3845 GI/2019

(5803)

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

REGD. NO. D. L. (N) 04/0007/2003—05

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PUBLISHED BY AUTHORITY

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WEEKLY

la- 32]

ubZ fnYyh] vxLr 4—vxLr 10] 2019] '[email protected] 13—Jko.k 19] 1941

No. 32]

NEW DELHI, AUGUST 4—AUGUST 10, 2019, SATURDAY/SRAVANA 13— SRAVANA 19, 1941

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.पी.वी.

सी.पी.वी.

सी.पी.वी. भाग

भाग

भाग)

नई दली, 6 फरवरी, 2019

का.आ.

का.आ. 1392

1392

1392.—राजनियक और क सुलीय 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 राजदूतावास, आबु धाबी म संजुला कुमारी, िनजी सहायक को दनांक

06 फ़रवरी 2019 से सहायक क सुलर अिधकारी के तौर पर क सुलर सेवा% के िनव&हन के िलए 'ािधकृत करती है।

[सं. टी-4330/01/2015]

'काश च* द, िनदेशक (क सुलर)

5804

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

MINISTRY OF EXTERNAL AFFAIRS

(CPV DIVISION)

New Delhi, the 6^th February, 2019

S.O. 1392.—Statutory Order in pursuance of the clause (a) of the Section 2 of the Diplomatic and Consular

Officers (Oaths and fees) Act, 1948 (41 of 1948), the Central Government hereby appoints Ms. Sanjula Kumari, Personal

Assistant in Embassy of India, Abu Dhabi to perform Consular services as Assistant Consular Officer with effect from

06 February 2019.

[No. T-4330/01/2015]

PRAKASH CHAND, Director (Consular)

नई द ली, 12 फरवरी, 2019

का.आ.

का.आ. 1393.

1393.

1393.—राजनियक और क सुलीय 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 दूतावास, अंतननरीवो म +ी कमलेश

कुमार, िनजी सहायक को दनांक 12 फरवरी 2019 से सहायक क सुलर अिधकारी के तौर पर क सुलर सेवा% के िनव&हन के

िलए 'ािधकृत करती है।

[सं. टी-4330/10/2018]

'काश च* द, िनदेशक (क सुलर)

New Delhi, the 12^th February, 2019

S.O. 1393.—Statutory Order in pursuance of the clause (a) of the Section 2 of the Diplomatic and Consular

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

Personal Assistant as Assistant Consular Officer in Embassy of India, Antananarivo to perform the Consular services

with effect from 12 February, 2019.

[No. T-4330/10/2018]

PRAKASH CHAND, Director (Consular)

नई द ली, 12 फरवरी, 2019

का. आ.

का. आ. 1394

1394

1394.—राजनियक और क सुलीय 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 'धान क सलावास, जे-ाह म +ीमित

कंचन, िनजी सहायक और +ी सूरज मल, िनजी सहायक को दनांक 12 फरवरी 2019 से सहायक क सुलर अिधकारी के

तौर पर क सुलर सेवा% के िनव&हन के िलए 'ािधकृत करती है।

[सं. टी-4330/01/2015]

'काश च* द, िनदेशक (क सुलर)

New Delhi, the 12^th February, 2019

S.O. 1394.—Statutory Order in pursuance of the clause (a) of the Section 2 of the Diplomatic and Consular

Officers (Oaths and fees) Act, 1948 (41 of 1948), the Central Government hereby appoints Mrs. KANCHAN, Personal

Assistant and Shri SURAJ MAL, Personal Assistant as Assistant Consular Officers in Consulate General of India,

Jeddah to perform the Consular services with effect from 12 Feb, 2019.

[No. T-4330/01/2015]

PRAKASH CHAND, Director (Consular)

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5805

नई द ली, 13 फरवरी, 2019

का. आ.

का. आ. 1395

1395

1395.—राजनियक और क सुलीय 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 उ/ायोग, माले म +ी सेबे3टीयन के. वी., सहायक अनुभाग अिधकारी को दनांक

13 फ़रवरी 2019 से सहायक क सुलर अिधकारी के तौर पर क सुलर सेवा% के िनव&हन के िलए 'ािधकृत करती है।

[सं. टी-4330/01/2015]

'काश च* द, िनदेशक (क सुलर)

New Delhi, the 13^th February, 2019

S.O. 1395.—Statutory Order in pursuance of the clause (a) of the Section 2 of the Diplomatic and Consular

Officers (Oaths and fees) Act, 1948 (41 of 1948), the Central Government hereby appoints Shri Sebastian K V,

Assistant Section Officer in the High Commission of India, Male to perform Consular services as Assistant Consular

Officer with effect from 13 February 2019.

[No. T-4330/01/2015]

PRAKASH CHAND, Director (Consular)

नई द ली, 3 जून, 2019

का.आ.

का.आ. 1396

1396

1396.—राजनियक और क सुलीय 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 दूताबास डबिलन, म +ी समीर रावत, सहायक अनुभाग अिधकारी को दनांक

03 जून 2019 से सहायक क सुलर अिधकारी के तौर पर क सुलर सेवा% के िनव&हन के िलए 'ािधकृत करती है।

[सं. टी-4330/01/2017]

टी. अजु78ला जमीर, िनदेशक (सी.पी.वी.)

New Delhi, the 3rd June, 2019

S.O. 1396.—Statutory Order in pursuance of the clause (a) of the Section 2 of the Diplomatic and Consular

Officers (Oaths and fees) Act, 1948 (41 of 1948), the Central Government hereby appoints Shri Sameer Rawat, Assistant

Section Officer in the Embassy of India, Dublin to perform the consular services as Assistant Consular Officer with

effect from 03 June 2019.

[No. T-4330/01/2017]

T. AJUNGLA JAMIR, Director (CPV)

5806

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

कामक

कामक, लोक िशकायत तथा पशन मंालय

लोक िशकायत तथा पशन मंालय

(कामक और िश ण िवभाग)

नई द ली, 30 जुलाई, 2019

का.

का. आ.

आ.

आ. 1397

1397

1397.—के* सरकार, एत9ारा द ली िवशेष पुिलस 3 थापना अिधिनयम, 1946 (1946 का अिधिनयम

सं< या 25) क धारा 6 के साथ पAठत धारा 5 क उपधारा (1) ारा 'दE शिFय का 'योग करते Gए उEर 'देश राH य

सरकार, गृह (पुिलस) सेIशन-4 सं. 01 सी.बी.आई/VI-पी-4-2019-6(44)बी/2019 दनांक 29 जुलाई, 2019 के ारा 'ाO

सहमित से पुिलस थाना गुPबIशगंज िजला रायबरेली, उEर 'देश म भा.दं.संिहता क धारा 302/307/506/120-बी के

अधीन दज& मामला अपराध सं. 0305/2019 के अपराध क जांच करने तथा उससे सS बT एक या अिधक उF वUण&त

अपराध म कए गए 'यास , दुW 'ेरणा% और षYंZ तथा उसी सं[ यवहार म कए गए या उ* ह\ त] य से उ^ प* न कसी अ* य

अपराध(ध ) का अ* वेषण करने के िलए के िलए द ली िवशेष पुिलस 3 थापना के सद3 य क शिFय और _ेZािधकार का

िव3 तार सम3 त उEर 'देश राH य म करती है।

[फा. सं. 228/16/2019-एवीडी-II]

एस.पी.आर. िZ पाठी, अवर सिचव

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 30^th July, 2019

S.O. 1397.—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 the State

Government of Uttar Pradesh, Home (Police) Section-4 No. 01 C.B.I./VI-P-4-2019-6(44)B/2019 dated Lucknow 29 July,

2019 hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment in whole of

the State of Uttar Pradesh for investigation of offences of Case Crime No. 0305/2019 u/s 302/307/506/120-B IPC P.S.

Gurubakshganj Dist. Raebareli, Uttar Pradesh and attempts, abetments and conspiracies in relation to or in connection

with one or more of the offences mentioned above and any other offence(s) committed in the course of the same

transaction or arising out of the same facts.

[F. No. 228/16/2019-AVD-II]

S.P.R. TRIPATHI, Under Secy.

िवुत

िवुत मंालय

मंालय

नई दली, 1 अग3त, 2019

का.आ.

का.आ. 1398

1398

1398.— क ीय सरकार, राजभाषा (संघ के शासकय 'योजन के िलए 'योग) िनयम, 1976 के िनयम 10

के उप िनयम (4) के अनुसरण म िव`ुत मंZालय के 'शासिनक िनयंZणाधीन पावर िस3टम ऑपरेशन कारपोरेशन िलिमटेड के

दि_ण _ेZीय भार 'ेषण क , 29, रेस कोस& cॉस रोड, बगलुP-560009 िजसके 80 'ितशत कम&चारीवृंद ने eहंदी का

काय&साधक fान 'ाO कर िलया है, को एतदारा अिधसूिचत करती है।

[सं. 11011/9/2017-eहंदी]

राज पाल, आUथ&क सलाहकार

MINISTRY OF POWER

New Delhi, the 1st August, 2019

S.O. 1398.—In pursuance of Sub Rule (4) of Rule 10 of the Official Languages (use for official purpose of the

Union) Rules, 1976, the Central Government hereby notify the Southern Regional Load Despatch Centre, 29, Race

Course Cross Road, Bengaluru-560009 of Power System Operation Corporation Ltd. under the administrative control of

Ministry of Power, where 80% of the staff have acquired working knowledge of Hindi:

[No. 11011/9/2017-Hindi]

RAJ PAL, Economic Adviser

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5807

म एवं रोजगार मंालय

नई दली, 2 अग3 त, 2019

का.आ.

का.आ. 1399

1399

1399.—औ`ोिगक िववाद अिधिनयम 1947 (1947 का 14) क धारा 17 के अनुसरण म के* ीय सरकार

मैसस& e'ंिसपल, जवाहर नवोदय िव`ालय, अंबाला, हAरयाणा और अ*य एवं उनके कम&चारी के 'बंधतंZ के संबT िनयोजक

और उनके कम&कार के बीच अनुबंध म िनgद&h औ`ोिगक िववाद म के* ीय सरकार औ`ोिगक अिधकरण एवं +म *यायालय,

चंडीगढ़ के पंचाट (संदभ& सं<या 285/2013) को 'कािशत करती है जो के* ीय सरकार को 30.07.2019 को 'ाO Gआ था ।

[सं. एल-42012/46/2013-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 2^nd August, 2019

S.O. 1399.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. No. 285/2013) of the Central Government Industrial Tribunal-cum-

Labour Court, Chandigarh as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Principal, Jawahar Navodaya Vidhalaya, Ambala, Haryana and their workmen which were received by the Central

Government on 30.07.2019.

[No. L-42012/46/2013-IR(DU)]

V. K. THAKUR, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

Present: Sh. A. K. Singh, Presiding Officer

ID No. 285/2013

Registered on:-27.08.2013

Sh. Raj Kumar, S/o Sh. Banta Ram, R/o Village Kaula,

Distt. Ambala.

…Workman

Versus

The Secretary, An Autonomous Organisation Under Ministry of Human Resource Development, Department of

School Education and Literacy, Government of India, New Delhi.

Principal, Jawahar Navodaya Vidhalaya, Village Kaulan,

Tehsil & District Ambala, Haryana.

…Respondents

AWARD

Passed on:-11.07.2019

Central Government vide Notification No. L-42012/46/2013-IR(DU) Dated 20.08.2013, under clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), has

referred the following Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of the Principal Jawahar Navodaya Vidyalaya, Kaulan, Distt.

Ambala(Haryana) in terminating the services of Sh. Raj Kumar, S/o Sh. Banta Singh, Ex-Mess-Helper

w.e.f. June, 2011 is just & legal? To what relief the workman is entitled to and from which date?”

Both the parties were served with notices. The workwoman/claimant filed his statement of claim with the

averment that he was appointed as Mess Helper before February 2006 and his services were terminated in June 2011

without disclosing any reason. It is further alleged that he was being paid his salary by cash and some time by cheque

and he worked with the respondent no.2 from 6 am to 9 pm but he was not paid his overtime wages for extra work. The

5808

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

workman/claimant has worked with management without any complaint and the management has assured to regularize

his services when sanctioned post will be created. The workman/claimant was paid less wages comparison to the

minimum wages applicable in Haryana State. The workman requested to the management many times to get his services

regularized and pay him at least minimum wages as per rules but of no use. The workman had worked with the

management from 2006 to May 2011 continuously and has completed 240 days in a preceding year. Management

without serving one month notice, terminated the service of the workman and the management has not paid any

retrenchment compensation to the applicant. It is therefore prayed that claimant be reinstated in service with full back

wages.

Respondents have filed its written statement with the averment that the provisions of the Industrial Disputes

Act, 1947 are not applicable in the present case as defendant-management does not come within the definition of

industry as defined under Section 2-J of the Act. It is further alleged that claimant/workman was engaged by the then

Principal of the school as Mess Helper on temporary arrangement on need basis as per requirement as there was no

regular post of Mess Helper sanctioned in the JawaharNavodayaVidalaya. The school remains closed for three months in

the year 2011 and during this time, services of casual worker on need basis were not taken. The workman used to work

as a part time worker in the respondent-school for two hours each during breakfast, lunch and dinner and rest of the

period he used to do his other private works. The workman absented himself willfully after summer vacation of the year

2011 and did not come on his duty when the school reopened after summer vacation. Thus, he himself abandoned the

said job and never came to the school thereafter. Meanwhile, post of the Mess Helper was created vide NVS RO Jaipur

letter No.83-1(create Post)/NVS-JR/ESTT/2008/7993, dated 22.09.2009 and after required formality and in absence of

any eligible candidate registered in Employment Exchange, the post was advertised on 22.09.2010 in ‘DainikJagaran’

having large circulation in the area. The workman along with others applied for the post and he along with other

candidates interviewed by the selection committee comprising District Education Officer, Ambala Principal JNV

Kaulan, Ambala. Namely Raj Kumar S/o Puran Chand, Sewa Ram S/o Maha Singh, Sarwan Kumar S/o Teju Lal were

selected and the list of these three candidates was sent to the NVS RO Jaipur, for selection of the candidate and

ultimately Sewa Ram S/o Maha Singh was selected as Mess Helper to work in the mess of the respondent-school. The

workman was not found suitable in comparison to the above named three candidates as such, he could not claim the

entitlement of said post. The provision of Section 25-F, 25-G and 25-H are not applicable in the present case. The

workman has never completed 240 days on preceding year of the alleged retrenchment as such, there is no violation of

any provision of the ID Act, 1947. The job of the workman was for limited period hence, there is no question of overtime

wages as is claimed by the workman. It is wrong to say that respondent had assured the claimant to regularize his service

when sanctioned post would be sanction from the management. It is further denied that the services of the claimant on

June, 2011 has been terminated by respondent no.2 It is correct that workman has sent a false notice through the

advocate which was suitably replied by the management. The workman used to be paid from the contingency fund of the

school mess as a daily wager amounting Rs.125/- per day as per the working days. The claimant had himself abandoned

the job hence, question of serving one month salary in lieu of notice to the applicant does not arise. There is no question

of paying the retrenchment compensation to the applicant hence it is prayed that present reference being devoid of merit

is liable to be dismissed with cost.

Both the parties have been given opportunity to file evidence. Workman Rajesh Kumar has submitted his

affidavit as Ex.A1 and cross-examined by management-counsel. The claimant Raj Kumar has accepted that there was no

publication of the post when he was appointed by the management. He has denied that he worked only for 2 hours in

morning, two hours in afternoon and 2 hours in the evening. He has accepted that during summer vacations he was not

performing his duties and denied the suggestion that he himself abandoned the job after the vacation of June 2011. This

witness has accepted that he is ready to join the duties on his previous terms and conditions. He has also accepted that he

had applied for the post of regular Mess Helper in the year 2011 but was not selected. His attendance was marked in the

attendance register and he has the photocopy of the attendance register(though it is not filed on record).

Management has submitted affidavit of Abha Gupta, Principal of Jawahar Navodaya Vidalaya as Ex.MW1

along with Ex.M2 which is an advertisement for the post of Mess Helper published in newspaper, M3 appointment letter

issued to the claimant for joining service and M4 terms and conditions of service. Management has also submitted

affidavit of DiptiBhatnagar, presently working as Principal, JawaharNavodayaVidalaya, Ambala.

After submission of affidavit by the witnesses of the management, claimant and his counsel did not turn up for

cross-examination and participating in further proceeding of the case hence, after giving reasonable opportunity, this

Tribunal closed the opportunity of the cross-examination of the claimant from the management witnesses vide order

dated 08.05.2019 and fixed for argument.

Workman and his counsel did not turn up at the stage of argument hence, argument of learned counsel of

management is heard at length.

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 workwoman to adduce evidence to prove factum of his

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5809

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. BhikubhaiMeghajibhaiGavda(2012)

1 SCC 47.

There is hardly any dispute with the preposition of law as propounded in the aforesaid case. However, the

factual scenario in the present case is bit different, inasmuch as the management in its written statement has clearly

admitted the factum of employment of the claimant as it has been stated that claimant was engaged by the Principals of

the JawaharNavodayaVidalaya as Mess Helper on February 2006 as a casual worker as a temporary arrangement on need

basis and he worked upto June 2011 before the closer of the school for summer vacation in the year 2010. As such, it

clearly establishes relationship of employer-employee between the management and claimant. 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 the 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.

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 was terminated in accordance with the provisions of the Act.

It is specific case of the workman/claimant that he was engaged as Mess Helper by the management in February 2006

and have worked satisfactorily till June 2011.

10.

I may mention that the management has not adduce any documentary evidence whatsoever to rebut the case of

the claimant or to substantiate that the workman/claimant who was engaged in the year 2006 had not worked for 240

days prior to his termination in June 2011 before the summer vacation. Undoubtedly, the witnesses Abha Gupta and

Dipti Bhatnagar have alleged in their affidavits that workman had not completed 240 days on the preceding year before

his alleged termination but management has not filed any documents whatsoever regarding the factum of proof that

claimant has not served 240 days as is alleged in its claim statement. The management has not filed on record the

attendance register or vouchers for the relevant period so as to rebut the claim of the workman/claimant that the

workman had not worked for 240 days in a preceding calendar year. The management has not alleged anything in its

written statement nor in affidavits filed as evidence nor during the course of arguments that why it has not submitted the

documentary record regarding the attendance register, payment voucher related to the workman for the relevant period.

In these circumstances, this Tribunal is constraint to draw adverse inference against the management under Section

114(g) of the Evidence Act for non-production of requisite record and to believe the version of the claimant that he

worked with the management for 240 days in a calendar year.

11.

There is another aspect of the matter regarding the retrenchment or abandonment of the job by the management

or workman himself. Learned counsel of the management contended that workman has abandoned the job at his own

without prior information and did not return to join the school after the opening of the school in the year 2011 after

summer vacation hence, question of issuing notice or payment of salary for one month in lieu of retrenchment or

termination is not required as per law. It is relevant and pertinent to mention that either party has not adduced any cogent

evidence in this connection, and if it is so, no material has been produced by the workman to substantiate that the

workman has not allowed to discharged the duties of the post by issuing communication to the respondent-management.

At the same time, the respondent-management has not issued any notice in writing asking the workman to report back to

duty, if he remained unauthorised absent or absented himself after summer vacation in the year 2011 as contended by the

learned counsel for the management. There is no correspondence between the workman and management in respect of

service condition of the workman. Hon’ble Punjab & Haryana High Court dealing with the Writ Petition No.8898/1994

(O&M) dated 30.11.2016, 2017 LLR 95, Kali Ram vs. Presiding Officer and Another, has held that in such a situation,

the contention of the respondent-management that workman has abandoned the services is not acceptable because of

5810

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

non-issuance of show cause notice to join the service back to the workman. Having regard to the conduct of workman

and respondent-management insofar as perusing the issue relating to taking back to duty or abandoned the service is

concerned, there are lapses and it is the management, who has to issue show cause notice to join service. Thus, Hon’ble

High Court has laid down that it was the duty of management at least to issue a show cause notice regarding the joining

of service to the workman but that has not done in this case. The facts of the case in hand is same hence, to my mind it is

not the workman who has left his job on his own rather than he was forced to left the work by the management.

12.

Now the vital question arises for consideration is whether the alleged termination of the claimant from the

service by the management is in accordance with the law or in accordance to Section 25-F of the Act. It is neither the

case of the management that notice was given to the workman prior to the termination of his services after summer

vacation in the year 2011 nor any such evidence has been adduced by the management on record. So far as the argument

of the learned counsel of the management is concerned that management is not required to give any notice or one month

salary in lieu of notice is not in consonance with the settled position of law and provision of Section 25-F of the Act.

Learned counsel argued that workman has admittedly interviewed according to law and could not be selected by the duly

formed committee hence, question of issuing notice for his termination and one month salary is not required. I am not

convinced with the argument of the learned counsel of the management on the basis of the observation made above

regarding the abandonment of the job by the workman. To my mind, even, if, any other person is selected as Helper by

the committee, management is required to sent notice to the workman for clarification his position and before dispensing

his service from the school one month salary is also required to be given by the management as per provisions of Section

25-F of the Act.

13.

Learned counsel of the management has contended that workman has not approached to the management for his

renewal of service instead of preferring this reference before the appropriate government. Learned counsel further argued

that management has offered joining of the workman in the school at the behest of this Tribunal during the pendency of

the petition vide its letter Ex.M4 dated 17.08.2015 but he did not turn up before the Principal for rejoining of the school.

Admittedly, there is no evidence submitted on behalf of the workman regarding his non-joining of the school in

compliance to the letter sent to the workman but during the course of cross-examination, workman has admitted that he

is ready to join the duties on the previous terms and conditions. The question regarding the joining of the workman in

school put by the management-counsel indicates that there is a scope for the employment of the workman in the

JawaharNavodayaVidhalaya.

14.

Having regard to the legal position discussed above, the services of the workman, as is observed above, has

been retrenched or terminated by the management against the settled provisions of Section 25 of the Industrial Disputes

Act, 1947. The fact that the claimant/workman is interested to rejoin the duties on previous terms and conditions before

his alleged termination, this Tribunal is of the view that claimant herein is entitled for reinstatement without any back

wages as he was offered job in August 2015 and his job was of daily wager/temporary in nature and there is nothing on

record to prove that he was not gainfully employed after his retrenchment/termination and the award is passed

accordingly.

A. K. SINGH, Presiding Officer

नई दली, 2 अग3 त, 2019

का.आ.

का.आ. 1400

1400

1400.—औ`ोिगक िववाद अिधिनयम 1947 (1947 का 14) क धारा 17 के अनुसरण म के* ीय सरकार

चंडीगढ़ के पंचाट (संदभ& सं<या 284/2013) को 'कािशत करती है जो के* ीय सरकार को 30.07.2019 को 'ाO Gए थे ।

[सं. एल-42012/45/2013-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5811

New Delhi, the 2^nd August, 2019

S.O. 1400.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. No. 284/2013) of the Central Government Industrial Tribunal-cum-

Labour Court Chandigarh as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Principal, Jawahar NavodayaVidhalaya, Ambala, Haryana and their workmen which were received by the Central

Government on 30.07.2019.

[No. L-42012/45/2013-IR(DU)]

V. K. THAKUR, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

Present: Sh. A.K. Singh, Presiding Officer

ID No. 284/2013

Registered on:-27.08.2013

Smt. Babli Devi, W/o Sh. Lal Chand, R/o VPO Nagal,

Hisar Road, Distt.Ambala.

…Workman

Versus

JawaharNavodayaVidhalaya through its Principal Kaulan, Distt.Ambala.

…Management

AWARD

Passed on:-11.07.2019

Central Government vide Notification No. L-42012/45/2013-IR(DU) Dated 21.08.2013, under clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), has

referred the following Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of the Principal JawaharNavodayaVidyalaya, Kaulan, Distt.

Ambala(Haryana) in terminating the services of Smt. Babli W/o Sh. Lal Chand, Ex-attendant w.e.f.

30.04.2010 is just & legal? To what relief the workman is entitled to and from which date?”

Both the parties were served with notices. The workwoman/claimant filed her statement of claim with the

averment that she was appointed as Attendant on 01.09.2007 and her services were terminated on 30.04.2010 without

disclosing any reason. It is further alleged that she had been working satisfactorily and conduct of the claimant remained

good throughout the tenure of her services as such, there was no complaint about her work and conduct. Claimant had

completed more than 240 days continuous service as required under Section 25-B of the Industrial Disputes Act.

Management was required to serve notice in writing indicating the reasons of terminating the service of the workwoman

and the management was further required to pay wages in lieu of such notice as is mentioned in the Industrial Disputes

Act, 1947. The management has not paid any retrenchment compensation to the applicant. The management has not

followed the principle of first come last go at the time of the termination of the workman and retained juniors to the

applicant in service against the violation of Section 25-G of the Act. The management has also engaged Smt. Harbhajan

Kaur and Anita after terminating the services of the claimant without giving any preference as required under Section

25-H of the Act. The claimant had not left the job of his own as is stated in the reply submitted by the management. The

management has not followed the procedure prescribed under the Industrial Disputes Act before terminating the services

of the claimant. It is therefore prayed that claimant be reinstated in service with full back wages.

Management has filed its written statement through Smt. Abha Gupta, Principal, JawaharNavodayaVidalaya,

alleging therein that the Industrial Disputes Act is not applicable in the present case as claimant is neither a workwoman

as defined under Section 2(s) of the Industrial Disputes Act nor respondent-management comes within the definition of

industry by virtue of its organization and registration under Societies Act, 1860. There was no regular post of attendant

sanctioned in the JawaharNavodayaVidyala and claimant was engaged as attendant by the then Principal of the school as

a casual on need basis for temporary arrangement. There was neither sanctioned post nor claimant was appointed against

it by duly appointment letter. The school remains closed for three months in a year 2010 and the services of the daily

wager workers were not being taken. The engagement of the workwoman was purely temporary without any right to

continue the same and the wages was paid from the contingency fund of the school. After the expiry of the summer

vacation, the workwoman willfully absented herself and did not join the duty after reopening of the school. Workwoman

has never completed 240 days preceding to the abandonment of her service hence, there was no violation of any of the

5812

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

Industrial Dispute Act. Management has not terminated the services of the claimant that is why during the conciliation

proceedings before the Assistant LabourCommissioner(Central), Karnal, management has offered to the workwoman to

work as gate keeper from 4.00 pm to 7.00 pm in the evening hours for Rs.100/- per day but she refused to compromise.

In fact from 1^st May 2010 School was closed due to summer break and daily wagers are asked to come after the opening

of the school but the claimant did not turn up after summer vacation hence, question of her termination does not arise. It

is further alleged that Miss Harbhajan Kaur did not serve this institution and with regard to miss Anita it is submitted that

she worked for few months and left at her own will. It is also submitted that the answering management has not violated

any of the provision of the Industrial Disputes Act, 1947 as is alleged by the claimant in her petition. It is therefore

prayed that present reference being devoid of merit, be dismissed with costs.

Both the parties have been given opportunity to file evidence. Workwoman Smt. Babli Devi has submitted his

affidavit as Ex.A1 and cross-examined by management-counsel.

Management has submitted affidavit of Abha Gupta, Principal of JawaharNavodayaVidalaya as Ex.MW1

along with letter Ex.M2 issued to the claimant for joining service after the institution of the claim petition. Management

has also submitted affidavit of Dipti Bhatnagar, presently working as Principal, JawaharNavodayaVidalaya, Ambala

along with documents regarding the work done by the claimant during her tenure from September 2007 upto April 2010.

After submission of affidavit by the witnesses of the management, claimant and her counsel did not turn up for

cross-examination and participating in further proceeding of the case hence, after giving reasonable opportunity, this

Tribunal closed the opportunity of the cross-examination of the claimant from the management witnesses vide order

dated 08.05.2019 and fixed for argument.

Workwoman and her counsel did not turn up at the stage of argument hence, argument of learned counsel of

management heard at length.

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 workwoman 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. BhikubhaiMeghajibhaiGavda(2012)

1 SCC 47.

There is hardly any dispute with the preposition of law as propounded in the aforesaid case. However, the

factual scenario in the present case is bit different, inasmuch as the management in its written statement has clearly

admitted the factum of employment of the claimant as it has been stated that claimant was engaged by the Principal of

the JawaharNavodayaVidalaya as attendant on 1.9.2007 as a casual worker for temporary arrangement on need basis and

she worked upto 30.04.2010 before the closer of the school for summer vacation in the year 2010. As such, it clearly

establishes relationship of employer-employee between the management and claimant. 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 the 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.

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 was terminated in accordance with the provisions of the Act.

It is specific case of the workman/claimant that she was engaged as attendant by the management on 1.9.2007 and have

worked satisfactorily till 30.4.2010 when her services were dispensed with by the management without assigning any

reason. She in fact had completed more than 240 days of service in each calendar year but despite that no notice or

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5813

compensation in lieu of notice was given to her prior to her termination/retrenchment of her services by the management.

The affidavit filed by the workwoman/claimant is in line with the averments made in the claim petition. This fact is

denied by the management that claimant worked 240 days in each preceding calendar year not only in its written

statement but also in the affidavit of the management-witness Abha Gupta and DiptiBhatnagar filed as evidence. It is

pertinent to mention that no documentary evidence had been adduced by the claimant regarding her

appointment/termination or attendance during the tenure of her service with the management in order to prove that she

had completed 240 days preceding year of her termination. Contrary to this, respondent-management has submitted

documents relating to the working days of the claimant from the month of September 2007 upto 30.04.2010 duly signed

by the Principal of JawaharNavodayaVidhalaya. The perusal of the document reveals that in total claimant had worked

833 days i.e. 2 years 3 months and 13 days. In fact this document reveals the total working days of each month from the

year 2007 to April 2010 and the calculation of the number of working days as is mentioned in the document regarding

the year 2008 and 2009 does not disclose that she had worked 240 days on preceding year before her alleged termination.

