6538 GI/2018

(6339)

jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05

REGD. No. D. L. (N) 04/0007/2003—05

izkf/dkj ls izdkf'kr

PUBLISHED BY AUTHORITY

lkIrkfgd

WEEKLY

la- 45]

ubZ fnYyh] uoEcj 11—uoEcj 17] 2018] 'kfuokj@dkfrZd 20—dkfrZd 26] 1940

No. 45] NEW DELHI, NOVEMBER 11—NOVEMBER 17, 2018, SATURDAY/KARTIKA 20— KARTIKA 26, 1940

bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds

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

Hkkx II—[k.M 3—mi&[k.M (ii)

PART II—Section 3—Sub-section (ii)

Hkkjr ljdkj ds ea=kky;ksa (j{kk ea=kky; dks NksM+dj) }kjk tkjh fd, x, lkafof/d vkns'k vkSj vf/lwpuk,a

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

(Other than the Ministry of Defence)

िवदेश

िवदेश मंालय

मंालय

(सी

सी

सी.पी

पी

पी.वी

वी

वी. . . . भाग

भाग

भाग)

नई द ली, 24 अ तूबर, 2018

का.आ.

का.आ. 1621

1621

1621.— राजनियक और कसुलीय अिधकारी (शपथ एवं फस) के अिधिनयम, 1948 (1948 का 41) क

धारा 2 के खंड (क) के अनुसरण म वैधािनक आदेश।

एतद् !ारा, क # सरकार भारत के कसुलवास, िमलान, म :

(1) $ी हेमंत कुमार, िनजी सहायक,

(2) $ी राकेश शमा', सहायक अनुभाग अिधकारी

(3) $ी दि(वजय *संह परमार, सहायक पि,लक वेलफ़ेयर ऑफसर को दनांक 24 अ तूबर 2018 से सहायक कसुलर

अिधकारीय के तौर पर कसुलर सेवा0 के िनव'हन के िलए 1ािधकृत करती है।

[सं. टी.4330/7/2016]

1काश च4द, िनदेशक (कसुलर)

6340

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

MINISTRY OF EXTERNAL AFFAIRS

(CPV DIVISION)

New Delhi, the 24th October, 2018

S.O. 1621.— Statutory Order: In pursuance of clause (a) of the Section 2 of the Diplomatic and Consular

Officers (Oaths and fees) Act, 1948 (41 of 1948), the Central Government hereby appoints :

(1) Shri Hemant Kumar, Personal Assistant,

(2) Shri Rakesh Sharma, Assistant Section Officer, and

(3) Shri Digvijay Singh Parmar, Assistant Public Welfare Officer as Assistant Consular Officers in the

Consulate General of India, Milan to perform Consular services with effect from 24 October, 2018.

[No.T.4330/01/2016]

PRAKASH CHAND, Director (Consular)

कामक

कामक, लोक िशकायत तथा पशन मंालय

लोक िशकायत तथा पशन मंालय

(काम क और िशण िवभाग)

नई द ली, 6 नव5 बर, 2018

का

का. आ.

. आ.

. आ. 1622

1622

1622.—के4 # सरकार एतद!ारा द ली िवशेष पुिलस 8 थापना अिधिनयम, 1946 (1946 का अिधिनयम

सं: या 25) क धारा 6 के साथ प?ठत धारा 5 क उपधारा (1) !ारा 1दD शिEय का 1योग करते Hए तेलंगाना राI य

सरकार, क जी.ओ.एम सं:या 105, गृह (िवशेष) िवभाग, दनांक 31.08.2017 के माN यम से 1ाO सहमित से जयनाथ

पुिलस 8टेशन, िजला अदलाबाद म भारतीय दंड संिहता 1860 (1860 का अिधिनयम सं:या 45) क धारा 409, 420 तथा

आवVयक व8तु अिधिनयम,1955 क धारा 7 के अंतग'त, दज' अपराध सं:या 89/2015 के संबंध म द ली िवशेष पुिलस

8 थापना के सद8 य क शिEय और XेYािधकार का िव8 तार सम8 त तेलंगाना राI य म करती है ।

[फा. सं. 228/42/2015-एवीडी.II]

एस.पी.आर. िY पाठी, अवर सिचव

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 6^th November, 2018

S.O. 1622.—In exercise of the powers conferred by sub section (1) of Section 5 read with Section 6 of the Delhi

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

Government of Telangana issued vide G.O.Ms. No. 105, Home (Special) Department, Dated 31.08.2017, hereby extends

the powers and jurisdiction of the members of the Delhi Special Police Establishment in the whole of the State of

Telangana, regarding the case registered in Cr. No. 89/2015 U/s 409, 420 of the Indian Penal Code, 1860 (Act No. 45 of

1860) and Section 7 of the Essential Commodities Act, 1955 of Jainath Police Station, Adilabad District.

[F. No. 228/42/2015- AVD.II]

S.P.R. TRIPATHI, Under Secy.

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6341

वािणय एवं उोग मंालय

(वािणय िवभाग)

नई द ली, 15 अ तूबर, 2018

का.आ.

का.आ. 1623

1623

1623.—के4#ीय सरकार, िनया'त (गुणवDा िनयंYण एंव िनरीXण) िनयम, 1964, के िनयम 12, के

उपिनयम (2) के साथ प?ठत, िनया'त (गुणवDा िनयंYण एंव िनरीXण) अिधिनयम, 1963 (1963 का 22) क धारा 7 क

उपधारा (1) !ारा 1दD शिEय का 1योग करते Hए, मैसस' ईटालैब (गोवा) 1ाइवेट िलिमटेड, ईटालैब हाउस, फो4डेकर

िब*डंग, काम^लाइट मोने8टरी के सामने मालभाट, मडगांव, गोवा - 403601, को इस अिधसूचना के राजपY म 1काशन क

तारीख से तीन वष' क अविध के िलए भारत सरकार के वािणIय मंYालय क शासकय राजपY भाग- II, खं` ड-3, उप खं` ड

(ii), म दनांक 20 दस5बर, 1965 क अिधसूचना सं. का.आ. 3975 के तहत 1कािशत अिधसूचना म उपाबa अनुसूिचय म

िविनbद'c खिनज और अय8क समूह-I, अथा'त्, लौह अय8 क, मdगनीज अय8क, फेरोमeगनीज और बॉ साइट को िनया'त से पूव'

िन5 निलिखत शतg के अधीन गोवा पDन म उ त खिनज और अय8 क के िनरीXण करने के िलए एक अिभकरण के hप म

मा4यता देती है, अथा'त् :—

(i) यह अिभकरण, खिनज और अय8क समूह-I का िनया'त (िनरीXण) िनयम, 1965 के िनयम 4 के अधीन िनरीXण

क पaित क जाँच करने के िलये िनया'त िनरीXण प?रषद् !ारा नािमत अिधका?रय को पया'O सुिवधाएं देगी;

और

(ii) यह अिभकरण, इस अिधसूचना के अधीन अपने कायj के पालन म िनदेशक (िनरीXण और गुणवDा िनयंYण)

िनया'त िनरीXण प?रषद !ारा समय-समय पर िलिखत kप म दए गए ऐसे िनद^श से आबa हगी ।

[फा.सं. के-16014/6/2018-िनया'त िनरीXण]

संतोष कुमार सारंगी, संयु त सिचव

MINISTRY OF COMMERCE AND INDUSTRY

(Department of Commerce)

New Delhi, the 15^th October, 2018

S.O. 1623.—In exercise of the powers conferred by sub-section (1) of section 7 of the Export (Quality Control

and Inspection) Act, 1963 (22 of 1963), read with sub-rule (2) of rule 12 of the Export (Quality Control and Inspection)

Rules, 1964, the Central Government hereby recognizes M/s Italab (Goa) Private Limited - Goa, Italab House, Fondekar

Building, Opposite Carmelite Monastery, Apollo Victor Hospital Road, Malbhat, Margao, Goa - 403601, as an agency

for a period of three years with effect from the date of publication of this notification in the official Gazette, for the

inspection of Minerals and Ores – Group-I, namely, Manganese Ore, Iron Ore, Ferromanganese and Bauxite specified in

the Schedule to the notification of the Government of India in the erstwhile Ministry of Commerce, published vide

number S.O. 3975, dated the 20^thDecember, 1965, in the Gazette of India, Part II, Section 3, Sub-section (ii), dated the

20^thDecember, 1965, prior to export of the said Minerals and Ores at Goa Port, subject to the following conditions,

namely: —

(i)

the said agency shall give adequate facilities to the officers nominated by the Export Inspection Council in

this behalf to carry out the inspection as specified under rule 4 of the Export of Minerals and Ores - Group I

(Inspection) Rules, 1965; and

(ii)

the said agency, in the performance of its function as specified in this notification, shall be bound by such

directions, as the Director (Inspection and Quality Control), Export Inspection Council, may give in writing

from time to time.

[F. No. K-16014/6/2018-Export Inspection]

SANTOSH KUMAR SARANGI, Jt. Secy.

6342

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

Je ,oa jkstxkj ea=ky;

ubZ fnYyh] 25 vDrwcj] 2018

dk-vk- 1624-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj]

jftLVªkj tkfe;k fefy;k bLykfe;k] ubZ fnYyh ,oa muds deZpkjh ds izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] la- 1] fnYyh ds iapkV ¼lanHkZ

la[;k 175@2012½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 12-10-2018 dks izkIr gqvk FkkA

[la- ,y&42012@58@2012&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 25th October, 2018

S.O. 1624.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (ID. No. 175/2012) 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

Registrar, Jamia Milia Islamia, New Delhi and their workman, which was received by the Central Government on

12.10.2018.

[No. L-42012/58/2012– 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, KARKARDOOMA COURT COMPLEX, DELHI

ID No. 175/2012

Shri Ashok Kumar,

S/o Shri Sant Ram,

C/o Shri R.K. Pandit, Advocate,

Chamber No.232, Civil Wing, Tis Hazari Court,

Delhi

…Workman

Versus

The Registrar,

Jamia Milia Islamia,

Jamia Nagar,

New Delhi 110 025

…Management

AWARD

A reference was received from Ministry of Labour, Government of India vide letter No.L-42012/58/2012-

IR(DU) dated 08.11.2012 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, terms of which are as under:

‘Whether the action of the management of Jamia Milia Islamia, New Delhi in terminating the services of

Shri Ashok Kumar, S/o Shri Sant Ram, Safai Karamchari with effect from 10.11.2006 is justified or not? If not,

what relief the workman is entitled to and from which date.

Brief facts giving rise to the present reference are that Shri Ashok Kumar, claimant herein, was appointed as

Safai Karamchari per due process of law by the management on 27.01.1992. Since then he has been performing his

duties with the management with no break in service honestly and sincerely. Workman was on medical leave due to

illness in 2005, which was duly sanctioned by the management. After availing the said leave, claimant herein returned to

report for duty when he was declared to be medically fit vide certificate dated 10.05.2006. Officials of the management

have not allowed claimant to resume his duties without any order. Workman was told that his file pertains to

reinstatement and has been sent to the higher authorities for getting sanction and then only he can be allowed to resume

his duties. Unfortunately, management never called the workman thereafter so as to join duties. Workman gave several

representations to the higher officials of the management with a request to allow him to resume duties but of no use. He

even approached officials of the management as well as office of the Registrar in the month of August 2010 and he was

orally intimated that his services have been terminated. Aforesaid termination of services of the workman is in

completion violation of principles of natural justice as no show cause notice was served upon the workman nor any

domestic enquiry was conducted. Termination even otherwise is in violation of Section 25F, G and H of the Industrial

Disputes Act, 1947(in short the Act). Workman had also filed conciliation proceedings before the Conciliation Officer

but the attitude of the management was non-cooperative resulting in failure of conciliation.

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6343

3. Management filed reply to the statement of claim and took preliminary objections that reference is bad as this

Tribunal has no jurisdiction in the matter. The reference is otherwise not maintainable in view of Clause 29 of Jamia

Milia Islamia Act, 1988, according to which disputes between answering management and employer have to be resolved

by arbitration. Workman has not approached the Tribunal with clean hands nor any demand notice was served on the

management by the claimant before filling of the present reference. There is neither valid espousal by the workman nor

the matter has been sponsored by substantial number of workmen in the establishment, as such there is no industrial

dispute. On merits, management admitted factum of engagement of the workman as safai karamchari with effect from

27.01.1992 as casual worker and later in in pursuance of letter dated 22.04.1998 workman was conferred temporary

status. There were complaints against the workman for stealing fan regulators on 24.08.2001 for which he was served

memo on 24.08.2001 but no reply was filed by the workman. Thereafter there was continuous absence from duty by the

workman without prior information/sanction of leave with effect from 08.06.2005. As such, memo was issued on

01.08.2005 seeking his explanation for his unauthorized absence. It is averred in Para 4 of the reply that the workman

filed reply dated 23.09.2005 to the show cause notice alongwith medical certificates regarding his illness and as such he

was granted admissible leave of 55 days with effect from 08.06.2005 with warning to follow leave rules, failing which he

will render himself for disciplinary action. There was again complaint against the workman regarding his absence

without leave from duty with effect from 09.03.2006 and he was issued memo by the management on 11.05.2006. No

reply was filed by the workman. Thereafter, legal communication was sent to him on 11.08.2006 in which it was

clarified that in the absence of any cogent explanation by the workman for his unauthorized absence, it would be

presumed that he is no longer interested in service of the University. In the subsequent memo dated 10.10.2006,

workman was asked to show cause as to why his services should not be terminated and he was asked to file reply within

10 days, failing which his services shall be deemed to be terminated. It is further alleged that on 23.11.2006 his services

from Jamia Milia Islamia were terminated as per provisions contained in Ordinance 6(VI)(47(ii). Management has

denied other averments made in the statement of claim.

4. Against this factual background, this Tribunal on the basis of pleadings of the parties, vide a order dated

06.08.2013 framed the following issues.

(i)

Whether dispute has not acquired status of an industrial dispute for want of service of demand notice on the

management?

(ii)

Whether disputed dispute has not acquired status of industrial dispute for want of espousal by the union or

considerable number of workmen in the establishment of the management?

(iii)

As in terms of reference

5. Workman, in support of his case examined himself as WW1 and tendered evidence his affidavit, Ex.WW1/A. He

has tendered in evidence documents Ex.WW1/1 to Ex.WW1/5. Management, in order to rebut the case of the claimant,

examined Shri Syed Abbas Raza Naqvi, whose affidavit is Ex.MW1/A. Shri Naqvi also relied on documents Ex.MW1/1

to Ex.MW1/6.

I have heard Shri R.N, Bhargav, A/R for the claimant. None appeared on behalf of the management to advance

arguments.

Findings on issue No. (i) and (ii)

10. Both issues No.1 and 2 and being taken up together as they are legal in nature and can be conveniently disposed

of. So far as question regarding industrial dispute is concerned, it is clear from perusal of notice Ex.WW1/4 that the

workman has served notice on the management of Jamia Milia Islamia through its Registrar wherein request has been

made to reinstate the workman with full back wages. There is no reply to the said notice on record. Therefore, by no

stretch of reasoning, it can be said that the dispute in the present case is not an industrial dispute. It is clear from the

definition of ‘industrial dispute’ under Section 2(k) of the act that any dispute or difference between a worker and his

employer, which is connected with employment of the workman or conditions of his services, falls within the definition

of ‘industrial dispute’. Management has not brought any evidence on record to suggest that any notice was served on the

workman by the management before raising the above dispute through the union. In fact, workman has thereafter

approached the Assistant Labour Commissioner through the Union which has also tried to reconcile matter between the

parties, but the management has adopted an non-conciliatory approach resulting in failure of conciliation. It was only

thereafter reference was received by this Tribunal in terms of sub-section 2 of Section 10 of the Act. No doubt case of

the workman is normally espoused through the union of which workman is a member. Expression ‘espousal means that

now the dispute of the individual workman has been adopted by the union as its own dispute and substantial number of

workman gives support to the cause of such dispute raised by the workman. Expression union normally indicates the

Union to which the workman belongs even though it may be union of minority workmen. Hon’ble Apex Court in the

case of J.H. Yadav vs. M/s Forbes Gokak Ltd (2005 III AD SC61) considered the question of raising of industrial dispute

by a union as well as ambit and scope of espousal. In the said case, it was observed that if evidence on record suggest

that the cause of the workman has been espoused by the union, either in writing or orally, same is sufficient compliance

of the provisions of the Act. Since dispute of the workman herein has been considered by the Conciliation Officer,

Ministry of Labour, as such it is apparent that the workman has approached the union first for espousal of the dispute.

11. Question of raising of demand by the workman through union was also considered by the Hon’ble High Court of

Delhi in Workmen of MCD vs. South MCD in WP(C) No.13023/2005 decided on 06.08.2007. Claim filed by the

workman was dismissed by the Tribunal as workmen had not raised any demand with the management, as such, there

was no dispute or difference in the eyes of law when there is no proper and valid demand on behalf of the workman.

6344

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

Industrial dispute will arise only when such a demand is refused arbitrarily or illegally by the management. Industrial

Tribunal held that in the absence of any valid demand and refusal thereof by the management, there is no industrial

dispute existing between the parties; as such, no relief was granted. However, when the matter was taken to the Hon’ble

High Court, decision of the Tribunal was set aside and heavy reliance was placed on the case of Shambunath Goyal vs.

Bank of Baroda (1978 2 SCR 793) wherein it was held 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 section 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 section 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".

12. It is clear from the ratio of the above judgement that dispute would be deemed to no existent when the matter has

been taken to the Conciliation Officer(ALC) and there is no legal requirement under that Act that the dispute is required

to be raised in a specific manner so as to term it as an industrial dispute. It can even be orally raised. It is for the

Government to decide whether in the absence of proper raising of dispute or insufficient material on record, whether any

reference can be sent to the Industrial Adjudicator. Thus, in view of the ratio of the law discussed above, there is no

specific requirement under the Act that industrial dispute is to be raised only by making a demand in writing and any

such interpretation given Section 2(k) of the Act is not legally permissible.

13. In Ultra Tech Cement Vs. Industrial Tribunal, (2016 LLR 523), legal consequences of non-compliance of

provisions of section 2A(2) of the Act was considered with the workman has directly filed claim before the Industrial

Tribunal without first filing application before the Conciliation and waiting for expiry of 45 days, as provided under the

Act. Management in the said case raised objections of non-maintainability of the reference petition on account of non-

compliance of the provisions of Section 2A(2) of the Act. It was held by the High Court such a provision is simply an

enabling one and is directory in nature and not mandatory so as to held that reference is not legally maintainable Mere

fact that the case has been referred in terms of section 10 of the Act for adjudication of the dispute before this Tribunal

itself shows that parties have appeared before the Conciliation Officer and thereafter when no suitable settlement could

be arrived at between the parties regarding disposal of the dispute, as such same was referred to this Tribunal.

