4173 GI/2019

(6325)

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

REGD. NO. D. L. (N) 04/0007/2003—05

izkf/dkj ls izdkf'kr

PUBLISHED BY AUTHORITY

lkIrkfgd

WEEKLY

la- 34]

ubZ fnYyh] vxLr 18—vxLr 24] 2019] '[email protected] 27—Hkknz 2] 1941

No. 34]

NEW DELHI, AUGUST 18—AUGUST 24, 2019, SATURDAY/ SRAVANA 27— BHADRA 2, 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)

कामक

कामक, लोक िशकायत तथा पशन मंालय

लोक िशकायत तथा पशन मंालय

(कामक और िशण िवभाग)

नई दली, 9 अग त, 2019

का.आ.

का.आ. 1490

1490

1490.—क सरकार, एतद् ारा दली िवशेष पुिलस थापना अिधिनयम, 1946 (1946 का अिधिनयम

सं(या 25) क, धारा 6 के साथ प-ठत धारा 5 क, उपधारा (1) ारा 0द1 शि2य3 का 0योग करते 5ए उ1र 0देश सरकार,

क, अिधसूचना सं(या 1146/6-पीयू-14-18-70(448)/18 दनांक 9 अगत 2018, के मा8यम से 0ाि9 सहमित से पुिलस

थाना कोतवाली देव-रया, िजला देव-रया, उ1र 0देश म भारतीय दंड संिहता, 1860 (1860 का अिधिनयम सं(या 45) क,

धारा 188, 189, 353, 343, 370, 354-ऐ, 504, 506 तथा पोको अिधिनयम, 2012 क, धारा 7 एवं 8 और कशोर

?याय (बालक3 क, देखरेख और संरBण ) अिधिनयम, 2015 क, धारा 80 के अधीन दजD मामला अपराध सं(या 0724/18

और भारतीय दंड संिहता, 1860 (1860 का अिधिनयम सं(या 45) क, धारा 353 क, अधीन दजD मामला अपराध सं(या

0707/18 का अ?वेषण करने के िलए दली िवशेष पुिलस थापना के सदय3 क, शि2य3 और BेEािधकार का िवतार

समत उ1र 0देश राFय म करती है |

[फा. सं. 228/39/2018-एवीडी-II]

एस. पी. आर. िE पाठी, अवर सिचव

6326

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 9th August, 2019

S.O. 1490.—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, issued vide Notification No. 1146/6-PU-14-18-70(448)/18 dated 9^th August 2018, hereby

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

Uttar Pradesh for investigation of Case Crime No.0724/18 under section 188, 189, 353, 343, 370, 354-A, 504, 506 of

Indian Penal Code, 1860 (Act No. 45 of 1860) and Section 7&8 POCSO Act, 2012 and section 80 Juvenile Justice (Care

and Protection of Children) Act, 2015 and Case Crime No. 0707/18 under section 353 of Indian Penal Code, 1860 (Act

No. 45 of 1860) registered at Police Station Kotwali Deoria district Deoria Uttar Pradesh.

[F. No. 228/39/2018-AVD-II]

S. P. R. TRIPATHI, Under Secy.

कोयला मंालय

नई दली, 16 अगत, 2019

का.आ.

का.आ. 1491

1491

1491.—के?ीय सरकार, कोयला धारक BेE (अजDन और िवकास) अिधिनयम, 1957 (1957 का 20)

(िजसे इसम इसके पKात उ2 अिधिनयम कहा गया है) क, धारा 4 क, उप-धारा (1) के अधीन जारी क, गई भारत सरकार,

कोयला मंEालय अिधसूचना सं(या का.आ. 1136, तारीख 02 अगत, 2018, के ारा जो भारत के राजपE, भाग II, खLड

3, उप-खLड (ii), तारीख 04 अगत, 2018 म 0कािशत क, गई थी, उस अिधसूचना से उपाबO अनुसूची म िविनPदQ प-रBेE

क, भूिम म िजसका माप 93.98 एकड़ (लगभग) अथवा 38.04 हेTटेयर (लगभग) है, कोयले का पूवVBण करने के अपने आशय

क, सूचना दी थी;

और, के?ीय सरकार का यह समाधान हो गया है क इस अिधसूचना से संलW अनुसूची म िविहत उ2 भूिम के भाग

म कोयला अिभ0ा9 है;

अतः, अब, के?ीय सरकार, उ2 अिधिनयम क, धारा 7 क, उप-धारा (1) ारा 0द1 शि2य3 का 0योग करते 5ए

इससे संलW अनुसूची म वYणत 93.98 एकड़ (लगभग) अथवा 38.04 हेTटेयर (लगभग) माप वाली भूिम म या उस पर के

सभी अिधकार का अजDन करने के अपने आशय क, सूचना देती है ।

टपण 1 :

टपण 1 : इस अिधसूचना के अधीन आने वाले BेE के रेखांक सं(या आरईवी/05/2018, तारीख 03 दसंबर, 2018 का

िनरीBण उपायु2, िजला - रामगढ़, झारखLड के कायाDलय या कोयला िनयंEक, 1, काउंिसल हाउस \ीट, कोलकाता –

700001 के कायाDलय या महा0बंधक, बरका सयाल BेE, िजला रामगढ़, झारखंड के कायाDलय या महा0बंधक (भूिम और

राजव), स\ल कोलफ,^स िलिमटेड, दरभंगा हाउस, राँची – 834001, झारखंड या महा0बंधक (खोज 0भाग), स\ल माइन

_ला`नग एंड िडजाइन इंटीaयूट िलिमटेड, ग3डवाना पैलेस, कांके रोड, राँची, झारखंड म कया जा सकता है।

टपण

टपण 2:

2: उ2 अिधिनयम क, धारा 8 के उपबंध3 क, ओर 8यान आकृQ कया जाता है, िजसम िनdिलिखत उपबंध हe :-

‘‘‘‘‘‘‘‘8. अजन के बाबत् आपि!यां.

8. अजन के बाबत् आपि!यां.

8. अजन के बाबत् आपि!यां. – (1) कोई gि2, जो कसी भूिम म िजसक, बाबत् धारा 7 के अधीन अिधसूचना िनकाली

गई है, िहतबO है, अिधसूचना के जारी कए जाने के तीस दन3 के भीतर सhपूणD भूिम या उसके कसी भाग या ऐसी भूिम म

या उस पर के क?हj अिधकार3 का अजDन कए जाने के बारे म आपि1 कर सकेगा ।

"प#ीकरण

"प#ीकरण.- इस धारा के अथाD?तगDत यह आपि1 नहj मानी जाएगी, क कोई gि2 कसी भूिम म कोयला उkपादन के िलए

वयं खनन संlयाएँ करना चाहता है और ऐसी संlयाएँ के?ीय सरकार या कसी अ?य gि2 को नहj करनी चािहए ।

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6327

(2) उपधारा (1) के अधीन 0kयेक आपि1 सBम 0ािधकारी को िलिखत nप म क, जाएगी और सBम 0ािधकारी आपि1कताD

को वयं सुने जाने का या िविध gवसायी ारा सुनवाई का अवसर देगा और ऐसी सभी अपि1य3 को सुनने के पKात और

ऐसी अित-र2 जाँच, यद कोई हो, करने के पKात जो वह आवoयक समझता है, वह या तो धारा 7 क, उप-धारा (1) के

अधीन अिधसूिचत भूिम के या ऐसी भूिम म या उस पर के अिधकार3 के संबंध म एक -रपोटD या ऐसी भूिम के िविभp टुकड़3

या ऐसी भूिम म या उस पर के अिधकार3 के संबंध म आपि1य3 पर अपनी िसफा-रश3 और उसके ारा क, गई कारDवाई के

अिभलेख सिहत िविभp -रपोटD के?ीय सरकार को उसके िविनKय के िलए देगा।

(3) इस धारा के 0योजन3 के िलए वह gि2 कसी भूिम म िहतबO समझा जाएगा, जो 0ितकर म िहत का दावा करने को

हकदार हो, यद भूिम या कसी ऐसी भूिम म या उस पर के अिधकार इस अिधिनयम के अधीन अYजत कर िलए जाते हe ‘’।

टपण 3

टपण 3: के?ीय सरकार ारा कोयला िनयंEक, 1, काउंिसल हाउस \ीट, कोलकाता -700001 को अिधसूचना सं(या

का.आ. 2518, तारीख 27 मई, 1983, भारत के राजपE, भाग II, खंड 3, उप-खंड (ii), म तारीख 11 जून, 1983 म

0कािशत क, गई थी, उ2 अिधिनयम क, धारा (3) के अधीन सBम 0ािधकारी िनयु2 कया है ।

अनुसूची

जीवनधा

जीवनधारा िववृत परयोजना

रा िववृत परयोजना

िजला रामगढ़ (झारखंड)

( रेखांक सं(यांक आर.ई.वी./05/2018, तारीख 3 दसhबर, 2018 )

सभी अिधकार :

सं

rाम

थाना

सं(या

िजला

BेE

)

एकड़ म

(

BेE

)

हेTटेयर म

(

-ट_पिणयां

चोरधरा

पतरातु

रामगढ़

93.98

38.04

भाग

कुल :

93.98

एकड़

(लगभग)

38.04 हेTटेयर

)

लगभग

(

1. rाम चोरधरा म अYजत कए जाने वाले _लाट सं(यांक : 07(भाग), 08(भाग), 9, 10, 11, 12, 13, 14, 15, 16, 17,

18, 19, 21, 22, 23 और 24.

भू – अिभलेख के अनुसार अYजत कए जाने वाले भूिम के िववरण का sयौरा नीचे सारणी म दया गया है:-

सारणी

rाम

थाना

सं(या

खाता

सं(या

_लॉट सं(या

0तािवत

अजDन का BेE

)

एकड़ म

(

भूिम का 0कार

अिभलेिखत भू-वामी का नाम

(1)

(2)

(3)

(4)

(5)

(6)

(7)

चोरधरा

7(भाग)

1.04

रैयती

भोखरा उरांव

चोरधरा

1.11

रैयती

चोपा मांझी

चोरधरा

1.71

रैयती

लोहरा मोदी

)

उरांव

(

चोरधरा

0.77

रैयती

लोहरा मोदी

)

उरांव

(

चोरधरा

1.15

रैयती

मगनु मांझी

6328

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

चोरधरा

1.43

रैयती

चोपा मांझी

चोरधरा

0.76

रैयती

लोहरा मोदी

)

उरांव

(

चोरधरा

1.05

रैयती

लोहरा मोदी

)

उरांव

(

चोरधरा

1.08

रैयती

भोखरा उरांव

चोरधरा

1.71

रैयती

डेलवा उरांव

चोरधरा

0.53

रैयती

लोहरा मोदी

)

उरांव

(

चोरधरा

3.02

रैयती

चोपा मांझी

चोरधरा

0.14

रैयती

डेलवा उरांव

चोरधरा

0.56

रैयती

डेलवा उरांव

चोरधरा

23.40

गैर-मजvवा

(जंगल झाड़ी)

जीएम (जेजे)

सरकारी भूिम

चोरधरा

26.50

गैर-मजvवा

(जंगल झाड़ी)

जीएम (जेजे)

सरकारी भूिम

चोरधरा

(भाग)

28.02

गैर-मजvवा

(जंगल झाड़ी)

जीएम (जेजे)

सरकारी भूिम

कुल :

_लॉ

ट

सं(याक

93.98

एकड़

)

लगभग

(

सीमा

सीमा –वणन :

वणन :

क-ख-ग-घ-ड.

रेखा, rाम चोरधरा के िब?दु ‘क’ से आरंभ होती है और िब?दु ‘ख’,’ग’,’घ’ और ‘ड.’ से गुजरते 5ए उसी

चोरधरा rाम म आरंिभक िब?दु ‘क’ पर िमलती है ।

[फा. सं. 43015/6/2018-एलए एLड आईआर]

राम िशरोमिण सरोज, उप सिचव

MINISTRY OF COAL

New Delhi, the 16th August, 2019

S.O. 1491.—Whereas by the notification of the Government of the India in the Ministry of Coal, number

S.O. 1136, dated the 2^nd August,2018, issued under sub-section (1) of section 4 of the Coal Bearing Areas (Acquisition

and Development) Act, 1957 (20 of 1957) (hereinafter referred to as the said act) and published in the Gazette of India,

Part II, Section 3, Sub-section (ii), dated the 4^th August, 2018, the Central Government gave notice of its intention to

prospect for coal in 93.98 acres (approximately) or 38.04 hectares (approximately) of the land in the locality specified in

the schedule annexed to that notification;

And whereas, the Central Government is satisfied that coal is obtainable in a part of the said lands prescribed in

the schedule appended to this notification;

Now, therefore, in exercise of powers conferred by sub-section (1) of section 7 of the said Act, the Central

Government hereby gives notice of its intention to acquire the land measuring 93.98 acres (approximately) or 38.04

hectares (approximately) and all rights in or over the said lands as described in the Schedule appended hereto;

Note 1: The plan bearing number Rev/05/2018, dated the 3^rd December, 2018, the area covered by this notification may

be inspected in the office of the Deputy Commissioner, District Ramgarh, Jharkhand or at the office of the Coal

Controller, 1, Council House Street, Kolkata -700 001 or at the office of the General Manager, Barka Sayal Area, District

Ramgarh, Jharkhand or General Manager (Land and Revenue), Central Coalfields Limited, Darbhanga, House, Ranchi –

834001, Jharkhand or General Manager (Exploration Division), Central Mine Planning and Design Institute Limited,

Gondwana Palace, Kanke Road, Ranchi, Jharkhand.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6329

Note 2: Attention is hereby invited to the provisions of section 8 of the said Act which provides as follows:-

“8. Objection to Acquisition.- (1) Any person interested in any land in respect of which a notification under section 7 has

been issued, may, within thirty days of the issue of the notification, object to the acquisition of the whole or any part of

the land or any rights in or over such land.

Explanation,- It shall not be an objection within the meaning of this section for any person to say that he himself desires

to undertake mining operation in the land for the production of coal and that such operation should not be undertaken by

the Central Government or by any other person.

(2)

Every objection under sub-section (1) shall be made to the competent authority in writing, and the competent

authority shall give the objector an opportunity of being heard either in person or by a legal practitioner and shall, after

hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either makes a report in

respect of the land which has been notified under sub-section (1) of section 7 or of rights in or over such land, or make

different reports in respect of different parcels of such land or of rights in or over such land, to the Central Government,

containing his recommendations on the objections, together with the record of the proceedings held by him, for the

decision of the Government.

(3)

For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim

an interest in compensation if the land or any rights in or over such land were acquired under this Act”.

Note 3: The Coal Controller, 1, Council House Street, Kolkata-700 001 has been appointed by the Central Government

as the competent authority under section 3 of the said Act, vide notification number S.O. 2518, dated the 27^th May,1983

published in part II, section 3, sub-section (ii) of the Gazette of India, dated the 11^th June, 1983.

SCHEDULE

Jeewandhara Opencast Project

District- Ramgarh (Jharkhand)

(Plan bearing number Rev/05/2018, dated the 3^rd December, 2018 )

All Rights:

Sl.No.

Village

Thana

number

District

Area

(in acres)

Area

(in hectares)

Remarks

Chordhara

Patratu

Ramgarh

93.98

38.04

Part

Total :

93.98

acres

(approximately)

38.04

hectares

(approximately)

Plot numbers to be acquired in village Chordhara: 07 (P), 08 (P), 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22,

23 and 24.

Details of land to be acquired with land records is given in the table below: -

Table

Village

Thana

No.

Khata

No.

Plot No.

Intention to

acquire the area

(in acres)

Class of land

Name of recorded

Tenant

(1)

(2)

(3)

(4)

(5)

(6)

(7)

Chordhara

7(P)

1.04

Tenancy

Bhokhra oraon

Chordhara

1.11

Tenancy

Chopa Manjhi

Chordhara

1.71

Tenancy

Lohra Modi (oraon)

6330

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Chordhara

0.77

Tenancy

Lohra Modi (oraon)

Chordhara

1.15

Tenancy

Magnu Manjhi

Chordhara

1.43

Tenancy

Chopa Manjhi

Chordhara

0.76

Tenancy

Lohra Modi (oraon)

Chordhara

1.05

Tenancy

Lohra Modi (oraon)

Chordhara

1.08

Tenancy

Bhokhra oraon

Chordhara

1.71

Tenancy

Delwa oraon

Chordhara

0.53

Tenancy

Lohra Modi (oraon)

Chordhara

3.02

Tenancy

Chopa Manjhi

Chordhara

0.14

Tenancy

Delwa oraon

Chordhara

0.56

Tenancy

Delwa oraon

Chordhara

23.40

Gair- Mouzurwa (Jungle

Jhari)

GM(JJ)

Govt. Land

Chordhara

26.50

Gair- Mouzurwa (Jungle

Jhari)

GM(JJ)

Govt. Land

Chordhara

8(P)

28.02

Gair- Mouzurwa (Jungle

Jhari)

GM(JJ)

Govt. Land

Total :

17 no. of

plots

93.98

acres

(approximately)

Boundary Description:

A-B-C-D-E

Line starts from point ‘A’ in village Chordhara and passes through points ‘B’, ‘C’, ‘D’,

and ‘E’ and meets at starting point ‘A’ in the same village Cordhara.

[F. NO. 43015/6/2018-LA & IR ]

RAM SHIROMANI SAROJ, Dy. Secy.

Je ,oa jkstxkj ea=ky;

ubZ fnYyh] 6 vxLr] 2019

dk-vk- 1492-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

flafMdsV cSad 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;] caxyksj ds iapkV ¼lanHkZ la- 131@2007½ dks izdkf”kr djrh gS tks dsUnzh; ljdkj

dks

06-08-2019 dks izkIr gqvk FkkA

[la- ,y&12011@69@2007&vkbZvkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6331

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 6^th August, 2019

S.O. 1492.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 131/2007) of the Cent.Govt.Indus.Tribunal-cum-Labour

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

their workmen, received by the Central Government on 06.08.2019.

[No. L-12011/69/2007-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

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

BANGALORE

DATED : 26^TH JULY 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 131/2007

I Party

II Party

The General Secretary,

Dharwad District Bank

Empls. Asson.,

No. 9, Corporation Building,

Broadway,

HUBLI – 580020.

The Assistant General Manager,

Syndicate Bank

Personal Branch, Head Office,

Manipal (Karnataka) - 576104.

Appearance

Advocate for I Party : Mr. M Rama Rao

Advocate for II Party : Mr. Ramesh Upadhyaya

AWARD

The Central Government vide Order No. L-12011/69/2007-IR(B-II) dated 06.09.2007 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 punishment of dismissal imposed on Shri H.S. Chandrasekhar Pandit by the management

of Syndicate Bank is legal and justified? If not, to what relief the workman is entitled?”

The cause of the workman Sh. H.S. Chandrasekhar Pandit ex-employee of the 2^nd Party now dismissed from

service is espoused by the Dharwad District Bank Employees Association.

The undisputed fact is, the 1^st Party workman joined the 2^nd Party Management as Clerk on 18.10.1976 and was

working at Hindpur, Basarikatte Main Branch, Shivamogga, and Divisional Office. He was issued Charge Sheet dated

28.12.1990 on the allegation of gross misconduct under Section 19.5(j) of the Bipartite Settlement. The allegation was,

he mis-utilised Housing Loan and did not construct House beyond Foundation, and the certificates produced by him from

the Engineers are not genuine. He requested the 2^nd Party to grant time to complete the construction of the house which

was not responded. He sought for permission to sell the property and clear the loan amount. In the mean time the 2^nd

Party proceeded to appoint Enquiry Officer to conduct Enquiry proceedings. On completion of enquiry the Enquiry

Officer submitted his report holding him guilty of charges. The Disciplinary Authority accepted the enquiry report and

imposed the punishment order.

The 1^st Party workman contends that, during the enquiry he was not given opportunity to defend the charges. He had

given statement before the Enquiry Officer that he could not complete the construction of the house beyond the plinth

level since, the license given for construction has lapsed he requested 3 months’ time to complete the building. The said

request was not considered and he was dismissed from service. The enquiry report is biased and perverse and the same is

accepted by the Disciplinary Authority in a mechanical manner, punishment of dismissal imposed is without considering

the fact that irregularities done were at the instance of the Officers and he was innocent. They have not considered his

6332

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

past meritorious service. He was neither allowed to construct the House or to sell the property to clear the loan. The

punishment of dismissal imposed on him is too harsh and disproportionate to the allegations. Subsequent to his dismissal

the House property was taken over by the Bank and they have not sent any notice for deposing the house property.

The 2^nd Party countered the claim allegations and maintained that he did not submit his remarks to the enquiry

report. The Disciplinary Authority afforded opportunity of personal hearing on 28.11.1991. Wherein, he accepted the

forgery committed by him pleading guilty and requested for lenient view. Having regard to the seriousness of the

charges proved in the enquiry the punishment of dismissal vide proceeding dated 18.02.1992 was ordered. He preferred

appeal against the Disciplinary Authority. The Appellate Authority gave him Personal Hearing on 24.03.1992, wherein

he interalia submitted that he was compelled to mis-utilise the proceeding of Housing Loan due to family problem etc.,.

The Appellate Authority having not found any mitigating circumstance made out by the 1^st Party to disagree with the

Disciplinary Authority dismissed the appeal. The punishment order is proportionate to the proved charges.

On the rival stands taken by both parties regarding fairness of Domestic Enquiry, a Preliminary Issue was

framed and was adjudicated holding that “the Domestic Enquiry conducted by the 2^nd Party against the 1^st Party is not

fair and proper”. Thereafter, 2^nd Party examined one witness to substantiate the charges against the workman no rebuttal

evidence is adduced by the 1^st Party.

Both have submitted argument.

The gist of the allegation as said in the charge sheet dated 28.12.1990 was,

That he availed Housing Loans while working at Basarikatte branch in 3 stages, during the period 1983-1987 for the

ostensible purpose of purchasing of House site and constructing a Building therein at Hindupur under Employees

Housing Loan Scheme of 2^nd Party Bank. In respect of the 1^st stage Housing Loan, the amounts released for construction

purpose was not utilised for the said purpose. The progress reports of the construction of the House purported to have

been issued by Sh. J Laxman Rao, licensed Building Contractor of Hindupur (on the basis of which he got released of the

Loan amounts) are not genuine.

The letter dated 01.06.1985 purported to have been signed by the Manager Hindupur Branch, inspected the construction

site and the construction of the Building is in progress, the amount of Rs. 45,000/- loan amount released is fully utilised,

is not genuine. Hindupur Branch never addressed said letter to Basarikatte Branch.

In respect of the 2^nd stage Housing Loan, the amount released towards the Housing Loan is not utilised for the said

purpose but used for other purposes.

ADV. 84 (property inspection report) dated 02.09.1985, purported to have been signed by the Branch Manager of

Hindupur, certifying that he has inspected the property and its market value at that time was Rs. 1.25 Lakh, is not

genuine. As the Manger of the Hindupur Branch neither conducted inspection not sent ADV. 84 to Basarikatte Branch.

The certificates issued by Sh. G.R. Mohan Rao, Civil Engineer / Contractor, Hindupur, certifying that he has visited the

house under construction; amount spent was around Rs. 1,00,000/- requires Rs.2,75,000/- for pending work is also not

genuine.

In respect of the 3^rd stage Housing Loan, the amount released for the purpose is not utilised for the said purpose and used

for some other purpose. ADV. 84 dated 11.02.1987 and the valuation report (ADV. 84) dated 11.02.1987 said to have

been issued by Sh. G.R. Mohan Rao, stating that the value of the property was Rs. 1.50 lakhs is not genuine. But the

value of the construction was Rs. 1.10 lakhs.

He furnished false / forged letters, for the purpose of availing Housing Loans and thereby mis-utilised the funds released

by the Bank through his Housing Loan Accounts.

The above acts of the 1^st Party is against the interest of the 2^nd Party Bank, and mis-utilization of the Scheme meant for

the welfare of the 2^nd Party Bank Employees.

6. To substantiate the charge, the 2^nd Party examined the present Manager of Basarikatte Branch, of the 2^nd Party (where

the 1^st Party workman lastly worked after the preliminary issue went against them). He testified to the effect that the 1^st

Party workman applied for the Housing Loan and Rs. 75,000/- was sanctioned. The Said amount was paid in 2 stages, at

the 1^st stage Rs. 61,000/- was released and Rs. 14,000/- was released on 25.10.1985. Later, the Bank found that the

amount released for the 1^st Party was not utilised for construction of the house.

During the cross examination of the witness, he deposed that the Loan was released at the 1^st stage in the form of DD in

the name of the Owner of the House site. In the 2^nd stage the amount was released to his SB A/c. As per rules, the

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6333

Manager before releasing the loan amount has to visit the spot. In the present case, after personal inspection by the

Branch Manager, Loan amount was released.

The witness does not claim any personal knowledge of the Loan transaction or having seen the property in

question, the witness is also ignorant as to whether any disciplinary action is taken against the then Branch Manager of

Basarikatte Branch. He is also not aware as to whether the 1^st Party has remitted the entire loan amount.

There is no rebuttal evidence by the 1^st Party workman.

Above piece of evidence is insufficient to corroborate the charge allegations, at the least on preponderance of

probabilities. In respect of the misconduct alleged to have committed between 1985-1987, the present Branch Manager

of Basarikatte Branch could not have led better evidence than what came to his Knowledge from records, naturally he

cannot have any personal knowledge of the Loan transaction or the misconduct attributed against the 1^st Party workman.

What can be inferred from his evidence is the release of the Loan amount in 2 stages, in the 1^st stage it is released in

favour of the Owner of the site; in the 2^nd stage Rs. 14,000/- is released to the SB A/c of the 1^st Party.

Since, 1^st Party opted not to adduce rebuttal evidence, it shall be presumed that he is the beneficiary of the Loan

amount and did not use the loan of Rs.14,000/- so sanctioned for the construction purpose. No tangible evidence is

produced by the 2^nd Party, as to whether the Loan instalments are being cleared by the 1^st Party workman or whether any

positive steps was taken to recover the loan amount by auctioning the property.

Sh. RU for the 2^nd Party, submits that the workman has clearly admitted the allegations made against him at

Page 5 Para 12 of the claim statement. He had claimed that, there was clear permission of the Branch Manager of the

Basarikatte Branch and further stated that “… How the Manager, who has released the Loan amount and permitted the

1^st Party to use the amounts is not responsible for the misconduct alleged against the 1^st Party. While the 2^nd party Bank

has not proceeded against the Manager is not answered by the Enquiry Officer and by the Disciplinary Authority of the

2^nd Party Bank….” Learned counsel further submits vide order sheet dated 21.02.2017 by consent of both Parties 2

Exhibits were marked as Ex M-1 and M-2.

Ex M-1 is the appeal against the punishment order and Ex M-2 is the minutes of hearing of appeal dated 24.03.1982. At

Ex M-1, he has stated to the effect that after the construction reached plinth level, he was compelled to utilise the

proceeds of House Loan for the marriage of his Sister who was solely dependent on him. Further at Para 4 he states,

“I once again admit before you sir, that I have not utilised the HL proceeds for construction/ completion of

house. The above acts are committed by me during my week movements I have small two children of school going age...”

At Ex M-2 the submission of the 1^st Party workman made before the Appellate Authority is recorded thus,

“I was compelled to mis-utilise the proceeds of Housing Loan amount due to family difficulties. But, I had no intention to

dupe the Bank. I had done it to bear the expenses of marriage of my sister who was wholly dependent on me. I have

already confessed my guilt. I repent that I should not have committed the act; the prevailed circumstances forced me to

do it”.

10.

The charge of gross misconduct within the meaning of Clause 19.5 (J) of Bipartite settlement and also the gross

misconduct doing acts prejudicial to the interest of the Bank, could not have proved without examining the persons

having personal information of the misconduct like the then Bank Manager of the Hindupur, the Licensed Contractor

who has issued the certificate and the then Branch Manager of Basarikatte Branch. Now what is established from the

evidence of Present Manager of the Branch is that loan was released in 2 instalments, the 1^st instalment of Rs. 61,000/-

was in favour of the Owner of the Site. If the Owner of the Site received the amount that has nothing to do with the

construction of the Building, the next instalment of Rs. 14,000/- was received by the 1^st Party is not utilised for

construction purpose. For the misconduct of not utilising Rs. 14,000/- which was released for construction purpose, the

punishment of dismissal from service is shockingly disproportionate, too harsh and severe. There is no financial

implication on the 2^nd Party from the misconduct which is proved as above. They had taken over the site to their custody

and probably recovered the Loan sanctioned by disposing of the site through auction sale.

11.

For the discussion supra, I hold that the punishment order of the Disciplinary Authority dated 18.02.1992,

requires to be interfered in exercise of jurisdiction under Section 11-A of the Industrial Dispute Act. The 1^st Party

workman has attained superannuation long back. In the circumstance, the relief that could be moulded in his favour is

monetary compensation proportionate to the loss suffered by him on his dismissal of service w.e.f 18.02.1992.

6334

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

12.

Having Holistic view of the matter, I hold monetary compensation at the rate of 60% (Sixty Percentage) of his

back wages from the date of his dismissal from service till the date he attained superannuation would serve the ends of

justice being met.

AWARD

The reference is accepted.

The 2^nd Party is directed to pay monetary compensation to the 1^st Party workman Sh. H.S. Chandrasekhar at

the at the rate of 60%(Sixty Percent) of his back wages from the date of his dismissal from service till the date he

attained superannuation within 6 weeks from the date of publication of the Award in the official gazette failing

which the amount shall carry future interest at the of 6% per annum.

(Dictated to o/s LDC, transcribed by her, corrected and signed by me on 26^th July, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

ubZ fnYyh] 8 vxLr] 2019

dk-vk- 1493-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc

,.M fla/k cSad 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;] ukxiqj ds iapkV ¼lanHkZ la- 64@2006½ dks izdkf”kr djrh gS tks dsUnzh; ljdkj

dks

08-08-2019 dks izkIr gqvk FkkA

[la- ,y&12012@18@2006&vkbZvkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

New Delhi, the 8^th August, 2019

S.O. 1493.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 64/2006) of the Cent.Govt.Indus.Tribunal-cum-Labour Court, Nagpur

as shown in the Annexure, in the industrial dispute between the management of Punjab and Sind Bank and their

workmen, received by the Central Government on 08.08.2019.

[No. L-12012/18/2006-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

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

Case No.CGIT/NGP/64/2006

Date: 08.07.2019

Party No.1

The Zonal Manager,

Punjab & Sind Bank,

Worli Zonal Office,

Mumbai – 400025.

Versus

Party No.2

Shri Michel S/o Xaviar Francies,

R/o Cristan Kabristan, Near Central Excise Office,

Civil Lines, Sadar, Nagpur.

AWARD

(Dated: 08^th July, 2019)

In exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of section 10 of Industrial

Disputes Act, 1947 (14 of 1947) (“the Act” in short), the Central Government has referred the industrial dispute between

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6335

the employers, in relation to the management of Punjab & Sind Bank and their workman, Shri Michel S/o Xaviar

Francies, for adjudication, as per letter No.L-12012/18/2006-IR (B-II) dated 25.06.2006, with the following schedule:-

“whether the action of the management of the Punjab & Sindh Bank through its Sr.Manager, Branch

Nagpur and Zonal Manager, Mumbai in terminating the services of the disputant workman viz

Shri Michel S/o Sh. Xaviar Francis W.e.f. 08/01/2005 is legal & justified and whether, the workman is also

entitled for reinstatement in service with full back wages or not? If not what relief the workman is

entitled to?”

On receipt of the reference, the parties were noticed to file their respective statement of claim and written

statement and accordingly, the workman, Shri Michel Xavier Francies,” (“the Petitioner” in short) filed the statement of

claim and the management of Punjab & Sind Bank, (“Party No. 1” in short) filed their written statement.

The case of the petitioner as presented in the statement of claim is that, he was working in as a peon in party

no.1 bank continuously from 3-9-97 on temporary basis/daily wages of Rs.30/-per day which was announced as Rs 75/-

per day till date of his termination i.e. 8-1-2005. According to him he work sincerely and honestly and completed

240day’s of services in each calendar year. He passed 10^th standard and he was serving party no.1 bank since last 7 years.

According to him in addition to the work of peon he used to perform the work of sorting of cash, stitching packets,

pasting of slips, making bundles, collecting cheques for CBDT stitching of vouchers, maintenance of ledgers and

registers/record vouchers of the branches and other sub staff duties viz-a-viz serving water and tea to customer and staff

of the Bank, cleaning work, filling water etc. It is noteworthy that there is only one post of peon. According to workman

he used to accompany other staff of the bank for depositing cash to the R.B.I. According to him he was working as a

temporary staff of the party no.1

According to petitioner party no.1 bank wants to have absorbed party no.2 in the said post of peon and he

requested branch manager to absorb him as a permanent peon. He also forwarded his representation to the Zonal

Manager, Mumbai with a recommendation for regularization of petitioner. Higher officer at Mumbai have every time

threatened to him for departmental action but party no.1 or higher officer did not pay heed in respect of the absorption /

permanency of labour. According to him this act of party no.1 amounts to an unfair labour practice.

According to petitioner he was illegally terminated from the service without assigning any reason and without

paying compensation under section 25 (F) & (G) of Industrial Disputes Act so he pray that present reference is answered

in favour of petitioner and declared unfair labour practice and illegal termination he also pray that he is reinstate in

service with continuity and with full back wages. He also pray that tribunal may grant any further relief as deems fit and

proper

On behalf of management written statement filed by the party no.1 by asserting that, “this party No. 1. The

engagement of party No. 2 with the party No.1 was purely ad-hoc and casual and the party No. 2 was working for about 2

to 4 hours for cleaning, sweeping, filling water and other misc work. The party No. 2 was accordingly paid wages on

voucher and there was master and servant relationship in between the party No. 1 and 2. There was no appointment of the

party No. 2 nor there was any termination of the services.

According to party No. 1, petitioner raised a dispute, which is not in existence for adjudication is nothing but to

secure a back door entry in the services of the party No. 1, he was engaging for ad hoc a casual work for completing

urgent work made by the branch manager, engagement of petitioner was not in accordance with the rules and recruitment

and procedure and applicant/petitioner was paid his charges on daily basis.

Party No. 1 denied all material facts asserted by petitioner in Statement Of Claim and also asserted that

petitioner did not completed 240 days of service in each calendar year. They also denied that he was entitled for

absorption as a peon. According to him the bank has its own procedure of making appointments based on settlements and

the bank cannot bye-pass the procedure of making appointment or for regularization of the services of the party No.1.

According to party No.1 “As there is no termination of the services of the party No. 1, there is no question of paying any

retrenchment compensation of exhibiting any seniority list by the petitioner. The provisions of the Industrial Disputes

Act are not attracted in case of the party No. 1. The party No. 1 was a part time sweeper and the appointment of the party

No. 1 was not made in accordance with the rules of banks.”

Party No. 1 submits that as per the settlement, which are applicable to the temporary peons, the cases of such

peons for regularisation can be considered by the bank in case they apply to bank in response to an advertisement. So

they pray that there are no merits in the dispute raised by the party No. 1 and the same is therefore liable to be answered

in negative.

10.

Point of determination:

Whether petitioner is peon in concerned bank?

ii.

Whether he is entitled for regularisation?

6336

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

iii.

Whether the action of the Party No. 1 is legal & justified?

Reason of determination:

11.

On behalf of the petitioner, it was argued that, petitioner was working as a peon in party No.1 bank and he is

completed more that 240 days in a one calendar year so, he entitled all benefits arising out of permanency, he refers some

judgment of other Tribunal and Hon’ble High Court. This argument is denied by management by asserting that petitioner

did not completed 240 days but he was employed by party No.1 as fetching water and cleaning purpose. Now I want to

see evidence.

12.

On behalf of petitioner he examined himself by supporting their pleading which is mentioned in their statement

of claim but in his cross examination he admitted that he engaged by the bank on temporary basis on daily wages of

Rs.30 per day. He also admitted that he worked on daily wages from initial engagement till date of his termination. He

also admitted that exhibit voucher M1 to M33 is the vouchers under which he was paid wages. But he denied that he did

not completed 240days in a calendar year and he worked as a part time worker. Now I want to see Management

evidence.

13.

On behalf of Party No.1, Senior Manager, Mr. Shankar was examined in support of his defence but he admitted

that he was not working in the said bank at the time of petitioner employment i.e. he gave evidence on the basis of

documents. He also admitted that petitioner was working during period from 3.9.97 to 8.1.2005 but according to him

petitioner did not work regularly. He also accepts that he did not know signature of petitioner. It is uite possible because

he did not work at the time when the petitioner was on employment. He also admitted that register were maintained for

10 to 12 years. According to him cash sorting, making bundles and pasting the seal are done by the peon. In this way this

witness remained unrebuted in his cross examination.

14.

On behalf of petitioner it was argued that even direction of Government, Hon’ble High Court and Supreme

Court, party No. 1 did not absorb or gave permanent status of the petitioner, on the contrary against the rules party No.1

terminated service of petitioner without paying compensation or following the provisions 25-F and 25-G of Industrial

Disputes Act. This argument was denied by the party No.1 by asserting that he was engaged as part time worker, not for

permanent employment. According to him bank has its own recruitment rules which was not followed at the time of

appointment of the petitioner.

15.

On going the evidence of petitioner he admitted that there are rules and regulations for appointment of sub-staff

he also admitted that he did not face any written test, oral test or medical test before his appointment. He also admitted

that bank did not pay extra remuneration but he admitted that Branch Manager wrote a letter to the Zonal Manager for his

regularisation but the Zonal Manager did not accept it. In this way he admitted that, Branch Manager was bonafide in

doing efforts for regularisation or absorption of the petitioner. Now I want to see party No. 1 evidence.

16.

On behalf of party No. 1, Mr. Shankar, MW1 asserted that, appointment of petitioner is ad-hoc or casual. He

also admitted that before entering in RBI, Gate Pass was issued to the concerned person. He also admitted that, when

cash sent to the RBI, one peon, one gun man, one cashier and one officer go to RBI. He also admitted that, document

No. 27, a Xerox copy of letter sent by the Branch Manager to the Zonal Manager, in which, information of the petitioner

was sent. Document Nos. 28 & 30 was reminder sent by the Branch Manager to the Zonal Manager. In this way, he

remained unrebutted in his statement. Nothing is shown that, he was prejudice or ill motive towards the petitioner. On

the other hand, his statement appears to be reliable.