Unfortunately, claimant and her counsel did not appear in subsequent stage of proceeding before the Tribunal at the stage

of the evidence of the management and these witnesses have not been cross-examined by the claimant. Thus, facts

alleged in the affidavit of witness Abha Gupta and Dipti Bhatnagar and attached documents of the working days of

claimant remains uncontroverted in the absence of any document filed by the claimant. Surprisingly, claimant has not

moved any application for summoning of the attendance register or payment register for the relevant period to show that

she had worked 240 days in preceding year before her termination by the management. Thus, oral evidence filed by the

workman regarding her service for 240 days in preceding year of the termination is not sufficient to conclude that she has

worked with the management for over 240 days in a calendar year.

10.

This is a specific case of the claimant/workwoman that she had retrenched or terminated by the management on

30.04.2010 without disclosing any reason. There is nothing in the pleading of the claimant that who was the person who

orally terminated her services on 30.04.2010 and what effort is made by her after opening of the school in the month of

July 2010. In this connection, learned counsel of the management argued that in fact she had abandoned her job on

30.04.2010 and did not turn up for rendering her service from 1.7.2010 when school re-opened again for academic

session. Learned counsel vehemently argued that though no notice is issued by the management to the claimant to join

the school after re-opening but this Tribunal has to decide this factum on the basis of the preponderance of the

probability being the case of Industrial Disputes Act as is held by the Hon’ble Supreme Court in the cases of Union of

India Vs. Sardar Bahadur(1974)4 SCC 618, R.S Singh Vs. State of Punjab and other(1999)8 SCC page 90, and in the

case of State Bank of India Vs. Narender Kumar Pandey, Civil Appeal No.263/2013 dated 14.01.2013. Learned

counsel of the management while advancing the argument has drawn my attention towards the facts alleged in the

written statement supported by the witnesses of the management Abha Gupta and Dipti Bhatnagar through her affidavit.

In Para 10 of the written statement, management has alleged that claimant submitted demand notice before the Assistant

Labour Commissioner after lapse of about two years. Had the services of the workwoman was terminated by the

management in the month of April 2010? She would have agitated it before the management or before the Assistant

Labour Commissioner after her alleged termination in the month of April 2010. Learned counsel vehemently argued that

the conduct of the claimant shows that she herself had abandoned her services as daily wager that is why she has filed the

claim statement after a lapse of two years. It is pertinent to mention that claimant has neither filed any replication

regarding this fact nor has submitted anything in her affidavit filed as evidence which weighted the arguments advanced

by the learned counsel of the management.

11.

In the last limb of argument, learned counsel of management argued that in fact claimant is not interested to

render her services with the management instead she wants some compensation in the garb of the petition filed before

this Tribunal. Learned counsel has further drawn my attention towards the zimini order of the Tribunal regarding the

settlement of the dispute between the parties in compliance of which management has issued a letter to the claimant to

join the services in the management. Witness Abha Gupta has submitted a photocopy of the letter dated 17.08.2015

Ex.M2 along with her affidavit Ex.M1 which reveals that claimant was invited by the management to join management

on 20.08.2015 but there is nothing on record to show that claimant visited the management-institution in pursuance to

the letter issued by the Principal of the JawaharNavodayaVidhalaya for her reinstatement. The conduct of the

workwoman is ample proof that she is really not interested to render her services to the management as is pleaded in the

petition. Undoubtedly, prayer is made in ID petition for the reinstatement but in spite of the offer reluctance of

workwoman to join the management nullify the prayer in the claim petition rather it proved that she is interested to get

some compensation from the management.

12.

Having regard to the legal position discussed above regarding the proof of the fact this Tribunal is of the firm

view that claimant has failed to prove that she had worked for 240 days before the preceding year of her alleged

5814

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

termination and entitled one month salary in lieu of notice as is mentioned under Section 25 of the Industrial Disputes

Act, 1947. Similarly, there is nothing on record to prove that management has disobeyed any of the provisions of Section

25 of the Industrial Disputes Act, 1947 as is alleged by the workwoman in her claim petition. Hence, she is not entitled

for any relief from the management by virtue of the reference made to this Tribunal by the Central Government. The

award is answered accordingly.

A. K. SINGH, Presiding Officer

ubZ fnYyh] 30 tqykbZ] 2019

dk- vk- 1401-&vkS|ksfxd fookn vf/kfu;e 1947 ¼a1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad

vkQ cMkSnk ds izca/kra= ds laca) fu;kstdksa vkSj muds deZdkjkas ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj

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30-07-2019 dks izkIr gqvk FkkA

[la- ,y&12012@6@2009&vkbZvkj ¼ch&II½]

lhek caly] vuqHkkx vf/kdkjh

New Delhi, the 30^th July, 2019

S.O. 1401.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 19/2009) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Bangalore as shown in the Annexure, in the industrial dispute between the management of Bank of Baroda and

their workmen, received by the Central Government on 30.07.2019.

[No. L-12012/6/2009-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

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

BANGALORE

DATED : 09^TH JULY 2019

PRESENT : Justice Smt. Rathnakala, Presiding Officer

CR 19/2009

I Party

II Party

Sh. B. Sadashiva Adyantaya,

S/o Late Sh. B. Subbaiah Adyantaya,

R/a Devashya House,

Market Road, Sullia,

Dakshina Kannada Distt.

The General Manager (IR)

Management of Bank of Baroda,

No. 42/1, M.G. Road,

Trinity Circle,

Bangalore - 560 001.

Appearance

Advocate for I Party : Mr. B.D. Kuttappa

Advocate for II Party : Mr. Pradeep S Sawkar

AWARD

The Central Government vide OrderNo. L-12012/6/2009/IR(B-II) dated 29.04.2009 in exercise of the powers conferred

by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute act, 1947 (for brevity ‘the Act’

hereafter) referred the following Industrial Dispute for adjudication.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5815

“Whether the action of the management of Vijaya Bank in Terminating the services of Shri B. Sadashiva

Adyantaya, on the ground of ‘voluntary cessation of services’ w.e.f 03.05.2006 is legal and justified? What

relief the said workman is entitled?”

It is the case of the 1^st Party workman that, he joined the service of the 2^nd Party (erstwhile Vijaya Bank prior to

its amalgamation with Bank of Baroda) on 30.12.1976 at Regional Office Delhi; while working at Aranthodu Branch he

was transferred to Lead Bank, Haveri. Due to Medical grounds he could not report at the transferred place. He requested

the Management to retain him in Dakshina Kannada District on Medical ground but, same was not considered. On

20.03.2003 and on 15.04.2003 he wrote letters to the 2^nd Party. On 28.06.2004, 2^nd Party addressed a letter to him

informing that he has remained absent from duty unauthorizedly from 15.03.2004; in the said letter it was stated that,

vide letter dated 06.04.2004 he was asked to report at the Lead Bank Haveri within 3 days from the date of receipt of the

said letter. He replied to the 2^nd Party on 10.07.2004 informing that, he could not be able to go and report to work on

account of his Health problem; he received another letter dated 03.08.2004 for which he has submitted his explanation.

It is the further case of the 1^st Party that, he came across Udayavani Daily Newspaper dated 07.03.2006 in which

he was called upon to report to work within 30 days and submit his explanation for his unauthorised absence, otherwise it

would be deemed that he has voluntarily retired from service of the Bank on expiry of the said period etc. By way of

telegram dated 10.04.2006 and subsequent letter dated 22.04.2006 he informed the 2^nd Party that he has not fully

recovered from his ailment and was advised to take treatment for another 10 days. He requested to permit him to attend

the Lead Bank, Haveri after 29.04.2006, he had also enclosed necessary Medical Certificates; he received a letter dated

03.05.2006 from the D.G.M/Disciplinary Authority by which it was informed that 2^nd Party decided to strike off his name

from Muster rolls by invoking the procedure laid down by Clause 33(VIII) of Bipartite Settlement and he ceases to be in

the service of the Bank from the date of the said order. He preferred an appeal against the order of the Disciplinary

Authority which came to be rejected.

It is further stated for the 1^st Party that, the 2^nd Party has not followed the procedure contemplated by Clause

33(VIII) of Bipartite Settlement. The action of the 2^nd Party in striking off his name and treating him as deemed to be

voluntarily retired from service amounts to illegal termination. Having alleged that he remained absent voluntarily which

amounts to misconduct as per Bipartite Settlement, the 2^nd Party ought to have held enquiry against him. But no Charge

Sheet is issued to him and Principle of Natural Justice is not followed. He is unemployed and has large family to

maintain.

The 2^nd Party in their statement countered the claim statement averments that, the Medical Certificates

submitted by the 1^st Party with his letter dated 20.03.2003 were referred to the Bank’s visiting Medical Officer who

opined that 1^st Party does not come under clause 7.6 of the transfer policy. Thereafter transfer order dated 23.04.2003

was issued to him, by transferring him to Regional Office, Hubli for further posting. He was relieved from Aranthodu

Branch on 23.05.2003 and he reported to duty at Lead Bank, Haveri at 30.05.2003. He remained absent from 22.07.2003

to 25.10.2003, 04.12.2003 to 10.12.2003, 15.12.2003, 20.01.2004 and from 03.02.2004 to 09.02.2004 for the above

period on his leave application leave was sanctioned. He remained absent form 15.03.2004 without prior sanction of

leave and without submitting leave application as per the Rules of the Bank. The 2^nd Party vide letter dated 03.08.2004

informed that his absence from duty without complying the leave rules of the Bank amounts to misconduct. He was

instructed to report to duty at Lead Bank Officer, Haveri within 3 days of the receipt of the letter. He submitted a letter

along with leave application and Medical Certificate dated 26.07.2004. He was subjected to Medical examination

through Doctor O.S. Srirangappa MD wherein the Doctor opined that he was fit to duty.

It is further stated that, the Lead Bank, Haveri reported to Regional Office that, the 1^st Party is absent from

15.03.2004 without prior sanction and without submitting leave application as per the leave rules of the Bank. The

Regional Officer vide letter dated 06.07.2004 instructed him to report for duty at Lead Bank, Haveri within 3 days and

submit his explanation. The 1^st Party vide letter dated 10.07.2004 advanced medical grounds for his absence and

undertook to report to duty before 25.07.2004 without fail. He was informed that his absence from 15.03.2004 is treated

as unauthorized. He submitted leave application dated 29.11.2004 seeking 26 days leave along with a Medical

Certificate, he submitted another letter dated 24.12.2004 for a further period of 30 days and he had also sent Medical

Certificate issued by his Doctor. Based on the provisions of 8^th Bipartite Settlement relating to Voluntary Cessation of

employment 2^nd Party issued notices to him dated 12.12.2005, 03.02.2006. Vide further letter he was informed that in

case he fails to report to duty it would be treated as voluntary retirement and his name will be struck off from the muster

rolls of the 2^nd Party. Another letter issued to him dated 07.03.2006 returned unserved with the endorsement ‘Not

known’. Final notice was published in Udayavani Mangalore Edition dated 12.03.2006 calling upon him to report for

duty at the Branch within 30 days of publication of the notice. He replied to the Newspaper notice by way of letter that

he will join duty at Lead Bank Office Haveri on or before 22.04.2006 with necessary medical certificate for reference,

but failed to report. The Competent Authority invoked the provisions of clause 33 of the 8^th Bipartite Settlement and

passed order on 03.05.2006 that he is deemed to have voluntarily vacated his employment and his name is struck off

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[PART II—SEC. 3(ii)]

from the Muster Rolls of the Bank. The present dispute is raised after a lapse of 2 years indicating that he is not

interested.

On completion of pleadings both parties have adduced evidence.

The 1^st Party’s his relieve from Aranthodu Branch from 25.03.2003, his report to duty at Lead Bank, Haveri at

30.05.2003 and subsequent absence are not in dispute. While the 2^nd Party maintains that, in accordance with the

provisions of 8^th Bipartite Settlement relating to voluntary cessation of employment, he was issued 2 notices calling upon

him to attend for duty within 30 days and submit explanation for his unauthorised absence, and final notice was

published in Udayavani Mangalore Edition dated 12.03.2006, since he failed to report, by invoking clause 33(VIII) of

Bipartite Settlement, order was passed on 03.05.2006 that he is deemed to have voluntarily vacated the employment and

his name is struck off from muster roll.

The Voluntary Cessation of Employment as quoted by both parties reads thus:-

(i) When an employee absents himself from work for a period of 90 or more consecutive days without prior

sanction from the Competent Authority or beyond the period of leave sanctioned originally including any

extension thereof or when there is satisfactory evidence that he has taken up employment in India or

outside, the management at any time thereafter may give a notice to the employee at his last known

address as recorded with the Bank calling upon him to report for work within 30 days of the date of

notice.

Unless the employee reports for work within 30 days of the notice or gives an explanation for his absence

within the period of 30 days satisfying the management inter alia that he has not taken up another

employment or avocation, the employee shall be given a further notice to report for work within 30 days

of the notice failing which the employee will be deemed to have voluntarily vacated the employment on

the expiry of the said notice and advised accordingly by registered post.

In the event of the employee submitting a satisfactory reply, he shall be permitted to report for work

thereafter within 30 days from the date of expiry of the aforesaid notice without prejudice to the bank’s

right to take any action under the law or rules/conditions of service.

If the employee fails to report for work within this 30 days period, then he shall be given final notice to

report for work within 30 days of this notice failing which, the employee will be deemed to have

voluntarily vacated his employment on the expiry of the said notice and advised accordingly by registered

post.

(ii) If an employee again absents himself for the second time within a period of 30 days without submitting

any application and obtaining sanction, thereof, after reporting for duty in response to the first notice

given after 90 days’ of absence or within the 30 days period granted to him for reporting to work on his

submitting a satisfactory reply to the first notice, a further notice shall be given after 30 days of such

absence giving him 30 days’ time to report. If he fails to report for work or reports for work in response

to the notice but absents himself a third time from work within a period of 30 days without prior sanction,

his name shall be struck off from the rolls of the establishment after 30 days of such absence under

intimation to him by registered post deeming that he has voluntarily vacated his appointment.

(iii) Any notice under this clause shall be in a language understood by the employee concerned. The notice

shall be sent to him by registered post with acknowledgement due. Where the notice under this clause is

sent to the employee by registered post acknowledgement due at the last recorded address communicated

in writing by the employee and acknowledged by the bank, the same shall be deemed as good and proper

service.

Written argument is submitted by 2^nd Party.

Sh. BDK learned counsel for the 1^st Party while taking me through the provisions of clause 33(III) of Bipartite

Settlement submits that, the mode of service of notice contemplated by the above provision is by way of registered post

acknowledgment due only. Admittedly both registered posts were addressed to the 1^st Party at his address ‘Devasya

House, behind Post Office, Temple Market Road, Sullia, P.O (D.K)’. Both returned unserved with the endorsement

‘House locked’/’not known’. The 1^st Party has produced a Certificate from the Food Inspector of the Sullia Taluk, stating

that he is not residing at Devasya, Sullia, Kasaba Village since May 2003 and he is not issued Ration Card. To the

knowledge of the 2^nd Party he had shifted his residence to Barebettu House, Kolnadu Village, Batwal Taluk, Dakshina

Kannada, instead of marking the notices to his proper address the Bank had sent the notices to the address at Devasya

Sullia. To invoke its jurisdiction under clause 33(III) of 8^th Bipartite Settlement the 2^nd Party was required to strictly

abide by the procedure contemplated therein i.e. issue of notice through RPAD which they have omitted. Hence, the

order to strike off his name from the muster roll on the ground of voluntary vacation of employment is illegal and

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deserves to be set aside. The allegation of unauthorised absence against the 1^st Party since amounts to misconduct, the

2^nd Party ought to have conducted a Departmental Enquiry to take Disciplinary Action against him. Contrarily they have

taken the short cut method of treating his case as Voluntary Cessation of service.

Sh. BDK further submits that, the 1^st Party workman crossed the age of superannuation in the year 2012.

Though there is no scope of his reinstatement, monetary benefit equivalent to the amount he would have earned had if he

was in service up to the age of superannuation may be awarded.

Reliance is placed on the following judgments:—

(i) LAWS (SC) 2009 4 86, between Regional Manager, Central Bank of India vs Vijay Krishna Neema, Civil

Appeal No. 2242/2009 and SLP (C ) 2369/2007, Dated 08.04.2009.

(ii) LAWS (MAD) 2011 1 363, between Indian Bank vs S. Maheswari, W.P. Nos. 16490/1997 and

17493/1998, Dated 11.01.2011.

(iii) LAWS (CAL) 2010 4 46, between Shiw Kumar Ram vs Union of India, W.P. No. 13460/2008, Dated

08.04.2010.

10.

The mode of service of notice is a vexed question which needs to be addressed at the first instance. The letter

transactions between the Parties are placed on record by both of them. All the while the 1^st Party has been mentioning his

address as Staff Code No. 8324, Vijaya Bank, Lead Bank, Haveri. It is only after coming to know that vide order dated

03.05.2006 his service came to be ceased, he addressed a letter Ex W-12 to the Deputy General Manager, in the said

letter at para 2, he takes objection against the 2^nd Party for sending the letters to his Sullia address. Relevant lines from

his letter Ex W-12 are reproduced below.

Thus soon I fell ill from 29.11.2004 I wrote a letter to LDM, Haveri (reply to their letter LBM-RKBY F64

C670/04 dated 18.12.2004) wherein I clearly mentioned that I am not in my Sullia address, and I am undergoing medical

treatment in my native place near Vittal. Afterwards I have not received any letters from LDM -RO or HO to my given

native place address.

It is only after seeing your notice in Udayavani Newspaper 12.03.2006 I came to know that your 3 notices sent

to my Sullia address returned unpaid and surely I felt very much shocked to see your above notice in the Newspaper

dated 12.03.2006 and I reacted and responded to your above notice immediately through telegram and letters sent to you

and RO Hubli on 10.04.2006 that is before your given stipulated period i.e. 12.04.2006….

At the end of the letter he has shown his leave address as B. Sadashiva Adyanthaya, Barebettu House, Post

Barebettu, Kolnadu Village, Bantwal Taluk, D.K. Whether the above address is the very same address which he

indicated at the first para of his letter is not clear. He had only referred “In my Native place near Vittal” which fall short

of a postal address. If really he had addressed such letter in response to the letter of LDM, Haveri dated 18.12.2004 and

issued telegram message dated 10.04.2006 there should have been some documentary proof which is not placed on

record.

11.

It is clear from sub clause III of clause 33 that, when the notice under the said clause is sent to the employee by

registered post acknowledgement due at the last recorded address communicated in writing by the employee and

acknowledged by the Bank, the same shall be deemed as good and proper service. Since, there is no proof available from

the evidence placed by the 1^st Party that he had intimated his changed address to the 2^nd Party prior to 12.12.2005 (on

which date first show cause notice was sent through RPAD) 03.02.2006 (the date on which second show cause notice

was sent) and 12.03.2006 (on which date the third show cause notice was published in the Newspaper), it is inevitalbe to

invoke the deeming clause contemplated by sub clause (III) of 33 of the Settlement and thus the procedure contemplated

by sub clause (I) and (II) of clause 33 is proper in the matter of issue of notice is properly complied.

12.

Once it is held that there was proper service of notice on the workman, then comes the question of justification

of the order removing his name from the muster roll. The 3 judgments relied by the 1^st Party are not of any avail to him.

The first cited judgment of the Apex Court in the matter of Regional Manager Central Bank of India vs Vijay Krishna

Neema (Supra) it was an appeal against the order of the Learned Single Judge of the Hon’ble High Court. The Hon’ble

High Court had directed the employer to take him on duty and liberty was given to the employer to conduct Departmental

Enquiry if they so choose to. The validity of notice issued to the workman as per clause 16 of Sastry Award which was

not served on the employee was the subject matter of the appeal. The Hon’ble High Court noticed that the Bank had not

sent the notice to his address and had not tried to serve the notice personally to the employee he had 236 days of leave in

his credit. He had an explanation to put forth before the Management with regard to his ailment which is supported by

medical certificate. He had submitted an application to the Bank for change of his address. On the above grounds the

Hon’ble High Court had allowed the Writ Petition. The Apex Court though noticed that the Hon’ble High Court

committed serious error in holding that personal service of notice was imperative in as much as in case of absent

employee notice was required to be served by registered post with acknowledgment due, it was also further noticed that

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THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

there was no proof of sending the notice under registered cover, and the Bank had not denied shifting of residence by the

employee. In fact, the Bank had filed a suit for recovery of loan against the employee subsequently suggesting that it had

the notice of his changed address. Without disturbing the concurrent finding of fact with regard to non-service of notice

and since there was liberty to the Bank to give an opportunity to the employee, the appeal was dismissed.

The circumstances of the case on hand have no semblance to any of the questions addressed in the said case.

There is no proof from the side of the 1^st Party that he had informed his change of address prior to issue of notice by the

Bank by invoking clause 33 of the Bipartite Settlement.

13.

In the second cited judgment of Indian Bank vs S. Maheswari (Supra) it was found by the Hon’ble High Court

that, because of her indisposition employee was not able to join duty after sanction period of leave and was not able to

communicate her illness to the Bank, she had shifted her residence for the purpose of continuous treatment. The

concerned Industrial Tribunal had held that the notices were rightly sent to her last known address as furnished by the

employee to the Bank and the final order passed by the Bank effecting voluntary retirement was valid under law.

However, taking a lenient view and considering her young age took mercy on her and directed the Bank to reinstate her

without continuity of service and Back wages. The employee had produced a Certificate of posting in order to prove that

she had sent the letter informing change of her address to the Bank. Both the Tribunal and the Hon’ble High Court did

not believe her version that she had informed about her change of address through the said letter. However, for the

reason that, the satisfaction on the part of the Bank was not recorded before declaring that the employee is deemed to

have retired from service and the notice also did not contain the grounds upon which the Bank had reasons to believe that

respondent had no intention to join duty, the Hon’ble High Court further held that, “….such reasons for belief may be by

an enquiry held by the Bank or from out of the other documents such as communications from the employee…” So, it is

clear for us that the mode of service of notice was not the issue either before the Industrial Tribunal or before the Hon’ble

High Court. Of course the 2^nd Party/Bank in the final order while arriving at the decision to remove the employee’s name

from the muster roll has not expressly recorded its satisfaction about the intention of the employee to discontinue his

service. But there is ample evidence supported by the cross-examination evidence of the 1^st Party about his reluctance to

work outside Dakshina Kannada District which will be discussed in the later paras.

14.

The third cited judgment of Shiw Kumar Ram vs Union Of India (Supra), notice was issued under clause 33 of

8^th Bipartite Settlement of 2005, the Hon’ble High Court though appreciated the mode of service of notice by way of

registered post (which were returned undelivered with the endorsement either he refused to accept the notice or the

noticee was unavailable), having further noticed that during the relevant period employee was suffering from mental

illness and was under treatment, but had excellent confidential report which persuaded the Hon’ble High Court to set

aside the order of the Bank. Though it was held that order of voluntary retirement was properly passed in accordance

with the rules, negatived the order of the Bank that it was not proper on the part of the Bank to maintain the decision to

treat the employee as retired was irreversible. Without disturbing the order of voluntary retirement, the Hon’ble High

Court directed the Bank to reconsider the case of the employee by giving him an opportunity to file an application and by

hearing him and pass a reasoned order. It was indicated in the order that if the reason was properly explained there is no

bar in recalling or setting aside the decision to treat the employee as retired. The above judgment does not in any way

destabilise the deeming clause of (III) of clause 33, when the notice is not delivered on the employee in his address.

15.

The contention of the 1^st Party that there is no proper service of notice, lacks merit because they were issued in

the last known address furnished by him. There is no evidence to infer that he had informed the Bank about change of

his address.

Having reached the stage that there was proper service of notice on him, now the question would arise whether

there was sufficient material before the 2^nd Party to believe that the 1^st Party had no intention to join for duty at the

Branch/Bank.

16.

It is an admitted fact between the parties, which surfaced during the cross examination of the 1^st Party that, he

was the senior most employee who was liable to be transferred to any of the Branch in Hubli Region, except North

Karnataka District for 3 years. On completion of 2 years of service in transferred place he could have asked for

retransfer, when his term for transfer came; His option was called for. He requested to retain him in the same place

(i.e. Aranthodu Branch of D.K District) on medical grounds for his aliments of Hypertension, Diabetics, Mellitus and

Atrial Septal Defect etc. He had submitted Medical Certificate in support of his request, but the Bank subjected him to

Medical Examination by their Visiting Doctor O.R. Srirangappa, the Doctor gave a report to the effect that the aliment he

was suffering was not an impediment for his transfer. Thereafter he was transferred and relieved from Aranthodu Branch

to Regional Office, Hubli with a direction to report at Lead Bank, Haveri. Though he reported at transferred placed on

30.05.2003, he remained absent from 22.07.2003 to 25.10.2003 again he absented from 04.12.2003 to 10.12.2003, from

15.12.2003 to 20.01.2004 and from 03.02.2004 to 09.02.2004. His application for leave though was not sanctioned he

remained absent from 15.03.2004 to 03.08.2004. The 2^nd Party vide letter dated 03.08.2004 had instructed him to report

to duty within 3 days from the date of receipt of the letter but he did not report, instead he wrote back with a medical

certificate expressing his inability to report. Again he was subjected to medical examination by

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5819

Doctor O.R. Srirangappa; subsequent to the report of the said doctor he reported to duty and worked till 29.11.2004.

Though he had written a letter to the Bank undertaking to report to duty from 25.07.2004 he did not keep up his word.

Admittedly after the notice by way of RPAD returned unserved, it was issued by way of paper publication dated

12.03.2006 calling upon him to report to duty within 30 days and submit explanation for his unauthorised absence;

failure to report to duty within the stipulated period will be treated that he has voluntarily retried from the service of the

Bank and his name will be struck off from the muster roll of the Bank. It is not as if the 1^st Party did not read the said

paper publication; he addressed an undated letter undertaking to report to duty on or before 22.04.2006 without fail with

necessary medical certificates. In the said letter he had indicated that stipulated notice period expires on 12.04.2006, still

he requested the 2^nd Party to give him opportunity considering his 29 years of dedicated service, the said letter is marked

as Ex M-7 and same is received in the Bank on 15.04.2006; he wrote another undated letter which is received on

24.04.2006 again seeking extension of time to join the Bank up to 29.04.2006. In his letter he refers to a telegram dated

10.04.2006 for which he has not produced any documentary proof. He has produced the medical certificate of a Private

Practioner/ his treating Doctor stating that, he is suffering from High Blood Pressure, High Blood Sugar and he is

extremely weak and requires rest atleast for 10 days. When the past history of the workman is amply clear that he was

reluctant for transfer outside Dakshina Kannada District and persistently and intermittently remained absent without valid

reason and further did not report to duty in response to the call notice within the stipulated period, this Tribunal cannot

find fault with the order of the 2^nd Party dated 03.05.2006/vide Ex M-9 in infering that he is no longer interested in his

employment and intends to abandon and relinquish his job.

17.

The 1^st Party had fair opportunity to persuade this Tribunal by leading evidence bringing out genuine medical

grounds for his absence. He had frequently remained absent and could not report to duty to call notice of the 2^nd Party

within 12.04.2006. His affidavit evidence was the mere reiteration of his claim statement averments, his plea that he is

suffering with Hypertension and High Blood Sugar is too vague to be accepted as a hinderance for him to work at Haveri

Branch.

18.

The procedure contemplated by clause 33(III) of Bipartite Settlement for issue of notice having promptly

complied and 1^st Party having not reported within the period stipulated in the call notice published in the Newspaper

dated 12.03.2006 and having not worked in the 2^nd Party from 29.11.2004, no unreasonableness/arbitrariness can be

smelt in the action of the 2^nd Party, for invoking clause 33 of the Bipartite Settlement and removing his name from the

muster roll by treating him as Voluntarily Retired from service of the Bank. The 1^st Party is not entitled for any relief in

his reference.

AWARD

The reference is rejected

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 09^th July, 2019)

JUSTICE SMT. RATHNAKALA, Presiding Officer

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New Delhi, the 30^th July, 2019

S.O. 1402.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 39/2016) of the Cent.Govt.Indus.Tribunal-cum-Labour Court No. 2,

New Delhi as shown in the Annexure, in the industrial dispute between the management of Punjab National Bank and

their workmen, received by the Central Government on 30.07.2019.

[No. L-12011/17/2016-IR(B-II)]

SEEMA BANSAL, Section Officer

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THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI

Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour

Court-II, New Delhi.

INDUSTRIAL DISPUTE CASE NO. 39/16

Date of Passing Award- 04^th July, 2019

Between:

Shri Vinesh Shah,

Through president,

Bhartiya Labour Union, 3/216,

Dakshin Puri Extn.

New Delhi-110062.

… Workman

Versus

The Circle Head,

Punjab National Bank,

Circle Office, South Delhi,

Rajendra Place,

New Delhi.

…Management

Appearances:-

Shri S.C. Dubey, (A/R) : For the Workman

Shri Rajat Arora, (A/R)

: For the Management

AWARD

The Government of India in Ministry of Labour & Employment has referred the present dispute existing between

employer i.e. the management of M/s. Punjab National Bank, and its workman/claimant herein, under clause (d) of sub

section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L- 12011/17/2016 (IR(B-

II) dated 19.04.2016 to this tribunal for adjudication to the following effect.

“Whether the service of Shri Vinesh Shah S/o Shri Hira Lal Shah have been terminated illegally and/or

unjustifiably by the Bank and if so, what relief is he entitled to and what directions are necessary in this

respect.”

The contention of the claimant is that he was employed as a safai Karamchari by the management since 1.01.2011 on a

monthly wage of 11,863/-. But the management was not paying the agreed amount for which he was often raising

objection. On 04.10.2013 by a verbal order the management terminated his service and at the time of termination the

procedure laid down u/s 25-F, 25-G and 25-N of the ID Act 1947 was not complied by the management. All the efforts

by the workman for his reinstatement failed and on 06.07.2015 he served a demand notice on the management for his

reinstatement. He then agitated the matter through the Bharatya Labour Union before the Labour Commissioner wherein

a conciliation proceeding was taken up. Since the conciliation failed and a failure report was communicated to the

workman he filed the present claim petition. His further contention is that initially he was working as a tea vendor for

many years in the Malavaya Nagar Branch of the management Bank. One Keladevi the Safai Karmachari was transferred

on 31.12.2010 and in her place the workman had joined the Branch of the Bank as a Safai karamchari. Since he started

demanding the legal facilities he is entitled to, the management got annoyed and terminate his service by an oral order.