14. It is pertinent to mention here that in Para 10 of the statement of claim as well as affidavit of the workman, there

is mention of conciliation proceedings before the Conciliation Officer (office of the Regional Labour Officer) wherein

attitude of the management was alleged non-cooperative and management in Para 10 of the reply though denied the

averments made in the statement of claim, yet the management has clarified that it is vehemently denied that conciliation

failed due to the management. Rather, claimant wanted to compel the management to act according to his dictates. This

shows that there were conciliation proceedings before the Government, as required under the law. In view of the above

discussions, it is clear that there was espousal and union has raised demand for redresssal of his grievances. Both issues,

No.1 and 2 are decided in favour of the claimant and against the management.

Findings on Issue No. (iii)

Issue No.3, which is the main issue in terms of the reference received from the appropriate Government is taken

up for the purpose of discussion first. It is neither in doubt nor in dispute that the claimant herein was engaged as safai

karamchari by the management on 27.01.1992 and this fact stands duly admitted by the management in Para 1 of the

reply filed by the management. It is clearly admitted that he was engaged as casual worker, safai karamchari, and

thereafter vide UGC letter dated 22.04.1998/Government of India, Department of Personnel & Training OM

No.51016/2/90-Estab.(C) dated 10.09.2003, adopted by Executive Council of the management, workman was conferred

temporary status. Workman has also tendered in evidence letter dated 22.04.1998 which deals with grant of temporary

status and regularization of casual labour in Central Universities. It is clear that Jamia Milia Islamia is admittedly a

Central University and the said letter is fully applicable to casual labour who have worked beyond 89 days. This is clear

cut mention in the above letter that whenever vacancies occur, University is required to absorb such employees who have

been granted temporary status. Further, as per grant of temporary status regulations scheme, temporary status is to be

conferred on casual employees who have worked atleast 240 days (206 days in the cases of offices observing 5 day

week). It is also clear from the list of employees attached with the letter that the name of the workman finds mention ad

serial No.28 and his date of birth is mentioned as 13.05.1964 and his date of joining as 27.10.1992. Designation of the

workmen is mentioned as safaiwala. There is an ID card of the workman issued by Jamia Milia Islamia Ex.WW1/2.

Workman has also tendered in evidence is sick leave certificate Ex.WW1/3, which shows that he was advised medical

rest from 01.10.2005 to 15.10.2005. Workman has also issued notice Ex.WW1/4 dated 25.09.2010 to the

management wherein workman has alleged similar facts as mentioned in statement of claim, alleging the action of the

management in terminating him from the job as wrong and illegal.

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6345

8. It is clear from resume of evidence discussed above that the workman herein is in the employment of the

management since 27.01.2992 and vide letter dated 10.09.1993, he was granted temporary status. He has also filed proof

of his medical illness ExWW1/3. Now, the vital question which requires determination is whether termination of the job

of the workman herein without an proof of domestic enquiry is legally valid. Admittedly, no show cause notice has been

placed on record or proof in accordance with law by the management. There is no proof any domestic enquiry on record

against the workman. Shri Syed Abbas Raza Naqvi, in his cross examination, has admitted that he was not present

at the site of the incident nor has be seen any regulator, which the claimant was alleged to have stolen. The

claimant was treated on leave without pay for the period 01.10.2005 to 15.10.2005. Further, the management

witness has made a vital admission that the claimant was allowed to join duties on 17.10.2005 after issuing a

memo. In such a situation, action of the management in terminating services of the workman can only be termed to be

highly arbitrary and illegal and cannot sustain in law.

9. It is further clear from pleadings of the parties that there was relationship of employer and employee between the

management and the workman and workman herein falls within the definition of workman as he was admittedly in the

employment of the management at the relevant time. In such circumstances, management was also required to serve

show cause notice or pay one month’s salary in lieu thereof, in terms of Section 25-F of the Act. Since there is no proof

of any notice of having been served on the workman before ordering his termination, as such there is no merit in the

contention of the management that order of termination must be legally sustained. This is rather unfair labour practice on

the part of the management who has sacked the workman completely in violation of principles of natural justice, when

records also shows that he has filed medical proof regarding his illness. There is no evidence regarding of regulator of

fans by the workman. Hence, it is held that action of the management of Jamia Milia Islamia in terminating services of

the workman, Shri Ashok Kumar, on 10.11.2006 to be totally illegal and is not justified in law.

15. As a sequel to the detailed discussion hereinabove, it is held that the order of termination dated 10.11.2006 passed

against the workman is held to be wrong and illegal; as such the same is not justified. It is therefore held that the

claimant is entitled to be reinstated in service with 50% back wages. An award is, accordingly, passed. It be sent to the

appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.

Dated : October 8, 2018

A. C. DOGRA, Presiding Officer

ubZ fnYyh] 1 uoEcj] 2018

dk-vk- 1625-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] funs’kd]

Hkkjrh; izkS|ksfxdh laLFkku] dkuiqj vkSj vU; ,oa muds deZpkjh ds izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] dkuiqj ds iapkV ¼lanHkZ la[;k

1@2013½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 31-10-2018 dks izkIr gqvk FkkA

[la- ,y&42012@79@2012&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

New Delhi, the 1st November, 2018

S.O. 1625.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (ID. Case CR No. 1/2013) of the Central Government Industrial Tribunal-cum-

Labour Court Kanpur as shown in the Annexure, in the industrial dispute between the employers in relation to the

Director, Indian Institute of Technology, Kanpur and others and their workman, which was received by the Central

Government on 31.10.2018.

[No. L-42012/79/2012– IR(DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

BEFORE SRI RAKESH KUMAR, HJS, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL CUM LABOR COURT, KANPUR

I.D. Case No. 1 of 2013

Sri Daman Singh Chauhan,

son of Sri P S Chauhan,

H.No. 154 m Nankari

Kanpur

6346

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

Versus

1. The Director,

Indian Institute of Technology,

Naramau G.T. Road, Kanpur

2. Ramki Infrastructures Ltd.,

C/o The Director,

Indian Institute of Technology,

Naramau G.T. Road,

Kanpur-208016.

AWARD

Central Government, Mol & Employment, New Delhi vide notification No. L-42012/79/2012-IR(DU) dated

17.12.2012, has referred the following dispute to this tribunal for adjudication :

“Whether the action of the management of M/s Ramky Infrastructures Ltd. In terminating the services of

Sri Daman Singh Chauhan son of Sri P S Chauhan workman with effect from 08.07.11 is just fair & legal? If

not, what relief the workman concerned is entitled?”

The case of the workman in short is that he was employed by opposite party no.1 through opposite party No. 2

on 18.08.2010. Whereas opposite party no.2 is labor supplier, the opposite party no.1 is principal employer. The work

and conduct of the workman remained very good and during the course of his employment workman was never issued

any charge sheet. It has been further asserted that the employer was paying less wages to the workman than what is

prescribed under the provisions of Minimum Wages Act, 1948. When the workman demanded the payment of wages as

per provisions of the Act, the employer became annoyed and they terminated the services of the workman w.e.f.08.07.11.

The termination of the service of the workman is malafide and unfair by all means.

The workman has thus prayed for his reinstatement, with full back wages and continuity of service etc.

The claim of the workman has been denied by both the opposite parties vehemently on a number of grounds but

considering the contents of settlement filed by the contesting parties, the tribunal does not consider it necessary to detail

the averments made by the opposite parties in their respective written statement, since contesting parties have amicably

resolved the dispute.

After exchange of pleadings and documents between the parties when the case was taken up for hearing on

11.10.18, both the parties have filed a compromise/settlement before this tribunal in the case with the prayer that the case

be decided in terms of the settlement. The settlement has duly been signed by both authorized representatives of the

parties (petitioner and opposite party No. 2).

The terms and condition of the settlement is as under:—

That the worker remained in the employment of establishment of employer during the period 07.04.11 to

07.07.11.

That it is also agreed between the parties that workman will not press LCA Case No. 16/12 and he is

agreed to receive a sum of Rs.51000/- as full and final payment.

That the workman before this tribunal has received from M/s Ramki Infrastructures Ltd, Hyderabad a

sum of Rs.51000/- through cheque no.022435 dated 11.10.18 drawn on Axis Bank and the workman is

ready to relinquish his all legal rights and shall not claim any monetery claim in future and has issued a

receipt separately in token of having received the above amount.

d).

That as per settlement the workman will not claim for his reinstatement and legal dues like wages etc

from the employer and there will not be any claim against the employer and the LCA case no. 16/2012 is

also disposed finally in terms of the compromise.

That the workman assures the employer that he will not raise any claim whatsoever in nature in future as

under this settlement the workman has received all legal dues to his full satisfaction payable to him from

his employer before the CGIT Kanpur.

That terms of settlement have been signed by the parties without any demur and after understanding the

same carefully on 11.10.18.

Both the parties have been heard and record has been scanned thoroughly

Therefore, keeping in view the prayer of both the parties the reference is decided in terms of settlement holding

that the workman is not entitled for any relief.

Reference is answered accordingly.

10.

Award as above.

Date : 11.10.2018

RAKESH KUMAR, Presiding Officer

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6347

ubZ fnYyh] 9 uoEcj] 2018

dk-vk- 1626-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj]

,p,lchlh baosLV Mk;jsDV flD;ksfjVht ¼bafM;k½ izkbosV fyfeVsM izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] ua- 1 fnYyh ds iapkV ¼lanHkZ

la[;k 189@2015½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 09-11-2018 dks izkIr gqvk FkkA

[la- ,y&12012@89@2015&vkbZvkj ¼ch&1½]

Ckh- ,l- fc"V] vuqHkkx vf/kdkjh

New Delhi, the 9^th November, 2018

S.O. 1626.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 189/2015) of the Central Government Industrial Tribunal-cum-Labour

Court, No. 1, Delhi as shown in the Annexure, in the industrial dispute between the management of HSBC Invest Direct

Securities (India) Pvt. Ltd. and their workman, which was received by the Central Government on 09.11.2018.

[No. L-12012/89/2015– IR(B-1)]

B. S. BISHT, Section Officer

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. 189/2015

Shri Hardeep Singh S/o Shri Kali Ram,

House No. 193, Gali No.08, Rajindra Park Extension,

Nangloi, New Delhi – 110 049

…Workman

Versus

Shri Sanjay Nair, MD & CEO

HSBC Invest Direct Securities (India) Limited,

F-43, South Extension Part I,

New Delhi – 110 049

…Management

AWARD

Central Government, vide letter No.L-12012/89/2015-IR(B-I) dated 26.08.2015, referred the following

industrial dispute to this Tribunal for adjudication:

“Whether the applicant, Shri Hardeep Singh, is entitled to absorption in the newly named company, i.e. HSBC

Invest Securities (India) Ltd., by virtue of having worked in the same company under a different name is legal

and justified? If not, to what relief is he entitled to?’’

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, Shri Hardeep Singh, the workman, opted not to file his claim statement with the Tribunal.

Further, on receipt of the above reference, notice was also sent to the workman as well as the management.

Neither the postal article, referred above, was received back undelivered 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 workman. Despite service of the notice, the workman opted to abstain from the

proceedings. No claim statement was filed on his behalf. Thus, it is clear that the workman is not interested in

adjudication of the reference on merits.

Since the workman has neither put in his appearance nor has he led any evidence so as to prove his cause against

the management, as such, this Tribunal is left with no choice, except to pass a ‘No Dispute/Claim’ award. However, it

will not debar the claimant, Shri Hardeep Singh, from seeking relief afresh as there is no adjudication of the reference on

merits. 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 : October 29, 2018

A. C. DOGRA, Presiding Officer

6348

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

ubZ fnYyh] 09 uoEcj] 2018

dk-vk- 1627-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj]

,p,lchlh baosLV Mk;jsDV flD;ksfjVht ¼bafM;k½ izkbosV fyfeVsM izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k Je U;k;ky; ua- 1 fnYyh ds iapkV ¼lanHkZ la[;k

196@2015½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 09-11-2018 dks izkIr gqvk FkkA

[la- ,y&12012@74@2015&vkbZvkj ¼ch&1½]

Ckh- ,l- fc"V] vuqHkkx vf/kdkjh

New Delhi, the 9th November, 2018

S.O. 1627.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 196/2015) of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, Delhi as shown in the Annexure, in the industrial dispute between the management of HSBC Invest Direct

Securities (India) Pvt. Ltd. and their workman, which was received by the Central Government on 09.11.2018.

[No. L-12012/74/2015– IR(B-1)]

B. S. BISHT, Section Officer

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.196/2015

Shri P. Santosh Kumar,

B-61, 1^st Floor, Brij Vihar,

Ghaziabad,

Uttar Pradesh – 201 011

…Workman

Versus

Shri Sanjay Nair, MD & CEO

HSBC Invest Direct Securities (India) Limited,

F-43, South Extension Part I,

New Delhi – 110 049

…Management

AWARD

Central Government, vide letter No.L-12012/74/2015-IR(B-I) dated 02.09.2015, referred the following

industrial dispute to this Tribunal for adjudication:

“Whether the demand of the applicant, Shri P. Santosh Kumar for absorption in the newly named company, i.e.

HSBC Invest Securities (India) Ltd., by virtue of having worked in the same company under a different name is

legal and justified? If not, to what relief he is entitled to?

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, Shri P. Santosh Kumar, the workman, opted not to file his claim statement with the Tribunal.

Further, on receipt of the above reference, notice was also sent to the workman as well as the management.

Neither the postal article, referred above, was received back undelivered 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 workman. Despite service of the notice, the workman opted to abstain from the

proceedings. No claim statement was filed on his behalf. Thus, it is clear that the workman is not interested in

adjudication of the reference on merits.

Since the workman has neither put in his appearance nor has he led any evidence so as to prove his cause against

the management, as such, this Tribunal is left with no choice, except to pass a ‘No Dispute/Claim’ award. However, it

will not debar the claimant, Shri P. Santosh Kumar, from seeking relief afresh as there is no adjudication of the reference

on merits. 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 : October 29, 2018

A.C. DOGRA, Presiding Officer

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6349

ubZ fnYyh] 09 uoEcj] 2018

dk-vk- 1628-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj]

,p,lchlh baosLV Mk;jsDV flD;ksfjVht ¼bafM;k½ izkbosV fyfeVsM izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ua- 1 fnYyh ds iapkV ¼lanHkZ la[;k 186@2015½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 09-11-2018 dks izkIr gqvk FkkA

[la- ,y&12012@69@2015&vkbZvkj ¼ch&1½]

Ckh- ,l- fc"V] vuqHkkx vf/kdkjh

New Delhi, the 9th November, 2018

S.O. 1628.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 186/2015) of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, Delhi as shown in the Annexure, in the industrial dispute between the management of HSBC Invest Direct

Securities (India) Pvt. Ltd. and their workman, which was received by the Central Government on 09.11.2018.

[No. L-12012/69/2015– IR(B-1)]

B. S. BISHT, Section Officer

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. 186/2015

Shri Kishore K. Negi,

S/o Shri Pooran Singh,

C-352, Beta – 1,

Greater Noida,

Uttar Pradesh – 201 306

…Workman

Versus

HSBC Invest Direct Securities (India) Pvt. Ltd.

Regd. Office: Shiv Building, Plot No.139,

140B, 1^st Floor, Western Express Highway,

Sahar Junction, Vile Parle (E),

Mumbai 400 057

…Management

AWARD

Central Government, vide letter No.L-12012/69/2015-IR(B-I) dated 21.08.2015, referred the following

industrial dispute to this Tribunal for adjudication:

“Whether the applicant, Shri Kishore Kumar Negi is entitled to absorption in the newly named company by

virtue of having worked in the same company under a different name? If not, to what relief is he entitled to?

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, Shri Kishore K. Negi, the workman, opted not to file his claim statement with the Tribunal.

Further, on receipt of the above reference, notice was also sent to the workman as well as the management.

Neither the postal article, referred above, was received back undelivered 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 workman. Despite service of the notice, the workman opted to abstain from the

proceedings. No claim statement was filed on his behalf. Thus, it is clear that the workman is not interested in

adjudication of the reference on merits.

Since the workman has neither put in his appearance nor has he led any evidence so as to prove his cause against

the management, as such, this Tribunal is left with no choice, except to pass a ‘No Dispute/Claim’ award. However, it

will not debar the claimant from seeking relief afresh as there is no adjudication of the reference on merits. 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 : October 29, 2018

A.C. DOGRA, Presiding Officer

6350

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

ubZ fnYyh] 09 uoEcj] 2018

dk-vk- 1629-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj]

,p,lchlh baosLV Mk;jsDV flD;ksfjVht ¼bafM;k½ izkbosV fyfeVsM izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ua- 1 fnYyh ds iapkV ¼lanHkZ la[;k 197@2015½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 09-11-2018 dks izkIr gqvk FkkA

[la- ,y&12012@75@2015&vkbZvkj ¼ch&1½]

Ckh- ,l- fc"V] vuqHkkx vf/kdkjh

New Delhi, the 9th November, 2018

S.O. 1629.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 197/2015) of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, Delhi as shown in the Annexure, in the industrial dispute between the management of HSBC Invest Direct

Securities (India) Pvt. Ltd. and their workman, which was received by the Central Government on 09.11.2018.

[No. L-12012/75/2015– IR(B-1)]

B. S. BISHT, Section Officer

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. 197/2015

Shri Raj Bansal S/o Shri Shyam Lal,

B-201, Flat No.B-4 (First Floor),

Duggal Colony, Khanpur,

New Delhi 110 062

…Workman

Versus

Shri Sanjay Nair, MD & CEO

HSBC Invest Direct Securities (India) Limited,

F-43, South Extension Part I,

New Delhi – 110 049

…Management

AWARD

Central Government, vide letter No. L-12012/75/2015-IR(B-I) dated 02.09.2015, referred the following

industrial dispute to this Tribunal for adjudication:

“Whether the demand of the applicant, Shri Raj Bansal for absorption in the newly named company, i.e. HSBC

Invest Securities (India) Ltd., by virtue of having worked in the same company under a different name is legal

and justified? If not, to what relief he is entitled to?

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, Shri Raj Bansal, the workman, opted not to file his claim statement with the Tribunal.

Further, on receipt of the above reference, notice was also sent to the workman as well as the management.

Neither the postal article, referred above, was received back undelivered 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 workman. Despite service of the notice, the workman opted to abstain from the

proceedings. No claim statement was filed on his behalf. Thus, it is clear that the workman is not interested in

adjudication of the reference on merits.