17.

On behalf of the petitioner, it was argued that, the practice of keeping employee temporary for years together

and thereafter terminating their services, in order to deprive their valuable right of getting permanency. He also argued

that, petitioner was terminated illegally without following the procedure laid down by the law. This argument was

denied by the Party No.1 by asserting that, petitioner wants backdoor entry in bank services, although bank has their own

rules and regulation and that cannot be bypassed. They relied on case law, BSNL Vs. Bhurumal CA No. 10957/2013 SC

date of judgment 11.12.2013, in which following principles are laid down: (as a lineman on daily wages with Telephone

Dept., and was not paid his wages for the period from October 2001 till April 2002. Respondent was not allowed to

resume his duty which amounted to wrongful termination – Conciliation proceedings were not successful, the

Conciliation Officer sent his failure report to the Central Govt. and on that basis Central Govt. made a reference to

Tribunal – Whether the relief of reinstatement with full back wages was rightly granted by Tribunal – Held, it was clear

from the reading of the judgment of SC that the ordinary principle of grant of reinstatement with full back wages, when

the termination was found to be illegal was not applied mechanically in all cases – While that might be a position where

services of a regular/permanent workman were terminated illegally and/or malafide and/or by way of victimization,

unfair labour practice etc – However, when it came to the case of termination of a daily wage worker and where the

termination was found illegal because of procedural defect, namely in violation of s.25-F of Act, SC was consistent in

taking the view in such cases reinstatement with back wages was not automatic and instead the workman should be given

monetary compensation which will meet the ends of justice. By paying him the retrenchment compensation – Since such

a workman/respondent was working on daily wage basis and even after he was reinstated, he had no right to seek

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6337

regularisation – Thus when respondent could not claim regularization and he had no right to continue even as a daily

wage worker, no useful purpose was going to be served in reinstating such a workman and he could be given monetary

compensation by the Court itself in as much as if he was terminated, again after reinstatement, he would receive

monetary compensation only in the form of retrenchment compensation and notice pay – In such a situation, giving the

relief of reinstatement, that too after a long gap, would not serve any purpose – Thus, ends of justice would be met by

granting compensation in live of reinstatement – A.Umarani V. Registrar, Coop. Societies, 2004 Indlaw SC 606 and

Secy.,State of Karnataka v. Umadevi, 2006 Indlaw SC 125, relied on – Appeal disposed of keywords: Labour &

Industrial Law, Tribunal, Repairing, Telephone, Retrenchment, Reinstatement, Retrenchment Compensation,

Conciliation.)

18.

On behalf of the petitioner, it was argued that, petitioner has no other source of income and due to his illegal

termination; his entire family is on verge of starvation. This fact was denied by the Party No. 1 advocate by asserting

that, Tribunal has no power to protect illegal act. I want to see the evidence of the Party No. 1.

19.

Sr. Manager, Mr. Shankar P. Paunikar admitted that, no retrenchment compensation was paid to the petitioner.

He also admitted that, he worked from 1997 to 2005. So, demand of compensation on behalf of the petitioner appears to

be illegal.

20.

In case law--- Delhi Transport Corp. Vs. Ombir Singh 2017 LLR 252, Hon’ble Lordship held that “Where

principles of natural justice are not being complied with, then in such cases, compensation ought to be granted even if

termination of service is found to be valid”. On the basis of principle laid down in Engineering Laghu Udhyog

Employees Union vs Judge, Labour Court and Industrial Tribunal & others – (2003) 12 SCC 1 in which it was held that:-

“no difference whether the matter comes before the tribunal for approval under S.33 or on a reference under S.10 of the

Industrial Dispute Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by

Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as

well that its order of dismissal or discharge was proper.” “A defective enquiry in our opinion stands on the same footing

as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to

satisfy the tribunal that on facts the order of dismissal or discharge was proper.” These principles are also laid down by

Hon’ble Supreme Court in case laws- Punjab Urban Planning & Development authority Vs. Mandip Singh (2016) 7

SCC-571, UPSRTC Vs. Gopal Shukla (2015) SCC 603, Sanjay Singh Vs. National Seed Corporation (2017) 13 SCC

269, V.D. Vegad Vs. State of Gujurat (2017) 2 SCC 508 and Angikr Oriental (Arbic) Higher Secondary School Vs. A.

Harnoon (2017) 2 SCC 510.

21.

Judging the present case in hand with the touch stone of the principles laid down in the above case law and

going through various citations of the Hon’ble High Court as well as different Hon’ble CGITs, my humble opinion is

that, petitioner fails to prove that, he was a appointed as regular or temporary peon or he worked for 240 days in a

calendar year as a peon, but petitioner proved that, no retrenchment compensation was paid by the Party No. 1. It also

appears that, he was not in regular employment. On the contrary, Party No. has their own rules and regulations regarding

their recruitment and promotion of the subordinate staff. Hence, it is ordered:-

ORDER

The action of the management of the Punjab & Sindh Bank through its Sr. Manager, Branch Nagpur and Zonal

Manager, Mumbai in terminating the services of the disputant workman viz Shri Michel S/o Sh. Xaviar Francis

w.e.f. 08/01/2005 is legal & justified, but he is entitled for compensation of Rs. 2, 00,000/- (Rupees two lac only)

instead of retrenchment compensation as well as other equitable relief. Management, Party No. 1 should comply

the order within one month from the date of publication of this award in official gazette, failing which, petitioner

is entitled to interest of 6% per annum from the date of dues amount. The petitioner is not entitled for any other

relief.

S.S. GARG, Presiding Officer

ubZ fnYyh] 8 vxLr] 2019

dk-vk- 1494-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dsujk

cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa vkS|ksfxd vf/kdj.k]

iVuk ¼fcgkj½ ds iapkV ¼lanHkZ la- 15 ¼lh½@2015½ dks izdkf”kr djrh gS tks dsUnzh; ljdkj dks 08-08-2019 dks izkIr gqvk

FkkA

[la- ,y&39025@01@2019&vkbZvkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

6338

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

New Delhi, the 8^th August, 2019

S.O. 1494.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 15 (C) of 2015) of the Industrial Tribunal Court, Patna (Bihar) as

shown in the Annexure, in the industrial dispute between the management of Canara Bank and their workmen, received

by the Central Government on 08.08.2019.

[No. L-39025/01/2019-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

BEFORE THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, PATNA

I.D. Case No. 15 (C) of 2015

Between the management of (1) Branch Manager, Canara Bank, Buxar Branch, Dist.- Buxar, Bihar (2) Canara

Bank through the General Manager, Appellate Authority Personal way Head Office, 140 M.G, Banglore and their

workman Sri Krishna Kumar Mishra, S/O- Bishwanath Mishra, resident of village Dhebani, P.S- Brahmpur, Dist.- Buxar.

For the management :

Sri Rajan Ghoshrave, Advocate

For the Workman :

Sri B. Prasad, President of Bank Employees Federation, Bihar

Present : Vishweshwar Nath Mishra, Presiding Officer,

Industrial Tribunal, Patna.

AWARD

Patna, dt. 17^th July, 2019

1. The present case has been filed u/s 2A (1 & 2) of the Industrial Dispute (Amendment) Act, 2010 by the aforesaid

workman who seeks relief for setting aside the order of the General Manager dated- 13.07.2009 / 28.07.2009 and the

order of General Manager cum disciplinary authority dated- 29.07.2009 and the order of the appellate authority dated-

06.05.2010 and be pleased to direct the management (bank ) to reinstate the workman to his post and position with all

consequential benefits i.e all back wages, arrears of salary on account of revision of salary and arrears of Bipartite

settlement / increment etc.

2. That the workman filed a writ application before the Hon’ble Patna High Court bearing CWJC No.- 4834 of 2011.

The Hon’ble Court finally decided on 27.01.2015 with a direction given to the workman to raise the Industrial Dispute

under Industrial Dispute Act as the alternative remedy is available to him. Matter was raised on 26.03.2015 by the

workman before the Assistant Labour Commissioner (Central), Patna ( for short A.L.C ( C ), who issued notice to the

concern parties and held conciliation proceedings.

3. The Assistant Labour Commissioner ( C ) Patna held discussions / Conciliation Proceedings. The attitude of the

management, during conciliation proceeding was far from conciliatory and there was no scope of redressal of grievances

either before the management or before the conciliation officer.

4. As a period of more than 45 days elapsed with no sign of any settlement, the workman preferred an application

before this tribunal as per the provisions of section 2A ( 1 & 2 ) of the Industrial Disputes (Amendement ) Act, 2010.

5. Before the Reference Case No.- 03 (C) of 2016 this I.D.Case No.- 15 (C) of 2015 was filed by the workman

Sri Krishna Kumar Mishra u/s-2A (1 & ) of the I.D.Act (Amendment) 1947.

6. As per the case of the workman he raised Industrial Dispute before the Assistant Labour Commissioner (C), Patna

vide application dt- 26.03.2015. The Assistant Labour Commissioner (C), Patna held conciliation proceeding. As a

period of three months elapsed with no sign of any settlement, the workman filed this Industrial Dispute Case in this

tribunal. In the mean time the matter was also referred by the Central Government (Ministry of Labour/Shram

Mantralaya ) vide Notification No.- 12012/75/2015-IR(B-II ) dt- 15.02.2016. Further by order dt- 06.12.2018 as in both

the I.D Case and Reference Case the parties were same and the matter for adjudication was also the same therefore, both

the cases were made analogous. Later on a petition was filed by the workman on 14.03.2019 for segregating Reference

Case No.- 03(C) of 2016 from the I.D.Case NO.- 15(C) of 2015 and for adopting the written statement, evidences as well

as other materials available in the I.D.Case in the Reference Case. The petition was allowed by this tribunal on

14.03.2019 and the prayer of the workman was accepted by this tribunal.

7. In the instant case withdrawal petition has been filed on behalf of the workman on 20.05.2019 stating therein that in

view of the recent judgement of the Hon’ble Patna High Court passed in C.W.J.C No.- 2053 of 2016 on 22.11.2017 and

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6339

confirmed in L.P.A No.- 1822 of 2017 on 17.05.2018 the present I.D. Case is not maintainable and praying theirin to

withdraw the instant I.D.Case.

8. Heard both the parties.

9. As the petitioner / workman himself wants to withdraw the I.D.Case, his prayer is hereby allowed and the I.D. Case

is accordingly dispossed off as withdrawn and not maintainable in the light of the aforesaid judgement of the Hon’ble

Patna High Court. This award is effected after gazette notification / publication of award.

Accordingly, this is my award.

Dictated & Corrected by me.

Sd/-

17.07.2019

VISHWESHWAR NATH MISHRA, Presiding Officer

ubZ fnYyh] 8 vxLr] 2019

dk-vk- 1495-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

dksydÙkk 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;] dksydÙkk ds iapkV ¼lanHkZ la- 19@2006½ dks izdkf”kr djrh gS tks dsUnzh;

ljdkj

dks

08-08-2019 dks izkIr gqvk FkkA

[la- ,y&32011@1@2006&vkbZvkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

New Delhi, the 8^th August, 2019

S.O. 1495.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 19/2006) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Kolkata as shown in the Annexure, in the industrial dispute between the management of Kolkata Port Trust and

their workmen, received by the Central Government on 08.08.2019.

[No. L-32011/1/2006-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 19 of 2006

Parties: Employers in relation to the management of Kolkata Port Trust

AND

Their workmen

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Management

Mr. M.K. Das, Industrial Relations Officer.

On behalf of the Workmen :

Mr. K.K. Banerjee, Assistant General Secretary of National Union of

Waterfront Workers (INTUC), Added Party.

Dated: 1^st August, 2019

Industry: Port & Dock.

6340

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

AWARD

By Order No.L-32011/1/2006-IR(B-II) dated 23.05.2006 and corrigendum of even number dated 04.07.2006 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 Kolkata Port Trust, Kolkata in non-regularising the services of 61

workmen (as per list attached as Annexure-I) engaged on temporary basis, on the permanent posts as mentioned

against each name in the list, is legal and justified? If not, to what relief they are entitled for?”

Annexure – 1

List of temporary marine employees for REGULARISATION IN SERVICE (KOPT)

Name

Designature

Date of apptt.

Source

Sri Shyam Mallick

Topaz

03.09.1990

List of Dept.

“ Ramkrishna Balmiki

“

07-06-1991

“

“ Ashoke Kumar Seal

Steward

05-06-1990

“

“ Tapan Kr. Samanta

Bearer

19-05-1990

“

“ Sudhir Das

Cook

12-06-1989

“

“ Lalit Mohan

Seal Bearer

04-11-1989

“

“ Radha Charan Sarkar

Cook

16-07-1989

“

“ Swapan Kr. Das

Bearer

03-07-1989

“

“ Sudhir Ch. Seal

“

11-1991

“

10.

“ Subash Majumder

“

17-07-1991

“

11.

“ Sk. Sahajan

“

18-09-1991

“

12.

“ Anil Kumar Routh

Bhandary

02-08-1990

“

13.

“ Subal Ch. Mondal

“

21-02-1991

“

14.

“ Naresh Ch. Seal

“

06-07-1991

“

15.

“ Santosh Kr. Majumder

“

25-05-1991

“

16.

“ Sudhangshu Kr. Mondal

“

30-08-1996

“

17.

“ Nepal Ch. Seal

“

04-11-1991

“

18.

“ Asit Bairagi

“

23-03-1998

Died-in-harness

19.

“ Dhan Behari

Topaz

12-05-1998

“

20.

“ Sanjay Kr. Barua

Bhandary

24-10-1997

“

21.

“ Kamal Dhanuk

“

28-03-1998

“

22.

“ Sudip Iswar

Topaz

24-04-1998

“

23.

“ Joydev Pandit

Bhandary

24-10-1997

“

24.

“ Rajesh Passi

Topaz

15-10-1997

“

25.

“ Faiz Ahmed

Bhandary

03-08-1997

“

26.

“ Ramlala Das

“

19-11-1997

“

27.

“ Ramashray Ram

“

27-11-1997

“

28.

“ Indrajit Dey

“

29.

“ Arjun Das

“

13-11-1997

“

30.

“ Raghunath Samanta

“

08-11-1998

“

31.

“ Manoj Sahani

“

20-11-1997

“

32.

“ Goutam Mistry

“

19-11-1997

“

33.

“ Oli Akbar Khan

Topaz

30-12-1997

“

34.

“ Tutu Das

Bhandary

25-11-1997 “

35.

“ Dharmender Shaw

“

07-08-1997

“

36.

“ Tusar Kanti Jhali

“

01-08-1997

“

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6341

37.

“ Md. Mujahid

“

28-07-1997

“

38.

“ Aloke Chakraborty

“

06-08-1997

“

39.

“ Ajoy Prasad

“

28-01-1998

“

40.

“ Ram Badan Bin

“

14-11-1997

“

41.

“ Babloo Singh

“

30-08-1997

“

42.

“ Abdul Mannan Khan

“

03-12-1997

“

43.

“ Uttam Barua

“

44.

“ Md. Hasim

“

25-11-1997

“

45.

“ Dilip Mondal

“

46.

“ Anand Dosad

“

47.

“ Tapan Kr. Biswas

“

03-08-1997

“

48.

“ Md. Mustaque

“

18-12-1997

“

49.

“ Bahauddin Mondal

“

50.

“ Mustaque Khan

“

51.

“ Lal Babu Rai

“

52.

“ Tapas Roy

“

53.

“ Sk. Ali Imtiaz

Topaz

12.08.1997

“

54.

“ Basudeb Seal

Bhandary

10.08.1997

“

55.

“ Duku

“

56.

“ Sahabuddin

“

57.

“ Narayan Das

“

58.

“ Parimal Ch. Das

“

59.

“ Rajesh Singh

“

10.12.1997

“

60.

“ Tarak Dutta

“

61.

“ Pradip Naskar

Missing

After issue of usual notices to the parties to the reference, the National Union of Waterfront Workmen (I) filed

statement of claim pleading therein that the concerned workmen belong to the Director, Marine Department and serving

the Trustees in the capacity of Bhandari, Cook, Topaz, Bearer, Steward etc. In the year 1989 some permanent operational

posts of different categories fell vacant due to the retirement/death of permanent employees holding such posts, but with

an ill-motive the management of Kolkata Port Trust planned not to fill up those posts, instead a good number of persons

were picked up from the Employment Exchange and listed dying in harness candidates for carrying out such works

which are perennial in nature. They are performing the same work which the permanent employees perform. They are

being paid consolidated overtime allowance, meal allowance, holiday allowance, bonus etc. like other permanent

employees engaged in similar job in the same vessel. Salaries are also paid through ECS. Thus these persons are due for

regularization/permanent adjustment in service, but the management of Kolkata Port Trust with an ill-motive of

depriving these employees from getting permanent status, forced these persons to avail artificial ‘put off’ of one day on

completion of every 41 days of service. But this ‘put-off’ was actually false and artificial. In most of the case, these

workmen remained on duties in the vessels engaged in dredging or other similar operational works. It was highly

expensive affair for the management, if these workmen were brought back to shore and landed there on completion of

41 days of duties, therefore, they were allowed to work in vessel as usual. When the vessel arrived at shore, those ‘put

off’ days marked against their attendance and also in all relevant records. Their attendance were kept in the same register

in which the attendance of permanent employees were marked. It is further stated that in a trikary manner some 12

temporary employees were temporarily transferred to Chief Medical Officer’s Department and they were made

permanent there and thereafter they were again transferred to the Marine Department as permanent staff. When these

irregularities were brought to the notice of the concerned department, the Director, Marine Department intimated to the

General Secretary of the NUWW(I) on 07.08.2002 that necessary proposal for regularization of such temporary

employees had been placed before the appropriate authority for approval, but it never took place. Therefore, the union

approached the Assistant Labour Commissioner (Central), Kolkata and on failure of conciliation, the matter has been

referred to this Tribunal for adjudication.

Management of Kolkata Port Trust filed its written statement stating that Kolkata Port Trust has a number of

departments under the Kolkata Dock System and one of the departments is Marine Department. In order to facilitate

activities it had become necessary for the Marine Department to engage persons against leave vacancy at a very short

6342

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

time. Initially these persons were engaged from outside, sponsored through Employment Exchange. However, such

practice was objected by the union and it was claimed by the union that men who worked in the past should be preferred

against short term vacancy. Therefore, ex-employees list was accordingly drawn up with persons who had worked in the

Marine Department in the post and who had been sponsored by the Employment Exchange. In the year 1972 separate

departmental and sectional list were prepared of persons who had been engaged against casual vacancies. From these list

not only short-term engagement, but also regular appointments were made. After absorption of most of the ex-employees

of the list of 1972, similar lists were again drawn up in the second time in 1982. In 1995 a committee was constituted for

the purpose of enlisting ex-employees. The committee enlisted 66 candidates for the post of Lascars, 25 candidates for

the post of Bhandaries and 12 candidates for the post Masalchi and 5 candidates for the post of Topaz. Along with

enlistment of ex-employees, it was also decided to fill up temporary posts of Bhandary, Topaz and Masalchi by die-in-

harness candidates subject to fulfillment of certain criteria. In course of time a pool was also formed by die-in-harness

candidates for engagement against short-term vacancies and also adjustment against permanent vacancies. The Kolkata

Port Trust having a large number of work force in different departments, sometimes it was experienced that in one

department a number of employees remained idle for want of adequate job whereas in other department there were

shortage in operational areas. Therefore, identifying such idle work force, 29 permanent employees were adjusted against

various operational posts in the Marine Department. The action of the management was disputed by the union and an

industrial dispute was raised by the union demanding confirmation of 61 persons who were engaged for specified period

and on completion of the said period, they were put off duty under the provisions of Kolkata Port Trust Employees

(Recruitment, Seniority and Promotion) Regulations, 1985 (hereinafter called as the Regulation of 1985 for

convenience). It is further submitted that out of 61 persons under reference, one person, Shri Pradip Naskar is missing.

Therefore, the schedule of reference as framed is not maintainable. It is also submitted by the management that the cause

of 61 persons has not been properly sponsored by the union, therefore, the reference is also not maintainable. The

management has also pleaded that in the Marine Department posts have been filled up on regular basis from time to time

as per operational requirement from various sources viz., listed ex-employees, listed die-in-harness candidates, listed

trade apprentices and surplus personnel. Prior to regularization of listed ex-employees and listed die-in-harness

candidates, they were given contractual employment against short-term vacancies and during such engagement they were

paid Dearness Allowance in addition to pay and Consolidated Overtime Allowance as per Award of the Tribunal in

Reference No. 17 of 1977 and Reference 40 of 19978. The allegations of the union regarding posting of 12 listed

employees in the Medical Department and their subsequent transfer to Marine Department are not only baseless but also

malicious. The contractual engagement of listed ex-employees and die-in-harness candidates are distinctly different from

the term appointment as used in Regulation 6 of the Regulation of 1985. As per Regulation of 1985 an employee is

eligible for confirmation only against a permanent post on completion of prescribed period of probation and since none

of the concerned employees has been appointed against permanent post, demand for their confirmation does not have

merit.

The union filed its rejoinder pleading therein that the term ex-employees is vague and incorrect. Actually these

ex-employees were appointed against permanent vacancies and did the same work what the other permanent employees

did, but the management of Kolkata Port Trust adopting unfair labour practice kept them temporary till now. The

management of Kolkata Port Trust invented a unique system of giving them one day put off after completion of 41 days

of service only to create an artificial ‘break in service’ so that these employees remain deprived for ever from having

status and privileges of permanent workmen.

On behalf of the union WW-01, Shri Sanjay Kumar Barua, WW-02, Shri Asit Bairagi, WW-03, Shri Sudhir

Chandra Seal, WW-04, Shri Shyamapada Bose and WW-05 Shri Samar Mukhopadhyay were examined. However,

WW-05, Shri Samar Mukhopadhyay was not produced for cross-examination. MW-01, Shri Prabhat Kumar

Chattopadhyay was examined on behalf of the management.

I have heard the authorized representative of the parties.

The stand taken by the union is that the concerned workmen are working in Marine Department of the Kolkata

Port Trust in different capacity for the last several years, but the management is not inclined to regularize their services

and one day put off after serving for forty-one days has been deliberately given to them to avoid regularization of service.

Thus it is pleaded that put off for one day on completion of forty-one days service is false and artificial. In fact, the

concerned workmen worked on that day also. It is also pleaded that they are working against permanent post doing all the

work of perennial nature.

According to the management the nature of employment of the workmen under reference is contractual. They

are not working against any permanent post. Hence they are not entitled for regularization of their services. The

management has also at the very outset taken objections to the maintainability of the reference on the ground that out of

61 workmen under reference, Shri Pradip Naskar is missing, therefore, the reference as framed is not maintainable. The

management has also taken the issue of espousal of dispute of the workmen concerned by the union.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6343

Before coming to the merit of the case of the workmen concerned, it will be proper to deal with the issue of

maintainability taken by the management. Admittedly, schedule to the order of reference covers 61 workmen working in

Marine Department of Kolkata Port Trust. The union has not denied the fact that Shri Pradip Naskar missing. The union

has also neither adduced any evidence to negate the objection of the management, nor has produced Shri Pradip Naskar

in the Tribunal to show that he is not missing he is still and working in Kolkata Port Trust. However, merely because a

person is missing the case of rest of the workmen cannot be said to be not maintainable. It is a case of regularization of

61 workers and if merit is found in favour of workmen, then services of only those workmen can be regularized who are

presently working with the Kolkata Port Trust. Hence absence of one of the workmen has nothing to do with the

maintainability of the reference.

10.

A perusal of record shows that initially National Union of Waterfront Workmen (INTUC) was party to the

reference. However, a corrigendum was issued by the Government of India and in place of National Union of Waterfront

Workmen (INTUC), National Union of Waterfront Workmen (I) was made party to the reference and accordingly the

Tribunal also amended the original reference deleting the name of National Union of Waterfront Workmen (INTUC) and

adding National Union of Waterfront Workmen (I) as a party. During pendency of reference National Union of

Waterfront Workers (I) was impleaded by the order of the Tribunal. It was claimed that the workmen under reference had

shifted to the newly added union and therefore, the newly added union has right to continue with reference for the cause

of the workmen concerned. Contrary to it the management has challenged proper espousal of cause claiming that the total

strength of Class-III and Class-IV employees as on 31^st March, 2010 in Kolkata Port Trust was 8275 whereas newly

added union had only membership of 1463 employees. The management has also prayed for disposal of issue of espousal

by the newly added union as preliminary issue. At the time of hearing of the issue of espousal, the authorized

representative of the added union filed copy of membership register whereupon the Tribunal directed him to keep

original with him and to file the same at the time of hearing of reference when the management raises any question of

competency of the union to be a party in the matter. The copy of membership register is on record. This copy is not

disputed by the management. However, from the perusal of the list of members it appears that out of 61 workmen under

reference, 9 workmen are not members of added union. The management witness Shri Prabhat Kumar Chattopadhyay has

also stated that 8 workmen are not reporting for duty for long time. Hence there is no doubt regarding correctness of copy

of the membership register of the added union. Therefore, the added union has right to pursue the reference for the cause

of the workmen concerned.

11.

Even if for the sake of argument it is assumed that the workman concerned are not members of the union, the

question arises whether in absence of espousal of cause by any union, this reference is maintainable.

12.

In The Bombay Union of Journalists v. The Hindu, Bombay, 1961-II-LLJ 436 the Hon’ble Supreme Court

has held that

“In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute,

the test is whether at the date of reference the dispute was taken up as supported by the union of workmen of

the employer against whom the dispute is raised by an individual workman or by an appreciable number of

workmen”

In above case law at the material point of time the establishment of The “Hindu” had besides the aggrieved workman,

only nine employees, out of them seven sere serving at the administrative side and two were journalists. The aggrieved

workman and one more were members of Bombay Union of Journalists, the second was not a member of the union. The

union was a trade union, membership of which was open to all persons who were dependant for their livelihood upon the

practice of journalism etc. Thus including the aggrieved workman, there were only three working journalists. One of

them had raised the dispute. According to the Hon’ble Apex Court if out of the remaining two journalists one had

supported the cause of aggrieved workman, it would be an industrial dispute. Thus according to the above case law even

one workman out of the two was considered to be appreciable number of workmen which shows that it is not the number

of workmen but the representative character of the group of workmen which is material to convert an individual dispute

into industrial dispute.

13.

In Workmen v. Dharmpal Prem Chand, AIR 1966 SC 182 Hon’ble the Apex Court held that notwithstanding

the width of the words used in Section 2(k) of the Act of 1947 a dispute raised by an individual workman cannot become

an industrial dispute unless it is supported either by his union or in the absence of a union by a number of workmen. The

Hon’ble Court also propounded if there is no union of workmen in an establishment, a group of employees can raise the

dispute which become an industrial dispute, even though it is a dispute relating to an individual workman.

14.

Discussing the principles of law enunciated in Bombay Union of Journalists (supra) and Workmen of

Dharampal Prem Chand (supra) the Hon’ble Calcutta High Court in M/s. Reckitt & Colman of India Ltd. v. Fifth

Industrial Tribunal & Ors., 1980 LAB. I.C. 92 has further elaborated the representative character of union or the group

of workmen. In this case 12 out of 18 car drivers had raised the dispute supported by the union, but the question involved

in this case was whether the 18 car drivers should be taken to be the total number of workmen for the purpose of

6344

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

considering whether a substantial number of workmen had raised the dispute? The Hon’ble Court was of the opinion that

as soon as it is held that the drivers form a distinct category and are in a position to affect the industry, the total number

of workmen should be the total number of such workmen forming the particular class or category, the drivers. The Court

treated the 12 car drivers who had raised the dispute to form a substantial part of total number of 18 drivers. The Hon’ble

Court also endorsed the test laid down in its earlier decision in Mitsubishi Sholi Kaisha Ltd. v. The Tenth Industrial

Tribunal of West Bengal, (1972) 76 Cal WN 753 as to whether the group of workmen are in such a position as to affect

or impede the smooth operation of the company by raising a dispute, if yes, then it is an industrial dispute.

15.

In the instant case even if the union is not taken to be competent to have espoused the cause of the aggrieved

workmen, 61 workmen have admittedly raised the present dispute who were working with Kolkata Port Trust in different

capacity of Bhandary, Bearer, Topaz and Masalchi. The management has taken the stand that all these 61 workmen were

contractual workmen. Thus these workmen form a category in themselves sufficient to raise the dispute. By their number

and also by the nature of job they are doing it can be safely said that they are in a position to affect or impede the smooth

operation of the Kolkata Port Trust. Therefore, even if the added union is not taken to have representative character, the

aggrieved workmen themselves are sufficient to raise the dispute. Therefore, the reference cannot be said to be not

maintainable on this count.

16.

Now coming to the issue of regularization of the workmen under reference, they have claimed to have been

working in the Marine Department of Kolkata Port Trust for 30 years and have also claimed to have been doing the same

job as the permanent employees are doing. Despite that their services were not regularized and the management has

forced them to take one day put off after every forty-one days’ service. Thus, according to the workmen their working

against regular vacancies and one days put off is false and artificial and a device developed by the management with an

ill-motive of depriving them from getting permanent status. Contrary to it, the management has contended that these 61

persons are contractual workers, not appointed against permanent post. Therefore, they are not entitled for regularization

of their services.

17.

For his argument, the authorized representative of the added union has cited Suresh Kumar v. State of

Hariyana & Another, 2004 (8) SLR 656, Union Territory of Chandigarh & Others. v. Thangavel & Others, 2004

(8) SLR 448, State of Nagaland & Another v. Smt. Asieno Sakhrie, 2006 (2) SLR 561, Nanu Devi v. Food

Corporation of India & Others, 2004 (2) SLR 186, Ved Prakash & Others v. State of Hariyana & Others, 2004 (2)

SLR 784, Nirpender Singh & Others v. State of Punjab & Others, 2004 (2) SLR 4, Union of India & Others v.

Vartak Labour Union, (2011) 4 SCC 200, Vishwanath Pandey v. State of Bihar & Others, (2013) 10 SCC 545, State

of Gujarat & Others v. PWD Employees Union & Others, (2013) 12 SCC 417 and State of H.P. & Others v. Gehar

Singh, (2007) 12 SCC 43.

18.

On behalf of the management Secretary, State of Karnataka & Others v. Umadevi & Others, (2006) 4 SCC

1, Appeal (Civil) 5666 of 2006, Union of India & Others v. Sheela Rani, Appeal (Civil) 1037 of 2007, State of H.P. &

Others v. Gehar Singh, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh & Others, (2007) 6 SCC 207, Civil

Appeal No. 486 of 2011, State of Rajasthan & Others v. Daya Lal & Others (Supreme Court), Union of India &

Others v. Vartak Labour Union, (2011) 4 SCC 200 and State of Gujarat & Others v. PWD Employees Union &

Others (supra) have been cited.

19.

At this stage it has become necessary to discuss the case laws cited by the parties so that the ratio may be

applied to the facts of the present case. In Suresh Kumar v. State of Hariyana (supra) the workman worked for 11

years as daily wager on the post of Chowkidar in boys’ hostel. Salary was paid to him from the students’ fund. The

Hon’ble Court held that payment of salary from students’ fund cannot be made a ground to deny him the policy framed

by the Government for regularization of services of daily wagers. Therefore, a direction was issued for his regularization.

In Union Territory of Chandigarh v. Thangavel (supra) the workmen who continued in service for 15 to 20

years as daily wagers were directed to be regularized as work done by them not of temporary nature.

In State of Nagaland v. Smt. Asieno Sakhrie (supra) although the appointment was on contract basis, the

petitioner was appointed on compassionate ground in the Nagaland Civil Secretariat. Respondent had pleaded that since

she was appointed on contract basis, her services cannot be regularized. The Respondent also denied existence of any

policy for compassionate appointment. However, treating petitioner’s case for special consideration, her services were

regularized. The case of the petitioner was decided as a special case, not applicable to other casual employees. Therefore,

it has got no binding effect.

In Nanu Devi v. FCI (supra) the Hon’ble High Court of Gauhati directed to consider the case of petitioner for

regularization who was appointed as casual worker at a fixed monthly salary calculated on daily wage basis.

In Ved Prakash v. State of Hariyana (supra) Hon’ble Punjab & Hariyana High Court held that if the ad-hoc

employees fulfils the terms and conditions laid down in policy of regularization, they are entitled for regularization.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6345

In Nripender Singh v. State of Punjab (supra) also the petitioner who was also working continuously for 10

years as daily wager was directed to be regularized as he worked for a fairly long period satisfying the ingredients of

continuity of service and he was also discharging function similar to that being discharged by the regular counterparts.

In Union of India v Vartak Labour Union (supra) even long period of employment as casual labour held not

by itself sufficient to sustain claim for regularization.

In State of Gujarat v. PWD Employees Union (supra) the Court reiteratred the Constitutional Bench judgment

of Umadevi that regularization can be directed only when initial appointment is not suffering from any

illegality/irregularity.

20.

However, the above case laws were decided by the Hon’ble High Courts prior to the decision of the Constitution

Bench of the Hon’ble Apex Court in Secretary, State of Karnataka v. Umadevi (supra) by which the Hon’ble Apex

Court has settled the issue of regularization. The relevant portion of the judgment may be quoted as below:

“……Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our

Constitution and since the rule of law is the core of our Constitution, Court would certainly be disabled from passing an

order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of

Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this

Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and

after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a

contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or

appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly a

temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be

clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of

his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of

such continuance, if the original appointment was not made by following a due process of selection as envisaged by the

relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose

period of employment has come to an end or ad hoc employees who by the very nature of their appointment, do not

acquire any right. The High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue

directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and

in terms of the Constitutional scheme. Merely because, an employee had continued under cover of an order of Court,

which we have described as ‘litigious employment’ in the earlier part of the judgment, he would not be entitled to any

right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in

issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim

direction to continue his employment would hold up the regular procedure for selection or impose on the State the

burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not

interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the

instruments to facilitate the bypassing the constitutional and statutory mandates.”

“36.

While directing that appointments, temporary or casual, be regularized or made permanent, Courts are

swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of

time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the

nature of his engagement. He accepts the employment with eyes open. It may be true that he is not in a position to

bargain – not at arms length – since he might have been searching for some employment so as to eke out his livelihood

and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme

of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be

continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If

the Court were to void a contractual employment of this nature on the ground that the parties were not having equal

bargaining power, that too would not enable the Court to grant any relief to that employee. A total embargo on such

casual or temporary employment is not possible, even the exigencies of administration and if imposed, would only mean

that some people who at least get employment temporarily, contractually or casually, would not be getting even that

employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of

our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if

one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that

employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while

accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post

in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in

that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for

making regular appointments to available posts in the services of the State. The argument that since one has been

working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the

6346

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for

public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity

enshrined in Article 14 of the Constitution of India.”

21.

The Hon’ble Apex Court has also taken care of those persons who had been given irregular appointments in

duly sanctioned posts for a long period. The Hon’ble Court has held that the Central Government or the State

Government and their instrumentalities should regularize their service as a one time measure as below:

“44.

One aspect needs to be clarified. There may be cases where irregular appointment (not illegal

appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarjan (supra), and

referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and

the employees have continued to work for 10 years or more but without the intervention of orders of Courts or of

Tribunals. The question of regularization of the services of such employees may have to be considered on merits in the

light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context,

the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time

measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but

not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to

fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are

being now employed. The process must be set in motion within six months from this date. We also clarify that

regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be

no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed

as per the constitutional scheme.”

22.

Reiterating the principles of law as laid down in Umadevi case (supra) the Hon’ble Apex Court in Hindustan

Aeronautics Ltd. v. Dan Bahadur (supra) held that unless there exists some rule, no direction can be issued for

continuation in serviceor payment of regular salary to a casual, ad hoc or daily rate employee as held in the Secretary,

State of Karnataka v. Umadevi.

23.

Relying on the above decision of the Constitution Bench of the Hon’ble Apex Court the management of Kolkata

Port Trust has contended that the appointment of the workmen under reference was of contractual nature which expired

with the period of contract. Though the added union has denied that services of the workmen under reference were of

contractual nature, but the union itself has filed appointment letters of some workmen say, Ashok Kumar Seal, Swapan

Kumar Das, Radha Charan Sarkar in which it has been specifically mentioned that the engagement was contractual for

specific period mentioned in the letter. These letters were issued to the concerned workmen for a specific period in short

term vacancy, but it is not denied, rather admitted by the management that the 53 workmen under reference are still

working with Kolkata Port Trust. The authorized representative of the management has failed to explain as to how these

workmen are continuing with their job, if the contractual period has expired. However, there is nothing on record to show

that workmen concerned were appointed as against substantive vacancies. Hence the ratio of Secretary, State of

Karnataka v. Umadevi (supra) is fully applicable in this case.

24.

At this juncture the authorized representative of the added union has contended that even if there is no evidence

to show that the workmen concerned are working against permanent posts and they were appointed against substantive

vacancies, they are working under Director, Marine Department of Kolkata Port Trust since 1989, but the management of

Kolkata Port Trust is not inclined to make them permanent or to absorb them in services in order to avoid their

regularization and the workmen are forced to take one day put off after 41 days of service. Thus the management of

Kolkata Port Trust has employed these workmen as ‘badlis’, casuals or temporaries adopting unfair labour practice. The

added union has also contended that where there is evidence to demonstrate that the employer has adopted an unfair

labour practice, Secretary, State of Karnataka v. Umadevi does not apply and the workmen concerned will be entitled

to be regularized in services. For his contention the authorized representative of the added union has relied on the

judgment of the Hon’ble Apex Court in Civil Appeal No. 10856 of 2014, Durgapur Casual Workers Union & Ors. v.

Food Corporation of India & Ors. decided on 9^th December, 2014 (2015 LAB.I.C 771).

25.

