pensionery benefits by giving resignations and thereafter six months they are saying that they were forced to give resignation. This conduct on their part would suggest that they have raised after thought contentions to get more benefits. In my considered view the concerned employees have not brought any evidence to prove that the resignations were obtained from them under coercion and under the influence of management.

40. In the context, the Learned Counsel for the management seeks to rely on the decision in case of Bank of India & Ors. V/S. O.P. Swarankar & Ors. – (2003) 2 SCC 721 wherein it has been held in para 114 of the judgment that a group of employees who accepted the ex-gracia payment or any other benefits under the scheme could not have resiled therefrom. Similar is the situation herein the instant case where the employees are accepting the pensionery benefits, gratuity etc. and even getting the pension and then coming out with the case that they were forced to give resignation and rather resiling themselves from giving such resignation saying that the resignations were obtained under duress forcibly and under pressure. This is not permitted since they are not permitted to resile from their earlier act of giving resignations and even accepting the benefits and getting pension on the basis of such resignations. In view of this I find that the concerned workmen have failed to establish that the resignations were obtained from them under coercion and under the influence of management. On the contrary it can be said that these employees tendered the resignations on their own volition. The resignations were accepted by the management and upon acceptance of the same they are given benefits including gratuity and pension. Hence I answer the above issues accordingly as indicated each of them.

Issue No. 4.

41. Learned Counsel for the concerned workmen submitted that all the workmen concerned were confirmed employees of the bank. They were entitled to continue in their services in the bank till retirement or death which is earlier and therefore in view of item – 10 of Fourth Schedule of I.D. Act, notice of change was required to be given under the provisions of section 9A. In view of this the submission is that the action on the part of bank amounts to illegal termination of the services and they are entitled to be reinstated with full back wages and attendant benefits. Submission is that in respect of workmen who have expired or have retired, they are entitled to monetary benefits till the date of retirement.

42. It is not possible to accept this submission. As a matter of fact, it has come on record that the employees concerned have submitted their resignations on their own volition. The resignations were accepted and they received the benefits. There is absolutely no evidence that they were pressurized for resigning from the services of the bank. It is in that circumstances it cannot be said that they were retrenched or otherwise terminated from the services and in view of that they are not entitled to reliefs claimed. Issue No.4 is answered accordingly. Hence, I pass the following order.

ORDER

Reference is rejected with no order as to costs.

Date: 04.01.2018 M. V. DESHPANDE, Presiding Officer

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