The act of the management amounts to unfair labour practice and he is entitled to the relief prayed for.

Being noticed the management Bank appeared and filed WS refuting the allegation of the workman. The

specific plea of the management is that the workman was never their employee and never existed any employer employee

relationship between them. He was working as a Tea vendor in the bank for supply of tea to the Bank employees. Later

on, he was found selling tea outside the Bank Premises to nearby shop and public. The gas connection facility supplied to

him was found misused and when the same was pointed out the claimant stated misbehaving with the bank staff. At

times he was working as a part time sweeper on leave gap arrangement for which he was being duly compensated. While

denying the liability of the Bank to reinstate the workman to service, it has been pleaded that the proceeding is not

maintainable for the representation of the workman through a Union to which he is not a member. All other stand taken

by the claimant has been denied by the management.

On this rival pleading the following issues are framed for adjudication.

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5821

ISSUES

Whether the services of Shri Vinesh Shah claimant/workman have been terminated illegally and/or

unjustifiably by the management of P.N.B.? if so its effect?

Whether there is employer and employee relationship between the management of Punjab National Bank

and claimant/workman Shri Vinesh Shah.? If so its effect?

To what relief claimant/workman is entitled to and what directions are necessary to be issued in this

respect to management of P.N.B.

The workman examined himself as WW1 and produced a series of documents which have been marked as

WW1/1 to WW1/20. These documents include demand notice, several correspondence made by the Branch head of the

Bank at Malvaya Nagar to the circle office of PNB requesting appointment of the workman as a PTS, the reply received

from the circle office the report of conciliation etc. Similarly the management examined the chief manager of the circle

office of the Bank as WW1 and proved three documents as MW1/1 to MW1/4. These documents include the photocopy

of the attendance register of the employees of the Branch of the Bank the circular of the bank introducing the scheme for

canteen facilities in the Branch and the circular of the Bank introducing alternative mechanism in lieu of interview for

recruitment of full time sweeper, part time sweeper in subordinate cadre.

The Ld. A/R for the workman opened his argument saying that initially the workman was a Tea vendor in the

Bank. At that time one Kela devi was the part time sweeper of the Bank and she was transferred to a different branch on

31.12.2010. The workman was allowed to discharge the duty of the part time sweeper in the management Bank w.e.f.

01.01.2011. He was being given monthly wage of 11,863/. He had worked for a period of 240 days during the 12 month

period as a part time sweeper and when he demanded regularization, pay parity and other service benefits, the

management terminated his service orally w.e.f. 04.10.2013 without following the procedure laid down under law which

amounts to unfair labour practice.

In reply the Ld. A/R for the management Bank while denying employer employee relationship between the

management and the workman argued that at no point of time the workman was employed by the bank and thus the

allegation of the termination is a misconception of fact. He also argued that after the transfer of PTS Kela devi no one

was appointed in her place and the workman who was infact a tea vendor was occasionally cleaning the bank premises

and for the same he was being paid immediately. Thereby the management took a stand that the plea of the workman for

reinstatement is illegal.

Be its stated here that during the pendency of the hearing the workman had made a prayer for a direction to the

management bank for production of the attendance register of the Bank, the seniority list of PTS and the wage payment

contain any reference about the present workman. It has been explained by the management in the reply that the

attendance register, wage payment register and seniority list etc are maintained in respect of regular employee and not the

persons working on leave vacancy. It has also been pleaded and argued by the management that after the transfer of Kela

Devi no PTS was ever appointed in the Bank and thus, there is no possibility of maintenance of the seniority list. Thus,

the management did not produce the documents as called by the workman.

ISSUE NO. 1

This is the most important issue for the adjudication in this proceeding. In order to decide whether the service of

the workman was terminated illegally by the management, it is to be decided first of all, if the workman was working as a

PTS with the Bank from 01.01.2011 to 04.10.2013 i.e. for a period of 2 years and 10 months. The workman has pleaded

and laid evidence that he was working as a PTS and attending the work as a peon after the transfer of Kela Devi to a

different Branch. The management took a stand that the workman had never worked in the capacity of the part time

sweeper. The admitted facts are that no appointment letter or termination letter was issued to the workman by the

management. Thus, from the evidence on the fact it is to be ascertained if at all the workman was working as a PTS in the

Bank. The workman as WW1 has fully supported the averments of the claim statement and added that prior to the

transfer of Kela Devi he was the tea vendor. From 01.01.2011 he was allowed to work as the PTS of the Bank. No

document relating to his appointment has been placed on record. But the workman during his examination as WW1 has

stated that one Mr. Tandon was the manager of the Bank and by him he was inducted to work as PTS. He has admitted

that no interview was conducted nor any advertisement was issued for filling up the post. Taking advantage of the same

the Ld. Counsel for the management argued that the management is a nationalized Bank having its own rules and

procedure for appointment of PTS and full time sweeper. One document has been placed on record and marked as

MW1/4 issued as a circular by the administration division of the Bank vide notification dated 1.02.2012. As per this

circular the remuneration to be paid to the sweepers has been determined in terms of 9^th bipartite settlement dated

27.04.2010 depending upon the hour of work and the area to be cleaned by the sweeper. This circular contains other

conditions including qualification, age, relaxation of age and physical fitness etc of the candidates.

5822

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

Mr. Arora the Ld. A/R for the bank submitted that the primary burden is on the workman to show that he was

working as a PTS of the Bank and had completed 240 days of work during the period of 12 months to enable him for

deriving the benefits as prayed for.

The evidence and pleading of the workman go to show that he was engaged as Sweeper on 01.01.2011 and

during his cross examination by the Ld. A/R for the Bank he was asked about the appointment letter to which he denied.

However, a suggestion was put to him which was recorded affirmativly to show that he was engaged as a sweeper w.e.f.

01.01.2011.On behalf of the workman a series of the letter correspondence between the branch manager of the Bank

Malvya Nagar and the chief manager HRD circle office PNB Delhi has been filed. These letters have been marked in a

series of WW1/3 to WW1/17. A careful reading of these letters lead to a conclusion that on 13.10.2011 and 12.12.2011

the Branch manager gave a proposal vide exhibit WW1/3 to the Chief Manger HRD circle office PNB proposing to

appoint the workman Shri Vinesh Shah as PTS. The Chief Manager HRD by letter dated 21.12.2011 marked exhibit

WW1/4 asked the Branch Manager to provide the seniority list of the PTS working in the Branch. The Branch Manger by

letter dated 12.04.2012 (exhibit WW1/6) gave reply that no PTS has been appointed after the transfer of Kela Devi but

Shri Vinesh Shah is working to clean the Branch premises and his candidature is recommended for appointment as PTS.

No action was taken as a result of which the Chief Manager Malvya Nagar went on writing letters on 31.05.2012

,16.07.2012 ,04.10.2012, 05.11.2012 and so on proposing appointment of Vinesh Shah as PTS since he is working for

cleaning the Branch. This letter correspondence have been marked as WW1/6, WW1/7, WW1/8,WW1/10,WW1/11

WW1/12, WW1/13, WW1/14 and the document marked as C,D,E etc. At last the branch manager by letter dated

06.08.13 marked as WW1/16 wrote a letter to the Chief Manager HRD circle office, giving reference of all the earlier

correspondence and requested that the workman be appointed as the PTS. Another document has been filed by the

workman marked as WW1/17. This is the letter dated 18.09.2013 by the Chief Manager HRD circle office PNB

addressed to the Branch Manager Malvya Nagar New Delhi. In this letter instruction was imparted to the Branch

manager that the case of regularization of temporary PTS was to be put under status-quo till further instruction. However,

regarding engagement of temporary PTS on account of creation of vacancy the guidelines of the Head office in circular

No. 72 dated 11.02.2012 is to be followed. That circular has been filed by the management and marked as MW1/4.

But surprisingly the branch manager Malvya Nagar instead of following the instruction laid in office circular no.

72 dated 11.02.2012 and ignoring the direction for maintenance of status-quo orally terminated the engagement of the

workman w.e.f. 04.10.2013. The documents which are the correspondence between the Branch manager and chief

manager HRD filed by the workman have not been disputed by the management at any point of time. Rather the

management witness as MW1 during cross examination stated that he is aware of the letter correspondence between the

Branch Manager and the Chief Manager HRD. He also admitted during cross examination that as per record different

persons namely Vinesh Shah, Bachhan Jha, etc., had worked after the transfer of Kela Devi as Part Time person for

cleaning and sweeping.

Though the workman filed a petition for production of the attendance register, wage register, etc., the

management witness stated that no such records are maintained for persons engaged casually. This stand of the

management is not believable since the bank a financial organization while making payment is supposed to maintain

record of the detailed payment being accountable for the purpose of audit etc. It is thus difficult to believe that the

management Bank has not maintained any register of attendance and wage when admitted that the workman was working

in the Bank for cleaning and getting remuneration for the same. The irresistible conclusion thus, is that the bank made

suppression of material documents which could have thrown light on the point under controversy.

The Hon’ble Supreme court way back in the year 1968 in the case of Gopal Krishna Ji Kedkar vs. Mohhamad

Haji Latif and others reported in AIR 1968 SCC 1413 came to hold that the burden of proving a fact lies with the party

which possesses the best evidence. A similar view was taken by the Hon’ble Division Bench of the Supreme Court in the

case of Bal Kishan vs. Presiding Officer reported in 1996(3)SCT 548. Recently the Hon’ble High Court of Punjab and

Haryana in the case of Ramesh Kumar vs. P.O. IT Panipat reported in 2018 LLR 1229 have held that when documents

were called but not produced the management is guilty of withholding the documents which could have thrown light on

the dispute.

The factual position of this proceeding is that the material available on record lead to a conclusion that the

management through its managers had made several correspondence with the circle office for appointment of the

workman as a PTS and in each correspondence it was mentioned that he is working in the branch as the sweeper. There is

another document available in record wherein the Chief Manager HRD has ask the Branch manager to provide the

seniority list of PTS alongwith the application of the workman date of Birth, qualification, and days of work done etc.

this document has been marked as WW1/4. The Branch Manager gave reply on 22.02.2012 in a letter marked as WW1/5

indicating clearly that Shri Vinesh Shah had worked for 298 days from 01.02.2011 to 31.01.2012 that is during

12 months. All other detail information asked by the HRD Manager was furnished under this letter WW1/5.

As indicated above the witness examined on the behalf of the management has not denied the authenticity of

these documents. Rather stated that he is aware of the correspondences in this regard between the Branch Manager and

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5823

the HRD Manager. Thereby the management witness admitted that the workman was working in the Branch during the

relevant period and correspondences for this appointment was made by the then managers with the circle office. Nothing

is required to be proved by the workman if the only witness examined by the management admits the claim of the

workman in toto. Moreover, in this case the management has not produced the relevant records which could have thrown

light on the claim of the workman. Thus, in view of the facts proved and the principle decided in the case of Gopal

Krishan Ji Kedkar and Bal Kishan referred supra it is held that the workman had worked for the management for more

than 240 days during a period of 12 months and the bank intentionally withheld the documents to that effect and instead

of giving him regular appointment the bank illegally terminated his service and at the time of termination the different

provision of the ID Act were not followed.

ISSUE NO. 2

A separate issue has been framed to determine the employer employee relationship between the workman and

the management. The Ld. A/R for the management strenuously argued that the evidence never establishes the employer

employee relationship between the parties. It is true that no express oral or documentary evidence is available on record

to decide and determine this issue. In such situation other factors are required to be taken into consideration. In this case

there is no denial that the claimant was working as a sweeper in the bank. There is also no denial that he was being paid

for the work done by him and the evidence also reveals that the Bank manager was exercising the control and supervision

over his work. In the case of BHEL vs. Mahinder Prasad Jakhmola and Others reported in 2019 LLR 515 the Hon’ble

Supreme Court have held that when there is evidence about payment of wage by the management, even if there is no

appointment letter, no PF, no wage slip etc., the workman would be held as the employee of the person who pays the

salary maintains control and supervision of his work. In this case at no point of time management has taken the stand that

the workman was not being paid remuneration by the bank. Rather the management witness has explained that he being a

casual worker no records for the remuneration paid is maintained. Thus, from this evidence it is concluded that the

claimant/workman had a direct employee and employer relationship with the management bank as the and his service

was terminated illegally. This issue is answered in favour of the workman.

ISSUE No. 3

The Ld. Counsel for the management argued that there is a clear circular of the Bank suggesting alternative

mechanism in lieu of interview for recruitment of full time sweeper and part time sweeper etc., The circular has been

filed and marked as MW1/2. As per the circular the selection of full time and part time sweeper will be made on the basis

of age and qualification index after receipt of the application from eligible candidates and the circle have to take

appropriate action for notification of the vacancy, short listing of candidates etc. But to the view of this tribunal this

circular has no applicability to the grievance of the claimant/workman since this circular came into force on 4^th July 2016

i.e. two and half years after the termination of the workman.

The evidence on record as adduced by both the parties clearly establishes that the workman had worked as a

sweeper from 01.01.2011 to 04.10.2013 on a monthly remuneration of 11,863/- and his service was illegally terminated

when the circle office had directed to maintain status-quo on the matter of regularization of the service of the PTS. The

action of the management in terminating the service of the workman ignoring the period of work rendered by him

amounts to unfair labour practice and the management is also guilty of suppressing material document which could have

clarified the points of dispute. This issue is accordingly answered in favour of the workman and it is held that he is

entitled to the relief sought for. Hence, ordered

ORDER

The claim be and the same is accordingly answered in favour of the workman. The management is directed to

reinstate of the workman in to service as a PTS of Bank with 50% back wages, continuity of service and all other service

benefits as he would be entitled to. The management is further directed to implement the order within 2 months from the

date when the award would become enforceable, failing which the back wages accrued shall carry interest @ 6% per

annum from the date of notification of the award till final payment is made. Send a copy of this award to the appropriate

government for notification as required under section 17 of the ID act 1947.

The reference is accordingly answered.

Dictated & Corrected by me.

PRANITA MOHANTY, Presiding Officer

5824

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

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jsyos dSfVªax ,aM VwfjTe dkWiksZjs'ku fy- izca/krarz ds laca) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd

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ljdkj dks 01-08-2019 izkIr gqvk FkkA

[la- ,y&41012@08@2015&vkbZvkj ¼ch&1½]

ch- ,l- fc"V] voj lfpo

New Delhi, the 1^st August, 2019

S.O. 1403.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 38/2015) of the Cent.Govt.Indus.Tribunal-cum-Labour Court

Kolkata as shown in the Annexure, in the industrial dispute between the management of Indian Railway Catering and

Tourism Corporation Ltd. and their workmen, received by the Central Government on 01.08.2019.

[No. L-41012/08/2015–IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 38 of 2015

Parties: Employers in relation to the management of Indian Railway Catering and Tourism Corporation Ltd. (IRCTC)

AND

Their workmen

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Management

: None

On behalf of the Workmen

: None

Dated: 18^th July, 2019

Industry: Railways.

AWARD

By Order No.L-41012/082015-IR(B-I) dated 22.06.2015 the Government of India, Ministry of Labour in

exercise of its powers under Section 10(1)(d) and (2A) referred the following dispute to this Tribunal for adjudication:

“(1)

Whether the action of the management of M/s. Swastika Enterprise and M/s. Shomuk Engineering &

Consultancy Services, contractors of IRCTC is justified by terminating the service of contractual workmen

without following statutory rules and regulations?

(2)

Whether the workman is entitled to receive (i) Terminal Benefits under Section 25F(b), (ii) One month

notice under Section 25F(a), (iii) Bonus and (iv) Leave with wages is justified or not? If not, what relief the

workmen are entitled for?”

When the case was taken up for hearing today, none appeared for the parties concerned. It transpires from

record that though this reference is pending in this Tribunal since 30^th June, 2015 and inspite of all the opportunities,

neither the union has ever appeared and filed its statement of claim, nor the managements have filed its written statement

to proceed further with the case. It further appears that notice issued to IRCTC was returned by the postal authority with

the endorsement “left” and accordingly union was directed to furnish the present address of IRCTC, but the union failed

to furnish such address. It also appears that the union refused to receive last notice sent to it by this Tribunal.

On consideration of the facts and circumstances of the case, it appears that the union has no grievance at present

in respect of the issue as mentioned in the order of reference. Therefore, there exists no dispute for adjudication.

Therefore, the reference is disposed of accordingly.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

Dated, Kolkata,

The 18^th July, 2019

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5825

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01-08-2019 izkIr gqvk FkkA

[la- ,y&12011@36@2007&vkbZvkj ¼ch&1½]

ch- ,l- fc"V] voj lfpo

New Delhi, the 1^st August, 2019

S.O. 1404.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 06/2008) of the Cent.Govt.Indus.Tribunal-cum-Labour Court

Kolkata as shown in the Annexure, in the industrial dispute between the management of Bangiya Gramin Vikash Bank

and their workmen, received by the Central Government on 01.08.2019.

[No. L-12011/36/2007–IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 06 of 2008

Parties: Employers in relation to the management of Bangiya Gramin Vikash Bank

AND

Their workmen

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Management :

Mr. Md. N. Islam, Chief Manager of the bank

On behalf of the Workmen :

Mr. D. Paul, General Secretary of the union

Dated: 24^th July, 2019

Industry: Banking

AWARD

By Order No.L-12011/36/2007-IR(B-I) dated 22.02.2008 the Government of India, Ministry of Labour in

exercise of its powers under Section 10(1)(d) and (2A) referred the following dispute to this Tribunal for adjudication:

“Whether the action of the management of Murshidabad Gramin Bank (now named as Bangiya Gramin Vikash

Bank) in determining the seniority and promotion of the award staff including messengers, is justified? If not,

what relief the concerned workmen are entitled.’’

After receipt of above reference by this Tribunal, notices were sent to the parties whereupon the union

representing the concerned workmen filed statement of claim on behalf of the workmen stating therein that seniority of

the employees and officers of the bank is governed by Section 13(1), (2) and (3) of Murshidabad Gramin Bank Staff

Service Regulation, 1985, but the seniority list was prepared by the bank vide circular No. MGB/ADM/1698 dated

21.10.1998 for all cadres in violation of section 13(3) of common Service Regulations for officers and employees. It was

published separately for officers maintaining Section 13(3) vide circular No. MGB/ADM/21/98-99 dated 10.12.1998

rectifying the bank’s earlier circular issued on 12.10.1998 before promotion process of officers, but no rectification was

made for clerks maintaining Section 13(3) of Service Regulation before initiating promotion process of clerks. The

management of the bank published several seniority list on different occasions placing employees/officers in different

position. The National Industrial Tribunal passed an Award dated 30^th April, 1990 and Government of India circulated it

accepting the Award on 22^nd February, 1991. The fitment formula was given in the circular in respect of part time

employees. The Chairman of Regional Rural Banks was to consider such case on merit and decide whether such

employees performed part time or full time work in the bank and fix their fitment accordingly. In the process of re-

fixation if a senior employee is fitted at a lower stage than the junior employee, the senior should be provided with

protection by stepping up his fitment. It was also to ensure that no senior employee draws less than his junior employee.

On the basis of above Government order dated 22^nd February, 1991 the Chairman of the bank had given fitment to

messengers as they had performed full time work in the bank since their joining. The fixation was also given on the basis

5826

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

of seniority. The seniority list of messengers was not published before promotion process on the basis of seniority as per

NIT Award. The bank has also not considered the direction of Government of India circular dated 11^th June, 2002

relating to reservation of SC and ST in promotion process. Promotion was given on pick and choose method violating the

directives of the Government of India.

In reply of union’s statement of claim the bank filed its written statement stating that promotion of award staff

including messenger was effected by the management of erstwhile Murshidabad Gramin Bank as per provisions of

Appointment and Promotion Rules, 1998. The seniority list of officers and clerks was published by the management on

21^st October, 1998 and after rectification on 10^th December, 1998. The concerned employees also participated in the

promotion process accepting all its components and having been unsuccessful at the examination had challenged a

component of the promotion which amounts to approbation and reprobation at the same time. The objection was raised

by the Murshidabad Gramin Bank Staff Association only on 18^th November, 2005 for the first time. The seniority list of

employees was published by the management through circular dated 21.10.1098 wherein all employees were advised to

point out errors and omissions, if any for further rectification. Rectified list was also published on 12^th October, 1998

after incorporating inadvertent errors and omissions. Fitment of all categories of staff including the part time employees

were done as per guidelines issued by the Government of India, but no employee was reported to have raised any

objection to the said fitment. The bank has complied with the direction of the Government of India in respect of

reservation of SC/ST in promotion. Shri Subhas Saha belonging to SC category got promotion from clerk to officer under

reserved category. Meanwhile five Regional Rural Banks in West Bengal sponsored by United Bank of India were

amalgamated on 21^st February, 2007 and Bangiya Gramin Vikash Bank was constituted. The Bangiya Gramin Vikash

Bank already published interse seniority list of all categories of employees as per provisions of Bangiya Gramin Vikash

Bank (Officers & Employees) Service Regulations, 2007.

The union filed its rejoinder repeating the averments already made in the statement of claim.

On behalf of the union Shri Bablu Das, Shri Budhadeb Bhattacherjee and Shri Asit Roy have been examined as

witnesses. None has been examined on behalf of the bank.

I have heard the authorized representative of the union as well as the bank.

Basic questions which have come up for consideration before this Tribunal are whether the seniority list dated

21^st October, 1998 and rectified list dated 10^th December, 1998 were published by the bank in violation of Rule 13(3) of

Murshidabad Gramin Bank Staff Service Regulations 1985 and secondly whether promotion process was conducted in

violation of rules?

There is no dispute with regard to the date of publication of seniority list as well as of rectified seniority list. The

management has specifically mentioned in its written statement that after publication of rectified seniority list no

objection was ever raised by the association. It was only after passage of 7 years that Murshidabad Gramin Bank Staff

Association raised objection against seniority list on 18.11.2005. The union has not controverted this averment of the

management of the bank. In rejoinder filed by the union also the union has not stated that before 2005 any objection had

been raised against the seniority list by the union.

In Rabindra Nath Bose & Others v. Union of India & Others, AIR 1970 SC 470 the Hon’ble Apex Court has

considered the finality of seniority list where objections were not raised against the seniority list for a long time whereby

other party acquires a right therefrom. The observation made by the Hon’ble Court may be quoted as below:

“We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with

law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the

rights which have accrued them. Each person ought to be entitled to sit back and consider that his appointment

and promotion effected a long time ago would not be set aside after a laps of number of years.”

10.

Further in T.C Sreedharan Pillai & Others v. State of Kerala and Others, 1973 KLT 151 a Full Bench of the

Hon’ble High Court of Kerala relying upon above dictum considered finality to be attached in respect of settled seniority

and held as below:

“47.

The petitioners were duly qualified for inclusion in the 1962 list and they had been granted promotion

to the Upper Division in the list of 1962. By virtue of that promotion they had acquired a right to have their

ranks and seniority in that category reckoned on the basis of principles laid down in Rule 27(a) of the Kerala

State and Subordinate Rules. The position of the officers in relation to the promotions of 1961 and 1962 had

become settled at least by the orders exhibit P-1 and P-2 passed in February, 1965. No statutory appeals or

revision petitions are shown to have been filed against thos orders and hence it must be taken that those lists

had become final. It is not in the interest of the maintenance of moral efficiency and contentment in th service to

disrupt after a long lapse of time matters pertaining to vital service conditions like seniority and rank which had

already become settled.”

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5827

11.

Thus the principle which is derived from the above pronouncements is that a review of seniority and promotions

after a lapse of many years affecting rights of the parties regarding their ranks and seniority will be neither just nor

equitable.

12.

A Division Bench of the Hon’ble Kerala High Court in Karthikeyn and Another v. State of Kerala & Others,

ILR 2002 (2) Kerala 31 considered similar question wherein the petitioners wanted to place persons who did not

complete their probation within the maximum period of four years below them and to give further promotion to the post

of Assistant Conservator of Forests recasting seniority list. The seniority list was published in the year 1984. In 1988

another seniority list of Rangers was published against which a representation was filed in the year 1991 to review the

seniority list. Ultimately final seniority list was published by maintaining the seniority list of 1984 intact. When the

dispute reached before the Hon’ble Kerala High Court, the Hon’ble Court held that seniority list had become final. The

petitioners had never challenged the said seniority list at any point of time, but only in proceeding before the Hon’ble

Court. The Hon’ble Court relied on the principles laid down by the Hon’ble Apex Court in Rabindra Nath Bose case

(supra).

13.

In the instant case, seniority list was published way back in October, 1998 and thereafter rectified seniority list

was also published in December, 1998, but from 1998 to 2005, i.e., for 7 years no objection was raised by the

Association. Thus as principles laid down by the Hon’ble Supreme Court and the Hon’ble High Court in above case

laws, the association cannot be permitted to unsettle the seniority list. The seniority of a person once recognized cannot

be brushed aside at the fancy of the association. Apart from this, the union has not mentioned the details of period of

probation and the workmen who were on probation and whose probation period had been extended so as to bring their

case within Rule 13(3) of the Regulation of 1985. A mere wild allegation is of no use to unsettle a long standing seniority

after a lapse of 7 years. Hence the issue raised by the union in this regard has no merit.

14.

It has been also contended that the management of the bank has given promotion on pick and choose method

violating seniority and direction of the Government regarding reservation of SC and ST. From the record it appears that a

joint discussion had taken place between the management of Bangiya Gramin Vikash Bank and Bangiya Gramin Vikash

Bank Employees’ Union on 14^th September, 2007 under reconciliation at Assistant Labour Commissioner’s Office after

merger of Regional Rural Banks including Murshidabad Gramin Bank into Bangiya Gramin Vikash Bank. The

proceedings of joint discussion was reduced in writing and is filed on record as Annexure – A of rejoinder by the union

from which it appears that written test had been conducted by the bank in which 27 candidates participated. Out of which

12 candidates were called for interview in accordance with the Promotion Rules of 1998. Position of seven candidates

was undisputed but remaining five candidates are alleged to have been called for interview keeping aside arbitrarily eight

others who were senior to above five candidates whereas they were eligible to be called for interview instead of above

five candidates. Two candidates were promoted as they had passed in the interview. Be that as it may, but the bank

appears to have conducted written test and interview for promotion. The Recruitment and Promotion rules show that 50%

of the post shall be filled up by direct recruitment through Banking Service Recruitment Board and 50% by promotion in

case of Scale-1 officer and 90% by direct recruitment and 10% by promotion for Clerk-cum-Cashier and Clerk-cum-

Typist. Second Schedule of the Rules filed as Ext. W-07 shows that promotion shall be made on the basis of seniority

cum merit. But where the bank has promoted the employees on the basis of written test and interview, the criteria of

seniority cum merit cannot be said to have been followed. In the matter of Samsul Haqaue Others v. Bangiya Gramin

Vikash Bank & Others this question came up for consideration before the Hon’ble High Court of Calcutta who has held

that where the bank had selected candidates and granted promotion on the basis of test, the promotion would be actually

on the basis of merit cum seniority and not on seniority cum merit. Promotion on the basis of seniority cum merit is

naturally different from that on the basis of merit cum seniority. The distinction between the two criteria has been

explained by the Hon’ble Apex Court in Bhagwandas Tiwari & Ors. v. Dewas Sajapur Kshetriya Gramin Bank &

Ors., AIR 2007 SC 994 in which the Hon’ble Apex Court has explained that the principle of merit cum seniority lays

greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when

merit and ability are approximately equal. On the other hand the criteria of seniority cum merit lays greater emphasis on

seniority. The employee cannot claim promotion as a matter of right by virtue of his seniority alone and a junior

employee may be promoted.

15.

In Samsul Haque case (supra) the bank had granted promotion in violation of the promotion policy based on

seniority cum merit. It was found that the authorities of the bank while selecting candidates for promotion considered the

marks secured by the individual candidates in the interview and performance appraisal report apart from the written test

and thus it was observed by the Hon’ble Court that the bank, in fact, followed the procedure of granting promotion on the

basis of merit cum seniority. The marks secured in the interview as well as performance appraisal report and written test

cannot have any effect in the matter of granting promotion on the basis of seniority cum merit.

16.

In the present case, it is obvious that promotion had been granted by the bank on the basis of written test and

interview which is violative of Rules of 1998 prescribing promotion on the basis of seniority cum merit. Hence,

promotion granted by the bank to the staff under reference including messengers is not sustainable and cannot be

5828

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

justified. However, maintaining seniority list of 1998 and that after merger of Murshidabad Gramin Bank into Bangiya

Gramin Vikash Bank, the award staff including messengers are entitled for their promotion on the basis of seniority cum

merit.

17.

Award is passed accordingly.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

Dated, Kolkata,

The 24^th July, 2019

ubZ fnYyh] 1 vxLr] 2019

dk- vk- 1405-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj jsy

ifg;k dkj[kkuk izca/krarz 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 cSaxyksj ds iapkV ¼lanHkZ la[;k ¼152@2007½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 01-08-2019

izkIr gqvk FkkA

[la- ,y&41012@116@2007&vkbZvkj ¼ch&1½]

ch- ,l- fc"V] voj lfpo

New Delhi, the 1^st August, 2019

S.O. 1405.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 152/2007) of the Cent.Govt.Indus.Tribunal-cum-Labour Court

Bangalore as shown in the Annexure, in the industrial dispute between the management of Rail Wheel Factory and

their workmen, received by the Central Government on 01.08.2019.

[No. L-41012/116/2007–IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

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

BANGALORE

DATED : 17^TH JULY 2019

PRESENT : Justice Smt. Rathnakala, Presiding Officer

CR 152/2007

I Party

II Party

Sh. A. Willing Dongston,

Gr.II, Mechanical Branch,

Rail Wheel Factory,

Door No. 67, 10^th Main Road,

Manjunathanagar,

Bangalore – 560010.

The General Manager,

(Mechanical Branch)

Wheel & Axle Plant,

Ministry of Railways,

Yelahanka,

Bangalore – 560054.