In Durgapur Casual Workers Union case (supra) the issue of absorption of casual workmen by the

management of FCI was referred by the Government to the Tribunal. After evidence of parties, the Tribunal answered the

reference in favour of the workmen and held that continued casualisation of service of workmen amounted to unfair

labour practice as defined in Item No. 10 in Part-I of Fifth Schedule of the Act of 1947. The corporation filed writ

petition against the Award passed by the Tribunal which was dismissed by the Hon’ble Single Judge of Calcutta High

Court. Defence of the corporation was that the appointments of the workmen were back door appointments, therefore,

they were not entitled for regularization in view of decision of the Hon’ble Apex Court in Umadevi case (supra).

However, the Division Bench of the Hon’ble Calcutta High Court set aside the Award relying upon Umadevi case

(supra). The Hon’ble Apex Court in above cited case of Durgapur Casual Workers Union (supra) discussed the effect

of the ratio of Umadevi case at length. But relying on Maharashtra State Road Transport and another v. Casteribe

Rajya Parivahan Karmachari Sanghatan, (2009) 8 SCC 556 held that where the Tribunal has given specific finding of

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6347

unfair labour practice on the part of the management corporation, the Industrial Tribunal is not stripped of its power

under the Industrial Disputes Act, 1947. The Hon’ble Apex Court quoted some paragraphs of Maharashtra State Road

Transport (supra) with approval. The relevant paragraph may be mentioned as below:

“34.

It is true that Dharwad Distt. PWD Literate Daily Wage Employees’ Assn. v. State of Karnataka,

(1990) 2 SCC 396 arising out of industrial adjudication has been considered in State of Karnataka v. Umadevi (3),

(2006) 4 SCC 1 and that decision has been held to be not laying down the correct law but a careful and complete reading

of the decision in Umadevi (3) leaves no manner of doubt that what this Court was concerned in Umadevi (3) was the

exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the

matters of public employment where the employees have been engaged as contractual, temporary or casual workers not

based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring

them status of permanency have been passed.

35.

Umadevi (3) is an authoritative pronouncement for the proposition that the Supreme Court (Article 32)

and the High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of

temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself ws made regularly in terms

of the constitutional scheme.

36.

Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section

30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair

labour practice on the party of the employer under Item 6 of Schedule IV where the posts on which they have been

working exist. Umadevi (3) cannot be held to have overridden the powers of the Industrial and Labour Courts in passing

appropriate order under Section 10 of the MRTU and PULP Act, once unfair labour practice on the part of the employer

under Item 6 of Schedule IV is established.”

26.

Apart from this, the Hon’ble Apex Court has also reiterated its earlier judgment of Ajaypal Singh v. Hariyana

Warehousing Corporation in Civil Appeal No. 6327 of 2014 decidedon 9^th July, 2014 in which the Hon’ble Court has

held that the provisions of Industrial Disputes Act and power of Industrial and Labour Court provided therein were not at

all under consideration in Umadevi case. The issue pertaining to unfair labour practice was neither the subject mater for

decision, nor was it decided. The Industrial Disputes Act made for settlement of industrial disputes prohibits unfair

labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period

without giving them the status and privileges of permanent employees. The Hon’ble Court also held that it is always open

to the employer to issue an order of retrenchment on the ground that initial engagement of the employees was not in

conformity with the Articles 14 and 16 of the Constitution of India. Thus even after conferment of permanent status, the

employer can pass order of retrenchment of the employees in accordance with the provisions of Section 25F of the Act of

1947. Thus where there is unfair labour practice on the part of the employer in continuing the casual workers for a long

period without making them permanent, the ratio of Umadevi case is not applicable and Tribunal has power to stop the

unfair labour practice by the employer.

27.

In the instant case, it is not disputed that the concerned workmen are working with the management of Kolkata

Port Trust since 1989. This fact is also admitted by the management witness, WW-01, Shri Prabhat Kumar

Chattopadhyay. The union’s witnesses, WW-01,Shri Sanjay Kumar Barua and WW-02, Shri Asit Kumar Bairagi have

deposed that they have been shown put off on each and every 41 days, but in reality they have not been put off their duty.

They have further stated that as and when they were on vessel, specially down the river, they had to work continuously

without any break of service and in attendance register one day put off after every 41 days work is also admitted by the

management in Ext. W-014 and also by MW-01, Shri Prabhat Kumar Chattopadhyay in his cross-examination where he

has deposed that “the said employees are said to be contractual employees as they are given one day’s break after a spell

of 41 days work and their remuneration are calculated on the basis of number of days work performed by them.” Thus

break of one day artificial put off is also reflected from the statement of the management witness. Thus breaks in service

by the management is claimed to be unfair labour practice by the added union. The unfair labour practice has been

defined under Section 2(ra) of the Act of 1947 to mean any of the practices specified in the Fifth Schedule. Item No. 10

of the Fifth Schedule mentions as follows:

“10.

To employ workman as “badlis”, casuals or temporaries and to continue them as such for years, with

the object of depriving them of the status and privileges of permanent workmen.”

28.

In the instant case also it is admitted between the parties that the concerned workmen are working with Kolkata

Port Trust since 1989. Though the management has branded these workmen as contractual workmen, but the

management has failed to show as to how even after expiry of terms of contract, these workmen continued to work.

Contrary to it the case of added union is that the management has deliberately continued the workmen under reference as

“badlis” or casual workers with the object of depriving them from the status of permanent employees. The evidence

available on record is sufficient to show that the workmen have been kept as casual workers and they have been forced to

6348

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

take put off of one day after service of every 41 days. This is nothing but unfair labour practice on the part of the

management of Kolkata Port Trust.

29.

This is not out of place to mention that out of 61 workmen, 8 workmen are not working with Kolkata Port Trust

at present. These names have been disclosed by MW-01, Shri Prabhat Kumar Chattopadhyay in his examination in chief,

but the added union has not cross-examined him on this point. The only question which has been asked to the witness is

whether these employees worked continuously for 17 months. Hence the statement of the witness which is not challenged

by the added union shall be taken to be admitted. Therefore, persons who are not presently working with the Kolkata Port

Trust can in no case be absorbed in service. Only those workmen are entitled for absorption who are presently working

with the Kolkata Port Trust.

30.

Further as held by the Hon’ble Apex Court in Civil Appeal No. 5666 of 2006, Union of India v. Sheela Rani

decided on 08.12.2006 regularization cannot be directed from the back date, as it will disturb the seniority or regularly

appointed employees in the cadre. Hence the workmen would be entitled for regularization with effect from the date of

publication of this Award.

31.

In view of above, continuance of the workman concerned with breaks as casual workers for a period of 30 years

from now certainly amounts to unfair labour practice. Therefore, social justice demands that the order of absorption of

the workmen concerned may be passed directing the management of Kolkata Port Trust to absorb these workmen under

reference who are still working with the Kolkata Port Trust.

32.

Award is passed accordingly.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

Dated, Kolkata,

1^st August, 2019

ubZ fnYyh] 8 vxLr] 2019

dk-vk- 1496-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wfu;u

cSad vkWQ bafM;k 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- 2@2010½ dks izdkf”kr djrh gS tks dsUnzh;

ljdkj dks 08-08-2019 dks izkIr gqvk FkkA

[la- ,y&12012@65@2009&vkbZvkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

New Delhi, the 8^th August, 2019

S.O. 1496.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 2/2010) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Ernakulam as shown in the Annexure, in the industrial dispute between the management of Union Bank of India

and their workmen, received by the Central Government on 08.08.2019.

[No. L-12012/65/2009-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 31^st day of July 2019, 9^th Sravana 1941)

ID No. 2 of 2010

Workman…

Smt. Rema K. K,

Kurapallil, Kunchutheni PO,

Kunchutheni,

Distt. Idukki.

By Adv. Anil Kumar

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6349

Management…

General Manager (HRM),

Union Bank of India,

GM’s office,

Central Office, 239,

Vidhan Bhavan Marg,

Nariman Point,

Mumbai – 400021

By Adv. Ajay Khosh

This case coming up for final hearing on 7-6-2019 and this Tribunal-Cum-Labour Court on 31-7-2019 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-12012/65/2009-IR(B-II) dated 12-11-2009 referred the following dispute for adjudication by this Tribunal-

“Whether the action of the management of Union Bank of India in dismissing Smt. Rema K. K, an

ex-employee of its Rajakkad Branch from the service for the alleged misconduct of non-performing of

duties which were not supposed to be attended to by a part time sweeper was justified? To what relief this

workman is entitled to?”

According to the Counsel, the worker joined the service of the management as Part Time Sweeper in the

year 1987 in its Rajakumari branch. While she was working in Rajakkad branch, she was subject to disciplinary action.

She was issued a memo on 17-7-2006 alleging certain misconducts. She submitted reply on 19-8-2006. Another charge

memo was issued to her on 31-8-2006 and an enquiry was ordered against her. In the above chargesheet, it was

mentioned that the memos dated 27-12-2005, 28-2-2006, 23-5-2006 & 17-7-2006 will form part of the charge memo.

During the pendency of the proposed enquiry, a supplementary chargesheet dated 15-2-2007 was issued and the Enquiry

Officer commenced the enquiry on 24-7-2007. The worker sought the assistance of a lawyer to defend her case since the

allegations made were of very serious nature. The Enquiry Officer rejected the claim and allowed her to engage a Union

Representative as Defence Assistant. The Enquiry Officer proceeded with the enquiry on the first sitting itself by

marking 44 documents and examining the management witness. The request seeking time to engage a defence

representative was denied by the Enquiry Officer. The worker studied only upto 6^th standard and she was not well aware

of the proceedings of enquiry. The Enquiry Officer did not understand Malayalam and recorded all the proceedings in

English which she did not understand. Appointing an Enquiry Officer who doesnot understand Malayalam to conduct an

enquiry against a Part Time Sweeper was done with some ulterior motive. Capitalizing on the ignorance of the worker,

the Enquiry Officer conducted the proceedings and submitted his report finding that 6 out of 7charges are proved against

the workman. The enquiry was conducted in flagrant violation of the principles of natural justice. There was no reliable

witness or documents in the enquiry to prove the allegations against the worker apart from the testimony of interested

witness. The worker was not given a proper opportunity to defend her case. The findings of the Enquiry Officer are

perverse and are not based on any material evidence. In the above circumstances the enquiry conducted against the

worker is liable to be set aside. The worker had put in 22 years of unblemished service under the management. She is a

widow having 3 school going children. The punishment of dismissal imposed on the worker is too harsh and is

disproportionate to the charges alleged to have been proved in the enquiry. She was not alternatively or profitably

employed or engaged anywhere.

The management filed their written statement denying all the above allegations. They raised a preliminary

issue that there is total non-application of mind on the part of Government of India in framing terms of reference in as

much as the worker was punished for her acts of commission which amounted to misconduct and not for non-performing

of duties. It was also pointed out that part time sweepers are required to work in branch for 5 hours per day and they will

have to attend other duties for which she was suitably compensated.

According to the management, the domestic enquiry conducted against the worker was as per rules and

following the principles of natural justice. The worker participated in the enquiry effectively. Hence the validity of the

enquiry may be decided as a preliminary issue and in case it is found that the domestic enquiry was not fair and proper,

the management may be given an opportunity to adduce evidence under Section 11-A of Industrial Disputes Act to

substantiate the punishment of dismissal imposed on the worker. The charges levelled against the worker are of grave

nature. In the banking business, absolute devotion, diligence, integrity and honesty needs to be preserved by every bank

employee. If this is not done, the confidence of the public would be impaired. Since the worker committed misconduct

6350

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

for his personal aims and against the interest of the bank and the customers, disciplinary action was initiated against her.

The allegations levelled against the worker are-

(1)

The worker collected cash in local collection of cheques from Idukki District branch, Rajakkad branch and

failed to remit the collected amount of Rs.13557/- at Rajakkad branch.

(2)

Cheque No.16824 drawn on Idukki District Cooperative Bank was returned unpaid on 17-4-2006. The

cheque was not returned to the Bank and the same was returned only after the audit officials visited her

house on 30-6-2006.

(3)

The worker intentionally misplaced the LCC Register.

(4)

The worker handed over with the branch officials 2 more cheques which was sent through her for

collection on 23-3-2006 and 28-3-2006 and were presented on 23-6-2006. She kept the cheques with her

for about 3 months.

(5)

The worker borrowed an amount of Rs.2500/- in April 2006 and did not repaid it.

(6)

She borrowed Rs.1500/- in February 2006 from Shri V.K. Antony, an Account Holder and did not repay

the same.

(7)

She borrowed an amount of Rs.1400/- from Shri Nobi, Proprietor of M/S. Johns Gift Palace and did not

repay the same.

(8)

The worker had taken an amount of Rs.6500/- to be credited to M/S. Haritha Swayam Sahaya Sangham

and she entered the credit in the pass book in her own handwriting. It was later found that the money was

not deposited in the bank against the above account.

(9)

One Mrs. Laila Sali lodged a complaint with the police alleging that the worker had taken Rs.2000/- from

her hand bag while travelling together in a bus on 7-10-2006.

(10) The worker received Rs.8000/- from a complainant for crediting into her account but the same was not

credited inspite of repeated reminders.

(11) The worker left the branch on 24-6-2006 without obtaining proper permission.

(12) The worker remained unauthorisedly absent from 10-10-2006.

The above acts of omission and commission constitute the following misconducts and she was charged for the same. She

was responsible for doing acts prejudicial to the interest of the bank and has committed gross misconduct by wilfully

disobeying the lawful and reasonable orders of the management. Remaining unauthorisedly absent for more than 30 days

is also a gross misconduct. She has also committed minor misconducts such as absence without leave, breach of rule of

business of the bank, collecting moneys within the premises of the bank without previous permission of the management

and incurring debts to an extent considered by management as excessive. With regard to the conduct of domestic

enquiry, it is pleaded that the worker was afforded adequate opportunity to represent her case. She wanted an Advocate

as her Defence Assistant which was not legally permissible as neither the Enquiry Officer nor the Presenting Officer

were legally qualified persons. She was allowed to take the assistance of a Union representative or a co-worker which she

did not avail. The management marked documents by consent and without any objection from the worker. She fully

participated in the enquiry. Since the Enquiry Officer was not well versed in Malayalam, the deposition of witnesses and

enquiry proceedings were translated to her. The enquiry was posted to 13-8-2007 to facilitate the worker to arrange a

Defence Representative and also to put forth her defence properly. However she failed to avail the same. The copies of

the enquiry proceedings were given to the worker on a day to day basis. After completing the enquiry, the Enquiry

Officer found that the following misconducts were proved against the worker.

Gross misconducts :

Doing acts prejudicial to the interest of the bank, remaining unauthorisedly absent without intimation continuously for a

period exceeding 30 days and wilful disobedience of the lawful and disobedience orders of the management.

Minor misconducts :

Absence without leave, breach of rules of bank and incurring debts to an extent considered by management as excessive.

After the receipt of the Enquiry Report, a copy of the report along with the proposed punishment was communicated to

the worker inviting her explanation for the same. She was also given a personal hearing on 16-10-2007. After considering

the Enquiry Report, the proceedings of enquiry and the submissions made by the worker, the Disciplinary Authority

found that the enquiry was conducted in a fair and proper manner and on the basis of the findings of the enquiry, the

worker was dismissed from service without notice. The appeal preferred by her was also dismissed on 30-4-2008. From

the above, it is clear that the enquiry was conducted in a fair and proper manner and the findings of enquiry is based on

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6351

evidence adduced during the course of enquiry. Since the misconduct alleged and proved against the worker are of very

serious nature, she is not entitled to be reinstated into the service of the Bank.

The worker filed her rejoinder denying all the allegations in the written statement and affirming the claim

made in the claim statement. According to the worker, the allegations based on which the worker was terminated has

nothing to do with her work. She also denied the statement of the Bank that she was being paid by the Bank for doing

other duties. There is no provision in the bipartite settlement enabling the management to require the workman to

perform any duties other than that of a sweeper. Punishment imposed on the worker is excessive and not commensurate

with the charges said to have been proved in the enquiry.

The management raised a preliminary objection regarding maintainability of reference since the reference

made by the Government of India is at variance with the actual issue involved. According to the counsel for the

management, the actual issue involved is that the worker is punished for her acts and ommissions which amounted to

misconduct on her part and not for non-performing the duties which were not supposed to be attended by a part time

sweeper.

The worker has a case that she was only a part time sweeper and she was not supposed to handle the money

of the bank. Even a cash peon of the bank is supposed to handle only upto Rs.5000/- as per 9^thBipartite settlement dated

27-4-2010. As per the settlement dated 19-10-1966, a subordinate staff can be asked to officiate in a higher cadre by an

order in writing. According to the worker, she was not given any order in writing to officiate in a higher cadre and was

not paid any allowance as stipulated vide the settlements. It can be seen from the pleadings, documents and arguments

before this Tribunal that the worker is proceeded against for the omission and commission of serious misconducts,

which culminated in the dismissal of the worker. Hence it is very clear that the language of reference is not exactly in

consonance with the dispute with the worker and management. As per Section 10(1) of the ID Act 1947, the appropriate

Government may “refer the dispute or any matter appearing to be connected with or relevant to the dispute”. As per

Section 10(4) of ID Act, the Labour Courts and Tribunals “shall confine its adjudication to those points and matters

incidental thereto.” By a literal interpretation of the above provisions, it is very clear that the Industrial Tribunal being

creation of statute cannot go beyond the scope of the reference.

In the case of Tata Iron & Steel Col.Ltd. Vs State of Jharkhand, 2013(4) LLN. 14(SC), the Hon’ble Supreme Court

held that

“When the reference is defective, the right course of action open to Courts is to quash the reference with a

direction to make a fresh reference incorporating the real essense of the dispute.”

The Hon’ble Supreme Court in Delhi Cloth and General Mills Pvt. Company Ltd. Vs The workman, AIR(1967) SC-469

held that –

“ The Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute,

because in most cases, the reference is so cryptic that it is impossible to cull out there from the various points

about which the parties were at variance leading to the trouble”

Going by the above judicial dictums laid down by the Apex Court, the Tribunal shall attempt to construe the order of

reference in a fair and reasonable manner. As pointed out by Hon’ble Supreme Court in Express Newspaper Ltd. Vs.

workman, AIR(1963) SC 567, we may have to look into the substance rather than the form of the order of reference.

This is a case where the worker was dismissed from service of the Bank in 2007. As per the order of

reference, the issue to be adjudicated is the dismissal of the worker from service of the Bank for the alleged misconduct

of non performing duties which are not supposed to be attended by a Part Time Sweeper. From the pleadings, it is seen

that the issue involved is the dismissal of the worker but for alleged misconduct of misappropriation of money belonging

to the bank, unauthorised absence etc. It will be really harsh on the worker, who happens to be a Part Time Sweeper, if

she is directed to get a proper reference after 12 years of her dismissal. It is felt that the appropriate course of action at

this stage will be to adopt the dictum laid down by the Supreme Court in Delhi Cloth Mills Case ( Supra) that the

pleadings of the parties to the dispute shall be looked in to cull out therefrom the various points about which the parties

are at variance.

After completion of pleadings, the Enquiry Officer was examined as MW-1 and the enquiry file is marked

as Exhibit M-1. Validity of the enquiry was considered as a preliminary issue. The enquiry was found to be invalid and

vitiated by violation of principles of natural justice and denial of reasonable opportunity by this Tribunal vide its order

dated 3-6-2014. The management was allowed to adduce fresh evidence on their request to prove the charges against the

worker. The management examined its witness MW-2 and marked Exhibits M-1(a) to M-1(aq). The workman did not

adduce any oral or documentary evidence.

10.

Having found the preliminary issue of maintainability and validity of the enquiry against the management,

the following issues are framed for final adjudication-

6352

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

(1)

Whether the management succeeded in proving the charges against the worker through legal evidence?

(2)

Whether the punishment awarded is legal and justified and proportionate to the charges proved?

(3)

If not , relief if any.

11.

Issue No.1-

Since the enquiry conducted by the management is found to be invalid, this Tribunal will have to examine only the

evidence adduced before this Tribunal to arrive at a conclusion whether the management succeeded in proving the

charges. The Hon’ble Supreme Court in the case of Neeta Kapilesh Vs Presiding Officer, Labour Court, 1999-KHC-

919 held that once the Tribunal finds an enquiry illegal, evidence in the enquiry is wiped out and the Tribunal will have

to record the findings on the basis of evidence before it. The same sentiment was expressed by Hon’ble High Court in

Lux Co Electronics Vs Presiding Officer Industrial Tribunal, 2004-LLR-461.

12.

According to the management, the following charges were levelled against the worker-

(1)

Doing acts prejudicial to the interest of the Bank

(2)

Remaining unauthorisely absent for more than 30 days without intimation.

(3)

Wilful disobedience of the lawful and reasonable orders of the management.

(4)

Absence without leave.

(5)

Breach of rules of business of the Bank.

(6)

Incurring debts to an extent considered by the management as excessive.

Details of allegations are:-

(1)

The worker collected cash in local collection of cheques from Idukki District branch, Rajakkad branch and

failed to remit the collected amount of Rs.13557/- at Rajakkad branch.

(2)

Cheque No.16824 drawn on Idukki District Cooperative Bank was returned unpaid on 17-4-2006. The

cheque was not returned to the Bank and the same was returned only after the audit officials visited her

house on 30-6-2006.

(3)

The worker intentionally misplaced the LCC Register.

(4)

The worker handed over with the branch officials 2 more cheques which was sent through her for

collection on 23-3-2006 and 28-3-2006 and were presented on 23-6-2006. She kept the cheques with her

for about 3 months.

(5)

The worker borrowed an amount of Rs. 2500/- in April 2006 and did not repaid it.

(6)

She borrowed Rs.1500/- in February 2006 from Shri V.K. Antony, an Account Holder and did not repay

the same.

(7)

She borrowed an amount of Rs.1400/- from Shri Nobi, Proprietor of M/s. Johns Gift Palace and did not

repay the same.

(8)

The worker had taken an amount of Rs. 6500/- to be credited to M/s. Haritha Swayam Sahaya Sangham

and she entered the credit in the pass book in her own handwriting. It was later found that the money was

not deposited in the bank against the above account.

(9)

One Mrs. Laila Sali lodged a complaint with the police alleging that the worker had taken Rs.2000/- from

her hand bag while travelling together in a bus on 7-10-2006.

(10) The worker received Rs. 8000/- from a complainant for crediting into her account but the same was not

credited inspite of repeated reminders.

(11) The worker left the branch on 24-6-2006 without obtaining proper permission.

(12) The worker remained unauthorisedly absent from 10-10-2006

13.

During the course of argument, the learned counsel for the worker raised an objection regarding the

documents produced in this proceedings. According to him, all the documents are photocopies and some of the

documents such as Exhibit M-1(y) are incomplete. It is an accepted principle of law that documents which are marked

during the course of a legal proceedings without objection cannot be challenged in the subsequent dates of proceedings.

The learned counsel for management relied on the decision of Hon’ble High court of Kerala in Anandan Nambiar Vs

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6353

Rajalakshmi, 1998(1)KLT-536 to argue that copies of documents admitted in the court without objection as to its

admissibility cannot be challenged later in the proceedings or in the Appellate Court.

14.

One of the main allegation in the charge against the worker is that she collected cash towards three cheques

on 17-4-2006 as part of local collection of cheques (LCC) from Idukki District Cooperative Bank, Rajakkad branch

totaling Rs.13557/- and did not remit the amount with the management Bank. Exhibit M-1(l) and M-1(n) are the

documents relied by the management to show that 4 cheques were sent for collection through LCC. From Exhibit M-

1(n), it can be seen that the cheques amounting to Rs. 13557/- is realized and one cheque for Rs.10700/- is returned by

the Bank. Exhibit M-1(o) is the report sent by the Manager to the Regional Office which indicates that the worker has not

returned the cash even on 26-6-2006. Exhibit M-1(o) also speaks of withholding of two earlier cheques by the worker

and dishonoring of cheque worth Rs.15000/- issued by the worker to one Mr. Sivadas. Exhibit M-1(p) shows that an

amount of Rs. 13557/- is adjusted by the Bank debiting suspense account. Exhibit M-1(x) dated 19-8-2006 is the reply

given by the worker to the management for Exhibit M-1(w) memo dated 17-7-2006. In the Exhibit M-1(w) memo, apart

from the above misappropriation of funds, other charges such as non return of cheques, intentional misplacement of LCC

reply in Exhibit M-1(x), she admits that (1) she took the cheques on 17-4-06 for collection and 3 cheques were encashed

and one was returned (2) money is borrowed from various persons because of the sickness of her husband and child .

She also stated that the cash and un-encashed cheque could not be returned as the bag in which the cash and cheque were

kept was stolen by a person to whom she owes money.

15.

According to the counsel for worker, the worker was only a part time sweeper and she was only

officiating as peon during the relevant point of time. As per para 9.10 of Settlement on Industrial Disputes dated 19-10-

1966, whenever a Bank requests a workman to officiate in a post of a higher cadre, it will do so by an order in writing.

Further as per 9^thBipartite settlement dated 24-10-2010 even a cash peon can handle only Rs.5000 in cash. In the present

case, there was no order in writing to the worker to officiate as cash peon and further the amount involved for collection

is Rs. 24257/- which is much higher than the authorized amount to be handled by a cash peon. Hence according to the

counsel, this is a clear case where the worker is asked to perform duties which she is not supposed to do. Apart from the

above, the learned counsel for the worker also argued that the signature of the worker in Exhibit M-1(a) doesnot tally

with her signature in other documents. Exhibit M-1(a) is an admission by the worker that she has taken Rs.6500/- for

deposit from a representative of M/s. Haritha Cooperative society on 12-9-2006 for deposit in their account, but the

amount was not deposited by her in the account. The counsel also pointed out that Exhibit M-1(z) passbook entries

doesnot tally with M-1(aa) ledger entries. He also expressed a doubt that the handwriting in exhibits M-1(e), M-1(ab),

M-1(ac) and M-1(ad) are same, pointing to the fact that the complaints are fabricated by somebody to implicate the

worker in the case. With regard to deliberate displacement of LCC Register, the learned counsel for the worker argued

that as per Exhibit M-1(o), the register was available with the Bank till 18-5-2006, one month after the incident. As per

exhibit M-1(y), the register was located on 1-7-2006 by Shri P.V. Soman, Daftary from among the old records and the

same was not available from 18-4-2006. The learned counsel for the workman also argued that none of the complainants

were examined before this Tribunal and all the complaints were marked only through MW-2. There is no loss to the

Bank and the involvement of some body from the Bank in the whole episode cannot be ruled out.

16.

I am not in a position to fully agree with the argument of the counsel for the workman. It is true that the

rules require that when a subordinate staff is authorized to officiate in a higher position, it shall be done by an order in

writing. This is particularly so when a regular Daftary is available in the Bank who can be entrusted with the

responsibility of the LCC. It is very clear that the Bank branch violated many norms as pointed out in the special audit

report i.e. exhibit M-1(y). It is mentioned therein that “also the branch has flouted the security norms while sending the

sub staff for collection of LCC cheques”. But the question is whether such flauting of norms by branch will give any

authority to an employee to misappropriate the money belonging to the Bank for months together. The answer is in the

negative. The management succeeded in proving that the money belonging to the Bank is misappropriated by the

worker and she was also holding on to the cheques which were either returned or not submitted to the Bank for

realization. The worker has admitted this part of the charge in Exhibit M-1(x) reply to the charge memo. It is not possible

to accept the claim of the worker that the bag containing the cash as well as the cheque were snatched by some body

while returning after the collection of cheque. Hence, the management succeeded in holding that the worker was

withholding the money belonging to the bank unauthorisedly for a long period after the realization of the cheques.

17.

With regard to the misplacement of LCC Register, there is no clarity regarding the involvement of the

worker. Exhibit M-1(o) says that the LCC Register was not available for verification since 19-5-2006. As per exhibit

M-1(y), “ the LCC Register is reportedly missing since 18-4-2006, the date from which the fraud took place and the

branch started a new LCC Register from 19-5-2006 without taking any effort to trace out the LCC Register”. The missing

LCC Register was finally traced in the old record room by the Daftary. It is not clear how the Bank handled the local

cash collection for one month from 18-4-2006 to 19-5-2006 if the LCC Register was missing. Hence it is only a vague

presumption that the LCC register is deliberately misplaced by the worker without any supporting evidence.

6354

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

18.

Another major charge against the worker in the memo is her unauthroised absence from 10-10-2006.

Exhibits M-1(h), M-1(ak) & M-1(al) sufficiently indicate that the worker remained unauthorisedly absent from 10-10-

2006. According to the counsel for management, the worker did not respond to any of the telegrams or memos issued to

her for the unauthorized absence beyond one month from 10-10-2006. Unauthorized absence is a charge which can be

proved through documents and the management has succeeded in proving that the worker was unauthorisedly absent for

more than 30 days continuously without any intimation from 10-10-2006.

19.

With regard to the allegation that the worker willfully disobeyed the lawful and reasonable orders, the

management produced documents M-1(ag), M-1(ah), M-1(ak), & M-1(al). These exhibits support two charges against

the worker- (1) that the worker remained unauthorisedly absent for more than 30 days and (2) that the worker disobeyed

the reasonable orders of the superiors. Exhibit M-1(ak) is a memo issued to that effect to the worker. The worker neither

responded nor obeyed the orders recalling her to join duty as per M-1(ah) & M-1(al) telegrams.

20.

Another allegation against the worker by the management is breach of rules of business of the Bank. It is

alleged that the worker issued a cheque to one V.K.Sivadas for Rs.15000/- without maintaining sufficient balance. The

cheque is dishonoured twice by the bank. Exhibit M-1(e) is a complaint filed by one Shri Sivadas V.K dated 12-11-2005

alleging that the worker has borrowed Rs.15000/- from him on the basis of a cheque issued to him for the same amount.

According to the complaint, he presented the cheque twice through Federal bank and the same is returned by the Bank.

The management substantiated the allegation through documents M-1(a), M-1(b) and M-1(c). Exhibit M-1(d) is a cheque

return memo issued by the management Bank to Federal Bank stating that the cheque issued by the worker is returned

due to insufficiency of funds in the account. Exhibit M-1(h) dated 11-8-2005 is another cheque return memo issued by

the management Bank stating that the payment against the cheque is stopped by the drawee. Exhibit M-1(f) is a copy of

the communication issued by Federal Bank to Shri Shivdas V.K informing him of the dishonouring of the cheque by the

bank. Exhibit M-1(g) is a cheque dated 2-5-2005 for an amount of Rs.15000/- issued by the worker to Shri V.K.Sivadas.

Through these documents, the management succeeded in proving that the worker committed breach of rules of business

of the bank.

21.

The management produced photocopies of series of complaints filed by various customers against the

worker alleging that she has taken money and favours from them and same is not returned to them. As rightly pointed out

by the learned counsel for the worker, none of the complainants were examined to prove the authenticity of those

documents. Hence the evidentiary value of these documents in a proceeding like this is under challenge. Hence I am

inclined to reject those complaints as evidence in these proceedings.

22.

The management succeeded in substantially proving all the major allegations against the worker. Hence I

find that the major charges against the worker are substantially proved by the management through legal evidence.

Hence Issue No. 1 is decided in favour of the management and against the worker.

23.

Issue No.2 & 3- The charges levelled against the worker by the management are of very serious nature

particularly the case which involves misappropriation of funds belonging to the management. The Hon’ble Supreme

Court as well as High Courts have decreed that when an employee is holding a position of trust, any action on his part

which creates mistrust among the management as well as the general public shall be seen as a serious misconduct. In the

case of State Bank of India Vs Ramesh Dinkar Punde, Civil Appeal No. 2055/2003, the Hon’ble supreme court held

that;

“ It needs to be emphasized that in the banking business, absolute devotion, diligence, integrity and

honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not

observed, the confidence of the public/ depositors would be impaired.”

In case The Chairman and Managing Director, United Commercial Vs. P.C.Kakkar, (2003)4 SCC 364 the Honble

Supreme court held-

“A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of

the depositors and the customers. Every officer/ employee of the bank is required to take all possible steps

to protect the interest of the bank and to discharge his duties with utmost integrity, honesty, devotion and

diligence and to do nothing which is unbecoming of a bank officer/ employee of the bank. As was

observed by this court in Disciplinary Authority cum Regional Manager Vs Nikunja Bihari

Patnayak(1996) 9 SCC 69, it is no defence available to say that there was no loss or profit resulted in case,

when the officer/employee acted without authority.”

In the case of Regional Manager UPSRTC Vs Hotilal (2003)3 SCC 605, the Honble Supreme court observed that-

“If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of

functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be

dealt with iron hands. Where the person deals with public money or is engaged in financial transactions

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6355

or acts in a judiciary capacity, highest degree of integrity and trust worthiness is a must and

unexceptionable.”

Going by the law laid down by the Apex court in the above judgments, the penalty awarded in the present case is legally

justified.

24.

The only question that remains to be answered is with regard to the proportionality of the punishment awarded

by the management to the worker. There is no doubt that the allegations against the worker by the management are of

grave nature and is required to be handled as such. However it may be seen that the worker is only a Part Time Sweeper.

In the normal course of business of the Bank, she is not supposed to handle the cash of the Management Bank. She was

directed to attend the work as per the oral instructions of the Bank, which is not as per Bipartite Settlement. As already

pointed out in Exhibit M-1(y), “the Bank has flouted security norms while sending the sub staff for collection of LCC

cheques”. Hence the Bank is also equally responsible for the misappropriation of cash by the worker, which is one of the

major charges proved against the worker. Though, the other proved charges are also of serious nature, it may not warrant

termination of her service. In cases of financial fraud, it is not proper to direct the Management to take her back in

service. However considering the extenuating circumstances in this case as explained above, I am of the considered view

that interest of justice will be met if the punishment awarded to the worker is modified to that of discharge with

consequential benefits.

25.

Hence the reference is answered holding that the punishment of dismissal awarded to the worker for alleged

misconducts is modified to that of discharge with consequential benefits.

The award will come into force one month after its publication in the official Gazette.

Dictated to the Personal Assistant, transcribed and typed by her, corrected and passed by me on this the 31^st day of

July 2019.

V. VIJAYA KUMAR, Presiding Officer

APPENDIX

Witness of the Workman

Nil

Witness of the Management-

MW-1- Shri P.Prabhakar, Retd. Chief Manager on 17-10-2011

MW-2- Shri Vishwanathan.C, Retd. Branch Manager on 19-2-2015

Exhibits for the Union/workman - Nil

Exhibits for the Management-

M-1

Enquiry File

M-1(a) -

Details of cheques sent from 26-4-05 to 13-6-05

M-1(b) -

Details of cheques sent from 11-8-05 to 26-8-05

M-1(c) -

Copy of ledger book for period 1-11-05 to 31-10-05

M-1(d) -

Memo dt. 10-6-05 regarding return of cheque of Rs.1500/-.

M-1(h) -

Memo dt.11-8-05 regarding return of cheque of Rs.15000/- as payment stopped by drawer.

M-1(f) -

Letter dt. 16-8-05 of Federal Bank to Shri Sivadas V.K

M-1(g) -

copy of cheque dt.2-5-05 of Rs.15000/- with remark “payment stopped by drawer”

M-1(e) -

Letter dt.12-11-2005 from Shri Sivadas V.K. to the Bank

M-1(i) -

Copy of Memo dt. 27-12-2005 regarding return of Cheques due to insufficient funds.

M-1(j) -

Copy of Memo dated 28-2-2006 constituting the charges against worker.

M-1(k) -

Letter dated 23-5-2006 addressed to worker seeking Explanation.

6356

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

M-1(l) -

Copy of Sanction Register from 22-2-06 to 17-9-06

M-1(m) -

Copy of Sanction Register form 12-6-06 to 11-7-06

M-1(n) -

Copy of forwarding of cheques to IDCB Rajakkad Branch dt. 17-4-2006

M-1(o) -

Letter dt. 26-6-06 of Rajakkad branch to Regional office, Union Bank.

M-1(p) -

Copy of Letter of Rajakkad branch dated 24-7-2006

M-1(q)& 1(r) -

Deposit slips

M-1(s) & 1(t) -

Copy of credit voucher dt. 28-3-2006 & 23-3-06

M-1(u) -

Copy of letter dt. 27-6-06 by Shri V.K.Antony to Rajakkad branch.

M-1(v) -

Letter of worker dt. 28-6-07 to Bank

M-1(w) -

Memo dt. 17-7-2006

M-1(x) -

Letter of worker dt. 19-8-06 to UBI, Regional Office

M-1(y) -

Special audit report in connection with fraud committed By worker.

M-1(z) -

Copy of Saving Bank Pass Book of Haritha swayam Sahaya Sangham

M-1(aa) -

Statement of account for period 1-10-05 to 30-9-06

M-1(ab) -

Letter dated 13-10-06 of Haritha Swayam Sangham

M-1(ac) -

Copy of complaint raised by Smt.Laila Sali

M-1(ad) -

Copy of letter dt. 28-11-06 by Haritha Swayam Sangham to Bank

M-1(ae) -

Undertaking dated 27-10-06 by the worker.

M-1(af) -

Statement for period 1-10-06 to 14-10-06

M-1(ag) -

Copy of letter dated 13-10-06 to worker regarding unauthorized absence.

M-1(ah) -

Copy of telegram sent to worker to report on duty

M-1(ai) -

Letter of Bank dated 1-1-2007 to Dr.S.V.Jayachandran

M-1(ak) -

Memo dated 22-12-2006 issued to worker regarding unauthorized absence.

M-1(aj) -

Copy of Medical Certificate dt. 1-1-2007 (Fitness)

M-1(al) -

Letter dt. 12-1-07 declining leave request of worker

M-1(am)-

Letter dated 10-9-05 of Rajakkad branch to Regional Office

M-1(an) -

Forwarding letter dt.5-9-05 of complaint raised by one teacher against worker.