Since the workman has neither put in his appearance nor has he led any evidence so as to prove his cause against

the management, as such, this Tribunal is left with no choice, except to pass a ‘No Dispute/Claim’ award. However, it

will not debar the claimant from seeking relief afresh as there is no adjudication of the reference on merits. 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 : October 29, 2018

A. C. DOGRA, Presiding Officer

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6351

ubZ fnYyh] 12 uoEcj] 2018

dk-vk- 1630-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] eq[;

egkizca/kd] Hkkjr ljdkj lapkj fuxe fyfeVsM] gSnjkckn vkSj vU; ,oa muds deZpkjh ds izca/kra= ds lac) fu;kstdkas vkSj

muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] gSnjkckn

ds iapkV ¼lanHkZ la[;k 51@2009½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 8-10-2018 dks izkIr gqvk FkkA

[la- ,y&42025@03@2018&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

New Delhi, the 12th November, 2018

S.O. 1630.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (LC No. 51/2009) of the Central Government Industrial Tribunal-cum-Labour

Court, Hyderabad as shown in the Annexure, in the industrial dispute between the employers in relation to the Chief

General Manager, Bharat Sanchar Nigam Limited, Hyderabad and others and their workman, which was received by the

Central Government on 8.10.2018.

[No. L-42025/03/2018– IR(DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

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

HYDERABAD

Present : Sri Muralidhar Pradhan Presiding Officer

Dated the 25^th day of September, 2018

INDUSTRIAL DISPUTE L.C. No. 51/2009

Between:

Sri S. Eswar Reddy,

S/o S. Narayana Reddy,

R/o Kapu Gunneri Village & Post,

Srikalahasti Mandal,

Chittoor District.

…Petitioner

AND

The Chief General manager,

Bharat Sanchar Nigam Ltd., Circle,

Abids, Hyderabad.

The General Manager,

BSNL, Tirurpathi,

Chittoor District.

The Divisional Engineer (Maintenance)

BSNL, Srikalahasti, Chittoor district.

The Sub-Divisional Engineer,

Telecom, Srikalahasti, Chittoor District.

….Respondents

Appearances:

For the Petitioner : M/s. Ch. Indrasena Reddy & D.Vilas, Advocates

For the Respondent : M/s. B. Devanand, Advocate

AWARD

Sri S. Eswar Reddy who worked as casual mazdoor (who will be referred to as workman) has filed this petition

under Sec. 2A(2) of the Industrial Disputes Act, 1947 against the Respondents seeking for declaring the oral termination

order w.e.f. 1.11.2003 passed by the Respondents as illegal, arbitrary and to set aside the same consequently directing

the Respondents to reinstate the Petitioner into service duly granting all the consequential benefits such as continuity of

service, back wages and all other attendant benefits etc., and such other reliefs as this court may deems fit.

6352

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

The averments made in the petition in brief are as follows:

The case of the Petitioner is that the Petitioner worked as a casual mazdoor in the Respondents’ industry from 1.2.1988

and continued till 1.11.2003. He worked continuously under the Respondents with unblemished record of service till

he was terminated orally by the Respondent authorities w.e.f. 1.11.2003. It is stated that while terminating the Petitioner

from service the Respondents authorities have not assigned any reason for his illegal termination and the Petitioner was

not given any notice and notice pay in lieu of notice and also not paid the retrenchment compensation which is

mandatory as per the provisions of the Industrial Disputes Act, 1947. It is further submitted that while terminating the

Petitioner from service the Respondents authorities have not complied or followed the mandatory provisions of the

Industrial Disputes Act, 1947. Therefore, the entire action taken by the Respondents against the Petitioner is illegal,

unjust, contrary to Law and contrary to the provisions of the Industrial Disputes Act, 1947 and also in violation of the

principles of natural justice. It is further submitted that the Petitioner worked as a casual mazdoor in the office of the

Sub-Divisional Officer, Tirupathi and Telecom, Gudur from 1.2.1986 to 1.3.1989. He worked continuously as a casual

mazdoor in various sections upto the month of February, 1992. It is also further submitted that the Petitioner has worked

as a casual mazdoor from the month of May, 1991 to February, 1992 under the control of Respondent No.1 for a period

of 270 days. The Petitioner also submitted that he made several representations to the 2^nd Respondent and 4^th

Respondent to reengage him as a casual mazdoor, but no action was taken by the above Respondents and as such he was

compelled to file OA No.583 of 2000 before the Hon’ble Central Administrative Tribunal, Hyderabad. The Hon’ble

Tribunal was pleased to direct the 4^th Respondent to consider the representation made by the Petitioner for re-engaging

him as a casual mazdoor vide order dated 26.4.2000. The Petitioner further submitted that pursuant to the above order

of the Hon’ble Central Administrative Tribunal the 4^th Respondent issued letter bearing No.E85/May/CMM/III2k dated

20.6.2000 to the Petitioner directing him to submit the original records. Accordingly, the Petitioner submitted the

original records as per the demand of the 4^th Respondent and the 4^th Respondent after careful scrutiny of the records

having found correct, on 10.7.2001 re-engaged the Petitioner, and passed the order of his re-engagement as casual

mazdoor and on 12.7.2001 the Petitioner joined in service, and worked in RSU, Telecom Exchange, Srikalahasthi from

12.7.2001 to 31.10.2003. The Petitioner further submitted that while the matters stood thus, to the utter surprise and

dismay of the Petitioner the Respondent authorities once again orally directed the Petitioner not to attend the work as

casual mazdoor on 1.11.2003. The Petitioner also submitted that the Respondents’ authorities without issuing any

notice and without following the procedures contemplated under the Statute, contrary to the orders passed by the

Hon’ble Central Administrative Tribunal, Hyderabad directed the Petitioner not to attend the work as casual mazdoor,

which is illegal, improper, unjust and in violation of the principles of natural justice. The Petitioner further stated that

he submitted a representation on 3.11.2003 to the 4^th Respondent questioning him to reengage him as casual mazdoor,

but no action was taken by Respondent No.4. Therefore, the Petitioner made several representations before the

Respondents’ authorities but all the efforts made by him proved futile. But the Respondent authorities never chosen to

consider the case of the Petitioner for re-engaging him as casual mazdoor. The Petitioner also submitted that there after

he approached the Hon’ble High Court of A.P., by filing WP No.12718/2004 seeking direction to the Respondents to

pay the wages on pro-rata basis in pursuance of the rates submitted by him. the Hon’ble High Court was also pleased to

dispose of the said writ petition, directing the Respondents to consider the said representation and pay the wages on pro-

rata basis by order dated 17.8.2004. Subsequent to the above said order the 2^nd Respondent sanctioned an amount of

Rs.16,593/- to the Petitioner towards the difference of pro-rata wages for the period from 1.5.2002 to 31.7.2003 on

30.12.2004 and issued a cheque bearing No.295682 dated 4.2.2005 for Rs.16,593/-. It is also stated that inspite of

several representations submitted by the Petitioner to reengage him as a casual mazdoor the Respondents authorities did

not consider the same, as a result of which the Petitioner is put to suffer untold hardship and mental agony, besides

manifest injustice was caused to him. Therefore, the Petitioner once again approached the Hon’ble High Court of

A.P., by filing another WP No.28160/2005 and the Hon’ble Court by an order dated 26.12.2007 dismissed the said writ

petition by giving opportunity to him to approach this Tribunal under Industrial Disputes Act, 1947 for appropriate

relief. Thereafter, the Petitioner was compelled to file this petition. It is also submitted that since the date of

termination from service, he remained unemployed and could not secure any alternative employment in spite of his best

and honest efforts and he is the only earning member in his entire family and due to his illegal termination, not only he

himself but also his entire family was thrown on the streets for no fault of them. It is submitted that the action of the

Respondents’ management by not allowing the Petitioner to work as a casual mazdoor is illegal, unjust, contrary to law,

contrary to the provisions of the Industrial Disputes Act, 1947. It is also stated that some of his juniors were retained in

service. But he was alone thrown on the streets for reasons best known to the management. Therefore, the action of the

Respondent is illegal, discriminatory and colourable exercise of powers. With these averments, the Petitioner filed this

dispute claiming the above mentioned relief.

The Respondents filed counter jointly with the averments in brief which runs as follows:

All the Respondents in their joint counter while denying the material facts averred in the claim statement, have

specifically submitted that the workman himself absconded for duty from 1.4.2003 to 30.6.2003 without obtaining any

permission from the controlling officer. The workman did not turn up for duty from 1.7.2003 to 31.7.2003, the reasons

are best known to him. Therefore, the Respondents could not serve the advance notice to the workman who has not

furnished his whereabouts and address particulars. It is also stated that the workman worked in Gudur in Nellore SSA

who has not furnished details of days worked. The allegation of the workman that he worked continuously for a period

of 270 days from 1.5.1991 to 28.2.1992 is not correct. Pursuant to the order of the Hon’ble Central Administrative

Tribunal Hyderabad, the workman was re-engaged as casual labour and also in pursuance of the DOT, New Delhi vide

letter dated 12.2.1999, the DOT imposed complete ban on engagement of casual labourers engaged on daily wages,

monthly wages and instructions were issued to disengage such casual mazdoors who have been engaged after the cut off

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6353

date i.e., 31.3.1985. The Petitioner was paid wages for the period from May, 2002 to July, 2003 except in the month of

April, May and June, 2003. It is stated that the Petitioner did not submit any representation on 3.11.2003 so the question

of re-engagement of the workman does not arise, in view of the ban order imposed by the Respondents vide letter dated

12.2.1999. It is also submitted that the Petitioner has been paid pro-rata wages of Rs.16,593/- through Cheque No.29562

dated 17.8.2005 as per the order of the Hon’ble High Court of A.P., passed in WP No.12718 of 2004. It is also stated

that the Petitioner has voluntarily absconded from duty. The Respondents have never terminated the Petitioner from

service. The Petitioner himself found absent for work and left the organization without any notice and permission from

the Respondents. No casual mazdoor is to be engaged after cut off date i.e., after 31.3.1985 as per DOT letter dated

22.6.1988 and the ban was imposed not to recruit any casual labourers thereafter i.e., after 22.6.1988. The scheme

dated 7.11.1989 is not at all applicable to the workman, as the relaxation of rules regarding temporary status is also not

applicable to the workman. As workman was not engaged before the cut off date. It is further submitted that there is no

merit in the petition filed by the Petitioner and the same is liable to be rejected.

During the course of hearing of the case, the Petitioner has been examined himself as WW1 and also proved 14

documents as Ex.W1 to W14. Similarly, the Respondents examined one witness as MW1 and also proved 4 documents

as Ex.M1 to M4.

I have already heard the counsels for both the sides and perused the evidence adduced on behalf of the parties.

The points for determination are:

Whether the action of the management of Bharat Sanchar Nigam Ltd., in terminating the services of

Sri S. Eswar Reddy, a casual mazdoor w.e.f. 1.11.2003 is legal and justified?

II.

If not, to what relief the Petitioner workman is entitled for?

The workman in his examination in chief evidence fully corroborated the averments made in his claim

statement. But in his cross examination he denied the suggestion of the Respondents and also denied that he has not

voluntarily absent for duty. MW1 in his chief examination fully supported the averments made in his counter as well as

in his chief evidence affidavit. But, in his cross examination MW1 had admitted that he has no knowledge about the

Petitioner as he has been working as a Divisional Engineer at Srikalahasti with R3 from April, 2013 only. He denied

the suggestion of the Respondents stating that the Petitioner worked in the Respondents’ organization as a casual

labourer since 1.2.1986 and thereafter his services were orally terminated by their office on 1.11.2003. He admitted

that the Petitioner had worked for them only for two months from February, 2003 and again he worked for one month

during July, 2003. He also admitted that Ex.W10 shows the particulars of the work done by the Petitioner during the

periods from 1986 to 1988. Ex. W11 is the certificate issued by the Accounts Officer, DTE, Tirupathi which shows

clearly that he Petitioner worked for 270 days from May, 1991 to April, 1992. As per Ex.W13, payment was made to

casual labourers by the 3^rd and 4^th Respondents. Ex.W14 is the certificate, which shows that the Petitioner worked from

1.11.2002 to 30.11.2002 and Ex.M1 was issued on 22.6.1988. He clearly admitted that as per the records produced by

the Petitioner, he has been working with the Respondents since, February, 1986. MW1 denied the suggestion of the

Petitioner to the effect that the Petitioner has not worked for more than 240 days in a year. He also denied that they

have received Ex.W4 and W5 the representation of the Petitioner. But he admitted that pursuant to Ex.W6 orders of

Hon’ble High Court of A.P., the Respondent had made payment to the Petitioner through cheque vide Ex.W9. He also

admitted that they have not issued any notice to the Petitioner while terminating him from service, and they have not

paid any retrenchment compensation to him. He admitted that the Petitioner used to perform the duty of cleaning of the

premises etc., as a casual mazdoor. He admitted that the Petitioner worked as a casual labour, and the said work was

perennial in nature. He denied to the suggestion of the counsel of the Petitioner to the effect that the termination of the

service of the Petitioner was illegal and he is entitled for reinstatement and eligible for all consequential benefits.

The evidence of MW1 clearly indicates that the Petitioner was working as a casual labourer under the

Respondent’s and he had worked more 240 days in a year and his work is perennial in nature. He has been terminated

from service orally as he was absent from duty. No notice has been served on the Petitioner at the time of his termination

and no retrenchment or notice pay was paid to the Petitioner.

The Learned Counsel appearing on behalf of the Petitioner contended that in view of the admission of the

witnesses examined on behalf of the management, the Petitioner worked for 240 days in a year, he has been terminated

without any notice and his work was perennial in nature. No notice has been served on the Petitioner before his

termination, no retrenchment compensation is paid to him since the Petitioner is a casual mazdoor and is not getting

any employment till date, the Respondents should be directed to reinstate the Petitioner. He also contended that as the

procedure has not been followed while terminating the services of the Petitioner , he is entitled to get all the benefits

under Sec.25F of the Industrial Disputes Act, 1947 before his termination.

10.

On the other hand, the Learned Counsel appearing on behalf of the Respondents contended that in view of the

letter of DOT vide Ex.M1 dated 22.6.88 and Ex.M2 the Respondents Department has no authority to conduct any

recruitment, or engagement of casual labourers as the same has been banned vide letter No.269-4/93-STN-II(Pt.) dated

12.2.99 only they can engage the labourers on daily wages or monthly wages basis either directly or through

contractor. In view of the ban order of the DOT, the Respondents can not engage any casual labourers. Even though the

Petitioner has worked under the Respondents he is not entitled to get reinstatement in view of the ban order of DOT.

He further contended that the Petitioner has absconded for duty, his services can not be terminated. Thus, the claim of

the Petitioner is liable to be rejected.

6354

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

11.

On consideration of the rival contentions of both the sides it is made clear that the Petitioner has joined in the

services of the Respondents, worked under the Respondents from 1.2.88 to 1.3.89. He has also worked as casual

mazdoor from May, 1991 to February, 1992 and subsequently joined n service on 2.7.2001 and worked till 31.10.2003

and thereafter he was not allowed to work. During the above period the Petitioner had worked for more than 240 days

in a year. But the Respondents have not issued any notice of termination while terminating the Petitioner from service

as required under Sec.25F of the Industrial Disputes Act, 1947. He has also not paid the retrenchment compensation for

the period he worked under the Respondents. When the Respondents have admitted that the Petitioner has worked for

240 days in a year and no retrenchment notice has been served on him and no retrenchment compensation has been paid

to him and his work was perennial in nature, the Respondents are liable to pay the same to the Petitioner and the

termination of the Petitioner is not legal and justified.

Thus, Point No.I is answered accordingly.

12.

Point No.II: In view of the findings made above, since the termination of the Petitioner is illegal, the Petitioner

is entitled to be retrenched / terminated as per the procedure laid down under Sec.25F of the Industrial Disputes Act,

1947. As there is ban order for engagement of casual labourers in service , the Petitioner is not entitled to get

reinstatement into service, but entitled to get the retrenchment compensation.

ORDER

In the result, the action of the management of Bharat Sanchar Nigam Ltd.,, in terminating the services of Sri S.

Eswar Reddy, a casual mazdoor w.e.f. 1.11.2003 is held as illegal and not justified. The Petitioner workman is not

entitled for reinstatement into service as there is ban order for engagement of casual labourers at Bharat Sanchar Nigam

Ltd.. But he is entitled to get the retrenchment compensation as provided under Sec.25 F of the Industrial Disputes Act,

1947.

Award is passed accordingly. Transmit.

Dictated to Smt. P. Phani Gowri, Personal Assistant transcribed by her corrected by me on this the 25^th day of

September, 2018.

MURALIDHAR PRADHAN, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Sri S. Eswar Reddy

MW1: Sri Y.Nagaiah

Documents marked for the Petitioner

Ex.W1:

Photostat copy of orders in OA No.583/2000 of Hon’ble Central Administrative Tribunal, Hyderabad

dt. 26.4.2000

Ex.W2:

Photostat copy of lr. by Sub-Divisional Officer, to WW1 dt. 20.6.2000

Ex.W3:

Photostat copy of lr. by DE(Admn) Tirurpathi to DE, Srikalahasti, dt. 5.7.2001

Ex.W4:

Photostat copy of representation of WW1 dt. 3.11.2003 to the Respondents

Ex.W5:

Photostat copy of representation of WW1 dt. 5.11.2003 to the Respondents

Ex.W6:

Photostat copy of orders of Hon’ble High Court dt. 17.8.2004 in WP No.12718/2004

Ex.W7:

Photostat copy of lr. dt.30.12.2004 by Asst. General Manager, Tirupathi to Respondent No.3

Ex.W8:

Photostat copy of statement i.r.o. WW1 reg. difference of wages

Ex.W9:

Photostat copy of Cheque issued by 2^nd Respondent dt. 4.2.2005

Ex.W10:

Photostat copy of table of working places of WW1 with Respondents from 28.2.1986 to 31.3.1990

Ex.W11:

Photostat copy of days certificate by Accounts Officer of 2^nd Respondent

Ex.W12:

Photostat copy of lr. by The General Manager, reg. grant of tem. Status to casual labourers who have

completed 240 days as on 1.8.1998

Ex.W13:

Photostat copy of receipts of 3^rd & 4^th Respondents reg. payment of wages to casual labourers for the

period from 1.10.2002 to 30.11.2002

Ex.W14:

Photostat copy of certificate issued by the JTO., of 3^rd & 4^th Respondents to WW1 for the period from

1.10.2002 to 30.11.2002

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6355

Documents marked for the Respondent

Ex.M1:

Photostat copy of DOT letter No.270-6/84-STN, New Delhi dt. 22.6.1988

Ex.M2:

Photostat copy of DOT lr. No.269-10/89-STN, New Delhi dt. 7.11.1989

Ex.M3:

Photostat copy of DOT lr. No.269-4/93-STN.II, New Delhi dt. 12.2.1999

Ex.M4:

Photostat copy of veeding out of records.

ubZ fnYyh] 12 uoEcj] 2018

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dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 15-10-2018 dks izkIr gqvk FkkA

[la- ,y&42011@25@2015&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

New Delhi, the 12th November, 2018

S.O. 1631.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (ID. Case No. 14/2015) of the Central Government Industrial Tribunal-cum-

Labour Court, Bhubaneswar as shown in the Annexure, in the industrial dispute between the employers in relation to the

Director, Directorate of Research on Women in Agriculture, Bhubaneshwar and their workman, which was received by

the Central Government on 15.10.2018.