Appearance

Advocate for I Party : Mr. S.T. Sathish Naik

Advocate for II Party : Mr. Ramesh Upadhyaya

AWARD

The Central Government vide Order No. L-41012/116/2007-IR(B-I) dated 30.10.2007 in exercise of

the powers conferred by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute act, 1947

(for brevity ‘the Act’ hereafter) referred the following Industrial Dispute for adjudication.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5829

“How far the management is justified in terminating the services of Sri. A. Willing Dongston for alleged

unauthorized absence on medical grounds and to what relief is Sri. Willing Dongston is entitled for under

the circumstances?”

The claim of the 1^stParty is, he joined the services of the 2^nd Party as Skilled Artisan on 17.08.1984, and was

further promoted as Technician Grade-II in the Mechanical Branch. He fell sick and underwent treatment for his back

ache, when he approached the 2^nd Party with Medical Certificates seeking permission to join duty, they refused to grant

permission. The charge sheet dated 30.03.1998 is said to have been issued on the allegation of unauthorised absence, but

said charge sheet and enquiry notice were not served on him. While he was undergoing treatment his whereabouts was

very much known to the 2^nd Party Management. He underwent Medical Treatment in a Private Hospital since he had no

confidence in the Railway Hospital. The Disciplinary Authority passed the punishment order on 24.04.1999 dismissing

him from service. He preferred an appeal before the Appellate Authority but till date there is no response to his appeal

memo. He raised the Industrial Dispute on 14.08.2003 before the Regional Labour Commissioner, Bangalore. The 2^nd

Party filed its counter on 26.11.2003; the Conciliating Authority exhibited the delay tactics in not referring the matter for

Industrial Adjudication; he had approached the Hon’ble High Court for a direction to the Conciliation Officer to

conclude the Conciliation proceedings at an early date. Despite the Court direction the matter was not referred, he had

issued 3 legal notices seeking to refer the matter for Industrial Adjudication. After prolonged correspondence finally the

dispute was referred to this Tribunal on 30.10.2007.

As per the counter statement of the 2^nd Party the 1^stParty workman remained unauthorizedly absent w.e.f

22.10.1997, vide letter dated 12.12.1997an attempt was made to advise the workman to report to nearest Railway

Hospital in case of his sickness. The letter sent to his last known address returned with the remarks ‘House locked’. No

information was received from him regarding the alleged sickness. In view of the serious misconduct of the 1^st Party

workman Disciplinary Proceedings was initiated under the Railway Servants (Discipline and Appeal) Rules, 1968;

charge sheet dated 30.03.1998 was issued, same was sent to his last known address and also his permanent address; they

returned un-served with the remarks ‘House locked’. The charge sheet was also displayed on the notice board at the

work spot of the 1^st Party workman. The enquiry hearing dates were fixed to be held on 30.05.1998, 10.07.1998,

26.10.1998 vide enquiry notice of 21.05.1998, 25.06.1998, 12.10.1998 and respective notice was sent to his last known

address and also his permanent address they returned un-served with the remarks ‘House locked’. The enquiry was

conducted on 26.10.1998; the copy of proceedings was sent to the last known address and also his permanent address

which returned un-served with the remarks ‘House locked’. After giving sufficient opportunity to the 1^stParty, the

enquiry had to be conducted Ex-parte after following the due process. The Disciplinary Authority imposed penalty of

removal from service vide order dated 24.04.1999 and the 1^st Party was advised of the same vide penalty advise dated

24.04.1999 and the same returned un-delivered. They have not received any appeal against the penalty imposed on him.

He took about 4 years to approach the Conciliatory Authority. When it was submitted to the Conciliatory Authority that

he has not submitted any appeal against the penalty imposed on him; the Conciliatory Authority advised him to submit

an appeal to the Appellate Authority, till date he has not submitted any appeal. Instead he approached the Hon’ble High

Court in W.P. No. 32990/2004. The Hon’ble High Court directed that the Conciliatory Proceedings be concluded at an

early date; he had not submitted Medical Reports or an appeal against the penalty he has not sent any record for having

sent the document to the 2^nd Party Management. He has not exhausted the remedies available to him under The Railway

Servants (Discipline and Appeal) Rules, 1968 for redressal of appeals.

On completion of the pleadings, the fairness of the Domestic Enquiry was tried and adjudicated by holding

“The Domestic Enquiry conducted against the 1^st Party by the 2^ndParty is fair and proper.”

Thereafter 1^st Party gave his evidence on victimization and his unemployment. The 2^ndParty adduced rebuttal

evidence denying his allegation of victimization.

The enquiry was initiated on the allegation that the 1^st Party workman during October 1997 to March 1998

remained absent unauthorisedly continuously from 21.10.1997 without obtaining prior permission/sanction of leave from

his Controlling Officer; the above act of unauthorized absence amounts to highly irregular and serious misconduct and is

in violation of Rule 3(i) (ii) and (iii) of Railway Service Conduct Rules 1966 which enjoin that every Railway Servant

shall at all time (ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a Railway Servant.

During the enquiry on behalf of the prosecution it was deposed that the CSE is absent from duties from

21.10.1997 a report to that extent submitted was produced and his attendance particulars for the relevant period August

1997 to March 1998 evincing his absence is SL/LAP/AB.

Enquiry Officer recorded his finding that the employee remained absent from 21.10.1997 onwards without prior

permission/sanction of the leave. Hence, the charges of unauthorized absence levelled against Sh. A. Willing Dongsten,

Staff No. 072223 vide major penalty charge sheet No. WAP/DAR/AWD/470 dated 27/30 March 1998 are proved beyond

doubt.

5830

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

In his written arguments it is contended that, the 1^st Party served the 2^nd Party continuously for 15 years, there

was no element of moral turpitude in the allegations made against him, no pecuniary loss is caused by his absence to the

Management. It was unjust for the 2^nd Party to advise him to take treatment at Railway Hospital. He had preferred an

appeal dated 20.07.1999 challenging the dismissal order but the appeal was not disposed, the punishment order is harsh

and excessive for the alleged trivial misconduct. From the date of his dismissal he is not gainfully employed. In an

identical case the Administrative Tribunal granted the relief of reinstatement to one of the employee of the 2^nd Party.

In its punishment order dated 24.04.1999 the Disciplinary Authority has referred to the facts that, though the

charge sheet was served on him, he had not submitted his defence; the Enquiry Officer has given him several

opportunities and had advised to attend the enquiry through registered post acknowledgment due; since he did not turn

up to the enquiry, the Enquiry Officer conducted the enquiry Ex-parte. The Disciplinary Authority on further

examination of the oral and documentary evidence recorded its satisfaction that, the workman was provided reasonable

opportunity to defend his case and the charges are proved. While observing that the absence of the employee on the shop

floor hampers smooth functioning of the shop and affects the production, and gives rooms for indiscipline among other

staffs, the punishment of Removal from Railway Service was passed on 24.04.1999 in the same order the Appellant

forum to challenge the penalty was also indicated.

10.

There is no evidence from the records about any Appeal being filed challenging the order of removal from

service. Once the Domestic Enquiry is held fair and proper, the Tribunal cannot receive any further evidence from the

aggrieved workman. The Enquiry Report since based on undisputed allegation of unauthorised absence and no genuine

reasons having been showed for the unauthorised absence there is no impropriety on the part of the Enquiry Officer in

holding that the charges are proved. This Tribunal vested with the powers bestowed by section 11-A of the Industrial

Dispute Act, acts in a different sphere from that of a Administrative Tribunal which is governed by The Administrative

Tribunal Act 1985, in pursuance of Article 323A of the Constitution of India. It is also noteworthy that the 2^nd Party in

the punishment order did not cite any past records of the workman. He had worked continuously for 15 years; at the

least he is entitled for terminal benefits towards his past service to the 2^nd Party. In that view of the matter following:

AWARD

The reference is accepted. while maintaining the termination order dated 24.04.1999 passed by the 2^nd

Party against the 1^st Party workman, the 2^nd Party is directed to release the terminal benefits to the 1^st Party

workman towards his past service to the 2^nd Party within 2 months from the date of publication of the Award in

the Official Gazette.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 17^th July, 2019)

JUSTICE SMT. RATHNAKALA, Presiding Officer

ubZ fnYyh] 1 vxLr] 2019

dk-vk- 1406-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj esllZ

QwM dkjiksjs'ku vkWQ bafM;k 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 &lg&Je U;k;ky; ,ukZdqye ds iapkV ¼lanHkZ la[;k 10/2017½ dks izdkf”kr djrh gS]

tks dsUnzh; ljdkj dks 31-07-2019 dks izkIr gqvk FkkA

[la- ,y&22011@10@2016-vkbZvkj ¼lh,e&II½]

jktsUnz flag] vuqHkkx vf/kdkjh

New Delhi, the 1^st August, 2019

S.O. 1406.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 10/2017) of the Cent.Govt.Indus.Tribunal-cum-Labour Court

Ernakulam as shown in the Annexure, in the industrial dispute between the management of M/s. Food Corporation of

India and their workmen, received by the Central Government on 31.07.2019.

[No. L-22011/10/2016-IR(CM-II)]

RAJENDER SINGH, Section Officer

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5831

ANNEXURE

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

ERNAKULUM

Present: Shri V .Vijaya Kumar, B. Sc, LLM, Presiding Officer

(Monday the 22^nd day of July 2019, 31^st Asadha 1941)

ID No.10 of 2017

Workman

: 1.

The General Secretary

FCI Workers’ Federation (CITU)

C/o FCI Mavelikkara Depot

Alappuzha, Kerala

The General Secretary

FCI Workers’ Association (INTUC)

C/o FCI Mavelikkara Depot

Alappuzha, Kerala

Management

: 1.

The General Manager

Food Corporation of India

Regional Office, Kesavadasapuram

Trivandrum - 695004

The Area Manager

Food Corporation of India

Area Office

Alappuzha(Kerala) - 688012

The Depot Manager

Food Corporation of India

Mavelikkara Depot

Alappuzha(Kerala)

By Adv. Manju Rajan

This case coming up for final hearing on 21.06.2019 and this Tribunal-cum-Labour Court on 22.07.2019 passed the

following.

AWARD

In exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of Industrial

Disputes Act, 1947 (Act 14 of 1947) the Government of India, Ministry of Labour by its order No.L-22011/10/2016-

IR(CM-II) dt.08.03.2017 referred the following dispute for adjudication by this Tribunal.

2. The dispute referred is;

“Whether the action of management of M/s.Food Corporation of India in implementing the wage

revision of the ancillary workers of Mavelikkara Depot, w.e.f. 01/04/2014 only I.E. Rs.377/- as notified by

the public works department, Government of Kerala Bearing no.Go(Ms) No.68/2012/PWD dated

28/09/2012, instead of 01/10/2012 is fair and justified ? If not, what relief the ancillary workers are

entitled to ?”

After receipt of the reference it was numbered as ID 10/2017 of this Tribunal and notice was issued to the

unions and the managements. Union no.2, General Secretary, FCI workers association (INTUC) remained absent after

receipt of summons and hence remained exparte. The matter was being posted for filing claim petition by union no.1

from 19.05.2017. From 12.12.2018 eight adjournments were given to union no.1 to file the claim statement. On many of

these postings the union no.1 remained absent. On 14.06.2019 the Counsel for the union submitted that the union no.1 is

not pursuing the ID. However no memo was filed to that effect by the union. Hence the matter was adjourned to

21.06.2019 for filing memo. The Counsel representing the union no.1 informed that the union is not interested in

pursuing the ID but they are yet to provide the memo to that effect.

5832

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

The matter was being posted for the claim statement of union no.1 and the union no.1 was given direction to

file the claim with no further time orders. They failed to submit the claim statement even after two years. It is felt that the

unions are not interested in pursuing the reference.

Since the unions did not file any claim, the management did not come forward to file any objection.

Hence the claim is dismissed for non-prosecution.

Hence an award is passed holding that there is no merit in the claim of the unions and the same is dismissed.

The award will come into force one month after its publication in the Official Gazette.

Dictated to the Assistant, transcribed and typed by him, corrected and passed by me on this the 22^nd day of July 2019.

V. VIJAYA KUMAR, Presiding Officer

ubZ fnYyh] 1 vxLr] 2019

dk-vk- 1407-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj esllZ

QwM dkjiksjs'ku vkWQ bafM;k 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 &lg&Je U;k;ky; uacj 2] paMhx<+ ds iapkV ¼lanHkZ la[;k 47/2009½ dks izdkf”kr

djrh gS] tks dsUnzh; ljdkj dks 31-07-2019 dks izkIr gqvk FkkA

[la- ,y&22011@67@2009-vkbZvkj ¼lh,e&II½]

jktsUnz flag] vuqHkkx vf/kdkjh

New Delhi, the 1^st August, 2019

S.O. 1407.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 47/2009) of the Cent.Govt.Indus.Tribunal-cum-Labour Court No. 2,

Chandigarh as shown in the Annexure, in the industrial dispute between the management of M/s. Food Corporation of

India and their workmen, received by the Central Government on 31.07.2019.

[No. L-22011/67/2009-IR(CM-II)]

RAJENDER SINGH, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

Present: Sh. A.K. Singh, Presiding Officer

ID No. 47/2009

Registered on:-30.03.2010

Sh. Harnek Singh, S/o Sh. Baktawar Singh, Vill. Ransih Kalan,

Tehsil Nihal Singh Wala, Distt. Moga, Punjab.

…Workman

Versus

The General Manager, Food Corporation of India, Punjab Region, Sector 31, Chandigarh.

The Area Manager, Food Corporation of India, District Office, Faridkot.

…Management

AWARD

Passed on:-12.07.2019

Central Government vide Notification No. L-22011/67/2009-IR(CM-II) Dated 17.03.2010, under clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), has

referred the following Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of FCI in terminating the services of the Shri Harnek Singh

w.e.f. 03.02.2001 is legal and justified? To what relief is workman concerned entitled?”

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5833

Both the parties were served with notices. The workman/claimant filed his statement of claim with the averment

that he had joined the management on 07.12.1995 as an Ancillary Labourer along with 8 other persons and his name was

referred by the FCI workers-union to the Three Member Committee(hereinafter to be referred as “TMC”) along with 8

other persons. Subsequently, management started the direct payment system from 01.01.1999 and while introducing the

above system, all the labourers who were working under the system of TMC were observed as permanent labourers to

the management in the direct payment system. The TMC vide its letter dated 29.06.1999 wrote to the management-

headquarter that claimant along with other 8 workers had not been made the payment of salary since December 1999

along with complete bio-data of the workman along with other workers with their affidavits for the reference and perusal

of the concerned officers of the management. The copy of letter dated 29.06.1999 is Annexure A-1. The management

vide its letter dated 17.08.1999(Annexure A-2) sanctioned to release the arrears of the payment to the workers. Somehow

CBI came to know that the members of the TMC FSD of Food Corporation of India, Nihalsingwala, District Moga while

working as such during the year 1999 abused their official position and submitted false affidavits and recommended the

appointment of 9 Ancillary Labourers, who were otherwise ineligible for appointment and also drew an amount of

Rs.7,53,923/- as the arrears of salary in the name of workman and other labourers and thus, caused a wrongful loss to the

management. Accordingly an FIR was registered by the CBI on 9.1.2001 under relevant Sections of IPC and Section

13(1)d read with 13(2) of the Prevention of Corruption Act, 1988 against Dashan Singh, Jagroop Singh and Malkiat

Singh, who were tried and convicted by the Special Judge, CBI Patiala, Punjab. Management came to know of the above

said FIR registered by the CBI, defendant no.2 without issuing the show cause notice, not affording opportunity of

personal hearing, terminated the services of the workman along with 7 other workers vide impugned order dated

2.2.2001(Annexure A-3) while Charanjit Singh and Megh Raj had been regularized by the defendant. Copy of bio-data

form of the Charanjit Singh has attached as Annexure A-4. Ultimately, workman along with one Iqbal Singh filed Civil

Suit on 18.08.2001, challenging the said impugned order, which was decreed and subsequently, appeal preferred by the

management against the said order is allowed by the learned Civil Judge, Faridkot. Copy of the judgment is attached as

Annexure A-5 and A-6 respectively. The appeal preferred by the workman against the order of the learned Additional

District Judge, Faridkot, had been rejected by the Hon’ble Punjab & Haryana High Court with the liberty that workman

may seek remedy before the appropriate forum in accordance with law. It is further stated that the order of termination is

against the principle of natural justice without issuing any notice and affording personal hearing to the workman. As per

the attendance register, it is clear that the workman has completed 240 days in every preceding calendar year from

December 1995 to December 2000 hence, the provision of Section 25-F and 25-G is also applicable in the case an

employee Naib Singh joined the management on 1.1.1999 and on the induction of the said person intimated his date of

birth wrongly but later on his date of birth was corrected by the management as such, he is also entitled for the parity and

liable to be reinstated. It is therefore, prayed that the impugned order of termination dated 2.2.2001 is liable to be

quashed and workman is liable to be reinstated retrospectively from 2.2.2001 along with all consequential benefits.

Management has filed its written statement, alleging therein that the facts alleged in the claim petition are

wrong and workman along with other labourers were never absorbed by the management. It is further stated that such

labourers were never engaged by the management in any category whatsoever and they were engaged by the contractor

under licence from the Labour Commissioner. Such contractors use to supply the labourer to the management as and

when required as the nature of work of the management was not of regular nature and no regular labourers were required

by the management. Such workers were engaged by the management and their services were dispensed with as and when

desired by the contractors. It is denied that the claimant had been continuously working with the management upto

2.2.2001 or till any date whatsoever. The question of payment of wages etc. pertains to the contractors only as such,

when claimant was never an employee of the management, the question of his termination, issuing of notice or salary of

one month in lieu of notice as required by the provisions of the ID Act has no force. Claimant was never absorbed as a

permanent employee of the management so question of his termination by the management does not arise. Claimant has

not worked for 240 days in any calendar year from December 1995 to February 2001 as he was never employed by the

management. It is therefore, prayed that claim petition may please be disposed of in the interest of justice.

Both the parties have been given opportunity to file evidence. Workman Harnek Singh has submitted his

affidavit as Ex.P1 along with documents Ex.A1 to Ex.A7 and cross-examined by management-counsel. The claimant

Harnek Singh during the course of cross-examination has denied that he worked under the supervision and control of the

contractor. He has admitted that letter of appointment was not issued to him by the management and identity card was

issued by the FCI. He has accepted that his boi-data is Ex.R1, which was given during the course of CBI enquiry. This

witness has denied the suggestion made by the learned counsel of the management that he has given wrong information

through Ex.R1 during the course of CBI enquiry.

Management has submitted affidavit of Rajiv Kumar, Area Manager as Ex.RX along with documents Ex.R1 to

R3 and cross-examined by the workman-counsel. During the course of cross-examination, this witness has accepted that

he is working as Area Manager since 26.09.2015 with the FCI. This witness has accepted that workman was inducted as

ancillary labour on 07.12.1995. He further accepted that the service of the workman was terminated on account of the

giving false information. This witness has also admitted that management has neither issued any notice to the workman

5834

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

nor any enquiry was conducted before terminating the services of the workman. He has accepted that he do not know

whether Charanjit Singh is in service or not.

I have heard the argument of the learned counsel of the workman Sh. Rahul Dev Singh, and counsel of the

management Sh. Santokh Singh, and have carefully gone through the evidence led by both the parties and given

thoughtful consideration raised by the learned counsels during the course of arguments.

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 workwoman 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.

Question remains to be seen whether the workman have proved that he was directly engaged under the

respondent-management in the year 1995 and regularly continued in service till his termination. This fact has to be

proved by the documentary evidence as well as oral evidence. At the very outset, it may be mentioned that there is no

single document to prove that he was directly employed by the respondent-management. In this connection, neither in

plaint nor in the evidence of the workman Harnek Singh filed through affidavit Ex.P1 has not been alleged that he was

appointed by the management in writing through any appointment letter. Undoubtedly, claimant-witness Harnek Singh

has categorically stated in his evidence that he was employed by the management itself not by the contractor. Contrary to

this, management in its written statement as well as affidavit of Rajiv Kumar, Area Manager as Ex.RX as witness has

averred that workman/claimant had never been appointed by the management otherwise he may have employed by the

contractors.

The Hon’ble The Hon’ble Supreme Court after analysing the catena of cases has laid down in Balwant Raj

Saluja Vs. Air India Limited in Civil Appeal No.10266 dated 25.08.2014, two well recognised tests to find out whether

the labours are the contract employees of the principal employer are:-

Whether the principal employer pays the salary instead of contractor and

Whether the principal employer controls and supervise the work of the employees?

The facts regarding the payment of salary by the management or contractor has not been stated in the claim petition of

the workman. In fact, claim petition is totally silent regarding the payment of wages, salary, letter of appointment or

anything likewise. Similarly, workman namely Harnek Singh has not mentioned anything regarding the mode of

payment of wages, salaries etc. in his affidavit. Thus, this basic feature for holding the relationship of employer and

employee is totally lacking not in the pleading but also in the evidence submitted by the workman. In this connection,

learned counsel of the workman has contended that payment of salary was subject to the control and supervision of the

management and virtually it was paid by the management. In this connection, learned counsel has drawn my attention

towards sanction letter dated 17.08.1999 of management Ex.A-2 filed by the workman which reveals that payment of

arrears of 9 workers including workman was released from 1993 upto July 1999 on the basis of the recommendation sent

by three members committee. In sanction letter Ex.A-2 payment of 9 workers(name not mentioned)had been sanctioned

from the year 1993 upto July 1999 on the basis of the recommendation sent by TMC. The position ancillary labourers

and payments made by the management shall be discussed in later part of the judgment and it is suffice to say that I am

not satisfied with the argument of the learned counsel of the workman as nothing is mentioned in the claim petition as

well as affidavit filed by the workman in evidence, alleging therein that he was engaged by the management since 1993.

It is also pertinent to mention that nothing is on record in the form of documentary evidence that workman was directly

employed by the management since 1993. It is surprising that workman as a witness has not stated in his affidavit as well

as claim petition about the amount of salary or wages payable to him by the management. Thus, on this issue, firstly it

can be incurred that there is nothing on record to prove the factum of payment of salary by the management.

Secondly, so far as, the question of controls and supervision is concerned. Workman has not stated that his

work was supervised and controlled by the management. Nothing is brought on record to prove that it is management

who was supervising and controlling the work of claimant. The apex court in the case of International Airport Authority

of India Vs. International Air Cargo Workers Union [209 (13) SCC374] has held as follows:-

“If the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the

directions, supervision and control of the principal employer but that would not make the worker a direct

employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with

the contractor, and the ultimate supervision and control lies with the contractor.

The principal employer only controls and directs the work to be done by a contract labour, when such labour is

assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5835

assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the

contractor, the ultimate supervision and control lies with the contractor as he decides whether the employee will

work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the

worker to work under the principal employer, the worker works under the supervision and control of the principal

employer but that is secondary control. The primary control is with the contractor.”

10.

Thus, the principal enunciated by the Hon’ble Supreme Court clearly establishes that mere supervision of work

is not sufficient to prove the relationship of employer and employee till it is proved that there was a complete control and

supervision. The management control includes the authority of dismissal, taking of disciplinary action and continuity of

service etc. Claim petition filed by the workman is mum on this score and as a witness, he has not mentioned any

specific averment in his affidavit regarding the letter of appointment, authority of dismissal or taking of disciplinary

action by the management. There is nothing on record to prove that it is the management who grants his leave or

authority to take any disciplinary action. Workman has not stated in his claim petition nor in his oral evidence about the

nature of work, supervision by any officer of the management and mode of payment etc. Thus, evidence regarding the

control and supervision by the management is also lacking on the part of the workman to prove the relationship of

employer and employee.

11.

The comprehensive analysis of documentary evidence reveals that workman Harnek Singh name is referred by

the Three Members Committee to the management for payment of salary from December 1999 onwards when direct

payment system was introduced by the management through TMC from 1.1.1999 as per averment of claimant which is

supported by his affidavit filed as evidence. Unfortunately, either of the parties have not averred in their pleadings

regarding the formation of Three Members Committee. But copy of judgment filed by the management relating to the

Criminal Case C.C. No.2 of 17.01.2003 decided on 25.08.2006 against the member of TMC on basis of charge sheet

filed by CBI reveals that this committee is formed through memo of understanding between FCI-management and FCI

workers union wherein it was agreed that FCI would resolve direct payment system through Three Members

Committee(TMC)nominated by the workers union from among Ancillary Labours and further to disburse the same to the

Ancillary Labours. Thus, this was system to exclude the contractors high handedness in payments of labours employed

by them for the work of FCI. This Criminal judgment is relevant to the extent that claimant name is referred by the

members of committee for induction as Ancillary Labour and payment of salary since 1993 on false documents who

were prosecuted and convicted by CBI Court for misappropriation and withdrawals of money to the tune of

Rs.7,53,223/- from FCI Exchequer. Thus, it is clear from the pleadings of the workman and evidence on record that

before December 1999 he was not inducted as Ancillary Labour by the management of FCI and he was working under

the contractors.

12.

Learned counsel of management has drawn my attention towards the fact that workman has taken different

stand regarding his joining as labour either as contract labour or as Ancillary Labour. In claim petition, he has taken

specific stand that he had joined the management from 07.12.1995 while he has submitted an affidavit copy of which

filed by the management as Ex.R1 stating that he was working at FCI FSD, Nihal Singwala Depot as ancillary labour

both under contract system and subsequently under TMC since 1.1.1993. This fact is falsified by his own document

relating to his bio-data Ex.R2 filed by the management witness namely Rajiv Area Manager. Claimant/workman has

mentioned in Ex.R2 his date of birth 15.05.1977, and joining of primary school in year 1983, High School in the year

1988, Government Secondary School in 1993 and ITI Moga in the year 1997 and passing in 1998. Thus, it is very much

clear that he was taking education from 1983 upto 1998 as such working as labour under contract system or direct

payment system since 1993 vindicate the stand taken by the workman regarding joining management in the year 1993 to

December 1995 as is alleged in claim petition. It is settled position of law that if the origin and basis of claim is falsified

then entire structure is bound to collapse.

13.

Learned counsel of the workman would argue that letter dated 29.06.1999 Ex.1 sent by the TMC to

management and letter of termination dated 2.2.2001 is sufficient proof that workman was inducted as ancillary labour in

the management and he was paid wages from 1993 upto December 2000 vide letter dated 17.09.2009 Ex.A2 releasing

the arrears of payment to the workman along with other workers. Critical analysis of above documents do not support the

argument advanced by the learned counsel of the workman. Firstly, letter Ex.A1 is not a letter sent by TMC to

management for inducting workman as Ancillary Worker as much as it is written by Assistant Manager(stg) to Assistant

Manager(Depot) Food Corporation of India for verification of contents of each labour, sent by the Vice President of FCI

workers union, New Delhi. Similarly, sanction letter dated 17.08.1999 Ex.A2 reveals that payment of arrears of 9

workers was released from the year 1993upto July 1999 on the basis of recommendation sent by TMC which is not only

prosecuted but also convicted by CBI Court for withdrawal of amount against those labours who were not in existence at

relevant time.

14.

It is claim of the workman that he was not paid salary from December 1999 upto the termination of his services

by the management vide its letter Ex.A3 dated 2.2.2001. Learned counsel of workman has contended that letter regarding

the dispensing of services of workman is proof that he was rendering his services with management from the year 1999

5836

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

upto 2.2.2001. Learned counsel of management argued that he was not paid single peni from FCI exchequer for relevant

time because he was neither inducted as Ancillary Labour by the management nor his services was taken as such by the

management. In fact there is no documentary evidence on record to prove that recommendation of TMC is accepted by

the FCI-management and salary was released in favour of workman and other 8 workers from December 1991 upto

2.2.2001. It is neither natural or reasonable that workman was serving with management as Ancillary Labour from

December 1999 upto 2.2.2001 without any payment of salary by management. Claimant could not dare to summon any

record regarding his attendance register to prove these facts alleged in claim petition.

15.

In the last limb of the arguments, learned counsel of the claimant/workman has contended that in fact

workman has joined in the month of July 1999 and date is wrongly mentioned of joining on 07.12.1995. It is further

contended that since joining in the month of July 1999, workman has continuously worked with the management till his

retrenchment 2.2.2001. Thus, he has completed more than 240 days in preceding year before his termination from the

service of the management without giving any notice or in lieu of notice one month salary as is prescribed under Section

25-F of the Industrial Disputes Act, 1947. Undoubtedly, the provision of Section 25-F of the Industrial Disputes Act,

1947 is mandatory in nature as is settled by the Hon’ble High Court as well as Supreme Court in catena of cases but the

question which arises before the Tribunal for consideration is whether workman has served with the management and

before his has completed more than 240 days in preceding year from the date of alleged termination. It has been

observed by the Tribunal that workman has poorly failed to prove neither the date of joining from the year 1995 nor

there is any evidence on record in the form of attendance, payments etc. to prove that he worked with the management

even from July 1999 to the date of termination i.e. 2.2.2001. Document Ex.A3 filed by the workman dated 2.2.2001

reveals that District Manager, Food Corporation of India, Faridkot, has sent a letter to the Assistant Manager(D), FCI,

FSD, Nihal Singh Wala, for information that by an order by Regional Office, Punjab, Chandigarh, vide his letter dated

29.01.2001, the services of the claimant/workman along with two others are being disposed with immediately because of

the false information and affidavits filed by the workman and others. This document does not reveal anything regarding

240 days of working of workman with the management before the alleged termination by the management. It appears

that letter send by TMC for induction of the workman along with other workers and relevant documents and affidavits

found to be false and in pursuance of that, the services of the workman as well as 2 workers were dispensed with.

Claimant/workman has alleged in his affidavit for serving 240 days before his termination but mere oral evidence is not

sufficient to prove that he has in fact rendered his services upto 240 days in preceding year of his termination as is

required under Section 25-F of the Industrial Disputes Act, 1947. Thus, on the basis of the evidence on record, workman

has failed to prove that he had worked with the management 240 days or more on preceding year before his termination

as such, neither notice before termination nor one month salary is required to be given to the workman as per provision

of Section 25-F of the Act.