M-1(ao) -

Copy of complaint dt. 31-8-2005 by Shri Kanjitanni

M-1(ap) -

Letter of Cooperation Bank dt. 15-6-2006 regarding Collection of instruments- non receipt of proceeds

M-1(aq) -

Copy of enquiry letter for Bills/ cheques sent for Collection

ubZ fnYyh] 9 vxLr] 2019

dk-vk- 1497-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ

bLdks 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; ua- 1] /kuckn ds iapkV ¼lanHkZ la[;k 123@1999½ dks izdkf”kr djrh gS] tks dsUnzh;

ljdkj dks 07-08-2019 dks izkIr gqvk FkkA

[la- ,y&20012@39@1999&vkbZvkj ¼lh&I½]

,l- lh- jk;] vuqHkkx vf/kdkjh

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6357

New Delhi, the 9^th August, 2019

S.O. 1497.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Central Government Industrial Tribunal-cum-Labour Court No.1,

Dhanbad (Ref. No. 123/1999) as shown in the Annexure in the Industrial Dispute between the employers in relation to

the management of M/s. IISCO and their workmen, which was received by the Central Government on 07.08.2019.

[No. L-20012/39/1999-IR(C-I)]

S.C. RAY, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

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

Reference: No. 123/1999

Employer in relation to the management of Jitpur Colliery M/S. IISCO

AND

Their workman

Present: Shri D.K.Singh, Presiding Officer

Appearances:

For the Employers

: None

For the workman : None

State : Jharkhand.

Industry : Coal

Dated : 29/04/ 2019

AWARD

By order No. L-20012/39/1999-IR(C-1) dated 04/06/1999, the central Government in the Ministry of Labour

has, in exercise of the powers conferred by clause (d) of sub –section (1) and sub-section (2A) of section 10 of the

Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

“Whether the demand of the Bihar Colliery Kamgar Union for regularization of the 13 workman, as per

list enclosed, working as stone cutter in the Jitpur Colliery of IISCO is justified ? If yes to what relief the

workmen are entitled and from what date?”

Note:- list of workmen is not enclosed/received alongwith order of reference.

2. After receipt of the reference, both parties were noticed but both the parties failed to appear before this Tribunal.

Subsequently Two regd. notices were issued but even then none of the parties appeared. Case is pending since long and

workmen is not appearing before Tribunal so it appears that the workmen has lost his interest to resolve the matter.

Hence No Dispute Award is passed. Communicate.

D. K. SINGH, Presiding Officer

ubZ fnYyh] 9 vxLr] 2019

dk-vk- 1498-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ

bZ-lh-,y- 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; ua- 1] /kuckn ds iapkV ¼lanHkZ la[;k 173@1999½ dks izdkf”kr djrh gS] tks dsUnzh;

ljdkj dks 05-08-2019 dks izkIr gqvk FkkA

[la- ,y&20012@21@1996&vkbZvkj ¼lh&I½]

,l- lh- jk;] vuqHkkx vf/kdkjh

6358

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

New Delhi, the 9^th August, 2019

S.O. 1498.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Central Government Industrial Tribunal-cum-Labour Court No.1,

Dhanbad (Ref. No. 173/1999) as shown in the Annexure in the Industrial Dispute between the employers in relation to

the management of M/s. ECL and their workmen, which was received by the Central Government on 05.08.2019.

[No. L-20012/21/1996-IR(C-I)]

S.C. RAY, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

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

Reference: No. 173/1999

Employer in relation to the management of Brakar Engineering and Foundry Division M/S. ECL

AND

Their workmen

Present: Sri D. K. Singh, Presiding Officer

Appearances:

For the Employers : Shri S.P.Bhattcharjee, Advocate

For the workman : None

State : Jharkhand.

Industry- Coal

Dated : 17/07/ 2019

AWARD

By order No. L-20012/21/1996-IR(C-I) dated 25/10/1999 the Central Government in the Ministry of Labour

has, in exercise of the powers conferred by clause (d) of Sub–section (1) and sub-section (2A) of section 10 of the

Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

English version of Hindi Schedule

“Whether the demand of Bihar Pradesh Colliery Mazdoor Congress to absorb Sri Hamid Mia and 53

others as per list after Nationalization Barakar Engineering and foundry Division ECL and after lockout

of workshop on 28.01.1980 is proper and justified? If yes, to what relief the workmen is entitled and from

what date?’’

Note : List of workmen is not enclosed with order of reference.

2.After receipt of the reference, both parties were noticed. Workmen appeared for certain dates but subsequently failed

to take steps before this Tribunal.. Thereafter two regd. Notices were issued but again no one appeared on behalf of the

workman. The management has appeared regularly through lawyer. The case is pending since 1999 and workman is not

appearing before this Tribunal. , so it seems that workman has not been interested in contesting the case. It is felt that

the workman has lost his interest to resolve the matter. Hence “No dispute” award is passed. communicate.

D. K. SINGH, Presiding Officer

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6359

ubZ fnYyh] 9 vxLr] 2019

dk-vk- 1499-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ

ch-lh-lh-,y- 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; ua- 1] /kuckn ds iapkV ¼lanHkZ la[;k 60@1999½ dks izdkf”kr djrh gS] tks dsUnzh;

ljdkj dks 07-08-2019 dks izkIr gqvk FkkA

[la- ,y&20012@373@1998&vkbZvkj ¼lh&I½]

,l- lh- jk;] vuqHkkx vf/kdkjh

New Delhi, the 9^th August, 2019

S.O. 1499.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Central Government Industrial Tribunal-cum-Labour Court No. 1,

Dhanbad (Ref. No. 60/1999) as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. BCCL and their workmen, which was received by the Central Government on 07.08.2019.

[No. L-20012/373/1998-IR(C-I)]

S. C. RAY, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD

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

Reference: No. 60/1999

Employer in relation to the management of Angarpathara Colliery M/S. BCCL

AND

Their workman

Present: Sri D.K.Singh, Presiding Officer

Appearances:

For the Employers : Shri Gautam Mishra, Legal Asstt.

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

State : Jharkhand.

Industry- Coal

Dated- 27.06. 2019

AWARD

By order No. L-20012/373/1998-IR(C-I) dated 17/04/1999 the central Government in the Ministry of Labour

has, in exercise of the powers conferred by clause (d) of sub –section (1) and sub-section (2A) of section 10 of the

Industrial Disputes Act, 1947 referred the following dispute for adjudication to this Tribunal:

SCHEDULE

“Whether the action of the management of Angarpathra Colliery of M/S BCCL in denial to provide

employment to Sri Shiv Awatar Ray dependant son of Sri Ram Lal Gope, Ex- Trammer under para

9.4.3. of NCWA-IV (who was already declared medically unfit by the Apex Medical board on 15.3.91) is

justified? If not to what relief the dependant son of Sri Ram Lal Gope is entitled?”

2. After receipt of the reference, both parties were noticed and during the hearing of the case, Ld. Counsel of

Sponsoring Union has informed that workman has not been interested in contesting the case. It is felt that the workman

has lost his interest to resolve the matter. Hence “No dispute” award is passed. communicate.

D. K. SINGH, Presiding Officer

6360

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

ubZ fnYyh] 9 vxLr] 2019

dk-vk- 1500-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ

,;j bafM;k bathfu;fjax lfoZl fyfeVsM 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; ua- 1] eqEcbZ ds iapkV ¼lanHkZ la[;k 04@2019½ dks

izdkf”kr djrh gS] tks dsUnzh; ljdkj dks 08-08-2019 dks izkIr gqvk FkkA

[la- ,y&11012@11@2017&vkbZvkj ¼lh&I½]

,l- lh- jk;] vuqHkkx vf/kdkjh

New Delhi, the 9^th August, 2019

S.O. 1500.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Central Government Industrial Tribunal-cum-Labour Court No.1,

Mumbai (Ref. No. 04/2019) as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Air India Engineering Service Limited and their workmen, which was received by the Central

Government on 08.08.2019.

[No. L-11012/11/2017-IR(C-I)]

S. C. RAY, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1, MUMBAI

Present : JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

REFERENCE NO. CGIT-1/4 OF 2019

Parties: Employers in relation to the management of Air India Engineering Services Ltd

And

Their workmen

Appearances:

For the management

Mrs. Pooja Kulkarni, Adv.

For the All India Aircraft Engineers Association

Mr. Braj Bushan Das, Regional Secretary

State

Maharashtra

Mumbai, dated the 05th day of July, 2019

AWARD

Mr. Braj Bhushan Das as filed authorization by General Secretary of the Association. He has also filed Xerox

copy on record showing that he is the Regional Secretary of the Association. He is also identified by Smt. Pooja

Kulkarni, Advocate.

Matter has been referred by the Central Government in respect of a dispute regarding the tenure of domestic

outstation posting. No Statement of Claim or Written Statement by the Management has been filed, instead the

authorized representative of the Association has requested for withdrawal of the reference or to pass no dispute

order as the management has modified the circular by which tenure of domestic outstation posting is reduced to

30 days.

In view of above, no dispute exists now.

Award is passed accordingly.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6361

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1501

1501

1501.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD ?यू मंगलौर पोटD \ट के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म िनPदQ औwोिगक िववाद

म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, बगलूर के पंचाट (संदभD सं(या 105/1998) को 0कािशत करती

है जो के?ीय सरकार को 13.08.2019 को 0ा9 5आ था।

[सं. एल-45012/1/1996-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1501.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 105/1998) 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. New Mangalore Port Trust and their workman, which was received by the Central Government on

13.08.2019.

[No. L-45012/1/1996-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

BANGALORE

DATED

: 02^ND AUGUST 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 105/1998

I Party

II Party

The General Secretary,

New Mangalore Port

Staff Association,

NMPT Admn. Office Building,

Mangalore - 575010.

The Chairman,

New Mangalore Port Trust,

Panambur,

Mangalore - 575010.

Appearance

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

Advocate for II Party : Mr. Ramesh Upadhyaya

AWARD

The Central Government vide Order No. L-45012/1/96-IR(M) dated 23.11.1998 in exercise of the powers conferred by

Clause (d) of Sub-Section (1) and Sub-Section 2 (A) of Section 10 of Industrial Dispute act, 1947 (for brevity ‘the Act’

hereafter) referred the following Industrial Dispute for adjudication.

“Whether the action of the management of New Mangalore Port Trust, Mangalore, in not promoting

Shri H. Dadu Naika as Senior Mechanic is legal and justified? If not, to what relief the workman is

entitled?”

It is a union sponsored Industrial Dispute pertaining to the promotion of the workman Sh. Dadu Naika. The

undisputed facts of the case is, the 2^nd Party was constituted on 01.04.1980 under the provisions of MPT Act 1963. Till

then it was a Central Government Department under the Ministry of Transport and Shipping. During the construction

stage of the all weather Major Port at Panambur, the employees were at 2 different establishments:

Regular establishment for permanent work.

ii)

Work-charged established for constructions work.

6362

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

The first category was governed by Central Government Employees Service Rules and the second category by C.P.W.D

Manual Volume-III. The 1^st Party workman was appointed as Pump Attendant cum Mechanic under the work-charged

established vide memo dated 29.07.1977 of the Executive Engineer, Construction Division, New Mangalore Port,

Panambur. He belongs to Scheduled Caste Community and was promoted to the post of Senior Mechanic (Water

Supply) w.e.f 05.03.1994.

The case of the 1^st Party is, in the Seniority list 1^st Party is shown to be junior to Sh. D. Lingappa who also

belongs to Schedule Caste Community, when the selection took place to the post of Pump Attender cum Mechanics, 1^st

Party had scored more marks than Sh. D. Lingappa. But the Management in the selection list has shown Sh. D. Lingappa

as Senior to 1^st Party. Sh. D. Lingappa was promoted as Senior Mechanic (Water Supply) w.e.f. 05.09.1988. The

1^st Party and 3 others were promoted to the post of Senior Mechanic vide order dated 05.03.1994. The order of initial

appointment was issued to both of them on 29.07.1977. On account of postal delay, 1^st Party reported to duty on

05.08.1977 and Sh. D. Lingappa had reported for duty on 01.08.1977. As per the Regulation No. 11(3) of New

Mangalore Port Trust Employees (Recruitment, Seniority and Promotion) Regulation – direct recruits shall be ranked

interse in the order of merit in which they are placed at the examination or interview on the results of which they are

recruited the recruits of an earlier examination or interview being ranked senior to those of the later examination or

interview. Sh. D. Lingappa was promoted as Chargeman during 1993 since he was promoted as Senior Mechanic during

1988. Treating Sh. D. Lingappa as senior to the 1^stParty has caused irreparable injury and financial loss. The Union

requested to rectify the mistake vide letter dated 24.02.1995, Management failed to take any action. The Management

was duty bound to effect promotion according to seniority and take immediate steps to promote the 1^st Party

retrospectively from the date on which Sh. D. Lingappa was promoted as Senior Mechanic in the year 1988. But the

mistake that was done by the 2^nd Party has continued without justification. The action of the management is unjust and

case of victimization.

The 2^nd Party in its counter statement contends that the 1^st Party and Sh. D. Lingappa were selected against the

post reserved for SC along with 5 candidates under UR Post. The seniority of employees borne under Work Charge

establishment is determined in accordance with the provisions of CPWD Manual Volume-III. According to para 9.04

Rule No. 2 the seniority in a particular category shall be reckoned from the date of continuous service in that category.

Based on this rule the seniority of the PACMs selected on 28.07.1977 was fixed and Sh. D. Lingappa who joined service

on 01.08.1977 got higher position in the seniority list than the 1^st Party workman. The seniority of W.C Establishment

Employees for the purpose of their promotion is considered on the length of service in a particular grade and not on the

rank obtained in the selection list. The Seniority of PACM selected on 28.07.1977 was fixed and notified to the

employees from time to time and no objection was filed by the 1^st Party about the seniority at any point of time.

It is the further case of the 2^nd Party that the W.C Establishment of the Port were transferred to Regular

Establishment w.e.f 21.12.1979 vide order No. 3/34/Adm.1 dated 27.12.1979 of Chief Engineer and Administrator, NMP

Panambur. Consequently, the seniority position existing as on 27.12.1979 under W.C Establishment was maintained for

their future promotion. Sh. D. Lingappa’s promotion as Senior Mechanic under Regular Establishment w.e.f 05.09.1988

is based on the seniority of PACMs is correct since he remained senior to 1^st Party in the grade of PACMs under Regular

Establishment also. No objection was filed by the 1^st Party about the seniority. The NMPT Employees (Recruitment,

Seniority and Promotion) Regulation 1980 came into force and made applicable to the employees of the 2^nd Party w.e.f

01.04.1980 therefore it will apply only for the said recruitments made under the said regulation on or after 01.04.1980

and will not apply to the appointments made prior to 01.04.1980. The further promotion of Sh. D. Lingappa as

Chargemen (W.S) based on his seniority in the grade of Senior Mechanic (W.S) was strictly as per NMPT Employees

(Recruitment, Seniority and Promotion) regulation 1980. At that time also 1^st Party did not raise any objection. Hence,

action of the 2^nd Party in fixing the seniority of the Work Charged employees as per the provisions of C.P.W.D Manual

Volume-III is correct and justified. Real error in fixing the seniority if any, shall be by the affected employees at the

beginning of the service. If the claim is made after substantial loss of time it can be considered if only it does not affect

others employees. If the claim of the 1^st Party is allowed to consider him as senior to Sh. D. Lingappa with retrospective

effect, it will have serious repercussion on the seniority of other employees in the other category and will have financial

implication on the 2^nd Party. The 6 other employees whose seniority will be affected are not made parties to this dispute.

The 1^st Party has no legal claim for promotion before Sh. D. Lingappa gets promotion. There is no substance in the claim

of the 1^st Party.

Both parties have adduced evidence and place their arguments.

On behalf of the 2^nd Party their Office Superintend was examined as a witness and documents Ex M-1 to Ex M-

9 are marked. Out of them crucial documents are Ex M-1 and Ex M-2; Ex M-1 is the Memorandum dated 29.07.1977

whereby the candidates are offered temporary post of Pump Attendant cum Mechanic the name of Sh. D. Lingappa is

placed at Sl. No. 7 whereas the 1^st Party name is placed at Sl. No. 6 which corroborates the contention of the 1^st Party that

he had fared well in the merit list. But at Ex M-2 which is an order of appointment, the name of Sh. D. Lingappa is

placed above the name of the 1^st Party workman, the reason for this change of seniority is well explained in the pleadings

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6363

of both parties. It is undisputed that, Sh. D. Lingappa reported to duty earlier to 1^st Party workman. It is shown by the

2^nd Party that the appointments prior to 01.04.1980 were governed by the provisions in C.P.W.D Manual Volume-III and

not in accordance with the New Mangalore Port Trust Employees (Recruitment seniority and promotion) Regulation

1980. If the said regulation was given retrospective effect, covering the employees of erstwhile Work Charged

Establishment then there was scope for the 1^st Party to insist on considering his seniority on the order of merit.

Moreover, the parties who will be affected by disturbing the seniority list at this length of time are not parties to this

Industrial Dispute. He himself as produced the seniority list as on 01.07.1979 which is marked as Ex W-2. He accepted

his first promotion to the Post of Senior Mechanic (Water Supply) vide order dated 05.03.1994 as at Ex W-3, subsequent

seniority list of 01.07.1984 is as at Ex M-7. On the top of above all, there is no proof at this point of time to uphold his

contention that he merited above Sh. D. Lingappa. The point for reference framed would sound that he is denied

promotion as Senior Mechanic, virtually it is not so. He has been promoted as Senior Mechanic (W.S) w.e.f 05.03.1994.

Though very framing of the point for adjudication is not proper, both parties have placed their pleadings and evidence

knowing fully the rival case. The claim of the 1^st Party lacks merits and there is no justification in the claim of the 1^st

Party that he ought to be considered for the post of Senior Mechanic (W.S) w.e.f 05.09.1998.

AWARD

The reference is rejected.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 02^nd August, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1502

1502

1502.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD `हदु तान पे\ोिलयम कॉपyरेशन िलिमटेड के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म िनPदQ

औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, बगलूर के पंचाट (संदभD सं(या 54/2002) को

0कािशत करती है जो के?ीय सरकार को 13.08.2019 को 0ा9 5आ था।

[सं. एल-30012/16/2002-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1502.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 54/2002) 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. Hindustan Petroleum Corporation Limited and their workman, which was received by the Central

Government on 13.08.2019.

[No. L-30012/16/2002-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

BANGALORE

DATED

: 01^ST AUGUST 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 54/2002

I Party

II Party

Sh. K.C Veerabhadrachari & 07 Ors,

S/o Chamundachari,

No. 365, A, Narayanapura,

Doorvaninagar Post,

Bangalore - 560016.

The Plant Manager,

LPG Bottling Plant,

Hindustan Petroleum Corp. Ltd.,

3&S, Whitefield Rd.,

Mahadevapura Post,

Bangalore - 560048.

6364

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Appearance

Advocate for I Party : Mr. V.S. Naik

AWARD

The Central Government vide Order No.L-30012/16/2002-IR(M) dated 17.09.2002 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 it is justifiable on the part of Hindustan Petroleum Corp. Ltd., of deny work of S/Shri K.C.

Veerabhadrachari, T.R. Venkatachalapathi, S.M. Chandrappa, M. Aswathnarayana, Venkataswamy,K.

Munavar, J.C. Subramani and Krishnappa w.e.f 01.03.2001? If not, to what relief the workmen are

entitled to?”

The case of the 1^st Party workmen is, they were working with the 2^nd Party for the period ranging from 6 to 19

years. The 2^nd Party is a Government of India undertaking engaged in Refining and Distribution of Petroleum Products;

they have established Zonal Office, Regional Office, Terminal Office, Depots, LPG Plant, Training and Experimental

Stations at various parts of the Country and has adopted Contract Labour System. The 1^st Party workmen were appointed

by the contractor under the direct supervision of the Corporation. Though they were termed as contract workers their

nature of work was similar to that of the work carried out by regular employees of the Corporation like, stacking of

cylinders, removing excess/under filled cylinders from the conveyor, transferring defective cylinder to evacuation stand,

placing empty cylinders on the platform for filling, removing empty cylinders from stand and placing them on platform

scales for filling, destacking of full cylinder and placing it on conveyor and weighing of the cylinders etc. Though they

worked for several years, the Corporation did not absorb them into regular cadre. Writ Petitions filed by similarly placed

employees seeking abolition of the Contract Labour and regularisation of service of these workmen was disposed off on

23.08.1999 directing the Central Government to take decision under section 10 of the Contract Labour Regulation and

Abolition Act, 1970. The service of the concerned workmen was to be continued till such decision was taken. Vide

order dated 01.03.2001 the Government of India prohibited the Contract Labour which the 1^st Party workmen and

similarly situated worked were performing under the 2^nd Party. Upon abolition of the Contract Labour the 2^nd Party

sought to terminate the service of the 1^st Party workmen. In the circumstance they moved to Hon'ble High Court in W.P

No. 18456-18464/2001 (L-RES). The Hon'ble High Court ordered the 2^nd Party to continue the service of the 1^st Party

workmen till decision is taken by the Management. In the light of the decisions reported in AIR 1995 SC 1893 ILR 1998

(1) KAR 461. The order was challenged by both parties and the Writ Appeals were disposed off with direction to the

parties to work out their remedies. Immediately the 2^nd Party dispensed with the service of the 1^st Party workmen. The

contractor was interposed for the purpose of supply of contract labour for the work of establishment; the contractor was a

mere camouflage. The 1^st Party workmen had to be treated as employees of the principal employer and their service is

required to be regularised. The action of the 2^nd Party in dispensing with the service of the 1^st Party workmen who had

continuously served for several years is unjust and illegal. They are entitled for reinstatement with all consequential

benefit. The last contractor namely Sh. Raja disappeared; thereafter the Management continued the service of the 1^st

Party workmen and others. From 01.02.1999 they worked directly under the control and supervision of the 2^nd Party.

Their termination is in violation of the mandatory provisions of the section 25-F of the I.D Act.

The 2^nd Party in their counter statement contends that, the Corporation has its own Rules and Regulations with

regard to recruitment. They have to follow presidential direction for reservation of SC/ST and OBC category. Any

vacancy in non-management category has to be certified to the Local Employment Exchange; selection is made from

amongst the candidates sponsored by the Local Employment Exchange on merits, subject to fulfilling of the recruitment

criteria of the Corporation including Medical fitness etc., other source of recruitment are tapped only when Employment

Exchange issues a non-availability certificate. The eligibility norms for the post of General Workmen are minimum

qualification of S.S.L.C Pass and an age of 25 years (relaxable by 5 years for SC and ST and 3 years for OBC). The 1^st

Party workmen are never engaged by the 2^nd Party directly at any point of time, they are the employees employed by the

contractor. The 2^nd Party cannot insist the contractor to engage any specific person to carry out the activities, they are

hired by the contractor for miscellaneous work and they are not the employees of the principal employer. In the Writ

Appeal the Hon'ble High Court directed the parties to agitate before the Industrial Tribunal under section 10 of the I.D

Act. They had engaged the service of the contractor to carry out miscellaneous job and not for performing regular

activities which the regular employees of the Corporation are performing. They cannot be appointed under regular

employment in violation of the Recruitment Policy of the Corporation. They are not entitled to any relief as claimed by

them.

On behalf of the 2^nd Party the Plant Manager was examined as MW-1 and rebuttal evidence was adduced by one

of the 1^st Party workmen on behalf of other workmen, five documents are marked for him as Ex W-1 to Ex W-5. The

affidavit evidence of both of them is mere reiteration of their respective statement. MW-1 is the present Plant Manager

of the 2^nd Party who is recently appointed and definitely lacks personal knowledge of the disputed facts. However, it was

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6365

brought forth during his cross examination that, 1^st Party workmen were working at the Plant where about 50 to 55

permanent employees were engaged…. they were working under 2-3 contractors, one among them was Raja, who ran

away from the job. They could not trace him and his whereabouts. As Raja was not available, they had to pay wages to

the 1^st Party workmen directly…. they did so under the direction of the High Court.

During the cross examination of WW-1 following emerged,

That the Management was engaging the contractors, getting work of House Keeping and other miscellaneous work done

through them… his affidavit averment claiming that he joined the service of the Management through contractor is

correct. One Mr. Raja the contractor for the Management was supervising the work…they continued to work as contract

workers under different contractors… the service of the 1^st Party workmen was terminated in the year 2001 after

abolition of Contract Labour…sometimes they were working along with the permanent employees.

The 1^st Party seek to pass award as per the terms of the Award passed by this Tribunal in CR No. 178/1997

dated 26.09.2006 between Sh. Shivanandaiah and others vs The General Manager HPCL, in the said case, while the

reference was still pending adjudication the workmen were terminated after contract system was abolished by the Central

Government and each of them had filed separate complaint. On contest, the reference was adjudicated as below:

The management is directed to reinstate the first party workmen in service with 50 per cent of the back wages (last

drawn wages) w.e.f. 23.05.2002 till the date of reinstatement and shall regularize the services of the first party workmen

w.e.f. the date of publication of this award, paying them benefits of services at par with the permanent employees

working under it. Accordingly, Complaint No. 1/05 to 8/05 are allowed and termination orders dated 23.05.2002 passed

against the first party workmen are hereby set aside and reference is disposed off. Copy of the award be kept in

Complaint No. 1/05 to 8/05. No costs.

The 2^nd Party challenged the above award before the Hon'ble High Court but without any result. Sh. VSN for

the 1^st Party submits that in the present case also award may be passed on the same line. It is the further contention for

the 1^st Party workmen that since worked on par with the permanent workmen and the work which they were discharging

is perennial in nature, even after the contractor Mr. Raja absconded their service was continued, they have to be treated as

employees under the direct employment of the 2^nd Party and the contract if any was sham and this Tribunal has the power

to adjudicate the dispute as per the law laid down by the Apex Court in the case of Steel Authority of India (2001-II-LLJ-

1087 Para 119(5&6).

Another judgment of the Apex Court which is stressed upon by the 1^st Party is Gujarat Electricity Board vs Hind

Mazdoor Sabha (1995) 5 SSC 27 which held that once the contract labour is abolished and the services of the contract

workers are terminated even an individual workman can raise an Industrial Dispute. In the instant case the 1^st Party

workmen collectively raised the dispute which is in the nature of Industrial Dispute defined under section 2-K of the Act.

In reply learned counsel for the 2^nd Party points towards the admission that was extracted during the cross

examination of WW-1 wherein he admitted, that the 1^st Party workmen joined the service of the Management through

contractor as casual labourer and further worked under different contractors and applications were not called for through

advertisement by the 2^nd Party. According to them in the absence of Appointment Order or Termination Order even if

the workmen continued to work and receive wages (after the contractor disappeared) with the 2^nd Party that was because

of the direction of the Hon'ble High Court. There is no employer employee relationship between the parties, the

workmen were appointed at the choice of the contractor and the Company had no say in the matter. Once the

Government of India issued notification prohibiting the employment of contract labour and the services of the workmen

was terminated by issuing notice, the workmen will have no right to claim reinstatement as regular employees, they were

hired to do miscellaneous work. They have engaged permanent employees for carrying out day to day activities of filling

of L.P.G Cylinders at the plant and miscellaneous activities like House Keeping, Stocking of Cylinders etc., were carried

out on contract basis. The service of the contractor was not engaged for performing regular activities which was carried

out through regular employee of the 2^nd Party. They are engaged to carry out miscellaneous jobs. However, in case their

names are sponsored by the Local Employment Exchange against the 2^nd Party vacancy notification in future and if the

workmen qualify to the requirement norms those candidatures will be considered along with others on merits.

There is no gain say to the procedure of recruitments at the 2^nd Party which is a Government of India

undertaking, is as per recruitment rules applicable to them. None of the Superior Officers in the 2^nd Party can violate the

Terms and Conditions for appointment to a vacant post. At the outset I have to say that the Award passed by this

Tribunal in C.R No. 178/1997 cannot be adopted in its spirit in the present case for the simple reason that the employees

therein were still on the rolls of the 2^nd Party when they raised the dispute. They raised the Industrial Dispute seeking

regularisation of their service consequent upon the cancellation of the contract system in the 2^nd Party vide notification of

the Central Government. The 2^nd Party as per the orders of the Hon'ble High Court had continued those workmen and in

light of the notification of the Central Government dispensed their service which led to each of them in filing complaint

under section 33-A of the Industrial Dispute Act. There was evidence before the Tribunal that those workmen were

performing the duties as that of the permanent employees. The workmen had under gone safety training and issued

6366

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Certificates in that regard. That was one of the factors that weighed upon this Tribunal to hold that they were carrying

the work of perennial nature which was performed by the workmen therein. But here is the case where there is clear

admission that the workmen were appointed by the contractor and their work was supervised by the contractor. They

have produced Photostat copy of the Benefit Payment Docket from the Employees State Insurance Corporation in favour

of the workman K. C Veerabhadrachari, the statements of EPF deductions wherein the name of the employer is shown as

Handling Contractors and others along with the seal of the 2^nd Party for the period April 1989 to 31^st March 1990,

Photostat copy of the Muster roll of the 2^nd Party for the Month of February.

10.

Though the award is passed by this Tribunal in C.R No. 178/1997 holding that the contract between them and

the contractor was not genuine which is endorsed by the Hon'ble High Court, the difficulty to award similar relief in the

present case is, they raised the dispute subsequent to their termination on 01.03.2001. To reinstate them into their

original post is not possible, firstly for the reason that baring one all others have crossed the age of superannuation, the

vacancy in which the 1^st Party workmen served is presently not in existence and to order for reinstatement to the regular

post overlooking the recruitment policy is not legal. Secondly the reference order is dated 17.09.2002 the 1^st Party

workmen appeared through their counsel before this Tribunal on 15.11.2002 but filed the claim statement on 16.06.2004.

That would suggest that there was no pressing need for them for reinstatement. It surfaces from the evidence of WW-1

that their service was protected after the abscondence of the contractor Raja from 1999 onwards till the same was

terminated in the year 2001. Since it is no body’s case that while dispensing their service, no compensation was paid to

them for the past service rendered by them, it amounts to violation of the mandatory procedure contemplated by section

25-F of the I.D Act.

Since, the 1^st Party workmen have not furnished the number of years each of them worked with the 2^nd Party on an

approximation it may be favourably presumed that they worked with the 2^nd Party directly for about 4 years (though

under the orders of the Hon'ble High Court). Their past service under the contractor came to an end by his disappearance

without settling their terminal benefits. An arithmetical calculation of retrenchment compensation as contemplated by

section 25-F of the I.D Act fails to meet the situation, in view of the depreciation of the value of the money from 2001

onwards till now. Under the circumstances in my considered opinion monetary benefit proportionate to the retrenchment

compensation which they would have been otherwise entitled would serve the ends of justice being met. I am of the

considered opinion that Rs. 50,000/- (Rupees Fifty Thousand Only) as compensation to each of the workmen towards

their past service would do complete justice. The workman at Sl. No. 3 is no more and his legal heirs are on record and

they are entitled for the benefit that falls to the credit of deceased workman Sh. S.M. Chandrappa at Sl. No. 3.

AWARD

The reference is accepted.

The action of the 2^nd Party in denying the work to Sh. K.C. Veerabhadrachari, T.R. Venkatachalapathi,

Late S. M. Chandrappa, M. Ashwathanaryana, Venkataswamy K, Munavar, J.C. Subramani and Krishnappa

w.e.f 01.03.2009 without compliance of the mandatory procedure contemplated by section 25-F of the I.D Act is

not justified.

The 2^nd Party i.e. H.P.C.L is directed to pay monetary compensation of Rs. 50,000/- to each of the workman within

60 days from the date of publication of the award in the official gazette failing which the amount shall carry

simple interest of 6% per annum. The class-I legal heirs of deceased workman Sh. S.M. Chandrappa at Sl. No. 3

are entitled to receive the above amount jointly.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 01^stAugust, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1503

1503

1503.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD मैसूर िमनर स िलिमटेड के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म िनPदQ औwोिगक

िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, बगलूर के पंचाट (संदभD सं(या 116/2007) को 0कािशत

करती है जो के?ीय सरकार को 13.08.2019 को 0ा9 5आ था।

[सं. एल-29012/35/2007-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6367

New Delhi, the 13^th August, 2019

S.O. 1503.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 116/2007) 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

13.08.2019.

[No. L-29012/35/2007-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

BANGALORE

DATED

: 02^ND August 2019

PRESENT : Justice Smt. Ratnakala, Presiding Officer

CR 116/2007

I Party

II Party

Sh. Basavaiah,

S/o Sh. Doddarangaiah,

Residing at Hosadurga Post,

Kodihalli Hobli,

Kanakapura Taluk,

Rural District

BANGALORE - 562117

The Managing Director,

Mysore Minerals Limited,

No. 39, M.G. Road,

BANGALORE - 560001.

Appearance

Advocate for I Party : Mr. Shankarappa

Advocate for II Party : Mr. T. K. Vedamurthy

AWARD

The Central Government vide Order No.L-29012/35/2007-IR(M) dated 22.08.2007 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 action of the management of M/s Mysore Minerals Ltd., in imposing the punishment of

dismissal from the services on Sh. Basavaiah, Ex-Mazdoor, Katageri Dolamite Quarry of Mysore

Minerals Ltd. w.e.f. 03.02.2000 is legal and justified? If not, to what relief the workman is entitled?”

The Case of the 1^st Party workman is, he joined the service of the 2^nd Party at Nidigal Granite Quarry / 2^nd Party

as Mazdor in 1986, and thereafter served continuously upto 04.03.1996, his service was confirmed on 05.05.1987. On

04.03.1996, he met with a vehicular accident while commuting to the place of his work; he was seriously injured and

treated in the Hospital as outpatient from 04.03.1996 to 12.03.1996. He was taken to duty at Kolagondanahalli Granite

Quarry, he was transferred to Nidigal. Thereafter, vide letter dated 06.09.1999, he was called upon to report to duty at

Kattigere Dolomite Quarry on 13.09.1999. When he went to report at Kattigere Dolomite Quarry, the Manager refused

employment, prior to refusal of employment no Charge Sheet was issued and no enquiry was held. His repeated

representations requesting for permission to report to duty have not ended in any result. Due to the illegal action of the

2^nd Party, he along with his family members deprived from livelihood.

The 2^nd Party in their counter statement, instead of meeting the claim allegations made out a new case. The

counter statement is so drafted as to contradict the allegation that, at the time of joining service in the year 1986 the 1^st

Party had furnished his age as 30 years; he was subjected to medical examination and found that he reached the age of

superannuation and he is not allowed to work after 03.02.2000.

The 1^st Party workman examined himself as WW-1, his documentary proofs are, Wage Slip and the Termination

Letter. During his cross-examination, 2^nd Party gave a go by their own case (as pleaded in their statement) and made out

a fresh case that it was a case of unauthorized absence since, 15.02.1999 and notices were issued to him to report to duty;

since, he failed they gave paper publication in a newspaper dated 23.12.1999; since, he did not appear they served the

dismissal order in the year 1999.

6368

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

The 2^nd Party examined their Assistant Manager as their witness. The witness in his affidavit evidence avers to

the facts, controversy to the case made out by the 2^nd Party during the cross-examination of the workman. The case made

out at this stage is, that Medical Examination was conducted on the 1^st Party, as per the report of the Doctor he was not fit

for hard work and he has been terminated from service. He has produced the copies of the call notices and the paper

publication and the Termination Order dated 03.02.2000. My Learned predecessor in Office, vide order dated

08.09.2014 allowed the reference and ordered back wages at 30% from the date of reference till his date of

superannuation etc.

The 2^nd Party challenged the Award before the Hon'ble High Court, the Hon'ble High Court quashed the Award,

remanded the matter for fresh adjudication.

Thereafter, notice was issued to both Parties, in response to the notice 1^st party workman appeared through his

counsel. Submission was made at the Bar on behalf of advocate Sh. TKV undertaking for the 2^nd Party and time was

sought for cross-examination of WW-1. On that day, case was adjourned on cost of Rs. 600/- (six hundred rupees) and

was posted for cross-examination of WW-1 on 30.04.2019; on the adjourned date nobody turned up for the 2^nd Party.

Thus, matter came to be reserve for award.

The 2^nd Party have not disputed the identity of the 1^st Party workman as their former employee. The

Termination Order / Ex W-6 goes to show that, he remained unauthorisedly absent from duty w.e.f 16.02.1999; Call

Memos dated 26.08.1999, 06.09.1999 and 24.09.1999 were issued, but he remained absent unauthorisedly; Domestic

Enquiry was ordered to be held on 30.11.1999 by appointing Enquiry Officer; Enquiry notice dated 13.11.1999 was sent

by post; though, he acknowledged the Enquiry Notice he did not attend the enquiry; paper publication dated 23.12.1999

was given but he still remained absent; the unauthorized absence is a serious misconduct as per Clause 11(2)(e) of the

Certified standing orders of the Company; habitual absence without leave for more than 10 days attracts penalty as per

Clause 11(1) of Certified Standing Orders. Accordingly, dismissal order is passed for the act of the workman staying

away from duty unauthorisedly from 16.02.1999.

The documentary proof are the copies of the Office memo / Call Notice and the Xerox Copy of the Call Notice

alleged to have been published in Prajavani newspaper on 23.12.1999, but these documents were marked with subject to

the objection raised by the 1^st Party. Without producing the actual newspaper in which the notice was published the

2^nd Party has taken it easy to produce a paper clip as Paper publication which cannot be appreciated. Any volume of

evidence without the basis of pleading is not evidence in the eye of Law that is the unshaken procedure of Principle of

Law. The evidence adduced by the 2^nd Party is contrary to their own pleading hence, neither the oral nor the

documentary evidence produced by the 2^nd Party deserve any credence. Going by the evidence of the 1^st Party he is

refused employment w.e.f 13.09.1999 that to, when he reported to duty at Kattigere Dolomite Quarry, in obedience to the

transfer order issued to him on 06.09.1999. It is only when he raised the dispute the 2^nd Party contended that he is

terminated from service w.e.f 03.02.2000. Appreciating the evidence of the 1^st Party that the termination order since, not

preceded by issuing of Charge Sheet, and holding of a enquiry into the charges it is definitely an illegal order in violation

of principles of natural justice and deserves to be set aside. Consequently, the workman shall be appropriately

compensated for the financial hardship suffered by him.

AWARD

The reference is accepted.