[No. L-42011/25/2015– IR(DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, BHUBANESWAR

Present :

Shri B.C. Rath,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 14/2015

Date of Passing Order – 4^th September, 2018

Between:

The Director,

Directorate of Research on Women in Agriculture,

(Formerly National Research Centre for Women in

Agriculture), Kalinga Studio Square, Bharatpur,

Bhubaneswar (Orissa) – 751 003.

…1^st Party-Management

(And)

The Vice President,

Contract & Construction Labour Union,

Plot No. 32, Ashok Nagar,

Bhubaneswar (Orissa) – 751 009.

…2^nd Party-Union.

Appearances:

None

…For the 1^st Party-Management

None

…For the 2^nd Party-Union

6356

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

ORDER

By its order vide letter No. L-42011/25/2015/IR(DU), dated 20.04.2015 the Government of India in the

Ministry of Labour in exercise of its authority conferred by clause (d) of sub-section (1) and sub-section (2-A)

of Section 10 of the Industrial Disputes Act (herein after referred to as “The Act”) have referred an industrial

dispute for its adjudication with the schedule “Whether the demand of Contract & construction Labour Union

for payment of legal wages to contract labour (as per list enclosed) at par with Group-D staff of the employer

(Directorate of Research on Workmen in Agriculture, Bhubaneswar) is legal and/or justified? If not, what relief

the workmen are entitled to?”.

On receipt of the reference notice was issued to the 2^nd party-Union who made his appearance and filed

its statement of claim. Thereafter, the Management was noticed to file its written statement. As the Management

failed to appear and file its written statement inspite of notice being found sufficient, it was set exparte and the

case was posted for taking evidence of the 2^nd party-Union. When the matter was in such a stage the 2^nd party-

Union failed to attend the court and adduce its evidence inspite of being given several opportunities. The

adjudication process cannot be protracted for an indefinite period awaiting the appearance of the parties on their

sweet-will. As a matter of fact a dispute cannot also be settled in absence of the parties more particularly in

absence of pleadings and evidence of the disputant. As the disputant does not evince any interest to proceed

with the case and there is absolutely no evidence/materials before the Tribunal for adjudication of the dispute,

there is no alternative than to dismiss the reference case without passing any award since the I.D. Act and its

Rules do not mandate that a nil award or a no-dispute award is to be given in case of absence of the disputant in

an adjudication process. Rather, it has been well settled that passing of a no-dispute award/nil award is a

misconception. It is also pertinent to mention here that until adjudication of the dispute referred to by the

authority concerned, an award cannot be made within the meaning of the award as defined under section 2-b of

the Act. The above position has been settled in a decision of the Calcutta High Court in the case of B.R.

Bermen and Mohatta (India) Pvt. Ltd., -versus- Seventh Industrial Tribunal, West Bengal and others short noted

in 1977 Lab. I.C. (NOC) 13 (CAL). In the above back-drops the case registered on the reference is dismissed

without any award and accordingly the reference is disposed of. A copy of this order be sent to the Government

of India, Ministry of Labour for taking necessary action at their end.

Dictated & Corrected by me.

B. C. RATH, Presiding Officer

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jktsanz tks’kh] mi funs’kd

New Delhi, the 12th November, 2018

S.O. 1632.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (LC No. 10/2011) of the Central Government Industrial Tribunal-cum-Labour

Court, Hyderabad as shown in the Annexure, in the industrial dispute between the employers in relation to the Chief

General Manager, Bharat Sanchar Nigam Limited, Hyderabad and others and their workman, which was received by the

Central Government on 8.10.2018.

[No. L-42025/03/2018– IR(DU)]

RAJENDRA JOSHI, Dy. Director

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6357

ANNEXURE

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

HYDERABAD

Present : Sri Muralidhar Pradhan, Presiding Officer

Dated the 24^thday of September, 2018

INDUSTRIAL DISPUTE L.C.No. 10/2011

Between:

Sri R. Sathya Anasuya,

W/o Late Ramulu,

Part time Sweeper,

O/o Sub-Divisional Engineer (Material

Maintenance), General Manager Telecom

District (BSNL)

…Petitioner

AND

The Chief General Manager,

Telecom (BSNL ), Andhra Pradesh,

Door Sanchar Bhavan,

Hyderabad – 500 001.

The General Manager Telecom District(BSNL ),

Nizamabad. Nizamabad District.

The Sub-Divisional Engineer (Material maintenance)

O/o General Manager Telecom District (BSNL )

Nizamabad. Nizamabad District.

The Divisional Engineer (Planning) BSNL,

O/o General Manager Telecom District (BSNL )

Nizamabad. Nizamabad District.

The Divisional Engineer (Administration)

O/o General Manager Telecom District (BSNL )

Nizamabad. Nizamabad District.

… Respondents

Appearances:

For the Petitioner : M/s. Dr. A. Raghu Kumar, P. Basavaiah & B. Pavan Kumar, Advocates

For the Respondent : Sri R.S. Murthy, Advocate

AWARD

Smt. R. Sathya Anasuya, the Petitioner who worked as Part time Sweeper in the Respondent organization has

filed this petition under Sec. 2A(2) of the Industrial Disputes Act, 1947 against the Respondents State Bank of India

seeking for declaring the oral termination order of the 2^nd Respondent in terms of letter No. 269-94/98-STN-II dated

29.9.2000 is illegal, arbitrary and consequently directing the Respondents to reinstate the Petitioner into service with

continuity of service, with full back wages and all other attendant benefits etc., and such other reliefs as this court may

deems fit.

The Petitioner workman has filed her claim petition and Respondents also filed their respective counter

statement.

The case stands posted for hearing and recording of the Petitioner’s evidence.

Inspite of availing several opportunities to adduce evidence, the Petitioner workman remained absent and there

is no representation on behalf of the Petitioner, and the Petitioner failed to adduce evidence on her behalf. This is a case

of the year 2011. Non-appearance of the Petitioner to purse her case clearly indicates that perhaps the Petitioner is not

interested to pursue the case and to raise her claim. In the circumstances stated above, it is not proper to linger the case

to any further date. Hence, the case of the Petitioner is closed. Thus, one ‘No dispute’ award is passed.

Award is passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri, Personal Assistant, corrected by me on this the 24^th day of September,

2018.

MURALIDHAR PRADHAN, Presiding Officer

6358

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

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[la- ,y&42025@03@2018&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

New Delhi, the 12th November, 2018

S.O. 1633.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (ID. Case No. 79/2013) of the Central Government Industrial Tribunal-cum-

Labour Court, Bhubaneswar as shown in the Annexure, in the industrial dispute between the employers in relation to the

SDO, Telegraph, Nimpada, Puri and their workman, which was received by the Central Government on 28.09.2018.

[No. L-42025/03/2018– IR(DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, BHUBANESWAR

Present: Shri B.C. Rath, Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 79/2013

[Filed under section 2-A(2) of the I.D. Act]

Date of Passing Order – 29^th August, 2018

Between:

Shri Jatindra Khuntia,

S/o. Pitabas Khuntia, Vill. Nadhana,

Po. Bhilligram, Ps. Nimapada, Dist. Puri,

Odisha.

…Applicant Petitioner

(And)

Shri P.K. Dash,

S.D.O., Telegraph, Nimapada,

At./Po./Ps. Nimapada, Dist. Puri

D.E.T., Puri, Telephone Bhawan, Puri

Back side of Hotel Lee Garden.

General Manager, Telecom Department,

Bhubaneswar, Rupali Chhaka,

Back side of IPICOL Office, Dist. Khordha.

…Managements

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6359

Appearances:

Shri J. Khuntia

…For Himself Applicant-Petitioner

Shri P.K. Dash, SDO, Telegraphs, Nimapara

… For the Managements

AWARD

This award is directed again an application preferred by one Jatindra Khuntia resorting to the provisions of

Section 2-A(2) of the Industrial Disputes Act, 1947 (in short “The Act”).

Briefly stated, the case of the applicant as revealed from his statement of claim is that he was working as a

casual labourer under the S.D.O. Telegraph, Nimapara from October, 1997 and doing the work of cable jointer till he was

discharged from his duty with effect from 24.5.2013. Since he was working continuously as a casual labourer in between

October, 1997 to May, 2013 he put-forth a claim before the S.D.O., Nimapara to regularize his service. As the S.D.O. did

not pay any heed to his demand he raised a dispute before A.L.C.(C), Bhubaneswar. On being noticed Dy. General

Manager, Telecommunication, Bhubaneswar submitted a statement before the labour machinery that service of

contractual worker was no more required as some permanent candidates were engaged. It is the further claim of the

applicant workman that a committee was constituted by the Telegraph Department for regularization of services of casual

labourers who had worked for a long period. Accordingly the committee prepared a list of 50 candidates and

recommended the authority for regularization of their services. Being enlisted in Sl. No. 10 his service should have been

regularized. When conciliation was failed the labour machinery issued a certificate giving liberty to the applicant to

approach the Tribunal directly resorting the provisions of Section 2-A(2) of the Act. Hence, the case is filed with a

prayer for regularization of service of the applicant and for a direction to the O.P.-Management for making of payment of

Rs. 54,000/- towards arrear wages to the applicant since the Management failed to pay the arrear wages to the applicant.

On being noticed the O.P.-Managements submitted a common written statement refuting the claim of the

applicant workman. It is their stand that the applicant was engaged as a daily labourer as and when required. Consequent

upon decreasing of land line connections under SDO (T), Nimapara requirement of daily wager for maintenance of land

line network was reduced. As such there was no necessity on the part of the Managements more particularly

Management No. 1 to engage casual labourer. Therefore, the applicant was disengaged and his engagement as a casual

labourer was not required after 24.5.2013. The Managements have also taken a stand that no regularization of service of a

daily wager is ever made and as such regularization of service of the applicant does not arise. They have also denied

outstanding of any wages payable to the applicant. Thus, prayer has been made for dismissal of the dispute on point of

law as well as fact.

On the aforesaid pleadings of the parties the following issues have been settled for adjudication of the dispute.

ISSUES

Whether the application filed by the applicant-workman under Section 2-A(2) is maintainable?

Whether the applicant-workman had worked under the Management No. 1 and 2 before the alleged

removal on 24.5.2014?

Whether the termination of the applicant-workman is illegal and unjustified and violative of the provision

of the Act?

If not, to what relief the workman is entitled?

The applicant and the Managements have adduced oral as well as documentary evidence in support of their

respective averments. The applicant has examined himself and filed copy of the committee report on regularization of

casual labourers, copy of the certificate issued by S.D.O., Telegraph, Nimapara, copy of the certificate issued by L.M.,

Bamanal, copy of the certificate issued by T.M., Nimapara, copy of the certificate issued by T.M. Nimapara, copy of the

certificate issued by T.M., Konark, copy of the A.C.G. 17, copy of the store issue order and copy of the certificate issued

by J.T.O., Nimapara which are marked as Ext.-1 to Ext.-9. On the other hand the Management has examined the S.D.O.,

Telegraphs, Nimapara to refute the claim of the applicant.

FINDINGS

Since all the issues are inter-related to each other they are taken jointly for consideration for the sake of

convenience.

It is the oral evidence of the applicant that he was working as a cable jointer under the direct control and

supervision of the Management No. 1 from October, 1997. But on 24.5.2013 he was disengaged all of a sudden. Hence,

he approached the S.D.O., Nimapara and other higher authorities raising dispute over his disengagement. On 30.8.2013

D.E.T (Rural & Administration) informed him that the office of the SDO, Nimapara needed no contractual labour for

cable working. According to him a committee was constituted by the Chairman of the Telephone Department for

regularization of casual labourers and the committee had empanelled him in the list for regularization of his service. He

was not paid wages for his engagement for certain period as a result of which the Management is required to pay Rs.

54,000/- to him towards his arrear wages. In his oral testimony he has claimed for regularization of his service and

payment of arrear wages to the tune of Rs. 54,000/-. His engagement as casual labourer on daily wage basis by the

Management No. 1 is not seriously disputed except that he was engaged as and when required. There is also no serious

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THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

dispute on the part of the Managements which is revealed from the oral testimony of O.P.W No. 1 that engagement of the

applicant was discontinued since there was no need of contractual worker due to decrease of land-line connections. It is

pertinent to mention here that the disputant applicant has neither asserted in his statement of claim nor in his oral

testimony that he was working for more than 240 days in each calendar year preceding to his disengagement and his

disengagement was in violation of the provisions of Section 25-F of the Act. It is also not his case that he was

disengaged without any notice or notice pay and rehabilitation compensation. Mere reading of his statement of claim as

well as sworn affidavit filed towards his examination in chief reveals that the dispute has been raised directly before this

Tribunal for regularization of his service after his disengagement on 24.5.2013. No specific claim has been made either

in the statement of claim or in the oral testimony of the applicant that his disengagement/retrenchment without

compliance of provisions of Section 25-F was illegal and unjustified for which he is required to be reinstated. Further-

more, there is no credible document or evidence from which it can be safely concluded that the applicant worked for

more than 240 days in a twelve months calendar year preceding to his alleged disengagement. The law is well settled

that burden lies on the workman to establish a claim that he worked for 240 days in a calendar year in order to claim his

retrenchment or disengagement, if any, illegal for non-compliance of the provisions of Section 25-F of the Act. Thus, the

evidence of the workman is also wanting to prove his disengagement or retrenchment with effect from 24.5.2013 was

illegal and unjustified.

It is also pertinent to mention here that as per the provisions of Section 2-A(2) of the I.D. Act no dispute other

than discharge/dismissal/retrenchment and termination can be raised before the Tribunal resorting to the above sections.

Plain reading of the application of the workman suggests that the dispute has been raised for regularization of his service

and payment of arrear wages to him and it is not related to his retrenchment or disengagement. That being the claim and

prayer in the application preferred under section 2-A(2) of the Act the Tribunal has no jurisdiction to entertain such

dispute on regularization of service under the provisions of the Section 2-A(2) of the Act.

In the above facts and circumstances the statement of claim filed by the disputant applicant has no merit for

consideration and the same stands rejected. Copy of this award be sent for publication in the official gazette as per the

rules.

Dictated & Corrected by me.

B. C. RATH, Presiding Officer

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[la- ,y&42025@03@2018&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

New Delhi, the 12th November, 2018

S.O. 1634.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (LC No. 95/2005) of the Central Government Industrial Tribunal-cum-Labour

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

Management, Jawaharlal Nehru Institute for Development Banking and others and their workman, which was received

by the Central Government on 28.09.2018.

[No. L-42025/03/2018– IR(DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

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

HYDERABAD

Present : Sri Muralidhar Pradhan, Presiding Officer

Dated the 29^th day of August, 2018

INDUSTRIAL DISPUTE L.C. No. 95/2005

Between :

Sri G. Ravikiran,

S/o G.Sathaiah,

R/o H.No. 13-14-15/P Nehru Nagar,

Sherlingampally,

Hyderabad.

… Petitioner

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6361

AND

The TDT Electrical Contractor,

C/o J.N.I.D.B.,

Gachi Bowli, Hyderabad – 500 019.

The Management of J.N.I.D.B.

(Jawarharlal Nehru Institute for Development Banking)

Gachi Bowli, Hyderabad – 500 019.

….Respondents

Appearances:

For the Petitioner : M/s. K. Ravinder Goud & Y. Ranjeeth Reddy, Advocates

For the Respondent : M/s. S. Prabhakar Reddy & S. Rajeswari, Advocates

AWARD

Sri G. Ravikiran, who worked as an Electrician (who will be referred to as workman) has filed this petition

under Sec. 2A(2) of the Industrial Disputes Act, 1947 against the Respondents M/s. Jawarharlal Nehru Institute for

Development Banking seeking for declaring the termination order dated 23.5.2005 issued by the Respondents as illegal,

arbitrary and to set aside the same consequently directing the Respondents to reinstate the Petitioner into service duly

granting all the consequential benefits such as continuity of service, back wages and all other attendant benefits etc., and

such other reliefs as this court may deems fit.

The averments made in the petition in brief are as follows:

The Petitioner was appointed as an Electrician on 1.8.2004 and worked upto 22.5.2005. The above appointment of the

Petitioner was oral and his termination is also oral. The Respondent No.2 is the Principal Employer and Respondent

No.1 is under the control of the Respondent No.2 for awarding work. On 22.5.2005, the Petitioner was orally terminated

from service. From 23.5.2005 he was not allowed to perform his duties. The above termination of the Petitioner from

23.5.2005 onwards is illegal, unjust and contrary to the provisions of the Industrial Disputes Act, 1947 and unfair on the

part of the management. it is stated that the Petitioner was paid by the management a salary of Rs.2500/- pm. The

management ha snot provided PF & ESI to the Petitioner. The Respondent No.1 has not paid minimum wages to the

Petitioner as per Government orders issued by the Government from time to time. After termination of service, the

Petitioner issued legal notice to the Respondents through his counsel on 30.5.2005 and the said notice was received by

the management ( Respondent No.2). But Respondent No. 2 did not give any reply to the legal notice of the counsel of

the Petitioner. Respondent No.1 only gave reply to his legal notice. It is further stated that the Petitioner is the senior

most worker in the organization of Respondent No.1 and after termination of the Petitioner from service some other

workers are appointed in place of the Petitioner. It is also submitted that the managements have not followed the

principles laid down under Sec.25(F), (G), and (H) of the Industrial Disputes Act, 1947. It is submitted that the

Respondents have illegally terminated the services of the Petitioner. Therefore, the oral termination of the Petitioner be

declared as bad in the eye of Law. With the above averments the Petitioner filed this case claiming the relief as

mentioned above.

Both the Respondents appeared and filed their counter separately.