16.

So far as the argument regarding the parity of the workman with Charanjit Singh(ancillary labour)is concerned.

Ex.A4 filed by the claimant/workman reveals that Charanjit Singh had mentioned his age 15.07.1978 and submitted

affidavit with the averment that he was working since 1.1.1993 in his affidavit. According to the learned counsel of the

workman, he has been retained by the management after changing his date of birth and workman is also entitled for his

regularization with the management on the basis of the parity with Charanjit Singh. There is no documentary evidence to

the effect that Charanjit Singh is working with the management. Even if it is presumed that Charanjit Singh is working

with the management even then this Tribunal has got no right to justify the misdeed done by the workman for submitting

false affidavit regarding his engagement with the management in the year 1993 or in the year 1995. It is settled principle

of law that a person cannot take benefit of his own misdeed. Here is a case, in which workman has not only played fraud

with the management in connivance with the T.M.C. but also filed this claim, mentioning his engagement with the

management since 07.12.1995 which is not proved by the evidence. This Tribunal is of the considered opinion that he is

not entitled reinstatement on the basis of the parity with Charanjit Singh without proving that he was ever directly

employed by the management.

17.

Having gone through the above factual scenario and legal proposition, this Tribunal is of the considered

opinion that claimant is not entitled for any relief sought for and reference is liable to be answered in negative against the

workman.

18.

Let copy of the award be sent to the Central Government for publication as required under Section 17 of the

Act.

A. K. SINGH, Presiding Officer

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5837

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New Delhi, the 1^st August, 2019

S.O. 1408.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 47/2015)of the Cent.Govt.Indus.Tribunal-cum-Labour Court No. 2,

Chandigarh as shown in the Annexure, in the industrial dispute between the management of BBMB and their workmen,

received by the Central Government on 23.07.2019.

[No. L-23012/2/2015-IR(CM-II)]

RAJENDER SINGH, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

Present: Sh. A.K. Singh, Presiding Officer

ID No. 47/2015

Registered on:-16.10.2015

Sh. Dharam Pal, F/Man(Retired), H.No.59, Kailash Nagar Ward-18,

Gali No.4, Kurukshetra, Haryana-136118.

…Workman

Versus

The Executive Engineer(O&M), BBMB, Kurukshetra-136118, Haryana.

…Management

AWARD

Passed on:-02.07.2019

Central Government vide Notification No. L-23012/2/2015-IR(CM-II) Dated 30.09.2015, under clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), has

referred the following Industrial dispute for adjudication to this Tribunal:-

“Whether the action of the management of BBMB in terminating the services of the workman

Shri Dharampal and not paying dues are legal and justified? If not, what relief the workman is entitled to

and from which date?”

Both the parties were served with notices. The workman/claimant filed his statement of claim with the averment

that he had joined the services of the BBMB on 01.01.1978 on the post of Oil Cleaner in the office of sub-Station

Engineer 220 KV sub-Station, BBMB, Kurukshetra under Executive Engineer on the O&M Division, BBMB,

Kurukshetra. Due to outstanding service record and very good ACRs as well as technical proficiency, he was promoted

up to the rank of Foreman. He retired from the service of BBMB on 31.07.2012 after attaining the age of superannuation

i.e. 58 years and subsequently appointed on contract for six months basis and extension was allowed as per details given

as under:-

11.09.2012 to 10.03.2013 (for six months)

11.03.2013 to 10.09.2013 (for six months)

26.09.2013 to 25.04.2014 (for six months)

01.05.2014 to 09.07.2014 (for six months)

5838

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

Claimant submitted an application for extension on 09.07.2014 before the Chief Engineer Transmission, BBMB

vide his office letter No.188/PD-3201/APD-4 dated 06.06.2014 but no extension was granted till the date whereas the

Additional Superintending Engineer O&M Division, BBMB, Kurukshetra vide his memo No.929/PF-322 dated

12.12.2014 has admitted in sub para III of para No.7 that the application of Sh. Dharam Pal, Foreman(Retired)for

employment on contractual basis as per new policy is not rejected, which is under consideration.

Management did not pay the salary in spite of the repeated request and demand for the period 1.7.2014 to

9.7.2014 amounting to Rs.5,316/- and overtime for the period January 2013 to December 2013 amounting to Rs.14,200/-

. It is further alleged that Sh. Tej Singh, Special Foreman and Sh. Iqbal Singh, Lineman both are retiree have been

retained on contractual basis but the claimant was deprived from this benefit in spite of the assurance by the management

time and again. The claimant has been cheated by Sh. N.K. Goyal, the then Superintending Engineer granting the

contractual extension in service and taking Rs.20,000/- every time for each extension. Thus, he has taken Rs.80,000/- for

granting four time extension as is mentioned above. It is prayed that amount of Rs.80,000/- taken by Sh. N.K. Goyal be

liquidated and further extension in service on contractual basis may be granted.

Respondent-management has filed its written statement alleging therein that facts alleged in Para 1, 2 and 3 in

the claim petition is admitted being matter of record. It is further alleged that workman was reappointed on contract basis

as Foreman after his retirement as per the terms and conditions of the contract order as per prevailing policy instructions

Annexure R-1. Management has denied the pending dues regarding the period 1.7.2014 to 9.7.2014 and amount of

Rs.25,272/- (out of Rs.2,603/- was deducted as Income Tax) and rest amount of Rs.22,669/- is paid to the workman vide

cheque no.580007 dated 28.07.2014 as per instructions issued by the management from time to time. The salary was

calculated as Rs.22,190/- as per circular instructions vide office order 188/PD-3201.APD-4 dated 6.6.2014 instead of

Rs.25,272/-. The said payment has been duly received by the workman. A copy of the salary bill is appended as

Annexure R-3. The payment of overtime for period 6.1.2013 to 8.7.2014 amounting Rs.21,816/- has been paid to the

claimant vide cheque No.479361 dated 3.8.2015 as per terms and conditions and rates of pay as mentioned in para no.2

of contract of re-employment order dated 10955-58 dated 10.09.2012. The payment of same has been received by the

workman. A copy of the receipt of bank information and docket voucher showing detail of payment in this regard are

appended as Annexure R-4 to R-6. It is also submitted that as per para no.14 of circular instructions dated 6.6.2014

Annexure R-1, the contractual re-employment shall be given as per work exigencies and not in a routine manner. As

such the department is not bound to re-employ the workman and there is no vested right of the workman to get

contractual re-employment with management after his retirement. It is further submitted that the allegations leveled by

the workman has no legs to stand as it is without any basis and proof. It is also submitted that management has not

received any complaint from the workman in this regard as such, the claim petition filed by the workman is liable to be

dismissed.

5. The workman has filed its rejoinder, reiterating the same facts alleged in the claim petition as such, it does not

required to be repeated again.

Both the parties have been given opportunity to file evidence. Workman Dharam Pal has submitted his affidavit

as Ex.AW1/A along with documents Ex.A1 to A10 as a part of his statement and cross-examined by management and

management has examined Sh. Jai Bhagwan, LDC, who filed his affidavit as Ex.MW1/A and has been cross-examined

by the learned counsel of the workman.

I have heard Sh. B.R. Bharti, Ld. Counsel for the workman and Smt. Sumanjit Kaur, Ld. Counsel for the

management and perused the record carefully.

Learned counsel of the workman has contended that management has neither paid the salary from 1.7.2014 to

9.7.2014 amounting to Rs.5,316/- as well as overtime for the period from January 2013 to December 2013 amounting to

Rs.14,200/- without specifying any reason for non-payment of the aforesaid amount. He further contended that

admittedly, the workman has retired from service on 31.07.2012 after attaining the age of superannuation i.e. 58 years

and four time extension were given from 11.09.2012 to 09.07.2014 for a period of six months each as is mentioned in the

claim petition but after the scheme of Bhakra Beas Management Board dated 6.6.2014 service of the workman is not

extended in spite of the submission of the open application by the workman after 9.7.2014 and repeated request by the

workman. It is also contended that services of retired foreman Tej Singh and Lineman Iqbal Singh has been retained on

contractual basis but the claimant/workman has been deprived from this benefit in spite of the assurance given by the

management.

Per contra, learned counsel of the management submitted that workman has paid his salary for the period

1.7.2014 to 9.7.2014 amounting Rs.22,669/- along with salary for the month of June as well as arrears from 6.1.2013 to

8.7.2014 amounting Rs.21,816/- vide cheque no.479361 dated 3.8.2015 through Syndicate Bank, Kurukshetra as such,

workman has already paid all the arrears including salary and overtime alleged in the claim petition. It is further

contended that admittedly, workman was employed after his superannuation on contractual basis and his services were

extended from time to time since 11.9.2012 to 9.7.2014 for six months at a time. It is further contended that after

[Hkkx II—[k.M 3(ii)]

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5839

9.7.2014 workman did not get any extension after the enactment of new policy for contractual employees by the BBMB

dated 6.6.2014.It is further contended that being the contractual employee, the management is not bound to re-employ

the workman and there is no vested right of the workman to get contractual re-employment with management after his

retirement. Thus, according to the learned counsel of the management, workman is not entitled for any relief as prayed in

the claim petition and it is liable to be dismissed.

10.

So far as the argument regarding the payments of salary from 1.7.2014 to 9.7.2014 amounting to Rs.5,316/- is

concerned. Management has filed Annexure R-3 with its written statement which reveals that salary for the month of

6.6.2014 upto 9.7.2014 was calculated vide bill no.532/E amounting to Rs.25,272/- and further deduction of income tax

amounting Rs.2,603/- final payment is calculated to Rs.22,669/-. In this connection, learned counsel of the workman

contended that in fact the alleged amount is a salary for the month of June only and amount of salary for the month of

1.7.2014 to 9.7.2014 has neither been counted nor paid by the management. There is no dispute that management has

paid the salary for the month of June 2014 and it is required by the workman to prove that in calculation-sheet Annexure

R-3 the salary of the remaining month has not been calculated by submitting the statement of salary for the month of

March, April, May 2014. Learned counsel of the workman has drawn my attention towards Annexure R-2 and contended

that answer given by the management through RTI Act, 2005, it is clear that workman has not been given the salary

amounting Rs.5,366/- for the period 1.7.2014 to 9.7.2014 because his application for extension in service on contractual

basis is pending for consideration. It is pertinent to mention that RTI report Annexure A-2 is related to the date

12.12.2014 in which fact regarding the non-payment of salary from 1.7.2014 to 9.7.2014 has been mentioned. Learned

counsel of the management has drawn my attention towards the letter of additional executive engineer Vijay Singh dated

18.08.2015 in which it is specifically mentioned that the workman is paid an amount of Rs.21,816/- regarding the

overtime from 6.7.2016 to 8.7.2014 and he has been paid Rs.3,282/- extra for the month of June, 2014 to 9.7.2016

because of the fact that workman is paid surplus salary for the month of June, in due course of old policy salary is

calculated to Rs.25,272/- while he was entitled only from 1.6.2014 to 5.6.2014 on the basis of the old policy and from

6.6.2014 to 9.7.2014 from new policy of the management. Thus, workman is paid Rs.3,082/- in excess which is liable to

be recovered. Thus, it is crystal clear that workman has been paid for the month of June 2014 salary including the salary

from 1.7.2014 to 9.7.2014 as such, nothing remains to be paid to the workman.

11.

Second argument advanced by the learned counsel of the workman relates to the overtime from January 2013 to

December 2013 amounting Rs.14,200/-. Workman has accepted in his cross-examination that he has received cheque of

Rs.21,816/- in the year 2015 for overtime which relates to the year 2013. During the course of cross-examination,

workman Dharam Pal has submitted that he was not paid for 6.1.2013 to 9.8.2014. It is pertinent to mention that initial

claim was filed for the overtime period running from January 2013 to December 2013 which is admittedly paid to the

workman. Replication/rejoinder filed by the workman, the period of overtime falsely alleged from January 2014 to

December 2014 while his services are not extended from 9.7.2014. Hence, question of overtime from 10.7.2014 to

December 2014 does not arise. Unfortunately workman has filed false affidavit alleging therein that he was not paid the

overtime for the month of January 2014 to December 2014 against the facts alleged in the initial claim petition at para 5.

Learned counsel of the management argued that in fact amount of Rs.21,816/- is the amount of overtime done by the

workman from January 2013 to 8.7.2014 which is paid vide cheque no.47936 dated 3.8.2015. Learned counsel of

management further contended that if the facts alleged in para 5 of the claim petition regarding non-payment of salary

and overtime is calculated it stands 19516/- only while against this amount management has paid Rs.21816/- as overtime

from 6.1.2014 to 8.7.2014 even then workman has filed this claim petition to harass the management and has submitted

false affidavit against the facts alleged in the claim petition itself.

12.

In the last limb of the argument, learned counsel of the workman has contended that services of workman is not

extended even after giving option for adopting the new policy and open letter is filed as Ex.A-2 on the record. This fact

is not disputed that workman has given his option for adopting the new policy and for extension of his services but legal

question arise whether management is duty bound to extend the services of the workman who has serving earlier on

contractual basis after his superannuation. In BBMBs-policy dated 6.6.2014 Annexure R-1, it is specifically mentioned

that contractual employments has been given as per exigencies and not in a routine manner. Thus, if management has no

exigencies for extension of the service of the workman then this remedy cannot be availed by filing industrial dispute. It

is pertinent to mention that workman has already exceeded the age of 62 years by virtue of his date of birth mentioned in

the option letter dated 24.06.2014 while policy Annexure R-1, it is specifically mentioned that the term of contractual

employees will be extended for the expels of 10 years upto the age of 62 years so in the light of the terms and conditions

of the policy, workman is also is not entitled for extension of his contractual service in given circumstances after the

attaining the age of 62 years.

13. Having gone through the above factual and legal scenario, this Tribunal is of the considered opinion that

claimant is not entitled for any relief sought for and reference is liable to be answered in negative against the workman.

Let copy of the award be sent to the Central Government for publication as required under Section 17 of the Act.

A. K. SINGH, Presiding Officer

5840

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

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CORRIGENDUM

New Delhi, the 1^st August, 2019

S.O. 1409.—A reference No.24 of 2008 dated 01.02.2019 received from CGIT No. 2 Mumbai correcting the

Award passed by the CGIT No. 2 Mumbai on 09.02.2015 in Ref. No. 24 of 2008 which was notified by the Government

of India on 06.08.2015, is annexed herewith.

Foot Note: The Principal notification was published in PART- II SECTION- 3, SUB-SECTION (ii) of the

Gazette of India on 15.08.2015 vide notification number S.O. 1615 dated the 06.08.2015.

[No. L-42012/168/2005-IR(CM-II)]

RAJENDER SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : M.V. DESHPANDE, Presiding Officer

REFERENCE NO.CGIT-2/24 of 2008

(Ministry Order No.L-42012/168/2005-IR(CM-II), dt.07/04/2008)

EMPLOYERS IN RELATION TO THE MANAGEMENT OF HINDUSTAN AERONAUTICS LIMITED

The Chief Manager (P & A)

Hindustan Aeronautics Limited

Ojhar Township (PO)

Nasik (MS) 422 207.

AND

THEIR WORKMEN

Nashik Workers Union

CITU Kamgar Bhavan

Khutwad Nagar

Kamathwade

Nashik 422 008.

Mumbai, dated the 1^st February, 2019

CORRIGENDUM TO AWARD DATED 09/02/2015

Mr. R.S. Pande, President, Nashik Workers Union has filed an application stating that there is an error in Award dt.

9/2/2015 passed in Ref.CGIT-2/24 of 2008. The names mentioned in the list of workmen enclosed with the Order of

Reference received from Ministry were inadvertently not mentioned in the award. In addition to this some of the names

[Hkkx II—[k.M 3(ii)]

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5841

as mentioned in the Annexure are incorrect and require to be corrected. Orders were passed on the said application

allowing the same.

In the circumstances, the list enclosed with the order of reference is included in the award and the names of the

workers mentioned in the award dt. 9/2/2005 is corrected as per Annexure B to the application (Ex-287).

List of Casual Labourers

CPM DEPARTMENT

Shri Nana Chagan Thakare

Shri Ramesh Baburao Khade

Shri Narendra Bhimashankar Kande

Shri Vinod Premjibhai Jagtiya

Shri Shridhar Natthou Nagare

Shri Shantaram Raghunath Tribhuwan

Shri Ashok Ambu Balsane

Shri Ramdas Bhagwant Mogare

Shri Atul Laxman Joshi

10.

Shri Murlidhar Sukdeo Kadam

11.

Shri Uttam Daular Dhage

12.

Shri Devanand Sadashiv Salve

13.

Shri Ullhas Devrambhai Kansara

14.

Shri Gautam Shivram Sonwane

15.

Shri Ashok Sampat Chaudhari

16.

Shri Subhas Tanjaji Gaikwad

17.

Shri Dattraya Murlidhar Kanse

18.

Shri Bhimrao Dagdu Nikam

19.

Shri Jagnnath Zabu Koli

20.

Shri Dhananjay Lilidhar Bhattad

21.

Shri Popat Bhoru Mali

22.

Shri Dilip Eknath Pagare

23.

Shri Jalidhar Bajirao Kshirsagar

24.

Shri Jangle Ambu Waghchaure

25.

Shri Bapu Raghunath Lokhande

26.

Shri Daulat Sayaji Jadhav

27.

Shri Bhausaheb Bhaguji Deshmukh

28.

Shri Rajaram Savliram Somase

29.

Shri Avinash Kisan Sonwane

30.

Shri Sanjay Karbhari Shete

31.

Shri Kailash Narayan Ahire

32.

Shri Sahebrao Laxman Rajole

33.

Shri Sanjay Lahanu Chadhauri

34.

Shri Ratan Nana Shinde

35.

Shri Rajendra Raghunath Pawar

36.

Shri Jitendra Kasturichand Kasliwal

37.

Shri Parashram Khandu Borade

38.

Shri Ravi Bhaskar Shinde

39.

Shri Kailash Lahu Bhadange

40.

Shri Vikram Pundlik Pagar

41.

Shri Nivruti Damu Sonwane

5842

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

42.

Shri Sham Kisan Jagzap

43.

Shri Sunil Sampat Salunkhe

44.

Shri Ramesh Umaji Pardhe

45.

Shri Tushar Chintaman Pagare

46.

Shri Bhaskar Fakira Mahajan

47.

Shri Ashok Hiraman Salve

48.

Shri Bharat Sukdeo Kamble

49.

Shri Pravin Madhukar Barve

50.

Shri Indarlal Devji Tungar

51.

Shri Jagdish Appaji Gaikwad

52.

Shri Sandeep Rupchand Man

53.

Shri Deepak Sumatilal Kothari

54.

Shri Vinod Vitthal Kansara

55.

Shri Madan Baburao Salve

56.

Shri Rajesh Vishnupant Borse

57.

Shri Dilip Fakira Navgire

58.

Shri Pavan Rikhabchand Kasliwal

59.

Shri Sanjay Bhaidas Pawar

60.

Shri Avinash Babasaheb Gadkari

61.

Shri Shrikrishna Narendra Pawar

62.

Shri Sijay Shivaji Shelar

63.

Shri Rajesh Ramdas Patulkar

64.

Shri Rafik Babu Shaikh

65.

Shri Prakash Bhaskar Nikam

66.

Shri Mahesh Murlidhar Danekar

67.

Shri Nilesh Pundlik Pawar

68.

Shri Gotiram Shivaji Katle

69.

Shri Deepak V. Jadhav

70.

Smt. Reena Chattarji

71.

Smt. Laxmivai Kamalakar Kasar

72.

Shri Madanlal Madhukar Shinde

73.

Smt. Vasanti Ramubhai Chaudhari

74.

Smt. Manorama Trambak Thakare

75.

Smt. Manisha Devdas Ikhankar

76.

Smt. Shaila Sarvottam Dharmadk

77.

Smt. Shailaja Bhaudnath Sonar

78.

Smt. Asha Niurutti Pagare

79.

Smt. Shamla Ramkrushna Dhawale

80.

Smt. Vimal Vasudev Bharmbe

81.

Smt. Shaile Balnath Jadhav

82.

Smt. Suman Suresh Patil

83.

Smt. Vijaya Sasantrao Kumawat

84.

Shri Kishore Manohar Chaudhari

85.

Shri Vilas Niurutti Jadhav

86.

Smt. Sharda Dwarkadas Pathak

87.

Shri Balu Gatlaj Burade

88.

Shri Jairam Laxman Lahange

89.

Shri Ganpat Popat Bendkule

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5843

90.

Shri Chandrakant Visram Salve

91.

Shri Laximan Dadulal Bhujwa

92.

Shri Punja Vithoba Dighe

93.

Shri Bhaskar Vajira Dhangale

94.

Shri Shivaji Narayan Pargaonkar

95.

Shri Ramdas Rajaram Deore

96.

Shri Murlidhar Baburao Adhav

97.

Shri Bhaskar Ramkrishna Hiralkar

98.

Shri Arjun Rama Pardhe

99.

Shri Yeshwant Niurutti Dhikale

100.

Shri Manohar Sampat Chaudhari

101.

Shri Sunil Shankar Gangurde

List of Casual Labourers

CPO DEPARTMENT

Shri Prabhakar Ramchandra Katkade

Shri Balusaheb Damodhar Atre

Shri Bhagwat Damodhar Jadhav

Shri Balu Pandurang Jadhav

Shri Jalam Hari Chavan

Shri Balu Tukaram Tidke

Shri Bhaskar Namdeo Ahire

Shri Ramesh Kashinath Musale

Shri Suryabhan Trambak Mokal

10.

Shri Arun Nana Nirbhavane

11.

Shri Nana Onkar Ahire

12.

Shri Shivaji Vishwanath Kothawade

13.

Shri Sopan Kumar Das

14.

Shri Nimba Keshav Nerkar

15.

Shri Ramesh Dagu Kshirsagar

16.

Shri Gajanan Pandurang Zaparde

17.

Shri Chandrakant Hiraman Sangole

18.

Mrs. Sudha Krishnarao Mule

19.

Shri Natthu Tukaram Dhikale

20.

Shri Sanjay Pundlik Ganore

21.

Shri Pandurang Gopal Yeole

22.

Shri K.D. Khelukar

23.

Shri Samadhan Deoram Dhangde

24.

Shri Ravindra Dhaji Patil

25.

Shri Bhima Kachru Bhadake

26.

Shri Namdeo Bhaurao Dhole

27.

Shri Viushnu Baburao Adhav

28.

Shri Balu Baburao Adhav

29.

Shri Mohan S. Shirsath

30.

Shri Ashok Ramrao Belekar

31.

Shri Vilas Sukdeo Gangurde

32.

Shri Ansar Sadik Shaikh

5844

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

33.

Shri Ahok Madhu Nikaji

34.

Smt. Lilivati Manohar Kor

List of Casual Labourers

TRANSPORT DEPARTMENT : DRIVERS

Shri Anand Sadashiv Chandramore

Shri Datatray Daoram Zomam

Shri Bakerao Bapu Zoman

Shri Manik Raghunah Boraste

Shri Nandkumar Ramdas Goverdhane

Shri Sakhahari Mahadu Sonwane

Shri Roshankhan Magdunkhan Mulla

Shri Maruti Ramchandra Thorat

Shri Chandrakant Trambak Shirsagar

10.

Shri Shashikant Vasantrao Deshpande

11.

Shri Uday Manikrao Tanpure

12.

Shri Tanaji Gorakh Kadam

13.

Shri Vijay Pundlik Pagare

14.

Shri Kashinath Laxman Patil

15.

Shri Ambadas Vitthal Chavan

16.

Shri Yuvraj Bhimrao Mokashi

17.

Shri Tanaji Vithoba Dhikale

18.

Shri Kailash Sampat Gangurde

19.

Shri Vinod Madhavrao Deogire

20.

Shri Harun Hasan Shaikh

21.

Shri Kailash Karbhari Suruse

22.

Shri Harvindersingh Sukdeo Shiddu

23.

Shri Ajitsingh Tejsingh Chavan

24.

Shri Balu Jagannath Dhilake

25.

Shri Padamkar Khanderao Deshmuh

26.

Shri Rajjak Sardar Sayyad

27.

Shri Ravindersingh Harcharan Malhotra

28.

Shri Hemant Shivram Kulkarni

29.

Shri Sharad Dattatray Dhatrak

30.

Shri Dipak Pundik Kumbharde

31.

Shri Nivruti Jairam Shirsath

32.

Shri Sopan Chandu Gaikwad

33.

Shri Dhondurama Bhangare

34.

Shri Rangnath Hari Marade

35.

Shri Antu Bapu Jagtap

36.

Shri Bhagwan Jagnnath More

37.

Shri Ramesh Punja Kamble

38.

Shri Sunil Baburao Ubale

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5845

List of Casual Labourers

MEDICAL SERVICES (CMS-130)

Shri Eknath Kachru Shardul

Shri Laxman Sitaram Hire

Shri Sakharam K. Ingle

Shri Jankiram Nilu Fule

Shri Popat Sakharam Sonwane

Shri Navnath Chintaman Jagtap

Shri Chandrabhan Gumaji Solse

Shri Raju Balvant Gangurde

Shri Dinkar Jagnnath Ahire

10.

Shri Suresh Dudhaji Salve

11.

Shri Dattu Shankar Jondhale

12.

Shri Shivaji Bhagwat Ahire

13.

Shri Ashok Nana Sonwane

14.

Shri Chintaman Dharmji Khade

15.

Shri Nana Sampat Shewale

16.

Shri Gopal Kaniyalal Chaudhuri

17.

Shri Madhav Nivruti Shirsath

18.

Shri Prakash Gangadhar Eknath

19.

Shri Dhyansehwar Laxman Bhadane

20.

Shri Suresh Nana Patekar

21.

Shri Anand Bhaskar Bagul

22.

Shri Shivaji Dashrath Kakipure

23.

Shri Gautam Jagnnath Nikam

24.

Shri Shantaram Dagu Gadgil

25.

Shri Kailash K. Khare

26.

Shri Arun Murlidhar Shirsath

27.

Shri Vijay Rajaram Gaikwad

28.

Smt. Kusumbai Mangu Pawar

29.

Smt. Hirabai Popat Khare

30.

Smt. Sugandabai Madhukar Jadhav

31.

Smt. Lahanubai Nana Sonwane

32.

Smt. Ashabai Kanaiyalal Piraswany

33.

Smt. Bhikubai Kacharu Kambale

34.

Smt. Taibai Eknath Gangurde

35.

Smt. P. Kakade

36.

Smt. Jijabai Damodhar Shirsath

37.

Smt. Tarabai Dadu Sonwane

38.

Smt. Sakira Begam Hamidabai

39.

Smt. Minabai Gopal Chadhuri

40.

Smt. Shamabai Konaiyalal Chadhuri

41.

Smt. Sunita R. Paranjape

42.

Smt. Muklabai Raju Gangurde

43.

Smt. Narmadabi Bhiku Gutane

44.

Smt. Kusumbai Ramdas Jadhav

45.

Smt. Ambabai Madhukar Hire

5846

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

46.

Smt. Vimalbai Kisan Gangurde

47.

Smt. Suman Sudam Dinkar

48.

Smt. Prarnilabai Prabhakar Gangurde

49.

Smt. Maiatibai Bhatkulkar

50.

Smt. Janabai Yadav

51.

Smt. Lilabai Shivram Gangurde

52.

Smt. Vijayabai Hiram Ahire

53.

Shri S.S. Gaikwad

54.

Shri S.A. Gaware

55.

Shri P.R. Patil

56.

Shri K.M. Malik

57.

Shri Shantaram B. Nehare

58.

Shri Iswar P. Dive

59.

Smt. S.D. Burade

List of Casual Labourers

(WORKS & SERVICES DEPARTMENT)/ FW/675

SANITATION WORK IN FACTORY AREA

Shri Ramesh Rajaram Surudkar

Shri Dinanath Atmaram Patil

Shri Ashok Hari Gangurde

Shri Dagu Damu Ahire

Shri Bhaskar Sadasiv Ahire

Shri Bharat Kahiram Nikam

Shri Dattu Supdu Sonwane

Shri Sanjay Karbhari Mhaishdhune

Shri Sukdeo Kisan Divse

10.

Shri Antu Kisan Nikam

11.

Shri Motiram Rambhaji Rokde

12.

Shri Ashok Dashrath Pawar

13.

Shri Dilip Shrawan Nikam

14.

Shri Popat Daguji Nikam

15.

Shri Lahanu Baburao Khare

16.

Shri Avinash Madhukar Nirbhavane

17.

Shri Pandit Laxman Kedare

18.

Shri Baburao Dagdu Gangurde

19.

Shri Ramgir Bavgir Gosavi

20.

Shri Bhagwat Rajaram Sansare

21.

Shri Subhash Vithal Kedare

22.

Shri Subhash Bapurao Karanajakar

23.

Shri Vilas Bhimaji Pagare

24.

Shri Nivruti Kacharu Shardul

25.

Shri Vilas Baburao Jadhav

26.

Shri Balu Waman Jadhav

27.

Shri Balu Bhimrao Ahire

28.

Shri Eknath Tulsiram Gangurde

29.

Shri Nana Pandhil Shinde

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5847

30.

Shri Sitaram Kashiram Nikam

31.

Shri Sampat Rakhamaji Nikam

32.

Shri Uttam Tulsiram Gangurde

33.

Shri Gulab Shankar Gangurde

34.

Shri Anand Kalu Sonwane

35.

Shri Dinkar Punjali Tuplondhe

36.

Shri Nathu Balwant Pagare

37.

Shri Sudhakar Shankar Ubale

38.

Shri Kisan Nimbaji Jadhav

39.

Shri Yuvraj Supdu Sardar

40.

Shri Kisan Laxman Hatge

41.

Shri Achutrao Shankar Joshi

42.

Shri Babu Damaji Gawali

43.

Shri Eknath Madhav Ahire

44.

Shri Anna Gangadhar Jadhav

45.

Shri Ramesh Genu Gangurde

46.

Shri Gopichand Bajirao Mahajan

47.

Shri Dilip Ganpat Chaudhari

48.

Shri Ismail Gulab Shaikh

49.