The punishment order passed by the 2^nd Party on 03.02.2000 against the 1^st Party workman Sh. Basavaiah is set

aside.

The 2^nd Party is directed to pay him 30% of the back wages, from the date of his dismissal i.e., 03.02.2000 till the

date of his superannuation. He shall also be paid terminal benefits admissible to him by treating the above period

as his continuous service with the 2^nd Party.

(Dictated to o/s LDC, transcribed by her, corrected and signed by me on 02^nd August, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6369

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1504

1504

1504.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, बगलूर के पंचाट (संदभD सं(या 12/2009) को 0कािशत

करती है जो के?ीय सरकार को 13.08.2019 को 0ा9 5आ था।

[सं. एल-29012/99/2008-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1504.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 12/2009) 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

13.08.2019.

[No. L-29012/99/2008-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

BANGALORE

DATED

: 01^STAUGUST 2019

PRESENT : Justice Smt. Rathnakala, Presiding Officer

CR 12/2009

I Party

II Party

Sh. Purudegowda,

S/o Late. Sh. Earegowda,

B. K. Hosuru Village,

Kenkere Post, Gandasi Hobli,

Arasikere Taluk,

Hassan District – 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. A.K. Vasanth

AWARD

The Central Government vide Order No. L-29012/99/2008-IR(M) dated 02.03.2009 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.

“Whether the punishment of dismissal imposed on Sri Purudegowda with retrospective effect from

15.11.1995 by the management of Mysore Minerals Limited is justified? What relief the workman is

entitled to?”

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 mining worker under Token No. 143. In the year 1995,

he fell ill and couldn’t attend his duty but the 2^nd Party refused to sanction leave to him. When he approached the 2^nd

Party he was informed that, due to absence for duty he was terminated from service w.e.f 15.11.1995. Without issuing

6370

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Charge Sheet and without conducting enquiry they have orally refused employment; they have terminated him

retrospectively from the date of availing sick leave; they have not issued termination order. The termination order is

highly illegal and in violation of various provisions of I.D Act.

The procedure contemplated under Rule / Clause 33.0 for imposing major penalties as per Certified Standing

Order / Service Rules of the 2^nd Party is not followed.

The 2^nd Party in its counter statement contented that, since, he was found medically unfit in the medical

examination he is not allowed to work after 15.11.1995. It was also further contented that the dispute is raised after a

delay of considerable length of time. He has already reached the age of superannuation, medically unfit and cannot be

reinstated.

It is noticed from the order sheet that, on 15.11.2011, at the request of the 1^st Party this Tribunal framed a Preliminary

Issue as Follows,

“Whether the Domestic Enquiry conducted by the 2^nd Party against the 1^st Party is fair and proper?”

Thereafter, no evidence was adduced by the 2^nd Party to discharge the burden of proving the issue. In the circumstance

vide order dated 28.01.2014, it is recorded that no evidence on Domestic Enquiry is led and posted for production of

Charge Sheet and to lead evidence to substantiate the Charge, still the 2^nd Party omitted to comply the order. The 1^st

Party also did not come forward to adduce evidence substantiating claim allegations.

In the given circumstance, it is inevitable to hold that the punishment of dismissal imposed on

Sh. Purudegowda with retrospective effect from 15.11.1995, by the 2^nd Party was not justified.

The 1^st Party workman who raised the dispute after a delay of 14 years since, did not appear before the Tribunal

to adduce evidence justifying his claim for the relief, he is not entitled for any relief in the reference.

AWARD

The reference is rejected

(Dictated to o/s LDC, transcribed by her, corrected and signed by me on 01^st August, 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1505

1505

1505.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD इिLडयन ऑयल कापyरेशन िलिमटेड एवं अ? य के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म

िनPदQ औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, कोलकाता के पंचाट (संदभD सं(या

10/2018) को 0कािशत करती है जो के?ीय सरकार को 06.08.2019 को 0ा9 5आ था।

[सं. जेड-16025/4/2019-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1505.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 10/2018) of the Central Government Industrial Tribunal/Labour

Court, Kolkata now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Indian Oil Corporation Limited and others and their workman, which was received by the Central

Government on 06.08.2019.

[No. Z-16025/4/2019-IR(M)]

D. K. HIMANSHU, Under Secy.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6371

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Application No. CGIT-10 of 2018

(Under Section 2A of the I.D. Act, 1947)

Parties: Shri Palan Halder,

S/o. Late Jyotish Halder,

122/2, Roy Bahadur Road, Behala,

Kolkata – 700068

…Applicant

- Vs –

M/s. Indian Oil Corporation Ltd. (Marketing Division),

Eastern Region, Indian Oil Bhavan,

2, Gariahat Road (South), Dhakuria,

Kolkata – 700068

2. IBP Company Ltd., Acting through Indian Oil

Corporation (Marketing Division) Eastern Region,

2, Gariahat Road (South), Dhakuria,

Kolkata – 700068

3. IBP Co. Ltd. (An Indian Oil Group Company),

Regional Office, Kolkata,

Shanti Niketan (12^th Floor),

8, Camac Street,

Kolkata – 700017

…Opp. Parties

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Applicant

: None

On behalf of the Opposite Parties

: Mr. S.K. Karmakar, Learnd counsel with Mr. R. Talukder, Learned counsel.

State: West Bengal.

Industry: Petroleum

Dated: 15^th July, 2019

AWARD

This is an application under Section 2A of the Industrial Disputes Act, 1947 (hereinafter called as the Act of

1947 for convenience) filed by the concerned workman, Shri Palan Halder to set aside his termination order dated

12.09.2008/15.09.2008 as illegal and also praying for his reinstatement with full back wages. The Opposite Party has

filed its reply in which the maintainability of application under Section 2A of the Act of 1947 has been challenged on the

ground of limitation.

When the case is taken up for hearing today, learned counsel for the Applicant is not present, though he was

present on the previous date and he is well aware of this date. Learned counsel for the Opposite Party, however, has

contended that the Act of 1947 prescribes limitation of only three years to file application under Section 2A. He relied on

Swapan Adhikari v. State of West Bengal, 2014(4) CHN 435(CAL) in support of his contention.

Admittedly the termination order was passed on 15.09.2008 and this application under Section 2A of the Act of

1947 was moved on 11^th July, 2018, i.e., approximately 10 years from the date of his termination. Section 2A(3) of the

Act of 1947 prescribes period of limitation for filing application to challenge dismissal or termination under this section

which reads as follows:

“2A(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the

expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as

specified in sub-section (1).”

6372

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

From the above quoted provision it is established that the application under Section 2A of the Act of 1947 can

only be filed before the expiry of three years from the date of termination of service which is admittedly not done in the

present case.

Hon’ble Calcutta High Court in Swapan Adhikary case (supra) has held that right conferred under Section 2A

of the Act of 1947 lapses immediately preceding the date of three years of the date of dismissal. It has also been held that

provision of Section 2A(3) of the Act of 1947 operates independently, no matter conciliation proceedings are pending.

In view of above facts and circumstances, I am of the considered view that the application under Section 2A of

the Act of 1947 is highly time barred. Therefore, rejected.

JUSTICE RAVINDRA NATH MISHRA, Presiding Officer

Dated, Kolkata,

The 15^th July, 2019

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1506

1506

1506.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD फैब इरेT टसD कॉ? \ेT टर ऑफ ना को के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म िनPदQ

औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, भुवनेo वर के पंचाट (संदभD सं(या 16/2017)

को 0कािशत करती है जो के?ीय सरकार को 09.08.2019 को 0ा9 5आ था।

[सं. एल-43012/3/2016-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1506.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 16/2017) of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Fab Erectors Contractor of NALCO and their workman, which was received by the Central

Government on 09.08.2019.

[No. L-43012/3/2016-IR (M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, BHUBANESWAR

Industrial Dispute Case No.16 of 2017

Dated of passing of the award 26.02.2019

Present: Shri B.C.Rath,LL.B., Presiding Officer,

Central Government Industrial Tribunal,

Bhubaneswar.

Between:-

M/s. Fab Erectors, Contractor,

P.O.Box No.23,

P.O. –Nalco Nagar,

Dist-Angul,Odisha

…First Party Employer

-Versus-

Bichitrananda Ghadai.aged about 47 years,

S/o. Rama Chandra Ghadai,

Vill/P.O- Chaeakhand, via-Pritipur,

Dist-Jajpur

…Applicant-Workman

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6373

Appearances:-

For the First Party Management : None

For the 2^nd Party workman : Self

AWARD

The Government of India, Ministry of Labour and Employment have referred an Industrial Dispute between the above

named parties for its adjudication vide its order No.L-43012/3/2016-IR(M) dated 10.03.2017 in exercising its authority

conferred under Clause (d) of sub-section(1) and sub-section(2-A) of Section 10 of the Industrial Disputes Act,1947(14

of 1947) and the Schedule of the reference is as follows:-

“Whether the action of the management of M/s. Fab Erectors,Contractors of Nalco Ltd. in refusing

employment to Shri Bichitraanda Ghadei w.e.f.25.8.2015 is legal justified ? If not , to what relief ( amount of

relief) the workman is entitled to? “

The case of the workman as emerges from the statement of claim is that he was under the employment of the

1st. Party Management for more than 18 years till he was removed/retrenched on 25.8.2015 without any reason. During

the period of his engagement he was supervising the repair and maintenance of Bowl Mill and R.C Feeder of NALCO,

Angul. The 1^st. Party Management being a Contractor was entrusted with the repair and maintenance of the said unit. In

the month of July,2015 he was asked by the Management to work over time for four hours in a day and he was

promised over time wages. When the Management did not pay over time wages he did not agree to work for extra time

on 23.8.2015. It is the claim of the disputant workman that when he refused to work over time without extra

remuneration the Management did not allow him to work and got cancelled his gate pass issued by the NALCO

Authority. According to him he was not given any notice pay and retrenchment compensation by the Management

when he was refused employment on 25.8.2015. Hence, he put forth his grievance before the Labour Machinery as

well as the Principal employer the NALCO. The conciliation proceeding initiated by the Labour Machinery was failed

for non-participation of the Management. Hence, the reference.

As the 2^nd Party Management did not appear and contest the claim inspite of notice he has been set exparte.

The 1^st Party workman has adduced oral evidence and filed documents like Xerox copies of the EPF slips, Xerox

copy of the entry pass, Xerox copy of the employment card , Xerox copies of the complaints made to the Labour

Machinery and original copies of the Wage Slips which are marked as Exts.1 to 5 respectively in order to substantiate

its case.

In support of his claim the sworn affidavit evidence of the workman is filed under Order 18 Rule 4 C.P.C.

which is apparently a repeation of the pleadings advanced in his statement of claim. According to him he was

working as Supervisor under the 1^st. Party Management to look after the repair and maintenance of the Bowl Mill and

R.C Feeder of the NALCO, Angul. The 1^st. Party Management being his employer directed him to work over time for

four hours in a day. When he did not pay the over time wages he ( the workman) stopped to work extra time. It is the

claim of the disputant workman that the 1^st. Party Management got cancelled his Gate Pass with effect from 25.8.2015

when he refused to work extra time. The conduct of the Management resulted in his retrenchment. As he was not given

any notice pay and retrenchment compensation, such retrenchment was in violation of the provisions of 25(f) of the

Act. There is nothing substantial to disbelieve the above unchallenged and uncontroverted oral testimony of the

disputant workman. Rather his assertions about his employment under the 1^st. Party Management finds support from

Xerox copies of EPF Slips which is marked as Ext.1, reveal that the 1st. Party Management was depositing Provident

Fund contributions in the name of the 2^nd. Party workman. Thus the evidence of the 1^st Party workman clearly

indicates that he was under the employment of the 2^nd Party Management continuously and uninterruptedly for more

than 240 days in a calendar year preceding to his alleged retrenchment. He is alleged to be in service for about 18

years.

Having regard to the illegal retrenchment of the disputed workman and the period for which he had given

service, I am constrained to observe that it is a fit case in which the disputant workman is to be reinstated.

The 1^st. Party Management is directed to reinstate the workman Sri Bichitrananda Ghadei with immediate

effect along with his back wages failing which the disputed workman is entitled to receive interest @ 7.5% per annum

on his back wages and such interest is to be calculated from the date of notification of the award.

The reference is answered according.

Dictated & corrected by me.

B. C. RATH, Presiding Officer

6374

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1507

1507

1507.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD 0दीप माइ`नग एL ड कं \T शन (0ा.) िलिमटेड के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म

िनPदQ औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, भुवनेo वर के पंचाट (संदभD सं(या

86/2016) को 0कािशत करती है जो के?ीय सरकार को 09.08.2019 को 0ा9 5आ था।

[सं. एल-29012/35/2016-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1507.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 86/2016) of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Pradeep Mining and Construction (P) Ltd. and their workman, which was received by the Central

Government on 09.08.2019.

[No. L-29012/35/2016-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL,BHUBANESWAR

Industrial Dispute Case No. 86 of 2016

Dated of passing of the award 13.02.2019

Present: Shri B. C. Rath,LL.B., Presiding Officer,

Central Government Industrial Tribunal,

Bhubaneswar

Between:

The Management,

M/s. Pradeep Mining & Construction (P) Ltd,

(Contractor of IDC Chromites Mines,Talangi,Sukinda)

At/P.O./P.S.-Chorda, Jajpur Road,

Dist-Jajapur,Odisha,Pin-755019

…First Party- Management

-Versus-

Sri Pratap Mohanta,aged about 40 years,

S/o.Late Meghu Mohanta, Vill-Bandhagaon,

P.O. Damadarpur,P.S.Sukinda,

District-Jajpur,Odisha,Pin-755018.

…2^nd. Party Workman/Union

Appearances:-

For the First Party Management : None

For the 2^nd Party workman : Self

AWARD

The Government of India, Ministry of Labour and Employment have referred an Industrial Dispute between the above

named parties for its adjudication vide its order No,L-29012/35/2016-IR(M)) dated.14.12.2016 in exercising its

authority conferred under Clause (d) of sub-section(1) and sub-section(2-A) of Section 10 of the Industrial Disputes

Act,1947 and the Schedule of the reference is as follows:-

“Whether it is justified on the part of the workman Shri Pratap Mohanta, not to receive the terminal benefits

offered by the contractor M/s. Pradeep Mining and Construction(P) Ltd.,Jajpur Road,Odisha on the ground that

he should be paid wages for the period from 07.04.2012 to 04.09.2012 actually not worked ? If not, what

relief the workman is entitled to ?”

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6375

In his statement of claim the 2^nd Party- Workman

contends that he was working as a Mazdoor in the

Chromites Mines of the 1^st Party Management from 2.8.1999 continuously and uninterruptedly till he was retrenched

from service forcefully on 5.4.2012. According to him he was getting a monthly salary around Rs. 8000/- and his

Provident Fund Contribution was deducted and deposited by the 1^st Party Management during the period of his

employment. It is his claim that on 30.3.2012 he along with other co-workers went to the office of the 1^st. Party

Management to request to reinstate a worker Sisira Dehury who was retrenched last month by the 1^st. Party but the 1^st.

Party denied and threatened the workman and other co-workers to retrench them if they further request the 1^st.Party

Management. On 6.4.2012 the Ist. Party Management did not allow him to work on being influenced by his rival group.

He was not allotted with any work from 6.4.2012 onwards though, he was present in his place of work. He was not

given any notice Pay and Retrenchment Compensation before his forceful retrenchment. Such action of the Management

refusing employment to him without compliance of the requirement of Section 25(f) and 25(n) is illegal and unjustified.

Further, he has prayed that he shall be reinstated with all back wages and service benefits being treated to have been

continuing in service.

It is pertinent to mention here that the disputant workman being aggrieved by the terms of the reference of the

appropriate Government had approached the Hon’ble High Court of Odisha vide W.P(C) No.22130/2017 for changing

the terms and schedule of the reference. The Hon’ble High Court vide its order dated. 30.10.2017 have directed this

Tribunal to take the issue of retrenchment and the relief to which the workman is entitled to along with the dispute

referred to for adjudication.

Since the 1^st. Party-Managemet did not appear and contest the claim of the disputant- workman inspite of being

noticed, the reference case is heard exparte. During exparte hearing the disputant-workman has filed his evidence in

form of sworn affidavit under Order 18 Rule 4 C.P.C. and exhibited documents like copy of his Identity Card issued

by the Management, Copies of wage slips, copies of EPF Slips, Copy of Letter dt. 7.6.2012, copy of letter dt. 17.4.2012

of the workman, copy of letter of ALC(Central), BBSR, dated 21.9.2012 addressed to Ministry. Copy of the token issued

to the workman which are marked as Exts. 1 to 7 respectively.

Keeping in view the terms of the reference as well as the direction of the Hon’ble High Court of Odisha in its

order dt. 30.10.2017 passed in W.P.(C) No. 22130/2017 the points for consideration are :-

1) Whether the disputant-workman was retrenched illegally with effect from 6.4.2012 ?

To what relief he is entitled to, if his retrenchment was illegal ?

Whether it was justified on the part of the workman not to receive the retrenchment benefits offered by the

Management on the ground that he should be paid wages for the period from 7.4.2012 to 4.9.2012

6. In his sworn affidavit filed towards his examination in chief the disputant-workman has reiterated the pleadings

advanced in his statement of claim. It has been claimed by him that he was working as a Mazdoor under the 1^st Party

Management continuously and uninterruptedly from 02.08.1999 till he was refused work/employment with effect from

6.4.2012. He has asserted that he was discharging his duty with utmost satisfaction of the Management and he was

receiving a monthly salary of Rs. 8000/- . The 1^st Party Management was deducting from his salary towards his monthly

Provident Fund Contribution. The 1^st Party Management refused employment to him at the instance of his rival group

working under the said Management. There was no sufficient reason to refuse employment to him which amounted to

retrenchment. The said retrenchment was made in violation of the provision of Section 25(f) and as such the same is

illegal and unjustified. Hence he has claimed for his reinstatement with back wages and other service benefits. There is

nothing substantial in his unchallenged and uncontroverted oral testimony to disbelieve him. Rather, the documents

Exts.1 to 7 filed by him reveal that the 1^st Party Management has issued Ext.1 the identity card wherein the date of

joining of the workman is indicated as 2.8.1999. The wage slips issued in his favour reveal that wages were paid

to him by the 1^st Party Management. Provident Fund Contribution was deducted from his monthly wages, The

representation made by the workman to various authorities further reveal that he put forth his grievances for refusal of

employment to him. In the above back drops it can be safely held that the disputant was working as a Mazdoor under

the 1^st. Party Management continuously and uninterruptedly from 02.08.1999. It is alleged that he was not paid notice

pay and retrenchment compensation as required U/s. 25(f) of the Act when he was refused employment on 6.4.2012.

Therefore, such refusal of employment amounting to retrenchment was illegal and unjustified and the same was in

violation of the provisions of the Industrial Disputes Act.

Further, it appears from his unchallenged and uncontroverted pleadings and evidence that other workmen are

continuing in their services and there was no justification to refuse work to him, though he was working as a Mazdoor

6376

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

for more than 11 years continuously and uninterruptedly in the mines of the 1^st Party Management. Therefore, it is a fit

case wherein reinstatement with all back wages and other service benefits would be the appropriate relief to be awarded

to the workman. Hence, the 1^st Party Management is directed to reinstate the disputant- workman within two months

from the date of notification of the award along with 50% of his back wages failing which the disputant is entitled to

interest @ 7.5% per annum on his back wages from the date of this award.

The reference is answered accordingly.

Dictated & corrected by me.

B. C. RATH, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1508

1508

1508.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

िनPदQ औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, भुवनेश् वर के पंचाट (संदभD सं(या

87/2016) को 0कािशत करती है जो के?ीय सरकार को 09.08.2019 को 0ा9 5आ था।

[सं. एल-29012/36/2016-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1508.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 87/2016) of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Pradeep Mining & Construction (P) Ltd. and their workman, which was received by the Central

Government on 09.08.2019.

[No. L-29012/36/2016-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, BHUBANESWAR

Industrial Dispute Case No. 87of 2016

Dated of passing of the award 13.02.2019

Present: Shri B.C.Rath,LL.B.,Presiding Officer,

Central Government Industrial Tribunal,

Bhubaneswar.

Between:

The Management,

M/s. Pradeep Mining & Construction (P) Ltd,

(Contractor of IDC Chromites Mines, Talangi, Sukinda)

At/P.O./P.S.-Chorda, Jajpur Road,

Dist-Jajapur,Odisha,Pin-755019.

…First Party- Management

-Versus-

Kirtan Mohanta, aged 46 years,

S/o. Bairagi Mohanta, Vill-Ostia,

P.O. Chungudipal, P.S. Kaliapani, Dist-Jajapur,

Odisha,Pin-755028.

…2^nd Party Workman/Union

Appearances:-

For the First Party Management : None

For the 2^nd Party workman : Self

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6377

AWARD

The Government of India, Ministry of Labour and Employment have referred an Industrial Dispute between

the above named parties for its adjudication vide its order No, L-29012/36/2016-IR(M) dated.14.12.2016 in exercising

its authority conferred under Clause (d) of sub-section(1) and sub-section(2-A) of Section 10 of the Industrial Disputes

Act,1947 and the Schedule of the reference is as follows:-

“Whether it is justified on the part of the workman Shri Kirtan Mohanta, not to receive the terminal benefits

offered by the contractor M/s. Pradeep Mining and Construction (P) Ltd., Jajpur Road, Odisha on the ground

that he should be paid wages for the period from 07.04.2012 to 04.09.2012 actually not worked ? If not, what

relief the workman is entitled to ?”

In his statement of claim the 2^nd Party- Workman

contends that he was working as a Driver in the

Chromites Mines of the 1^st Party Management from 1.10.2006 continuously and uninterruptedly till he was retrenched

from service forcefully on 6.4.2012. According to him he was getting a monthly salary around Rs. 8000/- and his

Provident Fund Contribution was deducted and deposited by the 1^st Party Management during the period of his

employment. It is his claim that on 30.3.2012 he along with other co-workers went to the office of the 1^st. Party

Management to request to reinstate a worker namely Sisira Dehury, who was retrenched by the 1^st.Pary Management

illegally but the 1^st. Party denied and threatened the workman and other co-workers to retrench them if they further

request the Management. On 6.4.2012 the Ist. Party Management did not allow him to work on being influenced by his

rival group. He was not allotted with any work from 7.3.2012 onwards though, he was present in his place of work. He

was not given any notice Pay and Retrenchment Compensation before his forceful retrenchment. Such action of the

Management refusing employment to him without compliance of the requirement of Section 25(f) and 25(n) is illegal

and unjustified. Further, he has prayed that he shall be reinstated with all back wages and service benefits being treated

to have been continuing in service.

It is pertinent to mention here that the disputant workman being aggrieved by the terms of the reference of the

appropriate Government had approached the Hon’ble High Court of Odisha vide W.P(C) No. 22128/2017 for changing

the terms and schedule of the reference. The Hon’ble High Court vide its order dated 30.10.2017 have directed this

Tribunal to take the issue of retrenchment and the relief to which the workman is entitled to along with the dispute

referred to for adjudication.

Since the 1^st. Party-Management did not appear and contest the claim of the disputant- workman inspite of

being noticed, the reference case is heard exparte. During exparte hearing the disputant-workman has filed his evidence

in form of sworn affidavit under Order 18 Rule 4 C.P.C. and exhibited documents like copy of his Identity Card issued

by the Management, Copies of wage slips, copies of EPF Slips, Copy of Letter dt. 17.4.2012, copy of letter dt. 17.4.2012

of the workman, copy of letter of ALC(Central), BBSR, dated 21.9.2012 addressed to Ministry, Copy of letter

dt. 7.6.2012 of the Management, copy of letter dt. 14.9.2012 of the Management and cop of token issued by the

Management which are marked as Exts. 1 to 9 respectively.

Keeping in view the terms of the reference as well as the direction of the Hon’ble High Court of Odisha in its

order dt.30.10.2017 passed in W.P.(C) No.22128/2017 the points for consideration are :-

1) Whether the disputant-workman was retrenched illegally with effect from 7.3.2012 ?

To what relief he is entitled to, if his retrenchment was illegal ?

Whether it was justified on the part of the workman not to receive the retrenchment benefits offered by the

Management on the ground that he should be paid wages for the period from 7.4.2012 to 4.9.2012

6. In his sworn affidavit filed towards his examination in chief the disputant-workman has reiterated the pleadings

advanced in his statement of claim. It has been claimed by him that he was working as a Driver under the 1^st Party

Management continuously and uninterruptedly from 1.10.2006 till he was refused work/employment till 6.4.2012.He

has asserted that he was discharging his duty with utmost satisfaction of the Management and he was receiving a

monthly salary of Rs. 8000/- . The 1^st Party Management was deducting from his salary towards his monthly Provident

Fund Contribution. The 1^st Party Management refused employment to him at the instance of his rival group working

under the said Management. There was no sufficient reason to refuse employment to him which amounted to

retrenchment. The said retrenchment was made in violation of the provision of Section 25(f) and as such the same is

illegal and unjustified. Hence he has claimed for his reinstatement with back wages and other service benefits. There is

nothing substantial in his unchallenged and uncontroverted oral testimony to disbelieve him. Rather, the documents

Exts. 1 to 9 filed by him reveal that the 1^st Party Management has issued Ext.1 the identity card wherein the date of

joining of the workman is indicated as 1.10.2006. The wage slips issued in his favour reveal that wages were paid

to him by the 1^st Party Management. Provident Fund Contribution was deducted from his monthly wages, The

representation made by the workman to various authorities further reveal that he put forth his grievances for refusal of

employment to him. In the above back drops it can be safely held that the disputant was working as a Driver under the

6378

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

1^st. Party Management continuously and uninterruptedly from 1.10.2006. It is alleged that he was not paid notice pay

and retrenchment compensation as required U/s. 25(f) of the Act when he was refused employment on 6.4.2012.

Therefore, such refusal of employment amounting to retrenchment was illegal and unjustified and the same was in

violation of the provisions of the Industrial Disputes Act.

Further, it appears from his unchallenged and uncontroverted pleadings and evidence that other workmen are

continuing in their services and there was no justification to refuse work to him, though he was working as a Driver

for more than 5 years continuously and uninterruptedly in the mines of the 1^st. Party Management. Therefore, it is a fit

case wherein reinstatement with all back wages and other service benefits would be the appropriate relief to be awarded

to the workman. Hence, the 1^st Party Management is directed to reinstate the disputant- workman within two months

from the date of notification of the award along with 50% of his back wages failing which the disputant is entitled to

interest @ 7.5% per annum on his back wages from the date of this award.

The reference is answered accordingly.

Dictated & corrected by me.

B. C. RATH, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1509

1509

1509.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD िबसरा टोन लाइम कं. िलिमटेड के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म िनPदQ

औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, भुवनेo वर के पंचाट (संदभD सं(या 3/2004) को

0कािशत करती है जो के?ीय सरकार को 09.08.2019 को 0ा9 5आ था।

[सं. एल-29011/60/2003-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1509.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 3/2004) of the Central Government Industrial Tribunal/Labour Court,

Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Bisra Stone Lime Co. Ltd. and their workman, which was received by the Central Government on

09.08.2019.

[No. L-29011/60/2003-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, BHUBANESWAR

Industrial Dispute Case No. 3 of 2004

Award passed on 04.02.2019

Present: Shri B.C.Rath,LL.B.,Presiding Officer,

Central Government Industrial Tribunal,

Bhubaneswar.

Between:

M/s. Bisra Stone Lime Co. Ltd.,

Birmitrapur

…Ist. Party Management

-Versus-

The Secretary Gangpur Labour Union,

P.O. Birmitrapur, Dist-Sundargarh

…2^nd. Party Workman

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6379

Appearances:

For the First Party Management : Sri S.N. Tripathy, Dy. Manager (P)

For the 2^nd. Party workman : Sri B. Panigrahi, Dy. President.

AWARD

The Government of India ,Ministry of Labour have referred a dispute in exercise of its authority under Section

10 of the Industrial Disputes Act,1947 (herein after referred to as the Act.) vide order No. L-29011/60/2003-IR(M)

dated 05.02.2004 for its adjudication and the schedule of the reference runs as follows:-

“Whether the demand of the Gangpur Labour Union, Birmitrapur demanding exgratia payment for the accounting

year 2001-2002 @ Rs.1300/- to 1351/- employees at par with the employees who had been paid by the

Management of B.S.L. Co. Ltd., Birmitrapur as exgratia @ Rs. 1300/- to 144 employees is justified ? If not, what

relief the workmen are entitled to ?”

The case of the 2^nd party Union as emerges from its statement of claim is that the Ist. Party Management is an

Industry under the control of Ministry of Steel, Government of India and it has mines of Lime Stone and Dolomites at

Birmitrapur District Sunderagrh, Odisha. In the financial year 2001-2002 the Management Company declared an

advance of Rs.1300/- vide its letter Reference No.33/2451 dated 9.10.2002 to its workmen who were not eligible to

receive bonus for the said financial year subject to the proposal being approved by the Board. In that view of the matter

144 employees out of total strength of 1495 employees were paid Rs.1300/- each. In the next financial year the said

amount paid to144 employees was converted into exgratia payment which was opposed by certain sections of the

workmen on a contention that the Management can not discriminate the workmen and apply two set of rules to them.

The lump sum amount granted towards exgratia should have been granted to all the employees who were on Pay Roll

as on 31.3.2002. The Management has no authority to differentiate the workmen to divide them in two set of groups and

apply two different financial benefits to them. As per the settled principles of law all the workmen should be treated in

equal manner and they were entitled to receive exgratia payment sanctioned from time to time. Such decision of the Ist.

Party Management was challenged before the Labour Machinery which has ultimately led the present reference as

mentioned earlier. It is the prayer of the 2^nd party Union that award should be given directing the Management to make

payment of exgratia to all other deprived employees numbering 1351 for the year ending 2002.

The Management has resisted the Statement of Claim taking a stand in its Written Statement that the dispute

raised by the 2^nd. Party Union is not maintainable in the eye of law in view of a settlement reached out between the

Management and the Union “Khani Mazdoor Sangha”. The above Union was having support of the majority of the

workers working in the Ist. Party Management and the same Union has been recognised by the Management whereas the

2^nd. Party Union is a minority Union. As per the demand of the recognised Union for payment of bonus a settlement

was worked out between the said Union and the Management before Labour Machinery whereby it was agreed that

bonus @ 8.33 would be paid for the year ending 2001-2002 on or before 11.10.2002 to the workmen who were entitled

to receive for the bonus. The Workmen, who were not entitled to the bonus would be entitled to receive Rs. 1300/- as

an exgratia subject to the same being approved by the Board. Accordingly a settlement was drawn and executed. The

Management had never differentiated or treated the workmen differently. Such payment of exgratia being made on the

basis of a settlement, the 2^nd Party Union has no cause of action or right to raise any Industrial Dispute in that regard.

In view of the settlement reached out between the Management and the recognised Union and payment of bonus to the

employees/workmen who were eligible or entitled to such bonus and payment of exgratia of Rs.1300/- to other set of

workmen who were on Pay Roll of the Management and not entitled to Bonus, the dispute raised by the 2^nd. Party Union

has no merit for consideration and the same is liable for rejection.

On the aforesaid pleadings of the parties the only issue for consideration is :-

Whether the Employees/Workmen numbering 1351 were entitled to receive Rs.1300/- each as an exgratia at

par with the Employees who had been paid such exgratia by the Management in the financial year 2001-2002 ?

The parties to the dispute have not preferred to adduce any evidence either oral or documentary in support of

their respective claims except advancing an argument on their pleadings.

No serious dispute has been raised by the 2^nd Party Union in regard to the settlement reached out between the

Ist. Party Management and the Union in the name and style of “’ Khani Mazdoor Sangha”. The said Union is pleaded

to have been recognised by the Management and no serious dispute has been raised by the 2^nd Party Union on such

pleading. It appears from the pleadings and argument advanced by the parties as well as from the copies of

Settlements filed along with the statements that it was agreed that the Management would pay bonus @ 8.33 to all its

employees who were eligible to statutory bonus. As per the said settlement the Management further agreed to make

payment of a lump sum exgratia payment of Rs.1300/- only to each employees, who were not eligible to payment of

bonus, provided the employees were on Pay Roll of the Management on and before 31.3.2002. The 2^nd Party Union has

6380

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

not challenged the above settlement in any manner. Such settlement having not been challenged in any manner or

declared illegal or unjustified the same is binding on the parties. It can not be over sighted that the Settlement was

entered into with the recognised Union and this fact is not also challenged by the 2^nd Party Union.

The terms and conditions of the Settlement spelt out that an amount of Rs. 1300/- should be paid to those

employees/workmen of the Ist Party Management who were not entitled to receive bonus as per the provisions of

Bonus Act. Further, if the bonus amount was less than Rs. 1300/- the entitled workmen would receive the differential

amount of exgratia. In that view of the matter it is hard to believe that the Management had made any un-equal

treatment to its workmen. The above practice seems to have been followed even after the financial year 2001-2002.

Since the workmen numbering 1351 had received bonus in the accounting year 2001-2002, which was not less than

Rs. 1300/- , the amount paid as exgratia to other 144 workmen, who were not entitled to bonus, the demand raised by

the 2^nd. Party Union has no merit. Those workmen (numbering 1351) did not entitle to exgratia payment in view of the

settlement between the parties. Rs.1300/- was paid to other group of workmen as exgratia since they were not entitle to

Bonus and they did not receive any amount towards such bonus. Therefore, the Management had not differentiated or

treated unequally to its workmen violating any provision of the Industrial Disputes Act. Thus the dispute raised by the

2^nd Party Union has no merit for consideration.

The reference is answered accordingly.

Dictated & corrected by me.

B. C. RATH, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1510

1510

1510.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD सुक? दा माइ? स (lोमाइट) के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म िनPदQ औwोिगक

िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, भुवनेo वर के पंचाट (संदभD सं(या 64/2017) को 0कािशत

करती है जो के?ीय सरकार को 09.08.2019 को 0ा9 5आ था।

[सं. जेड-16025/4/2019-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1510.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 64/2017) of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Sukinda Mines (Chromite) and their workman, which was received by the Central Government on

09.08.2019.

[No. Z-16025/4/2019-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, BHUBANESWAR

Present:

Shri Bijay Chandra Rath,

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

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 64/2017

Date of Passing Order – 12^th of February, 2019

Between:

M/s. Sukinda Mines (Chromite),

of M/s. IMFA Ltd.,

At/P.O./P.S.- Kaliapani,

Sukinda, Dist-Jajpur, Odisha

…1^st Party-Management

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6381

(And)

Shri Satyananda Dehury,

At/P.O. – Chingudipal,

Via-Kalarangiatta, P.S.-Kaliapani,

Sukinda, Dist-Jajpur, Odisha

…2^nd Party-Workman

Appearances:-

None

…For the 1^st Party-Management

Shri Satyananda Dehury

…For the 2^nd Party workman

AWARD

The 2^nd party workman is present. The Management is found absent on repeated calls. The Applicant-workman is

heard on his memo dated 31.10.2018 wherein prayer has been made to allow the workman to withdraw his application

preferred U/S 2-A sub clause (2) & (3) of the Industrial Disputes Act, 1947 on the ground stated therein. On perusal of

the record it reveals that this Industrial Dispute case has been registered on the filing of the application resorting to the

provision as stated earlier and as per the said provision the individual workman can approach directly the Tribunal-cum-

Labour Court against the dispute of his dismissal/termination/retrenchment etc. within three years from the date of such

alleged dismissal provided the Labour Machinery fails to achieve a conciliation between the parties within 45 days of the

dispute being raised before the Labour Machinery. It appears from the statement of claim of the applicant-workman that

his service was terminated on 30.4.2010 and as such the dispute of dismissal could have been raised directly before the

Tribunal within 30.4.2013. But, the statement of claim is filed on 7.11.2017. The applicant-workman submits that he

would raise the dispute before the Labour Machinery of the appropriate Government and he may be allowed to withdraw

the application. Having regard to the provisions of law and submission advanced by the applicant-workman the

statement of claim stands withdrawn and the Industrial Dispute Case is dismissed without adjudication of the dispute on

merit on account of the claim statement being withdrawn.

Dictated & Corrected by me.

B. C. RATH, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1511

1511

1511.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD ऑयल एL ड नेचुरल गैस कॉरपोरेशन िलिमटेड एवं अ? य के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच

अनुबंध म िनPदQ औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय-2, मुh बई के पंचाट

(संदभD सं(या 6/2018) को 0कािशत करती है जो के?ीय सरकार को 13.08.2019 को 0ा9 5आ था।

[सं. जेड-16025/4/2019-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1511.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 6/2018) of the Central Government Industrial Tribunal/Labour Court-

2, Mumbai now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management

of M/s. Oil and Natural Gas Corporaton Limited and others and their workman, which was received by the Central

Government on 13.08.2019.

[No. Z-16025/4/2019-IR(M)]

D. K. HIMANSHU, Under Secy.

6382

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : M. V. Deshpande, Presiding Officer

Appln. (Ref) No. CGIT-2/6 of 2018

EMPLOYERS IN RELATION TO THE MANAGEMENT OF M/S. OIL & NATURAL GAS CORPORATION

LTD. & 10 ORS.

The Executive Director,

M/s. ONGC, Green Heights,

Bandra Kurla Complex, Bandra,

Mumbai – 400 051.

M/s. Arex Travel & Logistics,

12/31, Kashimira Swastika Park,

Chembur, Mumbai – 400 071.

M/s. S.N. Travels,

Sai Ashish CHS, Shop No. 28, Bela Road,

Near Bharat Bank, Bhandup West,

Mumbai.

M/s. Gurunanak Travels & Tours,

46, Sher-E-Punjab, Andheri East,

Mumbai – 400 093.

M/s. J.S. Transport Carriers,

B/24, Amar Gain Society,

L.B.S. Marg, Khopat, Thane West,

Mumbai – 400 601.

M/s. Alankar TPT Corp. Ltd.

85/A, Balgram Road, Opp. Bhabha Hospital, Kurla West,

Mumbai – 400 070.

M/s. Avtar Travels,

46, Sher-E-Punjab, Andheri East,

Mumbai – 400 093.