Respondent No.1 filed the counter denying the facts averred in the claim petition and has challenged the

maintainability of the petition. It is stated that the allegation made by the Petitioner in his application is neither proved

nor correct. The petition filed under Sec.2A(2) of the Industrial Disputes Act, 1947 is totally misconceived as there was

no dismissal, discharge or termination of the Petitioner as the Petitioner was never appointed under this Respondent as

alleged, and there is no employer and employee relationship between the Respondent and the Petitioner. Hence, the

petition filed under Sec.2A(2) of the Industrial Disputes Act, 1947 is not maintainable. It is also stated that Respondent

No.1 is a contractor of Respondent No.2 engaged for the purpose of maintenance of electrical equipment, repairs and

other related works. It is stated that Respondent No.2 has only issued the work order to attend the electrical works and

accordingly by engaging two to three employees this Respondent was used to attend the electrical works. It is further

submitted that this Respondent No.1 has entrusted the work of electrical maintenance and repairs to the Petitioner as a

sub contractor for a short period on a monthly consolidated payment. In fact the said sub-contract was entrusted basing

on the assurance made by the Petitioner that he was having a valid license. Thereafter, it was found that the Petitioner

was irregular, and inexperienced and it was also revealed that he was not possessing any valid electrical license,

therefore the sub-contract was not extended for further period and in view of the same the Petitioner himself has

abandoned the said job-contract on his own accord. The Petitioner was never appointed as an employee by

Respondent No.1 and as such there is no employer and employee relationship between the Petitioner and Respondent

No.1. The Petitioner was never appointed as an electrician by Respondent No.1 at any point of time and the allegation

of the Petitioner that he was appointed as an electrician on 1.8.2004 and worked upto to 22.8.2005 and from 23.8.2005

he was not allowed to perform his duties is totally false and incorrect. Similarly, the allegation of the Petitioner that

Respondent No.2 is the Principal employer and Respondent No.1 is under the control of Respondent no.2 for awarding

the work is false, incorrect and baseless. The Petitioner was not paid salary of Rs.2500/- by the Respondent

management. In fact, the Petitioner was paid remuneration by the Respondent No.1 for the work done by him. The

allegation of the Petitioner that Respondent No.1 was paying salary to him is totally false. It is also stated that the

Petitioner was a senior most worker in the organization of Respondent No.1 and after his termination, some other

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THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

workers were appointed in place of the Petitioner is false and baseless. Since there is no employer and employee

relationship between this Respondent No.1 and the Petitioner, this Respondent need not follow the principles laid down

under Section 25 (F), (G) and (H) of the Industrial Disputes Act, 1947. The claim of the Petitioner is totally false and

frivolous.

The Respondent No.2 filed counter with averments in brief as follows:

This Respondent no.2 while supporting the averments of Respondent No.1 made in his counter claim clearly, stated that

the relief sought by the Petitioner to reinstate him with all back wages and other attendant benefits is beyond the scope of

Sec.2(A) of the Industrial Disputes Act, 1947 and the present petition is liable to be dismissed. It is specifically stated

that Jawarharlal Nehru Institute for Development Banking Limited in the course of its business/training activity have

entrusted certain job work such as cleaning/sweeping, house keeping maintaining canteen, electrical, plumbing,

gardening, etc. to the contractors(s). JNIDB is engaged in imparting training in the field of banking and finance and

conducts various programmes, sessions, seminars etc involving participants from India as well as abroad in various

fields. JNIDB was set up in the year 1991 by the erstwhile Industrial Development Bank of India, a statutory

corporation established under the Industrial Development Bank of India Act, 1964 (18 of 1964) with a view of strengthen

and upgrade the skills of banking professionals in India and abroad as well as to act as a focal point for research in

respect of development banking. The Petitioner has filed this petition seeking reinstatement into service as a regular

employee and such an issue cannot be invoked without there being any reference under Section 10 of the Act.

Therefore, the present petition of the Petitioner is liable to be dismissed on this ground also. The allegation of the

Petitioner is totally false and frivolous. In fact, there exists no employer and employee relationship between the

Respondent No.2 and the Petitioner. Since the Petitioner has filed this petition against the Respondent No.1, the same is

liable to be dismissed in limini. Both the Respondents have submitted for dismissal of the claim petition as it is not

maintainable under Sec.2A(2) of the Industrial Disputes Act, 1947.

In this case, the Petitioner has examined himself as WW1 and also proved 4 documents as Exs.W1 to W4. On

the other hand the Respondent No.1 examined one witness on his behalf as MW1 and Respondent No.2 also examined

one witness as MW2 and marked no documents.

The points for determination are:

Whether the action of the management of Jawarharlal Nehru Institute for Development Banking Limited, in

terminating the Petitioner Sri G. Ravi Kiran, electrician, w.e.f.23.5.2005 is legal and justified?

II.

If not, to what relief the workman is entitled for?

I have already heard the Learned Counsel for both the sides in this matter and also perused the evidence by both

the sides. On a perusal of the evidence adduced on behalf of the Petitioner it is seen that the Petitioner in his chief

evidence affidavit has fully supported his claim. But in his cross examination by the counsel of the Respondent he

admitted that his qualification is ITI(Electrical) but he has not filed any document to prove that he was an ITI certificate

holder. He also admitted that he has not filed any appointment letter to prove that he was appointed by the

Respondents. He has not filed his salary certificate showing that he was paid Rs.2500/- as monthly salary. He also

admitted that he was orally terminated by the Respondents but he denied to the suggestion of the Respondents that he had

not been appointed, and his termination did not arise. He also admitted hat he was not holding any license for

wireman/electrician. He further also declined to the suggestion of the Respondents that by misleading Respondent No.1

he was holding the work of electrician.

The evidence of WW1 clearly indicates that there is no documentary evidence with him to prove that he was

getting Rs.2500/- pm as salary from the Respondents. It is admitted that no appointment order or termination order was

issued to the workman by the Respondents to work under them. MW1 in his chief evidence affidavit fully supports the

averments made by Respondent No.1 in his counter. But in his cross examination, he admitted that he has engaged 2 to 3

workers for executing the work and for this he maintained attendance register, wage register etc.. But the above said

registers are not produced before this court. In fact those registers have not been called for at the instance of the

Petitioner. He admitted that he has not engaged the services of the Petitioner and also admitted that he never paid any

wages to the Petitioner. MW1 further admitted that he paid the amount to the Petitioner in cash. But he has not

produced any voucher under which he made the payment to the Petitioner. He also admitted that he never paid over

time wages , leave wages, national or festival wages etc., to the Petitioner. The evidence of MW1 clearly indicates that

he engaged the Petitioner for some time and paid his wages in cash, but he has not filed any document or voucher to

prove the above mode of payment. But in the cross examination he denied to the suggestion of the Petitioner about his

appointment under him. He is unable to say whether the Petitioner was removed from service without following due

procedure or not and whether he is entitled for reinstatement into service or not and whether he is entitled to get the

difference of minimum wages, over time wages and wages for the work done during the applicable days. Similary, the

evidence of MW2 clearly indicates that he does not have any knowledge whether the Petitioner was removed from

service without following due procedure or not.

10.

During the course of argument the Learned Counsel appearing on behalf of the Petitioner submitted that the

Petitioner was appointed as an Electrician on 1.8.2004 and worked upto 22.5.2005. The above appointment of the

Petitioner is oral and his termination is also oral. The Respondent No.2 is the Principal Employer and Respondent No.1

is under the control of Respondent No.2 for awarding work. On 22.5.2005, the Petitioner was orally terminated from

service. From 23.5.2005 he was not allowed to perform his duties. It is stated that the Petitioner was orally appointed

and was orally terminated. The oral termination of the Petitioner from 23.5.2005 onwards is illegal, unjust and contrary

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6363

to the provisions of the Industrial Disputes Act, 1947 and unfair on the part of the management. It is also stated that the

Petitioner was paid by the management a salary of Rs.2500/- pm. The management has not provided PF & ESI to the

Petitioner. He contended that as per provisions of Law the management have to maintain certain records like,

attendance register, wage register, and leave register but they have not filed the same before this court. Further MW3 in

his cross examination has also admitted that if the contractor fails to pay the minimum wages, as principal employer

(Respondent No.2) is liable to pay the same to the worker. It is further contended that the Petitioner is the senior most

worker in the organization and the management has orally terminated some other workers are also appointed some

workers in place of the Petitioner. Since the Respondents have not followed the principles laid down under Sec.25F of

the Industrial Disputes Act, 1947 , the oral termination is illegal and unjust. It is also submitted by the Learned Counsel

of the Petitioner to reinstate the Petitioner into service with continuity of service, back wages, and other attendant

benefits.

11.

On the other hand, the counsels appearing on behalf of the Respondents contended that the Petitioner has not

been either appointed under Respondent No.1 or under Respondent No.2. The Respondent No.1 is a contractor under

Respondent No.2 for a certain period. There is no document from the side of the Petitioner to show that he was

appointed under the Respondents on 1.8.2004 and was terminated from service on 22.5.2005. In fact, if there is no

document to show that there was any employer and employee relationship between the Petitioner and the Respondents.

On consideration of the evidence of both the parties adduced so far as well as the rival contentions of both the sides, it is

noticed that the Petitioner has worked under Respondent No.1 for certain period but the Petitioner has not produced any

supporting documents in this regard. Only basing on the oral statement of the Petitioner that he has joined under the

Respondents on 1.8.2004 and terminated from service on 23.5.2005 is not sufficient to belief that the Petitioner has

worked continuously under the Respondents from 1.8.2004 to 22.5.2005. There is no document before this court to see

whether the Petitioner has completed 240 days of work in a year preceding the date of termination. Similarly, no

document is available before this court to know what type of work the Petitioner was discharging and what was the

nature of his appointment under the Respondents. The Petitioner has failed to produce any document that he joined the

service of the Respondents on the very particular day i.e., on 1.8.2004. When there is no document to show the nature

of appointment of the Petitioner, no document regarding the period of working days of the Petitioner it can not be

stated that the Petitioner was working under the Respondents for the period from 1.8.2004 to 22.5.2005. The Learned

Counsel for the Respondents also submitted that the Petitioner should have moved for conciliation first, but, without

doing so, the Petitioner has directly approached this court. He further contended that there is carton of decisions of the

Hon’ble Hihgh Courts and Apex Court that while going to pass an order of reinstatement of a workman into service the

court has to see first, the nature of appointment, the period of appointment, and availability of job. Thereafter, this court

has to consider the question of reinstatement into service in the case, but in the instant case the Petitioner has failed to

establish all the facts. So he is not entitled to get any relief.

12.

On consideration of the rival contentions of both the sides it is noticed that the nature of appointment of the

Petitioner is not known, and when there is no document to see about the nature of appointment of the workman, about

the period of his appointment and about the availability of job in the Respondents’ organization to absorb the Petitioner

into service, how the Petitioner can get the relief as prayed for. When the Petitioner has not fulfilled the aforesaid

appointment criteria, he is not entitled to get the relief as prayed for.

Thus, Point No.I is answered accordingly.

13.

Point No. II :In view of the findings given in Point No.I, the Petitioner is not entitled to get any relief. Hence,

the order.

Thus, Point No.II is answered accordingly.

ORDER

In the result, the action of the management of Jawarharlal Nehru Institute for Development Banking Limited, in

terminating the services of Sri G. Ravi Kiran is held as legal and justified. Hence, the Petitioner workman is not entitled

to any relief as prayed for. Hence, the order. The claim of the Petitioner is dismissed. Under the circumstances, there is

no order as to costs.

Award is passed accordingly. Transmit.

Dictated to Smt. P. Phani Gowri, Personal Assistant transcribed by her corrected by me on this the 29^th day of

August, 2018.

MURALIDHAR PRADHAN, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Sri G. Ravikiran

MW1: Sri T.D. Thomas

MW2: Sri D. Bal Reddy

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THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

Documents marked for the Petitioner

Ex.W1:

Photostat copy of legal notice dt. 30.5.2005

Ex.W2:

Photostat copy of reply notice by Respondent No.1 dt.14.7.2005

Ex.W3:

Photostat copy of G.O. Ms. No. 524

Ex.W4:

Photostat copy of G.O.Ms. No. 488

Documents marked for the Respondent

NIL

ubZ fnYyh] 13 uoEcj] 2018

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New Delhi, the 13th November, 2018

S.O. 1635.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 54/2017) of the Central Government Industrial Tribunal-cum-Labour

Court Ahmedabad as shown in the Annexure, in the industrial dispute between the management of Western Railway and

their workmen, received by the Central Government on 13.11.2018.

[No. L-41012/94/2016– IR(B-1)]

B. S. BISHT, 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 11^th October, 2018

Reference (CGITA) No- 54/2017

The Chief Medical Officer,

Western Railway,

Railway Hospital, Bhavnagar Para,

Bhavnagar (Gujarat)

The General Manager,

Western Railway, Churchgate,

Mumbai

The Divisional Railway Manager,

Western Railway,

Bhavnagar Para,

Bhavnagar (Gujarat)

… First Parties

V/s

The National Vice President,

Bhartiya Railway Mazdoor Sangh,

28-B, Narayan Park,

Behind Chandkheda Railway Station, Sabarmati,

Ahmedabad (Gujarat) – 382470

…Second Party

For the First Party : Shri Harish R. Raval

For the Second Party : None

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6365

AWARD

The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-41012/94/2016–IR(B-I)

dated 08.06.2017 referred the dispute for adjudication to the Central Government Industrial Tribunal cum Labour Court,

Ahmedabad (Gujarat) in respect of the matter specified in the Schedule:

SCHEDULE

“Whether the action of the Chief Medical Superintendent, W.R., Bhavnagar and Divisional Railway Manager,

W.R., Bhavnagar to transfer Shri Sanjay M. Tirdiya, O.S. and protected workman (Divisional Secretary) of

Union from Bhavnagar to Savarkundala is legal, fair and justified? If not, so then what relief Shri Sanjay

M. Tirdiya, O.S. and protected workman (Divisional Secretary) of Union is entitled to?”

The reference dates back to 08.06.2017 and received on 19.06.2017 from Ministry of Labour and Employment,

New Delhi for adjudication and passing the award.

All the parties issued notice Ex. 2 on 04.01.2018 to appear on 06.03.2018. Acknowledgement slips of notice

sent to the parties were also received vide Ex. 3, 4, 5 & 6.

In response to the notice, the first party submitted the vakalatpatra Ex. 7 of Shri Harish R. Raval but the second

party despite giving half a dozen of opportunities, refrained to submit statement of claim.

Thus it appears that the second party workman or his union are not willing to prosecute the case.

It is noteworthy that the second party workman has been serving as Office Superintendent in the office of Chief

Medical Superintendent, Western Railway, Bhavnagar and cannot be said to be a protected workman only on the ground

that he was a Divisional Secretary of a Trade Union.

It is also noteworthy that the post of Office Superintendent used to be Class C post and the services of such

employees are used to be transferable. Therefore, the reference has no force and moreover he has not preferred to submit

the statement of claim.

Thus the reference is disposed of in the absence of the statement of claim of the second party with the

observation as under: “the action of the Chief Medical Superintendent, W.R., Bhavnagar and Divisional Railway

Manager, W.R., Bhavnagar to transfer Shri Sanjay M. Tirdiya, O.S. and protected workman (Divisional Secretary) of

Union from Bhavnagar to Savarkundala is legal, fair and justified.”

P. K. CHATURVEDI, Presiding Officer

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New Delhi, the 13th November, 2018

S.O. 1636.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 08/2013) of the Central Government Industrial Tribunal-cum-Labour

Court Ahmedabad as shown in the Annexure, in the industrial dispute between the management of Western Railway and

their workmen, received by the Central Government on 13.11.2018.

[No. L-41011/100/2012– IR(B-1)]

B. S. BISHT, 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 04^th October, 2018

Reference (CGITA) No. 08/2013

1. The Divisional Railway Manager,

Western Railway, Pratapnagar, Baroda (Gujarat)

6366

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

2. The General Manager,

Western Railway, Churchgate, Mumbai

…First Parties

V/s

The Divisional Secretary,

Paschim Railway Karmachari Parishad,

Shastri Pole, Nr. Kothi, Baroda (Gujarat)

…Second Party

For the First Party : Shri Rajesh Singh

For the Second Party : Shri R.S. Sisodiya (Union Representative)

AWARD

The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-41011/100/2012–IR

(B-I) dated 31.01.2013 referred the dispute for adjudication to the Central Government Industrial Tribunal cum Labour

Court, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule:

SCHEDULE

“Whether the demand of the union for compassionate appointment to Shri Gohil Mafatbhai Ishwarbhai S/o Late

Ishwarbhai is legal, proper and just? If so, to what relief Shri Gohil Mafatbhai Ishwarbhai S/o Late Ishwarbhai is

entitled to?”

1. The reference dates back to 31.01.2013 and received on 11.02.2013 from Ministry of Labour and Employment,

New Delhi for adjudication and passing the award.

2. After issuing notice to the parties, the second party submitted the statement of claim Ex. 4 on 09.08.2018 along with

number of documents. It has been alleged in the statement of claim that a Gangman namely Ishwarbhai Girdharbhai

suddenly died on 16.12.2000 after serving the first party Western Railway for 20 years but his son namely Gohil

Mafatbhai Ishwarbhai was denied the appointment on compassionate ground under dying and harness rules despite

moving applications as per due procedure. The statement of claim is supported with the death certificate, service record

and other relevant documents.

3. The first party The Divisional Railway Manager, Western Railway, Pratapnagar, Baroda submitted a letter Ex. 6 along

with vakalatpatra Ex. 7 of his advocate stating that the son namely Gohil Mafatbhai Ishwarbhai of the deceased workman

Ishwarbhai Girdharbhai has been issued appointment letter no. E/880/1(MJG) on 21.09.2018 with a direction to join

within 15 days. The second party union, in the light of the aforesaid letter and statement of the advocate for the first

party, did not press the reference and requested the Tribunal to pass appropriate order.

4. Thus the reference is disposed of with a direction to the first party the Divisional Railway Manager, Western Railway,

Pratapnagar, Baroda to permit the second party Gohil Mafatbhai Ishwarbhai S/o Late Ishwarbhai to join in the light of the

aforesaid letter no. E880/1MJG immediately in case if he has not joined.

5. The award is passed accordingly.

P.K. CHATURVEDI, Presiding Officer

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New Delhi, the 13th November, 2018

S.O. 1637.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 84/2011) of the Central Government Industrial Tribunal-cum-Labour

Court Ahmedabad as shown in the Annexure, in the industrial dispute between the management of Western Railway and

their workmen, received by the Central Government on 13.11.2018.