Shri Ramesh Shivaji Sutar

50.

Shri Suresh Shridhar Pawar

51.

Shri Hiramn Mahadu Jondhale

52.

Shri Ramesh Dashrath Sonwane

53.

Shri Ramrao Trambak Argade

54.

Shri Ganesh Honaji Dambale

55.

Shri Motiram Shridhar Pawar

56.

Shri Sanjay Popat Nikale

57.

Shri Mujid Canisaheb Pathan

58.

Shri Sanjay Jibhau Garud

59.

Shri Ashok Waman Balsane

60.

Shri Vishwanath Shankar Zoman

61.

Shri Balu Kashinath Dambale

62.

Shri Shivaji Damu Gotarne

63.

Shri Ashok Dhondiram Kadale

64.

Shri Malhari Namdeo Kadale

65.

Shri Uttam Punja Jadhav

66.

Shri Ramesh Trambak Thorat

67.

Shri Dadaji Mahandu Panpatil

68.

Shri Nandu Nmidash Torne

69.

Shri Irshad Ahmad Shaikh

70.

Shri Madhukar Shankar Dhilake

71.

Shri Sahebrao Tukaram Wavdhane

72.

Shri Balu Devram Ahire

73.

Shri Motiram Jagannath Chavan

74.

Shri Dilip Waman Pagare

75.

Shri Sunil Daneshwar Sasane

76.

Shri Mohan Kacharu Bachate

77.

Shri Tanaji Punklik Kale

5848

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

78.

Shri Vijay Shankar Gaikwad

79.

Shri Raju Manikrao Naik

80.

Shri Bhausaheb N. Ugade

81.

Shri Ashok Balwant Mahale

82.

Shri Vijaynath Baburao Pote

83.

Shri Balu Punja Nirbhavane

84.

Shri Sunil Jagannath Wagh

85.

Shri Sambhaji Nana Sonwane

86.

Shri Rathilal Jagannath Thade

87.

Shri Bavsaheb P. Kedare

88.

Shri Dilip Chindhu Jondhale

89.

Shri Ashok B. Lokhande

90.

Shri Sanjay Kisan Pillye

91.

Shri Ajay Ellaiya Pedraj

92.

Shri Narayan Baban Bairagi

93.

Shri Balu Gopala Kadam

94.

Shri Chintaman T. Korde

List of Casual Labourers

WORKERS & SERVICES DEPARTMENT (SANITATION WORK IN TOWNSHIP)

Smt. Gothule Rambhabai Bhikaji

Smt. Jadhav Mirabai Jayawant

Smt. Gaikwad Sarubai Rajaram

Shri Sonwane Dada Ramdas

Shri Salve Sunil Eknath

Shri Salve Chandrakant Punja

Shri Gangurde Shivram Jabaji

Shri Pagare Suryabhan Bhimaji

Shri Garud Dadu Shankar

10.

Shri Nikam Jalal Kashinath

11.

Shri Shardul Dinkar Kachru

12.

Shri Hire Ashok Savliram

13.

Shri Mahale Murlidhar Sursingh

14.

Shri Gothule Waman Bhika

15.

Shri Jadhav Waman Barku

16.

Shri Nikam Ramchandra Kisan

17.

Shri Hire Dagu Kisan

18.

Smt. Bhadange Kaushabai Rangnath

19.

Smt. Ahire Parvatabai JAgan

20.

Smt. Sonwane Dwarkabai Totaram

21.

Smt. Pote Anjanbai Fakira

22.

Smt. Nikam Ranjanabai Bharat

23.

Smt. Jadhav Vimalbai Prabhakar

24.

Smt. Nikale Latabai Bhagwan

25.

Smt. Jagtap Sundrabai Ghaman

26.

Smt. Gangurde Sonubai Balwant

27.

Smt. Kedare Shantabai Kabhu

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5849

28.

Smt. Jagtap Banubai Banshi

29.

Smt. Ahire Tarabai Bhimrao

30.

Smt. DivseATikabai Kisan

31.

Smt. Kardak Hirabi Popat

32.

Smt. Shardul Lilabai Dinkar

33.

Smt. Jadhav Sakhubai Kashinath

34.

Smt. Jadhav Babanbai Balkrishna

35.

Smt. Kedare Nadarbai Vitthal

36.

Shri Diama Culchand Mashara

37.

Shri Panpatil Vijay Thakaji

38.

Shri Kadpane Nanaji Waman

39.

Shri Jadhav Shashikant Khanderao

40.

Shri Mehar Jivenshingh

41.

Shri Gosavi Satish Dattaray

42.

Smt. Pardeshi Shankutala Prakash

List of Casual Labourers

TOOL CRIB SECTION TP/615

Shri G.M. Pagare

Shri L.B. Watle

Shri A.K.Sable

Shri H.H. Maule

Shri C.G. Tope

Shri R.B. Bagul

Shri R.N. Bhandari

Shri R.D. Bherad

Shri S.K. Fasale

10.

Shri I.J. Chimankar

List of Casual Labourers

MAINTENANCE OF ST PLANT & SUMPWELL IN TOWNSHIP

Shri Sansare Gangadhar Rajaram

Shri Salve Dayaldas Punja

Shri Khaire Nandu Karbhari

Shri Dhongade Sahebrao Punja

Shri Avhad Tulshram Tukaram

Shri Nikumbha Krishna Ramchandra

Shri Somase Shivaji Savliram

Shri Mahire Kedu Tukaram

Shri Aher Sudhakar Fakira

10.

Shri Seriya Ramkishna Timlu

11.

Shri Jadhav Prabhakar Yadav

12.

Shri Chavan Santaram Deulal

5850

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

List of Casual Labourers

Electrical Department (Township) FNE/665

Shri Sajid D. Shaikh

Dilip Ramdas jadhav

Abid Javed Shaikh

Shekhar Bharat Pawar

Yusuf Hanif Ansari

Shashikant Narayan Bhjalerao

Dnayaneshwar Ramdas Bhadke

Manoj Shivaji Kadam

Vikas Saveliram Pagare

10.

Sunil Ramchandra Jagtap

11.

Bajirao Dagadu Nikam

12.

Baban Mahadeo Gaikwad

Electrical Department (Factory) FNE/665

13.

Shri Dattu Hari Gangurde

14.

Sanjay Dhokale

Works & Services Depatt. ST Plant/ Slumpwell) FWT/675

15.

Shri Mahendra Sambhaji Jadhav

16.

Arun Shamrao Bagul

17.

Deepak Shankar Gulve

Works & Services Department (Zone-A) FWT/675

18.

Shri Bhagwan Dashrath Ahre

19.

Jagdish Gokul Surywanshi

20.

Ashik Bhaskar Gangurde

21.

Ashok Raghunath Lokhande

22.

Vasant Sakharam Jadhav

23.

Shrawan Namdeo Ahire

24.

Rajendra Popat Kardak

25.

Rajendra Vishnu Shankhpal

Works & Services Department (Zone-B) FWT/675

26.

Shri Ravindra Kachru Ahire

27.

Bhagwan Ramchandra Karate

28.

Dinkar Dada Parkhe

29.

Manik Rambhau Lokhande

30.

Ramesh Waman Shinde

31.

Prakash Jivanna Badgare

32.

Ashok Radhu Pandav

33.

Sure Murlidhar Jadhav

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5851

34.

Pramod Vasant Naik

35.

Santosh Pandurang Lokhande

36.

Ajay Pandurang Padangale

37.

Laxman Dhondu Mahale

38.

Somnath laxman More

Works & Services Department- FW/675

Maintenance & Operation of Water Supply Valves in Factory Area

39.

Shri Devidas Uttam Shirsath

40.

Ambadas Dashrath Jadhav

41.

Subhash Somaru Yadav

The names of the workmen against their serial numbers mentioned in the award dated 9/2/2015 may be read as

mentioned in ‘correct name’ column.

List of Workmen

Stores Department

Sr. no. as per award

Name as per award

Correct name

Vangurde Vasant Popat

Ganurde Vasant Popat

Survanshi Arun Popat

Syryavanshi Arun Popat

Nevkar Bharat Kishore

Nerkar Bharat Kishore

Kadam Dhatera Ganpat

Kadam Dattatraya Ganpat

Sonwane Bhausaheb Bajunath

Sonawane Bhaushet Bajunath

Bhandande Nivrutti Lohu

Bhadange Nivruti Lahanu

Nikam Bal Srishna

Nikam Bala Krishna

Kale Haricharnara Shankar

Kale Harishchandra Shankar

Loknar Bharat Bhaugi

Loknar Bharat Bhauji

Kshirasagar Bhaskar Chabu

Kshirsagar Bhaskar Chhabu

Dhore Badu Shankar

Dhotre Shankar Balasaheb

Lonkar Anil Dhanaji

Lonkar Balasaheb Dhanaji

Muradhanar Uttam Waman

Muradnar Uttam Waman

Sonwane Arun Kishan

Sonawane Arun Kisan

Rumaje Shantaram Ghagu

Rumane Shantaram D.

Kongari Vincent Marthin

Kongari Vicent Martin

More Pandurang Khanderan

More Pandurang Khanderao

Gaikwad Babu Sadgipan

Gaikwad Babu Sabhipan

Gagjap Dilip Nivaruti

Jagzap Dilip Niruuti

Tamble Dilip Popat

Tambe Dilip Popat

Chaure Naran Kashinath

Choure Narayan Kashinath

101

Battase Ashok Shankar

Battise Ashok Shankar

102

Loknar Balu Dhauji

Lokhande Balkrishna Baburao

5852

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

103

Gumbade Somnath Kashinath

Gumbade Somnath Kisan

106

Rajkar Chandrakant Lala

Raikar Chandrant Lala

122

Gaikwad Chandrakant Gandha

Gaikwad Chandrakant Gedaji

124

Thair Shaikh Abadi

Thair Shaikh Abadin

125

Avhad Santosh

Avad Santosh

126

Wani Shehlala Arun

Wani Snehalata Arun

127

Jain Mahendrakumar Harkchand

132

Jagtap Bharat Murlidhar

Jagzap Bharat Murlidhar

134

Gasavi Atmaram Ashruba

Gosavi Atamaram Ashruba

141

Jagtap Kailash Guman

Jagtap Kailas Guman

144

Barve Bandhu Ramchandra

Barve Balu Ramchandra

147

Lokhande Dilip Madhav

Lokhande Dilip Mahadev

148

Salve Sidharth Sadhu

Salave Sidharth Sandhu

Horticulture Department

Sr. No. as per award

Name as per award

Correct name

Chindu Dhondiram Bhongade

Ramdas Dhondiram Dhongade

Dinkar Monhram Potinde

Dinkar Motiram Potinde

Ravsaheb Rangnath Chandore

Ravsaheb Rangnath Chandre

Bhima Laxman Bendkule

Bhimrao Laxaman Bendkule

Anna Bhikaji Shardul

Ananda Bhikaji Shardul

Jagnnath Bhimaji Kore

Jagannath Bhimaji More

Ramdas Popat Watate

Ramdas Popat Watane

Zunabai Laxman Bhavan

Zunyabai Laxaman Bhavar

Sankar Murlidhar Ahre

Shankar Murlidhar Aher

Ramji Dhanaji Lonkar

Ramrao Dhanaji Loknar

Rakesh Narayan Vidhate

Ramchandra Narayan Vidhate

Date: 01.02.2019

M. V. DESHPANDE, Presiding Officer

ubZ fnYyh] 2 vxLr] 2019

dk- vk- 1410-&vkS|ksfxd fookn vf/kfu;e 1947 ¼a1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad

vkQ cMkSnk ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj

vkS|ksfxd vf/kdj.k@Je U;k;ky;] dksydRrk ds iapkV ¼lanHkZ la- 60@2014½ dks izdkf”kr djrh gS tks dsUnzh; ljdkj dks

02-08- 2019 dks izkIr gqvk FkkA

[la- ,y&12011@53@2014&vkbZvkj ¼ch& II½]

lhek caly] vuqHkkx vf/kdkjh

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5853

New Delhi, the 2^nd August, 2019

S.O. 1410.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 60/2014) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the industrial dispute between the management of Bank of Baroda, and

their workmen, received by the Central Government on 02.08.2019.

[No. L-12011/53/2014-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 60 of 2014

Parties: Employers in relation to the management of Bank of Baroda

AND

Their workmen

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Management

None

On behalf of the Workmen

None

Dated: 23^rd July, 2019

Industry: Banking

AWARD

By Order No. L-12011/53/2014-IR(B-II) dated 5/7.08.2014 the Government of India, Ministry of Labour in

exercise of its powers under Section 10(1)(d) and (2A) referred the following dispute to this Tribunal for adjudication:

(1)“Whether the action of the management of Bank of Baroda by not considering the demand of Union for

regularization of 18 no. of personal drivers as Appexure-1(B) with all consequential benefits as available as per service

condition of Bank employees in Banking Industry is legal and/or justified?

(2) Whether the action of the management of Bank of Baroda by not considering the demand of Union for equal

wages for equal work done by personal drivers as compared to regular drivers or not extending minimum wages fixed by

Central Govt. from time to time to personal drivers is legal and/or justified? What relief the workmen are entitled?”

ANNEXURE – 1(B)

Drivers to Executives

Sl. No. Name of the Drivers

Car No.

Name of the

Driving since

Executives whose

car is driven

Anand Das

WB 06A 9454

GM (Now ML Jain)

October, 1996

Md. Akram

WB 06H 1827

DGM (Now SK

October, 2008

Singharoy)

Bimal Das

WB 06A 1344

DGM KMR (Now

February, 2010

S K Saha)

Subhus Das

WB 06B 9639

DGM, WB (Now

April, 2005

LS Jha)

Sujit Dey

WB 06A 8261

AGM, WB

November, 2001

(S Ghatak)

5854

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

Krishna Ram

WB 06A 3222

AGM, KMR (Now

31.12.2009

PK Roy)

Raju Biswas

WB 42F 8485

KRISHI VAN (W.B.)

October, 2005

Biswajit Mondal

WB 02AA 7973

AGM, WB (Now

August, 2012

N.C. Mal)

Nishok Kr. Singh

WB 02AA 7982

AGM, EZO (Now

August, 2012

T K Das)

10.

Ramanand Das

AGM, Brab Rd.

Sept. 2008

11.

Santosh Ram

WB 06AA 7992

AGM, Dharamtalla

Aug. 2012

12.

Rajesh Ram

WB 06D 9878

DGM, ZIC (Now

January, 2012

A. Mishra)

13.

Rabi Muniyan

WB 02AA 7993

AGM, RBO (Mr.

August, 2012

Amsare)

14.

Gautaim Palit

WB 06E 2194

AGM, Camac St.

Sept. 2011

(Mr. Utpal)

15.

Sunil

AGM, India Exch.

Sept. 1983

(Now G.B. Panda)

16.

Sujit Nage

AGM, IBB, Wholesale

Sept. 1988

17.

Subrato Pattro

WB 06D 5453

AGM, I. Exch.

August, 2010

(Now Mr. Peter)

18.

Birendra Ram

WB 02AA 7983

AGM, Mid-Corp.

August, 2012

(Mr. A.S. Ghosh)

When the case was taken up for hearing 18.07.2019, none appeared for the parties concerned. It transpires from

record that this reference is pending in this Tribunal since 25.08.2014 and both the parties entered appearance through

their respective authorized representatives and the union filed its statement of claim and the management also filed its

written statement, but inspite of all the opportunities, the union has not filed its rejoinder. Both the parties are found

absent since 18.09.2018, i.e., on five consecutive dates.

On consideration of the facts and circumstances of the case, it appears that the union has no grievance at present

in respect of 18 personal drivers as mentioned in the order of reference. Therefore, there exists no dispute for

adjudication.

Therefore, the reference is disposed of accordingly.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

Dated, Kolkata,

The 23^rd July, 2019

ubZ fnYyh] 2 vxLr] 2019

dk- vk- 1411-&vkS|ksfxd fookn vf/kfu;e 1947 ¼a1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

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ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] dksydRrk ds iapkV ¼lanHkZ la- 31@2013½ dks izdkf”kr djrh gS tks dsUnzh;

ljdkj dks 02-08- 2019 dks izkIr gqvk FkkA

[la- ,y&12011@47@2013&vkbZvkj ¼ch&II½]

lhek caly] vuqHkkx vf/kdkjh

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5855

New Delhi, the 2^nd August, 2019

S.O. 1411.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 31/2013) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the industrial dispute between the management of Corporation Bank, and

their workmen, received by the Central Government on 02.08.2019.

[No. L-12011/47/2013-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 31 of 2013

Parties: Employers in relation to the management of Corporation Bank, Zonal Office

AND

Their workmen

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Management

None

On behalf of the Workmen

None

Dated: 23^rd July, 2019

Industry: Banking

AWARD

By Order No. L-12011/47/2013-IR(B-II) dated 10.07.2013 and corrigendum of even number dated 02.07.2014

the Government of India, Ministry of Labour in exercise of its powers under Section 10(1)(d) and (2A) referred the

following dispute to this Tribunal for adjudication:

“Whether the action of the management of Corporation Bank is justified in denying the demand over

regularization of service of Shri Pintu Das Part-time Sweeper at Section V, Salt Lake Branch, Kolkata is legal and

justified? What relief the workman is entitled?”

When the case was taken up for hearing 22.05.2019, none appeared for the parties concerned. It transpires from

record that this reference is pending in this Tribunal since 22.07.2013 and both the parties entered appearance through

their respective authorized representatives and the union filed its statement of claim and the management also filed its

written statement, but inspite of all the opportunities, the union has not filed its rejoinder. Both the parties are found

absent since 08.05.2018, i.e., on six consecutive dates.

On consideration of the facts and circumstances of the case, it appears that the union has no grievance at present

in respect of regularization of Shri Pintu Das, Part-time Sweeper at Section V, Salt Lake Branch, Kolkata as mentioned in

the order of reference. Therefore, there exists no dispute for adjudication.

Therefore, the reference is disposed of accordingly.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

Dated, Kolkata,

The 23^rd July, 2019

ubZ fnYyh] 2 vxLr] 2019

dk- vk- 1412-&vkS|ksfxd fookn vf/kfu;e 1947 ¼a1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dksphu

iksVZ VªLV ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj

vkS|ksfxd vf/kdj.k@Je U;k;ky;] bZjukdqye ds iapkV ¼lanHkZ la- 39@2014½ dks izdkf”kr djrh gS tks dsUnzh; ljdkj dks

02-08- 2019 dks izkIr gqvk FkkA

[la- ,y&35011@01@2014&vkbZvkj ¼ch& II½]

lhek caly] vuqHkkx vf/kdkjh

5856

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

New Delhi, the 2^nd August, 2019

S.O. 1412.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 39/2014) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Ernakulam as shown in the Annexure, in the industrial dispute between the management of Cochin Port Trust, and

their workmen, received by the Central Government on 02.08.2019.

[No. L-35011/01/2014-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

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

ERNAKULUM

Present: Shri. V .Vijaya Kumar, B. Sc, LLM, Presiding Officer

(Friday the 19^th day of July 2019, 28^th Asadha 1941)

ID No. 39 of 2014

Workman

The General Secretary

Cochin Port Staff Association

Wellingdon Island

Cochin

By Adv. A. V. Xavier

Management

The Chairman

Cochin Port Trust

Wellingdon Island

Cochin

By M/s.B.S.Krishnan Associates

This case coming up for final hearing on 11.06.2019 and this Tribunal-cum-Labour Court on 19.07.2019 passed the

following.

AWARD

In exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of Industrial

Disputes Act, 1947 (Act 14 of 1947) the Government of India, Ministry of Labour by its order No.L-35011/01/2014-

IR(B-II) dt.13.06.2014 referred the following dispute for adjudication by this Tribunal.

2. The dispute referred is;

“1. Whether the action of the management of Cochin Port Trust in withdrawing the honorarium @7.5%

of basic pay paid to 20 member of employees of Power House Section of Electrical Section from October

2011 without issuing 21 days notice u/s 9A of the ID Act is justified? 2. Whether the action of the

management of Cochin Port Trust in stopping the honorarium to the employees during the pendency of

conciliation proceedings amounts to violation of Section 33 of ID Act? 3. What relief the workmen are

entitled to?”

The Government of India Ministry of Labour vide its Corrigendum dt.25.08.2015 partially modified the terms of

reference as follows:

1. “Whether the action of the management of Cochin Port Trust in withdrawing the honorarium @7.5%

of basic pay paid to 20 Electrical Staff at Power House Station and @3% of basic pay to Electrical Staff

at CFH sub-station from October 2011 without issuing 21 days notice under ID Act is justified?”

2. “Whether the action of the management of Cochin Port Trust in stopping the honorarium to the

employees during the pendency of conciliation proceedings amounts to violation of Section 33 of ID

Act?”

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5857

3. “What relief the workmen are entitled to?”

3. On receipt of the adjudication reference, notice was issued to both the parties. The union filed their claim statement.

According to the union, in the year 2004 3MVA DG set was purchased and installed by management for the Electrical

division of the Mechanical Engineering Department. When the trade unions demanded for the recruitment of new staff

for the operation of the new DG set the management came forward to pay additional benefit of honorarium to the

employees of Power House section of the Electrical division for operating the DG set. The order to this effect was

issued on 13.09.2014, where it is specifically mentioned that the honorarium will be withdrawn whenever alternate

arrangements are made to operate the new DG set. Along with this, the management also granted honorarium @ 3% of

basic pay to the Electrical staff at Cochin Fisheries Harbour Substation for operating a new 100KV DG set. The

concerned Electrical staff were enjoying the benefits continuously and it was also protected by Bipartite Wages

Negotiating Committee Settlement under Section 12(3) of the ID Act entered between the management and the union.

While so the management issued an order dt.12.10.2011 by which the above benefits were discontinued with effect from

01.10.2011. No notice under Section 9A have been served on the concerned employees before discontinuing the payment

of honorarium without making alternate arrangements for the operation of the DG set. The union took up the matter with

the management and also Regional Labour Commissioner(C), Ernakulam. The union also served a strike notice to the

management against the unilateral action. In the conciliation proceedings the Regional Labour Commissioner (C) issued

an order of status quo which is not implemented by the management.

4. The management filed written statement denying the above allegations. According to the management, Cochin Port

Trust is governed by the provision of Major Port Trust Act. Till 2004 there were only 2 numbers of DG sets in the new

Power House of Cochin Port Trust. The 20 employees of new Power House were posted round the clock in 3 shifts and

they used to operate these DG sets in the event of power failure. The Port’s incoming supply was through two 11 KV

feeders from KSEB, Perumanoor Substation. There used to be frequent power interruptions and frequent load restrictions

by KSEB. Hence a new 11KV 2.5 MW DG set was installed in the new Power House of Cochin Port Trust for meeting

critical power requirements. This DG set was commissioned in September 2004. The unions demanded appointment of

new employees to operate the new DG set. In the discussion with the management the unions agreed for an honorarium

of 7.5% of the basic pay. In the order issued it was also specified that the honorarium will be withdrawn when alternate

arrangements are made. The honorarium was an internal arrangement and was not on the basis of any settlement under

Section 12 (3) of the ID Act. The management commissioned a new 110KV Substation in December 2008 and the DG

sets were rarely operated thereafter. The Cochin Fisheries Harbour was also maintaining a small 100 KVA DG set for

meeting critical requirements. The staff deployed that were also being paid honorarium at 3% of basic pay additionally

for running the DG set. This honorarium was also stopped as part of the austerity measures. The wages, allowances and

service conditions of employees are decided by Bipartite Wage Negotiation Committee Settlement and there is no such

provision in the settlement to pay additional benefits. After commissioning of 110KV Substation, the stability and

reliability of power supply has improved and power outages have substantially reduced and DG sets are operated very

rarely. Hence the management decided to withdraw the additional honorarium. This is done as per the original order

wherein it was stated that the additional honorarium will be withdrawn once alternate arrangements are made. The

engine hour meter reading of the new DG set as on 29.12.2008 is 868 hours and as on 08.06.2015 it is 974 hours. Thus

the total hours the DG set worked between December 2008 and June 2015 is only 106 hours. Further the DG set was

under repair from 21.11.2009 to 19.04.2011 ie., for a period of nearly 1½ years. Further, Trial run will have to be

performed for the DG set for 10-15 minutes the every 15 days. Thus the total trial run hours will be around 22 hours.

Thus the DG sets worked only for 84 hours, during power failure, in a span of 7 years. Since there is no change in

service condition while stopping the honorarium no notice under Section 9A of the Industrial Disputes Act is

contemplated. There is no violation of Section 33 or Section 12(3) of the ID Act.

5. The union filed rejoinder retreating their earlier position that the withdrawal of the honorarium paid to the workers

without following procedure is irregular, illegal and is required to be setaside.

6. On conclusion of pleadings the union examined WW1 and marked exbts.W1, W2, M1 and M2. Management

examined MW1 and marked Exbt. M3 to M5.

7. The issues to be decided in this reference are;

Whether the action of the management in withdrawing the honorarium from October 2011 without issuing

notice under Section 9A of the ID Act is justified?

Whether there is any violation of provisions of Section 33 of ID Act in stopping the honorarium of

employees during the pendency of conciliation proceedings?

What is the relief the workman is entitled?

5858

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

8. Issue No.1

There is no dispute regarding the fact that a new 3 MVA DG set was installed by the management for the

Electrical Division of the Mechanical Engineering Department. It has come out in evidence that the union demanded

recruitment of new staff for operating the new DG set. Since there was recruitment ban by Government of India, the

management decided to extend an honorarium of 7.5% of the basic pay to 20 numbers of employees of the Power House

section. There is also no dispute regarding the fact that it was agreed to pay an honorarium @ 3 % of basic pay to

Electrical staff at CFH Sub-station. Exbt.M1 order dt.30.09.2004 through which the honorarium of 7.5% was extended

to the employees of Power House section also specifies that the honorarium will be withdrawn when alternate

arrangements are made to operate the new DG set. According to the union this benefit of honorarium was withdrawn by

the management vide Exbt.M2 order dt.12.10.2011 without making any alternate arrangements for operating the DG set.

The case of the management is that there were 2 DG sets already in operation upto 2004. In the year 2004, the power

supply to the management premises was erratic and because of the fluctuation in the supply of power they were forced to

install a 3^rd DG set. The existing 2 Generators were being operated by the electrical staff. When the new Generator is

installed the union demanded recruitment of new staff to operate the same. As a compromise the management agreed to

pay 7.5% honorarium to the employees deployed in Power House till alternate arrangements are made to run the new DG

set. In the year 2008 a new 110 KV Sub-station was commissioned by the Port and the stability and reliability of power

supply has improved and power failures have substantially minimized. According to MW1, the DG sets are used only for

76 hours during a span of 7 years from 2008 to 2015. He also submitted in the witness box that the DG set was not

operational for 1 ½ years during 2009-2011 which had no impact on the power supply to the management premises. The

repair and maintenance of the DG set was not considered a priority item for the reason that there is minimum dependence

on DG set for power supply.

9. The learned Counsel for the union submitted that apart from the illegality of withdrawing the benefit of honorarium

which was being paid to the employees for more than 7 years, the question involves in this reference is whether the

procedure required by law was followed before withdrawing the benefit. According to the learned Counsel for the union,

the union is entitled to 21 days notice under Section 9A of Industrial Disputes Act, 1947. According to the learned

Counsel for the management the benefit of honorarium paid to the employees of the Power House and Cochin Fisheries

Harbour for maintaining DG sets will not come within 4^th schedule to Section 9A of Industrial Disputes Act. The learned

Counsel for the management explained the meaning of honorarium as exgratia payment made, without the giver

recognizing themselves as having any liability or legal obligation to a person for his/her service for which fees are not

traditionally required. The Counsel for the union argued that section 9A notice is required for withdrawing any

customary concession or privilege and particularly so when it has become part of Section 12(3) settlement.

10. On a perusal of Exbt.M1 order it is very clear that the honorarium that was being agreed to by the management was

temporary in nature and it can be withdrawn when alternate arrangements for running the DG set is made. The union is

relying on wording in Exbt.M1 that the honorarium can be stopped only when alternate arrangements for running new

DG set is made. The management case is that, after installation of 110KV Sub-station by the port, the operation of the

generator has become very rare and this alternate arrangement shall be taken into account as a reason for withdrawing the

benefit. As come out in evidence the DG set was not working for more than 1½ years without any power interruption in

the management premises. The management did not see any urgency to repair the DG set as the power supply to their

premises was not interrupted. This will clearly show that the operation of the new DG set itself has become redundant

and hence as rightly pointed out by the learned Counsel for the management there was no need to make any alternate

arrangements for operating the new DG set. The learned Counsel for the union pointed out that as per Exbt.M2 order the

reason given for discontinuing the honorarium with effect from 01.10.2011 is financial difficulty and not the installation

of 110KV Sub-station by the management. Though the 110KV Sub-station was commissioned in 2008 the management

continued the benefit till 2011 and reviewed the extension of the benefit because of the financial difficulties of the

management. It is difficult to accept the argument of the union that there shall be an alternate arrangement for running

the DG set even if an alternate arrangement is made uninterrupted power supply, before the withdrawal of honorarium.

11. The specific case of the union is that the honorarium has become part of settlement on wage revision under Section

12 (3) of the ID Act and any change in this settlement warrants notice under Section 9A of the Act. As per clause 43 of

Exbt.W1, Settlement on wage revision, Port and Dock Workers at Major Ports, with effect from 01.01.2007 states that as

a consequence of the implementation of the settlement, any facility, privilege, amenity, right, benefit, monitory or

otherwise or concession to which an employee or a category of employees be entitled to by way of any award, practice or

usage in force shall not be withdrawn, reduced or curtailed except to the extend and manor as explicitly provided for in

the settlement. According to the union this saving clause shall protect the honorarium given to a section of employees as

part of section 12(3) settlement. But it can be seen from Exbt.M1 that there is an inbuilt clause to terminate the benefit in

the event of making alternate arrangements. Hence it may not be correct to argue that the termination of the benefit

requires notice under Section 9A of the Act. It will be too technical to argue that even if alternate arrangements are

made to streamline the power supply the benefit of honorarium cannot be withdrawn without providing an alternate

arrangements for running the DG set.