M/s. D.C. Gupta and Sons,

Gupta House, Sion-Panvel Highway,

Opp. Sanpada Rly Stn., Navi Mumbai.

M/s. Buthello Travels,

R/3, Mathur Estate, Premier Road,

Mumbai – 400 070.

10.

M/s. Orion Security Solutions Pvt. Ltd.,

5E, 1^st Floor, Jungi House, Street-5,

Near Power Station I’ll ShahpurJat,

New Delhi – 49.

11.

M/s. SISPL,

Mid Commercial Centre, G-3/1,

Cross Road – A, MIDC, Andheri East,

Mumbai – 400 093.

AND

THEIR WORKMEN

The President,

Oilfied Employees Association,

B-506, Sai Vihar, Sector-15, CBD Belapur,

Navi Mumbai – 400 614.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6383

APPEARANCES:

FOR THE EMPLOYER

1. Mr. P. A. Deogaonkar,

Advocate

2. Mrs. Sanhita Rane

Advocate

3. Mr. Mahesh M. Gawas

Advocate

4. Mr. Uresh U. Sawant

Advocate

5. Mr. J.S. Lall,

Advocate

6. Mrs. Sanhita Rane

Advocate

7. Mrs. Sanhita Rane,

Advocate

8. Mrs. Sanhita Rane,

Advocate

9. No Appearance

10. No Appearance

11. No Appearance

FOR THE WORKMEN

Mr. S. Mishra,

Representative

Mumbai, dated the 31^st July, 2019

AWARD

This is a reference filed under Section 2-A sub section (2) of the Industrial Disputes Act, 1947 in view of the

amendment in the Act No. 24 of 2010.

The second party association has filed statement of claim Ex.2 contending therein that logistic is one of the main

activity of first party ONGC since bus services are essential for to and fro transportation of ONGC officials between

residence and the work centre. There are around 55 buses apart from other logistic equipments being operated on ONGC

duties. The staff working on buses are working regularly & continuously for about last 2 decades but their service

conditions are not defined. Contractors to the principal employer mainly N.K. Kanoji, DGM unnecessarily got indulge in

filing fabricated FIR. Taking the pretext of dispute between Mr. Kanoji and concerned workmen the contractors are not

allowing the drivers to individual duties.

It is also the case of the concerned workmen that all contracts being operated in the estt. Of ONGC are

camouflage as the workers are under the direct control of ONGC officials. There had not been even a single incidence of

misbehaving of the drivers during the part of many years and therefore the concerned workmen who are drivers are

eligible for benefits from retrospective effects which are available to ONGC regular employees on the equivalent ranks.

The second party association is therefore asking to direct the first party ONGC to take the 16 concerned workmen in the

reference on job immediately with payment of their dues pending since 20.6.17.

The first party ONGC by filing written statement Ex. 21 resisted the claim contending therein that the persons

on whose behalf the second party has raised the dispute were never in the employment of first party Corpn. For want of

jurian relationship between first party Corpn. and persons concerned in the reference, the present reference is not

maintainable.

It is also the case of the first party ONGC that the concerned workmen were in the employment of first party

No.2 to 11 who were awarded contracts on the basis of limited tender to function transport facilities as well as security

services at the given location of first party No.1 Corpn. The said contractors were carrying out the said job by enjoying

their own people who were carrying out their respective jobs under the supervision & control of respective contractors. In

the absence of employer employee relationship between first party No.1 Corpn. and the persons represented by the

second party, the reference itself is not maintainable. The first party No.1 Corpn. had never dismissed, discharged,

retrenched or otherwise terminated the services of employees employed by the contractors. As such the reference is not

maintainable since the same is contravention of provisions of section 2 A (2) of I.D. Act. The second party association

has no locus-standi to espouse the present dispute.

It is then the case of the first party ONGC that the core activity of first party ONGC is in the business of tapping

in the recourse of oil & natural gas. There exists contracts in the Corpn. to our-source non-core jobs to various private

factories by awarding contracts through tendering. While doing so, Corpn. follows laid down tendering procedure and

6384

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

complied with provisions of relevant enactment such as Contract Labour [Regulation & Abolition] Act, Minimum Wage

Act, EPF & MP Act, 1952 etc.

According to the first party ONGC, contractors used to provide their own buses, vehicles along with their

drivers for pick up and drop facility to the employees of first party Corpn. from residential quarters to work place and

vice-versa. Required manpower is employed and deputed by independent contractor under their supervision to perform

the terms of contract at first party No.1 estt. On 20.6.17 all of sudden 8 contract bus drivers including one contract

security guard, engaged through various contractors participated in illegal strike at the instigation of President of the

second party association wherein one of the officer of the first party No.1 was manhandled. For the said act of assault, an

FIR was lodged against the President of the second party association & 8 contract drivers and one contract security

guard. Now criminal case is pending before court. At the time of agitation contractors bus drivers handed over the keys

of the buses to respective contractors and refused to carry out the routine duty. After the said incidence, contractors

replaced the drivers who were involved in the said agitation by engaging new drivers. However, the second party did not

allow the contractor to change the driver and therefore ONGC deducted the amount from the bill of the contractor for

non-compliance of the instructions as per the terms of agreement.

It is thus case of the first party that the contracts are not camouflage as the workers are under direct control of

the contractors. The contractors engaged their own employees and first party cannot take any disciplinary action against

them. On these premise the first party Corpn. has sought dismissal of reference.

First party No.2 filed written statement Ex.23 contending therein that the reference is not maintainable since

there is no relief claimed against the first party No.2 and that second party association has not specifically pleaded cause

of action for the reference. It is the case of first party No.2 that it is into the business of providing transport facilities to

various estts. and companies as per their requirements. First party No.2 company owns 48 buses out of which 13 buses

are hired for First party No.1 Copn. Duties. Accordingly the company was awarded contract from 9/15 to 9/18. The said

contract will come to an end by efflux of time. Company deployed his own buses and employees. Company deployed

Mr. Bharat Kasar to drive one bus from Panvel location to ONGC Nava and back. However, Mr. Bharat Kasar along with

company drivers engaged through various contractors participated in the illegal strike instigated by second party

association. They involved in agitation and manhandled one of the officer of first party No.1 company who lodged

complaint / FIR against second party association and the persons involved in the incidence of manhandling. Accordingly

proceedings are pending before Panvel Court in this respect.

10.

According to First party No.2, Mr. Bharat Kasar was repeatedly called for duty to drive the bus deployed for

BPCL contract from Panvel to Mahol and back but he refused flatly to report for duty and demanded the work with First

party No.1 Corpn. Since he himself is not reporting at re-deployed place, for his own wrong First party No.2 cannot be

held liable. As such the said employee namely Mr. Bharat Kasar is not entitled for any relief claimed. It has thus sought

dismissal of reference.

11.

First party No.3 filed written statement Ex.27 and resisted the claim on the ground that the reference is not

maintainable. It is then contention of the First party No.3 that company is under the business of providing facilities to

various estts. Company owns 9 buses. It was awarded contract from 8/15 to 8/18. The said contract will come to an end

by efflux of time. Company has deployed his own employees. Company deployed Mr. Sheshrao Ramgude, Mr. Santosh

Misal to carry out the bus services from Panel location to ONGC duty place. They along with co-drivers participated in

the illegal strike, instigated by second party association and manhandled one officer of the first party No.1 Corpn. who

lodged FIR and filed criminal proceedings which are pending.

12.

According to the company both the employees were repeatedly called for duty at re-deployed place w.e.f.

27.8.17. They flatly refused to report for duty and therefore for their own wrong first party No.1 Corpn. cannot be held

liable. As such concerned employees remained willfully absconding from employment on and from 20.6.17 and hence

they are not entitled to any relief.

13.

First party No.4 filed written statement Ex.31 contending therein that the reference is not maintainable.

Company is into the business of providing transport facilities to various estts. Company owns 13 buses. Company was

awarded contract from 1.9.15 to 31.8.18. The contract will come to an end by efflux of time Company had deployed his

own employees. Company deployed Mr. Zippar Singh Rajut, Mr. Dilip Chavan, Mr. Prasana Kumar Alhat to carry out

bus service from Panvel to ONGC duty place. However on 20.6.17 they along with other co-drivers participated in illegal

strike and manhandled the officer of first party No.1 Corpn. who lodged FIR and accordingly proceedings are pending

against them before Panvel Court.

14.

It is then case of the first party No.4 that the above employees were repeatedly called for duty at re-deployed

place but they refused to report for duty and demanded the work with first party No.1 Corpn. As such they are avoiding

to report at the re-deployed place and for their wrong first party No.1 Corpn. cannot be held liable. As such concerned

employees remained willfully absconding from employment on and from 20.6.17 and hence they are not entitled to any

relief.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6385

15.

First party No.5 filed written statement Ex.49 contending therein that the reference is not maintainable.

Company is into the business of providing transport facilities to various estts. Company owns 29 buses. Company was

awarded contract from 9.10.15 to 8.10.18. The contract will come to an end by efflux of time Company had deployed his

own employees. Company deployed Mr. Kachrusingh R. Suryavandhi & Mr. Bharat Prajapati to carry out bus service

from Panvel to ONGC duty place. However on 20.6.17 they along with other co-drivers participated in illegal strike and

manhandled the officer of first party No.1 Corpn. who lodged FIR and accordingly proceedings are pending against them

before Panvel Court.

16.

It is then case of the first party No.5 that the above employees were repeatedly called for duty at re-deployed

place but they refused to report for duty and demanded the work with first party No.1 Corpn. As such they are avoiding

to report at the re-deployed place and for their wrong first party No.1 Corpn. cannot be held liable. As such concerned

employees remained willfully absconding from employment on and from 20.6.17 and hence they are not entitled to any

relief.

17.

First party No.6 filed written statement Ex.54 contending therein that the reference is not maintainable.

Company is into the business of providing transport facilities to various estts. Company owns 5 buses. Company was

awarded contract from 2015 to 2018. The contract will come to an end by efflux of time Company had deployed his own

employees. Company deployed Mr. Kasar Pathan Alias Khan to carry out bus service from Ghatkopar to ONGC duty

place. However on 20.6.17 he along with other co-drivers participated in illegal strike and manhandled the officer of first

party No.1 Corpn. who lodged FIR and accordingly proceedings are pending against them before Panvel Court.

18.

It is then case of the first party No.6 that the above employee was repeatedly called for duty at re-deployed place

but he refused to report for duty and demanded the work with first party No.1 Corpn. As such he is avoiding to report at

the re-deployed place and for his wrong first party No.1 Corpn. cannot be held liable. As such concerned employee

remained willfully absconding from employment on and from 20.6.17 and hence he is not entitled to any relief.

19.

First party No.7 filed written statement Ex.59 contending therein that the reference is not maintainable.

Company is into the business of providing transport facilities to various estts. Company owns 4 Ambulances. Company

was awarded contract from 10.6.14 to 30.9.17. The contract will come to an end by efflux of time Company had

deployed his own employees. Company deployed Mr. Sunil Suryavanshi to carry out bus service from Panvel to ONGC

duty place. However on 20.6.17 he along with other co-drivers participated in illegal strike and manhandled the officer of

first party No.1 Corpn. who lodged FIR and accordingly proceedings are pending against them before Panvel Court.

20.

It is then case of the first party No.7 that the above employee was repeatedly called for duty at re-deployed place

but he refused to report for duty and demanded the work with first party No.1 Corpn. As such he is avoiding to report at

the re-deployed place and for his wrong first party No.1 Corpn. cannot be held liable. As such concerned employee

remained willfully absconding from employment on and from 20.6.17 and hence he is not entitled to any relief.

21.

First party No.8 filed written statement Ex.36 contending therein that the reference is not maintainable.

Company is into the business of providing transport facilities to various estts. Company owns 70 buses. Company was

awarded contract from 1.10.15 to 30.9.18. The contract will come to an end by efflux of time Company had deployed his

own employees. Company deployed Mr. Harshal Garve, Mr. Naushad Patil, Mr. Raju Gedan to carry out bus service

from Panvel to ONGC duty place. However on 20.6.17 they along with other co-drivers participated in illegal strike and

manhandled the officer of first party No.1 Corpn. who lodged FIR and accordingly proceedings are pending against them

before Panvel Court.

22.

It is then case of the first party No.8 that the above employees were repeatedly called for duty at re-deployed

place but they refused to report for duty and demanded the work with first party No.1 Corpn. As such they are avoiding

to report at the re-deployed place and for their wrong first party No.1 Corpn. cannot be held liable. As such concerned

employees remained willfully absconding from employment on and from 20.6.17 and hence they are not entitled to any

relief.

23.

Following issues are framed at Ex.68. I reproduce the Issues along with my findings thereon for the reasons to

follow:

Sr. No.

Issue

Findings

Whether the Reference is maintainable against the first party corporation ?

Whether there exists employer-employee relationship between the persons on

whose behalf second party has raised the dispute and first party corporation ?

Whether the dispute raised by the second party is an Industrial Dispute within the

meaning of section 2 (k) of I.D. Act ?

Yes

Whether the second party is entitled to the relief prayed in statement of claim ?

What order ?

As per final order

6386

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Reasons

Issue No.1 & 2.

24.

Second party association has filed pursis Ex.67 stating therein that the second party association is not required to

adduce the oral evidence. As such no oral evidence is adduced by the second party association.

25.

Similarly the first party No.1, 5, 2, 3, 4, 6, 7, 8 filed pursis Ex. 69, 70 & 71 respectively stating therein that they

do not want to lead evidence.

26.

Now so far as contentions go it is the case of the second party workers that they are working regularly and

continuously in the estt. of first party No.1 ONGC for the last more than 2 decades. However, there is no document to

show that the second party workers are appointed in the estt. of first party No.1 ONGC. We have document to show that

there was contract between the first party No.1 ONGC and the first party No.8 company dated 13.10.15 whereby Corpn.

hired buses on regular basis for carrying out Corpn. operations confirming to specification as set-forth in the scope of the

work. Similarly, there are contracts between first party No.1 ONGC and first party No. 3 dt. 29.5.15. There appears to be

contract between party No.1 ONGC and first party No. 4 company dt. 16.10.15 whereby Corpn. has hired buses on

regular basis for carrying out Corpn.’s operations. More particularly we have document below Ex.57 / 1 to show that

employee namely Mr. Kasar Pathan was appointed as driver purely on temporary basis for the period of 4 months

effective from the date of appointment by first party No. 6 company. This appointment letter of one of the concerned

employee show that he was an employee of first party No. 6 company that to on temporary basis for the period of 4

months and as such there is no appointment letter from first party No. 1 ONGC to show that the concerned workmen are

the employees of first party No. 1 ONGC. Even there is no oral evidence on behalf of the concerned workmen to show

that they are working regularly and continuously in the estt. of first party No. 1 ONGC. For want of evidence, it will have

to be said that there is no employer employee relationship in between first party No. 1 ONGC and the concerned

workmen.

27.

It is in that circumstances the first party No. 2 to 8 in the written statement have specifically stated that the

concerned workmen were engaged by the contractors of ONGC since first party No. 2 to 8 were awarded contract for the

period from 2015 to 2018 and the said contract came to an end by efflux of time. First party No. 2 to 8 are in the business

of providing transport facilities. Companies are having their buses which are hired for duty by the first party No. 1

Corpn. and so far drivers are concerned, they are engaged by the contractors. This fact is explicit from the copies of

contracts between first party No. 1 Corpn. and first party No. 2 to 8. The appointment letter is very specific to show that

one of the concerned employee was appointed by the contractor on temporary basis and as such he was the employee of

the contractor whose services to be came an end by efflux of time.

28.

It is important to note that as per the contention of first party No. 2 to 8 similar dispute was raised earlier by

second party association vide its notice dt. 20.12.17 before conciliation officer for restoration of the duties of the bus

drivers in the employment of first party No. 1. After hearing the parties to the dispute the conciliation officer recorded his

failure report dt. 14.8.17. Ministry of Labour & Employment, New Delhi vide its order dt. 4.1.18 prima-facie did not

consider the dispute for adjudication for the following reasons.

“The union agitated against the removal of 8 drivers engaged by the contractors of ONGC. The drivers

have been removed from service due to stoppage of Bus services on 20.06.2017 and creation of obstacle

for which FIR has been filed against them by the ONGC management. The drivers were not willing to ply

any buses other than carrying ONGC officials and the contractors are not ready to engage them on

ONGC bus duty in view of FIR. The union is demanding a hike of Rs.22,000/- per month, the

management is agreeable for hike of Rs.3,000/-. ONGC being a public utility service, adamant approach

of the Union is not acceptable.”

29.

As such it appears that Ministry of Labour vide its order dt. 4.1.18 rejected to refer the dispute for adjudication

which was in respect of restoration of duties to bus drivers in the employment of first party No. 1 Corpn. The copy of

order dt. 4.1.18 is at page 14 below Ex.42 which clearly reads that the drivers are not willing to fly any buses other than

carrying ONGC officials. Bus contractors stated that they are ready to engage them on other buses but not on the ONGC

buses as the cases filed against them before Panvel court are pending. When the contract was awarded by ONGC, there

was no condition put forth by them to engage any particular driver. So it is for the contractor to decide who will fly

buses. Contractors are ready to engage the drivers on their buses flying for other estts. In view of that the dispute was

treated as closed.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6387

30.

On going through the copy of conciliation officer’s failure report which is produced below Ex. 52 / 1 & 2, it is

clear that during discussions it was transpired that due to stoppage of bus services on 20.6.17 and FIR lodged by ONGC

officials, bus drivers numbering 8 engaged by different contractors demanded for restoration of duties. The contractors

were ready to give duty on other buses which are flying for other companies and they have not terminated or retrenched

the services of the drivers. But the drivers were not ready to do any duty other than driving for the contract buses meant

for ONGC.

31.

From the facts, it is clear that Ministry of Labour earlier rejected to refer the dispute for adjudication and in view

of that the present reference would be barred by principle of estoppel.

32.

On going through the statement of claim, it appears to be the contention of the second party association that the

concerned workmen are working continuously irrespective of change of contractor. No such evidence is adduced by the

second party association. Even there is no evidence to show that the contracts in between first party No. 1 ONGC and

first party No. 2 to 8 are bogus contracts. Even in the statement of claim the relief claimed is that the first party be

directed to take the 16 workers on job with payment of their dues pending since 20.6.17. But then the fact has been

established that the contractors were ready to engage them on other buses but not on ONGC buses as the cases filed

against them were pending and the concerned workmen refused or / willfully remained absconding from employment on

and from 20.6.17. It will have to be said therefore that the services of the concerned workmen were not terminated /

retrenched by the contractors but on the contrary the concerned workmen abandoned the services and refused to render

the services on the ground that they wanted to work on ONGC buses only, when infact in the contract awarded by ONGC

there was no such condition put forth and it is for the contractor to decide who will work / fly the buses.

33.

It is then important to the note that second party association in its statement of claim has not referred to the

incident of strike and suppressed the fact. However, in the notes of arguments it is mentioned that there was hard

discussions in between N.K. Kanoji, DGM and bus staff. Complaints were lodged. Police arrested the second party

workers who were released on bail and the cases are pending before Magistrate Court No. 5, Panvel. Precisely it is the

contention of the contractors that since the cases are pending they are not ready and willing to engage the drivers on

ONGC duty but they are ready to engage them at other places to which they refused. In the circumstances therefore it

appears probable and acceptable that there is no notice of retrenchment given by the contractors to the concerned

workmen. The fact remains that the concerned workmen on their won abandoned job / services of the contractors and

therefore first party cannot be held liable.

34.

So far first party No.1 is concerned, there exists no employer employee relationship between concerned

workmen & first party No.1 Corpn. As seen earlier, there is no document to show that the concerned workmen were

appointed by the first party No.1 Corpn. Therefore in the absence of employer employee relationship between first party

No.1 Corpn. and the persons represented by the second party, the present reference is not maintainable so far as first

party No.1 Corpn. is concerned.

35.

Learned counsel for first party No.1 Corpn. submitted that the second party has not pleaded about signing of the

settlements and therefore the averments / pleadings made by the second party from para – 1 (b) to (f) of the written

arguments cannot be considered. In the context, reliance is placed on the decision in case of Shankar Chakraborty V/s.

Britannia Biscuits Co. & Anr. – 79 – SC – Page – 1652.

36.

Considering all these facts, it has been established that there exists no master & servant relationship in between

the first party No.1 Corpn. and concerned workmen. Admittedly therefore the concerned workmen are the employees of

the contractors first party No.2 to 8. As such so far first party No.1 Corpn. is concerned the reference is not maintainable.

As a matter of fact it has come on record that the concerned workmen have not given the termination letters. They on

their own abandoned the services of the contractors and therefore they are not entitled to any relief prayed in the

statement of claim. The above issues are therefore answered accordingly as indicated against each of them in terms of

above observations.

Issue No.3.

37.

So far this issue is concerned, it is the contention of first party No.1 Corpn. that in the absence of disclosure

of membership and existence of membership, second party does not have locus-standi to raise the dispute much less and

industrial dispute within the meaning of section 2 (k) of I.D. Act. In this respect it appears that the second party

association raised the dispute before ALC wherein second party association represented the concerned workmen and

ultimately after discussion demand of the union did not reach amicable solution and ended in failure. In view of that

necessary certificate u/s. 2 (a) of I.D. act is issued by the authority on the basis of which second party has raised the

6388

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

dispute u/s. 2 (a) of I.D. Act. All the 16 concerned workmen collectively filed application seeking certificate u/s. 2 (a) of

I.D. act which has been granted by ALC on 11.1.18. In view of that it will have to be said that industrial dispute raised by

the second party is within the meaning of section 2 (k) of I.D. act. This issue is therefore answered accordingly.

Issue No. 4 & 5.

38.

In view of my findings to the above issues, second party association is not entitled to any relief. Reference is

liable to be rejected with no order as to costs.

39.

In the result, I pass the following order.

ORDER

Reference is rejected with no order as to costs.

Date: 31.07.2019

M.V. DESHPANDE, Presiding Officer

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1512

1512

1512.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

मेससD टील अथॉ-रटी ऑफ इिLडया िलिमटेड के 0बंधतंE के संबO िनयोजक3 और उनके कमDकार3 के बीच अनुबंध म िनPदQ

औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, भुवनेo वर के पंचाट (संदभD सं(या 1/2012) को

0कािशत करती है जो के?ीय सरकार को 09.08.2019 को 0ा9 5आ था।

[सं. जेड-16025/4/2019-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O. 1512.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 1/2012) of the Central Government Industrial Tribunal/Labour Court,

Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the

management of M/s. Steel Authority of India Limited and their workman, which was received by the Central

Government on 09.08.2019.

[No. Z-16025/4/2019-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, BHUBANESWAR

Tr. Industrial Dispute Case No. 1 of 2012

Dated of passing of the award 03.07.2019

Present: Shri B. C. Rath,LL.B., Presiding Officer,

Central Government Industrial Tribunal, Bhubaneswar

Between:

Management of

Authority of India Ltd,

Rourkela Steel Plant, Rourkela

…First Party- Management

-Versus-

Smt. Menaka Mallick,

W/o. Late- P.C. Mllick,

Plot No.884096.

…2^nd.Party Workman/Union

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6389

Appearances:-

For the First Party Management : Sri.R.Mishra

For the 2ndParty workman : Sri N.Mishra

AWARD

The Government of Odisha, Labour and Employment Department have referred an Industrial Dispute

between the above named parties for its adjudication vide its order No.11/1(SS)/40/05 2390 Dated-16.03.2006 in

exercising its authority conferred under Sub Section (5) of Section 12 read with clause (d) of sub section(1) of Section

10 of the Industrial Disputes Act,1947(14 of 1947) and the Schedule of the reference is as follows:-

“Whether the demand of the Deputy General Secretary, Rourkela Mazdoor Sabha, Rourkela for providing

employment to Smt. Menaka Mallick, wife of Sri Prafulla Chandra Mallick with effect from 25.6.1997 in SAIL,

Rourkela Steel Plant, Rourkela as per clause-3,4,5,1(F) of National Joint Committee Agreement

dated.16.05.1995 is legal and/or justified. If not, what should be the details ?”

Shorn off the unnecessary details the case of the 2^nd Party is that the disputant workman Late P. C. Mallick was

employed as a skilled labourer in the Steel Plant of the Management in the year 1988. On 17.5.1993 while he was

returning home around 10 P.M. after performing his ‘B’ shift duty, he met with an accident near the traffic gate of the

Steel Plant. He was taken and admitted into the IGH Hospital immediately as an indoor patient as he was unconscious.

He was under treatment from 17.5.1993 to 24.6.1997 after such accident. As he was under treatment having met with an

accident arising out and in course of his employment, he was paid full wages for the period of disablement i.e.

17.5.1993 to 24.6.97 as per memorandum of agreement(settlement).He was issued with a show cause notice while being

continued in medical treatment and as per the standing order of the 1^st Party Management he being found unfit

medically was discharged from service on 25.6.1997. It is the claim of the 2^nd Party that as per the term of service

conditions and memorandum of agreement (settlement) executed from time to time between the 1^st Party Management

and the Union of the employees the 2^nd Party Workman is entitled to compensation as per the rules. Besides, one of the

direct dependant of such disabled employee is also entitled to be rehabilitated in the service. Accordingly the deceased

employee workman and his wife (the present disputant) made a representation to the Management to provide

employment to the wife of the disputant workman. When the 1^st Party Management neither paid any compensation nor

provided any employment to the wife of the disputed workman, he filed a case under Workman Compensation Act

bearing No.33/1997 for payment of compensation taking a plea that the disputant workman sustained his injuries being

met an accident in course of his employment. The Management contested the case taking a stand that the disputant did

not met any accident in course of his employment. Rather, he was suffering from Hypertension with hypertensive

retinopathy and he was discharged from the service of the Steel Plant on account of being found medically unfit

permanently to perform his duty. After hearing the parties at length the Commissioner for Workmen Compensation

directed the Management to pay compensation holding that the workman met the accident during course of his

employment. The 1^st Party also contested the matter before the Hon’ble High Court . The Hon’ble High Court upheld

the order of the learned Commissioner with a modification of compensation amount. It has been pleaded by the disputant

that inspite of several representations the authority of the 1^st party Management did not pay any heed to provide

employment to her under the rehabilitation provisions of the settlement. Hence, her husband i.e. disputant workman

raised a dispute before the labour machinery through Deputy General Secretary Rourkela Mazdoor Sabha, Rourkela. As

the conciliation proceeding before the labour machinery failed, a reference has been made for adjudication of the dispute

as stated in supra. It is pertinent to mention here that the disputant workman Late P. C. Mallick filed the statement of

claim along with her wife for her employment under the rehabilitation scheme. While the present reference is pending for

adjudication, the disputant workman died leaving behind him his wife( the present disputant) and his children. The

disputant being a party to the statement of claim along with her husband has been pursuing the dispute and accordingly

she has been shown as a 2^nd Party. She is prosecuting the matter as the 2^nd Party Union did not take any step after the

dispute was referred for a judicial adjudication.

The 1^st Party Management has contested the claim of the disputant taking a stand that the reference is not

maintainable in the eye of law on account of the same being related to a private individual. Neither the original

disputant nor his legal successor was a workman of the 1^st Party Management when the dispute was initially raised

through the 2^nd party union. The claim statement having been preferred by an individual should have been out rightly

rejected on account of the same being filed by a person other than the Union who had initially raised the dispute. That

apart, it is the stand of the Management that the disputant workman did not meet any accident arising out of or in

course of his employment. Neither his disablement nor his death was any way connected or linked to his employment.

He was suffering from Hypertension with Hypertensive Retinopathy and Hemiphesia with unstable gait for which he

was unable to attend his duty and he was availing E.L for a substantial period for which the 1^st party management got

him examined by a medical board. The medical board found him permanently medically unfit as a result of which he

was discharged from service with effect from 24.6.97 as per the term and condition of the standing order of the

6390

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Management. According to the Management an employee discharged on medical ground of his disablement due to an

accident arising out of or in course of his employment he is entitled to avail a benefit under Employees Family Benefit

Scheme. Unless such benefit is being availed of he is not entitled to get rehabilitation assistance as envisaged in the

memorandum of agreement. As Late Mallick was discharged being medically unfit due to his suffering of a disease

arising in natural course of his life he was not entitled to avail such benefit under Employee Family Benefit Scheme.

Hence, his family members is not entitled to get any rehabilitation assistance as per the NJC Agreement. For which

neither he nor his wife made any representation to the 1^st party Management for appointment of Smt. Mallick under

Rehabilitation Assistance Scheme. Clause-3.4.5.1(f),National Joint Committee Agreement dt.18.5.1995 is not

applicable to the claim of the disputant since the death or permanent total disablement of late Mallick was not arisen

out of any accident held in course of his employment. His suffering/illness was no way connected to his employment

or service. The procedure adopted in Workmen Compensation Case and finding thereunder, is no way helpful to

determine the fate of the present dispute. Employment to one of the dependant of an employee is not a service condition

and any claim in this regard is not sustainable in the eye of law on account of the same being opposed to the norms and

mandate of the Constitution. With the above contentions the Management has made a prayer for rejection of the claim

statement.

On the aforesaid pleadings of the parties the following issues have been settled for just and proper decision of

the case.

ISSUES

Whether the reference is maintainable?

Whether Smt. Menaka Mallick is a workman or not?

Whether the demand of the Deputy General Secretary, Rourkela Mozdoor Sabha,Rourkella for providing

employment to Smt. Menaka Mallick wife of Sri Prafulla Chandra Mallick, with effect from 25..6.1997 in

SAIL, Rourkela Steel Plant, Rourkela as per clasue-3.4.5.1(F) NJCA dt.18.5.1995 is legal and/or justified?

If not, what should be the details?

FINDINGS

The 2^nd party workman as well as the 1^st Party Management has adduced oral as well as documentary

evidence in support of their pleadings. The disputant Smt. Mallick has adduced her oral evidence and filed documents

such as copy of accident report dt.17.5.1993, copy of the NJCS agreement dated.18.5.1995 and June 2001, copy of show

cause notice of Management, copy of the reply to the show cause dt.11.6.1997, copy of representation of Mallick to

provide employment to his wife , copy of the representation of S.K. Mallick and Smt. Mallick dt.5.7.2000, copy of the

release order dt.25.6.1997, copy of application dated.11.11.1997, copy of letter dated.8.7.98 of the Union, copy of the

award dt.30.3.2000 by the W.C. Commissioner, Rourkela, order of the Hon’ble High Court of Odisha dt.10.5.2000 and

order of the Hol’ble High Court of Odisha dt.28.3.2005 which are marked as Exts.1 to 12 respectively to substantiate

her claim, whereas the Management has examined M.W.1 and filed documents like Xerox copy of the letter

dated.29.5.1997, copy of office order dated.24.6.1997, copy of the report of the Medical Board, Xerox copy of the

personal policy circular dt.9.11.1991, copy of the bye law of Rourkela Mazdoor Sangha, Copy of the employees

Family Benefit scheme, copy of the cover page of the Medical Treatment book of Late. Mallick, Copy of the NJCS

Agreement dt.18.5.1989 and copy of the office order dated.18.11.1989, which are marked as Ext.A to Ext.J, to counter

the claim of the disputant.

6. It is to be mentioned here that at the instance of the Management issues regarding maintainability of the

reference on grounds of the dispute being not an industrial dispute as defined U/s.2.k of the Act and the disputant

being not a workman as defined in Section 2.s of the Act has no right to raise a dispute having been adjudicated and

decided by the orders dtated.27.9.2013 and 20.12.2013 of this Tribunal respectively no further finding is required in

regard to issue Nos.1 and 2 as well as issue of maintainability of the reference. That apart, it cannot be over sighted that

the dispute was initially raised by an Union recognised by the 1^st Party Management and the same was prosecuted by

the discharged workman and his wife. After death of the said workman his wife is prosecuting the matter. There is no

serious dispute that Late Mallick was discharged from his service with effect from 24.6.1997 on the ground of medical

unfitness On a mere reading of Section 2.k of the Act, which has defined the term “workman” it is crystal clear that “

workman” means any person employed in any industry to do any manual ,unskilled, skilled, technical, operational

clerical or supervisory work for hire or reward, whether the terms of employment he express or implied, and for the

purposes of any proceeding under this Act in relation to an industrial dispute includes any such person who has been

dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute. Similarly “Industrial Dispute” means any dispute or difference

between employers and employers, or between employers and workmen, or between workmen and workmen, which

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6391

is connected with the employment or non- employment or the terms of employment or with the conditions of labour,

of any person.

It is evident from the pleadings and evidence of the parties that late Mallick was an employee of the 1^st Party

Management and he was discharged from service on being found medically unfit to perform his duty. Being a

discharged workman he cannot be a rank outsider and he is covered by the term “workman” as envisaged in the Act.

The dispute involved in the present reference arises out of his discharge from service and claim for rehabilitation of his

wife is raised on account of the term and condition of NJC Agreement . Hence, the dispute being related to non-

employment of the dependant of a discharged workman inspite of a settlement/agreement between the parties for

extending rehabilitation assistance to a family of the workman who met death or suffered from permanent tot al disability

in course of his employment is an Industrial Dispute as defined in the Act. It is emerging from the statement of claim as

well as from the record that such claim statement was filed jointly by Late P.C. Mallick and his wife i.e. the present

disputant. Keeping in view the provisions of Section 10 sub clause(8) the disputant Smt. Mallick can not be out rightly

restrained from prosecuting the dispute under the reference and the above aspects have been taken into consideration by

the Tribunal while deciding the question of maintainability of the reference on earlier occasion. Similarly, it cannot be

over sighted that the dispute was raised taking in to consideration the clause 3.4.5.1(f) of the memorandum of

agreement which provides that in case of death or permanent disablement of an employee due to accident arising out

and in course of employment, employment to one of his /her direct dependant will be provided. This rehabilitation

assistance is in addition to the benefit extended to an employee under the Employees Family Benefit Scheme. Such

rehabilitation assistance having been introduced by a memorandum of agreement is a part and parcel of the service

condition of an employee of the Management. Hence, the disputant who is the wife is entitled to any employment in the

establishment of 1^st party Management under the rehabilitation assistance as incorporated in NJC agreement. As such the

objection raised by the Management on the maintainability of the reference on the grounds stated above has no merit at

all. The other ground of objection as to the dispute having been raised belatedly would be analysed below .

One of the grounds of objection to the claim of rehabilitation assistance is that the workman late. Mallick was

discharged from service on being found medically unfit to perform his duty by the Medical Board due to his suffering

from disease of Hypertension with Hypertensive Retinopathy and Hemiplegia (Lt) with unstable gait and Sri Mallick is

stated to have suffered from the said disease in normal and natural course of his life. He did not suffer from the disease

out of any accident arising out of and in course of his employment. His death or permanent total disablement being

arisen in normal and natural course of his life no rehabilitation assistance as incorporated in the NJC Agreement can be

extended to the disputant or any of his family members. On the other hand, it is the claim of the disputant that her

husband suffered from the disease narrated above out of an accident arisen in course of his employment. To

substantiate her claim the disputant has adduced oral as well as documentary evidence, the same does not seem to

have been demolished by her cross examination. No serious dispute is raised to the effect emerging from her evidence

that an award under the Workman Compensation Act was passed in favour of Late Mallick vide Workmen

Compensation Case No.33/1997 by the Deputy Labour Commissioner and Commissioner for Workmen’s Compensation,

Rourkela. The compensation was granted on a finding that Late Mallick sustained head injury on a fall from a cycle

inside the factory premises of the Management while returning home after completion of his “B” shift duty and

thereafter he became unconscious and he was admitted in the hospital. He continued as an indoor patient for more than

four months and thereafter he was under treatment as an indoor patient. It is the assertion of Smt. Mallick that her

husband was discharged from service on being found medically unfit while being under treatment. It is not also seriously

disputed that compensation of Rs.2,41,992/- along with interest was allowed in favour of late Mallick from

17.5.1993 when he is alleged to have suffered brain injury in course of his employment. The said award was

challenged by the Management before the Hon’ble High Court of Odisha vide M.A. No.289/2000 and the award was

confirmed with the reduction of the compensation amount. In that view of the matter the stand of the Management that

death of Sri Mallick is no way related to the employment cannot be accepted. There is no evidence on behalf of the

Management to establish that the disease detected by the Medical Board cannot be related or connected to the brain

injury sustained by late Mallick in an accident arising out of and in course of employment. That being the material and

evidence before the Tribunal, it is difficult on the part of the Tribunal to hold that disease for which Sri Mallick was

found medically unfit to continue in service was occurred to him in normal and natural course of his life. In the above

facts and circumstances it can be safely said that Late Mallick suffered from permanent total disablement in an

accident arising out of and in course of his employment.

The 2^nd point of objection raised by the Management is that Late Mallick had never challenged his discharge

from service on medical ground at any point of time and he did not avail the benefit under the Employees Family

Benefit Scheme which is usually extended to an employee on his separation from service in the company on account of

his death or permanent total disablement. His nominee/employee, as the case may be , on depositing with the company

the entire P.F. and Gratuity amount of the employee, would be entitled to monthly wage equivalent to his basic pay +

DA last drawn as per the scheme. Such monthly payment shall continue till the normal date on which the employee

concerned would be attained the age of superannuation. Since his disablement and discharge from service was not any

6392

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

way related to his employment neither he nor his family member had applied for to avail such family benefit scheme .

Had he availed the above benefit he could have got the rehabilitation assistance as incorporated in the NJC Agreement

dt.18.5.1995. On a close reading of the said agreement more particularly clauses related to the rehabilitation assistance

as well as the provisions of Employees Family Benefit Scheme it is seen that there is no pre-condition of availing the

Employees Family Benefit Scheme to get the rehabilitation assistance .There is also nothing in the said agreement that

the affected employee or his direct nominee can not avail one of the two benefits. The employee/his nominee may not

ask for or interested for family benefit scheme but , he ma y be interested for rehabilitation assistance. Therefore, the

argument advanced on the above contention is not acceptable. More over, it is found that the condition of rehabilitation

assistance to an employee met death or permanent total disablement in course of his employment was already there

when Late Mallick was discharged from service being found medically unfit. Keeping in view the fact that Late Mallick

having suffered a permanent total disablement due to an accident arising out of and in course of employment, one of

his direct dependant is entitled to employment in the establishment of the Management. It is not disputed that the

Management has not provided employment to any of direct dependant of late Mallick after his discharge from service.