[No. L-41011/70/2011– IR(B-1)]

B. S. BISHT, Section Officer

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6367

ANNEXURE

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

AHMEDABAD

Present : Pramod Kumar Chaturvedi, Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad,

Dated 27^th September, 2018

Reference: (CGITA) No. 84/2011

The Divisional Railway Manager,

Western Railway,

Pratapnagar,

Baroda (Gujarat) – 390004

The General Manager,

Western Railway, Churchgate,

Mumbai

…First Parties

V/s

The President,

General Workmen’s Union,

Sinduri Mata Devasthan, S.T. Nagar Road,

Godhra (Gujarat) – 389001

…Second Party

For the First Party : Shri Rajesh Singh Thakur

For the Second Party : Shri J.K. Ved

AWARD

The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-41011/70/2011–IR(B-I)

dated 11.11.2011 referred the dispute for adjudication to the Central Government Industrial Tribunal cum Labour Court,

Ahmedabad (Gujarat) in respect of the matter specified in the Schedule:

SCHEDULE

“Whether the demand of the Union, General Workmen’s Union, Godhra for appointment of Shri Uttamsingh

Bhimsingh Parmar in the Western Railway on compassionate ground is legal and justified? To what relief

Shri Uttamsingh Bhimsingh is entitled?”

1. The reference dates back to 11.11.2011 and received on 01.12.2011 from Ministry of Labour and Employment,

New Delhi for adjudication and passing the award.

2. Both the parties issued notice Ex. 2 on 04.04.2012 to appear on 04.05.2012. In response to the notice, the second party

union submitted the statement of claim Ex. 5 on 23.11.2012 and the first party submitted the written statement Ex. 8 on

11.04.2018.

3. The case was fixed for evidence of the second party workman but today on 27.09.2018, Shri J.K. Ved, The President,

General Workmen’s Union, Sinduri Mata Devasthan, S.T. Nagar Road, Godhra requested the Tribunal to withdraw the

case for non co-operation in leading the evidence by the second party workman.

4. Thus the reference is disposed of as withdrawn.

P.K. CHATURVEDI, Presiding Officer

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6368

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

New Delhi, the 13th November, 2018

S.O. 1638.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 47/2012) 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 13.11.2018.

[No. L-12025/01/2018– IR(B-1)]

B. S. BISHT, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL–CUM-LABOUR COURT LUCKNOW

PRESENT : RAKESH KUMAR, Presiding Officer

I.D. No. 47/2012

BETWEEN :

Sri Somit Kumar, S/o Sri Banwari Lal

R/o H. No. 298/168, Krishna Nagar, Keetganj

Mewalal Ka Talab, Allahabad – 211001

AND

General Manager

Northern Railway, Baroda House

New Delhi 110001.

Divisional Rail Manager

Northern Railway, Hazratganj

Lucknow 226001.

M/s. Shahid Faizan Ahmad & Brothers

654, Begum Ka Makbara, Faizabad (UP) 224001

AWARD

The present industrial dispute has been filed by the workman, under provisions contained in the Section 2A (2)

of the Industrial Disputes Act, 1947 for alleged termination of the services of the workman by the management of

Northern Railway & others, for adjudication before this Central Government Industrial Tribunal–cum-Labour Court,

Lucknow.

The case of the workman, Somit Kumar, in brief, is that he was appointed as Box Porter with opposite party

No. 02 against the permanent vacant post; and worked accordingly w.e.f. 01.09.2003 to 25.04.2009 continuously when

his services have been terminated without any notice. It is submitted by the workman that the opposite party No. 02 has

kept opposite party No. 03 to escape from the responsibilities and labour laws though he performed duties of opposite

party No. 2 under its directions. He also submitted that he was issued a gate pass by the opposite party No. 03, under

directions of the opposite party No. 02, which used to be taken back at the end of the year. The workman has stated that

he after continuous service of 120 days was entitled for temporary status and other service benefits under service Rules.

Accordingly, the workman has prayed for reinstatement with full back wages with continuity in service.

The opposite party No. 01 & 02 has disputed the claim of the workman by filing its written statement; wherein it

has mentioned that the workman had never been engaged/appointed by the opposite party No. 01 & 02; moreover the

railway management entered into an agreement with the opposite party No. 03 for executing the day to day casual work

at railway stations; and accordingly, the railway administration is not liable for any claim made by the workman as the

railway administration neither engaged the workman nor did it terminate him; and also that it did not make any violation

of any labour law or engaged in any kind of unfair labour practice; hence it has been prayed by the opposite party No. 1

& 2 that the claim of the workman be rejected without any relief to him being devoid of merit.

The opposite party No. 03 has also disputed the claim of the workman with submission that neither any post of

Box Porter was ever vacant nor the opposite party No. 3 ever received work order or Form-V from railway

administration nor the workman was ever appointed with the opposite party No. 1, 2 & 3 on the post of Box Porter; hence

there is no question of his termination. It has submitted that the workman was never issued any gate pass by the opposite

party No. 3 and various benefits such as salary, weekly holiday, Provident Fund and medical facilities are available to the

regularly appointed employee who are appointed after adopting due procedure; and the workman is not entitled for the

same as there was no violation to the provisions of I.D. Act, 1947. Accordingly, the opposite party No. 03 has prayed

that the claim of the workman be rejected.

The workman has filed its rejoinder wherein he has denied the counter allegations of the opposite parties

reiterating the averments already made in the statement of claim.

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6369

The opposite party No. 03 did not turn up after filing of its written statement.

The workman and opposite party No. 01 & 02 filed photocopies of documents in support of their cases. The

workman examined himself; whereas the opposite party No. 01 & 02 examined Shri P. K. Singh, ADME (O&F),

Northern Railway, Lucknow in support of their respective stands. The parties availed opportunity to cross-examine the

witnesses of each other apart from forwarding oral arguments.

Heard the authorized representatives of the parties and perused entire evidence available on record.

The authorized representative of the workman has argued that he was appointed as Box Porter with opposite

party No. 02 against the permanent vacant post; and worked accordingly w.e.f. 01.09.2003 to 25.04.2009 continuously

when his services have been terminated without any notice or notice pay or assigning any reason thereof in contravention

to the provisions of Section 25 F of the I.D. Act, 1947. The learned authorizes representative of the workman has also

asserted that the workman after continuous service of 120 days was entitled for temporary status and other service

benefits under service Rules. He has relied upon

(i)

The Judgment and order dated 15.02.2013 of Hon’ble Apex Court in Writ Petition (Civil) No. 433 of

1998.

(ii)

Judgment dated 27.01.1999 of Hon’ble Calcutta High Court in Sheikh Jahangir Ali & others vs Calcutta

Port Trust & others.

(iii) (2006) 12 SCC 380 District Rehabilitation Officer & others vs Jay Kishore Maity & others.

(iv)

(2003)11 SCC 590 A.I. Railway Parcel & Goods Porters’ Union vs Union of India & others.

10.

In rebuttal, the opposite party No. 01 & 02’s representative has contended that the workman is contractor’s

employee as the opposite party has undergone a contract with the M/s Industrial Security Services for supply of security

personnel; and accordingly the workman was one of the security guards provided by M/s Industrial Security Services and

the said contractor/agency was duly paid for it, which in turn paid salary to the workman. It has been urged that the

management of opposite party No. 01 neither appointed the workman nor terminated his services; rather his employment

was regulated by M/s Industrial Security Services and the same came to an end with the end of contract with the agency;

hence there was no violation of provisions of the Industrial Disputes Act, 1947. He has relied upon:

(i)

2017 LLR 940, the Secretary, BSNL, Contractor Mazdoor Union & others Vs. The Chief General

Manager, BSNL

(II)

2018 LLR 758 Civil Aviation Training College, Bamrauli vs Mohan Lal Prajapati

11.

I have given my thoughtful consideration to the rival contentions of the parties and perused entire evidence

available on file.

12.

The workman has come up with a case that he had been appointed by the opposite party No. 2 on the clear

vacancy of Box Porter and the management of railways engaged the opposite party No. 3 in order to deprive the

workman of his legitimate rights. It has also been contended by the workman that keeping in view the long and

continuous service with the opposite party No. 1 & 02 he was entitled for grant of temporary status and other

consequential benefits admissible to the employees with temporary status under Railway Establishment Rules; but on the

contrary the management of Railways has acted in utter disregard to the norms and has terminated his services without

any reason or rhyme or any notice or any notice pay in lieu thereof, which is voilative of the provisions of the Section 25

F of the ID Act, 1947. It is also the case of the workman that keeping in view the pronouncement of the Hon’ble Apex

Court regarding regularization/absorption of Box Porters with railway administration, he was also entitled for

regularization/absorption into the services of the Railways. The workman has filed photocopy of gate pass/Identity card,

purported to be issued by opposite party No. 3.

13.

Per contra, the opposite party No.1 & 2 has come forward with a clear cut case that the management of railways

neither appointed the workman in any capacity nor there arises any question of his termination or violation of any of the

provisions of the Industrial Disputes Act, 1947. It is the case of the management of railways that the management of

railways entered into an agreement with M/s Shahid FAizan Ahmed & Brother’s for transportation of driver line boxed

from Charbagh & Alamnagar station and accordingly, the workman’s services were availed by the said

contractor/opposite party No. 3 by engaging him; and was paid accordingly. Thus, there was no direct employer-

employee relationship between the management of railways and the workman, therefore, the management of railways is

not liable to the workman in any way as claimed before this Tribunal. The opposite party No. 01 & 02 has filed

photocopy of the contract dated 22.01.2009 entered between the railway administration and the opposite party No. 3.

14.

Moreover, the opposite party No. 03 has also rebutted the claim of the workman with submissions that the

workman had never been appointed by any of the opposite parties and he was not entitled for any of the benefits as

claimed by him as they were admissible to the regularly appointed employees of the railways. It also mentioned that

there was no vacancy of the Box Porter nor any such post was advertised by the railways or any recruitment was done in

pursuance thereof. However, the opposite party No. 03 did not turn up after filing its written statement. But its absence

does not automatically create any legal rights in favour of the petitioner workman.

6370

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

15.

Having gone through the respective pleading of the parties and entire documentary evidence available on record

it comes out that the railway administration entered into a contract with the opposite party No. 03 viz. M/s Shahid Faizan

Ahmed & Brother’s to carry out the working according to the specification provided in the contract for a period or two

years only; and in consequence thereto; workman had been engaged by the opposite party No. 03 viz. M/s Shahid Faizan

Ahmed & Brother’s for transportation of Driver line boxes from Charbagh & Alam Nagar station railway platform.

The workman has examined himself in support of his case and during his cross-examination has stated that he

had been appointed by the contractor viz. Shahid Faizan & Brothers on 01.09.2003. He admitted that the railway neither

appointed nor terminated his services; rather he stated that the Contractor, Shahid Faizan terminated him on 25.04.2009

without any notice. He also admitted that paper No. 13/3 is identity card, issued by the contractor.

On contrary, the management of the railway has examined Sri P. K. Singh, ADME (O&F), who stated in his

cross-examination that contractor is being allotted ‘work order’, which is for a specific time period; however the time

period keeps on changing with reference to the condition and this may be for 6 months, some time for 01 year and

sometimes it may be for 02 years also, depending on the nature of the work. He stated that Indian Railway does not have

direct relation with any Box Porter and the contractor is fully responsible for quality of work. He further stated that the

contractor is directly related with the workman and Railways has no role in the appointment of Box Porter by the

contractor; nor does the railway issues any identity card to any of the Box Porter engaged by the contractor. The

management witness specially stated that since the contract used to be time bound, therefore, on its expiry, the contract is

issued again; hence there is no relation with the railways regarding regularization.

16.

During course of the oral submissions the learned authorized representative of the workman has stressed over

the order of Hon’ble Apex Court’s Judgment and order dated 15.02.2013 of Hon’ble Apex Court in Writ Petition (Civil)

No. 433 of 1998 and has submitted that the case of the workman is covered with the said order of the Hon’ble Apex

Court and since the railway management has given appointment/regularized other box porters in light of above order

dated 15.02.2013 of the Hon’ble Supreme Court, therefore the workman is also entitled for regularization accordingly.

The learned authorized representative of the management of railway has vehemently opposed the same. Having taken

into account the contentions of the rival parties and perusal of the Judgment and order dated 15.02.2013 of Hon’ble Apex

Court in Writ Petition (Civil) No. 433 of 1998 and various letters filed by the workman, obtained through Right to

Information Act, 2005, it appears that the Judgment and order dated 15.02.2013 of Hon’ble Apex Court in Writ Petition

(Civil) No. 433 of 1998 was in personam and not in rem, therefore, the directions of the Hon’ble Supreme Court shall

apply to the workmen who approached the Hon’ble Sureme Court; and since the workman never approached the Hon’ble

Supreme Court, therefore, the Judgment and order dated 15.02.2013 of Hon’ble Apex Court in Writ Petition (Civil) No.

433 of 1998 is of no use for him.

Hon’ble Calcutta High Court in 2017 LLR 940, the Secretary, BSNL, Contractor Mazdoor Union & others vs.

The Chief General Manager, BSNL has held that admission of the workmen that they were working under their

respective contractor, is sufficient to establish that they were having no employer-employee relationship with BSNL

management; hence, the workmen are not entitled to seek any relief from BSNL management. Hon’ble High Court has

observed as under:

“The ratio of the Division Bench in the case of the Binoy Bhushan Chakraborty (supra) is that when a

workman is engaged by a contractor to carry out some work at any establishment of BSNL, if such workman

is retrenched by the contractor while working under him, BSNL cannot be regarded as employer of such

workman with the meaning of “employer” as defined in the Industrial Disputes Act nor such workman can

be held to be a “workman” under BSNL within the meaning of the said term, as defined under the said Act

and such workman cannot claim to be absorbed in the service of BSNL.”

Hon’ble Allahabd High Court in 2018 LLR 758 Civil Aviation Training College, Bamrauli vs Mohan Lal

Prajapati has observed as under:

“Since, prima facie there was no employment of the respondent with the petitioner there could not have been

any termination. I am therefore, of the definite opinion that the Labour Court decided the dispute

erroneously. It had no jurisdiction to decide the matter. In fact, when the workman was not at all a workman

as had been stated by the petitioner and as was also clear from the averment made in paragraph-10 of the

counter affidavit the respondent/workman who had been engaged by a contractor had the remedy to file a

claim under the Contract Labourer (Regulation and Abolition) Contract Rules, 1971 (hereinafter called the

1971 Rules)”

17.

It is well settled that if a party challenges the legality of order, the burden lies upon him to prove illegality of the

order and if no evidence is produced, the party invoking jurisdiction of the court must fail. In the present case burden

was on the workman to set out the grounds to challenge the validity of the termination and to prove that the alleged

termination by railways. It was the case of the workman that he had been appointed on the post of Box Porter under the

opposite party No. 02 and had worked continuously w.e.f. 01.09.2003 to 25.04.2009, when his services have been

terminated without any notice by the railways. This claim has been denied by the railway management; therefore, it was

for the workman to lead evidence to show that he had in fact worked continuously for the claimed duration before his

alleged termination. In (2002) 3 SCC 25 Range Forest Officer vs S.T. Hadimani Hon’ble Apex Court has observed as

under:

“It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then

for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his

¹Hkkx IIµ[k.M 3(ii)º

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6371

termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as

sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked

for 240 days or order or record of appointment or engagement for that period was produced by the workman.

On this ground alone, the award is liable to be set aside.”

18.

Analyzing its earlier decisions on the aforesaid point Hon’ble Apex Court has observed in 2006 (108) FLR R.M.

Yellatti & Asstt. Executive Engineer as follow:

“It is clear that the provisions of the evidence Act in terms do not apply to the proceedings under section 10 of

the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments we

find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he

had worked 240 days in a given year. This burden is discharged only upon the workman stepping in the

witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and

documentary. In cases of termination of services of daily wages earner, there will be no letter of appointment

or termination. There will also be no receipt or proof of payment. Thus, in most cases, the workman

(claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given

period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing

of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however

make it clear that mere affidavits or self serving statements made by the claimant/workman will not suffice in

the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days

in a given year. The above judgments further lay down that mere non production of muster rolls per se without

any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse

inference against the management.”

In the present case the workman has come up with a case that he had been appointed on the post of Box Porter

under the opposite party No. 02 and thus, worked continuously w.e.f. 01.09.2003 to 25.04.2009, but has not produced

any document neither original nor photocopy in support of his pleadings . The burden was on the workman to show by

the way of cogent evidence that there was employee-employer relationship; and he actually worked for claimed duration;

but he failed to do so as he could not bring this fact on record. In view of denial of the management regarding his claim,

the workman has nothing to support his version, except photo copy of the so called identity card, purported to be issued

by the opposite party No. 03 i.e. the contractor viz. M/s. Shahid Faizan Ahmed & Brother’s. Further, the opposite party

No. 03, the contractor has also refuted the claim of the workman regarding his appointment with the railways. Hence, the

workman could not establish that there was any employee and employer relationship between him and the opposite party

No. 01 & 02 i.e railways.

19.

On the other hand the management of the railways has well proved its case by filing copy of the contract with

the M/s. Shahid Faizan Ahmed & Brother’s for supply of labourers for transportation of Driver line boxes at railway

platform.

Mere pleadings are no substitute for proof. Initial burden of establishing the fact of continuous work on the date

of alleged termination was on the workman but he failed to discharge the above burden. There is no reliable material for

recording findings that the workman had been appointed by the railway administration on the post of Box Porter or he

worked continuously with the opposite party No. 01 & 02; and the alleged unjust or illegal order of termination was

passed by the management of opposite party No. 01 & 02 or any provisions of the Industrial Disputes Act, 1947 had been

violated by them.

20.

Thus, in view of the facts and circumstances of the case and discussions made herein above I am of considered

opinion that the workman could not be able to prove through cogent evidence that there was a relationship of employee

and employer between him and the opposite party No. 01 & 02; rather from the evidence adduced it is established that he

was an employee of the contractor viz. M/s. Shahid Faizan Ahmed & Brother’s, therefore, the workman can not be

granted the relief of reinstatement or any other relief sought by the workman against the opposite party No. 01 & 02.

21.

Award as above.

LUCKNOW.

15^th October, 2018.

RAKESH KUMAR, Presiding Officer

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6372

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

New Delhi, the 13th November, 2018

S.O. 1639.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (ID. No. 17/2011) of the Central Government Industrial Tribunal-cum-Labour

Court-1, Chandigarh as shown in the Annexure, in the industrial dispute between the employers in relation to the Chief

Post Master General, Punjab Circle, Chandigarh and others and their workman, which was received by the Central

Government on 08.11.2018.

[No. L-40012/21/2011– 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.I, CHANDIGARH

ID No.17/2011

Shri Surinder Paul

S/o. Chanan Ram,

r/o. Vill & P. Bulandpur, PO Nurpur,

District Jalandhar 144012.