12. In view of the above, I am inclined to hold that the withdrawal of the additional benefit of honorarium will not

warrant a notice under Section 9 A of ID Act.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5859

Hence the issue is answered against the union and in favour of the management.

13. Issue No. 2

According to the learned Counsel for the union the management withdrew the benefit of honorarium to the employees

of Power House and CFH during the pendency of conciliation before the Regional Labour Commissioner (C ). This is a

clear violation of Section 33 of ID Act that during the pendency of any conciliation proceeding before a Conciliation

Officer no employer in regard to any matter connected with dispute alter, to the prejudice of the workmen concerned in

such disputes, the conditions of service applicable to them immediately before the commencements of such proceedings.

14. As evidenced by Exbt.W2 the strike notice by the union is dt.15.10.2011 and the withdrawal of honorarium as per

Exbt.M2 is dt.12.10.2011. The conciliation proceedings started vide letter no.2/20/2011/51 dt.17.10.2011 issued by the

Regional Labour Commissioner (C) to the management. Hence it can be seen that the process of conciliation started after

the benefit of honorarium was withdrawn vide Exbt.M2 order dt.12.10.2011.

Hence it is very clear that the benefit is withdrawn before the conciliation proceedings started and as such there

is no violation of section 33 of ID Act. Issue no.2 is answered against the union and in favour of the Management.

15. Since the issues no. 1 & 2 are answered against the union, they are not entitled for any relief as per the claim.

In the result an award is passed finding that the management of Cochin Port Trust is justified in withdrawing the

honorarium @ 7.5% of basic pay paid to 20 electric staff at Power House Station and @ 3% of basic pay to electric staff

at CFH Sub-station from October 2011 without issuing 21 days notice under ID Act. Further the management of Cochin

Port Trust has not violated Section 33 of ID Act since the benefit of honorarium was withdrawn before the conciliation

proceedings are initiated. Further it is found that the union is not entitled for any benefit as claimed by them.

The award will come into force one month after its publication in the Official Gazette.

Dictated to the Assistant, transcribed and typed by him, corrected and passed by me on this the,19^th day of July

2019.

V. VIJAYA KUMAR, Presiding Officer

APPENDIX

Witness for the Union

WW1

-18.04.2016 Sri.Thomas Sebastian

Witness for the Management

MW1

-28.02.2017 Sri.C. Rajasekharan

Exhibts for the Union:-

-Settlement on wage revision Port & Dock workers at the Major Ports w.e.f. 01.01.2007

-Earlier report of Conciliation Officer No. 2 (20)/2007/B.1 dt.04.02.2014

-Order no.A6/honorarium/2004-M dt.13.09.2004 sanctioning honorarium

-Order no.A7/honorarium/2007-m dt.12.10.2011 discontinuing Honorarium w.e.f. 01.10.2011

Exhibts for the Management:-

-Letter no.A7/REC/honorarium/2011-M dt.20.10.2011from Chief Mechanical Engineer to Regional Labour

Commissioner (C)

-Letter no.F1/MISC/13/M dt.15.06.2013 from Chief Mechanical Engineer to Regional Labour Commissioner

( C )

M 5

-Letter no.A7/REC/honorarium/2011-M dt.27.12.2011from Chief Mechanical Engineer to Regional Labour

Commissioner (C)

5860

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

ubZ fnYyh] 2 vxLr] 2019

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New Delhi, the 2^nd August, 2019

S.O. 1413.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 84/2009) of the Labour Court, Pune (Maharashtra) as shown in the

Annexure, in the industrial dispute between the management of Canara Bank, and their workmen, received by the

Central Government on 02.08.2019.

[No. L-12012/13/2009-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

BEFORE SMT. MADHURA A. MULIK, PRESIDING OFFICER, LABOUR COURT NO. 3, PUNE

Reference (I.D.A.) No. 84/2009.

Exh. No. 51

Dispute Between :

The Dy. General Manger, Canara Bank,

DA Cell/HRM Section, Circle Office, 1183, Sadashiv Peth,

PUNE – 411 030

… First party

AND

Shri. Dhage Gorakhnath Dattatraya, D-3, Amarendra Society,

Ganesh Mala, Parvati, Pune.

… Second party

Adv. Shri A.K. Gupte for the first party

Adv. Shri U.S. Gopale for the second party

AWARD

(Delivered on 3rdJune, 2019)

1. This is a reference, forwarded by the Central Government for adjudication of its following Schedule :

"Whether the ACtion of MAnAgement of CAnArA BAnk in AWArding peNAlty of compulsory retirement

to Shri. G. D. DhAge is legAl And justified ? WhAt relief the concerned workmAn is entitled to ?"

Brief facts of the case :

The second party appeared in present matter and filed his statement of claim at Exh-08. It is submitted that he

was working as 'Clerk' in first party Bank and was getting Rs.20,000/- P.M. salary. In his 27 years service no misconduct

was committed by him. When he was working in Bhawani Peth, Pune Branch as a Special Assistant, it was told by first

party that he has committed misconduct and one charge-sheet was issued to him. The first party decided to conduct

departmental enquiry against him. It is submitted that he was told not to appoint his defence representative. The whole

enquiry proceeding was conducted in English language. He has no legal knowledge. The enquiry conducted against him

is not legal and opportunity to defence was not given to him. The Bank has not filed any Police Complaint against him.

The first party pre-determined to terminate his services and conducted departmental enquiry illegally. The first party Bank

compulsory retired him. The said act of the Bank is unfair labour practice. Hence, he has prayed to reinstate him with

continuity of service and consequential benefits.

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3) The first party appeared in present matter and filed its written statement at Exh.17, wherein all adverse allegations

raised in statement of claim are totally denied. It is submitted that the second party was working as Special Assistant

since 23/08/2001. He was entrusted with the supervisory work, amongst other, of the Inward Site Collection (ISC)

Department. While working the Branch Manager received five ISC Bills from Mysore main Branch of first party drawn

on M/s. Chandan Agencies. The said bills duly entered in Tappal Register, were handed over to the second party against

his acknowledgment for further action. On 15/05/2004 there was an enquiry from Mysore Branch about the fate of the

above said bills. On enquiry with second party about the same it was revealed that the second party kept these cheque

in his house without debiting to M/s. Chandan Agencies account. The total amount of five ISC Bills was

Rs.7,66,230/-. However, the second party handed over the relevant L.R.'s and D.D.'s. It was observed that M/s. Chandan

Agencies Account was not having balance. The second party made fictitious noting in ISC Register about the realization

of the said bills, though no payment was received from the party. The proprietor of M/s. Chandan Agencies was found

absconding. Thus, the second party committed a serious misconduct, causing substantial financial loss to the Bank. The

second party's O.D. Account had revealed various suspicious cash deposits.

4) On these background explanation was called from the second party to which second party filed his reply, which were

examined and found not convincing. The second party was served with charge-sheet dated 29/07/2004. The first party

conducted a domestic enquiry into the charges levelled against the second party as per provisions of Canara Bank Service

Code, inconsonance with the Bipartite Settlements and Award governing second party. On first day of hearing of enquiry

the second party denied the charges and on next date unconditionally admitted all the charges and requested not to

proceed with the enquriy. However, to give a proper opportunity the enquiry officer proceeded further with the enquiry.

The second party was given all the opportunity in enquiry. The second party knows the English language and hence no

prejudice is caused to him because of the conduct of the enquiry in English. There is no need of any legal knowledge as

claimed by the second party. The Bank has not made any Police Complaint is irrelevant in view of the admission and

facts established in the enquiry. As the acts of misconduct committed by the second party are of serious nature there was

no question of continuing the second party in the employment. The first party is dealing with the public money and

hence it cannot condone the misconduct committed by the second party. There is no substance in the demand of second

party. Hence, it is prayed to reject the reference.

5) On the rival pleadings of the parties my learned predecessor has framed issues at Exh.18. Amongst them issues No. 1

and 2 regarding legality, fairness and propriety of the enquiry and sufficiency of the evidence before the enquiry officer

and regarding perversity of the findings are treated as preliminary issues. Those are decided vide order dated 29/11/2018.

In view of joint pursis Exh. 50, issue No. 4 is deleted. Now remaining issue Nos. 3, 5 & 6 are for my consideration. I

have recorded my findings thereon for the reasons thereof as follows.

ISSUES

FINDINGS

(1)

Whether enquiry conducted by the first party is legal,

fair and proper ?

(2)

Whether the evidence before the enquiry officer was

sufficient to prove the misconduct &

Whether

findings of the enquiry officer are perverse

as alleged?

(3)

Whether the evidence before the Court is sufficient to

prove the misconduct?

If yes, whether the punishment is disproportionate to the

misconduct as contended?

[4) Whether the First party has engaged in unfair labour

practice as alleged?]

(5)

Whether the Second party is entitled to the reliefs prayed

for?

(6)

What Award?

.. In the affirmative.

Already decided on 29/11/2018

.. In the affirmative.

Already decided on 29/11/2018

In the negative. Already decided on 29/11/2018

Does not survive.

In thenegative.

In view of joint pursis Exh. 50, this issue is deleted.

In the negative.

Reference answered in negative.

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[PART II—SEC. 3(ii)]

REASONS

(6)

On the remaining issues the second party has examined himself at Exh. 40. In support of his contention he

has not produced any documentary evidence.

Per contra the first party has not adduced any oral evidence, but relied upon whole enquiry proceeding

produced at list Exh. 19, reply to the findings of the enquiry officer by the second party at Exh. 41, letter dated

06/03/2005 by the second party to the appellate authority Exh. 42, order of appellate authority dated 24/02/2005 Exh. 43.

The first party has filed evidence close pursis Exh. 46.

Heard Ld. Advocate for both sides. Perused written synopsis of argument filed by the second party at Exh. 48.

AS TO ISSUE NO. 3 :-

(7) This issue has two parts. The first part is regarding as to whether evidence before the Court is sufficient to prove

the misconduct and the second part is if yes, then whether the punishment is disproportionate to the misconduct as

contended. While deciding preliminary issues regarding fairness, legality and propriety of the enquiry conducted against

the second party and regarding perversity of findings this Court by its order dated 29/11/2018 already held and declared

that the enquiry conducted against the second party is legal, fair and proper and findings of the enquiry officer are based

on evidence before him, hence are not suffering from perversity. The order on preliminary issues is yet not challenged

by the second party before any Higher Authority. Now taking into consideration above mentioned circumstances there is

no question to decide again whether the evidence before the Court is sufficient to prove the misconduct committed by

the second party or not. In case where the court has come to the conclusion that there is no sufficient evidence before the

enquiry officer to prove the misconduct of charge-sheeted employee and on this ground whole enquiry is vitiated then on

its prayer in written statement, employer has right to prove the misconduct of its charge-sheeted employee before the

Court by adducing reliable evidence. But in present matter, this Court has already come to the conclusion that the

charges levelled against the second party are proved during the enquiry. Hence first part of the issue No.3 does not

survive.

(8) The second part of this issue is regarding whether the punishment imposed on the second party is disproportionate to

the misconduct as contended by him. Admittedly, the charge- sheet dated 29/07/2004 issued to the second party for

misconduct within meaning of Chapter XI Regulation 3(j), (m) and (i) of Canara Bank Services Code. These charges

are levelled for his act of willful damage or attempt to cause any property of the bank or of its customers and doing any

act which is prejudicial to the interest of the bank and lastly for gross negligence involving or likely to involving bank

in serious loss. He was also charge-sheeted for violation of Regulation under 2(A) of Chapter XI of Canara Bank

Services Rule. It was alleged that ISC Bills were received by the Branch from Mysore Main Branch for collection and

said bills were handed over to the second party for lodging and realization against payment. On receipt of enquiry from

Mysore Main Branch on 15/05/2004 about the fate of above mentioned bills and some lapses are observed on the part of

the second party in handling the said bills. It was also alleged that the second party has exposed the Bank to huge

financial loss. The first party initiated departmental enquiry into the said charges. After completion of evidence of both

sides the enquiry officer came to the conclusion that the charges levelled against the second party have been proved

conclusively and held the second party guilty of misconduct vide his findings dated 29/11/2004. The second party

submitted his reply to the findings on 23/12/2004, which is produced at Exh. 41. Thereafter vide order dated

27/01/2005, the punishment of compulsory retirement was imposed on the second party. As per the second party said

punishment is wrong one.

(9) It is strongly argued for the second party that he has rendered 27 years service in first party bank. His past service

record is clean and unblemished. He has not committed any misconduct as mentioned in the charge-sheet. There was no

financial loss occurred to the bank. It is argued that punishment of compulsory retirement is not provided in service

rules applicable to the second party. It is further argued that as per Section 11A of the Industrial Disputes Act, this Court

can interfere in the punishment. On the contrary it is strongly argued for the first party that due to the misconduct

committed by the second party the first party has suffered heavy financial loss. Such kind of act was not permitted and

not expected from any employee of the bank. The second party committed serious misconduct, hence he is not entitled

for any kind of sympathy from this Court. The punishment of compulsory retirement imposed on the second party, there

is no stigma on his career. All retiremental benefits were provided to the second party which he availed. No financial

loss caused to the second party. There was nothing wrong, unjustifiable or illegal in the action taken by the first party.

10) It is well settled that the imposition of the punishment is within discretion of the management, but when punishment

for proved misconduct is unconscionable or so grossly proportionate to the nature of the misconduct, Court may able to

draw an inference of victimization merely from punishment inflicted. So far as remaining issues regarding

proportionality of punishment and reliefs claimed by the second party are concerned the second party has examined

himself at Exh. 40. His affidavit in chief is nothing but reproduction of facts and circumstances mentioned in his

statement of claim. During cross-examination he has admitted his reply to the findings dated 23/12/2004. Learned

Advocate for the first party attracted my attention towards this letter wherein the second party admitted the charges

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levelled against him unconditionally. He has further submitted that he had made all efforts to trace the customer so as to

make the recovery. He had also deposited Rs. 70,000/-. Further he submitted that he shall make more efforts towards

recovery. Lastly he has submitted to take matter leniently. The first party further relied upon copy of Appeal made to

the appellate authority, General Manager, Canara Bank. In this appeal the appellate authority held that there is no

reason to interfere either with findings of the enquiry officer or with orders of disciplinary authority and lastly confirmed

punishment and rejected appeal. It is seen that in present matter serious charges were levelled against the second party.

The second party admitted charges levelled against him unconditionally during enquiry and requested not to pursue with

the enquiry proceeding and prayed to take matter leniently. The learned Advocate for the second party strongly argued

that the charge of misappropriation is not levelled against the second party. He has not used any amount. Further the

bank has failed to take action against concerned customer. It is also pertinent to note here that the charge of

misappropriation is not levelled against the second party but other charges are also serious charges. As discussed earlier

misconduct of the second party is proved before the enquiry officer by the reliable evidence. The learned Advocate for

the first party pays my attention towards Chapter XI of Canara Bank Services Code. Its point No.4 provides that -

“An employee found guilty of gross misconduct may;

(a)……..,

(b)…..,

be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification

from future employment.”

It is seen that the second party never come with the case that retirement benefits were not provided to him. It appears that

though the punishment of compulsory retirement imposed on the second party, all retirement benefits were provided to

him.

(11) Ld. Advocate for the first party further relied upon Janatha Bazar etc. vs. Secretary, Sahakari Noukarara

Sangh etc., reported in 2000 II CLR 568(S.C.) wherein it is held that –

“Law is well-settled that once act of misappropriation is proved may be for a small or large amount, there is no

question of showing uncalled for sympathy and reinstating the employees in service and as such impugned

order passed by the High Court and the award of the Labour Court are set aside.”

Further relied upon Karnataka State Road Transport Corporation Vs. B.S. Hullikatti, reported in 2001 I CLR 699

(S.C.), wherein it is held that –

“The punishment of dismissal was proper and should not have been set aside but reinstatement is not set aside

since respondent has superannuated. However it is held that he is not entitled to back wages.”

I have gone through these case-laws. It is seen that these case laws are regarding charge of misappropriation and matter

in hand, there is no charge of misappropriation levelled against the second party. Hence it is my humble submission that

the ratio laid down in above mentioned case-laws is not helpful to the first party.

(12) Further the first party further relied upon Uttaranchal Transport Corporation Vs. Sanjay Kumar Nautiyal, reported in

2008 I CLR 888(S.C.), wherein it is held that –

“Industrial Disputes Act, 1947 – S.11-A – Dismissal from service – Respondent – Conductor dismissed from

service for misconduct, after holding enquiry – His Appeal dismissed – Labour Court found him guilty of the

charge – But taking lenient view, passed Award for reinstatement with 50% back wages, and reduced

punishment of dismissal to stoppage of two increments without cumulative effect- Writ petition by appellant

was dismissed by High Court – Hence this Appeal – Held that Labour Court and High Court not justified in

concluding that punishment awarded to respondent was disproportionate.”

Further relied upon - SBI and Anr. Vs. T.M. Solanki, Ex- employee of S.B.I., reported in 2008 I CLR 895(Guj.

H.C.) wherein it is held that –

“Industrial Disputes Act, 1947 – S.11-A – Discharge from service – After holding an enquiry management

discharged respondent from service for committing grave financial irregularity – His Appeal dismissed – In

the dispute raised by him, Labour Court taking lenient view, exercised its power u/s. 11-A and awarded

reinstatement, but without back wages – Hence this petition – Held that lenient view taken by Labour Court

wholly unjustified, where confidence of the customers in financial integrity of the Bank and its employees, is of

paramount interest, impugned Award of Labour Court, after a finding that enquiry was properly conducted,

deserves to be quashed and set aside.”

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[PART II—SEC. 3(ii)]

I have gone through these case-laws. Considering the facts and circumstances the ratio laid down in above mentioned

case-laws is helpful to the first party.

(13) Considering facts and circumstances and considering the seriousness of misconduct committed by the second party

it is acceptable that the punishment of compulsory retirement inflicted on him is not shockingly disproportionate to the

proved misconduct. The second party is failed to show mitigating circumstances to interfere in the punishment. On the

contrary it is acceptable that the punishment of compulsory retirement inflicted on the second party is just and proper.

Hence I answer part two of issue No.3 in the negative.

AS TO ISSUE NOS. 5 & 6 :-

14) The second has prayed for direction against the first party for his reinstatement with continuity of service and full

back-wages. As discussed earlier charges levelled against the second party are proved during the enquiry and

punishment of compulsory retirement imposed on the second party is held as not disproportionate, hence the second

party is not entitled for any relief claimed by him. Hence I answer issue No. 5 in the negative and in answer to issue No.

6 following order is passed.

ORDER

(1)

Reference is answered in negative.

(2)

No order as to costs.

(3)

Award be sent to the appropriate Government for publication.

Date : 03.06.2019

SMT. MADHURA A. MULIK, Presiding Officer

Argument heard on :- 23/05/2019

AwArd DicTATED On :- 03/06/2019

AwArd TrANscribed On :- 03/06/2019

AwArd Checked & Signed On :- 04/06/2019

नई द ली, 2 अग3 त, 2019

का.आ.

का.आ. 1414

1414

1414.—औ`ोिगक िववाद अिधिनयम 1947 (1947 का 14) क धारा 17 के अनुसरण म के* ीय सरकार

मेसस& मैसूर िमनर स िलिमटेड के 'बंधतंZ के संबT िनयोजक और उनके कम&कार के बीच अनुबंध म िनgद&h औ`ोिगक

िववाद म के* ीय सरकार औ`ोिगक अिधकरण एवं +म *यायालय, बगलूर के पंचाट (संदभ& सं<या 18/2007) को 'कािशत

करती है जो के* ीय सरकार को 02.08.2019 को 'ाO Gआ था।

[सं. एल-29012/19/2006-आईआर(एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 2^nd August, 2019

S.O. 1414.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 18/2007) of the Central Government Industrial Tribunal/Labour

Court, Bangalore now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Mysore Minerals Limited and their workman, which was received by the Central Government on

02.08.2019.

[No. L-29012/19/2006-IR(M)]

D. K. HIMANSHU, Under Secy.

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ANNEXURE

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

BANGALORE

DATED : 25^TH JULY 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 18/2007

I Party

II Party

Sh. B. H. Chandregowda,

S/o Late. Sh. Honnegowda,

Since deceased by LR’s

(1a) Smt. Vanajakshi,

D/o Late. B.H. Chandre Gowda

Santhe Shivara,

Nuggehalli Hobli,

Santhe Shivara Post,

Channarayapatna Taluk,

Hassan District – 573131

(1b) Smt. Nethravathi,

D/o Late. B.H. Chandre Gowda,

W/o Sri.Venkatesh,

Ganganaghatta Village and Post,

Nonavinakere Hobli,

Titptur Taluk,

Tumkur – 572201.

(1c) Smt. B.C. Bhavya

D/o Late B.H. Chandre Gowda,

W/o K.S. Suresh,

Bidare Village, Kembalu Post,

Bagur Hobli,

Channarayapatna Taluk,

Hassan – 573111.

The Managing Director,

Mysore Minerals Limited,

No. 39, M. G Road,

BANGALORE – 560 001.

Appearance

Advocate for I Party : Mr. K T Govinde Gowda

Advocate for II Party : Mr. T K Veda Murthy

AWARD

The Central Government vide Order No. L-29012/19/2006-IR(M) dated 23.02.2007 in exercise of the powers conferred

by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute act, 1947 (for brevity ‘the Act’

hereafter) referred the following Industrial Dispute for adjudication.

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

premature superannuating of the services of Sri B.H. Chandregowda w.e.f 09.06.1998? If not, to what

relief the workman is entitled to?”

The dispute was raised by the 1^st Party workman Sh. B H Chandre Gowda, who is now expired and represented

by his 3 children - Class-I Legal heirs.

The claim of the 1^st Party is, he joined the service of the 2^nd Party on 01.07.1986 at its Mining Unit Goblahalli

Mines and was transferred to Bhaktarahalli Mine Channarayapatna Taluk, Hassan District as a Mining worker. His date

of birth is 01.10.1958 as per the Horoscope maintained by his parents; same is accepted by the 2^nd Party for the purpose

of all the Statutory Records. Though he was entitled to continue in service up to 01.10.2016, on subjecting him for a

medical examination 2^nd Party refused employment on 09.06.1998. The Medical Certificate is illegal, and Medical

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[PART II—SEC. 3(ii)]

Examination is not held in accordance with the Mining Rules 1955-29(C) i.e., by a doctor of the rank of Assistant

Surgeon. His signature was obtained by the 2^nd Party Officials on several applications. Subsequently EPF Authority

informed him that he is not eligible for pension till reaching the age of superannuation. Several of his co-workers are

also terminated on the medical ground of unfitness or over age. One such co-employee namely Smt. K Dundamma

preferred a Writ Petition No. 5615/2001 (S-RES) before the Hon'ble High Court of Karnataka, same was allowed on

29.03.2001. The Writ Appeal No. 3460/2001 connected with 3459/2001 preferred against the said order in W.P No.

5615/2001 (S-RES) came to be rejected on 12.06.2002. The Employee / Writ Petitioner prematurely retired was

reinstated with back wages and continuity of service. Writ Petitions filed by similarly placed employees in Writ Petition

Nos. 26101/2001 C/W W.P No. 23798/2001, 23797/2001 & 23794/2001 against the very same management were also

allowed. The Medical Reports and orders of termination were quashed with a cost payable by the Employer / Mysore

Minerals Limited.

It is further claimed that, the action of the 2^nd Party in terminating the services of the workman prematurely

amounts to retrenchment within the meaning of Section 2(oo) of the I.D Act, but without following mandatory provisions

of Sec 25(F)(G)(H) and (N) of I.D Act of 1947. The 2^nd Party has also violated its own Certified Standing Orders

Namely Mysore Minerals Limited Officers and Employees Conditions of Service, Conduct and Disciplinary Proceedings

Rules under Rule/ Clause 18 & 24. The workman’s Date of birth is not changed by the 2^nd Party in the statutory records.

The Dismissal order is liable to be set aside with consequential monetary benefits.

The counter case of the 2^nd Party is,

That the dispute raised is time barred. 1^st Party was given 30 days’ time to prefer the appeal before the Appellate

Medical Board as per rules, but he did not avail the opportunity extended to him. Inspired by the judgments of the

Hon'ble High Court in W.P No. 5615/2001 and 26101/2001, he has raised the dispute after a lapse of 9 years. The

Medical Examination of all the employees and workers working at the Mines Unit was arranged in the year 1997-98 as

per the Mines Rules 1955. A team of qualified and Senior Medical Officers from Hutti Gold Mines Limited carried out

Medical Examination. The 1^st Party was found incapacitated to work in the Mine as per the Medical Report. He was

also found aged more than 58 years as per Medical Report. Hence, it was decided to terminate him from the services.

He was given opportunity to prefer his appeal before Appellate Medical Board within 30 days, if he is aggrieved by the

said report, but he did not avail the said opportunity. He opted to avail monetary benefits arising from his termination

i.e., EPF, Gratuity, Leave Pension. He has amicably settled the monetary benefits with the 2^nd Party and has no right to

raise the dispute. As on the date of reference there was no relationship of employer and employee between the parties.

Hence, the reference is bad in law. He is not entitled for any family pensionary benefits as per law. He is employed.

Both parties have adduced their evidence and submitted their arguments in writing.

On behalf of the 2^nd Party their Assistant Manager was examined as a witness. Through him attested copy of the

‘B Register’ pertaining to the 1^st Party was marked as Ex M-1. As per the said document his date of Birth is still

maintained as 01.07.1957. The witness identified the Photostat copies of the documents confronted to him as Ex W-1 to

W-5 they are the Scheme Certificate under Employees Provident Fund Organisation Employees’ Pension Scheme 1995

pertaining to the 1^st Party, Termination Order dated 09.06.1998 and the judgments of the Hon'ble High Court.

It was brought out during the cross examination of the witness that no safety measures and welfare provisions as

required by the Mines Rules are provided for the Mining workers; in the year 1995-1996 the 2^nd Party entrusted the

Mining work to a Private Company and suffered loss of 21 crores in Shimoga and Hassan Districts; having suffered the

loss they decided to reduce the number of workers and Medical Examination of the mining workers was resorted. The

2^nd Party has its own Certified Standing Order i.e., Mysore Mineral Limited Officers and Employees’ Conditions of

Service Conduct and Disciplinary Proceedings Rules.

As per clause 18.3 of the Certified Standing Orders of the 2^nd Party, the change in the date of birth as entered in

the Company’s Statutory Record can only be effected by a judgment of a Competent Court; now the age of the

employees of the company is enhanced to 60 years adopting the policy of the State Government enhancing the age of

superannuation from 58 to 60 years. Had if the 1^st Party continued in service up to his superannuation, he would have

been in service up to 2017. Admittedly it was an enmasse termination of employees on the ground of superannuation or

physical unfitness. The Hon'ble High Court has already quashed similar Medical Certificates issued to the employees

who had approached the Hon'ble High Court.

Except the self-serving statement of MW-1 no document is placed on record that the Medical Examination is

conducted by the qualified Doctors in accordance with the Rule 29-B of the Mines Rules 1955. The so-called Medical

Certificate is not made available by the 2^nd Party. There is no documentary proof that the 1^st Party was informed to prefer

an appeal before the Appellate Medical Board if he was aggrieved by the Medical Report. The 2^nd Party without

addressing the question raised by the 1^st Party workman against illegal Medical Examination would contend that having

accepted the terminal benefits and having severed his relationship, his claim cannot be sustained.

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It is a point to be noted that the sole document for the management i.e. the Photostat copy of the B register

extract pertaining to the 1^st Party even today indicates his date of birth as 01.07.1957 that being so, there is merit in the

contention of the 1^st Party, that without changing his age in the statutory records, his service was terminated. He has lost

around 19 years of service, probably for the reason that the 2^nd Party suffered financial loss and was in urgency to

disembrace their workforce to mitigate their hardship. Thus, they resorted to Medical Examination of the workman. IT

appears that, only on the basis of clinical examination they declared the age of the workman. The 1^st Party due to

ignorance, illiteracy or for want of information might not have challenged the Medical Report before the Appellate

Medical Board, but that cannot legalise the action of premature superannuation / termination effected by the 2^nd Party.

The action of the 2^nd Party is not justified for another reason also that, they being the establishment having

workforce exceeding thousands if wanted to retrench the workmen due to their financial crunch, they could not have

done so, without complying the mandate of section 25-N of the I.D Act, which they have omitted. If the refusal of

employment to the workman is to be termed as retirement, it is a pre-retirement at the pleasure of the employer which is

definitely illegal. If it is to be termed as retrenchment then also it is vitiated for not complying the mandatory provisions

of section 25-F, G, H and N of the I.D Act. Wherefore the action of the 2^nd Party in terminating his service / premature

superannuating w.e.f 09.06.1998 is neither justified nor legal.

Having held that the termination / premature superannuation illegal, the next question is, the relief that could be

moulded in favour of the Legal Heirs of the deceased. One of the daughters of the deceased workman has testified before

the Tribunal that her deceased father subsequent to his termination was not gainfully employed.

10.

On one side there is the cause of the 1^st Party workman who lost his avocation, in the mid-way of his career by

curtailing his service by 19 years, on the other side there is evidentiary material that, he had accepted the terminal

benefits and did not challenge his illegal removal for 9 years. There appears to be some merit in the contention of the

2^nd Party that, inspired by the judgment of the Hon'ble High Court in W.P No. 5615/2001 and other cases he raised the

present dispute. However, a balance is to be struck between the two. The 2^nd Party has to be reminded that an aggrieved

workman cannot be non-suited from the reliefs available under the Welfare Legislature of the I.D Act 1947. Moreover

the reference order, on its legality was not challenged by the 2^nd Party before the Appropriate Forum. In the opinion of

this Tribunal, ends of justice would be met by awarding a lump sum compensation of Rs. 30,000/- (Rupees Thirty

Thousand Only) jointly to the daughters of deceased workman Sh. B.H. Chandregowda.