In the above facts and circumstance the claim of the disputant Smt. Mallick for rehabilitation assistance can not be out

rightly rejected.

The next point of objection raised by the Management is that the claim of rehabilitation is not maintainable as it

was raised belatedly about ten years after his discharge from his service.. According to the Management no

application or representation was ever made before the Management for rehabilitation till the dispute was raised before

the labour machinery . Such claim was not raised earlier or soon after the discharge from service since the disease

making late Mallick medically unfit was occurred to him in normal and natural course of life and it was not related to

his employment. The dispute was raised after an awarded passed under Workmen Compensation Act. There was no

credible documents/ materials/evidence to link his permanent total disability to his employment and no credible

evidence is emerging to justify the delay in raising the dispute. Relying upon the decisions of the Hon’ble Apex Court

in the case of Prabhkar-Versus- Joint Director Sericulture Department and Others in SLP (Civil) No.27080 of 2015. It

has been argued that the claim statement of the disputant shall be rejected on account of the dispute having been raised

after more than 10 years of the disengagement.

The above pleading and argument is countered on a contention that law of limitation is not applicable to the

I.D. Act. Rather, Sec.10 sub clause (1) of the Act provides that appropriate Government have authority to refer a

dispute for its adjudication at any time, provided the Government is satisfied that a dispute exists between the parties.

The dispute having been referred by the appropriate Government the Tribunal has limited scope to question the delay

or reject the statement of claim on the ground of delay. Admittedly, there is no provision in the I.D. Act for applicability

of the provisions of the Limitation Act. On the other hand, as per the settled principles of the Hon’ble Apex Court

though Limitation Act 1963 is not applicable to the reference made under the I.D. Act but, delay in raising Industrial

Dispute is definitely an important circumstance which the labour Court must keep in view at the time of exercising its

discretion irrespective of whether or not such objection has been raised by either side. (Asst. Engineer, Rajstan State

Agriculture Board Sub Division, Kota –Vrs- Mohan Lal (2013) SC 543. Further in the case between Ajib Singh-Versus-

Sirhind Cooperative Marketing –cum- Processing Service Security Ltd and another (1999) SC.82 it has been settled that

a relief under the Industrial Dispute Act can not be denied to the workman merely on the ground of delay. The plea of

delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as

a merely hypothical defence. No reference to the Labour Court can be generally questioned on the ground of delay

alone. Even in a case where the delay is shown to be existing, the Tribunal/Labour Court dealing with the case can

appropriately mould the relief claimed by the disputant. That being the settled position of law the contention and

argument advanced by the learned Counsel for the Management for rejection of the statement of claim of the disputant

has no substantial force.

10.

The next issue comes for consideration is the relief to which the disputant entitled to . As per the claim

statement she has prayed for her employment with effect from 25.6.97 i. e from the next day of her husband’s discharge

from service. The disputant has failed to show any circular or guide lines of the Management or its scheme in which

it has been incorporated that compassionate appointment to the direct dependant of the discharged employee is to be

given effect from the next day of the accidental death or permanent total disability of the employee. Rather, the NJC

agreement provides that in case of accidental death or permanent total disablement of an employee in an accident

arising out of and in course of employment of one of his /her direct dependant will be provided assistance. There is no

other circular or guide lines of the Management or settled principles that such appointment is deemed to be effective

from the date of accidental death or permanent total disablement. On the other hand, such compassionate appointment

is extended on application of the dependant of the affected employee and such claim for compassionate appointment

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6393

can be countenanced only as against a specified number of vacancies arising in a year with subject to the satisfaction

of the authority that the family members of the concerned employee are in distress. Further, such applicants are usually

in queue and appointment is given to such applicant when his/her turn comes in the queue . The Hon’ble Apex Court

have set out that the Tribunal or the High Court cannot compel the department concerned to relax the ceiling and appoint

a person on compassionate ground. Since, this method of appointment is in deviation of the normal recruitment process

under the rules, where people are waiting in queue indefinitely, the policy laid down by the Government regarding

such appointment should not be departed from by the Courts /Tribunals by issuing directions for relaxation, merely on

account of sympathetic considerations or hardships of the person concerned. The Courts cannot direct appointments on

compassionate grounds de hors the provisions of the scheme in force governed by rules/regulations /instructions. If

in a given case , the department of the Government concerned declines , as a matter of policy , not to deviate from

the mandate of the provisions underlying the scheme and refuses to relax the stipulation in respect of ceiling fixed

therein, the Court cannot compel the authorities to exercise its jurisdiction in a particular way and that too by

relaxing the essential conditions, when no grievance of violation of substantial right of parties could be held to have

been proved otherwise.( The Life Insurance Corporation of India -Vrs- Smt. Asha Ramachandra Ambekar and another

AIR 1994 S.C 2148). Thus, it cannot be out rightly be rejected that appointment on compassionate ground is usually

taken into consideration as per the turn in the queue based on the date of such applications visa-vis availability of

vacancies/ and the ceiling fixed for such appointment in a given year as well as subject to the satisfaction of the

authority that the family of the workman/employee is in distress.

11.

Coming to the case in hand it is claimed by the disputant that he applied for compassionate employment on

5.7.2000 vide Ext.6 which is stated to be the Xerox Copy of her application for such appointment. No other

paper/document has been filed in support of the claim that the disputant applied for compassionate appointment either

soon after late Mallick was discharged from service for his medical unfitness or prior to 5.7.2000. It further appears from

the close scrutiny of the documents more particularly, Workman Compensation Award Ext.10, the alleged application of

the disputant i.e. Ext.6, and the application submitted before the Deputy Labour Commissioner, Government of Odisha,

Rourkela Ext.12 that the disputant submitted her application for compassionate appointment after award was given by

the Commissioner of Workman Compensation, Rourkela and as such her such application may be presumed to date

5.7.2000 as claimed by her. She cannot be deemed to be in queue with effect from 25.4.1997 as by that time her husband

was stated to be discharged from service on ground of medical unfitness arising in normal and natural course of his life.

Her right for compassionate rehabilitation arose when the award was given by the Commissioner of Workmen

Compensation, Rourkela vide Ext.10 wherein it was held and declared that permanent total disablement of Late Mallick

resulted in an accident arising out of and in course of his employment. The award was passed on 30.3.2000. It seems

from the above documents that the disputant submitted her application on 5.7.2000 after it was declared in Ext.10 that

permanent total disability of late Mallick was out of an accident occurred in course of his employment. In the above

facts and circumstances the disputant shall be held to be in queue for her appointment on compassionate ground w.e.f

5.7.2000.

12.

For the reasons discussed above it can be safely held that the husband of the disputant suffered permanent total

disablement in an accident arising out of and in course of his employment for which he was discharged from service on

25.7.1997 being found medically unfit to perform his duty. Keeping in view the provisions of the NJC

Settlement/agreement,1995 a direct family member of the disputant is entitled to a compassionate appointment subject

to other conditions and rules for such compassionate appointment. There is no specific pleading on behalf of the

Management that the disputant is not entitled to such compassionate appointment for any other reason than her husband

being suffered from permanent total disablement out of a disease arising in normal and natural course of his life.

Hence, the 1^st Party Management is directed to provide her employment as per her suitability to a post and subject to

satisfaction of other conditions for such appointment presuming the disputant to be in queue w.e.f 5.7.2000. In case her

turn in the queue is already reached she shall be given appointment against the next vacancy arising within the ceiling

fixed for such compassionate appointment. In case of any delay on the part of the Management in complying the above

direction within two months of the Gazette Notification of the award as a result of which the disputant attains age of

superannuation and becomes ineligible for compassionate appointment, the 1^st Party Management is liable to pay a

compensation of Rs.10,00,000/- with 7% interest from the date of Gazette Notification of the award.

The reference is answered and the case is disposed of accordingly.

Dictated & corrected by me.

B. C. RATH, Presiding Officer

6394

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

नई द ली, 13 अग त, 2019

का.आ.

का.आ. 1513

1513

1513.—औwोिगक िववाद अिधिनयम 1947 (1947 का 14) क, धारा 17 के अनुसरण म के?ीय सरकार

औwोिगक िववाद म के?ीय सरकार औwोिगक अिधकरण एवं xम ?यायालय, भुवनेo वर के पंचाट [संदभD िविवध सं(या

8/2012 एL ड 38/2001, (संदभD सं( या 80/2012 एL ड 18/2005)] को 0कािशत करती है जो के?ीय सरकार को

09.08.2019 को 0ा9 5आ था।

[सं. जेड-16025/4/2019-आईआर (एम)]

डी. के. िहमांशु, अवर सिचव

New Delhi, the 13^th August, 2019

S.O.1513.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award [I.D. Misc Case No. 8/2012 & 38/2001, (ID. Case No. 80/2012 & 18/2005)] of

the Central Government Industrial Tribunal/Labour Court, Bhubaneswar now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the management of M/s. Steel Authority of India Limited and their

workman, which was received by the Central Government on 09.08.2019.

[No. Z-16025/4/2019-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, BHUBANESWAR

Preset: Sri B.C. Rath, Presiding Officer,

Central Govt. Industrial Tribunal,

Bhubaneswar.

I.D. Misc Case No. 8/2012 & I.D.Misc Cas No. 38/2001

I.D. Case No. 80/2012 & I.D. No. 18/2005

Dated, the 25^th day of , June,2019

Between:-

The Management of

Steel Authority of India Ltd.

Rourkela Steel Plant, Rourkela,

Represented through

Asst. General Manager,

Blast Furnaces (Operation)

…Applicant

-Versus-

Shri C.R. Murmu,

S/o. Late Liba Murmu,

Plot No.873727, Token No.702,

Designation Sr. Operative,

Department Blast Furnaces (Operation),

Qrs. No. A/295,Sector-16,

Rourkela, Dist. Sundargarh, Odisha.

Permanent address-

At/PO. Hesada, P.S. Bahalda,

Dist. Mayurbhanj, Odisha

…Opposite Parties

Counsels:-

For the Applicant : Sri Subrat Mishra

For the Opposite Party : Sri B.C. Bastia

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6395

AWARD

The above noted cases are disposed of by this common award and order since the parties and the dispute relating to

dismissal of the disputant workman Sri C.R. Murmu are common in both the cases.

Initially the I.D. Misc.Case No.38 of 2008 was registered in the State Industrial Tribunal, Rourkela on the

application of Rourkela Steel Plant preferred U/s.33(2)(b) of ID Act,1947(hereinafter referred to as “ the Act”) for

approval of its action of dismissing the O.P Workman Sri C.R.Murmu (herein after referred to as “the disputant”) on

account of he being held guilty of misconduct for allegedly involved in an attempt of theft and loss of property

belonging to the applicant. The approval is sought since the disputant was a concerned workman in a previous dispute

with the applicant in I.D.Case No.7/1997 pending disposal before the said learned Tribunal, Rourkela. I.D. Case No.18

of 2005 was registered in the learned Tribunal, Rourkela in the event of a dispute raised by the Union challenging

the removal of the disputant from service with effect from 29.10.2001 and the dispute having been referred by the

appropriate Government to the learned Tribunal, Rourkela for its adjudication as the conciliation between the parties

failed. The term of reference is “Whether the action of the management of Rourkella Steel Plant, Rourkela by removing

C.R. Murmu, Sr. Operator, Blast Furnace(Opn),Rourkela Steel Plant,PLNo.873727 from his service w.e.f.29.10.2001 is

legal and/or justified. If not, what relief is entitled to ?”

It is to be mentioned here that when both the cases were pending for disposal in the learned Tribunal, Rourkela,

the same were transferred to this Tribunal(CGIT, Bhubaneswar) keeping in view the amendment of the definition of

“appropriate Government” contained U/s.2(a)(i) of the Act in the year 2010 which came into force w. e. f 15.9.2010 and

the dispute being related to a Central Public Sector Undertaking is required to be decided by the CGIT, Bhubaneswar.

The cases are renumbered as shown in the cause and title of the award. It is also not out of place to mention here that

by the time of transfer of the cases, the fairness of departmental enquiry being a preliminary issue in I.D. Misc. Case

No.38/2001 was already decided against the Management by the learned Tribunal Rourkela vide its order

dated.24.10.2003 and the said Misc. Case was protracting for taking evidence of the Management in support of the

alleged misconduct. Since a petition was moved by the parties for simultaneous hearing and disposal of both the cases on

account of the removal of the disputant being the main issue in both the cases, this Tribunal vide its order

dated.21.11.2016 directed clubbing of the I.D. Misc. Case with that of I.D. Reference Case for analogous and

simultaneous hearing and disposal of the matter keeping in view that the jurisdiction of the Tribunal cannot be equated

in the matter of Section 33 (2)(b) application with that of the matter U/s.10 of the Act. Since, the jurisdiction of the

Tribunal is wider than that of U/s.33(2)(b) of the Act it was directed that the issues involved in both the cases would be

dealt in the reference I.D. Case. The applicant Management adduced further evidence in this Tribunal to establish the

misconduct of the disputant and merits of its case whereas, the disputant is also given opportunity to adduce evidence in

support of his claim.

The undisputed facts resulting in the registration of the above noted cases are that the disputant was

working as Senior Operator (Blast Furnace) in the Steel Plant by the relevant time of incident. A common charge sheet

was issued against him and one B.M.Naik (Operator Crane) for misconduct of dishonesty in connection with

company’s property and for attempting to make willful loss to the company . Charge sheet was issued alleging that on

9.2.2000 while the disputant was deployed in PCM area of the Blast Furnace department in ‘C’ shift along with Sri

Naik, (who was operating crane) they deliberately lip poured hot metal from ladle No.20 to the slag pot in slag car

No. D/50 in PCM, instead of decanting slag from the ladle. The slag car No. D/50 was subsequently put in the track

leading to the Blast Furnace slag dumping yard so that the hot metal would be disposed of as slag. But, the slag car was

intercepted by an inspecting team and it was detected that 14 tones of hot metal worth of Rs.105,000/- approximately

was lip poured in the slag car and attempt was being made to carry them to slag dumping yard with connivance of some

other employees. The disputant was placed under suspension immediately pending initiation of departmental enquiry.

Charge sheet was issued to the disputant and Sri Naik. Both of them submitted their show cause denying their

involvement in the alleged attempt to theft of hot metal. As the disputant and Sri Naik agreed for a joint enquiry, the

Enquiry Officer conducted a joint enquiry. On completion of enquiry the disputant and Sri Naik being found

involved in an attempt of theft of property belonging to the Management were dismissed from service on

29.10.2001.

The case of the disputant workman as emerges from his statement of claim filed in I.D. Case No.18/2005

and his show cause in I.D Misc. Case No.38/2001 is that his suspension with effect from 10.2.2000 as well as his

dismissal w.e.f.29.10.2001 is not legally sustainable in the eye of law since both the orders were not given effect by the

authority having competency to pass such orders. During the departmental proceeding he was not paid subsistence

allowance as admissible under the standing order of the 1^st Party Management. The charges were not specific and the

same are defective. The misconducts were not established from the evidence/materials led before the enquiry Officer.

In the process of decantation, it is natural and possible that some hot metal might have gone to the slag pot, because

the hot metal ladle was containing both slag on the upper level and hot metal on the bottom and the decantation was

done purely manually on eye estimation. There was no mechanical or electronic device to separate slag and hot metal.

6396

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Therefore, it was unjust and unreasonable and improper to hold that the alleged lip poured hot metal from ladle to the

slag pot was with dishonest intention so also the allegation of attempting to make willful loss of company’s property

by putting the slag car containing hot metal in the track leading to slag dumping yard is unfounded. He was not in

charge of movement of slag car and as such he cannot be liable for the hot metal being taken to Dumping Yard. The

enquiry officer as well as the enquiry committee was not duly constituted . The enquiry was not conducted in

conformity to the rules/provisions of the standing order and principle of natural justice. He was not furnished with

the copies of necessary documents either at the time of issue of charge sheet or at the time of commencement of

enquiry. Appointment of presenting officer was not duly notified to him so also the list of witnesses and documents

relied upon by the department. Witnesses to the enquiry were not examined in his presence and their statements were

recorded beyond his back. Witnesses not named in the list of the presenting officer were also examined. The enquiry

was conducted in a bias and unfair manner. The finding of the enquiry is perverse in as much as it is not based on the

material/evidence emerged in the enquiry and evidence of the defence witnesses are not taken into consideration. The

punishment of dismissal is not proportionate to the charges made against t he disputant. Hence, the disputant has

claimed to declare his dismissal as illegal and unjustified and to reinstate him with back wages with all service

benefits.

In its W.S. and the application U/s.33(2)(b) the 1st party Management Rourkella Steel Plant has refuted all the

allegations of the disputant and taken a stand that in the event of interception of the slag pot at the spot , the disputant

and other employees were caught red- handed in the alleged incident of attempt of theft and attempt to cause loss of

company’s property. They being caught in the alleged incident of dishonesty were placed under suspension,

immediately. Charge sheet with specific allegations was issued to the disputant. Enquiry Officer was duly appointed

and the disputant was informed about such appointment as well as the appointment of the presenting officer. He was

furnished with all documents and list of witnesses relied upon by the Management to prove the misconducts. He was

given due opportunity to defend himself in the departmental enquiry. The enquiry was held in accordance with the

rules/provisions of the standing order as well as principle of natural justice. He was issued with 2^nd show cause notice.

The disputant was provided subsistence allowance as admissible to him. The finding of the enquiry officer is just and

proper and it is based on the materials/evidence led before him. One month wage was paid to the disputant when

dismissal order was issued to him and application U/s.33(2)(b) of the Act was moved. There being no defect in the

departmental enquiry and charges of misconduct being proved the disputant was rightly dismissed from service. The

punishment of dismissal was not disproportionate to the gravity of misconducts committed by the disputant. His

dismissal from service on account of being involved in an attempt to commit theft of company’s property cannot be

interfered. Hence, prayer has been made for rejection of the statement of claim and for approval of the action of the

Management in dismissing the disputant from service.

On the aforesaid pleadings and contentions advanced by the parties the following issues are to be taken

into consideration for just and proper adjudication of the dispute.

ISSUES

Whether the reference made by the Government of India and the application U/s.33(2)(b) I.D Act filed by

RSP are maintainable in the eye of law.

Whether the departmental enquiry against the 2^nd party workman (Murmu) was conducted in a fair and

proper manner?

Whether the punishment of dismissal imposed on Sri Murmu was legal and justified.

To what relief the disputant is entitled?

FINDINGS

In support of its cases the Management examined the Manager Personnel Sri Dhirendra Misra as M.W.1 and

exhibited documents like Xerox copy of Charge Sheet,Xerox copy of explanation to the charge sheet,Xerox copy of

notification of Enquiry, Xerox copy of Reconstitution of Enquiry Committee, Xerox copy of notice, Xerox copies of the

Proceeding,Xerox copy of witness and documents,Xerox copy of written brfief(argument),Xerox copy of written brief,

Xerox copy of findings,Xerox copy of forwarding letter dt.8.6.2001, Xerox copy of Personnel Policy Circular No.654

dt.21.8.1992,Xerox Copy of committee report,Xerox copy of report of P.K.Mohanty and A.Das, Xerox copy of report of

S.K.Samantaray, Xerox copy of removal letter dt.29.10.2001,Xerox copies of postal receipts No.4722,4723

dt.29.10.2001 and postal A.D. Xerox copies of M.Os Receipts,Xerox copy of Appeal dt.26.11.2001. Xerox copy of

P.P.Circular dt.21.9.1992, Copies of orders of Industrial Tribunal,Rourkela dt.9.10.2002 and 21.2.2008 in I.D. Misc.

Case No.39/2001 which are marked as Ext.1 to 23. On the other hand the disputant examined his co-employee

Sasadhar Nayak as W.W.1 and filed documents the Xerox copy of petition dt.14.6.2000 of the workman ,Xerox copy of

Petition dt.14.10.2000,Xerox copy of Petition dated.10.11.2000, Xerox copy of Petition dt.24.6.2000, Xerox copy of

objection dt.23.1.2001, Xerox copy of letter dt.10.2.2001, Xerox copy of Petition dt.15.2.2001, Xerox copy of

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6397

Petition dated. 24.2.2001, Xerox copy of Petition dated.7.3.2001, Xerox copy of objection petition dt.22.1.2001,

Xerox copy of Petition dt.8..2.2001, Xerox copy of objection dated.30.1.2001, Xerox copy of objection

dated.8.3.2001,Xerox copy of suspension order , Xerox copy of Pay Slip, Xerox copies of calculation sheet, Xerox copy

of enquiry notice, Xerox copy of notice issued by E.O., Xerox copy of petition of the O.P., Xerox copy of letter

dt.1.3.2001 of Sr. Manager, Xerox copy of Signature of Sri Samanta in Ext.14, marked as Ext. A to Ext. Q before the

Labour Tribunal, Rourkela, on the basis of which the preliminary issue on fairness of the departmental proceeding was

decided against the Management vide order dated.24.10.2003. Thereafter, the Management was called upon to give his

evidence if any to prove the misconduct of the O.P. 2^nd party workman pursuant to which the Management has

examined three witnesses such as S.R. Suryabanshi, Asst. General Manager, Sudip Kumar Basak, Dy. General Manager,

Traffic and Raw Materials and Gyanaranjan Das Asst. General Manager ( M.W.2 to M.W. 4 respectively)and filed some

more documents which are marked as Ext. 14 to 23 in addition to documents filed earlier to prove the misconduct of

the disputant to justify its action by which the disputant was dismissed from service. The disputant has not adduced any

evidence after the preliminary issue was decided in his favour except cross examining the witnesses examined by the

Management. That apart he has relied upon the documents and evidence, which were adduced at the time of hearing on

preliminary issue.

Before going to the issues involved in the dispute it is felt just and proper to mention here that in an

application U/s.33(2)(b) of the Act the Industrial Tribunal has a limited scope and it is to find out whether a proper

domestic enquiry in accordance with the relevant rules and standing orders and principles of natural justice has been

held and whether a prima facie case for dismissal, passed on legal evidence adduced before the domestic Tribunal, is

made out and lastly , whether the employer had come to a bonfide conclusion that the employee was guilty and the

dismissal did not amount to unfair labour practice and the dismissal was not intended to victimize the employee.

Besides, it is to be seen whether the Management paid wages for one month to the dismissed workman and moved an

application to the authority before whom the proceeding in previous dispute is pending for approval of its action. It is

well settled that the nature of the jurisdiction exercised by the Tribunal while according approval U/s. 33(2)(b) is,

therefore limited. When the Tribunal gives or refuses to give permission it does not adjudicate an Industrial Dispute.

Thus Industrial Tribunal has no jurisdiction while deciding an application U/s. 33 of the Act to consider whether the

punishment sought to be meted out by the employer to the workman is harassed or excessive or to substitute another

punishment or to impose any condition on the employer before the requisite permission would be granted . But, the

power of Industrial Court U/s.10(1)(d) read with Sec.12(5) of the Act is quite extensive and the main object of the

Tribunal is adjudication of the dispute. Sec.11-A of the Act has given wider power to the Tribunal to satisfy itself

whether the misconduct alleged is proved or not and even it has the power to interfere in the punishment imposed by

the employer. In other words, U/s.10 of the Act the power of the Tribunal lies to differ from the Management both on a

finding of misconduct arrived at as well as the punishment imposed by it. Keeping the above principles in view the

issues raised in both the cases are to be dealt with to find out whether the dismissal of the disputant with effect from

29.10.2001 on account of he being held guilty of misconducts in a departmental proceeding is legal and justified

and if, post facto approval can be accorded to the action of the Management by which it has dismissed the disputant.

10.

Since the disputant was dismissed from service due to imposition of punishment on account of he being held

guilty of serious misconduct in a departmental proceeding, it is to be seen first whether the departmental enquiry held

against the disputant was conducted in a fair and proper manner i.e. in accordance to the rules or provisions of the

standing order and principles of natural justice. The above issue having been answered in negative by the learned

Labour Tribunal, Rourkela by its order dt.24.10.2003,there is no need of giving any further finding on the said issue

of fairness of departmental proceeding. However, it cannot be over sighted that as per the settled principles of the

Hon’ble Apex Court if the finding on the preliminary issue of the validity of domestic enquiry is in favour of the

Management, then no additional evidence need be cited by the Management. But, if the finding on the preliminary issue

is against the Management, the Tribunal will have to give the employer an opportunity to cite additional evidence and

also give a similar opportunity to the employee to lead evidence contra, provided the request to adduce evidence had

been made by the Management to the Tribunal during the course of the proceeding and before the trial has come to an

end. The above procedure is required to be adopted in both the proceedings irrespective of the matter whether the

proceeding relates to an application U/s. 33(2)(b), the Act or a proceeding by virtue of a reference U/s. 10 of the Act. In

such event the Industrial Tribunal will have to find out on its own assessment of its evidence adduced before it

whether there was justification for dismissal. If it, so finds, it will grant approval of order of dismissal which could

relate back to the date of dismissal, provided the employer had paid or offered to pay wages for one month to the

employee and the employer applied to the appropriate authority for approval of its action. In the proceeding initiated by

a reference U/s.10 of the Act the Tribunal is required to give a finding if any misconduct is committed by the concerned

employee as well as a finding if the punishment of dismissal is proportionate to the gravity of misconduct committed by

the employee. Since, both the proceedings mentioned earlier are to be disposed of by this common award and order the

Tribunal has to consider the evidence produced before it to arrive at a conclusion if any misconduct is committed by the

disputant and if the misconduct is proved, the punishment of dismissal is justified for such misconduct.

6398

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

11.

Keeping the above principle in view it is to be seen whether the Management has adduced adequate

evidence directly before this Tribunal to prove the misconduct of the disputant. Out of three witnesses examined by the

Management to prove the misconduct of the disputant before this Tribunal M.W. 2 and M.W. 3 have stated that they

were at the spot at the relevant time. The evidence of other witness M.W.4 is not vital since he had no direct

knowledge about the alleged misconduct of the disputant and his testimony before the Tribunal is based on official

records. On close examination of the oral testimony of M.W.2 and M.W.3 it is found that their presence at the spot on

the relevant date is not seriously challenged by the disputant. Nothing substantial has been elicited to doubt their

presence in the premises at the relevant point of time. It is the evidence of M.W.2 that he was in ‘C’ shift duty i.e. in

between 10 P.M. to 6 A.M. on the relevant date. According to him hot metal is poured in pick casting machine. The

decanting process usually poured in slag materials. Ladle No.20 was placed in the Blast Furnace along with other

ladles. He noticed slag was going to the ladle No.20 After the hot metal was poured the ladle was going to SMS

mixture. It is stated by him that the ladle No.20 was found in PCM area instead of going through SMS area. According

to him the disputant was in charge of the PCM area and the entire operation process in PCM area was carried out on

his (the disputant) instruction. Later, he came to know that hot metal along with slag was poured and taken to track

leading to slag dumping yard and it was found that about 14 tones of hot metal were carried from PCM area which

were intercepted by a surprise inspection team. According to him the crane operator B.N.Naik was to carry out the

direction of the disputant, who was the ground man. As per the direction of the disputant hot metal was poured in the

ladle and then slag pot intercepted by the inspection team. Admittedly, in his cross examination it is emerged that he

was not present when hot metal was poured in ladle No.20 and then slag pot placed in the track leading to dump yard.

The same does not itself exonerate the disputant from responsibility to explain as to how hot metal poured in ladle

No.20 was detected and intercepted in slag pot on the track leading to dumping yard. It is not disputed as emerging from

the evidence of the parties that 14 tones of hot metal were poured from ladle No.20 into slag pot which was

intercepted by an inspection team while such metal was being taken out of PCM area. It is emerging from the evidence

of M.W.3 that on the relevant day he being a Member of the Committee to conduct a surprise check in PCM area

found hot metal poured in to slag pot with a substantial quantity. It was weighing 14 tones. According to him the

disputant was in charge of PCM area when hot metal was detected in slag pot. There is nothing substantial in the cross

examination of M.W.2 and M.W.3 either to disbelieve them or to infer that they had falsely implicated the disputant

for any grudge. On the other hand it is not in dispute either in the departmental enquiry or before this Tribunal that the

disputant was in operational charge in PCM area at the relevant time and hot metal weighing 14 tones was detected and

intercepted by the surprise inspecting team while it was being taken towards slag dumping yard. That being the fact

emerging from the evidence of M.W. 2 and M.W. 3 , it is the bounden responsibility of the disputant, who was in

operational charge at the spot, to explain satisfactorily as to how hot metal wroth of more than Rs.100,000/- was

intercepted while being taken to slag dumping yard. If the oral testimony of M.W. 2 and M.W. 3 are taken into

consideration along with the testimony of M.W.4 and contents of reports like Ext. 14, 15 and 16 i.e. reports of officers

entrusted with the surprise checking party, the misconduct as alleged in the charge sheet seems to have been

established against the disputant. It is pertinent to mention here that law is well settled that standard of proof in

domestic enquiry is not as rigid as in a criminal trial since strict rules of the Evidence Act and the standard of proof

envisaged therein do not apply to a departmental proceeding or domestic Tribunal. It is open to the authority to receive

and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in

conformity with the Evidence Act. The standard of proof to prove the misconduct is not required to be proved

beyond reasonable doubt ‘but’ by the pre-ponderance of probability tending to draw an inference that the fact must

be more probable . If the evidence led before this Tribunal is examined and taken into consideration on the above

principle not an iota of doubt is emerging to hold the disputant innocent and to exonerate him for the incident in which

the hot metal was detected in slag pot found in the track leading to dump yard. Direct evidence may be wanting to

prove the involvement of the disputant in the alleged attempt of theft of company’s property or loss of property, but,

his negligence in duty is clearly established as a result of which the hot metal worth of more than Rs.100,000/- was

intercepted while being taken towards slag dumping yard. Such negligence of duty was going to cause a loss of

property to the Management and such negligence is undoubtedly a grave and serious misconduct in that circumstances.

Thus, on a close reading and scrutiny of the evidence of the Management led before this Tribunal along with various

reports placed before the domestic enquiry as well as in this Tribunal, it can be safely held that the Management has, at

least, able to prove the misconduct of negligence on the part of the disputant before this Tribunal.

12.

Further, on the close scrutiny of the evidence and pleading of the parties it is seen that there is nothing

substantial to suggest or to hold that the disputant was charge sheeted on the ground of any grudge or victimization.

That apart it cannot be over sighted that in the self and same matter in an application U/s. 33(2)(b) of the

Act against B.M.Naik the learned Tribunal Rourkella vide its order dated.9.10.2002 arising out of I.D. Misc.Case

No.39/2001 had given approval to the action of the Management in dismissing Sri Naik on account of he being found

guilty of misconduct in a domestic enquiry. It is in evidence and not in dispute that Sri Naik and the disputant were

charge sheeted identically in the self and same matter and in a joint departmental enquiry they were held guilty and

punished. The oral evidence of M.W.4 in this regard is not seriously disputed. It is also found support from the domestic

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6399

enquiry proceeding file placed before the Tribunal. It is stated by M.W.4 that the learned Tribunal Rourkela basing on

same set of documents and evidence of the joint enquiry held the enquiry as fair and proper as the enquiry has been

conducted following the principle of natural justice and the Tribunal approved the action of the Management in

removing Sri Naik. Be that as it may there is also no ground or reason for this Tribunal to withhold the approval of

action of the Management in dismissing the disputant after he being found guilty of grave misconduct. For the reasons

discussed above it can be safely said that alleged misconduct of the disputant is established before this Tribunal.

13.

Now, coming to the issue of punishment imposed on the disputant it may be noted here that the disciplinary

authority and on appeals , the appellate authority are invested with the discretion to impose appropriate punishment

keeping in view the magnitude or gravity of the misconduct. The Court/Tribunal, while exercising the power of judicial

review should not normally substitute its own conclusion on penalty and impose some other penalty provided the

punishment imposed by the disciplinary authority or the Appellate Authority does not shock the conscience of the

Court. It is well settled that the jurisdiction of the Tribunal in the matter of punishment cannot be equated with an

appellate jurisdiction unless the punishment appears to be arbitrarily or whimsical or shockingly disproportionate to the

gravity of misconduct. Further, parity is required to be maintained in the matter of punishment when several employees

are found to be guilty of similar misconduct more particularly in the self and same matter. It is already described that one

B.M. Naik, Crane Operator being held guilty of misconduct of same nature is dismissed from service. In the above

backdrop no mitigating circumstance is emerging warranting the Tribunal to take a different view than the view taken

by the disciplinary authority.

14.

Though, pleading has been advanced by the disputant that he was not paid subsistence allowance as admissible

to him, no evidence /material is placed before the Tribunal in support of such plea. In absence of any credible evidence

on the part of the disputant to substantiate his pleading in this regard it is to be presumed that due subsistence allowance

was being paid to him during the period of his suspension. On the other hand the Management has pleaded and advanced

evidence to show that one month admissible wage was paid to the disputant at the time of issuance of his dismissal

order. Further, the Management has claimed and adduced evidence that application U/s. 33(2)(b)for approval of its

action was also simultaneously moved. Thus, the requirements of Section 33(2)(b) appears to have been complied with

and there is no other reason to refuse approval of the action of the Management. Hence, there is no merit in the claim of

the disputant so as to hold his dismissal illegal and unjustified.

Consequently the statement of claim filed in the reference In Tr. I.D. Case No. 80 of 2012 stands rejected

whereas the application of the Management preferred U/s. 33(2)(b) of the Act, for approval of its action in dismissing

the disputant is allowed. The order of dismissal of Sri C. R. Murmu passed by the Management is found to be legal and

justified.

Accordingly the reference is answered.

Dictated & corrected by me.

B. C. RATH, Presiding Officer

ubZ fnYyh] 13 vxLr] 2019

dk-vk- 1514-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.kh

jsyos 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] ,ukZdqye ds iapkV ¼lanHkZ la[;k 25@2015½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13-08-2019

dks izkIr gqvk FkkA

[la- ,y&41011@27@2015&vkbZvkj ¼ch-1½]

Ckh- ,l- fc"V] voj lfpo

New Delhi, the 13^th August, 2019

S.O. 1514.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 25/2015) of the Cent.Govt.Indus.Tribunal-cum-Labour Court

Ernakulam as shown in the Annexure, in the industrial dispute between the management of Sourthern Railway and

their workmen, received by the Central Government on 13.08.2019.

[No. L-41011/27/2015– IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

6400

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

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. 25 of 2015

Workman…

The President

Dakshin Railway Employees Union

32/1547, Pallissery Road

Palarivattom

Kochi - 682025

By Adv.T.C.Govindaswamy

Management…

The Divisional Railway Manager

Southern Railway

Thycaud

Trivandrum

The Senior Divisional Commercial Manager

Southern Railway

Thycaud

Trivandrum

By Adv.Millu Dandapani

The Divisional Personnel Officer

Southern Railway

Thycaud

Trivandrum

This case coming up for final hearing on 31.05.2019 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-41011/27/2015-

IR(B-I) dt.13.05.2015 referred the following dispute for adjudication by this Tribunal.

2. The dispute referred is;

“Whether the action of Southern Railway in enhancing the number of coaches allotted to individual ticket

examiner of Trivandrum Division of Southern Railway without considering the grievance of the Dakshin

Railway Employees Union is justified? If not, to what relief the Union is entitled?”

3. After receipt of reference the same was numbered and notice was issued to all the parties. The union as well as the

2^nd management entered appearance. The 1^st and 3^rd management remained ex-parte. The union filed their claim

statement. The issue involved is the revision of norms and enhancement of number of upper/sleeper class

coaches to be manned by individual ticket examiners of Trivandrum Division. The proposed norms resulted in

enhancement of the existing norms of 1 conductor for 3 upper class coaches to 1 conduct for 5 coaches. Similarly it is

also proposed 1 TTE for 3 sleeper coaches instead of 2 coaches at present.

4. The 2^nd management did not filed any written statement. The union and the management remained absent

continuously on successive posting date and were declared ex-parte. The union filed an IA for setting aside the exparte

order dt.27.04.2017 and the same was allowed vide order dt.21.02.2019. The union again remained absent on 04.04.2019

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6401

when the matter was posted finally for their evidence. The matter was posted to 31.05.2019 for management evidence.

The management also remained absent and was declared exparte.

5. It appears that the union as well as the managements are not interested in pursuing the matter and an adjudication

process which started 15.07.2015 has not proceeded any further because of the non co-operation from the side of the

union as well as the management.

6. In the circumstances explained above there cannot be any adjudication of the dispute referred to this Tribunal and a

“No Dispute Award “ is passed in this case.

Hence a no dispute Award is passed.

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

APPENDIX

Nil

ubZ fnYyh] 13 vxLr] 2019

dk- vk- 1515-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nh

dukZVd cSad fy- 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] cSaxyksj ds iapkV ¼lanHkZ la[;k 51@2009½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

13-08-2019 dks izkIr gqvk FkkA

[la- ,y&12012@50@2009&vkbZvkj ¼ch-1½]

Ckh- ,l- fc"V] voj lfpo

New Delhi, the 13^th August, 2019

S.O. 1515.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 51/2009) of the Cent.Govt.Indus.Tribunal-cum-Labour Court

Bangalore as shown in the Annexure, in the industrial dispute between the management of Karnataka Bank Ltd. and

their workmen, received by the Central Government on 13.08.2019.

[No. L-12012/50/2009– IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

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

BANGALORE

DATED

: 09^TH JULY 2019

PRESENT : Justice Smt. Rathnakala, Presiding Officer

CR 51/2009

I Party

II Party

Sh. B. N. Ashwath Narayana,

H. No./ 17/1, 22^nd Cross,

Bhavaneshwari Nagar,

K.P. Agarahara,

Bangalore - 560023.

The Dy. General Manager,

The Karnataka Bank Ltd.,

Head Office,

Mahaveer Circle, Kankanady,

Mangalore - 575002.