…Workman/Claimant

Versus

Chief Post Master General,

Punjab Circle, Chandigarh

Asstt.Supdt. of Post Offices (Central),

O/o. Senior Superintendent of Post Offices,

Jalandhar Division,

Jalandhar.

… Management

AWARD

This Award shall decide a reference which was made to this Tribunal by the Appropriate Government vide letter

No. L-40012/21/2011-IR(DU) dated 03.10.2011 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 Senior Supdt. Of Post Office, Punjab Circle/Sr Supdt. of Post Office,

Jalandhar Division, Jalandhar, in terminating the services of Shri Surinder Pal, Ex.-EDDA S/o Shri Chanan Ram

w.e.f. 5/8/2009 is legal and justified ? What relief the workman is entitled to ?’

Both parties were put to notice and the claimant Surinder Paul filed his statement of claim, with the averments

that he was enrolled as an Extra Departmental Delivery Agent (EDDA) without issuing any appointment letter on

25/5/1996, by Management No.2 and was ordered to perform duties at Branch Office, “Nussi” attached to Industrial

Town, Sub Post Office, Jalandhar and was verbally transferred to Chogitti Sub Post Office in January, 1999 and

thereafter he was verbally posted as EDDR at Randhawa Masandan Branch Post Office Industrial Town sub

Office,Jalandhar where he remained posted w.e.f. 14/5/2007 to 5/8/2009 continuously and his entire service record was

satisfactory. It is pleaded that his salary@ Rs.5500/- per month w.e.f. 1/1/2009 to 5/8/2009 has not been paid and when

he had pressed for the same, his services were terminated without issuing any charge sheet or show cause notice or

without any departmental proceedings. The workman is still on the rolls of the department but his salary is being drawn

@ Rs.Zero per month which is apparent from document Annexure W-1. Though the workman tried to get his personal

information under Right to Information Act vide letter dated 23/1/2010 (copy enclosed as Annexure W/2) but the same

was declined to him vide letter dated 28/1/2010. Thereafter the claimant got filed through his counsel first appeal and

then second appeal under RTI Act before Chief Information Commissioner but to no avail. A demand notice dated

9/6/2010 was sent to the Management and approached the Conciliation Officer but to no avail. The workman has prayed

for his reinstatement with full back wages.

Management resisted the claim of the workman and filed written statement, taking preliminary objections inter

alia that the Department of Post is not an industry and its employees are not the workman under the ID Act and that all

service matter are to be dealt with by the Central Administrative Tribunal. While denying the allegation of the

workman/claimant about his employment, it has been admitted that the claimant was engaged to work as an outsider

GDSBPM at Raipur Rasulpur by Management No.2 against vacant post as stop gap arrangement (adhoc arrangement),

due to absence of the regular incumbent and he worked on contract basis only for the period from 14/5/2007 to

14/8/2007; 17/8/07 to 30/9/2007; 3/10/2007 to 29/11/2007; 1/12/2007 to 39/12/2007, 1/1/2008 to 30/1/2008; 1/2/2008 to

28/2/2008;1/3/2008 to 29/3/2008; 1/4/2008 to 28/4/2008; 1/5/2008 to 30/5/2008’ 12/6/2008 to 30/7/2008; 1/8/2008 to

30/8/2008;1/9/2008 to 30/10/2008; 1/11/2008 to 29/11/2008; 1/12/2008 to 30/12/2008; 1/1/2008 to 30/1/2009; 2/2/2009

to 28/2/009; 2/3/2009 to 31/3/2009; 1/4/2009 to 19/4/2009, 21/4/2009 to 30/4/2009; 1/5/2009 to 30/5/2009; 1/6/2009 to

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6373

29/6/2009; 1/7/2009 to 30/7/2009 and that there is nothing due towards the claimant on account of his salary for any

period. It is also alleged that pay slip of the outsider substitute was being drawn/generated inadvertently by the DDO

which has now been stopped. It has been pleaded that the available information was supplied to the counsel for the

claimant as per orders of Chief Information Commissioner as per Annexure R-1. It is alleged that question of

termination of service of the claimant does not arise as he was not the regular employee of the Management. Since he

was engaged only in a stop gap arrangement, there was no question of issuing any charge sheet/departmental

proceedings. Prayer has been made for dismissal of the claim petition.

Perusal of the record shows that the claimant had filed his evidence by way of affidavit and the representative of

the Management had refused to cross examine the workman/claimant and as such evidence of the claimant was closed

vide order dated 2/2/2015. Thereafter several opportunities were granted to the Management to lead evidence but no

evidence has been adduced on behalf of the Management. However, an application u/order IX rule 13 CPC read with

Section 151 CPC was moved on behalf of the Management for setting aside the order dated 2/2/2015 and to cross

examine the claimant. The said application of the Management was dismissed by this Tribunal vide detailed order dated

24/7/2018.

I have heard Shri S.C Gupta, A/R for the workman as none appeared on behalf of the Management. I have also

gone through the records carefully.

There is no dispute about preposition of law that onus to prove that claimant was in the employment of

Management is always on the workman/claimant and it is for the workman to adduce evidence to prove factum of his

employment with the Management. Such evidence may be in form of receipt of salary or wages for 240 days or record

of his/her appointment or engagement for that year to show that he/she has worked with the employer for 240 days or

more in a Calendar year. In this regard, reference may be made to Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh,

(2005) 8 Supreme Court Cases 481 as well as Director Fisheries Terminated Division Vs. Bhikubhai Meghajibhai

Gavda (2012) 1 SCC 47.

In the affidavit (now exhibited as Ex.C-1). the claimant has reiterated the averments as made in the claim

petition. The claimant has filed on record copy of his salary slip (as Ex.W-1 colly) showing that his salary for the

month of August, 2011 was drawn by the Management @ Rs.Zero per month. He has also filed on record copy of his

RTI application as Ex.W-2 whereby he had sought certain information from the Management under RTI Act, vis-à-vis

the reasons for removing/relieving the claimant Surinderpal, EDDA from official duties w.e.f. 5/8/2009 while posted at

Raipur Rasulpur Branch Office, the Management vide its reply (viz. Annexure R-1 filed alongwith the written statement

itself) has stated that Shri Baljinder Paul, GDS, MD Kot Kalan BO was given the charge of GDS BPM Raipur Rasulpur

against the outsider Shri Surinder Pal in the public interest. Thus it stands proved on record that the claimant was

engaged by the Management No. 2 as EDDA and as such was the employee of the Management. Though he

workman/claimant has claimed that he performed his duty continuously for about 13 years w.e.f. 25/5/1996 till the date

of termination of his services by the Management, however except for his bald statement to this effect he has not filed on

record any document to substantiate the same. But the fact remains that the claimant was undisputedly in the employment

of the Management, inasmuch as the Management has admitted in its written statement that the claimant was engaged to

work as an outsider GDSBPM at Raipur Rasulpur by Management No.2 against vacant post as stop gap arrangement

(adhoc arrangement), due to absence of the regular incumbent and there he worked from 14/5/2007 to 30/7/2009 with

artificial break of one or two days, as detailed in para 3 above and he had worked for more than 240 days in the calendar

year 2008 i.e year. preceding to the date of termination of his services on 5/8/2009. I may mention that even if it is

assumed that the claimant herein was working under the Management as stop gap arrangement or on contract basis, as

alleged by the Management, in that eventuality also the claimant falls in the definition of “workman” as provided under

Section 2(S) of the Act. In this regard, reference can be made to the decision in the case of Devinder Singh Vs.

Municipal Council, Sanaur, AIR 2011 Supreme Court 2532 wherein the Hon’ble Apex Court while interpreting the

provisions of Section 2(S) of the Act which deals with the definition of “workman” has observed as under :-

“The source of employment, the quantum of recruitment, the terms & conditions of employment/ contract of

service, the quantum of wages/ pay and mode of payment are not at all relevant for deciding whether or not a

person is a workman within the meaning of Section 2(s) of the Act. The definition of workman also does not

make any distinction between full time and part time employee or a person appointed on contract basis. There

is nothing in the plain language of Section 2(s) from which it can be inferred that only person employed on

regular basis or a person employed for doing whole time job is a workman and the one employed on temporary,

part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a

workman.”

It is clear from the perusal of aforesaid observations that even if a person is engaged on temporary, part time or contract

basis or for doing any other kind of work and is duly paid wages for the said work, in that eventuality such a person

would be covered by the definition of “workman” as provided in Section 2(S) of the Act. In these circumstances, it

stands proved that there existed relationship of employer-employee between the parties.

It is the case of the Management that the question of termination of service of the claimant does not arise as he

was not the regular employee of the Management and further that since the claimant was engaged only in a stop gap

arrangement, there was no question of issuing any charge sheet/departmental proceedings. Thus, undisputedly the

Management has neither issued any notice, nor has paid any compensation in lieu of notice period to the

workman/claimant prior to termination of his services. This amounts to violation of the provisions of Section 25-F of the

Act.

6374

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

There is long line of decisions of Hon’ble Apex Court as well as of various High Courts that provisions of

Section 25-F of the Act are mandatory in nature and termination of the workman from services in derogation of the

provisions of Section 25-F of the Act will render action of the Management to be illegal and void under the law.

10.

Since there is no evidence on record that any valid notice was issued by the Management to the workman at the

time of termination or in lieu of such notice, any compensation was paid to him, as such action of the Management in

terminating the services of the workman is held to be illegal and void.

11.

Now the residual question for consideration is whether the claimant is entitled to any incidental relief of

payment of back wages and/or reinstatement of service. It is proved on record that claimant was in the employment of

the Management before his termination on 5/9/2008. There is no show cause notice or memo issued to the

claimant/workman by the Management. Moreover, the job of the workman is/was of perennial and regular nature which

fact finds support from reply Annexure R-1 itself and that is why one Baljinder Paul, GDS, MD Kot Kalan Branch was

given the charge of GDS Raipur Rasulpur where the claimant was lastly deputed/engaged. During the course of

arguments, the claimant was present before this Tribunal and he stated that he is not gainfully employed after his

termination. The Management has not adduced any evidence to show that the claimant is gainfully employed somewhere

else or that he is in a position to make his both ends meet by doing any work. Even if it is assumed that the claimant is

doing some intermittent or adhoc work to make his both ends meet, that would not itself amount to gainful employment. .

12.

The Hon’ble Apex Court in case “Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya”

reported as (2013) 10 SCC 324 has held as under :

“The propositions which can be culled out from the aforementioned judgments are :

(i)

In cases of wrongful termination of service, reinstatement with continuity of service and back

wages is the normal rule.

(ii)

Ordinarily, an employee or workman whose services are terminated and who is desirous of

getting back wages is required to either plead or at least make a statement before the

adjudicating authority or the Court of first instance that he/she was not gainfully employed or

was employed on lesser wages. If the employer wants to avoid payment of full back wages,

then I has to plead and also lead cogent evidence to prove that the employee/workman wads

gainfully employed and was getting wages equal to the wages he/she wads drawing prior to

the termination of service. This is so because it is settled law that the burden of proof of the

existence of a particular fact lies on the person who makes a positive averments about its

existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore,

once the employee shows that he was employed, the onus lies on the employer to specifically

plead and prove that the employee was gainfully employed and was getting the same or

substantially similar emoluments.”

13.

The Hon’ble Apex Court also held that different expressions are used for describing the consequence of

termination of a workman’s service/employment/engagement by way of retrenchment without complying with the

mandate of Section 25F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometime

as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of

service of an employee by way of retrenchment without complying with the requirement of giving one month’s notice or

pay in lieu thereof and compensation in terms of Section 25F (a) and (b) has the effect of rendering the action of the

employer and nullity and the employee is entitled to continue in employment as if his service was not terminated. (Anoop

Sharma Vs. Executive Engineer, Public Health Division No.1 Panipat (2010) 5 SCC 497).

14.

A Bench of three Judges of the Hon’ble Supreme Court in the case of Hindustan Tin Works Private Limited v.

Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 held that relief of reinstatement with continuity of

service can be granted where termination of service is found to be invalid. It would mean that the employer has taken

away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously

deprived the workman of his earnings. If thus the act of employer is found to be totally illegal and arbitrary, in that

eventuality the workman is required to be reinstated, with full back wages. Plain common sense also dictates that the

removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the

workmen alongwith payment of back wages.

15.

However, Hon’ble Apex Court in the case General Manager, Haryana Roadways Vs. Rudan Singh,

reported as 2005 SCC (L&S) 716 observed as under :-

“8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination

of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors

like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy

or inviting applications from the employment exchange, nature of appointment namely, whether ad hoc, short

term, daily wage, temporary or permanent in character, any special qualification required for the job and the like

should be weighed and balanced in taking a decision regarding award of back wages. One of the important

factors which has to be taken into consideration is the length of service, which the workman had rendered

with the employer. If the workman has rendered a considerable period of service and his services are

wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at this age

and the qualification possessed by him he may not be in a position to get another employment. However,

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6375

where the total length of service rendered by a workman is very small, the award of back wages for the

complete period i.e. from the date of termination till the date of the award, which our experience shows is

often quite large, would be wholly inappropriate. A regular service of permanent character cannot be

compared to short or intermittent daily wage employment though it may be for 240 days in a calander year.”

16.

Having regard to the legal position as discussed above and the fact that the claimant was performing duty to a

post of regular and perennial nature, this Tribunal is of the firm view that the claimant herein is entitled for

reinstatement into service on the same post, with 50 per cent back wages, iinasmuch as termination of the

claimant/workman is per-se illegal, particularly when the job is of regular and perennial nature and the

claimant/workman is not gainfully employed anywhere since after her termination by the Management. Award is passed

accordingly.

Date :17.10.2018

AVTAR CHAND DOGRA, Presiding Officer

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New Delhi, the 13th November, 2018

S.O. 1640.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (ID. No. 180/2013) of the Central Government Industrial Tribunal-cum-Labour

Court-1, Chandigarh as shown in the Annexure, in the industrial dispute between the employers in relation to the

General Manager, Telecom Department, Ambala Cantt and others and their workman, which was received by the Central

Government on 08.11.2018.

[No. L-40012/80/2009– 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.I, CHANDIGARH

ID No. 180/2013

Smt. Taro Devi w/o Shri Chittar Ram,

R/o. Village & PO Ballana,

Tehsil & District Ambala.

…Workman/Claimant

Versus

Union of India through

Secretary, Ministry of Labour,

Govt. of India, Sharam Shakti Bhawan,

Rafi Marg, New Delhi.

The General Manager,

Telecome Department,

Ambala Cantt.

… Management

AWARD

This Award shall decide a reference which was made to this Tribunal by the Appropriate Government vide letter

No. L-40012/80/2009-IR(DU) dated 07.02.2014 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 Telecom Department in terminating the services of Smt. Taro Devi

w/o Shri Chittar Ram with effect from 10/9/2008 is legal and justified ? If not what relief is she entitled to and

from which date ?’

6376

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

Both parties were put to notice and the claimant Smt. Taro Devi filed her statement of claim, with the averments

that she has been working as part time sweeper for the last 12 years in Village Ballana Telephone Exchange and had been

performing her duties to the best of her abilities and there was no complaint against her. In the year 2001 Govt. of India

issued a policy to convert the services of part time workers (who worked for less than 4 hours) into full time services and

she also sent a communication to the Management No.2 and concerned SDE assured her that her name was being sent to

the higher authorities for conversion of her services as full time but nothing was done, rather adopting unfair labour

practice, the Management converted the services of junior worker namely Dayalo Devi and terminated the services of the

workman/claimant illegally and orally on 10/9/2008, without any notice or compensation and in violation of Sectioin

25-F, G and H of the Act. Gram Panchayat Ballana had also verified her services and had issued a verification letter but

to no avail. Prayer has been made for reinstatement into service with full back wages and continuity of service.

(2)

The claim petition has been resisted by the Management No.2 who filed its reply, alleging that the workman was

never engaged in the department of Telecom or BSNL in any capacity nor she worked even for a single day. The

workman has not furnished any documentary proof to show her employment excepting the certificate signed by the

Sarpanch of Gram Panchayat. As such no legal right of the workman/claimant has been infringed in any manner. It has

been denied that there is violation of any provisions of the Act. Prayer has been made for dismissal of the claim petition.

( 3)

In support of her case the workman appeared in the witness box as wW1 and tendered her evidence by way of

affidavit and relied on the documents Ex.WW1/A to Ex.WW1/3. On the other hand, the Management examined one

Shri Avtar Singh, SDO (T), Ambala who also tendered his affidavit Ex.MW1/A..

(4)

I have heard Shri Tej Pal Dhull, A./R for the workman and Shri Anish Babbar, A./R for the Management and

have gone through the records carefully.

(5)

At the outset I may mention that the claim made by the workman/claimant herein for reference of dispute was

declined by the appropriate Government vide its order dated 5/1/2010, which was assailed by the workman before

Hon’ble High Court of Punjab & Haryana vide CWP No. 727/2011. Vide order dated 3/12/2012 Hon’ble High Court

was pleased to quash the order dated 5/1/2010 of the appropriate Government and resultantly the instant reference has

been made.

(6)

There is no dispute about preposition of law that onus to prove that claimant was in the employment of

Management is always on the workman/claimant and it is for the workman to adduce evidence to prove factum of his

employment with the Management. Such evidence may be in form of receipt of salary or wages for 240 days or record

of his/her appointment or engagement for that year to show that he/she has worked with the employer for 240 days or

more in a Calendar year. In this regard, reference may be made to Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh,

(2005) 8 Supreme Court Cases 481 as well as Director Fisheries Terminated Division Vs. Bhikubhai Meghajibhai

Gavda (2012) 1 SCC 47.

(7)

In her affidavit Ex.WW1/A the claimant has reiterated her case that she had been working as part time sweeper

for the last 12 years in Village Ballana Telephone Exchange of Management No.2. She has filed on record copy of the

complaint dated 28/7/2008 (Ex.M.W1/1) addressed to Labour Officer, Ambala City regarding enhancement of her wages

and regularization of her services; proceedings of the Conciliation Officer as Ex.WW1/2 and copy of the order dated

3/12/2012 passed by Hon’ble High Court in CWP No. 727 of 2011 as discussed in para 5 above. On the contrary,

Shri Avtar Singh, SDO, Ambala in his affidavit Ex.MW1/A has categorically deposed that the claimant was never

engaged in the department of Telecom or BSNL at any point of time and the claimant ha not furnished any documentary

proof to show her employment with the Management No.2. As such, question of termination of her services does not

arise.