AWARD

The reference is accepted

The 2^nd Party is directed to pay Rs. 30,000/- (Rupees Thirty Thousand only) to Smt. Vanajakshi, Smt Nethravathi

and Smt. B.C Bhavya, daughters of the deceased 1^st Party workman Sh. B.H. Chandre Gowda within 2 months

from the date of publication of the Award in the Official Gazette failing which the amount shall carry future

interest at the rate of 6% per annum.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 25^th July, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

नई द ली, 2 अग3 त, 2019

का.आ.

का.आ. 1415

1415

1415.—औ`ोिगक िववाद अिधिनयम 1947 (1947 का 14) क धारा 17 के अनुसरण म के* ीय सरकार

िववाद म के* ीय सरकार औ`ोिगक अिधकरण एवं +म *यायालय, बगलूर के पंचाट (संदभ& सं<या 77/2007) को 'कािशत

करती है जो के* ीय सरकार को 02.08.2019 को 'ाO Gआ था।

[सं. एल-29012/14/2007-आईआर(एम)]

डी. के. िहमांशु, अवर सिचव

5868

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

New Delhi, the 2^nd August, 2019

S.O. 1415.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 77/2007) of the Central Government Industrial Tribunal/Labour

Court, Bangalore now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Mysore Minerals Limited and their workman, which was received by the Central Government on

02.08.2019.

[No. L-29012/14/2007-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

BANGALORE

DATED : 25^TH JULY 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 77/2007

I Party

II Party

Sh. Thimmashetty,

S/o Late Kuri Dassappa,

Since Deceased by LR’s,

1a) Smt. K.T. Manjula,

D/o Late Thimma Shetty,

1b) Smt. K.T. Parvathi,

D/o Late Thimma Shetty,

All are residing at

Kenkere Village and Post,

Gandasi Hobli, Arasikere Taluk

Hassan Distt – 573103

The Managing Director,

Mysore Minerals Limited,

No. 39, M. G Road,

BANGALORE – 560 001.

Appearance

Advocate for I Party : Mr. K T Govinde Gowda

Advocate for II Party : Mr. T K Veda Murthy

AWARD

The Central Government vide Order No. L-29012/14/2007-IR(M) dated 16.05.2007 in exercise of the powers conferred

by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute act, 1947 (for brevity ‘the Act’

hereafter) referred the following Industrial Dispute for adjudication.

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

superannuating of the services of Sri Thimmashetty w.e.f. 06.06.1998? If not, to what relief the workman

is entitled to?”

The dispute was raised by the 1^st Party workman Sh. Thimmashetty, who is now expired and represented by his

2 children - Class-I Legal heirs.

As per the claim averments the 1^st Party joined the service of the 2^nd Party on 01.07.1986 at its Mining Unit Goblahalli

Mines, and later transferred to Bhaktharahalli Chromite Mines, Channarayapatna Taluk, Hassan District as a Mining

worker. His date of birth was 01.07.1944 as per the Horoscope maintained by his parents; same is accepted by the 2^nd

Party for the purpose of all the Statutory Records. Though he was entitled to continue in service up to 01.07.2002, on

subjecting him for a medical examination 2^nd Party refused employment on 06.06.1998. The Medical Certificate is

illegal, and Medical Examination is not held in accordance with the Mining Rules 1955-29(C) i.e., by a doctor of the rank

of Assistant Surgeon. His signature was obtained by the 2^nd Party Officials on several applications. Several of his co-

workers are also terminated on the medical ground of unfitness or over age. One such co-employee namely

Smt. K Dundamma preferred a Writ Petition No. 5615/2001 (S-RES) before the Hon'ble High Court of Karnataka, same

was allowed on 29.03.2001. The Writ Appeal No. 3460/2001 connected with 3459/2001 preferred against the said order

in W.P No. 5615/2001(S-RES) came to be rejected on 12.06.2002. The Employee/ Writ Petitioner prematurely retired

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5869

was reinstated with back wages and continuity of service. Writ Petitions filed by similarly placed employees in Writ

Petition Nos. 26101/2001 C/W W.P No. 23798/2001, 23797/2001 & 23794/2001 against the very same Management

were also allowed. The Medical Reports and orders of termination were quashed with a cost payable by the Employer /

Mysore Minerals Limited.

It is further claimed that, the action of the 2^nd Party in terminating the services of the workman prematurely

amounts to retrenchment within the meaning of Section 2(oo) of the I.D Act, but without following mandatory provisions

of Sec 25(F)(G)(H) and (N) of I.D Act of 1947. The 2^nd Party has also violated its own Certified Standing Orders Namely

Mysore Minerals Limited Officers and Employees Conditions of Service, Conduct and Disciplinary Proceedings Rules

under Rule/ Clause 18 & 24. The workman’s Date of birth is not changed by the 2^nd Party in the statutory records. The

Dismissal order is liable to be set aside with consequential monetary benefits.

The counter case of the 2^nd Party is,

That the dispute raised is time barred. 1^st Party was given 30 days’ time to prefer the appeal before the Appellate

Medical Board as per rules, but he did not avail the opportunity extended to him. Inspired by the judgments of the

Hon'ble High Court in W.P No. 5615/2001 and 26101/2001, he has raised the dispute after a lapse of considerable length

of time. The Medical Examination of all the employees and workers working at the Mines Unit was arranged in the year

1997-98 as per the Mines Rules 1955. A team of qualified and Senior Medical Officers from Hutti Gold Mines Limited

carried out Medical Examination. He was found aged more than 58 years as per Medical Report. Hence, it was decided

to terminate him from the services. He was given opportunity to prefer an appeal before Appellate Medical Board within

30 days if he is aggrieved by the said report, but he did not avail the said opportunity. The 2^nd Party Management

relieved him from service on the ground of superannuation by settling him terminal benefits. He has received the

terminal benefits and has no right to raise the dispute. As on the date of reference there was no relationship of employer

and employee between the parties. Hence, the reference is bad in law.

Both parties have adduced their evidence and submitted their arguments in writing.

On behalf of the 2^nd Party their Assistant Manager was examined as a witness. Through him attested copy of the

‘B Register’ pertaining to the 1^st Party was marked as Ex M-1. As per the said document his date of Birth is still

maintained as 01.07.1944. The witness identified the Photostat copies of the documents confronted to him as Ex W-1 to

Ex W-5 - they are Medical Certificate in Form ‘O’, termination order dated 09.06.1998 and the judgments of the Hon'ble

High Court.

It was brought out during the cross examination of the witness that no safety measures and welfare provisions as

required by the Mines Rules are provided for the Mining workers; in the year 1995-1996 the 2^nd Party entrusted the

Mining work to a Private Company and suffered loss of 21 crores in Shimoga and Hassan Districts; having suffered the

loss they decided to reduce the number of workers and Medical Examination of the mining workers was resorted. The

2^nd Party has its own Certified Standing Order i.e., Mysore Mineral Limited Officers and Employees’ Conditions of

Service Conduct and Disciplinary Proceedings Rules.

As per clause 18.3 of the Certified Standing Orders of the 2^nd Party, the change in the date of birth as entered in

the Company’s Statutory Record can only be effected by a judgment of a Competent Court; now the age of the

employees of the company is enhanced to 60 years adopting the policy of the State Government enhancing the age of

superannuation from 58 to 60 years. Admittedly it was an enmasse termination of employees on the ground of

superannuation or physical unfitness. The Hon'ble High Court has already quashed similar Medical Certificates issued to

the employees who had approached the Hon'ble High Court.

Except the self-serving statement of MW-1 no document is placed on record that the Medical Examination is

conducted by the qualified Doctors in accordance with the Rule 29-B of the Mines Rules 1955. The so-called Medical

Certificate in Form ‘O’ certifies that, he ….. 58 years of age….he is suffering from over aged and he is medically unfit

for…... There is no documentary proof that the 1^st Party was informed to prefer an appeal before the Appellate Medical

Board if he was aggrieved by the Medical Report. The 2^nd Party without addressing the question raised by the

1^st Party workman against illegal Medical Examination would contend that having accepted the terminal benefits and

having severed his relationship, his claim cannot be sustained.

It is a point to be noted that the sole document for the management i.e. the Photostat copy of the B register

extract pertaining to the 1^st Party even today indicates his date of birth as 01.07.1944 that being so there is merit in the

contention of the 1^st Party that without changing his age in the statutory records his service was terminated. He has lost

around 6 years of service, probably for the reason that the 2^nd Party suffered financial loss and was in urgency to

disembrace their workforce to mitigate their hardship. Thus, they resorted to Medical Examination of the workman. It

appears that, only on the basis of clinical examination they declared the age of the workman. The 1^st Party due to his

ignorance, illiteracy, or for want of information did not challenge the Medical Report before the Appellate Medical

Board, but that cannot legalise the action of premature superannuation / termination effected by the 2^nd Party.

5870

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

The action of the 2^nd Party is not justified for another reason also that, they being the establishment having

workforce exceeding thousands if wanted to retrench the workmen due to their financial crunch, they could not have

done so, without complying the mandate of section 25-N of the I.D Act, which they have omitted. If the refusal of

employment to the workman is to be termed as retirement it is a pre-retirement at the pleasure of the employer which is

definitely illegal. If it is to be termed as retrenchment then also it is vitiated for not complying the mandatory provisions

of section 25-F, G, H and N of the I.D Act. Wherefore the action of the 2^nd Party in terminating his service / premature

superannuating w.e.f 06.06.1998 is neither justified nor legal.

Having held that the termination / premature superannuation illegal, the next question is, the relief that could be

moulded in favour of the Legal Heirs of the deceased. The Daughter of the deceased workman has testified before the

Tribunal that her deceased father subsequent to his termination was not gainfully employed.

10.

On one side there is the cause of the 1^st Party workman who lost his avocation, in the mid-way of his career by

curtailing his service probably by 6 years, on the other side there is evidentiary material that, he had accepted the

terminal benefits and did not challenge his illegal removal for 9 years. There appears to be some merit in the contention

of the 2^nd Party that, inspired by the judgment of the Hon'ble High Court in W.P No. 5615/2001 and other cases he raised

the present dispute. However, a balance is to be struck between the two. The 2^nd Party has to be reminded that an

aggrieved workman cannot be non-suited from the reliefs available under the Welfare Legislature of the I.D Act 1947.

Moreover the reference order, on its legality was not challenged by the 2^nd Party before the Appropriate Forum. In the

opinion of this Tribunal, ends of justice would be met by awarding a lump sum compensation of Rs. 30,000/-(Rupees

Thirty Thousand Only) jointly to both the daughters of deceased workman Sh. Thimmashetty.

AWARD

The reference is accepted

The 2^nd Party is directed to pay Rs. 30,000/- (Rupees Thirty Thousand Only) to Smt. K.T. Manjula and Smt. K.T

Parvathi daughters of the deceased 1^st Party workman Sh. Thimmashetty within 2 months from the date of

publication of the Award in the Official Gazette failing which the amount shall carry future interest at the rate of

6% per annum.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 25^th July, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

नई द ली, 2 अग3 त, 2019

का.आ.

का.आ. 1416

1416

1416.—औ`ोिगक िववाद अिधिनयम 1947 (1947 का 14) क धारा 17 के अनुसरण म के* ीय सरकार

िववाद म के* ीय सरकार औ`ोिगक अिधकरण एवं +म *यायालय, बगलूर के पंचाट (संदभ& सं<या 78/2007) को 'कािशत

करती है जो के* ीय सरकार को 02.08.2019 को 'ाO Gआ था।

[सं. एल-29012/15/2007-आईआर(एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 2^nd August, 2019

S.O. 1416.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 78/2007) of the Central Government Industrial Tribunal/Labour

Court, Bangalore now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Mysore Minerals Limited and their workman, which was received by the Central Government on

02.08.2019.

[No. L-29012/15/2007-IR(M)]

D. K. HIMANSHU, Under Secy.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5871

ANNEXURE

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

BANGALORE

DATED : 25^TH JULY 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 78/2007

I Party

II Party

Sh. D. Nanjegowda,

S/o Late Dasegowda,

Since Deceased by LR’s

1a) Smt. Honnamma,

W/o Late D. Nanje Gowda

1b) Smt. Manjamma,

D/o. LateD. Manje Gowda

1c) Smt. Ratnamma,

D/o. Late D. Nanje Gowda

1d) Smt. Shivamma,

D/o. Late D. Nanje Gowda

1e) Sh. Paramesh,

S/o. Late D. Nanje Gowda

1f) Smt. Sunanda,

D/o. Late D. Nanje Gowda

All are residing at

Hullenahalli, Kembalu Post,

Bagur Hobli,

Channarayapatna Taluk

Hassan Distt – 573116.

Karnataka.

The Managing Director,

Mysore Minerals Limited,

No. 39, M. G Road,

BANGALORE – 560 001.

Appearance

Advocate for I Party : Mr. K T Govinde Gowda

Advocate for II Party : Mr. T K Veda Murthy

AWARD

The Central Government vide Order No. L-29012/15/2007-IR(M) dated 16.05.2007 in exercise of the powers conferred

by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute act, 1947 (for brevity ‘the Act’

hereafter) referred the following Industrial Dispute for adjudication.

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

superannuating of the services of Sri D. Nanjegowda w.e.f. 28.06.1998? If not, to what relief the workman

is entitled to?”

The dispute was raised by the 1^st Party workman Sh. B. Nanje Gowda, who is now expired and represented by

his widow and 5 children - Class-I Legal heirs.

The claim of the 1^st Party is, he joined the service of the 2^nd Party on 06.03.1976 at its Mining Unit Byrapura Chromite

Mines, Channarayapatna Taluk, Hassan District as a Mining worker. His date of birth is 06.03.1946 as per the Horoscope

maintained by his parents; same is accepted by the 2^nd Party for the purpose of all the Statutory Records. Though he was

entitled to continue in service up to 06.03.2004, on subjecting him for a medical examination 2^nd Party refused

employment on 28.06.1998. The Medical Certificate is illegal, and Medical Examination is not held in accordance with

the Mining Rules 1955-29(C) i.e., by a doctor of the rank of Assistant Surgeon. His signature is obtained by the 2^nd

Party Officials on several applications. Several of his co-workers are also terminated on the medical ground of unfitness

or over age. One such co-employee namely Smt. K Dundamma preferred a Writ Petition No. 5615/2001 (S-RES) before

the Hon'ble High Court of Karnataka, same was allowed on 29.03.2001. The Writ Appeal No. 3460/2001 connected with

5872

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

3459/2001 preferred against the said order in W.P No. 5615/2001(S-RES) came to be rejected on 12.06.2002. The

Employee/ Writ Petitioner prematurely retired was reinstated with back wages and continuity of service. Writ Petitions

filed by similarly placed employees in Writ Petition Nos. 26101/2001 C/W W.P No. 23798/2001, 23797/2001 &

23794/2001 against the very same Management were also allowed. The Medical Reports and orders of termination were

quashed with a cost payable by the Employer / Mysore Minerals Limited.

It is the further claimed that, the action of the 2^nd Party in terminating the services of the workman prematurely

amounts to retrenchment within the meaning of Section 2(oo) of the I.D Act, but without following mandatory

provisions of Sec 25(F)(G)(H) and (N) of I.D Act of 1947. The 2^nd Party has also violated its own Certified Standing

Orders Namely Mysore Minerals Limited Officers and Employees Conditions of Service, Conduct and Disciplinary

Proceedings Rules under Rule/ Clause 18 & 24. The workman’s Date of birth is not changed by the 2^nd Party in the

statutory records. The Dismissal order is liable to be set aside with consequential monetary benefits.

The counter case of the 2^nd Party is,

That the dispute raised is time barred. 1^st Party was given 30 days’ time to prefer the appeal before the Appellate Medical

Board as per rules, but he did not avail the opportunity extended to him. Inspired by the judgments of the Hon'ble High

Court in W.P No. 5615/2001 and 26101/2001, he has raised the dispute after a lapse of considerable length of time. The

Medical Examination of all the employees and workers working at the Mines Unit was arranged in the year 1997-98 as

per the Mines Rules 1955. A team of qualified and Senior Medical Officers from Hutti Gold Mines Limited carried out

Medical Examination. He was found aged more than 58 years as per Medical Report. Hence, it was decided to

terminate him from the services. He was given opportunity to prefer his appeal before Appellate Medical Board within

30 days, if he is aggrieved by the said report, but he did not avail the said opportunity. The 2^nd Party Management

relieved him from service on the ground of superannuation by settling him terminal benefits. He has received the

terminal benefits and has no right to raise the dispute. As on the date of reference there was no relationship of employer

and employee between the parties. Hence, the reference is bad in law.

Both parties have adduced their evidence and submitted their arguments in writing.

On behalf of the 2^nd Party their Assistant Manager was examined as a witness. Through him attested copy of

the ‘B Register’ pertaining to the 1^st Party was marked as Ex M-1. As per the said document his date of Birth is still

maintained as 06.03.1946. The witness identified the Photostat copies of the documents confronted to him as Ex W-1 to

Ex W-5 - they are the Photostat copies of the Membership Application Form of the 1^st Party submitted to the Employees

Welfare Trust, Termination order of the 1^st Party dated 29.06.1998 and the judgments of the Hon'ble High Court.

It was brought out during the cross examination of the witness that no safety measures and welfare provisions as required

by the Mines Rules are provided for the Mining workers; in the year 1995-1996 the 2^nd Party entrusted the Mining work

to a Private Company and suffered loss of 21 crores in Shimoga and Hassan Districts; having suffered the loss they

decided to reduce the number of workers and Medical Examination of the mining workers was resorted. The 2^nd Party

has its own Certified Standing Order i.e., Mysore Mineral Limited Officers and Employees’ Conditions of Service

Conduct and Disciplinary Proceedings Rules.

As per clause 18.3 of the Certified Standing Orders of the 2^nd Party, the change in the date of birth as entered in

the Company’s Statutory Record can only be effected by a judgment of a Competent Court; now the age of the

employees of the company is enhanced to 60 years adopting the policy of the State Government enhancing the age of

superannuation from 58 to 60 years. Had if the 1^st Party continued in service up to his superannuation, he would have

been in service up to 2006. Admittedly it was an enmasse termination of employees on the ground of superannuation or

physical unfitness. The Hon'ble High Court has already quashed similar Medical Certificates issued to the employees

who had approached the Hon'ble High Court.

Except the self-serving statement of MW-1 no document is placed on record that the Medical Examination is

conducted by the qualified Doctors in accordance with the Rule 29-B of the Mines Rules 1955. The so-called Medical

Certificate is not made available by the 2^nd Party. There is no documentary proof that the 1^st Party was informed to

prefer an appeal before the Appellate Medical Board if he was aggrieved by the Medical Report. The 2^nd Party without

addressing the question raised by the 1^st Party workman against illegal Medical Examination would contend that having

accepted the terminal benefits and having severed his relationship, his claim cannot be sustained.

It is a point to be noted that the sole document for the management i.e. the Photostat copy of the B register

extract pertaining to the 1^st Party even today indicates his date of birth as 06.03.1946 that being so, there is merit in the

contention of the 1^st Party, that without changing his age in the statutory records, his service was terminated. He has lost

around 8 years of service, probably for the reason that the 2^nd Party suffered financial loss and was in urgency to

disembrace their workforce to mitigate their hardship. Thus, they resorted to Medical Examination of the workman. It is

interesting to note that, only on the basis of clinical examination they declared the age of the workman. The 1^st Party

due to ignorance, illiteracy or for want of information might not have challenged the Medical Report before the

Appellate Medical Board, but that cannot legalise the action of premature superannuation / termination effected by the

2^nd Party.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 10] [email protected] 19] 1941

5873

The action of the 2^nd Party is not justified for another reason also that, they being the establishment having

workforce exceeding thousands if wanted to retrench the workmen due to their financial crunch, they could not have

done so, without complying the mandate of section 25-N of the I.D Act, which they have omitted. If the refusal of

employment to the workman is to be termed as retirement, it is a pre-retirement at the pleasure of the employer which is

definitely illegal. If it is to be termed as retrenchment then also it is vitiated for not complying the mandatory provisions

of section 25-F, G, H and N of the I.D Act. Wherefore the action of the 2^nd Party in terminating his service / premature

superannuating w.e.f 28.06.1998 is neither justified nor legal.

Having held that the termination / premature superannuation illegal, the next question is, the relief that could be

moulded in favour of the Legal Heirs of the deceased. The Wife of the deceased workman has testified before the

Tribunal that her deceased husband subsequent to his termination was not gainfully employed.

10.

On one side there is the cause of the 1^st Party workman who lost his avocation, in the mid-way of his career by

curtailing his service by 8 years, on the other side there is evidentiary material that, he had accepted the terminal benefits

and did not challenge his illegal removal for 9 years. There appears to be some merit in the contention of the

2^nd Party that, inspired by the judgment of the Hon'ble High Court in W.P No. 5615/2001 and other cases he raised the

present dispute. However, a balance is to be struck between the two. The 2^nd Party has to be reminded that an aggrieved

workman cannot be non-suited from the reliefs available under the Welfare Legislature of the I.D Act 1947. Moreover

the reference order, on its legality was not challenged by the 2^nd Party before the Appropriate Forum. In the opinion of

this Tribunal, ends of justice would be met by awarding a lump sum compensation of Rs. 30,000/- (Rupees Thirty

Thousand Only) to Smt. Honnamma wife of the deceased workman Sh. Nanjegowda since all the children are majors

and there is nothing to infer that they are depending on their mother for their livelihood.

AWARD

The reference is accepted.

The 2^nd Party is directed to pay Rs. 30,000/-(Rupees Thirty Thousand Only) to Smt. Honnamma Wife of the

deceased 1^st Party workman Sh. Nanjegowda within 2 months from the date of publication of the Award in the

Official Gazette, failing which the amount shall carry future interest at the rate of 6% per annum.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 25^th July, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

नई द ली, 2 अग3 त, 2019

का.आ.

का.आ. 1417

1417

1417.—औ`ोिगक िववाद अिधिनयम 1947 (1947 का 14) क धारा 17 के अनुसरण म के* ीय सरकार

िववाद म के* ीय सरकार औ`ोिगक अिधकरण एवं +म *यायालय, बगलूर के पंचाट (संदभ& सं<या 112/2007) को 'कािशत

करती है जो के* ीय सरकार को 02.08.2019 को 'ाO Gआ था।

[सं. एल-29012/28/2007-आईआर(एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 2^nd August, 2019

S.O. 1417.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 112/2007) of the Central Government Industrial Tribunal/Labour

Court, Bangalore now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Mysore Minerals Limited and their workman, which was received by the Central Government on

02.08.2019.

[No. L-29012/28/2007-IR(M)]

D. K. HIMANSHU, Under Secy.

5874

THE GAZETTE OF INDIA : AUGUST 10, 2019/SRAVANA 19, 1941

[PART II—SEC. 3(ii)]

ANNEXURE

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

BANGALORE

DATED : 25^TH JULY 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 112/2007

I Party

II Party

Sh. Huvappa,

S/o Late Shivananjegowda,

Since deceased by LR’s

1a) Smt. Boramma,

W/o Late Huvappa

1b)

Smt. Shivamma,

D/o Late Huvappa

1c)

Smt. Padma,

D/o Late Huvappa

1d) Smt. Sunanda,

D/o Late Huvappa

1e)

Sh. Nanjeshi Gowda,

S/o Late Huvappa

1f)

Sh. Girish,

S/o Late Huvappa,

All are residing at

K. Byrapur Village,

Kembalu Post, Bagur Hobli,

Channarayapatna Taluk

Hassan Distt – 573111.

The Managing Director,

Mysore Minerals Limited,

No. 39, M. G Road,

BANGALORE – 560 001.

Appearance

Advocate for I Party : Mr. K T Govinde Gowda

Advocate for II Party : Mr. T K Veda Murthy

AWARD

The Central Government vide Order No. L-29012/28/2007-IR(M) dated 21.08.2007 in exercise of the powers conferred

by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute act, 1947 (for brevity ‘the Act’

hereafter) referred the following Industrial Dispute for adjudication.

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

services/premature superannuating of the services of Sh. Huvappa w.e.f. 27.06.1998? If not, to what

relief the workman is entitled to?”

The dispute was raised by the 1^st Party workman Sh. Huvappa, who is now dead expired and represented by his

widow and 5 children - Class-I Legal heirs.

The claim of the 1^st Party is, he joined the service of the 2^nd Party on 11.05.1982 at its Mining Unit Byrapura Chromite

Mines, Channarayapatna Taluk, Hassan District as a Care Taker in the Canteen. His date of birth is 11.05.1947 as per the

Horoscope maintained by his parents; same is accepted by the 2^nd Party for the purpose of all the Statutory Records.

Though he was entitled to continue in service up to 11.05.2005, on subjecting him for a medical examination 2^nd Party

refused employment on 27.6.1998. The Medical Certificate is illegal, and Medical Examination is not held in

accordance with the Mining Rules 1955-29(C) i.e., by a doctor of the rank of Assistant Surgeon. His signature was

obtained by the 2^nd Party Officials on several applications. Several of his co-workers are also terminated on the medical

ground of unfitness or over age. One such co-employee namely Smt. K Dundamma preferred a Writ Petition No.

5615/2001 (S-RES) before the Hon'ble High Court of Karnataka, same was allowed on 29.03.2001. The Writ Appeal

No. 3460/2001 connected with 3459/2001 preferred against the said order in W.P No. 5615/2001 (S-RES) came to be

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rejected on 12.06.2002. The Employee/Writ Petitioner prematurely retired was reinstated with back wages and

continuity of service. Writ Petitions filed by similarly placed employees in Writ Petition Nos. 26101/2001 C/W W.P No.

23798/2001, 23797/2001 & 23794/2001 against the very same Management were also allowed. The Medical Reports

and orders of termination were quashed with a cost payable by the Employer / Mysore Minerals Limited.

It is further claimed that, the action of the 2^nd Party in terminating the services of the workman prematurely

amounts to retrenchment within the meaning of Section 2(oo) of the I.D Act, but without following mandatory

provisions of Sec 25(F)(G)(H) and (N) of I.D Act of 1947. The 2^nd Party has also violated its own Certified Standing

Orders Namely Mysore Minerals Limited Officers and Employees Conditions of Service, Conduct and Disciplinary

Proceedings Rules under Rule/ Clause 18 & 24. The workman’s Date of birth is not changed by the 2^nd Party in the

statutory records. The Dismissal order is liable to be set aside with consequential monetary benefits.

The counter case of the 2^nd Party is,

That the dispute raised is time barred. 1^st Party was given 30 days’ time to prefer the appeal before the Appellate

Medical Board as per rules, but he did not avail the opportunity extended to him. Inspired by the judgments of the

Hon'ble High Court in W.P No. 5615/2001 and 26101/2001, he has raised the dispute after lapse of considerable length

of time. The Medical Examination of all the employees and workers working at the Mines Unit was arranged in the year

1997-98 as per the Mines Rules 1955. A team of qualified and Senior Medical Officers from Hutti Gold Mines Limited

carried out Medical Examination. The 1^st Party was found incapacitated to work in the Mine as per the Medical Report.

He was also found aged more than 58 years as per Medical Report. Hence, it was decided to terminate him from the

services. He was given opportunity to prefer his appeal before Appellate Medical Board within 30 days, if he is

aggrieved by the said report, but he did not avail the said opportunity. He opted to avail monetary benefits arising from

his termination i.e., EPF, Gratuity, Leave Pension. He has amicably settled the monetary benefits with the 2^nd Party and

has no right to raise the dispute.

Both parties have adduced their evidence and submitted their arguments in writing.

On behalf of the 2^nd Party their Assistant Manager was examined as a witness. Through him attested copy of

the ‘B Register’ pertaining to the 1^st Party was marked as Ex M-1. As per the said document his date of Birth is still

maintained as 11.05.1947. The witness identified the Photostat copies of the documents confronted to him as Ex W-1 to

W-4 - they are Form ‘O’ Medical Certificate and the judgments of the Hon'ble High Court. As per the Medical

Certificate Ex W-1 ‘he is suffering from over aged and he is medically unfit for….’

It was brought out during the cross examination of the witness that no safety measures and welfare provisions as required

by the Mines Rules are provided for the Mining workers; in the year 1995-1996 the 2^nd Party entrusted the Mining work

to a Private Company and suffered loss of 21 crores in Shimoga and Hassan Districts; having suffered the loss they

decided to reduce the number of workers and Medical Examination of the mining workers was resorted. The 2^nd Party

has its own Certified Standing Order i.e., Mysore Mineral Limited Officers and Employees’ Conditions of Service

Conduct and Disciplinary Proceedings Rules.

As per clause 18.3 of the Certified Standing Orders of the 2^nd Party, the change in the date of birth as entered in

the Company’s Statutory Record can only be effected by a judgment of a Competent Court; now the age of the

employees of the company is enhanced to 60 years adopting the policy of the State Government enhancing the age of

superannuation from 58 to 60 years. Had if the 1^st Party continued in service up to his superannuation, he would have

been in service up to 2007. Admittedly it was an enmasse termination of employees on the ground of superannuation or

physical unfitness. The Hon'ble High Court has already quashed similar Medical Certificates issued to the employees

who had approached the Hon'ble High Court.

Except the self-serving statement of MW-1 no document is placed on record that the Medical Examination is

conducted by the qualified Doctors in accordance with the Rule 29-B of the Mines Rules 1955. There is no documentary

proof that the 1^st Party was informed to prefer an appeal before the Appellate Medical Board if he was aggrieved by the

Medical Report. The 2^nd Party without addressing the question raised by the 1^st Party workman against illegal Medical

Examination would contend that having accepted the terminal benefits and having severed his relationship, his claim

cannot be sustained.

It is a point to be noted that the sole document for the management i.e. the Photostat copy of the B register

extract pertaining to the 1^st Party even today indicates his date of birth as 11.05.1947 that being so, there is merit in the

contention of the 1^st Party, that without changing his age in the statutory records, his service was terminated. He has lost

around 9 years of service, probably for the reason that the 2^nd Party suffered financial loss and was in urgency to

disembrace their workforce to mitigate their hardship. Thus, they resorted to Medical Examination of the workman. It is

interesting to note that, only on the basis of clinical examination they declared the age of the workman. The 1^st Party

due to ignorance, illiteracy or for want of information might not have challenged the Medical Report before the

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