Appearance

Advocate for I Party : Mr. S. Ramesh

Advocate for II Party : Mr. Ramesh Upadhyaya

6402

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

AWARD

The Central Government vide Order No. L-12012/50/2009/IR(B-I) dated 12.10.2009 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.

“Whether the action of the management of Karnataka Bank Limited, Head Office of Mangalore,

Karnataka in dismissing Sh. B.N. Ashwath Narayna, Ex-Attender from services w.e.f 07.05.2008 is legal

and justified? If not, what relief the applicant is entitled to?”

The fact is, the 1^st Party workman was appointed as an Attender in the 2^nd Party on 18.12.1982, on certain

allegations he was issued Charge Sheet dated 08.05.2004 was served on him and he was kept under suspension. He

submitted his reply denying the charges. The Disciplinary Authority decided to hold Domestic Enquiry to probe into the

charges and appointed the Enquiry Officer. On holding the enquiry, the Enquiry Officer submitted his report that, the

Charges No. II (2-6) is proved and Charge No. II (1) is not proved. The Disciplinary Authority called for remarks of the

1^st Party on Enquiry Report, accordingly he submitted his report. However, acting on the enquiry report the Disciplinary

Authority dismissed him from service w.e.f 07.05.2008.

In his claim statement the 1^st Party took exception to the mode, the Domestic Enquiry was held and also

contends that the enquiry report is totally perverse and biased. He contends that the Management has not taken any

action against the real culprits; the 2^ndParty victimized him and dismissed him from service w.e.f 07.05.2008. He further

contends that, his appeal before the Appellate Authority did not survive. He is not gainfully employed and struggling for

survival of himself so also for his dependent family.

The 2^nd Party in their counter statement have denied all the allegation made by the 1^st Party and justified their

actions.

On the rival pleadings of the Parties this Tribunal framed a Preliminary issue regarding the validity of the

Domestic Enquiry held by the 2^nd Party. After a full-fledged trial the issue is answered (vide order dated 16.05.2013), in

the affirmative i.e., the Domestic Enquiry held against the 1^st Party by the 2^nd Party is fair and proper.

The 1^st Party thereafter adduced evidence stating that he is victimized by the 2^nd Party and submitted his written

arguments. Reply argument is submitted by Sh. RU for the 2^nd Party.

The allegation against the 1^st Party as per the Charge Sheet was,

While working as Attender at Bangalore – Srinagar Branch

He fraudulently withdrew amounts of SB A/c using cheque leaves bearing postal signatures of the respective

Account Holders. He has stolen the cheque books which were kept. (details of the cheque leaf number,

amount withdrawn, the number and name of the SB A/c and the account holder, Date of withdrawal are

detailed with the charge)

He stole the FD receipts, forged the signature of the depositors in the loan application, documents and deposit

receipts, availed term deposit loans by pledging the receipts (four deposit loan numbers with respect of

amount of loan, name of the depositor, date of loan, the term deposit pledged are mentioned alongwith the

charge).

He produced a fake salary certificate and offered the same as surety to avail to term loan of Rs. 50,000/- by

Sh. Naveen D J.

He attempted to cheat the Bank by transferring his vehicle which is hypothecated to the Bank during the

currency of the loan availed to purchase the said four-wheeler under the staff loan scheme.

He got executed a registered sale deed dated 13.02.1981 in respect of the House property in his favour by impersonation.

During the enquiry the management examined as many as 14 witnesses and exhibited 97 documents. The 1^st Party

workman examined himself as a witness and produced 6 documents.

One of the term deposit holder namely Sh. H. S. Keshav Kumar, who was referred in the charge sheet was

examined as the witness in respect of the Charge No. I (b). He stated that when he went to the Branch to get the payment

of midterm deposit, he learned that deposit loans were raised on the Security Office renewed ACC No. 170386. Further,

the Manager showed him the ACC receipt generated through the computer; which had signature as Sh. Keshava Kumar,

but the said signature was not his signature. Likewise, he disputed the signatures on the loan application, loan documents

etc., as not his signature and the handwriting in those documents is not his handwriting.

Another witness Smt. Shylashree MW-9/Bank Official, had deposed that, she had renewed the term deposit by

making necessary entry on the reverse of the receipt, but by mistake she took out computer printout receipt of Ex. M-6

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6403

for renewal of receipt Ex M-5, she was also a staff who prepares loan documents, when the regular clerk in the loan

department was on leave. She received loan application (Ex M-7) took delivery letter and the debit slips since, the clerk

in the loan section was on leave she filled up the loan documents and opened the loan account, the documents sent to her

were signed as Keshav Kumar. In the light of the above evidence, the Enquiry Officer held that there were

dissimilarities in the signature found in the loan documents with the specimen signature of Sh. H S Keshav Kumar.

The Enquiry Officer further examined the joint loan documents pertaining to Sh. Shamaprasad H.S and

Smt. H. Chandrika Narayan. Sh. H. Chandrashekar Udupa/Officer (MW-7) he had given statement to the Investigating

Officer and admitted that, preparing the loan documents without comparing the signature of the borrower in the loan

application and other loan documents, with the signature of depositor Sh. H S Shamaprasad. He deposed that CSE had

informed that the depositor is sitting outside the counter, relaying the same he had filled up the loan documents. He

admitted that signature in the loan documents do not tally with the signature of Sh. H.S. Shamaprasad. MW-3 the

Manager, had deposed that since the loan documents duly filled, he sanctioned the loan. Sh. G. Chandrashekar the

person named in the charge sheet at Sl. No. 3 pertaining to charge I(b) was examined as MW-11. Similar was the

evidence stated by him and he disputed the signature found on the loan applications and also loan application form, debit

slip and delivery letter. He also disputed the signatures of renewal of the term deposit receipt and stamp discharge.

MW-8 the Clerk of the Branch deposed that, the document filled and signed was kept on her desk; she fed the

particulars of the said loan accounts into the system and sent the documents to the Manager. The then Officer MW-1,

deposed that he sanctioned the loan without verifying the signature of Sh. Chandrashekar. The Enquiry Officer further

observed serious discrepancies committed/overlooked at different stage of creating/sanctioning/releasing the loan

amount.

10.

The fourth Account Holder referred in the charge sheet Sh. Srinivas Murthy G was examined as MW-10. He

disputed the signatures on the loan documents which were signed as Srinivasa Murthy. similar was the evidence as

above Sh. Chayapathi MW-3/the Manager had admitted that he had written the amount Rs. 20,000/- since, the 1^st Party

had approached him with a set of duly signed documents stating that depositor is waiting for getting the DL facility for

Rs. 20,000/- sanctioned. MW-3 admitted sanctioning DL 616 on security of deposit, he had stated that the 1^st Party had

represented that depositor is sitting outside the cabin, believing the same without further enquiry he sanctioned the loan.

The Loan pertaining to Srinivasa Murthy was closed on 09.01.2004 by transferring the funds from Sundry Assets

Suspense Account.

The other Clerical Staff namely Smt. Vanamala L Sinha had precisely corroborated the statement of MW-3,

according to her the 1^st Party produced the blank DL forms before her for documentation stating that the party is in urgent

need of deposit loan. When she expressed her inability to attend the work, he took the paper to Smt. M B Rekha who

obliged. Clerk Smt. M B Rekha MW-8 corroborated the Statement of Smt. Vanamala L Sinha.

There was ample evidence regarding the financial liabilities incurred by the 1^st Party. During his cross examination also

he had admitted that he owes Rs. 1,40,000/- to his creditors, he had requested the Deputy General Manager HR and IR

Department to direct the Manager not to honour any cheques in his SB A/c 8767 or direct to close his SB A/c 8767 with

permission to open new SB A/c, in respect of 80 cheques issued he had sought for stop payment. Relaying on this

circumstantial evidence the Enquiry Officer records that, he also took interest in getting deposit loans sanctioned and

recorded the finding of guilt in respect of the above allegations.

11.

Regarding the allegation of producing the fake Salary Certificate while standing surety for loan sanctioned in

favour of Sh. Naveen (Thyagaraja co-operative Bank), in his own letter 1^st Party had admitted that he had given the

relying certificate without the signature of Bank Officials. On the request of his friend one Sh. Ravi working as Attender

at Thyagaraja Co-operative Bank Ltd., he had given two photos and signed on loan applications without filling up any

details. An Official (MW-5) of the Thyagaraja Co-operative Bank had deposed with regard to the loan transaction so

also the indulgence of the 1^st Party as surety. He had produced the Salary Certificate, on demand promissory note, letter

of Authority for wage deduction, irrevocable salary Authorization under section 34 of Karnataka Co-OP Societies Act.

12.

The 1^st Party during his cross examination admitted his signatures on these documents, though he disputes the

identity of Sh. Naveen. He had also admitted in his reply to the charge sheet that the Manager had refused to sign the

salary certificate and his friend had taken the said salary certificate from him; as per the terms of loan sanction, from his

salary there used be deduction to which fact he had admitted. In the salary certificate he had given false information

regarding his home take salary, considering the same the Enquiry Officer held that he had fabricated the Salary

Certificate and stood as surety to the loan.

13.

Regarding the allegation of transfer of the vehicle during the currency of the loan, the transferor of the vehicle

was examined as MW-4. The documents i.e., sale receipt, RTO form 29 and form 30, authorization letter two non-

judicial paper of Rs. 100/- each, letter of transfer of insurance and two cheques bearing the signature of the 1^st Party were

produced by him. During his cross examination 1^st Party admitted his signatures on the documents. The Enquiry Officer

noticed that, he had requested the Deputy General Manager vide letter dated 21.03.2005 to seize the vehicle and

6404

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

appropriate the sale proceeds toward his outstanding liabilities under vehicle loan account, on that he was called upon to

surrender the vehicle and to keep the same at the Branch. Instead of surrendering the vehicle, he sought instruction from

Deputy General Manager HR and IR Department to stop deduction of his loan instalment from subsistence allowance

paid to him, and arranged for seizure and auction of the vehicle and appropriate the sale proceeds to loan account.

14.

The Enquiry Officer took note of his conduct in not surrendering the vehicle, and inferred that 1^st Party is not in

possession of the vehicle. Since, there is no acceptable explanation about executing RTO Forms and handling them to

MW-4/Sh. Bairesh, the Enquiry Officer records that the documents were executed and given to MW-4 for transfer of the

vehicle. It was the defence that the vehicle stood in the name of the 1^stParty only and the vehicle loan stands cleared but,

that did not convince the Enquiry Officer and he records that the 1^st Party attempted to cheat the Bank.

15.

Regarding the allegation that he got executed a sale deed in his favour by impersonation, though the seller was

not examined as the witness through Investigating Officer the copy of the sale deed was marked in the evidence. The

1^st Party did not dispute the sale transaction. The allegation was he got the sale deed by Sh. Rangappa and 2 persons

impersonating as Smt. Lakshmi and Sh. Krishna (Major Children of Sh. Rangappa). Sh. Rangappa was made to believe

that he mortgaged the property availed by him. A Civil Suit was filed by Sh. Rangappa and his seven children against 1^st

Party to avail the same. Relaying on the documentary evidence said charge is also held as proved.

16.

The 1^st Party has raised legal questions against the finding of the Enquiry Officer, they are:

The documents sought by him during the course of the enquiry were not produced before the Enquiry

Officer.

ii)

His education qualification is seventh standard and he was working as an Attender and cannot be held

responsible in fabrication of the documents, sanctioning and disbursal of the loan in favour of fictitious

persons.

iii) The loan accounts referred at Charge no. 1(b) was closed even before charge sheet was issued. The Bank

has not disclosed who paid the loan alleged to have been disbursed.

iv) None of the Officers / Clerks of the Bank who pass the cheque and payments directly there by caused loss to

the Bank were subjected to disciplinary action. The 2^nd Party discriminated him from the other Officials who

are really responsible for the fraudulent loan transaction and victimised him.

There was no compliant from any of the Account Holders against him. None of the witness alleged that 1^st

Party alone forged the signature of the account holders.

vi) The cashier of the Bank who has disbursed the loan amount to the fictious person is not examined. He was a

material witness to speak about the beneficiary of the alleged loan transaction.

vii) The Loan Section Officer had admitted during the cross examination that without verifying the specimen

signature of Sh. Chandrashekar, he signed the loan documents on 03.07.2003. He had also admitted that he

had not produced specimen signature card of Sh. Srinivasa Murthy. G.

viii) No police complaint is lodged against him alleging fake salary certificate. He has not created fake salary

certificate.

ix) Regarding the allegation of transfer of his vehicle hypothecated to the Bank in favour of 3^rd Party, even now

the vehicle stands in his own name and he has repaid the full loan amount.

Regarding the allegation of obtaining sale deed by impersonation, the Bank sanctioned the loan after taking

legal opinion from their panel advocate; the Officer of the Bank was also present at the time of registration

and collected all original documents of title from the vendors after registration of sale deed. The Civil suit

filed by Sh. Rangappa and others is still pending. The 2^nd Party has collected the entire Housing Loan

amount with interest from him. Hence, no loss is caused to the Bank by the sale transaction.

17.

The charge 1(a) was held not proved by the Enquiry Officer for want of supporting evidence. As regards charge

1 (b) is concerned, the 1^st Party is said to have received the loan amount by stealing the term deposit receipts pertaining to

four depositors and raising loans by pledging those receipts. What is established during the enquiry is, the signatures of

the depositors were forged in the loan application, documents and deposit receipts. What is over looked is, the author of

those forged signatures was not traced. There was no evidence to demonstrate that 1^st Party received the loan amount

either directly or through his Bank Account. If the 1^st Party had received the amount by way of cash through the cash

counter, cashier was the proper witness/eye witness to depose in this behalf; if the loan amount so raised was credited to

his Bank account there ought to be documentary proof which is not brought before the Enquiry Officer. Admittedly, the

charge sheet is issued subsequent to closure of the loan account as per the evidence of the 2^nd Party they made good the

loan account through the suspense account. During the enquiry 1^st Party sought:

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6405

Details of the persons who deposited the amount to the suspense account.

ii)

Details of the entries of the suspense account maintained in the branch.

iii) The mode of deposit of amount in the suspense account.

iv) Details of the Authority who ordered the deposit, the copy of the order from the concern person.

But these information’s were not furnished which give rise to a reasonable doubt that vital evidence is suppressed by the

management. For sanctioning the loan against the fixed deposit the requirements are, along with the original FD receipts

loan application shall be submitted in the Branch. The sanctioning Authority shall verify the duly filled columns by the

Account Holder and his signature and then sanction the loan. The sanctioned amount shall be transferred to the account

of the deposit holder. The concerned Official witnesses and Manager have unequivocally admitted their omissions and

lapses in sanction of the amount.

18.

If really such fraudulent loan transaction took place in the Bank that would have not happened without the

connivance of the concerned Bank Officials. It is surprising that except the 1^st Party who is the Attender none other has

faced Disciplinary Action. Despite the Enquiry Officer has noticed the irregularities and deviations on the part of the

Manager and the Officer of the Bank, he has recorded his finding affirmatively on the charge 1(b) only on the basis of the

superficial survey of the Management evidence. Hence, I find merit in the contention of the 1^st Party that the said finding

is perverse.

19.

As regards charge 1(c) pertaining to production of a fake Salary Certificate is concerned, it is proved during the

enquiry by the evidence of the Official of the Co-operative society that they have sanctioned term loan of Rs. 50,000/- to

one Sh. Naveen T G and the 1^st Party was the surety. The Salary Certificate pertaining to the 1^st Party was furnished to

the Bank and he authorised the Bank to deduct the instalment from his salary, he has furnished false salary particulars

which is not certified by the Bank. It is the Co-operative Bank which has to be blamed if they have accepted his salary

particulars as the authenticated Salary Certificate. The finding of the Enquiry Officer in recording affirmative finding to

this charge cannot be found fault.

20.

Regarding charge 1(d), transfer of the ownership of the vehicle which is already hypothecated to the Bank, the

1^st Party continued to be the owner of the vehicle and as per B extract of the owner. However, he has signed at blank

form 30, blank form no. 29, blank authorisation letter, blank sale receipt which are marked as Ex M-36 to M-39,

Photostat copy of a blank non-judicial stamp paper allegedly bearing his signature is marked as Ex M-34, these

documents though probablise his intention to transfer the ownership of the vehicle, the ownership is not transferred. The

Bank has not suffered any financial loss from his action; he has already repaid his loan amount. The Enquiry Officer has

recorded the issue has proved which is partially incorrect at the most it may be held that, he attempted to transfer the

vehicle which was hypothecated to the Bank.

21.

Regarding the charge 1(e), i.e., getting sale deed of the house property by impersonation. The bank sanctioned

the loan after the panel advocate examined the title deeds and gave his report. The Official of the Bank was personally

present at the time of registration and collected the original documents. The executants of the register sale deed are

Sh. S. Rangappa and his 7 children filed the Civil Suit for setting aside the sale deed and consequential reliefs. The

plaint allegation is to the effect that the sale deed was fraudulently obtained under the pretext of lending the loan amount.

The Bank is arraigned as the 2^nd Party in the said suit. The 1^st Party has produced the certified copy of the entire order

sheet; it is placed on record. Though it is a suit filed in 2004 till date the matter is pending since the issue is sub judice,

the 2^nd Party could not have framed a charge of impersonation against the 1^st Party workman.

22.

The vehicle loan and the house loan are already cleared by the 1^st Party, and from none of the misconduct

alleged against the 1^st Party workman there is any financial implication on the Bank. What is proved during the enquiry

is, he helped his friend to avail loan from the Co-operative Bank by furnishing wrong details of his salary and attempted

to transfer his vehicle which was hypothecated to the Bank. The Enquiry finding is partially perverse and without proper

and judicious appreciation of the evidentiary material placed before the Enquiry Officer.

23.

The Punishment order of dismissal viz a viz the allegations which I have held proved during the Enquiry i.e.,

Furnishing false information to a Co-operative Bank

ii)

Attempt to transfer hypothecated vehicle is too harsh and disproportionate.

The Bank has not suffered any loss from the misconduct alleged against the 1^st Party. They have discriminated him in

imposing punishment on him alone in total disregard of the involvement of others officials of the Bank who had

connived for fraudulent loan transaction. Being an Attender without Educational Qualification it cannot be his hand

work to prepare the false loan documents. There is no direct or indirect evidence that he alone forged the signatures of

the Account Holders. Hence, the punishment order requires the exercise of Jurisdiction of this Tribunal under section 11-

A of the Industrial Dispute Act to undo the illegality inflicted on the 1^st Party workman by his reinstatement.

6406

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

AWARD

The reference is accepted.

The order passed by the 2^nd Party in No. HO/HR&IR/D/A/12004/1242/2008-09 dated 07.08.2008, thereby dismissing the

1^st Party workman from service is set aside.

The 2^nd Party is directed to reinstate the 1^st Party workman to his original post with continuity of service and 25% of the

back wages.

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

JUSTICE SMT. RATHNAKALA, Presiding Officer

ubZ fnYyh] 13 vxLr] 2019

dk- vk- 1516-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

vkbZlhvkbZlhvkbZ cSad fy- ds izca/krarz 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&1] fnYyh ds iapkV ¼lanHkZ la[;k 87@2014½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj

dks 13-08-2019 dks izkIr gqvk FkkA

[la- ,y&12025@01@2019&vkbZvkj ¼ch-1½]

Ckh- ,l- fc"V] voj lfpo

New Delhi, the 13^th August, 2019

S.O. 1516.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 87/2014) of the Cent.Govt.Indus.Tribunal-cum-Labour Court-1,

Delhi as shown in the Annexure, in the industrial dispute between the management of ICICI Bank Ltd. and their

workmen, received by the Central Government on 13.08.2019.

[No. L-12025/01/2019– IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

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

INDUSTRIAL TRIBUNAL CUM LABOUR COURT No. 1, NEW DELHI

ID No. 87/2014

Ms. Simran Kaur

4/243 Front Side, Subhash Nagar,

New Delhi 110027.

…Workman/Claimant

Versus

ICICI Bank Limited,

Najafgarh Road Branch, New Delhi.

Also at

ICICI Bank Towers,

South Tower, West Wing,

2^nd Flor, Bandra Kurla Complex,

Mumbai 400051.

…Management

AWARD

This is a claim filed directly by the Workman/claimant Ms. Simran Kaur and same has been treated to be filed

under Section 2(A) of the Industrial Disputes Act (hereinafter referred to as “the Act”). As per the averments made in the

claim petition, the claimant after completing the process of interview and other procedural formalities, was appointed as

Junior Officer by the Management vide letter dated 1/11/2011 and was posted at its Najafgarh Branch. She worked

sincerely and with dedication but was completely shocked to receive a letter dated 7/3/2012 whereby the Management

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6407

unilaterally terminated her services with immediate effect on the pretext that the documents submitted by her in support

of her educational qualifications were false and fake. It is pleaded that the Management has illegally terminated the

services of the claimant without verifying the genuineness/authenticity of the documents, without giving her any

opportunity and in violation of the principles of natural justice. The claimant got sent a demand/legal notice dated

30/11/2012 but to no response. Then she approached the Conciliation Officer but to no avail. Prayer has been made for

reinstatement of the claimant with full back wages and all consequential benefits.

The claim petition has been resisted by the Management who filed written statement and took preliminary

objections that the claim petition is not maintainable because the claimant was placed under Probation for six months as

mentioned in the appointment letter dated 1/11/2011. The claimant had suppressed the material particulars and had

obtained the employment on the basis of false and fabricated documents regarding her qualification which fact came to

the notice of the Management during her probation period and hence services of the claimant were terminated vide letter

dated 7/3/2012 It is alleged that the claimant had misled the Management by giving wrong information inasmuch as in

her profile sheet dated 24/10/2011 she claimed to have done BCA from Sikkim Manipal University. According to her,

she passed first year by 60%marks, second year by 55% and final year result was awaited. After selection when she was

asked to submit her final year BCA Mark-sheet in the month of February, 2012, she had informed that her sixth semester

examination will be held in February, 2012 and she will submit her degree only in the month of April, 2012. It is also

alleged that since the claimant was not eligible for the post of Junior Officer as she was not fulfilling the qualification at

the time of her appointment, the Management considered the fact and conduct of the claimant very minutely and

therefore, she was ordered to be discharged from her services as per terms of her employment Prayer has been made for

dismissal of the claim petition with exemplary costs.

On the pleadings of the parties, following issues were framed on 2/6/2015 :-

Whether the termination/dismissal order dated 7-3-2012, terminating services of the workman is legally null

and void ?

ii)

Whether the claim against the respondent is not legally maintainable as alleged ?

4) The Claimant in support of her case examined herself as W.W.1 and tendered his affidavit Ex.WW1/A alongwith

documents Ex.WW1/1 to WW1/3.

On the other hand, the Management No.1 in order to rebut the case of the claimant examined one Ms. Neha

Sharma, Chief Manager who tendered her evidence by way of affidavit Ex.MW1/A and relied on the documents

Ex.MW1/1 to Ex.MW1/3.

I have heard Shri Sanyat Lodha, A/R for the claimant and Dr.M.Y. Khan, A/R for the Management and have lso

carefully gone through the evidence adduced on record by both the parties. My findings on the above issues are as

follows.

Issue No.1 and 2 :-

Both these issues are taken up together as they can be disposed of by common discussion.

From the pleadings of the parties and evidence adduced on record, it is manifest that the claimant herein was

appointed by the Management to the post of Junior Officer vide appointment letter dated 1/11/2011 (Ex.WW1/1). Prior

to that , the claimant had submitted profile sheet (Ex.MW1/1) and undertaking dated 24/10/2011 (Ex.MW1/2). She

joined her duties with the Management on 14/11/2011. Her services were terminated by the Management vide its letter

dated 7/3/2012 (Ex.WW1/2). Thereafter, the claimant had sent demand/legal notice Ex.WW1/3.

Short question arises for consideration is whether the Management illegally terminated the services of the

claimant or whether it was justified in the terminating the services of the claimant without giving her opportunity of

hearing, on the plea that the claimant had obtained the employment on the basis of false and fabricated documents

regarding her qualification which fact came to the notice of the Management during her probation period.

10)

During the course of arguments, learned A/R appearing for the Management strenuously argued that dispensing

services of a probationer like the claimant herein as per terms of letter of appointment does not amount to violation of

principles of natural justice. In this respect, heavily placed reliance on the judgement of our own High Court in the case

of Deputy Director of Education and another Vs. Veena Sharma, 176(2010) DLT 311 (DB). With due respect I am

of the view that aforesaid judgement is of no help to the Management, inasmuch as ratio of the said decision is that the

employer/Management is empowered to terminate the services of a probationer at any time when his work is not found

satisfactory, whereas in the instant case the Management has not terminated the services of the claimant on the ground of

unsatisfactory performance during her probation, rather it terminated the services on the plea that she had furnished

false/fake document regarding her qualification.

6408

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

11)

Perusal of the record shows that the claimant had furnished profile sheet Ex.MW1/1, stating that she passed

BCA Ist year by 60%marks, second year by 55% and final year result – awaited. This clearly shows that the claimant was

not a Graduate at the time when she was offered appointment by the Management to the post of Junior Officer in

November, 2011 and the claimant had clearly stated that her final year result was awaited. The claimant had not

concealed any material particulars regarding her qualifications. Vide appointment letter Ex.WW1/1, the claimant was

appointed on probation period six months vide appointment. It is not the case of the Management that performance of

the claimant was not satisfactory during the probation period and that is why she was discharged from services, rather the

Management has terminated the services of the claimant on the plea that she had furnished/submitted false and fake

documents regarding her qualifications which fact came during scrutiny of the documents in February, 2012. In her cross

examination the claimant WW1 has fairly admitted that she had obtained degree in BCA after her termination. The

Management has failed to elucidate any reason as to why it did not verify the documents filed by the claimant regarding

her qualifications, prior to issuance of appointment letter to her. As per defence of the Management and evidence of

MW1, it is evident that prior to taking action, the claimant vide letter dated 9/2/2012 was asked to submit the document

regarding completion of her graduation, to which she had responded vide e-mail dated 10/2/2012 (ExMW1/3) that she

was required to appear in the Sixth semester examination to be held in February, 2012 and will submit the same in April,

2012. However, the Management at its wisdom immediately terminated the services of the claimant with immediate

effect vide letter dated WW1/2 wherein it has been vaguely mentioned that on verification it is now observed that

document in support of your educational qualifications is found to be false/fake. The Management had not clarified

as to which of the document submitted by the claimant was fake. There is also nothing on record to suggest that prior

to termination her services, the Management had given any opportunity of hearing to the claimant. Non affording of

opportunity of hearing to the claimant prior to her termination amounts to violation of principle of natural justice. As

such, the action of the Management in terminating the services of the claimant being against the principle of natural

justice, is held to be illegal and unjustified.

12)

Now the residual question is whether the claimant/workman is entitled to any incidental relief of payment of

back wages and/or reinstatement of service with full back wages.

13)

It is fairly settled that an employee or workman whose services are terminated and who is desirous of getting

back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first

instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid

payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman wads

gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service.

This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who

makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact.

To this view, I am fortified by the decision of Apex Court in case “Deepali Gundu Surwase v. Kranti Junior Adhyapak

Mahavidyalaya” reported as (2013) 10 SCC 324.

14-

It stands proved on record that the claimant had in fact worked only for three months and 24 days, prior to her

termination vide letter dated 7/3/2012 (Ex.WW1/2). There is no show cause notice or charge-sheet issued to the

claimant/workman by the Management. It has come on record that last drawn salary of the claimant was approx.

Rs.15000/- per month and at that time, she was on probation. The claimant in her testimony dated 22/2/2016

admitted that she had not applied for any job after her termination; she was taking home tuitions for 1-2 children and that

she has been working with Concentrix Daksh Pvt. Ltd., Gurgaon, which job she had joined last year on this date. Thus, it

is evident from the testimony of claimant that the claimant was not gainfully employed prior to 2015. The Management

has not led any evidence to show that the claimant was gainfully employed after her termination.

15- Latest trend itself discernable from the various pronouncements made by the Hon’ble Apex Court is that when a

person has been engaged on daily wage basis or for doing temporary kinds of work, in that situation full back wages are

not to be awarded. There are number of factors which are required to be considered by the Tribunal while considering

the question of reinstatement with back wages. It has been held in the case of Haari Nandan Prasad Vs. Food

Corporation of India (2014) 7 Supreme Court cases 190 as under :-

“ Relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given

fact situation even though the termination of an employee is in contravention of the prescribed procedure.

Compensation instead of reinstatement has been held to meet the ends of justice. An order of retrenchment

passed in violation of Section 25-F although may be set aside but an award of reinstatement should not,

however, automatically be passed. The award of reinstatement with full back wages in a case where the

workman has completed 240 days of work in a year preceding the date of termination, particularly daily wages

has not been found to be proper by the Supreme Court and instead compensation has been awarded. The

Supreme Court has distinguished between a daily wager who does not hold a post and a permanent employee.

The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the

termination is found to be illegal, because of non payment of retrenchment compensation and notice pay as

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6409

mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always

open to the management to terminate the services of that employee by paying him the retrenchment

compensation.

16) Having regard to the recent judicial trends coupled with aforesaid peculiar facts & circumstances of the case, this

Tribunal is of the opinion that an amount of Rs. Two lakhs (Rupees Two Lakhs) as compensation would be just and

reasonable, and the same is awarded in favour of the workman/claimant herein. In case this compensation amount is

not paid by the Management within one month from the date of publication of this Award, then the claimant will be

entitled to recover the same alongwith interest @ 6% per annum from the date of filing the claim petition till realization

of the amount. Award is passed accordingly in favour of the claimant and against the Management..

AVTAR CHAND DOGRA, Presiding Officer

ubZ fnYyh] 13 vxLr] 2019

dk- vk- 1517-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj

jsyos ds izca/krarz 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] y[kuÅ ds iapkV ¼lanHkZ la[;k 26@2013½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13-08-2019

dks izkIr gqvk FkkA

[la- ,y&41012@60@2012&vkbZvkj ¼ch-1½]

Ckh- ,l- fc"V] voj lfpo

New Delhi, the 13th August, 2019

S.O. 1517.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 26/2013) of the Cent.Govt.Indus.Tribunal-cum-Labour Court

Lucknow as shown in the Annexure, in the industrial dispute between the management of Northern Railway and their

workmen, received by the Central Government on 13.08.2019.

[No. L-41012/60/2012– IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL–CUM-LABOUR COURT LUCKNOW

PRESENT : RAKESH KUMAR, Presiding Officer

I.D. No. 26/2013

Ref. No. L-41012/60/2012-IR(B-I) dated: 13.03.2013

BETWEEN :

Shri Mukesh Chand S/o Shri Ram Nath

Village Tikuri, Post. Daryabad

District: Barabanki

AND

The Divisional Railway Manager

Northern Railway

DRM, Hajratganj, Lucknow.

M/s. Shahid Faizan Ahmed and Brothers

654, Begum ka Makbara

Janpad Faizabad.

AWARD

1. By order No. L-41012/60/2012-IR(B-I) dated: 13.03.2013 the Central Government in the Ministry of Labour, New

Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of the Industrial

Disputes Act, 1947 (14 of 1947) referred this industrial dispute between the Shri Mukesh Chand S/o Shri Ram Nath,

6410

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

Village Tikuri, Post. Daryabad, District: Barabanki and the Divisional Railway Manager, Northern Railway, DRM,

Hajratganj, Lucknow & M/s Shahid Faizan Ahmed and Brothers, 654, Begum ka Makbara, Janpad Faizabad for

adjudication.

1. The reference under adjudication is:

2. “WHETHER THE ACTION OF THE MANAGEMENT OF NORTHERN RAILWAY, LUCKNOW AND M/S

SHAHID FAIZAN AHMED & BROTHERS, FAIZABAD IN TERMINATING THE SERVICES OF SHRI

MUKESH CHAND S/O SHRI RAM NATH W.E.F. 25.4.2009 IS LEGAL AND JUSTIFIED? TO WHAT RELIEF

THE WORKMAN IS ENTITLED?”

The case of the workman, in brief, is that he had been appointed through opposite party No. 2 to work for

opposite party No. 1 as Driver Box Porter on 05.11.2004. The workman has stated that the work done by him was

perennial in nature and he worked continuously upto 10.10.2010 for more than 240 days, continuously for more than 120

days, when his services were terminated without any notice pay or retrenchment compensation, in violation to the

provisions of Section 25 F of the Act. He has also submitted that after his termination, new employees have been

recruited in his place, in violation to the provisions of section 25 H of the Act; accordingly, the workman has prayed that

he may be reinstated with back wages and continuity in service.

The opposite party No. 01 has disputed the claim of the workman by filing its written statement; wherein it has

mentioned that the workman had never been engaged/appointed by the opposite party No. 01; moreover the railway

management entered into an agreement with the opposite party No. 02 for executing the day to day casual work at

railway stations; and accordingly, the railway administration is not liable for any claim made by the workman as the

railway administration neither engaged the workman nor did it terminate him; and also that it did not make any violation

of any labour law or engaged in any kind of unfair labour practice; hence it has been prayed by the opposite party No. 1

that the claim of the workman be rejected without any relief to him being devoid of merit.

The opposite party No. 2 did not file any written statement in spite of repeated notices.

The workman has filed its rejoinder wherein he has denied the counter allegations of the opposite parties

reiterating the averments already made in the statement of claim.

After filing of rejoinder on 17.05.2016, the workman abstained himself from the proceedings and neither filed

any list of documents in support of its pleadings; nor corroborated the same though oral evidence; accordingly, in rebuttal

the management also preferred not to file any evidence; resultantly, the case was fixed for arguments.

The authorized representative of the management of OP No. 1 argued his case; whereas none trued up from

either the workman or the OP No.2.

Heard the authorized representatives of the OP No. 1 only, Sri U.K. Bajpai and perused entire material available

on record.

10.

In M/s. Uptron Powertronics Employees’ Union, Ghaziabad through its Secretary vs. Presiding Officer, Labour

Court (II), Ghaziabad & others 2008 (118) FLR 1164, Hon’ble High Court relied upon the law settled by the Apex Court

in Sanker Chakravarti vs. Britannia Biscuit Co. Ltd. 1979 (39) FLR 70 (SC), V.K. Raj Industries v. Labour Court and

others 1979 (39) FLR 70 (SC), Airtech Private Limited v. State of U.P. and others 1984 (49) FLR 38 and (Alld.)

Meritech India Ltd. v. State of U.P. and others 1996 (74) FLR 2004; wherein it was observed by the Apex Court:

“that in absence of any evidence led by or on behalf of the workman the reference is bound to be answered by

the Court against the workman. In such a situation it is not necessary for the employers to lead any evidence

at all. The obligation to lead evidence to establish an allegation made by a party is on the party making the

allegation. The test would be, who would fail if no evidence is led.”

11.

In the present case the workman failed to prove his case as he neither filed any documentary or oral evidence in

support of his pleadings; nor did he turn up for his cross-examination. Mere pleadings are no substitute for proof. It was

obligatory on the part of workman union to come forward with the case that his services have illegally been terminated

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vxLr 24] 2019@Hkknz 2] 1941

6411

by the opposite parties in utter violation of the statutory provisions. There is no reliable material for recording findings

that the alleged injustice was done to the workman or the action of the management of opposite parties in terminating his

services was either illegal or unjustified.

12.

Accordingly, the reference under adjudication is adjudicated against the workman; and as such, I come to the

conclusion that the workman is not entitled to any of the relief(s) claimed.

13.

Award as above.

LUCKNOW

10^th July, 2019

RAKESH KUMAR, Presiding Officer

ubZ fnYyh] 13 vxLr] 2019

dk- vk- 1518-&vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj

jsyos ds izca/krarz 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] y[kuÅ ds iapkV ¼lanHkZ la[;k 66@2015½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13-08-2019

izkIr gqvk FkkA

[la- ,y&41012@35@2015&vkbZvkj ¼ch-1½]

Ckh- ,l- fc"V] voj lfpo

New Delhi, the 13th August, 2019

S.O. 1518.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 66/2015) of the Cent.Govt.Indus.Tribunal-cum-Labour Lucknow as

shown in the Annexure, in the industrial dispute between the management of Northern Railway and their workmen,

received by the Central Government on 13.08.2019.

[No. L-41012/35/2015– IR(B-1)]

B. S. BISHT, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL–CUM-LABOUR COURT LUCKNOW

PRESENT : RAKESH KUMAR, Presiding Officer

I.D. No. 66/2015

Ref. No. L-41012/35/2015-IR(B-I) dated: 28/30-09-2015

BETWEEN :

Shri Santosh Kumar S/o Lalu

Chillola Ajgain, Unnao, Lucknow.

AND

The Divisional Railway Manager

Northern Railway

DRM, Hajratganj, Lucknow.

M/s. Shahid Faizan Ahmed and Brothers

654, Begum ka Makbara

Janpad Faizabad.

AWARD

By order No. L-41012/35/2015-IR(B-I) dated: 28/30-09-2015 the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of

the Industrial Disputes Act, 1947 (14 of 1947) referred this industrial dispute between the Shri Santosh Kumar

6412

THE GAZETTE OF INDIA : AUGUST 24, 2019/BHADRA 2, 1941

[PART II—SEC. 3(ii)]

S/o Lalu, Chillola Ajgain, Unnao, Lucknow and the Divisional Railway Manager, Northern Railway, DRM, Hajratganj,

Lucknow & M/s. Shahid Faizan Ahmed and Brothers, 654, Begum ka Makbara, Janpad Faizabad for adjudication.

The reference under adjudication is:

“KYA M/S SHAHID FAIZAAN & BROTHERS, FAIZABAD VA PRABANDHAN, UTTAR RAILWAY,

LUCKNOW DWARA SHRI SANTOSH PUTRA LALLU KO DINANK 25-10-2010 KO NAUKARI SE NIKALA

JANA NAYAYOCHIT EVAM VAIDH HAI? YADI NAHI TO VAADI KIS RAHAT KO PANE KA HAKDAAR

HAI?”

The case of the workman, in brief, is that he had been appointed through opposite party No. 2 to work for

opposite party No. 1 as Driver Box Porter on 03.09.2005. The workman has stated that the work done by him was

perennial in nature and he worked continuously upto 25.10.2010 for more than 240 days, continuously for more than 120