(8)

It may be noted that in support of her claim that she was working as Part time sweeper in Telephone Exchange,

Bhallana District, Ambala, the workman/claimant in her cross examination elaborated that there were 9 rooms which

were to be cleared out by her and in those rooms, machines have been installed and even the officials used to visit those

rooms. No attendance was ever marked by the department. Initially she was being paid Rs100- and thereafter she was

paid Rs.200/- per month. In the proceedings dated 2/9/2008 (Ex.WW1/2) before the Conciliation Officer, one

Shri Udham Singh, Incharge Telephone Exchange, Bhallana had stated that the claimant/workman had been working in

the Telephone Exchange on contract/part time basis for the last 9 years @ Rs.100/= per month for doing two hours’ work

daily and that since January, 2008 she was being paid Rs.200/- per month for her job. There were arrears of her wages

for the month of June and July, 2008 and the Management was ready to pay the same. Proceedings dated 10/9/2008 of

the Conciliation officer shows that the Management was ready to pay Rs.1200/- to the workman towards arrears of her

wages @ Rs.200/- per month for the months of March, 2008 to August, 2008 and it was disclosed by the side of the

Management that there was no further need of services of the workman and hence, her services were being disengaged.

It is also manifest from the order Ex.WW1/3 of the Hon’ble High Court that learned counsel for the Management herein

had not disputed the factum of admission made before the Labour cum Conciliation Officer that the claimant had been

working with it for the last nine years but she was working on part time contract basis. In the face of documents

Ex.WW1/2 and Ex.WW1/3 as discussed above, the plea of the Management that the claimant was never engaged in the

department of Telecom or BSNL at any point of time is not tenable rather relationship of employer-employee between

the Management and claimant stands proved. Just because the claimant hererin was working under the Management on

part time or on contract basis , it would be improper to conclude that she does not fall in the definition of “workman” as

provided under Section 2(S) of the Act. . In this regard, reference can be made to the decision in the case of Devinder

Singh Vs. Municipal Council, Sanaur, AIR 2011 Supreme Courtt 2532, wherein the Hon’ble Apex Court while

interpreting the provisions of Section 2(S) of the Act which deals with the definition of “workman” has observed as

under :-

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6377

“The source of employment, the quantum of recruitment, the terms & conditions of employment/ contract of

service, the quantum of wages/ pay and mode of payment are not at all relevant for deciding whether or not a

person is a workman within the meaning of Section 2(s) of the Act. The definition of workman also does not

make any distinction between full time and part time employee or a person appointed on contract basis. There

is nothing in the plain language of Section 2(s) from which it can be inferred that only person employed on

regular basis or a person employed for doing whole time job is a workman and the one employed on temporary,

part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a

workman.”

It is clear from the perusal of aforesaid observations that even if a person is engaged on temporary, part time or contract

basis or for doing any other kind of work and is duly paid wages for the said work, in that eventuality such a person

would be covered by the definition of “workman” as provided in Section 2(S) of the Act. In these circumstances, it

stands proved that there existed relationship of employer-employee between the parties.

(9)

Equally settled is the position of law that when relationship of employer-employee stands proved between the

parties, then onus will shift upon the employer/management to show that the claimant has not worked for 240 days or

more in a calendar year or that the services of the claimant were terminated in accordance with the provisions of the Act.

Except for the bald statement that the claimant did not work for 240 days, the Management has not adduced any

documentary evidence to substantiate its claim. However, as mentioned above it has come on record, the

workman/claimant had been working with the Management for the last about 9 years though on part time basis, prior to

termination of her services on 10/9/2008. It is the case of the Management that the workman was not engaged at any

time and as such question of termination her services did not arise. Thus, undisputedly the Management has neither

issued any notice, nor has paid any compensation in lieu of notice period to the workman/claimant prior to termination of

her services. This amounts to violation of the provisions of Section 25-F of the Act.

(10)

There is long line of decisions of Hon’ble Apex Court as well as of various High Courts that provisions of

Section 25-F of the Act are mandatory in nature and termination of the workman from services in derogation of the

provisions of Section 25-F of the Act will render action of the Management to be illegal and void under the law.

(11)

Since there is no evidence on record that any valid notice was issued by the Management to the workman at the

time of termination or in lieu of such notice, any compensation was paid to him, as such action of the Management in

terminating the services of the workman is held to be illegal and void.

( 12)

Now the residual question for consideration is whether the claimant is entitled to any incidental relief of

payment of back wages and/or reinstatement of service. It is proved on record that claimant was continuously in the

employment of the Management for the last about 9 or so before her termination on 10/9/2008. There is no show cause

notice or memo issued to the claimant/workman by the Management. Moreover, the job of the workman is of perennial

and regular nature which fact is also apparent from the testimony of MW1 Avtar Singh who has stated in his cross

examination that now the cleaning work is being done through the contractor who is making payment to the part time

Sweepers. During the course of arguments, the claimant was present before this Tribunal and she has stated that she is

not gainfully employed after her termination. There is pleading in the claim petition as well as evidence in this respect.

The Management has not adduced any evidence to show that the claimant is gainfully employed somewhere else or that

she is in a position to make her both ends meet by doing any work. Even if it is assumed that the claimant is doing some

intermittent or adhoc work to make her both ends meet, that would not itself amount to gainful employment. But at the

same time this Tribunal can not ignore the fact that the claimant was just working with the Management on part time

basis. Latest trend itself discernable from the various pronouncements made by the Hon’ble Apex Court is that when a

person has been engaged on daily wage basis or for doing temporary kinds of work, in that situation full back wages are

not to be awarded. There are number of factors which are required to be considered by the Tribunal while considering

the question of reinstatement with back wages. It has been held in the case of Hari Nandan Prasad Vs. Food Corporation

of India (2014) 7 Supreme Court cases 190 as under :-

“Relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given

fact situation even though the termination of an employee is in contravention of the prescribed procedure.

Compensation instead of reinstatement has been held to meet the ends of justice. An order of retrenchment

passed in violation of Section 25-F although may be set aside but an award of reinstatement should not,

however, automatically passed. The award of reinstatement with full back wages in a case where the workman

has completed 240 days of work in a year preceding the date of termination, particularly daily wages has not

been found to be proper by the Supreme Court and instead compensation has been awarded. The Supreme

Court has distinguished between a daily wager who does not hold a post and a permanent employee. The

reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination

is found to be illegal, because of non payment of retrenchment compensation and notice pay as mandatorily

required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the

management to terminate the services of that employee by paying him the retrenchment compensation.’’

(13) Having regard to the recent judicial trends and duration of service rendered by the claimant, an amount of Rs.1

lakh (Rupees One Lakh) appears to be just and reasonable, and the same is payable to the claimant herein by the

Management. In case this compensation amount is not paid within two months from the date of publication of this

Award, then the claimant will be entitled to recover the same alongwith interest @ 6% per annum. Award is passed

accordingly.

Date : 17.10.2018

AVTAR CHAND DOGRA, Presiding Officer

6378

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

ubZ fnYyh] 14 uoEcj] 2018

dk-vk- 1641-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] dsUnzh;

lkaf[;dh dk;kZy; ¼vkbZ,l foax½] dksydkrk vkSj vU; ds izca/ku ds laca/k esa fu;ksDrk ,oa muds deZpkjh ds izca/kra= ds laca/k

fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je

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gqvk FkkA

[la- ,y&42025@03@2018&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

New Delhi, the 14th November, 2018

S.O. 1641.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 02/2013) of the Central Government Industrial Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the industrial dispute between the employers in relation to the Employers in

relation to the Management of Central Statistics Office (IS Wing), Kolkata and others and their workman, which was

received by the Central Government on 17.10.2018.

[No. L-42025/03/2018– IR(DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Application No. CGIT-02 of 2013

(Under Section 2A of the I.D. Act, 1947)

Parties: Md. Jabir Hossain,

96/H/26, K.C. Road,

Kolkata – 700002

…Applicant

1. Central Statistics Office ( I.S. Wing),

1, Council House Street,

Kolkata – 700001

2. The Director General,

Central Statistics Office (Industrial Statistics Wing),

Ministry of Statistics

Sansad Marg,

New Delhi – 110001.

…Opp. Parties

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Applicant : Mr. A. Banerjee, learned counsel.

On behalf of the Opposite Parties : Mr. A. Dutta, learne counsel.

State: West Bengal.

Dated: 11^th October, 2018

AWARD

This is an application under Section 2A of the Industrial Disputes Act, 1947 claiming that termination of

Applicant workman is unjustified and that he is entitled for reinstatement in service with full back wages and other

consequential benefits under the law.

Brief facts giving rise to this application are that the Applicant workman, Md. Jabir Hossain came in

employment of the Opposite Party, Central Statistics Office (Industrial Statistics Wing), Ministry of Statistics on 29^th

April, 1999. It is alleged that his name was not incorporated in the permanent muster roll of peon inspite of his continued

employment from 1^st June, 1999 till the date of alleged termination of service on 1^st October, 2012. The applicant

workman placed his demand explaining the credibility of the fact to the appropriate authority, but it yielded no effect.

Having found no alternative avenue, the workman had to raise an industrial dispute before the office of Assistant Labour

Commissioner, Kolkata, but the attitude of the employer was non-compromising and anti labour. One of the workmen,

Shri Dipak Samanta was appointed as Peon in 2003 on regular basis, but in case of the applicant workman his service

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6379

was not regularized, rather he was allegedly refused employment by way of termination of service with effect from

1^stOctober, 2012. Therefore, this application under Section 2A of the Industrial Disputes Act, 1947 was filed raising the

said industrial dispute. From the date of joining service the Applicant workman has been discharging duties to the

satisfaction of superiors and the management employers and he maintained good, clean and meritorious record during the

tenure of his service. He has further pleaded that his termination is void ab initio and inoperative, therefore, he is entitled

for reinstatement with full back wages.

The Opposite Party, Central Statistics Office of Ministry of Statistics filed its written statement pleading

interallia that that the application under Section 2A of the Industrial Disputes Act, 1947 is not maintainable as the

organization of Opp. Party is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The

Opp. Party being a wing of the Ministry of Central Government renders sovereign functions. It is further pleaded that the

Applicant was engaged as unskilled labourer from time to time by the department for purely occasional nature of work

on the basis of claim vouchers submitted by the Applicant. Therefore, the question of including his name in the pay roll

or muster roll of the office does not arise under any circumstances. No mazdoor named Shri Dipak Samanta was even

appointed on regular basis. He is not a regular staff of the department; he is one of the contractual staff with contract

valid upto 31^st March, 2014. The Applicant is not at all entitled to regularization in service or reinstatement in service.

The attempt of the applicant workman to approach this Tribunal is stated to be mala fide with sole intention of obtaining

a government employment by misleading the Tribunal by some baseless and false story and also bypass a proper mode of

fair selection.

I have heard the learned counsel of both parties and meticulously perused oral and documentary evidence filed

by the parties.

Before proceeding to the merit of the case, it is necessary to deal with a preliminary objection raised by the Opp.

Parties regarding maintainability of this application on the ground that the Opp. Parties organization is not an industry

within the meaning of Section 2(j) of the Industrial Disputes Act, 1947.

Learned counsel for the Opposite Parties has vehemently argued that the activity of the organization is sovereign

activity of government which is not covered by the definition of ‘industry’ as defined under the Industrial Disputes Act,

1947.

Considering the scope and extent of term “industry” Hon’ble the Apex Court in Bangalore Water Supply v. A.

Rajappa, 1978-I-LLJ 349 has laid certain principles for determination whether an establishment is an industry or not.

The relevant portion of observation of Hon’ble the Apex Court may reproduced as below:

“Where there is; (i) systematic activity, (ii) organized by cooperation between employer and employee (the

direct and substantial element chimerical), and (iii) for the production and/or distribution of goods and

services calculated to satisfy human wants and wishes (non spiritual or religious, but inclusive of material

things or services geared to celestial bliss), prima facie there is an industry in the enterprise.”

Taking clue from the definition of industry as given by Hon’ble the Apex Court as above, Section 2(j) of the

Industrial Disputes Act, 1947 was amended vide Section 2(c) of the Act 46 of 1982 with effect from 21^st August, 1984

according to which –

“industry” means any systematic activity carried on by co-operation between an employer and his workmen

(whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for

the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants

or wishes which are merely spiritual or religious in nature), whether or not –

(i)

………

(ii)

………

But does not include –

(1)

……….

(2)

……….

(3)

………..

(4)

………..

(5)

…………

(6)

any activity of the Government relatable to sovereign functions of the Government including all the

activities carried on by the departments of the Central Government dealing with defence research, atomic

energy and space; or

…………………………….

Thus on the basis of above amended definition of industry, it has been argued by the Opposite Parties that it

being a department of Government of India performing sovereign functions, is specifically excluded from the definition

of industry.

6380

THE GAZETTE OF INDIA : NOVEMBER 17, 2018/KARTIKA 26, 1940

[PART II—SEC. 3(ii)]

10.

Learned counsel for the Applicant, contrary to above, has submitted that even if the organization is Government

Department of Ministry of Statistics and it performs sovereign functions, the same does come within the definition of

industry. For his argument learned counsel has relied on State of West Bengal & Others v. N.G. Jana & Others, 1998-

I-LLJ 1116 in which the Hon’ble Calcutta High Court has observed that

“14.

It is, by now, well-settled that a department of the Government or State or any other authority which is

a State under Art. 12 of the Constitution of India can be an industry provided there is:

(i)

Systematic activity carried on by co-operation between an employer and his employee for the

production or distribution of goods or services with a view to satisfy human wants and wishes, not

spiritual or religious.”

11.

Thus, from above discussion it is clear that Opposite Party organization cannot be excluded from the definition

of industry merely because it is a department of Government of India, if systematic activity is being carried by co-

operation between employer and its employee for production and distribution of goods or services.

12.

Elaborating systematic activity Hon’ble the Apex Court in Bangalore Water Supply case (supra) has held that

a systematic activity which is organized or arranged in a manner in which the trade or business is generally organized and

arranged would be an industry. Thus a government department or organization may be called an industry, if it has

trappings of business, trade or calling where systematic activity is being carried on with the help of employee and for

production and distribution of goods or services.

13.

Now coming to the nature of activity carried on in Central Statistics Office (Industrial Statistics Wing) of

Ministry of Statistics, it is undoubtedly a wing of Ministry of Statistics and Programme Implementation responsible for

survey methodology, process of data, tabulation of data and preparation of report through field survey needed for

improvement of industries. Thus, in view of the nature of activity of the Opposite Party organization, it cannot be said

that it has trapping of business or trade or the systematic activity is organized or arranged in a manner in which trade or

business is generally organized or arranged.

14.

In view of above, it is established that the activity of the Opposite Party organization is sovereign function of the

government which is specifically excluded from the definition of term “industry”.

15.

As the organization of Central Statistics Office is not an industry, the Applicant cannot be said to be a workman

within the definition of Section 2(s) of the Industrial Disputes Act, 1947 and consequently no industrial dispute can be

said to have arisen.

16.

Learned counsel for the Applicant relying on H.D. Singh v. Reserve Bank of India & Others, 1985 LAB.I.C.

1733 and Natha Singh v. Industrial Tribunal-cum-Labour Court & Others, 2015 LLR 309 has submitted that

striking off the name of the Applicant from the rolls of organization amounts to retrenchment and as provisions of

Section 25F of the Industrial Disputes Act, 1947 are not followed, the Applicant is entitled to reinstatement in service. I

do not agree with the submissions made by the learned counsel for the Applicant as it has been seen above that Central

Statistics Office is not an industry, therefore, no question of retrenchment and compliance of Section 25F of the

Industrial Disputes Act, 1947 arises.

17.

Resultantly, the application under Section 2A of the Industrial Disputes Act, 1947 is liable to be dismissed. The

application is therefore dismissed. Applicant is not entitled to any relief.

Award is passed accordingly.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

Kolkata,

Dated, the 11^th October, 2018.

ubZ fnYyh] 14 uoEcj] 2018

dk-vk- 1642-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] dsUnzh;

lkaf[;dh dk;kZy; ¼vkbZ,l foax½] dksydkrk vkSj vU; ds izca/ku ds laca/k esa fu;ksDrk ,oa muds deZpkjh ds izca/kra= ds laca)

fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je

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gqvk FkkA

[la- ,y&42025@03@2018&vkbZvkj ¼Mh;w½]

jktsanz tks’kh] mi funs’kd

New Delhi, the 14th November, 2018

S.O. 1642.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 01/2013) of the Central Government Industrial Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the industrial dispute between the employers in relation to the Employers in

¹Hkkx IIµ[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 17] 2018@dkfrZd 26] 1940

6381

relation to the Management of Central Statistics Office (IS Wing), Kolkata and others and their workman, which was

received by the Central Government on 17.10.2018.

[No. L-42025/03/2018– IR(DU)]

RAJENDRA JOSHI, Dy. Director

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Application No. CGIT-01 of 2013

(Under Section 2A of the I.D. Act, 1947)

Parties : Shri Ratan Naskar,

3/H/17, Tarani Charan Ghosh Lane,

Kolkata – 700002

…Applicant

Central Statistics Office ( I.S. Wing),

1, Council House Street,

Kolkata – 700001

The Director General,

Central Statistics Office (Industrial Statistics Wing),

Ministry of Statistics

Sansad Marg,

New Delhi – 110001.

…Opp. Parties

Present : Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Applicant

: Mr. A. Banerjee, learned counsel.

On behalf of the Opposite Parties : Mr. A. Dutta, learne counsel.

State: West Bengal.

Dated: 10^th October, 2018.

AWARD

This is an application under Section 2A of the Industrial Disputes Act, 1947 claiming that termination of

Applicant workman is unjustified and that he is entitled for reinstatement in service with full back wages and other

consequential benefits under the law.

Brief facts giving rise to this application are that the Applicant workman, Shri Ratan Naskar came in

employment of the Opposite Party, Central Statistics Office (Industrial Statistics Wing), Ministry of Statistics on 29^th

April, 1999. It is alleged that his name was not incorporated in the permanent muster roll of peon inspite of his continued

employment from 1^st June, 1999 till the date of alleged termination of service on 1^st October, 2012. The applicant

workman placed his demand explaining the credibility of the fact to the appropriate authority, but it yielded no effect.

Having found no alternative avenue, the workman had to raise an industrial dispute before the office of Assistant Labour

Commissioner, Kolkata, but the attitude of the employer was non-compromising and anti labour. One of the workmen,

Shri Dipak Samanta was appointed as Peon in 2003 on regular basis, but in case of the applicant workman his service

was not regularized, rather he was allegedly refused employment by way of termination of service with effect from 1^st

October, 2012. Therefore, this application under Section 2A of the Industrial Disputes Act, 1947 was filed raising the